Simcoe v SRA of NSW

[1999] NSWSC 1275

CITATION:	Simcoe v SRA of NSW [1999] NSWSC 1275
CURRENT JURISDICTION:	Common Law Division
FILE NUMBER(S):	20003 of 1996
HEARING DATE(S):	10/02/1999 - 11/02/1999
JUDGMENT DATE:	22 December 1999
PARTIES :	Ricky Shane Simcoe (plaintiff) State Rail Authority of New South Wales (defendant)
JUDGMENT OF:	Hidden J at 1

COUNSEL :	J Glissan QC (plaintiff) R Sorby (defendant)
SOLICITORS:	Walker Smith Solicitors (plaintiff) Gillis Delaney Brown (defendant)
CATCHWORDS:	NEGLIGENCE - Action for damages for personal injury: industrial accident - contributory negligence - whether residual work capacity
ACTS CITED:	Workers Compensation Act 1987
CASES CITED:	Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 Sungravure Pty Ltd v Meani (1963-64) 110 CLR 24
DECISION:	Judgment for plaintiff

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HIDDEN J

Wednesday 22 December 1999

Ricky Shane Simcoe v State Rail Authority of NSW


Reasons for judgment

1     HIS HONOUR : In these proceedings the plaintiff, Ricky Shane Simcoe, seeks damages for a personal injury arising from an accident which occurred in the course of his employment by the defendant, the State Rail Authority of New South Wales.

Background


2     The plaintiff, born on 3 January 1960, is now thirty-nine years old. He began employment with the defendant in 1981, at the age of twenty-one, as a labourer. It was his first and only job. He had left school at the age of fourteen, half-way through second form. His reading and writing were limited, and he did not pursue any further general education or undertake any trade course thereafter.

3     In the early 1980s he married and had two children. That marriage broke down, he was divorced, and he has had no contact with the two children in recent years. He later entered into his present de-facto relationship. That union produced one child and his partner has three children from a previous relationship, who live with them.

4     In December 1986 he injured his back quite seriously while surfing and required a spinal fusion. He was off work for about thirteen weeks, whereupon he gradually returned to his normal duties. It seems that he made a good recovery, although he occasionally experienced some pain or stiffness and he learnt to avoid bending and to be careful when lifting.

The accident


5     The accident with which I am concerned occurred in the early hours of 25 August 1988, when the plaintiff was working as a fitter’s assistant at the defendant’s workshops at Enfield. It is unnecessary to go to the detail of his tasks, except to say that one of his duties was to ensure that certain machinery was supplied with oil. During a shift he would normally work with one fitter.

6     On the occasion in question he had been working a shift which commenced at 11pm the previous night. He observed that the oil level of the machine was too low and he reported the matter to his foreman. Using a forklift, the foreman delivered three 44 gallon drums of oil on a pallet. He deposited them about three metres from the machine and left the area. Each drum weighed approximately 200kg.

7     Normally, the plaintiff would have enlisted the aid of the fitter to get the drums from the pallet to the machine. On this occasion, however, the fitter was a man of slight build in his 50s and the plaintiff considered that he was not up to the task. The plaintiff himself is a tall, heavily built man. He rolled one drum off the pallet and manoeuvred it on its rim to the machine. He did the same with the second drum. However, in the course of removing it from the pallet, the third drum fell towards him, striking him in the area of the stomach and knocking him against the buffer of a nearby carriage. His lower back bore the brunt of the impact.

8     He managed to push the drum away but immediately felt severe pain in his lower back. He walked with difficulty to the foreman’s office and reported the incident. When the foreman asked him why he had not sought assistance to move the drums, he replied that there had been no-one around to help him at that time of morning. The foreman directed him to lie down until the end of his shift and then to see his local doctor.

9     I shall deal shortly with the medical evidence, and the plaintiff’s evidence of the extent of his disability as a result of the accident. For the moment, it is sufficient to say that the spinal fusion which had been performed in 1986 was disrupted and a re-fusion from L3 to S1 was necessary.

Liability


10     Subject to contributory negligence, liability was not seriously in issue at the trial. Both parties relied on reports of experts in occupational health and safety, which were in dispute only about the extent to which the plaintiff might be said to have been the author of his own misfortune. It seems that the process of rolling a heavy drum on its rim is common in industry, but both experts agreed that is it hazardous, even when undertaken by two men.

11     As the plaintiff’s expert, Dr Neil Adams, pointed out, there were other measures by which the oil could have been conveyed to the machine safely. There are mechanical devices adapted for the moving of 44 gallon drums. Arrangements could have been made to decant the oil from the drums into smaller containers before being carried to the machine. Again, a bulk oil drum could have been installed with a permanent feed system to the machine. None of this evidence was challenged.

12     I am satisfied that the system of work leading to the plaintiff’s injury was unsafe. In so saying, I have had regard to the principles reviewed by the High Court in Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301. As I have said, the real issue is contributory negligence.

13     Counsel for the defendant relied upon the plaintiff’s own evidence that he was aware of the need to care for his back, that he knew that moving the drums on his own might put his back at risk, and that he did not try to get someone to help him. Whether or not the fitter might have been capable of that task, he knew that the manager and the foreman were on the site and he did not approach either of them to help him. He said that the foreman deposited the drums near the machine and left before he had a chance to seek his assistance. He added that the foreman could then have gone anywhere within the site, but he acknowledged that he did not try to find him at his office. As to the whereabouts of the manager his evidence was silent (although one can imagine that he might have been unwilling to approach someone in that position).

14     It was acknowledged that the plaintiff might have been motivated by misplaced zeal, as the fitter was unable to proceed with his work until the oil in the machine had been topped up. Nevertheless, I think there is force in the argument of counsel for the defendant that, by moving the drums without assistance, he had failed to take reasonable care for his own safety. This was not merely a case of “some taking of a risk or other departure from the highest degree of circumspection, excusable in the circumstances because not incompatible with the conduct of a prudent and reasonable man”: Sungravure Pty Ltd v Meani (1963-64) 110 CLR 24, per Windeyer J at 37: see also Bankstown Foundry (supra) per Mason, Wilson and Dawson JJ at 310.

15     Dr Adams’ report expressed the view that this accident could have happened even with two men handling the drum. On the other hand, the plaintiff had performed the task successfully on previous occasions with assistance. It is reasonable to infer that he lost control of the drum because he was acting alone. This conclusion finds support in the report of the defendant’s expert, Dr Brian Emerson.

16     Accordingly, I find contributory negligence established. However, I do not consider that it should result in a marked reduction of the plaintiff’s damages. The matter should be approached upon the basis set out in the passage from Bankstown Foundry at 310 to which I have referred: his conduct “must be judged in the context of a finding that the employer had failed to use reasonable care to provide a safe system of work, thereby exposing him to unnecessary risks”. Indeed, the facts of that case are not dissimilar from this. As in that case, I consider that the appropriate reduction of the plaintiff’s damages is ten per cent.

Damages


17     At the time of the accident the plaintiff was twenty-nine years old. Despite the seriousness of the surfing accident in 1986, I accept his evidence, confirmed by the report of the doctor who then treated him, Dr C Edmund Graham, that he had made a satisfactory recovery. What he has endured since the work related accident in 1988 is substantially the result of that accident. Of the authors of the various medical reports tendered by both parties, only Dr Barry Cant questioned that conclusion. Counsel for the defendant did not rely upon his reports in final address.

18     I have referred to the surgery which the plaintiff required, and which was performed in November 1989. It is unnecessary to recite the detail of his other medical treatment. I found the plaintiff to be a frank witness, and his evidence about the effects of the accident is broadly consistent with the medical reports. After the surgery, as he put it, it took him a long time to get back on his feet. He has suffered, and continues to suffer, a significant level of pain and restriction of movement. For some years he was taking a considerable amount of medication daily, but in 1993 he learned to cope without it through a pain management program.

19     Late in 1988, the plaintiff returned to work on light duties. Initially, he was sorting files in an office. When that work was no longer available to him, he was painting hand rails. For that purpose, he wore a back brace and avoided bending, but two back braces broke in as many days. On 16 November 1988 he ceased work. He has not worked since, and has been receiving Workers Compensation payments.

20     He now lives with his de-facto partner and his family at Kingaroy, Queensland. Occasionally, he swims or goes fishing. He can drive a car, although not for long periods of time. He is able to help around the house to some extent. It seems that two of the children have an attention deficit disorder, and he devotes a fair amount of his time each day to helping them.

21     On the whole of the material, I am satisfied that the plaintiff will have to endure a measure of pain and disability for the rest of his life. I am also satisfied that, realistically, he could not have obtained employment since the end of 1988 and never will be able to. On this question the medical reports are divided, some of them sharing my pessimism and others suggesting a residual capacity for light work. He acknowledged his fear of further injury to his back if he worked again, and I find that entirely understandable. The fact is that he is now thirty-nine years old, seriously disabled by his back condition, limited in his education and having no more than basic manual skills. I think it most unlikely that he would attract the interest of any employer for any type of work.

Non-economic loss


22 While I have found that the work related accident is substantially the cause of the plaintiff’s condition, the surfing accident cannot be ignored. Non-economic loss must be determined as a proportion of the amount allowed for a most extreme case under s151G of the Workers Compensation Act 1987, the amount at the relevant time being $180,000. Counsel for the plaintiff submitted that a figure in the order of fifty to sixty per cent of that amount was called for, while counsel for the defendant argued that thirty-five per cent would be reasonable. In my view, the appropriate proportion is fifty per cent.

23     In relation to the other heads of damage, both counsel provided helpful schedules of figures based upon their submissions as to how those heads of damage should be assessed. I shall set out how I approach the assessment in each case but, given the time that has elapsed between the hearing and delivery of judgment, it will be necessary for the figures to be brought up to date.

Past economic loss

24     This should be assessed on the basis of the plaintiff’s nett wage but for the injury, having regard to the Workers Compensation payments to date. In the schedules there appears to be a difference in approach to that calculation which, I trust, can be resolved between the parties. The plaintiff claims interest on a limited basis in relation to past economic loss. However, it seems that I could not award any interest unless the requirements of s151M of the Act are met. This matter was not addressed in evidence or in submissions. Subject to hearing the defendant, I would be prepared to allow the plaintiff an opportunity to do so.

Future economic loss

25     This should be assessed upon the basis that the plaintiff has no residual earning capacity. Again, the schedules are not at one about the nett wage upon which the calculation should be made, and I trust that the parties can reach agreement about this. I accept the submission of counsel for the defendant that the discount for vicissitudes should be somewhat greater than the usual fifteen per cent. He now has a heart condition of some kind, although the matter was not pursued in the evidence and its severity is difficult to determine. More importantly, however, the report of Dr Graham Anderson, tendered by the defendant, expresses the view that his original back injury sustained in the surf would have eventually affected his working ability. It was submitted that I should apply a discount of twenty-five per cent. In my view twenty per cent is appropriate. Given my finding of contributory negligence, it will be necessary for the parties to consider whether s151N(2) of the Act is applicable.

Other matters


26     I understand that loss of superannuation, past and future, the Fox v Wood component, and out-of-pocket expenses are agreed.

27     I request the parties to bring in short minutes to give effect to my reasons. Neither party should hesitate to inform me if I have made any technical or procedural error, or have failed to determine any matter in dispute.
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Last Modified: 06/26/2000