Sheppard v Qantas Defence Service Pty Ltd

[2018] NSWDC 216

District Court

New South Wales

Medium Neutral Citation:

Sheppard v Qantas Defence Service Pty Ltd [2018] NSWDC 216

Hearing dates:

25 June 2018

Date of orders:

10 August 2018

Decision date:

10 August 2018

Jurisdiction:

Civil

Before:

Strathdee, DCJ

Decision:

1.   Judgment for the plaintiff against the defendant in the sum of $1,221,474.80.

 2.   The defendant to pay the plaintiff’s costs as agreed or assessed.

Catchwords:

NEGLIGENCE – removal of boxes packed underneath deak
DAMAGES – future loss of earning capacity

Legislation Cited:

Civil Procedure Act 2005
Law Reform (Miscellaneous Provisions) Act 1965
Uniform Civil Procedure Rules 2005

Cases Cited:

Dapyck Pty Limited v Burns [2003] NSWCA 83
Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588
Mead v Kearney [2012] NSWCA 215
Podrebersek v Australian Iron and Steel (1985) 59 ALR 529
Wyong Shire Council v Shirt [1980] HCA 12

Category:

Principal judgment

Parties:

David John Sheppard (Plaintiff)

  Qantas Defence Service Pty Ltd (Defendant)

Representation:

Counsel:

 

F Austin (Plaintiff)

 

J Dodd (Defendant)

 

Solicitors:

 

Gerard Malouf & Partners (Plaintiff)

  Barker Henley (Defendant)

File Number(s):

2017/359672

Publication restriction:

None

Judgment

Background

1. On 28 November 2017 David John Sheppard [“the plaintiff”] sued his employer Qantas Defence Service Pty Limited [“Qantas”] seeking damages for injuries he sustained in an accident at work on 2 July 2007.

2. Liability and damages were in issue between the parties.

3. The plaintiff was born in June 1970 in England and came to Australia with his family on 14 November 2005. He commenced employment with the defendant on 22 November 2005 at the Richmond Airforce Base as an aircraft engineer.

4. Prior to his arrival in Australia, the plaintiff had been in the Royal Air Force in England as an aircraft engineer, having attained a diploma in engineering and then a degree in engineering, and had attained the rank of sergeant with the RAF. In that role he supervised a team of 8-12 members and was involved in the analysis and diagnosis of aircraft structures and systems.

5. The role that he took up in Australia was as a consequence of him applying online to an advertisement placed by Qantas, and was a full time position based at the Richmond RAAF base. His role there was very similar to the role that he had performed in the RAF, and he attained a similar level of seniority, and became a maintenance quality inspector in Australia.

6. In July 2007, immediately prior to the accident, his role also included liaising with the RAAF and suppliers of parts and spares that were necessary for the repair and maintenance of C100 aircraft. He was also required to sign off on a lot ordering, and it was a role that he said he found quite stressful.

7. The majority of his work was office based work, but he would on occasion do some “outside” work, and would have to walk into the aircraft hangers to do so. He worked about 60 hours per week, with overtime and weekend work, as this was often required for an aircraft to be certified to fly.

8. The office that he worked in was adjacent to the aircraft hangar and was a partially open plan office in which he had his own desk and work station. There were 11 people in the office and the desks were side by side with dividing screens. He had worked at the particular desk in the office since about January 2007. It was at this desk that he was injured.

9. The plaintiff noted that there was no leg space under the desk as there was so much clutter there. There were approximately 9-10 boxes stacked underneath his desk to which he was assigned, and they were stacked up to 3 boxes high. They were all archive boxes which were, he states, A4 size to fit about 2-3 lever arch folders in each box. The boxes were underneath his desk during the time that he worked at that desk. There were other boxes lying around, and there were also dedicated archives rooms and filing cabinets in the office in which he worked. The plaintiff had never sought access to the boxes underneath his desk until the day of the accident.

The Incident

10. On 2 July 2007 the plaintiff arrived at work between 6.30 and 7 am, got a coffee and dealt with his secondary duties which involved running the social club, and on this day he was checking that there were adequate necessary items for tea breaks and doing a stocktake of the supplies. After completing such tasks, he returned to his office and checked his diary to see what he had to do that day. He made a few phone calls.

11. He was then asked by his team leader Nathan, if he had found the information that Nathan had previously asked for. The information was in respect of an incident that had occurred previously involving an aircraft. The plaintiff understood that he was to see if there was a common link between the recent incident and any other similar incidents. He was told that such information would be found, if it existed, in the archived material. The plaintiff gave evidence that he did not know where the specific archived material was, but the only place that he had not yet sorted through in his search for this material was the boxes underneath his desk.

12. The plaintiff stated that there was no way to access the boxes, other than to sit on his chair and pull them towards him as they were stacked tightly underneath the desk. He had previously crouched down under the desk and realised that there was no other way to access the boxes apart from pulling them out, as they only other way to get at them was to dismantle the desk. There was not enough room for him top crouch down under the desk and remove the boxes whilst doing so.

13. He sat on his chair, with his legs under the desk, leant forward and used his right arm to pull the top box, of a stack of 2 boxes toward him. He thought it was heavy. He then reached forward to the second box, the weight of which he did not know, and pulled it towards himself. During that manoeuvre, the second box fell forward into the void that had been created by the movement of the first box.

14. As a consequence the plaintiff’s right arm, which was palm up with a slightly flexed elbow, was pulled forward at which time he felt an immediate jarring sensation to his right arm and immediate pain in his back. The pain, he said was intensely overbearing, he couldn’t move and it took his breath away. There was a shooting pain in his back and he couldn’t move. He stayed in his chair for a few minutes, and then went and stood near the filing cabinet. A colleague subsequently arranged for him to see the company doctor, Dr Hatfield whom he saw that day.

15. The plaintiff returned to work the following day and continued to look for the archived documents. He noticed that the boxes underneath his desk had been moved and were now stacked 3 high next to his desk as depicted in exhibit A (pages 12 and 13 of the report of Sharon Todd of 18 April 2017). He looked inside the boxes by just lifting the lids and could see that the boxes were full, that is to say that the documents contained therein were flush with the lid. He did not try to lift any of the boxes. He continued to experience pain in his right elbow and lower back, and about one week after the incident, he developed pain in his right leg.

16. The plaintiff was asked whether he had been provided with any occupational health and safety training [OH&S] or induction from his employer, and he stated that he had received some general training, but that there was no occupational health and training representative present in this current work place. He stated that the training he did receive was that boxes should be lifted from a standing position.

17. The plaintiff was vigorously cross-examined as to the OH&S training that he had received during his 7 years in the RAF. He agreed that he had received such training and that he also had been involved in training those underneath him in OH&S whilst with the RAF. It was put to him that by 2005, he didn’t need any training in OH&S, and he agreed, but indicated that such training was mandatory. He further agreed that he could in fact do the OH&S training of others, and had enough such training to look after himself.

18. The Plaintiff was further cross-examined as to whether he was directed to move the boxes, and he answered that he was directed to find the relevant documents. He agreed that he was not told to lean forward and pull the boxes out, but stated that as the boxes were jammed so tightly underneath the desk, there was no other way to get them out, short of dismantling the desk. He indicated that he had crouched down and had a look at the location of the boxes and as he was trained in OH&S, he thought that it would be too risky to pull the boxes down from a crouching position, and he therefore thought it was safer to do it from a position seated on the chair.

19. The plaintiff gave evidence before me over two days. I accept him as a witness of truth. I make the following findings of fact:

1. The plaintiff was at work on 2 July 2007 at the Richmond RAAF base.

2. He was required by his supervisor to find information which was said to be contained in archived documents.

3. The plaintiff had searched for the relevant information in other places that such material was stored, to no avail.

4. The only place the plaintiff had not checked was in the boxes underneath his desk.

5. The boxes were jammed in under the desk and the plaintiff thought the only way to get them out was to sit on his chair and pull the boxes out, or dismantle the desk.

6. The plaintiff had not been instructed by anyone as to how to, or how not to remove the boxes.

7. The plaintiff removed one box, and when moving the second box felt immediate severe pain in his back and right arm.

8. The plaintiff sought medical attention that day and was off work for one day, and when he returned to work the boxes underneath his desk and been moved and placed beside his desk.

9. The plaintiff suffered the onset of severe pain in his right leg about 1 week after the accident.

10. As a consequence of the incident, the plaintiff sustained an injuries to his back, neck, right arm and right leg.

Negligence

20. There is no dispute between the parties that the defendant owed the plaintiff a duty of care. The scope of that duty as pleaded in paragraph 11 of the Amended Statement of Claim is a duty to take precautions in order to control, minimise and/or eliminate the risk of harm. It is alleged by the plaintiff that the steps that a reasonable person could have taken to guard against the risk of personal injury are as follows:

1. Providing storage cabinets to store archived boxes the purpose of which is to keep the archived boxes unobstructed, and at a safe working height;

2. Carrying out regular internal audits of the Occupational Health and Safety Management system and the effectiveness of risk management actions undertaken to ensure the risks of physical injury are identified and managed appropriately on an ongoing basis; and

3. Providing a safe system of work.

21. The defendant submits, and I accept that there was an archive room and archive cabinet, in addition to the boxes that were stored under the plaintiff’s desk. The defendant submits that the boxes under the plaintiff’s desk were not needed for the day to day operations – that they were out of sight and out of mind. It was not until the plaintiff was directed to look for archived documents that he had been required to access the boxes under his desk. On that basis the defendant submits that it was not that a system of work had been implemented by the defendant, with the effect of the plaintiff accessing the boxes. The system that the defendant had in place was such that there was a store room and a cabinet for storage of archived documents.

22. In answer to the particular of negligence, that the defendant had failed to provide a safe system of work, the defendant submits that the only direction given to the plaintiff was to find the relevant documents which were assumed to be in the archived material. It was submitted that it was the plaintiff that looked under the desk, and he decided the manner in which he would go through the documents. The defendant points to the fact that the plaintiff had spent 17 years in the RAF in the United Kingdom, had tertiary qualifications, had been promoted to a sergeant with the RAF and attained a similar position in his employment in Australia, with 10-12 people under his command. On the basis of all the OH&S training that the plaintiff had received, to the point that he was actually instructing others in OH&S, he should have known that doing what he attempted to do was not safe.

23. It was submitted by the defendant that they were entitled to rely on him performing his allotted tasks in a sensible manner, and that it was the plaintiff who, well versed in OH&S, adopted the sit down and lean forward method of accessing the boxes. The defendant says that the boxes were accessible as the plaintiff had just accessed the first box. They say if he had not left a gap between the first and second box then the incident would not have happened. They submit that the plaintiff as an experienced employee was left to make his own way and to make a conscious assessment of how to do the task. He did so and then unfortunately the box fell backwards.

24. The defendant submits that what happened is merely an unfortunate unexpected accident as the plaintiff was the master of his own misfortune. They submit that the defendant should not have had to watch over his shoulder and consider every task that he is performing, and the manner in which he is performing it.

25. The defendant submits that even if there had been a failure to carry out reasonable OH&S inspections would not have made any difference in the circumstances as the plaintiff worked out in his own mind the manner in which he thought was the safest way to perform the task required. This is borne out by the report of Sharon Todd dated 18 April 2017 (contained in Exhibit A) in which it is opines that even if there had been an audit, it would have made no difference.

26. At page 14 of Sharon Todd’s report the appropriate standard is set out with regards to Occupational Health and Safety Management Systems Specification and Guidance for Use where she states at paragraph 56(h):

‘(h)   The storage of archive materials and boxes under the work desk is not an efficient storage system and does not provide good housekeeping and nor safe access to such materials.

(i)   A well designed and archived system provides adequate space on site or an off-site/online access to files and archives.’

27. The defendant further points to Ms Todd’s opinion at paragraph 60(e):

‘(e)   Whilst not all manual handling can be eliminated, poor access to archived materials can lead to awkward postures, and poor manual handling as described when they are stored under an office desk.’

28. The defendant submits that the awkward position that the plaintiff found himself in was one that the plaintiff designed, rather than sitting on the chair to access the boxes. They further suggest that he would have been far better off and far safer to have remained on the floor to access the boxes.

29. Ms Todd sets out the current risk management standard at paragraph 61 of her report which is the standard to assist in the identification assessment, control and monitoring of manual handling risks. Ms Todd’s report at paragraph 95 she provides the following opinion:

‘(a)   Awkward postures, actions and movements as described during the undertaking of these tasks could have exerted numerous forces to the low back and upper limb, given the sudden and unexpected forward flexion and twisting that would have been associates with the trapping of the upper limb beneath the carton at the material time.

(b)   Injury risk increases where movements are fast and jerky as described.’

30. The plaintiff submits that the Amended Statement of Claim, which I granted leave to file in court, allows me to make findings of negligence as defined in paragraph 6 of that Amended Statement of Claim. They submit that the general duty of care was for the defendant to take all reasonable care for the safety of employees, including the claimant, and to not expose them to an unreasonable risk of harm that was foreseeable. They submit that the risk of harm as particularised in paragraph 7 of the Amended Statement of Claim was foreseeable. They refer my attention to the decision in Dapyck Pty Limited v Burns [2003] NSWCA 83 wherein the defendant on the appeal in that matter submitted that the risk to which the plaintiff was exposed was so minimal and unforeseeable that the defendant had no opportunity to take steps to guard against such risk coming home.

31. The well-known passage in Wyong Shire Council v Shirt [1980] HCA 12 (1980 146 CLR 40 @ 47-48) provides as follows:

‘In deciding whether there has been a breach of duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant’s position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what the standard of response to be ascribed to the reasonable man placed in the defendant’s position.’

32. The plaintiff submits in these circumstances the risk of injury was not just foreseeable but it was highly foreseeable. The plaintiff’s work station was packed underneath with boxes that were stacked three high which were full of paper. The question I must examine then is what would a reasonable person do in response to that risk? Having regard to the comments made in Dapyck Pty Ltd v Burns [2003] NSWCA 83 it is submitted that even if the risk is minimal, if it can be easily remedied or guarded against, then that is a step that the defendant ought take.

33. Giles JA referred to similar circumstances at paragraph 15 in Dapyck (supra):

‘That the nappy box was tightly packed in is important. In my view it was readily open to the trial judge to conclude that there was a foreseeable risk of injury sufficient on the “calculation” required by Wyong Shire Council v Shirt to call for guarding against what occurred. That could have been done by storing the boxes beside the bench or at least by ensuring that they were not packed in so that the awkwardness and force brought a risk that if something went awry the worker’s hands would strike with force the surrounding elements of the bench. The trial judge’s reasons were economical, but I consider that they were sufficient to demonstrate the way he came to his.’

34. The plaintiff further submits that the defendant did not need an expert to tell them the boxes shouldn’t be stacked under the desk, as the boxes could have been stacked next to the desk or in the archive room. They say that in the circumstances, negligence could not be anything other than straight forward as the system complained of is a system to search for documents in archive boxes which were stacked tightly underneath the desk.

35. Significant weight was placed by the defendant on the training in OH&S that the plaintiff had received throughout his career. They rely heavily on the fact that no one told the plaintiff to do the task in the way that he did - that he determined the manner in which to perform the task, and that led to an unfortunate accident.

36. Whilst there is evidence before me that the plaintiff was well versed in OH&S, there is no evidence that the plaintiff had ever been instructed in manual handling. There is no evidence before me that the plaintiff was ever instructed as to the safe manner in which to remove boxes packed tightly underneath a desk.

34. It seems to me that the stacking of the boxes under the plaintiff’s work station three high such that they were jammed, underneath the desk did constitute a foreseeable risk. There were steps available to the defendant to guard against this risk, primarily the boxes could have been stacked beside the desk, the boxes could have been placed in or on the archived cabinet or the boxes could have been stacked or placed inside the archive room. Any of these steps would have stopped the situation which occurred in this instance, wherein the plaintiff adopted a manner of accessing the documents under his desk in such a way that he had to position himself awkwardly, and as a consequence thereof was injured.

35. Based on the circumstances wherein the plaintiff had assessed the situation and had formed his own view as to how the task was to be performed, I am satisfied that the risk of such mechanism of injury was foreseeable, even for a worker in the position of the plaintiff, with his skills and knowledge. The defendant left the plaintiff to his own devices and allowed him to perform his duties as he saw fit, and he was consequently injured.

36. In my view the defendant was negligent in not taking reasonable care for the safety of employees and for not foreseeing the risk of harm that actually came home in this event. It did not take any steps to avoid the risk that persons in the position of the plaintiff may determine their own method of accessing the documents. There is no evidence before me to suggest that the plaintiff was ever trained in manual handling, and the risk could have been eliminated simply and cheaply by not allowing the boxes to be stacked under the desk, directing employees that archived documents ought be stored in the archive cabinet or archive room, and training staff the safe way to manually handle documents and boxes.

37. None of these steps were taken and I find that the plaintiff has established negligence on behalf of the defendant.

Contributory Negligence

41. The plaintiff submits that this issue must be approached from a prospective view. They submit in retrospect of course the plaintiff should not have done what he did. However, in the absence of any evidence to show the defendant performed any risk assessment, the plaintiff was required to perform his own risk assessment, and determine the manner in which to do the task. Having been given no guidance, he was left to his own devices, with a very unfortunate outcome.

42. The plaintiff submits that the defendant by their actions or inactions put the plaintiff in a position of peril wherein he made the decision to sit down and lean forward under the desk to access the boxes. The defendant has not put forward any evidence as to whether one posture might be more awkward than another. The only evidence in that regard is the evidence of the plaintiff, who adopted a posture that he thought was the safest.

43. The plaintiff further submits that whilst the he had some experience in OH&S ,the defendant has provided no evidence of any training the plaintiff received in this particular workplace. Put simply, the plaintiff says that the allotment of the task of finding archive documents which was asked of the plaintiff created a risk, that risk was foreseeable and could have easily been protected against, but unfortunately came home and resulted in the plaintiff sustaining significant injuries.

44. The defendant submits that given the extensive training and experience that the plaintiff had in OH&S, the extent to which he contributed to his own accident is significant.

45. Contributory negligence is defined in the Law Reform (MiscellaneousProvisions) Act 1965 in section 9 which provides as follows:

‘9 Apportionment of liability in cases of contributory negligence

(1)   If a person (the claimant) suffers damage as the result of the claimant’s failure to take reasonable care (“contributory negligence”) and partly of the wrong of any other person:

(2)   a claim in respect of the damage is not defeated by reason of the contributory negligence of the claimant, and

(3)   the damages recoverable in respect of the wrong are to be reduced to such extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage.

(4)   Subsection (1) does not operate to defeat any defence arising under a contract.

(5)   If any contract or enactment providing for the limitation of liability is applicable to the claim, the amount of damages recoverable by the claimant by virtue of subsection (1) is not to exceed the maximum limit so applicable.’

46. On the evidence before me, it is apparent that what the plaintiff did in trying to retrieve the box was almost instinctive. He had not been trained in how to do that task. If he had decided to crouch under the table and pull out the boxes, he may well have injured his back in any event.

47. It was found by the High Court in Podrebersek v Australian Iron and Steel (1985) 59 ALR 529 at 523-3 with regards to contributory negligence that the just and equitable apportionment of the liability ought be examined as follows:

‘The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability , i e of the degree of departure from the standard of care of the reasonable man (Pennington v Norris) (1956) 96 CLR 10 at 16) and of the relative importance of the acts of the parties in causing the damage : Stapley v Gypsum Mines Ltd [1953] AC 663; Smith v McIntyre [1958] Tas SR 36 at 42-49 and Broadhurst v Millman [1976] VR 208 at 219, and cases there cited. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case; for example, the circumstances of some cases may be such that a comparison of the relative importance of the acts of the parties causing the damage will be of little, if any, importance.’

48. I am of the view that there was no contributory negligence on behalf of the plaintiff.

Damages

49. The plaintiff saw a doctor on the date of the incident, and he returned to work on restricted duties on 2 July 2005 until 1 November 2007, the date upon which he had his first surgery. He returned briefly to work in February 2008 until April 2008, but beyond that date he could not keep doing his duties at all. His employment was finally terminated in November 2008.

50. During 2008 he became very depressed and in October 2008 he was admitted to the St. John of God Hospital for depression for approximately 1 month, and was thereafter, taking regular anti-depressant medication. He stated that he felt suicidal on many occasions and on 5 or 6 times over those 11 years he wanted to kill himself. Whilst he is still married to his wife technically, the plaintiff believes that they have been separated for the last 9 years for financial reasons. The plaintiff continued to have treatment from his general practitioner, Dr Hatfield who was also his wife’s general practitioner. As a consequence of their separation the plaintiff changed his general practitioner and commenced seeing Dr Maria Smith in July 2009. He was referred onto a psychologist, Sean Frazer, whom he has seen on a roughly weekly basis since then.

51. The plaintiff has undergone a number of surgeries, the first was a L4-5 and L5/Si laminectomy and fusion performed by Dr Nair in November 2007 which was not successful. Unfortunately the plaintiff received no relief from that surgery, and continued to have constant pain in his back with radicular symptoms in his right leg. He also then developed pain in his right shoulder, and arm, and pins and needles in his right ring finger.

52. At the end of 2008 he was referred to a neurosurgeon, Dr van Gelder who recommended that he see a pain specialist. The plaintiff then came under the care of Dr Henry Lam, Pain Specialist, who administered to the plaintiff a series of injections which he understood were an attempt to alleviate his pain.

53. In 2009 the plaintiff was referred to see Dr Presgrave in relation to the symptoms he was continuing to experience in his back, right leg, shoulder and elbow. Throughout this period the plaintiff was taking Panadol Forte, Durogesic Patches, Epilim for nerve pain and Largactil for depression. As a consequence of taking these medications the plaintiff gained approximately 30 kilograms in weight. He has since then lost 20 kilograms of that weight but still in his mind remains 10 kilograms overweight. He was also diagnosed with Diabetes.

54. In 2010 the plaintiff was referred to a spinal surgeon, Dr Seex, who prescribed some hydrotherapy and physiotherapy which the plaintiff undertook at his own expense.

55. In 2012 the plaintiff consulted Dr Davidson and also sought some further pain management treatment from Dr Holford. He remained under Dr Holford’s care and was then referred to the ADAPT Programme at the Royal North Shore Hospital and completed that programme in late 2012. It was unsuccessful in helping him to manage his pain.

56. In early 2013 the plaintiff again attended upon Dr Holford who recommended a trial of a nerve stimulator being implanted in his back to address his continuing back pain. This trial was originally approved by his workers compensation insurer and he did a 5 day trial of the programme. On the basis of its success Dr Holford recommended the plaintiff have a permanent implant of a nerve stimulator which he was performed and remains in situ, it is under the skin of the top of his left buttock around his hip. Prior to the insertion of the nerve stimulator the plaintiff had major pain continually in his lower back and left buttock. That pain continues to date.

57. In 2014 the plaintiff was experiencing right shoulder and elbow problems and was referred to Dr Frazer. An ultrasound of his right shoulder in April 2014 demonstrated a full thickness tear of his supracapularis and impingement of the supra spinatis tendon. Dr Frazer then referred the plaintiff onto Dr Kuo who performed a biceps repair, decompression of the ulnar nerve in the right elbow, and a rotator cuff repair. There was a further procedure to his right elbow in March 2016 with no benefit.

58. In May 2018 Dr Holford recommended the plaintiff undergo further trial nerve stimulation implantation for his right arm pain. The trial was successful having occurred in April 2018. Dr Holford recommended that the implant remain permanently. The plaintiff was scheduled to have had that permanent implantation done on the first day of this trial, however the workers compensation insurer had not approved such implant so the plaintiff is booked to have a review of that surgery on 23 July 2018.

59. The plaintiff deposed to the fact that since the termination of his employment by the defendant in November 2018 he has not been employed at all. He feels that since that time his leg pain has improved but he still continues to suffer chronic pain in his back every day.

60. The plaintiff said that the nerve stimulator has affected his back pain by not reducing, it but making it more manageable. He says that the pain in his lower back has not changed since the implant and that it is continuous pain which is there all day and only stops when he is asleep, but it has made the pain more manageable. However he is never pain free.

61. When questioned in regard to his sleeping patterns the plaintiff said that on a good night he would sleep 3 or 4 hours during the entire night as he is constantly being woken up by pain in his lower back. He has tried to manipulate his pillows and medications but he still wakes up in pain every couple of hours.

62. During the course of the day the plaintiff tries to keep himself as busy as possible by getting out of the house. He goes to the gym 4 or 5 times per week and spends 1 to 2 hours there exercising on a treadmill or a bike to keep his legs active and he then does 40 minutes in the pool doing hydrotherapy and then some time in the spa with some walking and breaks in between each activity. He normally drives to the gym. He states that he cannot run, and that he was very fit prior to the incident, but he now continually pushes himself to exercise further and harder than he had previously. He has had to use a stick when walking for the past 4 years. Whilst he does not need to use it every day he says that he keeps it with him in the car for rainy days in particular, as he cannot predict when his left leg might cause pain or give way. On the last occasion his left leg gave way, he fell and fractured his left elbow. When he walks he always leans to his left side as it is difficult for him to weight bear on his right leg.

63. The plaintiff is right handed and has great difficulty in using a laptop or writing because his hand hurts. The use of the laptop means that it is hard to rest his right arm on the keyboard and it hurts his fingers to type so he normally uses one hand to type being his left hand. He finds it difficult to use the mouse as this would normally be utilised by his right hand. He tries to do it with his left hand but is very limited to some 10-15 minutes of using the mouse. He states that he can only type for 5 minutes before the pain becomes too much for him and he requires a break for 10-15 minutes before he can use his fingers again.

64. In relation to his sitting and standing limitations the plaintiff says he can now do about 30 minutes continuously of either sitting or standing. With regard to his personal hygiene the plaintiff says he is able to get dressed but brushing his teeth and hair is difficult because he can only use his left hand to do so.

65. The plaintiff has tried to increase his exercise, he has tried to run and has tried to use the treadmill for longer than 10 minutes but he has found that on each occasion it has increased the pain in his back to the stage where he could not continue. He performs further physiotherapy with the use of light weights under the guidance of his physiotherapist and states that he has very little strength in his right arm.

66. The plaintiff was asked whether he at any time was pain free and he said that he was not.

67. I accept the plaintiff as a witness of truth, and whilst he was prone to exaggeration, his evidence is generally supported by the voluminous medical evidence tendered on his behalf. I find that as a consequence of the accident, the plaintiff has suffered the following injuries;

1. Injury to the lumbar spine,

2. Injury to the right elbow,

3. Injury to the right shoulder, and

4. Psychological injuries.

Disabilities

68. The plaintiff has, at the behest of his workers compensation insurer been appointed a rehabilitation provider however he has not undergone any work trials. He states that the only work that he has done since leaving school and during his studies was work that utilized the skills associated with being an aircraft engineer and he does not believe he has alternate skills that would assist him in obtaining employment outside of that field.

69. The plaintiff was cross-examined about the contents of Dr Assam’s report and any attempts that he may or may not have made to find employment. The plaintiff said that because of the pain he experienced on a daily basis he did not believe he could find anyone who would employ him. He stated that because of the pain, and the medication that he takes to manage that pain, he becomes very tired, and consequently, he was very concerned that should he find a job working for an employer, he would be letting them down if he could not do the tasks that have been allocated to him because of his pain and his exhaustion.

70. The plaintiff cannot lift his right arm higher than his chest level, and feels he could do some writing, but would need breaks every 15 minutes or so. He didn’t really know what kind of job he could do as he takes so many medications during the day he needs to sleep a lot.

71. The plaintiff believed that he had been certified as not allowed to work whilst on workers compensation. He made no attempts to obtain any employment, also because he didn’t believe he could do any work, or find a job in which an employer would accommodate his disabilities. It was put to the plaintiff that he could use his mechanical and engineering skills to work somewhere ordering parts for machinery. The plaintiff did not agree as he has never been trained in that aspect of any motor industry or any other industry, and also he felt he could not perform that role if he couldn’t lift anything.

72. It was put to him that he could arrange appointments for people and he responded that he was not sure that he would be able to fulfil the expectation that he could answer phones because of the problems with his right arm, and also his drowsiness and the effects of the medications that he is taking.

73. It was put to the plaintiff in cross-examination that he had never attempted to find any work and he replied that he had never attempted any of the roles discussed, and that he had never given that any thought because he did not believe that he would ever be able to find a job that would fit his needs, or an employer that would take him on because of all of his restrictions.

74. Various scenarios were put to the plaintiff about activities he may have taken socially in the last 18 months or so. He stated that he could travel into the city on occasion with family or friends but had to be very wary and conservative about what he may do due to his fear of being bumped in a crowd or fear of any kind of exertion that may exacerbate his pain.

75. The plaintiff was also cross-examined about how far he could drive and spend time out of home with friends. The plaintiff tries to get out of the house, and to be involved in some leisure activities but he did not believe that he could do much without the support of his friends, and certainly he would not be able to do the activities that he was questioned about on a full time basis.

76. The plaintiff does not make a claim for non-economic loss and the defendant concedes that the plaintiff was totally incapacitated for work until 1 July 2016. The defendant also concedes that the plaintiff has had all of the medical treatment as outlined in the plaintiff’s chronology which is exhibit B.

77. The medical evidence is reasonably consistent and whilst the plaintiff was strenuously cross-examined about his physical condition, the medications that he takes and the work that he could do, he remained resolute that despite the extensive surgery and treatment that he has had he still experiences significant pain on a daily basis.

78. The plaintiff was asked if his condition in his back and his right arm had improved at all over the last few years particularly having had regard to the nerve stimulators that had been placed in his back and he stated his leg was a bit better but he stills suffers from chronic lower back pain every day. The nerve stimulator has reduced his pain somewhat but it has just made it more manageable and does not ever make it disappear completely.

79. The plaintiff described having difficulty using a laptop or writing because it causes pain in his hand. He finds it difficult to use a mouse on a computer with his right hand and if he has to do so he tries to use his left hand but even so can only work on a computer or with a mouse for about 10-15 minutes before he needs a break. He can stand or sit for periods of between 15-30 minutes when he then needs to have a break. He has difficulty getting dressed, brushing his hair, brushing his teeth and bending down and consequently avoids shoes with laces.

80. The plaintiff became very emotional during parts of his evidence, and in particular when talking about his return to work and he stated that he would love to go back to work but given the level of pain that he experiences every day he did not know how he could convince any employer to take him on. He accepts that this is all contributing to his depression but he knows that he is not able to do many of the tasks that might be involved with any employment he might be able to secure. He feels no sense of worth, and believes if he was to attempt to obtain employment, he would be setting himself up for failure because he would let any future employer down due to his inability to perform the tasks that necessary in whatever employment he may be able to obtain.

68. The plaintiff is concerned about the fact that he is addicted to some prescription medications which made his decision making capacity impaired, and he finds it very frustrating the way the medications affect him. The plaintiff believes that on the basis of his current physical and emotional condition, he is totally unemployable.

69. The defendant submits that from 1 July 2016 to date, the plaintiff has some residual earning capacity. They submit that the plaintiff’s view of his capacity for work was stopping him seeking work and that he had a duty to mitigate this loss which he has not done as he has not explored the labour market. They submit that although the plaintiff can’t see the fact that he may improve, and potentially get better he has deliberately not looked for work and his residual earning capacity is therefore untested.

70. The defendant refers my attention to comments made by Dr Mohammad Assem in his report of 27 July 2016 which forms part of Exhibit A. Dr Assem was asked questions in the report and provided answers as follows:

Question 6:   ‘Your opinion as to whether the applicant ought to be able to resume their pre-accident occupation?’

Response:   ‘He is unlikely to be able to resume his pre-injury employment.’

Question 7:   ‘If the applicant is unable to resume normal duties, your opinion as to when the applicant would be fit for such duties?’

Response:   ‘He is permanently unfit for his pre-injury duties.’

Question 8:   ‘The applicant’s prospects of returning to any form of paid employment over and above that which he/she presently holds?’

Response:   ‘He may be able to perform suitable duties at reduced hours in a sedentary position where he has a provision to sit, stand and change his posture when needed. He should avoid lifting items weighing more than 5 kilograms, repetitive bending and prolonged static back flexion. He would be unable to engage in any repetitive or sustained upper limb activities. He would have difficulty writing or performing keyboard activities.’

Question 9:   ‘If the applicant has the capacity to return to employment, what if any limitations ought be placed on

(a) the number of hours worked per week,

(b) the nature of the duties which the claimant is capable of performing and

(c) whether this incapacity will continue until the retirement age?’

Response:   ‘He is theoretically fit for suitable duties working four hours per day, three days per week in a sedentary role with the restrictions specified. Given the severity of his widespread symptoms and limitations he would have difficulty securing suitable employment in a position that he is capable of performing in a regular and reliable manner.’

84. The balance of the doctor’s report suggests that the plaintiff’s prognosis is guarded particularly given the fact that he has chronic pain with significant pathology at multiple levels with secondary anxiety and depressive symptoms.

85. The defendant also points to the report of Dr Tanvia Ahmed dated 29 March 2018, (contained in exhibit A) where Dr Ahmed states at the bottom of page 2 of his report:

‘It is unlikely Mr Sheppard could work his full level. He may worked reduced hours in a less physical capacity but use his qualification and skills.’

86. The defendant says that is the only evidence of the plaintiff’s capacity for work.

87. The defendant had the plaintiff examined on three occasions by Dr Breit, whose reports are part of exhibit 1. Dr Breit at page 8 of his report dated 14 September 2017 gives a diagnosis as follows:

‘This gentleman has failed back syndrome, rotator cuff tendonitis and ulna nerve instability.’

88. In a supplementary report of 14 September 2017 Dr Breit indicates that the plaintiff could not perform his normal duties and states that he is permanently unfit for work.

89. In his final report, after having been provided with a vocational assessment prepared by Compensation Assistance Services dated 1 November 2017, Dr Breit states on page 2 as follows:

‘As you are aware I saw this gentleman in September 2017. Since that time you have obtained an earning capacity assessment from CAS dated 1 November 2017. They identified three occupations which they felt could be undertaken for 20 hours per week. The first and it would appear his preferred is an ‘appointment setter’ which has the advantage of being undertaken from home. The other two occupations are administration/general clerk or customer service officer/enquiry clerk. All the above occupations are sedentary and they have included details of the work involved which I would consider to be appropriate. In my opinion Mr Sheppard is fit to undertake any of the three above occupations for 20 hours per week.’

90. The defendant submits that this is opinion is consistent with the view expressed by Dr Assem in his report of 29 March 2018.

91. Submissions were made as to whether he has any residual earning capacity, and plaintiff’s counsel submits that having regard to all of the evidence and in particular the totality of the plaintiff’s medical evidence it cannot be said that he has any residual work capacity beyond 1 July 2016. They submit that any medical practitioner who says that the plaintiff has a capacity must be incorrect as he is still undergoing treatment and is due to have a permanent insertion of a nerve stimulator in an attempt to address his right arm pain.

92. Plaintiff’s counsel submits that he presents as a tragic and pathetic character and his levels of pessimism, self-doubt and despair are severe. He has given evidence of suicidal thoughts and has been an inpatient in several institutions as a consequence of his psychological condition.

93. It was submitted on the plaintiff’s behalf that a careful analysis of Dr Assem’s report must be made as there are significant restrictions that doctor places on the plaintiff’s future potential to work. They do however note that the restrictions that Dr Assem would place on any work that the plaintiff is capable of doing are consistent with the plaintiff’s own evidence in that he can only use a keyboard or a mouse for 10-15 minutes, needs to sit and/or stand for 30 minutes alternatively and can only ambulate for approximately 10 minutes. The plaintiff further submits that as Dr Assem is a rehabilitation specialist and has undertaken a thorough history and examination of the plaintiff and reviewed all of the investigations his report ought be preferred over the reports of the defendants as the same cannot be said of the opinions contained in Dr Breit’s report. They submit that Dr Assem is exactly correct in his view that:

‘Theoretically the plaintiff is capable of doing restricted duties on restricted hours.’

94. The plaintiff submits that at this point in time, and if ever, the plaintiff is able to find and/or maintain any employment, at best he may be able to find periodic work for 6 months here, 6 months there for a couple of hours per day but certainly isn’t capable of working full time and is unlikely to be able to do so in the short to medium term.

95. With regard to the earning capacity assessment dated 1 November 2017, relied upon by the defendant which also forms part of Exhibit 1, the plaintiff is critical of that report as it is simply a functional assessment and the author of the report is a physiotherapist and not a doctor suitably qualified to come to such views. Similarly, the functional assessment has been performed without any regard to the radiology or medical reports used in the proceedings. I note that the author has made very basic findings as to the functional limitations that the plaintiff has but makes no mention of typing and reaching above his head but concludes that he is fit for sedentary work.

96. Counsel for the plaintiff also refers to the medications that the plaintiff is taking which are set out in the report of Dr Holford which forms part of Exhibit C, and I accept that these are taken as it accords with the evidence of the plaintiff as to how it affects him.

97. Having heard the evidence of the plaintiff, and accepting him as a witness of truth, I find that as a consequence of the accident the plaintiff suffers from the following disabilities;

1. Chronic pain in his lower back, right leg and right arm,

2. Pins and needles in his right ring finger,

3. Restriction of movement in his lower back,

4. Feelings of depression, worthlessness and thoughts of suicide,

5. Interference with sleep patterns and insomnia,

6. Necessity to take significant amounts of medication for his physical and psychological injuries,

7. Necessity to seek treatment for his physical and psychological injuries,

8. Inability to run, and difficulty when walking as leg can give way, necessitating the use of a stick,

9. Difficulty weight bearing on right leg,

10. Difficulty in using a computer for more than about 10-15 minutes before pain forces him to cease,

11. Inability to stand or sit without pain for about 30 minutes,

12. Difficulty in brushing teeth and hair,

13. Very limited strength in right arm, and difficulty in writing for more than 15 minutes,

14. Weight gain and onset of diabetes, and

15. Sleeplessness and exhaustion.

98. I find that he has suffered from those disabilities since shortly after the accident to date.

Economic Loss

99. The plaintiff has not worked much at all since the accident, and the defendant concedes that he was totally incapacitated for work to 1 July 2016. The defendant submits that he has a residual earning capacity of $400.00 per week beyond July 2016. The plaintiff’s case is that he remains totally incapacitated for work.

100. Damages for economic loss are governed by Division 5 Part 3 of the Workers Compensation Act 1987 which provides that damages for past and future economic loss may not be awarded, unless the permanent impairment of the injured worker exceeds 15% (s 151H). The defendant concedes that the plaintiff has reached that threshold.

101. The defendant has nominated some jobs that they submit that the plaintiff may be able to do, and that as he has not tried to work, his future earning capacity is untested, and that he has failed to mitigate his losses. However given that I have found that the plaintiff’s condition is now as it was on 1 July 2016, and is unlikely to improve at all I do not accept the submissions put by the defendant. The plaintiff genuinely believes that he would be unable to work, and despite continuing to undergo further invasive medical procedures, his condition is not getting any better.

102. The defendant has suggested particular occupations to him that they submit he would be able to perform, but have not provided any evidence that those jobs are available to him. In Mead v Kearney [2012] NSWCA 215 at 34, McFarlane JA stated as follows:

‘Moreover, the appellants did not plead that the respondent failed to take reasonable steps to mitigate his loss in the period prior to the trial. In the absence of such a plea and in light of the way the case was conducted, the inevitable conclusion was that for almost four years prior to the trial the respondent had made bona fide and reasonable efforts, albeit unsuccessful, to find employment. His theoretical residual earning capacity was thus of no value to him in this period. Without evidence that the respondent’s condition will improve or be accommodated by future markets, it cannot be concluded that his theoretical residual earning capacity will be of any use to him in the future. As observed in the New South Wales v Moss [2000] NSWCA 133: 54 NSWLR 536 at [64] and [74], Kallouf at [80] and Allianz AustraliaInsurance Ltd v Kerr [2012] NSWCA 13 at [24], evidence of the position between an accident and trial may be a good indicator of current and future earning potential.’

103. In my view, having accepted the plaintiff as a witness of truth, and supported by the medical evidence relied upon by both the plaintiff and the defendant, the plaintiff’s medical conditions appear to be stable, but unfortunately there does not seem any likelihood that he will improve with the passage of time. The level of disability that I have found that the plaintiff is experiencing currently is such that I am unable to see that he has any residual earning capacity, given the expert opinions as to his poor prognosis.

104. Furthermore, the defendant conceded that the plaintiff was totally incapacitated until 1 July, 2016. I am unable to see that there has been any improvement in his physical or psychological condition since that date, and therefore I find that his is residual earning capacity is nil.

Past Loss of Income

105. There has been agreement by the parties as to the plaintiff’s average weekly earnings which were $796 nett per week. It has been agreed that there has been an increase of 31% in the last ten years, which puts the plaintiff’s average weekly earnings throughout the past at $1,127.00 per week. It has been 573 weeks since the accident, $1,127 x 573 = $645,771.

106. Superannuation at 11% x $645,771 = $71,074.00.

107. The defendant is to receive credit for payments made in the sum of $384,552.14.

108. The Fox v Wood figure is $44,585.20.

Future Loss of Earning Capacity

109. $1,278 x 19 years (multiplier 646.2) = $825,843

110. Discount for vicissitudes $825,843 x .85 = $701,966.55

111. Superannuation at 13.70 % x $701,966.55 = $96,169.41

Medical Expenses

112. All the past medical expenses have been paid by the Workers Compensation Insurer, and there has been no submissions made by either the plaintiff or the defendant about the past medical expenses.

113. No claim was advanced in respect of future out -of –pocket expenses. The evidence disclosed that the plaintiff will most likely have future medical treatment, however no claim was made for the costs of such treatment to be awarded.

Head of Damage	Amount
Past economic loss	$ 376,838.06
Future loss of earning capacity	$ 798,135.96
TOTAL	$ 1,174,974.00

Orders

114. My Orders are:

1. Judgment for the plaintiff against the defendant in the sum of $1,174,974.00.

2. The defendant to pay the plaintiff’s costs as agreed or assessed.

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Decision last updated: 10 August 2018