Smith v Capezio and Co Pty Ltd
[2012] ACTSC 104
•July 2, 2012
DENNIS SMITH v CAPEZIO & CO PTY LTD
[2012] ACTSC 104 (2 July 2012)
PERSONAL INJURY – workplace injury on building site - injuries to back and right upper limb – extent to which injuries caused continued disability – credit – affect on income earning capacity – requirement for personal and domestic care.
No. SC 162 of 2011
Judge: Sidis AJ
Supreme Court of the ACT
Date: 2 July 2012
IN THE SUPREME COURT OF THE )
) No. SC 162 of 2011
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN:DENNIS SMITH
Plaintiff
AND:CAPEZIO & CO PTY LTD
Defendant
ORDER
Judge: Sidis AJ
Date: 2 July 2012
Place: Canberra
THE COURT ORDERS THAT:
Verdict and judgment for the plaintiff in the sum of $810,861.
The defendant is to pay the plaintiff’s costs on an ordinary basis as agreed or assessed. This order is suspended for seven days to allow the parties to list the matter for further argument on the issue of costs.
The exhibits are returned.
My reasons are published.
Dennis Smith, the plaintiff, was employed by Capezio & Co Pty Ltd, the defendant, as a general labourer from January 2008. On 12 March 2009, he fell from an area in which he was working to the floor below, an estimated distance of two and three metres. He claimed that the defendant was negligent in its operation and management of the building site as a result of which he suffered injury. The defendant denied negligence and alleged that the plaintiff was guilty of contributory negligence. It denied his claims of loss and damage.
LIABILITY AND CONTRIBUTORY NEGLIGENCE
The defendant called no evidence and made no submissions on these issues.
The evidence on liability was provided by the plaintiff. Mr Wallace, who was his friend and who was also employed by the defendant, confirmed the plaintiff’s evidence. This evidence established that the plaintiff was instructed by the defendant’s foreman to work on a plywood platform that was erected as formwork in preparation for the pouring of the second half of the ground floor slab of the building known as G block.
Two to three metres below the plywood platform was the already constructed basement that made provision for the car park and swimming pool. The plaintiff was instructed to use a jackhammer to demolish part of the wall dividing the car park from the swimming pool area.
As he worked rubble accumulated and, in order to avoid tripping on it, the plaintiff stopped hammering and cleared it three to four feet away from the wall.
He then picked up the jackhammer and took two to three steps backwards to check the progress of his work. At that point, one of the sheets of the plywood flipped and he fell through a gap to the floor of the car park area below.
He said he was unsure how he landed. He thought he landed on his feet first before he fell onto his back.
When he recovered his senses, he looked up and saw the plywood sheet at a 40 degree angle. He said he could see light through it. He noticed that there were no cross members supporting the decking sheet.
Mr Wallace said that immediately after the plaintiff’s accident he assisted the defendant’s foreman to replace the plywood sheet and to put it in place with jacks and cross members to support it.
I was satisfied that this evidence established that in requiring the plaintiff to use the platform for support, a purpose for which it was not intended, it was in breach of its duty of care as the plaintiff’s employer.
There was no evidence of any contributory negligence on the part of the plaintiff.
I find the defendant liable to the plaintiff for loss and damage suffered as a result of the accident.
DAMAGE
Background
At the time of the accident the plaintiff was 58 years old; he is now 61. He was married in 1975 and he has two adult sons. He was right hand dominant.
He was educated to what he described as Year 2, leaving school at the age of 15. After leaving school, he was employed in various unskilled positions until he secured employment with what was then known as the Postmaster General’s Department and subsequently Telstra.
He was employed initially as a linesman working in a gang and working his way up to a position of foreman by the late 1980’s. In the course of a subsequent re-organisation, his foreman’s position was abolished and he re-trained and returned to work as a linesman.
The plaintiff retired in February 2006 at the age of 54 years and 11 months.
Medical History
The plaintiff suffered from thrombosis in 1997 for which he was treated with Warfarin, a medication he continues to take.
In July 2000, he went to his general practitioner complaining of a back injury in order to obtain a sick leave certificate so that he could join his family on the South Coast during the school holidays. Two weeks later, in July 2000, he in fact suffered a back injury whilst at work. He was treated by Dr. Chandran, neurosurgeon, for low back injury. No surgery was involved.
He returned to work on light duties after rehabilitation with physiotherapy and stretching exercises.
His light work involved two hours of work in an office each day where he attended to necessary paperwork. He then attended on site inspections to check the work to various contractors in order to authorise payment of their claims.
He claimed workers compensation in respect of the injury. His claim was determined by the Administrative Appeals Tribunal in November 2003, when his injury was assessed at 10% of whole person impairment.
About a year after he retired, a friend asked him to take over a courier run, delivering mail for about three hours a day for a short term whilst he was on leave. He did this for six months. At the end of 2007, Mr Wallace suggested to the plaintiff that he work with him on the defendant’s building site at Goodwin Village Homes in Ainslie. He started there in January 2008. By arrangement with the defendant one half of his salary was paid into superannuation.
The plaintiff said his post-retirement work as a courier did not aggravate his back condition. He said he was in reasonable condition because he stretched, cycled and swam and he was aware of his limitations. He said he was able to work as a general labourer on the defendant’s building site from January 2008. This work involved some very heavy tasks, including moving white goods up staircases and into various rooms, jackhammering, mixing concrete, cutting steel and digging trenches. He said he did whatever he was asked to do. He said he was aware of the limits of his back and he had no problems.
The consequences of the accident
The plaintiff said that after his fall he was dazed and he suggested that he might have suffered a momentary loss of consciousness. He stood up and walked to where Mr Wallace was working and told him about the fall. Mr Wallace took him to the first aid room and sat him in a chair while he attended to the grazes on both elbows and noticed the plaintiff’s left wrist was swollen. The plaintiff said that he initially thought that he would be able to continue to work but pain developed in his back, shoulder and especially in his right elbow.
He was still thinking that he could continue his work after resting and completing the incident form. However, Mr Wallace insisted that he go home and his son was telephoned to come and take him home. He said he was unable to straighten his back and his son suggested that he take him to the hospital. He declined and went home to bed. There his condition deteriorated and an ambulance was called. He was taken to hospital where he was admitted overnight and discharged the next day with pain killers and instructions to rest.
X-Rays and ultrasounds were undertaken that established that there had been no fractures.
After a week he went to his general practitioner, Dr. Yeung. He said by that stage he was virtually immobilised by back pain. He also had serious pain in his right arm and was unable to extend his wrist.
His left wrist presented no long term problem.
He continued with pain killing medication and physiotherapy but this did not assist and after further investigation he was referred to Dr. Roberts in July 2009. By this stage he noticed that his pain extended into his right shoulder. Dr. Roberts treated him with Cortisone injection into the right elbow after which he obtained relief for two to three days only.
In September 2009, Dr. Roberts conducted an MRI arthrogram of the right shoulder followed by another Cortisone injection. Again this provided no relief.
In December 2009 Dr. Roberts performed surgery on the plaintiff’s right shoulder after which it was immobilised in a sling for 12 weeks.
The plaintiff was then treated with physiotherapy and hydrotherapy and he said that over four to six weeks he recovered some movement. He claimed that he had never recovered full movement and that the shoulder continued to click and grab. He complained that he still had difficulty with his personal hygiene because of the restrictions in movement of the right shoulder.
The plaintiff had surgery on his right elbow on 30 November 2010. At the same time the surgeon performed a release of pressure on the carpal tunnel in the right wrist. His arm was once more immobilised, this time in a plaster cast for four to six weeks, followed by a sling for two weeks. There was further physiotherapy for four weeks to allow him to recover some movement in his right elbow joint. He complained of continued pain and restricted range of movement.
Physiotherapy and hydrotherapy were ceased when the insurance company decided that they were no longer of benefit to him. The plaintiff said that he paid for some treatment himself but he was unable to afford the $100 that it cost for each session.
The plaintiff said that his back had not improved from the time of the accident and that he suffered from chronic low back pain. He said that this was worse walking up stairs or on uneven ground, and when he twisted, turned or bent.
Prior to the accident he had enjoyed some recreational activities, cycling, swimming and jogging. He said that he had not been able to undertake any of those activities as a result of his injuries.
His current plan was to concentrate on rehabilitation and the maintenance of his health. The plaintiff complained of mood swings and frustration arising out of his situation. He said his general practitioner, Dr. Yeung suggested that he consult a psychiatrist, but he rejected this proposition.
CREDIT
The main area of dispute between the parties arose out of the plaintiff’s claim of significant disability both as a result of the re-injury of his back and in the use of his right arm.
The defendant relied on various aspects, including the prior history of the Telstra work related injury, evidence contained on DVD recordings of the plaintiff’s activities, an incident involving the return of a jackhammer belonging to the defendant and the plaintiff’s assessment by various medical experts on presentation for examination.
Assessment of this part of his claim was particularly significant in determining the extent to which I accepted the plaintiff’s claims for loss of income earning capacity and for personal care and domestic assistance.
The DVD recordings
The defendant provided evidence of recordings made on DVDs of various activities of the plaintiff. The most significant of those recordings was the time spent on 28 June 2011 unloading a trailer at his home. In that recording the plaintiff was seen walking from the trailer to his garage and back carrying pieces of light weight plywood that was the product of a dismantled cabinet that he intended to use for firewood.
He used his right arm for the purpose of carrying much of this timber, taking only small quantities each time. He also was seen bending over the trailer, without apparent restriction, in order to lift the light pieces of timber and carry them into his garage.
The recording made on 1 March 2012 showed the plaintiff shopping with his wife. He carried a box that was clearly of little weight in his left hand and arm and he walked slowly, on one occasion resting, while his wife continued shopping. He used a ramp in the shopping centre rather than steps.
I considered that the evidence on the DVD recordings was of little probative value. On 28 June 2011, the plaintiff was seen undertaking activities that, on the impression created by his evidence to the court, he ought not to have been able to manage. The activity recorded on 1 March 2012 was consistent with his claims of incapacity.
The jackhammer incident
The defendant referred to an incident occurring in November 2010 in which Mr Wallace, with another employee of the defendant, Mr Michael Burke, went to the plaintiff’s home to retrieve a jackhammer belonging to the defendant.
The plaintiff agreed that since the accident improvements had been made to his property, including the construction of a fence and a deck pergola and shed. He said that he had not participated in any of this work and that he had provided supervision only.
The defendant alleged that, whilst Mr Wallace and Mr Burke looked on, the plaintiff used the jackhammer before returning it to Mr Wallace and that the plaintiff carried part of the jackhammer from his back garden to Mr Wallace’s vehicle.
The plaintiff agreed that the jackhammer was used for the purpose of constructing a colour bond fence around his garden. He said the work on the fence was undertaken by his sons with the assistance of various friends, including Mr Wallace.
The plaintiff denied that he used the jackhammer himself. Mr Wallace gave evidence that the plaintiff did not use the hammer at the time he came to collect it. The plaintiff’s son, Jason Smith also said he was present at the time the jackhammer was collected and that the plaintiff did not use it.
This evidence was in conflict with that of Mr Burke. He said he witnessed the plaintiff use the jackhammer for the purpose of completing the breaking up of soil in a hole in the garden. He also said that he saw the plaintiff carry part of the jackhammer to Mr Wallace’s vehicle.
I considered that the evidence of this incident was also inconclusive. There was direct conflict in the evidence of Mr Wallace and Mr Burke. I was unable to decide which of Mr Wallace and Mr Burke was to be accepted. Both appeared to be doing their best in giving their evidence, both appeared to have reason to give evidence of the differing versions of events: Mr Wallace, because of loyalty to his friend; Mr Burke, because of loyalty to his employer.
I decided that in these circumstances, this incident could not be taken into account.
The claimed back injury
Of more significance was the medical evidence that involved the false claim of back injury made in July 2000 and the recovery from what was determined to be a 10% whole person impairment by reason of the back injury. I also looked carefully at the evidence of inconsistency in the plaintiff’s presentation.
Dr Yeung told the Court that on 10 July 2000, he examined the plaintiff and recorded decreased range of movement in his lower back in all directions, together with tenderness on the right side of the back. It was apparent that on that occasion, the plaintiff was able to act out symptoms that persuaded Dr Yeung that he suffered a genuine back injury.
The plaintiff reported to Dr. Wearne in October 2002 that, as result of the injury suffered later in July 2002 while working for Telstra, he suffered constant low back pain with reduced tolerances for sitting, standing, walking, bending, lifting, carrying and heavy pushing and pulling as well as frustration causing irritability.
He agreed that he made the same complaints to the Administrative Appeals Tribunal in the course of his workers compensation proceedings in 2003.
He said he continued to suffer from those symptoms until he retired in February 2006 when over a period of 13 months he focussed on his fitness, swimming and doing exercises and stretches as instructed. He said he was able to bend with care and his back condition stabilised.
The plaintiff said that when he fell it triggered and inflamed his symptoms. He agreed that he was now complaining of reduced tolerances for sitting, standing, bending, lifting and carrying, as he had at the time of the injury that he suffered while working for Telstra, but he said there was a great deal of difference in his condition now and as it was much worse than in 2002.
Dr Stubbs reported significant inconsistencies in the plaintiff’s presentation when he examined him in March 2010 and April 2011. Dr Burke also referred to pain behaviour and inconsistency on examination in May 2011. Dr Cairns, in November 2011, reported that it was possible that there was some exaggeration by the plaintiff.
My conclusion was that there was evidence of maximisation by the plaintiff of the extent to which he was disabled as a result of the injuries he suffered in the accident. This conclusion particularly affected the complaint of chronic back pain. There was no evidence of any frank injury to the back. Dr Ashman reported that an MRI scan showed minor degenerative changes. He diagnosed an aggravation of those changes and soft tissue injury. Dr Ashman clearly expected recovery, although he said it might be many months before recovery was complete.
I found therefore that the plaintiff’s complaints of chronic ongoing back pain and disability were exaggerated and that it was likely that with appropriate care, as in the case of the work related injury that he suffered in 2000, the plaintiff would once more substantially recover.
ASSESSMENT
General Damages
No medical expert disputed that the plaintiff suffered injury to his right shoulder and right elbow as a result of the accident and that the surgery performed by Dr Roberts was a necessary consequence of those injuries. The defendant disputed the extent to which those injuries resulted in the plaintiff’s incapacity.
In his final report of 6 April 2011 Dr Roberts said that the plaintiff had improved, although he noticed that there was continuing shoulder pain and irritation and restricted range of movement in both the shoulder and the elbow. He concluded:
Overall, he has had a very major injury with the significant trauma and he has had pain in the shoulder, elbow, wrist and hand. It has been very major surgery and he is recovering slowly. He is continuing to improve, although it is going to be some time before he plateaus, and I believe there will be some long term disability.
I accepted this report as independent, objective evidence that supported the plaintiff’s claims concerning his right upper limb.
I therefore assessed the plaintiff’s claim for general damages on the basis that he suffered an aggravation of pre-existing minor degenerative changes in his lower back and that he suffered injury to his right upper limb that, because he is right hand dominant, was likely to be a source of significant ongoing incapacity. I assessed his general damages at $110,000. Interest was allowed on $50,000 for past pain and suffering in the sum of $3,250.
Loss of Income Earning Capacity
The plaintiff said that he would not be able to return to the type of work that he was doing when he was employed at Telstra because this required the physical capacity to work in confined spaces.
He denied that he could work as a courier because this involved carrying parcels and getting into and out of cars. He agreed that he preferred to drive his Toyota Rav because this allowed him easier access to and from the car.
The plaintiff said that realistically he considered himself to be unemployable. At the time of the accident he had planned to work to the age of 67.
The plaintiff was offered a rehabilitation service through ProACT in 2011. He attended at the offices of ProACT for assessment. He denied that any physical assessment was undertaken. He said that he provided answers to questions and that his answers were entered into a computer from which an assessment was printed. He said that he was not told that he was assessed as capable of employment as a traffic controller or delivery driver.
He agreed that he met with Mr Ware from ProACT and Dr. Yeung and that they discussed jobs that were suitable for him. He said that he could not do any of them. He said that as a traffic controller he would not be able to stand all day.
He denied that he said that he was proposing to resolve everything in the course of his Supreme Court proceedings, during the “Blitz”. He said he thanked Mr Ware for the offer to leave open the opportunity for vocational rehabilitation. He denied that he told Mr Ware to forget it.
He agreed that he had not tried to return to work, saying:
I haven’t tried. I know I can’t work. I have explained that before. My body will not accept the work. (Transcript 52.7)
The plaintiff said that he would take up the offer from ProACT when he felt capable of working and that he would look for work when he obtained clearance from his doctor.
All of the medical experts accepted that the plaintiff could not return to his work as a general builder’s labourer. Dr Stubbs and Dr Burke were of the opinion that the plaintiff had a residual earning capacity for light work. Dr Yeung, Dr Le Leu and Dr Cairns agreed that the plaintiff was permanently incapacitated for work for which he was suited by reason of his education, experience and training.
The plaintiff claimed compensation on the basis that he was totally incapacitated for employment. He claimed full loss for the past and, for the future, a loss discounted by 25%, to take account of the contingency that he might find suitable employment.
It was unfortunate that the plaintiff had made no attempt to find work and that there was no evidence of the reaction of prospective employers to his applications for employment against the background of continued incapacity in his dominant upper limb.
Notwithstanding the absence of this evidence, I considered that, realistically, his prospects of securing employment, at his age and with his disability, were minimal and I accepted that the proposed discount of 25% was appropriate. I therefore allowed the plaintiff’s claims for loss of earning capacity, as set out in his schedule of damages (Exhibit K).
I allowed the claims for interest on past income loss, superannuation and the Fox v Wood component as set out in the schedule.
Personal and Domestic Care
The plaintiff said that since the accident, he had been unable to attend to his normal domestic activities and he was assisted in these by his family, his sons or friends. He said he formerly attended to all domestic maintenance tasks which he could no longer do. He formerly assisted his wife with housework but now did very little. He could no longer vacuum clean, fold sheets or make beds. He agreed that he cooked on the barbeque and that he put washing in a washing machine. He said he did not remove the washing when it was wet. He said he occasionally shopped with his wife and, if they had a trolley, he leaned on it for support. He denied that he could undertake lawn mowing.
It was clear that there were two periods when the plaintiff was substantially disabled. The first was in December 2009 after shoulder surgery when he was placed in a sling for twelve weeks with subsequent rehabilitation. The second was in November 2010 after the surgery on his elbow and right wrist, when for a further period of four to six weeks he was in a cast followed by a sling and followed by further rehabilitation.
Mrs Smith gave evidence that during those periods she assisted the plaintiff with both his personal care and his domestic needs.
The plaintiff made a significant claim for personal and domestic care based upon the assessment of Ms Swaby, Occupational Therapist, dated 23 September 2011.
I rejected Ms Swaby’s assessment for three reasons. I considered she was misled as to the true extent of the plaintiff’s disability. I also considered that she overstated his need for assistance. Further, Ms Swaby’s assessment was contrary to that of Dr Le Leu, a qualified occupational physician, also undertaken in September 2011. He assessed the plaintiff’s need at 3.5 hours per week.
I accepted that the plaintiff required a considerable amount of assistance after surgery in 2009 and 2010 and for a limited period immediately after the accident. I did not accept that in any of those periods the plaintiff required 23.5 hours of care per week as proposed by Ms Swaby.
I calculated those weeks to amount to 30 weeks, and I allowed 10 hours per week for those periods. For the remainder of the period to the date of the hearing I considered that the plaintiff had a measure of self sufficiency, such that the assessment made by Ms Swaby ranging from 9.5 to 20 hours per week was overstated.
I considered that Dr Le Leu’s assessment of 2 hours a week for housework and one to 2 hours for gardening and handyman work was reasonable, and I allowed it therefore at an average of 3.5 hours per week.
I similarly considered that an allowance of 3.5 hours per week for the future would be reasonable. I took into account Dr Le Leu’s suggestion that the plaintiff’s condition might deteriorate but I considered that this should be balanced against the plaintiff’s likely future needs as he advanced in age. On this basis I have applied no discount for contingencies.
The plaintiff claimed compensation for care at commercial rates, including the rate of an assistant in nursing to undertake tasks such as shopping and transportation. To date all assistance provided to the plaintiff has been voluntary and there was no evidence that he intended to retain the services of commercial care providers. Further, the evidence did not support the contention that nursing assistance was required. Applying the principle that damages are to be assessed on a compensatory basis, I adopted the generally accepted rate for the provision of personal and domestic care of $25 per hour.
The allowance made for care is therefore calculated as follows:
For the past: 23 weeks at 10 hours per week - $8,500;
146 weeks at 3.5 hours per week - $12,775;
For the future: $78,488.
Out of Pocket Expenses
Out of pocket expenses for the past were agreed in the sum of $66,713. The plaintiff claimed $40 per week, or $25,000, to meet his future medical needs. This was based on the expenses incurred in the past. There was little evidence of the plaintiff’s ongoing needs. Dr Le Leu suggested an allowance for occasional physiotherapy, hydrotherapy or massage and the plaintiff said that he continued to take painkilling medication, some of which required consultation with his general practitioner for a prescription. On this basis I considered that his claim was reasonable and it was allowed.
Summary
| General Damages | $110,000 |
| Interest | 3,250 |
| Past income loss | 182, 223 |
| Interest | 12,745 |
| Future Income Loss | 234,000 |
| Superannuation | 37,460 |
| Fox v Wood | 35,000 |
| Past personal and domestic care | 21,275 |
| Interest | 4,707 |
| Future personal and domestic care | 78,488 |
| Past out of pocket expenses | 66,713 |
| Future out of pocket expenses | 25,000 |
| TOTAL | $810,861 |
ORDERS
Verdict and judgment for the plaintiff in the sum of $810,861.
The defendant is to pay the plaintiff’s costs on an ordinary basis as agreed or assessed. This order is suspended for seven days to allow the parties to list the matter for further argument on the issue of costs.
The exhibits are returned.
My reasons are published.
I certify that the preceding ninety-four (94) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Justice Sidis
Associate: Kayla Martin
Date: 2 July 2012
Counsel for the Plaintiff: R L Crowe SC
Solicitor for the Plaintiff: Maurice Blackburn Lawyers
Counsel for the Defendant: S H Pilkington
Solicitor for the Defendant: DibbsBarker Lawyers
Date of hearing: 25-27 June 2012
Date of judgment: 2 July 2012
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