Simpson v North Aramara Sawmill P/L
[2000] QSC 327
•20 September 2000
SUPREME COURT OF QUEENSLAND
CITATION: Simpson v North Aramara Sawmill P/L [2000] QSC 327 PARTIES: DALE LEE SIMPSON
(plaintiff)
v
NORTH ARAMARA SAWMILL PTY LTD ACN 010 611 864
(defendant)FILE NO/S: 19 of 1999 Maryborough DIVISION: Trial Division at Maryborough PROCEEDING: Civil Trial DELIVERED ON: 20 September 2000 DELIVERED AT: Brisbane HEARING DATE: 14-15 August 2000 JUDGE: Atkinson J ORDER: The defendant pay the plaintiff damages in the sum of $455,130.44. CATCHWORDS: EMPLOYMENT LAW – INJURY OF EMPLOYEE – LIABILITY OF EMPLOYER – where plaintiff injured his back by lifting heavy objects at workplace – where defendant gave no training or information about safe lifting – assessment of damages.
WorkCover Queensland Act 1996, s 312, s 318
Astley v Austrust Limited (1999) 197 CLR 1, considered
Wylie v The ANI Corporation Limited [2000] QCA 314; CA No 4092 of 1999, consideredCOUNSEL: M P Amerena for the plaintiff
D H Tait for the defendantSOLICITORS: Morton & Morton Solicitors for the plaintiff
Bain Gasteen Lawyers for the defendant
ATKINSON J: Glenton Simpson was the proprietor of the North Aramara Sawmill which is situated on the Biggenden-Maryborough road. He and his wife Lola Ann Simpson and one of his sons, Raymond Brett Simpson, are the directors of the North Aramara Sawmill Pty Ltd which owned the sawmill. The sawmill, which milled hard wood logs, started its operation in April 1986 and closed in June 1999.
Another of Glenton Simpson’s sons is Dale Lee Simpson who was born on 8 July 1960. Dale Simpson completed Year 12 at Aldridge State High School in Maryborough in 1977 where he was a Prefect, Class Captain and Sports Captain. He then joined the Australian Navy for 12 years reaching the rank of Chief Petty Officer. He continued his education in the Navy receiving a Diploma in Electronic Engineering. After his discharge in 1989, Dale Simpson obtained a job as a quality assurance manager with an aerospace company in the United States of America. He then became quality assurance manager at a plastics manufacturing company and ISO[1] co-ordinator of the company. He then obtained employment at Dimetrics Incorporated in the United States as quality assurance manager and ISO co-ordinator.
[1]International Standards Organisation.
In early 1996, Dale Simpson’s father, Glenton Simpson, who was then approaching 60 years old, was considering retiring from his position at the sawmill. His wife was in poor health with arthritis and Glenton Simpson wanted his two sons to take over the sawmill. Dale Simpson’s younger brother, Raymond, did not have the writing, reading and communication skills which were required to keep the mill in business as a going concern. However, Dale Simpson had no experience in the sawmill industry. His father asked Dale to return and work in the sawmill to gain the necessary experience and to take over the office, clerical and accountancy duties such as answering telephones, giving quotes and taking orders. Dale Simpson returned from the United States to work at the North Aramara Sawmill in April 1996. The arrangement between Glenton Simpson and his two sons was that they would take over the running of the sawmill probably during the first half of 1999, or a year or two later, pay Glenton Simpson a wage and work up enough money to make their father a down payment.
There were five men working in the sawmill, Glenton, Dale and Raymond Simpson and two other employees. Dale Simpson commenced work in the position of a docker where he could see the whole operation of the mill from the breaking down of the logs to the cutting of the timber for orders. He received scrap and stock and timber for orders which he had to sort. The timber had to be cut and strapped into bundles for sale. Dale Simpson also attended to the bookwork, including invoicing and correspondence. Raymond Simpson, his brother, ran the yard side of the mill. Raymond selected the logs for the orders, brought them in using a winch to put on the break-down carriage. He then ran the logs through the break-down saw and then rollers would roll the logs down to the two employees who were on the main bench where the timber was cut. Glenton Simpson attended to maintenance, purchasing of timber and pricing. He was still effectively the manager of the sawmill.
On Sunday 14 September 1997, Dale Simpson went to the sawmill to finish strapping some bundles of timber and to work up some overtime in order to get some time off. Some time after he arrived his girlfriend Jennifer Bateman arrived. At about 3pm he attempted to put a new roll of strapping on the strapping dispenser. The strapping dispenser is a steel cart with a drum on it and two wheels underneath it. The cart is about one metre in height and the drum is about 60cm in diameter. The 19mm steel strapping is in a coil. Dale Simpson picked up the coil from the floor and rolled it to the dispenser. He laid the dispenser down, took the top cover off the coil holder and then attempted to flop the coil onto the coil holder in the dispenser.
On this occasion it did not go into the dispenser properly and so Dale Simpson picked up one side of the coil and pulled the dispenser into place and then dropped the coil onto the dispenser. As he picked up the coil, which weighed about 50 kilograms, he felt a pulling, tearing sensation in his lower back. He called out to his girlfriend that he thought he had hurt himself but continued with the job. As he picked up two quite light tools required for the steel strapping he again felt the pulling, tearing and twitching in his lower back. He was then certain that he had hurt his back. With her help he finished strapping the bundles that were left. I find that this was the manner in which Dale Simpson’s injury occurred. The suggestion put, but not pressed, by the defendant that he suffered his injury in another manner finds no support in the evidence.
Dale Simpson then returned to Ms Bateman’s home and, as his back cooled down, it began to get more painful. At that time he was living in a house provided by the sawmill and she was living in a house that had belonged to her parents. He awoke at about 2 o’clock in the morning as he said “in complete agony”. His evidence was that he could not move any part of his body and the pain in his lower back was “very excruciating”. He could not go to sleep again and at about 5 or 6 am he called his father to tell him that he had hurt his back and he was going to the doctor.
Dale Simpson then attended at the Maryborough Base Hospital on Monday 15 September 1997 where he gave a history of the circumstances set out above in which the injury occurred. He remembered on that occasion having had a similar pain many years ago when he was in the Navy. He was referred to physiotherapy on the same day and for an x-ray. The plain x-ray reported that the disc spaces were preserved and that no bone, joint or disc pathology was shown. Dr Pentis and Dr Khursandi were both of the view, which I accept, that this was inconsistent with significant pre-existing degeneration of the spine. Dr Watson, a consultant in rehabilitation medicine, was of the opinion that Dale Simpson would have had no more pre-existing degeneration of the spine than that naturally occurring in anyone else of his age in the community.
On 1 October 1997, Dale Simpson requested no further physiotherapy, having failed to arrive for his previous couple of appointments. He told Ms Coles, the occupational therapist, when he consulted her in June 1998, that the physiotherapy he received only aggravated the pain.
He then attended a chiropractor at Hervey Bay and his general practitioner Dr Forrest who referred him for a CAT scan on 20 October 1997. When he saw Dr Forrest he had acute lower back pain and associated left sided sciatica. The CT scan showed a minor diffuse annular disc bulge at L3-4 and at L5-S1 a small postero-lateral disc herniation towards the left side. This was noted as distorting the thecal sac a little with a slight compression of the left S1 nerve root. The L5 nerve roots were not compromised.
On 16 October 1997, Dale Simpson made a claim for workers’ compensation. In his written claim, he said that he was lifting steel strapping to change the roll when he was injured on Sunday 14 September 1997 and that he reported it to his employer, Glenton Simpson, early in the morning on Monday 15 September 1997. He was paid $6,126.96 by WorkCover which will have to be refunded.
It was not until 29 October 1997 that Dale Simpson made a statement to WorkCover. Until that time his father, who was of the view that his son’s back would surely right itself, continued to pay him. He recounted the circumstances of the incident as I have set out except that he said that his father was at the mill at the time although he did not see the incident. He admitted when he gave evidence at the trial that his father had not been there and that he had said that to the claims officer because he thought, from what the claims officer said to him, that his claim might fail altogether because he had not reported it to the person in charge immediately. I am satisfied that the explanation he gave on oath in the witness box is true. The statement given on 29 October 1997 gave me no cause to doubt his story in the witness box as to how the incident happened or how the consequent injury has affected the rest of his life. My impression of him in the witness box was of an honest, intelligent man trying as best he can to deal with a very painful condition which has destroyed the plans he had for the future and his ability to lead a normal personal and working life.
His previous back pain occurred in 1986 in the circumstances which follow. Mr Simpson was passed as fully fit when he entered the Navy on 7 March 1978. He remained fully fit through regular medical checks, including being passed fit for overseas service. He reported back pain in March to May 1986. It was reported that he had had low back pain for about four weeks since lifting a gun while doing maintenance on a weapons’ system on HMAS Darwin. He had no bony tenderness and no neurological deficit but an obvious spasm of the para spinal muscles of the lower lumbar and lumbo-sacral region which he isolated to L5. He had no radiation of pain and no obvious scoliosis. He was sent to rest for up to a week whilst on board ship and had an x-ray of his lumbar and lumbo-sacral spine in Hawaii in May 1986. No significant abnormalities were found. It appears that this was a muscular problem only.
Thereafter he continued to be passed as fully fit and, for example, in March 1988 he was passed fit for promotion. The medical report on that occasion noted that he had no back problems since 1986. Mr Simpson had no problems with his back between 1986 and the incident on 14 September 1997.
Much was made in cross-examination of the fact that Mr Simpson did not mention this previous back complaint to Dr Khursandi, Dr Pentis, Dr Watson or Ms Coles but I accept that was because he did not believe it to be significant particularly as the pain on the previous occasion had resolved quickly and had been of a quite different magnitude.
After his injury on 14 September 1997, Dale Simpson was very disabled with back pain. He had problems for the first three months walking any distance, sitting for longer than five to ten minutes or lying flat on his back. In this initial period after the accident, getting in and out of bed was extremely painful. Although the pain gradually improved, it continued as an ache in the lower back with occasional radiating pains down his legs. However after three months, he continued to do approximately eight hours clerical work a week from the mill house where he lived. The phone, computer and fax were moved there so that he could lie down whenever he needed to. During this period he earned $6,474.31 net.
Dale Simpson was examined by Dr Khursandi, an orthopaedic surgeon based in Maryborough, on 3 December 1997 at WorkCover’s request. On clinical examination, he found that Mr Simpson stood with decreased lumbar lordosis and mild scoliosis concave to the left. All movements of the lumbosacral segment were limited to 50% of the expected normal range. He had tenderness of the left sacrospinalis at the lumbosacral junction. He had left sciatic nerve tenderness in the buttocks and straight leg raisings were limited to 70 degrees on both sides, associated with pain. Dr Khursandi was of the opinion that Mr Simpson sustained prolapse of his disc at the lumbosacral junction associated with irritation of the thecal sac and nerve root as a result of the incident on 14 September 1997. Dr Khursandi carried out a further examination for WorkCover on 20 January 1998 where he repeated his observations and considered Mr Simpson had lost approximately 10% of the total body function.
When Dr Watson saw Dale Simpson on 12 June 1998, he found that Mr Simpson was severely handicapped by a stable lumbosciatic pain syndrome. An epidural injection of cortisone on 7 September 1998, as recommended by Dr Watson, provided no lasting relief. Mr Simpson was reviewed again by Dr Watson on 23 March 2000 when he continued to be in obvious severe pain.
In June 1998, he described to Ms Coles that he had a constant ache in the left hand side of his lower back and occasionally in the right hand side, which was aggravated by sitting for long, bending, turning, standing for long or sleeping on his back. He had pain radiating down through his left buttock to his calf, usually after prolonged standing, sitting or lying in bed. He had pain occasionally radiating through his right buttock and down his right leg to the calf.
He now finds he can sit for 15 to 20 minutes or longer in a car if he can lay the seat down. He can stand for no more than two to three hours without medication. In court he stood, supporting himself with his hands, rather than sitting in the witness box. He appeared to be in genuine pain and not exaggerating his condition at all. If anything he appeared to be rather stoical about the situation he was in.
He has used and continues to use drugs for pain relief, using between two and four endone and four to six valium per day. If the pain is more moderate he uses panadeine forte instead of endone and for sleeping problems he uses temaze. It was undisputed that the total amount of special damages for pharmaceutical expenses was $1,006.40; for travelling expenses, $1,800; for medical risk expenses, refundable to the Health Insurance Commission, $190.30; and for medical and other expenses paid by WorkCover, $1,236.65. The total of special damages is therefore $4,233.35. It was agreed that interest on special damages should be assessed at $367.50. It was also agreed that the cost of future pharmaceuticals should be assessed at $5,172.00.
He often has sleeping problems, being woken by pain; he eats his meals standing and finds dressing difficult if it involves more than putting on shorts and thongs. As might be expected the pain varies from day to day. On good days he is able to attend to his hobby of woodwork for two or three hours. His girlfriend now assists him with household chores such as the washing. Prior to the accident he did all his own household chores. He is unable to work on cars and he is unable to make larger pieces of woodwork as he used to. He has had to give up his sporting interests of cricket and tennis. He is unable even to score cricket or tennis because of the sedentary position he would have to adopt. He is unable to engage in old time dancing the way he used to at the North Aramara Recreation Club. He can no longer mow his lawn but occasionally does household maintenance such as repairing PVC piping. His sexual performance and enjoyment has been substantially affected by his injury which has put strain on his relationship. He had been and will continue to be in a great deal of pain. In respect of pain, suffering and loss of amenities, I would asses his loss at $40,000.00.
There should be an award of interest of 4% per annum on the amount of pre-trial pain and suffering which I assess at 75% of the award. This should be reduced by one half because the detriment was suffered progressively over the period. The amount of interest is $1,800.00.
Dr Pentis, an orthopaedic surgeon who first examined the plaintiff on 23 April 1998, took the view that conservative treatment had not been successful. He ordered an MRI investigation which revealed a loss of signal at the L5/S1 intervertebral disc consistent with disc degeneration. There was some central protrusion at L5/S1 which abutted and slightly effaced the thecal sac. It abutted on the S1 nerve roots but without significant compression or displacement. Dr Pentis believed these conditions accounted for the problems the plaintiff was experiencing with his spine. When Dr Pentis reviewed him on 1 March 2000, he noted he had problems sitting and driving and that he could not lift. He was uncomfortable bending and twisting and was limited in his range of movement. He stood in a stooped manner and standing for periods of time caused him pain. He was of opinion that Mr Simpson had a 12% - 15% loss of the efficient function of the spine as a result of the accident. Dr Pentis thought that the plaintiff might derive some benefit from an operative discectomy. Such an operation would cost between $5,000 and $7,000. However it is not guaranteed of success and Mr Simpson is not keen to have it. Accordingly, I have not allowed anything in this regard.
I do not accept the opinion of Dr Bendeich, another orthopaedic surgeon who examined Dale Simpson on 13 March 2000, that the incident at work on 14 September 1997 aggravated pre-existing disc degeneration in his lower spine and that the aggravation was only temporary and would have settled in a few months. It was against the weight of medical evidence and the opinion of doctors who saw him on more than one occasion and closer to the events in question. Dr Bendeich was angry and defensive during a fair and quite restrained cross-examination which may have made him appear less objective but I accept that an expert can behave in such a way if he believes his expertise is being questioned or his diagnosis or prognosis doubted.
It is clear that Mr Simpson would be quite unable to return to the position he had at the sawmill prior to being injured or to any other labouring job. He is also extremely restricted in his ability to do administrative work. Although he has the intelligence, he is physically unable to work for more than about eight hours a week. His concentration has also been affected, particularly when he is in severe pain, and he must be able to change position from sitting to standing to lying down whenever he needs to. His skills in electronic engineering are well out of date. He has no experience or training in repairing computers. He would be unable to return to his job as an ISO co-ordinator or quality assurance manager because these are occupations that require those in them to work a 70 to 80 hour week. Part time work is unavailable for work of this type. In my view he could not obtain work of any kind as an employee on the open market because of his physical restrictions. He anticipates accepting his father’s offer to sell him the 110 acre farm where he grew up and run heifers and calves, while continuing with his woodworking hobby. This is unlikely to generate any further income but will at least keep him occupied.
Dale Simpson was given no instruction at all while he was in the employ of the sawmill about lifting tasks. There were no signs displayed in the workplace or booklets available about safe lifting. There was no equipment to assist in lifting. He had no idea that if he lifted the coil in the way that he did he might suffer injury to his back.
Manual handling, particularly of weights in excess of 16 kilograms, is known to be one of the major sources of workplace injury. As a result various Codes of Practice for Manual Handling[2] and Case Examples booklets[3] had been published at the relevant time by the Workplace Health and Safety Division pursuant to the Workplace Health and Safety Act 1989 regarding the care that was required. Section 4.23(c) of the Code of Practice – Manual Handling provided:
“As weight increases from 16kg up to 55kg, the percentage of healthy adults who can safely lift, lower or carry the weight decreases. Therefore, more care is required for weights above 16kg and up to 55kg in the assessment process. Mechanical assistance and/or team lifting arrangements should be provided to reduce the risk of injury associated with these heavier weights.”
A report by an expert ergonomic engineer, Brendan McDougall, from Intersafe, which was not challenged, observed that the potential risks associated with handling and fitting coils of steel strapping to dispensers (a task performed frequently at the sawmill) and the need for special control measures for the task, should have been identified if an assessment had been undertaken, as it should have been, in accordance with the Code of Practice: Manual Handling. Glenton Simpson was unaware of this Code of Practice. It had not been implemented in the workplace. An analysis of the forces and technique employed by Dale Simpson during the lift would have identified significant potential for musculoskeletal injury to the lower back.
[2]Code of Practice: Manual Handling Division of Workplace Health and Safety, Department of Employment, Vocational Training and Industrial Relations, 2 February 1991; Code of Practice: Manual Handling in the Building Industry Division of Workplace Health & Safety, Qld, 1991.
[3]Manual Handling in the Building Industry – Case Examples Booklet 2 Structural Work, Division of Workplace Health & Safety, 3 September 1991; Manual Handling in the Building Industry – Case Examples Booklet 3 Fitout, Division of Workplace Health & Safety, 3 September 1991; Code of Practice: Manual Handling in the Building Industry- Case Examples Booklet 4: General Aspects – Various Trades, Division of Workplace Health & Safety, Qld, September 1991.
Mr McDougall’s conclusion was:
“Risk could have been controlled by the application of procedural controls and provision of mechanical assistive equipment. These procedural controls would involve work procedures requiring the lift to be performed using a work shop crane or similar or using a two person team lifting technique. There is a need to ensure workers are trained in such work procedures and the work procedure [is] enforced through supervision.
In this instance reliance has been placed on the individual identifying risks in the task and seeking assistance and a work culture where “heavy” lifting was discouraged. Such controls are inadequate as training must address additional risk factors in addition to weight such as reach distance, one handed lifting, twisting, forwards and lateral flexion etc, if manual handling tasks such as existed in this situation are to be identified and avoided.”
Unfortunately these risks were never identified by Glenton Simpson who, as he himself said, was “brought up in the old school where if you thought you couldn’t do a thing you asked for help, but if you thought you could do it then you went ahead and done it.” No safety training courses were conducted during the time Dale Simpson worked at the sawmill. After the incident, Glenton Simpson issued verbal instructions that any lifts of over 25 kilograms had to be done by more than one man and he thereafter purchased 25 kilogram rolls of steel strapping rather than 50 kilogram rolls.
As counsel for WorkCover correctly conceded, if I accept that Dale Simpson was injured on 14 September 1997 in the way in which he gave evidence he was injured, as I do, then he has established liability against the defendant, satisfied the requirements of s 312 of the WorkCover Queensland Act 1996 and should not have his damages reduced because of contributory negligence. In any event the source of the liability in this case is the defendant’s breach of its contract of employment with the plaintiff, which cannot be reduced on account of contributory negligence.[4]
[4]Astley v Austrust Limited (1999) 197 CLR 1; Wylie v The ANI Corporation Limited [2000] QCA 314; CA No 4092 of 1999, 4 August 2000.
The North Aramara Sawmill during its 13 years of operation returned profitable results although those profits varied from year to year. When the financial results for the sawmill are analysed it is possible to determine the net profit available for distribution to the shareholders. In the financial year 1 July 1994 to 30 June 1995, this was $49,339; 1995-96, $39,687; 1996-97, $14,292; 1997-98, $43,263; and in 1998-1999, $2,601 when they were winding down. The main reason for the closure of the mill on 30 June 1999 was that Glenton Simpson, who was by then about to turn 63, wished to retire. There was no-one capable of taking over the running of the sawmill due to Dale Simpson’s injury, so it was closed. If the sawmill had not closed, its future viability was assured because the Queensland government guaranteed supply of hardwood logs to the North Aramara Sawmill from 1 January 2000 to 31 December 2024 by an agreement signed on 17 April 2000.[5] The allocation was transferable and able to be sold.
[5]Exhibit 10.
In the months prior to his injury until 31 October 1997, Dale Simpson earned an average weekly wage of $337.35 net with the employer superannuation contribution being $24.60, giving a combined figure of $361.95 a week. There were occasions where he earned slightly more and one week where he earned slightly less. Past economic loss should be allowed for three years at $361.95 a week, giving $56,464.20 less $6,474.31 earned after his injury. There is no need to discount this amount for contingencies. The past economic loss is therefore $49,989.89.
He was paid $4,018.16 net by WorkCover in lieu of lost wages and $17,500 which counsel submitted he received in welfare payments. He is entitled to interest under s 318(2) of the WorkCover Queensland Act 1996 of 5% per annum for damages for actual economic loss. His actual economic loss is his expected net wage less what he received from WorkCover and by way of social security benefits. He is entitled to 5% per annum interest on that amount for three years giving an interest award of $4,270.75.
As far as future economic loss is concerned, I will assume that the change of ownership would have occurred at about the time of the judgment and that thereafter Dale Simpson’s earnings would have been as one of two proprietors of the sawmill rather than wages. We now know that the financial viability of the sawmill was secure for at least the next 25 years. We also know that the sawmill needed five people to operate it. When Glenton Simpson was the working proprietor of the business he required four employees, which after 1996 included his sons, Dale and Raymond. When they became the working proprietors, they would have required only three employees, thus saving the wage of one person from their expenses, although they would only have been entitled to 50% of the net profits each. The saving of the expense of one wage would have been a saving of about $361.95 a week or about $180.00 a week each which could then be added to the net profit the business would have earned.
However there are also a number of contingencies which should be taken into account. Dale Simpson, who was aged 40 at the time of trial, may have sought to retire before the age of 65. The business may have become more profitable because of Dale Simpson’s superior managerial skills. On the other hand Dale Simpson may have injured himself in some non-compensable or, more likely in the circumstances, compensable fashion. In all of the circumstances and taking the positive and negative contingencies into account, I propose to allow a loss of earning capacity on the basis that Dale Simpson has lost the capacity to earn half the net profits of the sawmill over the next 20 years. The net profits will be calculated on the basis of the average net annual profits between 1 July 1994 and 30 June 1998 less 50% because Dale Simpson would have been joint proprietor with his brother Raymond. This is a figure of $18,322.63 a year or $352.36 a week for 20 years. To this should be added the salary saving of $180 per week. On the 5% discount tables, that gives a multiplier figure of 666 on $532.36 or $354,551.76.
It should be noted that there is no claim for Griffith v Kerkemeyer damages.
Conclusion
In the result, the plaintiff is awarded the following amount of damages:
Pain, suffering and loss of amenities $40,000.00 Interest on pain, suffering and loss of amenities 1,800.00 Past economic loss 49,989.89 Interest on past economic loss 4,270.75 Future economic loss 354,551.76 Fox v Wood 872.15 Special damages 4,233.35 Interest on special damages 367.50 Future pharmaceuticals 5,172.00 Sub-total 461,257.40 Less Refund to WorkCover 6,126.96 Judgment amount $455,130.44
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