Simpson v Thiess Contractors P/L
[1997] QSC 112
•20 June 1997
IN THE SUPREME COURT
OF QUEENSLAND
No.1079 of 1993
Brisbane
Before Mr Justice Ambrose
[Simpson v Thiess Contractors P/L]
BETWEEN:
MAX RONALD SIMPSON
Plaintiff
AND:
THIESS CONTRACTORS PTY LTD
ACN 010 221 486Defendant
REASONS FOR JUDGMENT - B W AMBROSE J
Judgment delivered 20 June 1997
CATCHWORDS: NEGLIGENCE - personal injuries - plaintiff injured knee climbing up rigging whilst carrying a 15 to 20 kg weight - defendant negligent in failing to provide a safe place and system of work - breach of s.9 of the Workplace Health and Safety Act 1989.
Counsel:Mr R Perry for the plaintiff
Mr K Boulton for the respondent
Solicitors:Quinlan Miller and Treston for the plaintiff
Pender Whitehouse for the defendant
Hearing date: 11 and 12 June 1997
IN THE SUPREME COURT
OF QUEENSLAND
No.1079 of 1993
Brisbane
Before Mr Justice Ambrose
[Simpson v Thiess Contractors P/L]
BETWEEN:
MAX RONALD SIMPSON
Plaintiff
AND:
THIESS CONTRACTORS PTY LTD
ACN 010 221 486Defendant
REASONS FOR JUDGMENT - B W AMBROSE J
Judgment delivered 20 June 1997
On 16 July 1990 the plaintiff was injured in the course of his employment with the defendant in the construction of a tall chimney for the Stanwell Power Station near Rockhampton; he contends that his injury was caused by the defendant's negligence.
The plaintiff was employed from the commencement of construction of the chimney, the height of which was 204 metres. At its base, its diameter was about 30 metres, and at its top about 17 metres. Its shape was conical for about one‑third of its height and thereafter, cylindrical.
The chimney or smoke stack comprised a reinforced concrete windshield which was continuously poured over a period of 54 days. There was a special rig used in the construction which moved vertically by the use of hydraulic jacks at the rate of about 300mm per hour. The method used was described as slip form concrete construction which involved the lower level of the concrete within the form work drying out sufficiently to bear the weight of the slip form rig and the weight of the wet concrete as it was poured into the form work from above. The depth of the form work apparently was three or four metres and its weight was supported by steel rods let into the windshield wall during construction and resting at a depth where the concrete had hardened sufficiently to bear the weight of the rig as it was jacked gradually and continuously skywards.
Construction work upon the reinforced concrete windshield for the smoke stack was performed by persons working on two floors of the rig suspended inside the smoke stack construction. The rig was very solidly constructed of steel members and photographs tendered demonstrate the nature of its construction.
The two floors of the rig upon which the plaintiff was injured, were each about three metres wide. One was suspended a couple of metres above the other. The internal diameter of the smoke stack to which the rig was attached where the plaintiff suffered his injury, was 17 metres. There was therefore a circular area about 11 metres in diameter upon which people could walk which was surrounded by the circular rig, the bottom‑most point of which was suspended about .45 metres above it.
In fact at the time of the plaintiff's injury, the pouring of the concrete for the construction of the windshield had ceased. Bond deck form work and various structural components for the "roof" of the smoke stack had been put in position ready for concrete to be poured; the form work had been covered presumably by builder's ply so that it could be used as a working platform by persons at the top of the smoke stack.
In fact the rig was to be used for the purpose of lifting concrete by kibble through the centre of the smoke stack to roof level for pouring.
Substantially however the use of the slip form rig for construction purposes, was nearing its end; riggers had commenced to dismantle parts of it so that they might be loaded into containers and lowered through the smoke stack to ground level. It was the job of the plaintiff at the material time to pick up the parts so dismantled, carry them from the level of the form work for roof construction up onto the lower working level of the rig from which they were to be loaded into containers and then lowered to the ground.
The plaintiff had picked up a steel component of the rig at roof level to carry it up onto the lower working level of the rig at about 9:00am on the morning of his injury.
Although employed primarily on the job as a ticketed hoist operator, the plaintiff had also obtained permits to perform various other tasks under the supervision of tradesmen. These tasks included rigging and crane driving. I infer that one of the reasons for him obtaining this permission was to enable the defendant to lawfully employ him to help other tradesmen when he was not fully occupied operating the hoist. However that may be the plaintiff says and it is not seriously in issue that at the time of his injury he was working essentially as a labourer carrying components of the rig to containers as riggers dismantled it so that they might be lowered to ground level.
The rig was of very sturdy construction as demonstrated in the plan and photographs tendered (exs.27 and 28). The sketch plan (ex.27), although demonstrating the general nature of the rig construction and containing measurements of distance between the roof level from which the plaintiff was carrying the rigging component and the lower floor level of the rig, does not depict the nature of that part of the rig that the plaintiff was using as a ladder to climb from the roof level to the first floor level of the rig. That is demonstrated in the photographs of the internal upper and lower working decks and the radial trusses and lower deck. That part of the rig construction appears to have been designed as part of the system to support both the top section of the rig which extended from one side of the smoke stack to the other and also the two working floors each of about three metres in width extending from the inside wall of the smoke stack construction towards its centre. Those vertical support structures appear to have been a couple of feet in width and to have been constructed from steel members of some kind. It is unclear from the photographs and evidence whether they were constructed in box section or channel or universal beam. However that may be the construction was such that they could be used as a vertical ladder the steel rungs of which, had a flat top, and were about .3 metres or so apart.
It appears from the evidence that persons working on and about the rig were in the habit of using these vertical structural members as ladders to gain access to the lower working floor of the rig during the construction of the windshield. Presumably from time to time the plaintiff had also used this method to gain access to the lower floor level of the rig. The distance between the roof form work level and the lowest point of the rig suspended above it was about .45 metres. From that point to the level of the lower floor of the rig was a distance of about 1.25 metres.
The method used by the plaintiff and apparently other persons working on and about the rig at this level to gain access to it was to walk across the roof level to the bottom of the structural member of the rig which protruded from the inner edge of the lower floor level of the rig for a distance of a couple of feet and more or less at right angles to that edge and climb from the roof level onto the bottom rung of this structural support - a height of about .450 metres. From there he was able to then climb to a position on the structural member a little below the lower floor level of the rig about 1.250 metres above the bottom of the structural member of the rig used as a vertical ladder. There was pipe or some sort of vertical steel work which was part of or near this vertical structural member close to the edge of the floor to which the plaintiff was climbing.
The rig structure was constructed in such a way that the floor level to which the plaintiff was climbing was located between two of those horizontal members in the vertical support structure. The top of one was about .3 metres below the floor level and the top of the next one was about the same distance or a little further above it.
On the day in question the plaintiff made his way towards the bottom of the vertical structural member of the rig to which I have referred carrying in his right hand or arm a dismantled rig component weighing between 15 and 20 kilograms. He climbed from the roof level the distance of about .45 metres to the lowest horizontal bar in the vertical structural member of the rig using his left hand to support and steady himself by holding onto the pipe or vertical steel work at the edge of the floor levels as he did so, carrying the rig component in his right hand and/or arm. He then climbed the rig structure using the horizontal parts of the vertical support as the rungs of a ladder and these were about .3 metres apart. At least that is the estimate given by the plaintiff. Looking at the photographs it seems to me that the distance that separated one horizontal member from the next may well have been in excess of .3 metres; at the very least the distance from the top of one to the top of the next would seem to exceed .3 metres. However probably nothing turns upon that. In any event the plaintiff made his way without injury until his feet were resting upon a horizontal member of the vertical structure .3 metres or so beneath the floor level which he was attempting to reach. At that time he was supporting himself on this vertical structure by holding on to a pipe or some structural member with his left hand while bearing the 15 to 20 kilogram weight of the steel rigging component in his right hand or arm. He then lifted his left leg and according to him "swung it" up and around to his left so that his heel came down onto the surface of the floor to which he was attempting to gain access. Within seconds of this manoeuvre he sustained an injury to his knee. How much of his account is reconstruction and how much is actual observation and recollection I find difficult to determine. What is clear is that he ended up with both feet on the rig floor before falling onto his buttocks. He did not fall or even nearly fall off the edge of the working level which he was attempting to reach. He says that his left heel slipped off the edge of a piece of building ply which was about 30mm thick which happened to be on the lower floor of the rig next to the vertical structural member which he had used as a ladder to gain access to it.
I have some difficulty in determining just what was the cause of the plaintiff wrenching his left knee as he attempted to move from the top surface of the horizontal bar of the vertical structural member of the rig .3 metres or so beneath the lower floor level to that floor.
The whole exercise seems to me to have been a very hazardous one. The floor to which he was trying to step from the vertical structural member was 1.7 metres above the roof level below him. The "ladder" constituted by the vertical structural member was of course at right angles to the floor to which he was attempting to gain access. It must have been essential for him to keep hold of the pipe or other structural member with his left hand as he shifted his body weight from that horizontal structural member to the level of the floor of the rig .3 metres or thereabouts above it. Having got his left foot up onto that floor level it must then have been necessary for him to get his right foot onto the same floor level while bearing the 15 to 20 kilogram weight of the rig component in his right hand. To do that it must have been necessary for him to keep hold of the vertical structure up which he had climbed with his left hand. To do this it must have been necessary for him to raise his body without the assistance of his right arm and hand holding the 15 to 20 kilogram rig component. With his left hand holding onto the vertical structural support and his left foot resting on the floor with his right foot also on it after he had placed it on the floor to which he was attempting to gain access his safe passage must have depended on the plaintiff maintaining a firm grip on the vertical structural member with his left hand as he transferred the whole of his weight (and that of the rig component he was carrying) from the vertical support structure to the rig floor. I have difficulty in inferring how he could achieve this unless he attempted to turn his body as he lifted his right foot onto the floor so that his right side passed underneath his left arm as his left hand held onto the pipe for security as he shifted body weight from the vertical structure to the floor.
It was in the course of this attempted manoeuvre that the plaintiff lost his footing ‑ in my view unsurprisingly - and wrenched his left knee before ending up on his buttocks on the floor level to which he had been attempting to gain access.
Had he been holding the rig component in his left hand and using his right hand to hold onto part of the vertical support structure he would have had to hold onto the right hand side of that structure. Once he had both feet onto the floor of the rig he would then have had to release his grip with the right hand while leaning backwards over the edge of the floor a distance of a couple of feet. That would also have put him at risk of falling which would not have arisen had access been available by steps or ladder giving access at right angle to the edge of the floor.
In my view the system which the plaintiff was required and/or permitted to follow in carrying heavy rigging components from the roof level up to the lower floor level of the rig about 1.7 metres above was unnecessarily dangerous and the defendant was negligent in failing to take reasonable steps to provide a safe place and system of work for him; to do so would have been simple and would have involved spending a negligible amount of time or money. In addition in my view the defendant was also clearly guilty of breach of the statutory duty pleaded.
It was not contended that the plaintiff had been guilty of contributory negligence. The project engineer/manager of the defendant gave evidence. He expressed the view that it was not a dangerous system provided for the plaintiff. He took the view that riggers generally doing the sort of work that was done on the construction of the Stanwell Chimney might be expected to use that system. There were in fact ladders provided to gain access from the lower floor level of the rig to the upper floor level. He seemed unaware of the statutory duty imposed upon the defendant to provide safe access to the lower floor level of the rig. It is possible, I suppose, that some riggers may have preferred to use the vertical structural member with the horizontal bars on it to which I have referred to gain access from the lower floor to the upper floor level of the rig. It was not suggested that that was done. Whether they did or did not do that, certainly ladders had been provided as one would expect to permit them to travel more safely from one floor level to the other when working on and about the rig.
To the extent that a person working in and about the area where the plaintiff was attempting to climb onto the lower floor of the rig knew that the vertical member of the rig was used as a ladder it was clearly careless on his part to leave a piece ply form work in a position right where somebody trying to climb onto the floor from the structural member would have to put his feet. There would seem to be no reason whatever to place the form work in that particular position and no explanation was given as to why it might have been left there. Indeed the expert for the defendant conceded that whoever did it was careless and ought not to have done it. To the extent that it is necessary to do so I find that whichever employee did leave that particular piece of form work in that position also failed to take proper care for the safety of persons working on and about the rig whom they knew or ought to have known would have to step from the horizontal bars on the structural member onto the floor in that position because use of such a member was apparently the only method of gaining access from the roof level to the lower floor of the rig.
On the balance of probabilities, however I find that had there been a proper access provided to the lower working floor of the rig by ladder or simple removable steps the location of that form work would probably not have proved a danger to the plaintiff. Having regard to the manoeuvre that he was attempting to execute in climbing the vertical member while carrying an appreciable load in his right hand it seems to me unlikely that he would even have observed the presence of the ply wood, to contact with which he attributes his knee wrenching. Had he been able to mount a ladder or set of wooden steps so that he might ascend directly up to the lower floor perhaps using the vertical structure up which he climbed only as a hand support so that he could walk from the top of the ladder straight onto the lower floor of the rig, it seems to me quite unlikely that he would have suffered any injury by reason of the ply wood on the floor near that vertical member. To the extent that it played any part in his injury I would infer that it did so only because the plaintiff found it necessary to make a difficult and physically dangerous manoeuvre to transfer his body weight increased by 15 to 20 kilograms by the rig component he carried in his right hand from the structural member to the floor level of the rig some .3 metres or so above.
I therefore find that the plaintiff's injury was caused by the negligence and breach of statutory duty of the defendant.
The plaintiff had previously suffered what appears to have been a bad strain of the left knee in 1986. He was off work for a couple of weeks and he received treatment on and off for a couple of months. After that injury the plaintiff played football, squash and golf; he worked in physically demanding fields in the building industry. He says that he had had no problems after the end of 1986 until he suffered this particular injury in July 1990. I accept that evidence. In my view it is quite improbable that the 1986 injury had any or at least any significant effect on the disability suffered by the plaintiff subsequent to his injury while employed by the defendant in 1990. I prefer the evidence of Dr Curtis to that of Dr Blue. I have regard to the opinions expressed by Dr Koch who operated on the plaintiff in 1992; this in effect was the second operation performed on the plaintiff. The first operation performed by Dr Macfarlane in 1991 had been unsuccessful.
After his injury the plaintiff received medical treatment, physiotherapy, etc. He worked for about six months until he was retrenched just before Christmas 1990. Undoubtedly the plaintiff was one of 12 or 18 men retrenched at the time. I think the probability is that it was the plaintiff's intention to have an operation to his knee in January 1991 which persuaded the defendant to retrench him rather than keep him on until about May or June 1991.
I am satisfied that the plaintiff was and is still a very motivated man who is anxious to seek what employment is available to him and to take what steps he can to achieve the necessary education and training to enable him to obtain and hold down employment within his physical and intellectual capacities.
Medical evidence is to the effect that the plaintiff has suffered a loss of function of his left leg between 12 percent and 20 percent. If he must have operative treatment in the future to his left knee joint which although not probable is certainly on the cards, he will perhaps be left with a loss of function of between 25 and 30 percent.
I do not find the assessment of loss of function in percentage terms of great assistance in determining the effect of the plaintiff's disability. I accept his evidence that prior to his injury in 1990 he had engaged in physically demanding sporting and occupational activities. He had played football, golf and squash and had engaged in windsurfing, bushwalking etc. Members of his family have farming properties and he was able to engage in the sorts of activities appropriate to farming. He was able to work long hours performing heavy labouring duties. He was able to work overtime. Although having few trade qualifications he was nevertheless able to earn a significant net income at the time of his injury of $700 per week and indeed sometimes more than that. After his injury he was unable to perform overtime. He suffered a great deal of pain and inconvenience. He persevered with work until he was retrenched in December 1990. I think the probability is that he was retrenched because he indicated that he was having so much pain with his leg that he had decided to have an operation on his knee to be performed by Dr Macfarlane early in 1991.
He had that operation and it was unsuccessful. Eventually in 1992 he had a second operation performed by Dr Koch which gave him some relief. He worked for a year or two as a barman at a greatly reduced income. He had to give up this work eventually because the constant standing, bending and lifting etc involved in this employment got too much for him. He gave up this work on medical advice.
After giving up this work, he obtained advice directed to his rehabilitation and training for an activity within his physical and intellectual capacity. He has undertaken a number of TAFE courses and has done moderately well in some of them although poorly in others. I am satisfied that he has applied himself with great vigour and has regretfully come to the conclusion that the years he spent away from intellectual pursuits has and will make it difficult for him to achieve skills necessary to obtain clerical-type positions. These include accounting, the use of computers, business management, etc.
I have little doubt that the plaintiff is very well motivated to obtain the training necessary to allow him to earn an income to support himself and his family. On the other hand he is now 39 years of age. He has never performed any clerical work. He is undertaking certain management etc courses involving outdoor work, building work etc. He has undoubtedly had a good deal of experience in the building industry, albeit not as a tradesman. It may be possible for him with appropriate clerical accounting and computer skills to obtain employment somewhere in an outdoor type of activity. I have little doubt that had he not suffered the injury which he did in 1990 he would have acquired other tickets in the building trade which would have made it likely that as he got older and more experienced he would have obtained positions of a supervisory kind in the field in which he had worked for so many years. It seems to me unlikely that he would obtain such positions at the present time - even if his physical capacity did not prevent him performing such work. Employers may well have reservations about employing somebody with an incapacity of the sort presently suffered by the plaintiff in a field where it might be aggravated or exacerbated to such an extent as to lead to further claims for workers' compensation. Indeed the evidence given by Mr Kinsella with respect to his reaction to the plaintiff's claim for compensation when he learnt that the plaintiff had suffered a previous knee injury in 1986 merely highlights the attitude that I think the plaintiff might have to overcome should he attempt to obtain a job in the building industry which required his regular attendance at building sites even in a supervisory capacity should such attendance put his injured knee at risk.
On the other hand there may be other sedentary or partly sedentary occupations which will become available to him if he succeeds in acquiring the skills necessary to obtain such positions. The problem is that by the time he obtains the skills he will be in his forties and will never have had that sort of job or indeed any experience relevant to work at that sort of job before. While undoubtedly the plaintiff will obtain some employment in the future and indeed I think he may well have obtained some sort of unskilled employment from time to time over the last couple of years had he not been so anxious to get qualifications to enable him to obtain a semi-sedentary occupation within his physical and intellectual capacities and training, nevertheless I am unpersuaded that the plaintiff's earning capacity in the future will be anything like what it would have been had he been able to maintain his employment within the construction industry and seek further qualifications in it leading ultimately to his employment in a supervisory or foreman capacity. Indeed it is with some reservation that I assume that the time spent by the plaintiff at TAFE obtaining training for occupations more suited to his physical incapacity will in fact reduce his loss of full-time earning capacity to the extent I have accepted in assessing damages under this head.
The plaintiff has lost many of the amenities of life. While he may certainly do work in the domestic environment around the garden and do a bit of painting etc around the house, perhaps climbing up on ladders when necessary, it is clear that he does this with difficulty and at the expense of pain. He is unable to play football with his children or to engage in the sorts of physical activities he enjoyed before his 1990 injury and which he obviously would like to engage in now if he were physically able to do so. This is a matter which in my view amounts to a significant diminution in the amenities of life. Looking at the whole picture and keeping in mind the long period of his pain and suffering, the several operations that he has had, the possibility of him having to have further operations in the future and the likelihood that his leg condition will get worse rather than better as he ages, I assess his general damages for pain suffering and loss of amenities of life in the sum of $40,000.
I assess interest on $20,000 of that sum for 3.5 years at 4 percent for past pain and suffering at $2,800.
I propose to assess his past loss from date of injury to trial. For the first 6 months he suffered some loss of earning capacity due to his inability to work overtime. As well as that he lost income while recovering from operative treatment that he obtained in 1991 and 1992. He worked for a couple of years as a barman and received significantly less than he might have expected to receive had he been employed in the construction area. In fact after he had received operative treatment for his knee he was offered a position to work on maintenance of smoke stacks in New South Wales. He was obviously regarded by people knowledgable in such matters as a person whose skill and aptitude made him a desirable employee to do this sort of work. He was unable to take up that position because of his knee injury.
On the other hand I accept the evidence of Mr Kinsella that the construction industry has gone through some hard times over the last 5 years. It seems he was unable to maintain employment as a construction engineer with the defendant for some time. The industry appears to be a cyclical one. It appears to be providing more employment now than it has over the last couple of years. On the other hand the plaintiff has a very good work history and has demonstrated a capacity to obtain work and indeed to be sought after to do the sort of work that he was performing at the time of his injury. Looking at the matter generally, I take the view that making all due allowances for problems in the construction industry his past earnings had it not been for his injury in July 1990 should be assessed at $550 per week net for 7 years which amounts to $200,200. During that period of time he has earned $83,978. All told therefore I assess his past lost earnings in the sum of $116,222.
On that sum less $24,086 received as weekly compensation and $31,000 received as social security payments, totalling $55,086, I assess interest at 5 percent (i.e. on $61,136) for a period of 6.5 years at $19,869.
With respect to future economic loss it seems to me the plaintiff has probably lost a net income of about $200 per week. In arriving at this sum, I take into account the probability that had he stayed in the building industry as he got older he would probably have obtained a position in a supervisory capacity. I keep this in mind having regard to his lumbar spinal condition which is not attributable to the injury he sustained as a result of the incident in July 1990. Although it was contended on behalf of the defendant that the plaintiff would almost certainly become sufficiently qualified and trained to obtain employment and although the plaintiff has expressed some confidence and determination in this regard, I must say having regard to his age and lack of any experience, training or skill in fields in which he is now at age nearly 40 attempting to obtain marketable skills, that confidence seems founded more on hope than reasoned expectation. I am satisfied that he will almost certainly obtain some sort of employment but I do not think it will return him anything like the income he would probably have obtained had it not been for the destruction of his capacity to work in the building industry in a way for which his experience qualified him.
It seems to me a broad brush approach in a case like this is justified. I assess his loss of future earning capacity in the sum of $200 per week for a period of 20 years. Using the 5 percent tables this amounts to $131,800.
With respect to Griffith v Kerkemeyer claims the plaintiff clearly required the provision of services etc during his periods of incapacity and while he was obtaining medical, hospital and physiotherapy treatment for his injuries and recovering from his operative treatment for his knee condition. It seems to me that the claims contained in ex.32 upon which the plaintiff was not seriously cross‑examined are reasonable. The rate of $9.50 per hour claimed is supported on the evidence and is appropriate to asses the past Griffith v Kerkemeyer claim. This amounts to about $9,000. Interest on that sum for 5 years at 1 percent amounts to $450.
I am unpersuaded that any future Griffith v Kerkemeyer loss has been established.
Special hospital, medical, rehabilitation, and other expenses are agreed in the sum of $13,297.31.
Travelling expenses are agreed in the sum of $2,500.
Fox v Wood component is agreed in the sum of $6,241.25.
In conclusion therefore I assess damages as follows:
Pain suffering, loss of amenities $40,000.00
Interest 4%p.a. on $20,000 for 3.5 years $2,800.00
Past loss of earning capacity $116,222.00
Interest on $61,136 at 5%p.a. for 6.5 years $19,869.00
Lost future earning capacity $131,800.00
Past Griffith v Kerkemeyer $9,000.00
Interest for 5 years at 1% $450.00
Specials $15,797.31
Fox v Wood component $6,241.25
$342,179.56
Less moneys refundable to Workcover $54,320.50
Total $287,859.06
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I give judgment for the plaintiff against the defendant for the sum of $287,859.06.
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