Sault v City of Melville
[2001] WADC 51
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: SAULT -v- CITY OF MELVILLE [2001] WADC 51
CORAM: NISBET DCJ
HEARD: 11-15 DECEMBER 2000
DELIVERED : 8 MARCH 2001
FILE NO/S: CIV 3863 of 1998
BETWEEN: EDWARD JAMES SAULT
Plaintiff
AND
CITY OF MELVILLE
Defendant
Catchwords:
Negligence - Occupiers liability - Courier driver utilising stairs instead of access ramp - Failure to warn - Failure to advise location of ramp
Legislation:
Occupiers' Liability Act 1985(WA)
Result:
Action dismissed
Representation:
Counsel:
Plaintiff: Mr R R Cywicki
Defendant: Mr J Eller
Solicitors:
Plaintiff: Evangel Taylor
Defendant: John Eller
Case(s) referred to in judgment(s):
Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479
Dover v H Litis Pty Ltd, unreported; FCt SCt of WA; Library No 960026; 23 January 1996
Fox v Wood (1981) 148 CLR 438
Griffiths v Kerkemeyer (1977) 139 CLR 161
Jongen v CSR Ltd & Anor (1992) A Tort Rep 81-192
Oates v Butterly & Anor [2000] WADC 80
Van Gervan v Fenton (1992) 175 CLR 327
Wyong Shire Council v Shirt (1980) 146 CLR 40
Case(s) also cited:
Broadhurst v Millman [1976] VR 208
Graham v Baker (1961) 106 CLR 340
Hackshaw v Shaw (1984) 155 CLR 614
Heath v Aussietrans Pty Ltd [2000] WASCA 12
Magjarraj v Petracetella & Ors, unreported; DCt of WA; Library No D990171; 23 June 1999
McPherson v City of Stirling, unreported; DCt of WA; Library No D980324; 24 November 1998
Medlin v State Government Insurance Commission (1995) 182 CLR 1
Pennington v Norris (1956) 96 CLR 10
Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492
Romeo v Conservation Commission of the Northern Territory (1998) 72 ALJR 208
Smith v McIntyre [1958] Tas SR 36
Stapley v Gypsum Mines Ltd [1953] AC 663
Thatcher v Charles (1961) 104 CLR 57
Thomas v O'Shea (1989) A Tort Rep 80-251
Watts v Rake (1960) 108 CLR 158
NISBET DCJ: The plaintiff brings an action for damages for negligence in respect of injuries he claims he sustained during the course of his employment as a courier driver on 7 January 1997. In the alternative he claims damages for injuries said to have been incurred by reason of the defendant's breach of s 5 of the Occupiers' Liability Act 1985 (WA).
The plaintiff was born on 25 August 1961 and hence, on 7 January 1997 was 35 years of age. He had had considerable experience as a courier driver having worked in that and associated jobs in the transport industry for some many years. On 7 January 1997 he was employed as a courier driver by Compu Store, a commercial records storage business the principal of which is a Mr Peter Manford. The defendant was one of Compu Store's clients and had placed an order with Compu Store for the delivery of archive boxes. These are delivered completely knocked down and are packed flat in bundles. At the end of the evidence I was not certain as to how many boxes were in a bundle but the plaintiff's evidence was in this respect that his instruction was to deliver 200 such boxes to the defendant. For this purpose he was to use his own delivery van and a trolley supplied by his employer.
He said that when he arrived at the defendant's premises he found that the loading ramp which he had used on another occasion for a delivery some years before was inaccessible by reason of some building renovation works which were then being undertaken. He accordingly, he says, pulled up at the front of the building and went up some steps where he asked for Mr David Paull, the person described on his delivery documentation as being the defendant's officer responsible for the order. The plaintiff testified that a receptionist at the front counter paged Mr Paull who came and introduced himself in the lobby. The plaintiff said that Mr Paull asked him where he was parked and he advised him that he was parked out the front of the building whereupon they walked to the plaintiff's vehicle. The plaintiff then testified that Mr Paull said to him, "Okay. Well, we will bring it in through here." The plaintiff was adamant that Mr Paull assisted the plaintiff in loading the boxes onto his trolley, saying that Mr Paull "...wanted to put them all on at the one time" in response to which the plaintiff said that he told Mr Paull "No, I can only take 100 boxes at a time". The plaintiff went on to state that he and Mr Paull put 100 boxes onto his trolley and he estimated that the weight of those 100 boxes at between 50 and 60 kilograms to which he added the weight of the trolley which he thought was about 20 kilograms. The plaintiff's description of what followed is as follows:
"We headed back towards the main entrance of Melville City Council. Mr Paull disappeared inside. When I reached the bottom of the steps I turned around - turned around with my back facing the stairs, pulled the trolley up to the first step and began pulling it backwards and I had to actually physically jerk the trolley up each step. As it hit each level, I had to jump up again. Once I'd reached the top of the stairs I went inside. Mr Paull was there. He showed me the elevator. I went down in the elevator to the lower level. He walked down the steps and met me down the bottom. He actually unloaded my trolley... He unloaded the trolley. Another gentleman appeared, which I believe was Mr Caporn, which I was introduced to, and told me that he would look after me. We both went up in the elevator. The same process then occurred; out to the vehicle. Mr Caporn had then stated to me that he had something else he had to do and he would meet me back inside. Again, I walked to the stairs with the trolley, turned around, the same jerking motion up the stairs until I was two or three from the top, and that's where I heard these three distinct cracks in my back and extreme pain and I couldn't move from that point. After a very, very short period of time, two gentleman came to my assistance. Once of them would be another courier driver who was delivering to the premises and Mr Caporn".
As can be seen, the plaintiff describes delivering the archive boxes in two lots of 100 boxes each and during neither manoeuvre was he assisted by anyone from the defendant. He confirmed this in his cross-examination (T66, 67). It was put to the plaintiff in cross-examination that Mr Caporn assisted the plaintiff with lifting the first load to which the plaintiff responded "he would be lying." It was then put to the plaintiff that not only did Mr Caporn assist the plaintiff with the first load of archive boxes but that he had told the plaintiff specifically to wait until he had finished stacking the boxes in order that he could help him with the second load. The plaintiff did not respond to that question and the defendant's counsel took up other matters with the plaintiff.
The defendant called each of Mr Paull and Mr Caporn. Mr Paull testified that he recollected that a courier driver arrived in consequence of which he was called to reception. He said that he then took the courier driver downstairs to where the records department was located in the city's offices where he introduced the plaintiff to Mark Caporn who was the records manager. Mr Paull said that he left the plaintiff with Mr Caporn and that that was the only contact he had with him. On cross examination Mr Paull confirmed that this was his only contact with the plaintiff and in response to specific questions said that he did not walk to the plaintiff's vehicle with him and did not assist him loading the first load.
Mr Caporn confirmed that the plaintiff was introduced to him by Mr Paull at which stage he said he could not recollect whether or not he told the plaintiff about using the ramp to bring the boxes into the building, stating that it was usual practice that he did so but he could not remember one way or the other whether he did so on that occasion. Mr Caporn said that he went with the plaintiff to his vehicle which was parked out the front of the building about 20 metres in front of the steps where he saw that boxes had been unloaded onto a trolley. Mr Caporn said that he assisted the plaintiff to take the first load of boxes up the stairs at the front of the building and, asked whose idea it was to go up the stairs, he said:
"... I can't say for certain, but I wouldn't have been myself particularly happy with bringing them up that way, but even if I had mentioned going around the other way, obviously I accepted bringing them up that way. I can only presume [that the plaintiff took them up the stairs] because the van was out there, the trolley was loaded up and the boxes were ready to go and therefore it would be quicker to move them up that way than repacking them into the van and taking the van around the other way".
Mr Caporn then testified that he assisted the plaintiff in carrying the trolley loaded up with the boxes up the stairs. He said that "between the two of us we lifted one end of the trolley, I think I took the lower end, and we lifted it up the stairs." Upon his arrival at the top of the stairs he took the plaintiff to the lift where the plaintiff went with his trolley and boxes down to the basement. Mr Caporn thought that he may have taken the stairs down to the basement because it was a small lift. In any event, in the basement records area Mr Caporn said that he assisted the plaintiff to unpack the boxes from the trolley whereupon the plaintiff left to go upstairs. Mr Caporn said that he told the plaintiff that he would be with him in a second to help him with the next load. Mr Caporn was positive that he said this to the plaintiff. The next thing he saw however was after he had finished putting away the first load of boxes under the stairwell he returned upstairs and went out the front doors where he found the plaintiff at the top of the stairs with the trolley on about the second last step from the top, when the plaintiff told him that he had thought he had "done his back in."
The plaintiff's version of events differs quite significantly from that given by each of Mr Paull and Mr Caporn. I much prefer the evidence of Mr Paull and Mr Caporn to that of the plaintiff. Neither Mr Paull nor Mr Caporn presently work for the defendant and have not worked for the defendant for some little time. Mr Paull is a purchasing officer at the Town of Vincent and Mr Caporn is a records manager in Esperance. I thought them detached and objective witnesses anxious to be fair and to give an accurate recollection of the events as far as was possible given the delay of three years. They were in my opinion honest and objective.
The same I regret could not be said for the plaintiff. I formed the distinct impression that some of the plaintiff's testimony was after the fact invention, whether conscious or sub-conscious I could not tell. I also formed a poor view of the plaintiff's credibility having regard to his later testimony in relation to various medical practitioners whom the defendant had asked him to attend upon for the purpose of examination. For example the plaintiff said that he was reviewed by Mr Nick Batalin but that that consultation took 15 minutes. He said that he had been examined by Mr Rick Stell but he though that consultation lasted less than five minutes. Mr Geoffrey Gee, he agreed, he had been to see on three occasions but he said that they were all for very short periods of time under five minutes for each assessment. In my opinion this was a gross exaggeration. Mr Batalin testified that with new patients his standard booking time was for about an hour sometimes an hour and 15 minutes if there were a number of x-rays to look at and the like. Mr Stell was asked how long he took assessing the plaintiff and he advised that his notes did not indicate it but said that he spent an hour assessing patients. The history taking may have taken 20 minutes or half an hour and the physical examination would have taken the rest of the hour. Dr Gee said that invariably initial consultations with patients such as the plaintiff took between three-quarters and one hour, second and subsequent consultations may be a little shorter. I have no hesitation in preferring the testimony of the medical practitioners Mr Batalin, Dr Stell and Dr Gee to that of the plaintiff and in consequence of this and the fact that I thought that each of Mr Paull and Mr Caporn were honest, objective and reliable witnesses, I came to the opinion that the plaintiff was an unreliable witness. In particular I do not accept the evidence of the plaintiff that he was directed to take the boxes up the front steps, preferring instead the evidence of Mr Caporn, that the plaintiff chose this method of delivery himself, having unloaded the boxes on to his trolley before making any enquiry about the availability of a substituted point of delivery when he realised that the loading dock he had used previously was not available. As is evident from the testimony of Mr Paull and Mr Caporn, the defendant did have a system in place whereby delivery drivers were to be advised of the location of the ramp, but as Mr Caporn in particular could not recall whether he had followed his usual practice of advising of its location in respect of the plaintiff's delivery on this occasion or not, it is accordingly not clear whether or not the plaintiff elected to deliver these boxes by pulling his trolley up the steps, ignoring any advice to use the ramp, or otherwise. Certainly on his own evidence the plaintiff made no enquiry of the receptionist about the best place to effect the delivery because all he did when he reached reception was to ask for Mr Paull, he said.
Next I should recall that I do not accept the plaintiff's evidence that he carried the first load of boxes up the stairs unaided and that he was offered no assistance in respect of the second load. I find, accepting Mr Caporn's evidence, that the plaintiff was assisted by Mr Caporn with the first load and offered assistance with the second.
Accordingly, whilst I accept that the plaintiff experienced an episode of low back pain after pulling a loaded trolley up the front steps of the defendant's premises, I do not accept that this occurred against the background given in evidence by the plaintiff.
This leaves me then to consider the plaintiff's position in the light of these findings. In his statement of claim the plaintiff particularised his allegations of negligence against the defendant in this way:
"11 ...
The defendant, its servants or agents:
(a)failed to take any or any adequate precautions for the safety of the plaintiff whilst he was on the premises in that the defendant:
(i)failed to display any or any adequate notice or sign at the premises to direct delivery persons including the plaintiff to an alternative access ramp;
(ii)failed to instruct its employees to direct the plaintiff to an alternative access ramp;
(iii)failed to inform the plaintiff of the existence of an alternative access ramp;
(iv)failed to put into place any or any adequate system to ensure that the plaintiff was informed of the existence of the alternative access ramp;
(v)in any event, failed to provide the plaintiff a safe means of access to the defendant's offices to enable him to deliver archive boxes with their lids with safety.
(b)Exposed the plaintiff to a risk of damage or injury of which it knew or ought to have known in that the defendant:
(i)by its employees, directed the plaintiff to deliver the archive boxes and their lids by delivery trolley up the front steps of the premises;
[The particulars in (a) above are then repeated].
(vi)with the knowledge that the plaintiff would be pulling a loaded trolley up the steps of the premises backwards failed to render the plaintiff any or any adequate assistance;".
In relation to these particulars the evidence in respect of particular (a)(i) is supported by the plaintiff's evidence that there was no signage at the bottom of the steps or anywhere else that he saw directing him to the access ramp and away from the stairs. The evidence of Mr Caporn was to the effect that signs were put up but he could not say whether they were before or after the incident involving the plaintiff. On balance, I am prepared to accept the evidence of the plaintiff in respect of this matter, namely that there were no signs directing deliveries to the (other) access ramp.
As to particular (a)(ii) the uncontradicted evidence of Mr Paull and Mr Caporn was to the effect that the defendant did have in place an instruction to its employees to direct delivery drivers to the alternative access ramp.
Particular (a)(iii) lacks precision. Insofar as the failure to inform goes to the issue of failing to have adequate signage pointing to the existence of an alternative access ramp, I have already found on balance there was no signage. In the event the particular is addressed to a proposition that the defendant should have ensured that all delivery drivers were personally informed by a member of its staff of the existence of the alternative access ramp I have little difficulty in finding that no such duty existed. Particular (a)(iv) is really a rolled up particularisation of (a)(i), (ii) and (iii).
As to particular (a)(v) this fails on the plaintiff's own case because he produced in evidence photographs showing an alternative means of delivery via a very gradually sloping ramp.
Insofar as the particulars in paragraph (b) are not a repeat of those in (a) then the allegation in particular (b)(i) fails because I have found that no servant of the defendant directed the plaintiff to deliver the archive boxes up the front steps of the premises.
Likewise the particular in (b)(vi) fails because I have found that Mr Caporn assisted the plaintiff with the first load of boxes and offered to assist with the second.
The issue therefore finally devolves down to one of a consideration of whether or not the defendant was under a duty to erect adequate signage to point or otherwise direct delivery drivers away from the front steps of the building and to the graded pathway at the other side of the building. There is a subsidiary question of course, namely whether it was the absence of such a sign that was causative of the plaintiff's injury because, having made no enquiry as to the existence of an alternative method of delivery, and having unloaded the delivery boxes on to his trolley as per the evidence of Mr Caporn, the plaintiff would have been unlikely to have used it in any event especially when Mr Caporn volunteered to help him up the stairs with the first load.
Dealing firstly with the plaintiff's claim in negligence, since Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479, it is no longer necessary to classify entrants to premises according to the old categories of invitees, licensees, trespassers and the like and generally speaking the duty of care owed to each is one of reasonable care, although it is generally conceded that the circumstances of entry will assist in determining what is reasonable care in all of the circumstances (ie what is reasonable in respect of a non lawful entrant to the premises may be different from a lawful entrant). The standard of care and the test for determining whether or not it has been discharged is the same as in negligence as per Wyong Shire Council v Shirt (1980) 146 CLR 40.
Whether this is the position in Western Australia since the Occupiers' Liability Act 1985 is a moot point and I refer to my discussion of this problem in Oates v Butterly & Anor [2000] WADC 80 at par 11 to par 26. As the claim here is brought both in negligence and in the alternative under the Act, the problem which faced Mr Oates is not present, but there is still the difficulty of the conflicting Full Court decisions as to whether the Act is in effect a code replacing the common law or simply an adjunct to it. Regrettably the Full Court in Oates v Butterly[2000] WASCA 406 did not find it necessary to settle this controversy.
In my opinion, whether in negligence or pursuant to the Occupiers' Liability Act 1985 the defendant did not breach its duty of care to the plaintiff by failing to erect signage directing delivery drivers to the alternative access ramp. The defendant was entitled to rely on the commonsense of its visitors and delivery personnel to ask if there was an alternative access way for deliveries in much the same way as an employer is entitled to rely on the judgment of experienced workers: Dover v H Litis Pty Ltd, unreported; FCt SCt of WA; Library No 960026; 23 January 1996. The steps were not inherently dangerous and did not constitute a danger to a proper user. They could have undoubtedly been used by delivery personnel for small items. The defendant could not reasonably have foreseen that an experienced delivery driver such as the plaintiff would have committed himself to hauling a heavy load up its front steps without first asking whether there was an alternative access way for laden trolleys when the usual delivery dock was not available.
Accordingly, the plaintiff's claim must fail.
Before turning to my provisional assessment of damages I should make mention of the evidence of Professor Medved and Miss Jenni Miller. I thought their evidence unhelpful in the resolution of this matter. Professor Medved particularly seemed to be answering what was the ultimate question, the question for me to decide, namely whether or not the defendant was negligent. Whilst each agreed the plaintiff should not have embarked upon the task of pulling the boxes and his trolley up the stairs, the issue of whether or not the defendant should have had a sign pointing to an alternative access way was for me to decide.
Provisional assessment of damages
The plaintiff testified that he was assisted to his vehicle by another courier driver at the premises that day from which he was able to drive himself to a chiropractor a short distance way. Upon reaching the chiropractor's premises however he received a telephone call from his employer advising him that his workers' compensation insurer required that he attend upon a general practitioner and not a chiropractor. Unable to drive from the chiropractor's premises to those of his general practitioner, the plaintiff enlisted the assistance of his brother-in-law and a friend. Whilst it is not entirely clear I think the effect of the plaintiff's testimony was that his brother-in-law drove him to his general practitioner's practice whereupon he ascertained that his GP was away on holidays. He saw another medical practitioner with whom he had difficulty communicating and in consequence he attended upon another general practitioner this time in Mirrabooka, namely Dr Sarah Cutts. Dr Cutts arranged for the plaintiff to have some x-rays and CT scans taken and prescribed Panadeine Forte and Valium. The plaintiff said that in the days following he was consumed with pain from the waist down, any movement exacerbating his pain "beyond belief, to the point where I didn't want to move. I was fixed to my floor in the lounge room; it was the only place that I could get to." The plaintiff testified further that he needed assistance to get to and from doctor's appointments and the like and thereafter described a regime of treatment or rather attempted treatment of his symptomatology which included, he said, trigger point injections (what ever they are) manipulation, hydrotherapy, sports medical manipulation "and a whole array of different other medication and treatments."
Describing his symptomatology at the time of trial the plaintiff said that he is in continual pain in his lower back although not to the extent that it was immediately following the incident. He said this pain radiates down both buttocks more to the right then the left and into the legs again more to the right then the left. He still has pain in his right testicle and a patch of skin on his left foot which is subject to peculiar sensation. Over the 10 months or so before the trial the plaintiff said that he had developed a weakness in both legs and a borderline urine incontinence. As to the medications taken by the plaintiff he listed Panadeine Forte, Valium, slow release morphine, cortisone injections, anti-inflammatories, anti‑depressants and coloxyl.
The plaintiff then described a significant loss of amenities to the extent that he is of the opinion that he may as well be a vegetable. He said that he used to play golf, swim, camp, go shooting, four wheel driving, gardening and in effect live a very active life. Since the incident practically all of these activities have ceased.
Whereas he used to play an active part in the management of the house, tending a large garden particularly of roses and the like, his wife now does practically everything.
He said that his daily routine these days is that he wakes in the morning somewhere between 6.30 and 7.30 by which time his wife has already left for work. He watches television, plays on his computer, potters around the house, will wash some dishes up and if he can sweep the floor for his wife but that's about it. He said he would occasionally go down to the shops for a paper or a magazine.
The plaintiff said that he has not worked since the accident and despite undertaking a full rehabilitation regime he has not been able to return to any form of employment and in fact thinks that there is presently no form of employment available to him which would enable him to deal with his chronic pain and his immobility.
At this point it is as well to observe how the plaintiff appeared to me during the course of his testimony. He is as all of the medical evidence confirms, grossly obese. He said that his present mass is 150 kilograms and that he had been that weight "practically all my adult life". Without doubt the plaintiff's obesity is a significant feature in his presentation and yet I heard no evidence that his obesity was congenital or that it was any one of the common medical forms of disease caused obesity such as hypertrophic obesity, hyperinsulinar obesity, endogenous obesity or hyperinter-renal obesity. It seemed, having regard to the evidence of the plaintiff's wife, that it would be fair to infer that from the absence of any medical evidence about the cause of his obesity and her evidence about the size of his meals that the plaintiff's obesity is exogenous, i.e, due to over eating. This means that it can be controlled by diet and a number of the medical practitioners have counselled the plaintiff to lose weight but he simply has neither the wit nor the will to do so. There was a good deal of medical evidence before me to the effect that the plaintiff's gross obesity would have inevitably lead him into ill health if left un‑remedied. The remedy for obesity is very simple: reduce energy intake. In the plaintiff's case, I greatly suspect that this will require the plaintiff to undergo a course of behaviour modification and a strictly controlled diet regime all of which are readily available in our community.
It is appropriate now to consider the plaintiff's history as given above and my observations as to his gross obesity within the framework of the medical evidence led at trial.
Mr Peter Watson is a neurosurgeon whom the plaintiff consulted on the advice of his general practitioner. Mr Watson's evidence was taken de bene esse and his deposition put into evidence before me subject to all just reservations about admissibility. Mr Watson's reports came into evidence in this fashion too. Mr Watson examined the plaintiff in January of 1997, it would appear less than three weeks after the incident. He found upon neurological examination of the plaintiff that his legs were normal. He noted a CT scan showing a disc protrusion to the left at L5/S1 but that this did not explain any of his right leg symptoms. Following an MRI scan Mr Watson again reviewed the plaintiff and observed two main disc bulges, that which was shown on the CT scan namely at L5/S1, and another at L4/5. Again Mr Watson's opinion was that neither of the disc protrusions were sufficient to cause actual nerve route compression. In the end result Mr Watson's opinion was that the plaintiff had a disability of his lumbar spine somewhere in the order of between 10 and 15 per cent which in his opinion did not preclude the plaintiff from employment, in fact he recommended that the plaintiff try to obtain work but of a sedentary nature. Further, Mr Watson was of the opinion that the plaintiff's weight was a problem for him and that on each occasion he saw him he recommended that the plaintiff lose weight.
The plaintiff's general practitioner is Dr Vevil De Kauwe. He had been the plaintiff's general practitioner before the incident of January 1997 and he too gave evidence that he was concerned with the plaintiff's weight describing him as being grossly obese. Dr De Kauwe had eliminated the possibility of the plaintiff's obesity being caused by illness or disease and said that frankly it came down to his eating habits in respect of which he had from time to time prescribed appetite suppressants and there was a time when the plaintiff had managed to lose some seven kilos or so (but whether that was when he was taking appetite suppressants was not clear). Dr De Kauwe testified that he thought the plaintiff a changed man following the incident of January 1997 and whilst he fully supported any attempt to get the plaintiff back into the workforce with rehabilitation, he remained very pessimistic about the prospects of success because in his mind the plaintiff was not malingering and was suffering from chronic pain which affected his mobility and capacity for employment.
Dr De Kauwe referred the plaintiff to Dr Ross Goodheart, a consultant neurologist. Dr Goodheart examined the plaintiff in June of 1999. He found no evidence of nerve route irritation which would explain the plaintiff's symptomatology which he therefore attributed to a soft tissue injury of the lower spine. He said that the outcome of soft tissue injuries was difficult to predict. He assessed the extent of the plaintiff's disability at a 20 per cent loss of the function of the spine overall of which he attributed 75 per cent to the incident of January 1997 and the balance to pre-existing de-generative changes. He thought the plaintiff would not be able to return to his pre-accident employment and, having regard to the plaintiff's history, he too was pessimistic about the prospects of the plaintiff being able to find any employment suitable to his condition.
Dr Andrew Harper is an occupational physician, and Associate Professor in the division of Health Services at Curtin University of Technology. He too had examined the plaintiff and noted his obesity recording his weight at consultation at 154 kilograms. He thought the plaintiff's debilitated condition a combination of low back and leg pain and marked obesity. He thought it unlikely the plaintiff would return to his former employment and further, unlikely that the plaintiff would re-enter the workforce at all having regard to his history. Cross-examined about what it would take to get the plaintiff back into work Dr Harper stated emphatically that it was in the plaintiff's best interest that he put himself into a position where he could attempt to return to work. The key he said was that the plaintiff had to lose weight. He had to lose weight so that he could exercise more to strengthen his musculature to support his back:
"... and if you're grossly overweight that becomes a nearly impossible task. So he's in a vicious cycle here; he really needs to lose weight in order that he can strengthen muscles, in order that he can relieve his back pain, in order that he can be more active".
Dr Harper thought the plaintiff's history made it difficult for him to see an end goal that would provide him with the incentive needed for him to control his weight and get his life back on track.
Professor Alex Cohen examined the plaintiff in July of 1999 and provided a report of 27 July 1999 which went into evidence by consent. Professor Cohen, asked about his diagnosis of the plaintiff, wrote:
"The diagnosis of his back condition is open to consideration. The abnormalities demonstrated on CT and MRI indicate a chronic degenerative condition of the lumbar spine with secondary disc protrusion of a degree which is difficult to correlate with the generalised nature of his symptoms and lack of lateralisation. This tendency to disc and joint degeneration would be predicated by obesity, past heavy cigarette smoking, the history of previous accidents as a courier driver and more specific incidents during a car roll over 10 years ago although it must be stated that most of the disabilities which have ensued from these incidents have involved his neck. The right sided disc protrusion is the lesion most likely to be responsible for pain but not for the bilateral nature of the pain or the symptom in the left foot."
In common with a number of medical practitioners who have seen the plaintiff therefore Professor Cohen has noted the non anatomical distribution of the plaintiff's reported symptomatology. Nevertheless Professor Cohen was unable to conclude that the plaintiff was fit for any occupation let alone his pre-accident duties stating "indeed, if his pain and incapacity are as great as he avers I do not know of any occupation which he could reliably follow at the present."
Ms Karen Goodall-Smith is a clinical physiologist to whom the plaintiff was referred by Dr De Kauwe who thought the plaintiff needed assistance with depression. Ms Goodall-Smith thought the plaintiff was clinically depressed and sought to assist him in dealing with his depression. Additionally however she testified that she had and was able to treat people with eating disorders such as the plaintiff. Whilst acknowledging that it was difficult to treat people whose eating disorders were entrenched, such as the plaintiff, nevertheless there were behavioural modification programmes available and that she had treated people with a view to controlling their eating so that they could lose weight. She had not been asked to assist the plaintiff in this regard however.
Mr Nick Batalin is an orthopaedic surgeon who was asked to examine the plaintiff at the requested of the defendant. This he did on Guy Fawkes' Day 1999. Mr Batalin was emphatic that much of the plaintiff's presentation is due to his gross obesity. He demonstrated this in evidence by inviting anyone doubtful of his opinion to see the effects on a person of normal weight invited to carry around strapped to their back their own body weight, which is about what position Mr Batlin thought the plaintiff was in, his ideal weight for his height being in the region of 80 to 90 kilograms and of course evidence demonstrating that at times he has been as much as 160 kilograms. He said the musculoskeletal system of the human body simply cannot stand that sort of strain over a prolonged period of time without causing damage which in this man's case was his observed significant degenerative changes to his spine. Further, Mr Batalin thought the plaintiff's presentation and the history of his symptomatology inconsistent with is findings upon examination. Whilst there was an element of consistency, there was an overriding degree of inconsistency which made him think that there were other factors at work in the plaintiff's presentation. Certainly his gross obesity is one of them and whilst Mr Batalin thought that the plaintiff would be unwise to resume his pre-accident occupation there was nothing that should prevent him from attempting to get back into work and that for his own sake he should try.
Dr Rick Stell is a neurologist upon whom the plaintiff attended in November of 1999 for examination. As with other medical practitioners Dr Stell could find no neurological abnormality in the plaintiff and he noted a discrepancy between the injury as claimed by the plaintiff, the radiological findings and the plaintiff's stated disability. In his report of 25 November 1999 Dr Stell wrote:
"There was also a discrepancy on the examination with respect to the degree of forward flexion attainable when standing as opposed to straight leg raising. I do not believe that this man has a neurogenic cause for pain, nor can I explain the severity of this man's pain and apparent disability on the basis of the minor radiological changes detailed above. Though this man may have sustained a mechanical injury to his back, the lack of any significant improvement with the passage of time, the lack of response to physical therapy and the findings on examination would all point to a significant element of elaboration.
I do not believe that this man is likely to return to gainful employment at least until settlement of his medico legal claim".
Finally I come to the evidence of Dr Geoffrey Gee. Dr Gee is an anaesthetist specialising in pain management. He practices with a clinical psychologist and an exercise physiologist as "Cambridge Pain Management". Their idea is to address the different components of a patient's pain presentation. In the case of the plaintiff, upon review, Dr Gee thought that the nature of the plaintiff's then current symptoms were:
"mechanical in nature with significant aggravation through the postural effects of excessive weight. I believe that he clearly needs to look at a programme of suitable exercises to look towards weight control. I have clearly indicated to him that any programmes that he undertakes with us are designed for benefit and we are very quick to withdraw people from programmes without adequate commitment."
Bearing in mind that the plaintiff was referred to Dr Gee by his general practitioner Dr De Kauwe, again, Dr Gee was surprised that the plaintiff made no commitment to the program that he had in mind for him when he had attended upon him in August of 1997. Two years later in August 1999 Dr Gee was asked to see the plaintiff again, this time by the defendant. Dr Gee was of the opinion that the plaintiff was simply not interested in doing anything about his condition and he formed the distinct impression that the plaintiff was not permanently unfit but could, given the right attitude, re-enter the workforce but not his pre-accident employment. Further, Dr Gee shared with Mr Batalin the opinion that having regard to the plaintiff's gross obesity his degenerative spine would have become symptomatic in any event. Mr Batalin thought that this would have been within a year of his alleged injury in January 1997, Dr Gee thought it may have taken longer, but both were certain that the plaintiff's condition would have deteriorated in any event and this because of the effect of his gross obesity.
Whilst the opinions of all of the medical experts called to give evidence in this trial are to be respected, having closely observed the plaintiff during the course of his testimony, and having read all that has been written about him, I find myself coming to an agreement with the opinions expressed by Drs Stell, Batalin and Gee that, in effect, the plaintiff is exaggerating his symptoms. His symptoms as explained are inordinate having regard to the absence of any neurological abnormality and the relatively minor changes revealed in the various imaging procedures employed. I accepted Dr De Kauwe's opinion however that the plaintiff is not deliberately exaggerating his symptoms, that is to say, he is not a malingerer engaged in a deceit upon the Court and his doctors but rather an unfortunate individual who has talked himself into being sick and who is overcome by his obesity and is now so lethargic as to be paralysed by disinterest. In my opinion much of the plaintiff's presentation can be put down to the fact that he is not prepared to do anything to help himself. He should lose 30 or 40 kilograms in weight at least. This can be done. We have all seen pictures of people who have achieved remarkable weight loss by a dedication to proper diet. In the end result I don't think the defendant should have to pay for the fact that the plaintiff is unwilling to devote himself to the care and maintenance of his own body. Against the background of this finding I will now move to consider the specific aspects of the plaintiff's claim for damages.
General damages
The plaintiff claims that he has sustained a significant loss of amenities which should be compensible by a high order of general damages. Whilst I appreciate that the plaintiff now lives a remarkably different lifestyle then that before January of 1997, much of the reason for this I think can be attributed to the plaintiff himself. To me he appears to be quite unwilling to do that which he must do, namely lose weight. Whilst most of the medical practitioners agree that the plaintiff should not return to his pre-accident employment, this is largely because of what they see as being the pre-existing degenerative condition of his spine which has had two episodes of minor trauma with minor disc bulges noted in the imaging procedures, and the doctors' advice appears to have been tendered on the basis that they would not recommend an occupation which would put the plaintiff at risk having regard to the degenerative condition of his spine. On the other hand the plaintiff had lead a symptom free and relatively active life before this incident which appears to have provoked him into the life of an invalid for reasons which only he knows. Whilst if I thought the plaintiff's injuries were of such a nature and extent as to be permanently debilitating, such that the plaintiff was unable to take steps to remedy his situation himself, I would have awarded significant damages under this head, I think that in all the circumstances an appropriate provisional award is in the sum of $40,000.
Past economic loss
As already noted, in January of 1997 the plaintiff was employed as a courier driver, or perhaps more accurately a storeman/driver, which position he had held since early December 1996. No documents were produced in evidence which proved the plaintiff's earnings with Compu Store during his short period of employment there, although the amount he had been paid by way of workers' compensation since 7 January 1997 had been agreed between the parties. The plaintiff had given evidence however that when employed as a courier driver, which was his main form of employment before he began at Compu Store, that his take home pay would have been in the region of $400 to $450 per week after grossing "somewhere in the vicinity of $600 a week as a courier driver." Whilst the plaintiff produced evidence of his past income by copies of income tax returns and notices of assessment, the dearth of examination and cross-examination of the plaintiff on his precise financial circumstances has left it difficult to determine what his true loss was or is. For example in the financial year ended 30 June 1996, the year before the incident giving rise to his claim, the plaintiff declared a gross income of $43,910 in respect of which he claimed business deductions of $32,688 leaving a net profit for taxation of $11,222. Certainly it appears that the type of business then being conducted was different from that in which he was engaged at the time of the incident for the depreciation schedule shows that he ran a truck and two vans, whereas whilst employed by Compu Store I understand that he was only required to use his own van. He said that at Compu Store he was earning between $400 and $450 per week calculated from an hourly rate of around $14 an hour in respect of a 40 hour week. But $14 an hour for 40 hours a week is $560. Looking elsewhere for evidence of the plaintiff's earnings, the agreed workers' compensation payments to the plaintiff were total weekly payments of $74,462.93 as at 7 December 2000 (Exhibit P8) refers. This was the figure adopted by the plaintiff at trial and represents the gross payments of workers' compensation. After tax he had received $67,980 or $330 per week. Whilst there was no evidence to this effect I think I can safely infer that these payments will continue at least until judgment.
Reverting to the position disclosed by the income tax returns however, for the financial year ended 30 June 1996 the plaintiff's taxable income was $11,222 or $216 per week (rounded up). For the financial year ended 30 June 1997 the plaintiff declared income from all sources of $10,694, however the various components of that income were never explained to me. Assuming that the sums of $2,595 and $4,940 therein referred to were both from working as a courier driver or similar, which income would have ceased on 7 January 1997, it is possible to infer that the plaintiff's net income at the time of the accident was $290 per week (rounded up). Again, whilst this was not explained, an inference available is that the plaintiff's income was less as he would've had the expenses of running his van and that accordingly the sum of $330 per week that he was receiving by way of workers' compensation represented an amount calculated by reference to his estimated earnings. It is all too difficult to say with any appropriate degree of precision. In the end I am left with the strong impression that the plaintiff has not proved a loss in the order of $400 to $450 per week after tax and the most I would be prepared to allow is $350 a week after tax as being the value of the plaintiff's income earning capacity and the measure for the calculation of his economic loss both past and future. I appreciate that the plaintiff was not cross examined about his income to any great extent if at all, but he still has to persuade me of his loss and prove it on the balance of probabilities, and the way in which he sought to do it has raised internal inconsistencies between his tax returns and his stated income. He could have cleared it up but chose not to do so. In this eventually why then choose $350 a week? It seems to me that I can calculate from $330 a week workers' compensation payments and project out the value of running his vehicle privately from the information contained in the tax returns, and, to make allowances for difficulty of calculation, this seems an appropriate amount to me. After all I have not been provided with the material to enable me to make a precise mathematical calculation. Hence my calculation for past economic loss is that from 7 January 1997 to the date of judgment is 217 weeks at $350 a week = $75,950.
I should add that I appreciate the strength of the evidence that the plaintiff would have become incapacitated to some extent in any event having regard to his pre-existing degenerative condition and other factors of health upon which his obesity may have impacted but as between Mr Batalin's estimate of when this would occur and that of Dr Gee I think it more appropriate to look at the more conservative estimate of Dr Gee in this regard.
Future economic loss
This brings me then to consider the position of the plaintiff's future economic loss. In my opinion the plaintiff is substantially responsible for the state in which he presently finds himself, on my reckoning, to an extent of 50 per cent because he has not persuaded me that on the balance of probabilities his entire incapacity is due solely to any injury he may have sustained on 7 January 1997. Rather I think that he has sustained a soft tissue injury to his lower back which should have repaired itself by now was it not for the plaintiff's inability to control his obesity. I think that an appropriate calculation of future economic loss would allow the plaintiff the opportunity to consider and adopt the message implicit in this judgment that he must take considerable responsibility for his own condition and begin to rehabilitate himself by adopting strict weight loss measures to reduce his weight to an acceptable 100 kilograms which will undoubtedly improve his fitness and mobility and render him capable of employment. Having regard to the fact that his is an entrenched condition and the problem may take some little time to resolve, I think it appropriate in all the circumstances to allow the plaintiff two years in which to get his weight under control and increase his fitness and accordingly I would assess his loss at $350 per week net for the next two years and thereafter at half that amount for another two years giving him the opportunity of easing himself back into the workforce and then obtaining full time employment, which in my opinion he is capable of doing. The calculation is then:
| Two years at $350 per week x 6 per cent multiplier (99) = | $34,650 |
| And then at $175 per week x difference between 6 per cent multiplier for 14 years and two years respectively (186 - 99 = 87) = | $15,225 |
| Total | $49,875 |
Gratuitous services
The plaintiff and his wife each gave evidence about the change to their domestic routine in consequence of the incident in January 1997. Prior to that time, with both of them in full time employment, they said that they shared household duties equally between them. Since January 1997 however the plaintiff's capacity for sharing in domestic chores has been greatly diminished they said and between them they worked out that the additional work picked up by the plaintiff's wife amounted to some four hours and 20 minutes per week. Whilst it is true that Mrs Sault said that claim or no claim she would have assisted her husband during a time of physical incapacity, that is not the basis upon which awards of damages for gratuitous services are made. See Griffiths v Kerkemeyer (1977) 139 CLR 161 and Van Gervan v Fenton (1992) 175 CLR 327. Briefly stated, where the actions of a defendant give rise to a need by the plaintiff for the delivery of services of the type that are rendered gratuitously and the subject of a claim for damages for a component to include the value of those services, the establishment of the need is sufficient to ground the claim and the services are to be valued at their appropriate market value. Here the parties have agreed $12 an hour as the market value of domestic services and I have little difficulty in accepting the evidence of Mrs Sault about the extra time she now spends attending to necessary domestic chores previously undertaken by her husband. I accept her estimate of the additional time at being something over four hours and that the claim in this head for past gratuitous services is made out. I calculate these at four hours per week for 217 weeks at $12 an hour = $10,416.
The calculation of the award for future gratuitous services is more difficult. The same considerations apply to this calculation as applied to the calculation of the plaintiff's future economic loss, that is to say, my judgment is required as to the length of time during which the plaintiff will need his wife's extra services and in my opinion the need will be present for the same periods of time that I have allowed in respect of the times for the plaintiff to get the necessary help to take charge of his obesity get himself fit and back into the workforce. My calculation therefore is as follows:
| Four hours per week for 104 weeks at $12 an hour, using the same multipliers is $48 per week x 99 = | $4,752 |
| And $24 per week during the two years thereafter is $24 x 87 = | $2,088 |
| Total | $6,840 |
Past medical expenses
It would seem that past medical expenses do not represent any controversy between the parties having been paid by the plaintiff's worker's compensation insurer in a sum totalling $18,996.10 (Exhibit P8 refers) and accordingly in the provisional assessment there should be an allowance for this sum.
Future medical expenses
Whilst all of the medical practitioners agreed that the plaintiff must lose weight and in fact losing weight is a pre condition to him regaining mobility and re-entering the workforce, and whilst there was evidence previously noted from Ms Goodall‑Smith that behaviour modification programmes are available, there was no evidence before me as to the costs of these programmes. Obviously however as my provisional assessment is predicated upon the plaintiff undergoing treatment for his obesity and a commitment to that treatment over a period of approximately two years as I have allowed, some estimate of its cost has to be made. In my opinion a global allowance for necessary attendance upon medical practitioner, referral to psychologist, physiologist attendances and any supportive drug therapy would be $2,000 and I allow this in the provisional assessment.
Past and future superannuation
The plaintiff made a claim for past and future superannuation entitlements. The only evidence in relation to superannuation came from the plaintiff. He was asked the question "And superannuation?" and he replied "They paid superannuation which was the Government allowance that required paying". Now, as evidence satisfying the type of evidentiary considerations which were addressed in Jongen v CSR Ltd & Anor (1992) A Tort Rep 81‑192, that evidence is wholely inadequate. Accordingly it is difficult to make any allowance under this head of claim. Notwithstanding this however the Commonwealth legislation requires employers to make contributions to an approved superannuation scheme on behalf of employees, currently at the rate of 7 per cent of an employee's gross income. I can proceed to an assessment based upon the legal presumption that the employer will do that which is required by law and that as the plaintiff is out of employment and has been for four years and will be for another two years or so in my opinion, I can proceed to assess on this basis but there can be no component for interest on the lost instalments because this is a case where the claim needs the evidentiary support of the earnings of the fund and such alike. I cannot assume that a fund will perform well. My calculation is therefore as follows:
| $400 per week (gross after deductions before tax) x 7 per cent per annum = $1,456 per annum for 217 weeks is |
|
| For the future, $28.00 per week x 99 is $2,772 and $14 per week x 87 is $1,218, Total |
|
Fox v Wood
There seems to be no controversy between the parties that there is a Fox v Wood component of the plaintiff's past economic loss represented by the difference between the gross weekly benefits paid to him and the amount received by him, the sum of $6,482.93 and in accordance with the decision in Fox v Wood (1981) 148 CLR 438 this amount should be added back into the plaintiff's judgment.
Summary
General damages $ 40,000.00
Past economic loss 75,950.00
Future economic loss 49,875.00
Past gratuitous services 10,416.00
Future gratuitous services 6,840.00
Past medical expenses 18,996.10
Future medical expenses 2,000.00
Past lost superannuation contributions 6,076.00
Future lost superannuation contributions 3,990.00
Fox v Wood 6,482.93
Total Provisional Assessment $220,626.03
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