Smith v National Foods Milk Limited
[2005] TASSC 109
•10 November 2005
[2005] TASSC 109
CITATION: Smith v National Foods Milk Limited [2005] TASSC 109
PARTIES: SMITH, Roger
v
NATIONAL FOODS MILK LIMITED
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: 262/2002
DELIVERED ON: 10 November 2005
DELIVERED AT: Hobart
HEARING DATE: 26 - 29 July, 1 and 2 August 2005
JUDGMENT OF: Hill AJ
CATCHWORDS:
Employment Law - The contract of service and rights, duties and liabilities as between employer and employee - Liability of employer for injury to employee at common law - Safe system of work – Generally - Forseeability of risk of injury due to inadvertence or misjudgment.
Aust Dig Employment Law [32]
Employment Law - The contract of service and rights, duties and liabilities as between employer and employee - Liability of employer for injury to employee at common law - Contributory negligence - Apportionment of responsibility.
Aust Dig Employment Law [38]
Damages – Measure and remoteness of damages in actions for tort – Remoteness and causation – Foreseeability of damage – Personal injuries.
Aust Dig Damages [20]
Damages – Measure and remoteness of damages in actions for tort – Measure of damages – Personal injuries – Loss of earnings and earning capacity.
Aust Dig Damages [39-46]
Workplace Health and Safety Act 1995 (Tas), s9.
Workplace Health and Safety Regulations1998 (Tas), reg65.
Wyong Shire Council v Shirt (1980) 146 CLR 40; Stokes v Blueline Laundry Inc 114/1998; Cadbury Schweppes Pty Ltd v Belbin 25/1981; Menzie v Les Walkden Enterprises Pty Ltd [2000] TASSC 150; South v James Loughran & Sons Pty Ltd & Ors [2003] TASSC 59; Abalos v Australian Postal Commission (1990) 171 CLR 167, followed.
Barnes v Hay (1988) 12 NSWLR 337; Crowden v Pickands Mather and Co International trading as Savage River Mines B32/1996; Eaves v Huon Valley Council 66/1998; Ramsay v Watson (1961) 108 CLR 642, referred to.
REPRESENTATION:
Counsel:
Plaintiff: S Taglieri
Defendant: K E Read
Solicitors:
Plaintiff: Phillips Taglieri
Defendant: Murdoch Clarke
Judgment Number: [2005] TASSC 109
Number of paragraphs: 134
Serial No 109/2005
File No 262/2002
ROGER SMITH v NATIONAL FOODS MILK LIMITED
REASONS FOR JUDGMENT HILL AJ
10 November 2005
The plaintiff
The plaintiff was born on 17 June 1972. At the time of the trial, he was 33 years of age. He had lived in Kingston nearly all his life. He played sport there and all his friends live in that area. He attended Kingston Primary School and thereafter Taroona High School but "wasn't interested" in school. He went to Hobart College and completed year 11 and a month of year 12 and then left "because I'd just rather work".
From about years 9 or 10, he had been working three days a week at the Purity Supermarket in Kingston "pretty much just packing, packing orders for customers and pushing trolleys".
He was, as he described, "just one of those kids that just did everything that was up and around, so I played football outside school. Just pretty active."
He said that he played Under 17 football at Kingston and then went to Sandy Bay and played there for a year, but returned to Kingston as he missed his friends.
He also played basketball and baseball. While he was still working at Purity, he obtained a casual full-time position at the Tiger Superbarn supermarket where he stayed for 2½ years. He said that his work progressed to the taking of orders, serving customers and performing computer work. When the proprietors of that business were away, he said he was left in charge. He eventually left that work due to a disagreement with them and worked in a number of part-time capacities at fish factories, Chancellor's Wine and Spirit Merchants and did some part-time driving for a plumber who had lost his licence. All the work he was involved in at this time was casual. He also spent some time at a service station in the city.
On 7 October 1996, he commenced employment with the defendant as a "forklift driver". He obtained a position there through the Commonwealth Employment Service. The employee records in evidence state his position as a "dairy worker casual".
He was upgraded to a temporary from 22 July 1999 and eventually a full-time employee, effective from 5 August 1999. He said his work progressed from working at the crate ramp to packing orders, to driving forklift trucks.
Training
The plaintiff said that his job involved "on the job" training and he reached levels of competence in the operation of various machines on the defendant's premises. He said that he was not given instructions in respect of general safety matters, except being told to remove all jewellery and wear protective boots when in the factory. More particularly, he said he was not given any instructions on occupational health and safety matters, nor safe manual handling techniques. He was shown no videos relating to those topics and specifically he said that he had received no training in manual handling methods or occupational health and safety generally.
He was not instructed how to manually handle crates, nor was he warned in relation to risks of injury that might arise from such handling.
The defendant operated a business which counsel for the plaintiff referred to as "the milk factory" at Lenah Valley. The parties and I had a view of the premises during the course of the trial.
The plaintiff's duties
When he commenced employment, the plaintiff was cleaning and stacking milk crates, putting rubbish in bags for collection and carrying out the duties I have referred to above. He also had loading duties inside the factory. He was at times required to load and unload containers in the course of his employment.
He described his health prior to the accident as very good, although he had had some tightness in his back for a month or two prior to the accident. He had sustained some sporting injuries to his knee and ankle during his footballing days, but said he had recovered from them. The evidence also revealed that previously he had had some gastric problems.
The accident
The plaintiff was not scheduled to work on 27 January 2000, but was asked by Mr Richard Stranger, an employee of the defendant, if he was prepared to unload a container of boxes containing caps which was due at the factory on that day. The plaintiff said that he loved working overtime and so he agreed. He had unloaded such containers before. He described how he had done that in the following terms:
"Unloading the containers they'd reverse back, back to that loading dock, but they're all on pallets and they were shrink wrapped, except for the top two boxes where they weren't shrink wrapped, and we used a – you could get the back two out with a fork, but the ones further back in the container were used by a hook which was hooked onto the bottom of the pallet and then strapped to the forklift and you drove the forklift back which drags the pallet to the front or the back of the container, then unhooked it and used the fork to lift it off the container. And the boxes on top were stacked onto another pallet."
On 27 January he was working in the factory when he received a call from Mr Stranger that the container had arrived. He finished what he was doing and took a forklift truck around to the top loading dock. When he got to the dock he took some pallets down to the back of the container upon which to load the boxes. The container was too low to be backed up to the loading bay and was about 2 metres from it. He said he got one pallet ready to unload it and proceeded to the back of the container and opened the right-hand side door when he noticed that the boxes inside were falling out. He shut the door again. He then got the forklift and lifted the pallet up just above the level of the container and hard up against the left-hand side of the door. He climbed onto the pallet. He opened the right-hand side door of the container. He was actually on the pallet and just bent down to open the door because the levers on the door were a bit lower than he was. He undid the door and held it open where he could get in and put his right foot inside the container to hold the door open with his left foot still on the pallet. He reached in to grab the boxes that were falling out. He was working "pretty quick". He put the boxes that he had unloaded on the pallet beside and behind him. He had unloaded about six boxes. The ones closest to the middle of the container were pretty easy, but he had to stretch to get to the ones at the edge of the container. He was leaning in to grab the rest of the boxes which were inside the container. He started to get closer to the bottom of the container when he grabbed one box, and he got about halfway through unloading it when:
"It was like I'd done something. It was like a numb sort of pain. I just didn't know what at first what had happened, you know. I was really sore all over, I couldn't breathe, and pretty much frozen."
At the time he said, "I wasn't actually in one set spot. I was in the motion of moving. So the continuous move through to putting the box onto the pallet."
In a claim later submitted for workers compensation, he described the incident as follows:
"lifting boxes from container to palets [sic], twisting & turning – back pain couldn't move."
The plaintiff felt as though he was going to pass out and he called out to a fellow employee, Mr Webb, who called Mr Stranger. The plaintiff was taken to Calvary Hospital where he was admitted. In cross-examination he said there was no extension of the trailer beyond the container upon which he could stand. He maintained that position when pressed. He said he thought the boxes were stacked two feet from the top of the container. His fellow employee Mr Goodrick said in his experience the containers were usually "jam packed fairly high up", but that is not the evidence of what is alleged to have happened here. Later it was observed the plaintiff had told Mr O'Sullivan that the boxes were packed to about one foot from the top. I do not necessarily see much inconsistency in those pieces of evidence as his original estimate seems to have been given from where he stood on the ground and as he explained, "It was a fair height for me to look straight up from the floor". He thought the box he was handling when he was injured was the third box in the middle of the container and that he was in a "kind of rotation move so I actually kept on going".
He disagreed that his back was straight at the time he was injured and denied the container was packed to the roof. He did not agree that he had enough space to place the carton on the pallet. The plaintiff's evidence is the only evidence of how the boxes were stacked prior to his injury.
The injury
The plaintiff claims he sustained an injury to his lower back in the accident. Mr Read, for the defendant, claimed that the plaintiff suffered only a muscle spasm and his present condition (which I will deal with later) is not as a consequence of the accident. The defendant relies on Dr Bisby's evidence and some alleged deficiencies in the plaintiff's evidence.
The plaintiff gave evidence on this aspect, as did Mr Hunn, a neurosurgeon, and Dr Mackey, the plaintiff's general practitioner. The effect of the evidence of Mr Hunn and Dr Mackey is that the most likely injury sustained by the plaintiff was to his lower back. The plaintiff was taken to Calvary Hospital on the day of the accident and the reports compiled on his admission and subsequent treatment are in evidence (D9). (They show, in my view, notations of) the following:
· some (leg) foot numbness;
· tenderness T9/10;
· sudden onset of sharp pain in posterior flanks;
· pain specifically to centre of back;
· severe pain at level of T8 laterally not medial (ambulatory).
The plaintiff said the pain just seemed to be "everywhere". He said he recalled numbness in his left foot (the records suggest his right). He agreed that the pain he complained of came from twisting and that it was in the middle of his back as demonstrated in various pain drawings which have been tendered in evidence.
He denied he had not fully co-operated with examining doctors when admitted a short time after his initial discharge. Mr Hunn saw the plaintiff on 15 February 2000 in the absence of his colleague, Dr Erasmus. The plaintiff had had an MRI scan on 27 January, the conclusion of which is a "mild broad based disc bulge at L4/5 disc level with moderate stenosis of the neural exit foramen bilaterally".
Dr Erasmus had seen the plaintiff in hospital. In his evidence Mr Hunn interpreted notes made by Dr Erasmus as follows:
"Neurosurgery: employ at dairy. Injury at work on 27/1/2000, lifting milk crates and felt severe sudden pain in leg with numbness in right leg. No previous back injury. Past history of gascroscopy, gastritis. Examination. No neuro deficits. Lower limbs Pain and tenderness to palpation over lumbar spine and straight leg raising positive, forty five degrees left and right. MRI shows disbulge [sic] at L 4-5, no nerve root compression, conservative management."
He concluded by noting pain and tenderness to palpation over lumbar spine. Straight leg raising was positive.
Mr Hunn said that his opinion on the information available to him was:
"The most likely problem was an injury at the L4/5 level involving either the disc or possibly the facet joints."
Mr Hunn saw the plaintiff again on 2 March. He said the plaintiff's condition was a continuation of the original injury that he had seen. He was asked whether he was satisfied that the plaintiff suffered an injury to his spine on 27 January 2000 and he said:
"I am satisfied, I think that as you would be aware the basis of these conclusions are upon the history and examination findings and to some extent on the imaging. I don't find anything in the presentation and the history and examination of findings the imaging that is inconsistent with this having been an injury as described."
It was suggested to Mr Hunn that the plaintiff had an underlying problem and the incident of 27 January was a trivial one, and his opinion was:
"I am not confident to call it a trivial incident, I think that it was – the description that I have causes me to think that there was an at risk activity happening and that there was an underlying vulnerability in the disc which made him vulnerable to injury. Unfortunately it has to be recognised that not all injuries to the back occur in the context of what we would generally recognise as major stress, sometimes what appears to be a relatively innocuous activity can just have the wrong balance of stressors and cause it."
The plaintiff consulted Dr Mackey in May 2000, complaining of low and mid-back pain. He found, on examination, widespread muscle spasm in the plaintiff's back, being symptomatic at more than one area in his spine. He described the history of the accident as given to him by the plaintiff in the following terms:
"Basically he was – the boxes which were behind him started to fall and he twisted to try and stop them falling and that was the – it was the twisting movement and the sudden movement that actually caused his disc problem."
He was asked by the plaintiff's counsel, "Now were you satisfied that the descriptions he'd given you about the unloading of the boxes matched consistently with the presentation and complaints of symptoms when you saw him?" He answered, "Yes I thought they were consistent".
In cross-examination he accepted the first mention of lower back pain by the plaintiff was on 3 February, but he disagreed that in those circumstances the plaintiff had not suffered an L4/5 disc prolapse on 27 January. He explained in the following terms:
"Basically when people experience pain they experience most severe pain. So at the time I suspect his most severe pain was his thoracic spine but I wouldn't discount that someone that has had a major injury with his fall and things is getting severe pain in his thoracic spine but still getting a problem with his low back as well"
He was pressed further:
"But Doctor all of the hospital history tells strongly against that opinion (ie a disc injury) doesn't it?" … "It doesn't".
Dr Mackey has seen the plaintiff on an ongoing basis since that time, performing laser acupuncture, arranging physiotherapy and an exercise program, and he was involved in the plaintiff's return to work program.
During that period (five years) Dr Mackey said that the plaintiff had pain continually in his lower back.
Dr John Bisby, a registered specialist in occupational medicine, gave evidence for the defendant. He examined the plaintiff on 1 August 2002, over 18 months after the accident. He noted that the plaintiff got on to the examining couch without having to use steps and concluded:
"… at the end of the examination that he was in good physical health and state of fitness and with a normal range of movement and the failure to use the steps to get on the couch to me was a cardinal indication that that opinion was correct."
The plaintiff had localised the pain to be in the middle line above his belt at around about lumbar 1/2 segment, but not lower, Dr Bisby noted.
He concluded that on the day of the accident, the plaintiff had a muscle spasm in the thoracic upper torso area. In cross-examination, he agreed that the MRI scan, in particular, showed there were some changes noted in the plaintiff's lower back which may or may not have been relevant to the upper thoracic symptoms he had on the day prior to the accident. Dr Bisby said he did not think the plaintiff was co-operating in his examination. He said he went on to inspect the premises following his examination of the plaintiff, and that he required further information in relation to where the container was placed on the truck and a number of other aspects, but that information was never supplied to him. In particular, he wanted to know the height of the top layer of the boxes when it was on the truck.
Having seen and heard the witnesses, I prefer the evidence of Mr Hunn and Dr Mackey, both of whom examined the plaintiff relatively soon after the accident. Both Mr Hunn and Dr Mackey are of the opinion the plaintiff suffered an injury to his lower back on 27 January. I accept Mr Hunn's assessment of the hospital records. Dr Bisby did not see the plaintiff for some 18 months following the accident, and then for a relatively short period. I had some concerns over his evidence of the failure to use the steps in the course of his examination. It seems he was also lacking in some relevant information upon which to base his conclusions.
I observed the plaintiff give evidence over a number of days and I found his evidence satisfactory and acceptable, however, I think he was mistaken as to the area of his leg numbness. Despite that I accept his evidence.
I am satisfied, on the balance of probabilities, that the plaintiff suffered a lower back injury to the L4/5 level of his spine as claimed on 27 January 2000. The precise nature of the injury, in the opinion of Mr Hunn, which I accept, seems to involve either the discs or possibly the facet joints. I prefer Mr Hunn's evidence to Dr Mackey's in relation to that assessment.
Subsequent events
On 15 June 2002, the plaintiff was involved in a motor vehicle accident. He said he did not recall much about it. He described his injuries as:
"I just had a little bit of glass in my head and things like that but I was pretty sore after because I was pretty much bedridden, laying on my back and I couldn't move and I had a neck brace on and I was pretty sore for a while after it."
He was hospitalised for two days and was off work at the time. Dr Mackey described the plaintiff's injuries as follows:
"Basically as a result of his injury, he suffered a whiplash injury, and was complaining of headaches and neck pain but he did have some bruising on his abdomen, knees and arms. His neck pain because it was mainly muscular actually settled down quite quickly with some acupuncture with the laser."
In cross-examination the plaintiff said he had no memory of the accident. He said he wore a neck brace for a while and had some headaches.
Mr Hunn's view was "… I felt that the motor vehicle accident itself had not had any permanent sequelae with respect to his back condition".
Accepting that evidence, in my view the motor vehicle accident had no lasting effect on the plaintiff's condition. I accept the evidence of Mr Hunn and Dr Mackey in that regard. There was no evidence to the contrary.
Following the accident, the plaintiff embarked on a return to work program which ultimately failed. He underwent physiotherapy and a gymnasium program, and by October 2001 he was at work completing almost his full duties. He had, however, in the opinion of Dr Mackey which I accept, not fully recovered.
The plaintiff agreed that as at 2 October 2001, his recovery came to a halt. He felt pain in his back on that day and could only work for a small period the following day. He denied injuring himself at the gym and there is no evidence that he did.
Dr Mackey put this setback in the plaintiff's improvement down to him doing some forklift driving at work the previous day on an uneven surface. After this, the plaintiff's return to work program was, in the main, unfortunately unsuccessful, and ultimately in July 2003, it ceased.
I am satisfied on the balance of probabilities that the incident of October 2001 was not a fresh injury, but a recurrence of the original injury of January 2000.
The plaintiff agreed he went on a fishing trip to St Helens with friends at the beginning of 2002. He said they went out in a boat for about an hour and a half but returned to shore as it was too rough. The morning after his return home his back was "really bad". He agreed he did little work after that trip. There is no medical evidence of a fresh injury being suffered by the plaintiff on this trip.
Was the defendant in breach of its duty of care?
The action against the defendant is pleaded on three bases:
1 breach of duty of care;
2 breach of a contractual duty of care;
3 breach of a statutory duty of care.
Paragraph 9 of the statement of claim was amended at the trial in the following terms:
"In the course of unloading the boxes in the manner described in paragraphs 3 – 8 inclusive, the plaintiff suffered injuries, resultant loss and damage."
The particulars of negligence and/or breaches of agreement are set out in the statement of claim in par10 and I set them out hereunder:
"[a] particulars of negligence and/or breaches of agreement
The Defendant, its servants and/or agents were negligent and/or committed breaches of agreement in that it, he or they:
(a)failed to adequately instruct and/or instruct the Plaintiff in relation to safe manual handling techniques;
(b)requested or permitted the boxes not be palletised;
(c)required the Plaintiff to unload the container when the boxes within it were not secure;
(d)required or allowed the Plaintiff to unload the container in the manner in which he did when it knew or ought to have known that the Plaintiff would be exposed to a risk of injury by reason of the fact that the boxes were not secure and likely to fall;
(e)permitted the Plaintiff to unload the container in the manner in which he did when it was unsafe to do so;
(f)failed to provide any or any adequate assistance to the Plaintiff to unload the boxes so it was not necessary for him to hold the container door partly shut and simultaneously unload the boxes;
(g)failed to devise or maintain a safe system of unloading the containers when the loading bay was unable to be used;
(h)failed to ensure the trailer or truck delivering the container was able to be backed up to the loading dock;
(i)failed to comply with provisions of the National Standard for Manual Handling referred to below.
[b] particulars of breach of statutory duty
The Defendant committed breaches of statutory duty in that it, he and/or they:
(a)failed to comply with section 9 of the Workplace Health and Safety Act 1995 in that it, he and/or they failed to ensure so far as was reasonably practicable that the Plaintiff was, while at work, safe from injury and risks to health and in particular it failed to provide and maintain so far as was reasonably practicable:
(i) a safe working environment;
(ii) a safe system of work; and
(iii) it failed to provide information, instruction, training and supervision reasonably necessary to ensure that the Plaintiff was safe from injury and risks to health.
By way of particulars of (i) (ii) and (iii) the Plaintiff repeats paragraphs 10 [A] (a) to (i) inclusive.
(b)Failed to comply with regulation 65 of the Workplace Health and Safety Regulations in that:
(i) it failed to identify the risks that the Plaintiff was exposed to injury by performing the tasks in the manner in which he did;
(ii) it failed to examine and assess the tasks performed by the Plaintiff which were likely to be a risk to the Plaintiff's health and safety;
(iii) it failed to ensure as far as workable that the risks of injury to which the Plaintiff was exposed were controlled."
The breach of the statutory duty is to be found in subpars(a) and (b) of par10 of the statement of claim and I set those out hereunder:
"8The Plaintiff then fully opened the right door of the container and continued to unload boxes from the container. ( as amended at the trial)
9In the course of unloading a box as described in paragraph 8 the Plaintiff suffered injuries, resultant loss and damage."
The duty is admitted in each case.
The claim in negligence
The approach is set out in the following extract from the judgment of Mason J (as he then was) in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47 – 48:
"In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position."
The question is "whether the plaintiff has established on the balance of probabilities, that the defendant's response to that risk of injury was less than would have been the response of a reasonable employer placed in the same situation as the defendant". See Underwood J (as he then was) in Stokes v Blue Line Laundry Inc [1998] TASSC 114.
As Neasey J said in Cadbury Schweppes Pty Ltd v Belbin 25/1981, at 14:
"… if harm of a reasonably foreseeable type or kind occurs by reason of the negligent act, it is not necessary that the precise way in which the harm was caused be foreseeable – Hughes v Lord Advocate [1963] AC 837; Chapman v Hearse, (supra); Wieland v Cyril Lord Carpets Ltd [1969] 3 All ER 1006; Draper v Hodder [1972] 2 QB 556."
McHugh J, in Abalos v Australian Postal Commission (1990) 171 CLR 167 said, at par34:
"The question on the foreseeability issue was not whether the omission to provide proper supervision gave rise to a foreseeable risk of injury. It was whether the conduct of the defendant in requiring the plaintiff to work in this system gave rise to a reasonably foreseeable risk of injury. If it did, the plaintiff was exposed to an unnecessary risk of injury if the injury was reasonably avoidable and in all the circumstances the failure of the defendant to eliminate the risk was unreasonable."
As Underwood J observed in Menzie v Les Walkden Enterprises Pty Ltd [2000] TASSC 150, at par47:
"In the case of experienced and competent employees such as the plaintiff, a prudent employer would realise that such employees might well act in breach of the ordinary safety rules, notwithstanding their knowledge that to do so, exposed them to the risk of injury. Indeed, experience has shown that familiarity with the workplace often leads to a failure to maintain appropriate safety standards."
The plaintiff said that the container was too low to be parked against the loading bay which was inspected on the view I have mentioned. That evidence was not in dispute. He said he told the driver to park it alongside the loading bay. Mr Stranger was present at that time. The driver drove off. The container was left about two metres away from the actual loading bay.
The plaintiff produced a drawing (P25) showing the position of the container and its support legs.
There was no evidence given of the dimensions of the container. The relevant delivery dockets contained a notation "do not palletise", and the effect was that the load of caps being delivered was loose inside the container.
Answers to interrogatories provided by the defendant establish the following:
· The defendant did not give the plaintiff instructions as to the method of unloading the boxes (interrogatory 4).
· The defendant did not inspect the load prior to requiring the plaintiff to unload it (interrogatory 2).
· The defendant had a supervisor available on the premises that day, but that person (Mr Don Grace) was not required to supervise the unloading generally or the plaintiff's activities (interrogatory 9).
· The defendant was not aware of the manner in which the plaintiff was unloading the boxes (interrogatory 10).
· The defendant did not instruct him to alter the manner of his unloading (interrogatory 17).
· Usually trucks loaded with containers are parked against the loading bay (interrogatory 10).
· Subsequently the defendant investigated alternative unloading arrangements and "containers are now only acceptable on site if they are of standard configuration enabling them to back up to the unloading dock" (interrogatory 20).
Although he had unloaded larger boxes which had been loose in the back of a container, the plaintiff was faced with a new situation. He made himself a base upon which to stand. He said, "I just bent down to open the door because the actual levers on the door were a bit lower so I just leaned over and leant down and undid the door, held it open to where I could get in." He then said he put his right foot inside the container to hold the door open and his left foot was on the pallet. There were no witnesses to this accident. The plaintiff said the container was right up against the end of the trailer. Mr Webb, who came along after the accident, disagreed. He said there was about half a pallet's length of trailer sticking out from the container. It was put to him in cross-examination that he was mistaken about that and he said, "my memory there was. Like yeah it's like half a pallet's worth sort of." He agreed it was a long time ago and said, "Yeah – yeah you kill a lot of brain cells in that time."
Mr Webb completed the job following the plaintiff being unable to continue. In cross-examination, Mr Webb said he had performed this task on prior occasions, but he thought he had had help on those occasions. He agreed in cross-examination that when he arrived the forklift and the pallet were down on the ground. He agreed that the incident occurred a long time ago. A number of times he made reference to these incidents occurring a long time ago. When questioned on his previous experience unloading such containers he said, "I think I had help", and on his experience with boxes on pallets he said, "On pallets no. Probably on the back of a truck, they probably came in loosely on the back of a truck when they needed quick caps in pretty quickly", and conceded, "yeah I can't remember that far back sorry".
At the end of his evidence I must say I had some concerns about his recollection of detail. I think Mr Webb is mistaken as to the trailer extending beyond the container.
Having seen and heard the witnesses in this case, I prefer the evidence of the plaintiff and accept that the container was up against the end of the trailer and that he had nowhere on the back of the container to stand.
Mr O'Sullivan gave evidence. He is an ergonomist and safety consultant. He detailed the factors relevant to the risk of injury in this manual handling exercise as:
"… generally including movements, postures, the speed of movement, the frequency of actions, the weight but more so the moment of force, where the weight is in relation to the body, the bulky size or nature of the load, the ease of gripping, the surfaces underfoot, the available space for movement, these are typically the more common factors."
Mr O'Sullivan divided the incident into two phases. The first was when the plaintiff was holding the door open with his foot and grabbing the top carton. The second was when he let the door swing open and put a foot onto the container edge and one onto the pallet. He said that in both phases he was concerned about the twisting, the bending and the combination of the two and the side bending of the trunk. He said there was a risk involved because of the twisting and the range of twisting. He said twisting to the extreme was a particular issue and that you have a combination of twisting, bending and side bending of the trunk which is of concern.
Manual handling is defined in the National Standard and National Code of Practice which was tendered (P15) as follows:
"Means any activity requiring the use of force exerted by a person to lift, lower, push, pull, carry or otherwise move, hold or restrain any animate or inanimate object."
He was asked, in his opinion, was it safe for the plaintiff to manually handle the cartons that were in evidence in the manner that he had described and he answered "No". He was also concerned about the nature of the surface upon which the plaintiff was standing and said:
"Any surface that's slippery, uneven or of such a nature that it constricts your feet movement can have an impact – a big impact on lifting if – in this case, for example, turning from one side right around to the other, if your feet can't move it'll be more twisting and that would be a significant increase in twisting."
The plaintiff gave evidence that he was in a position where he could not move either foot to give him more flexibility. The posture that he adopted was awkward and unsafe giving him a very limited range of movement in which to complete the task. He was required to rotate his spine from a position more or less straight in front of him, down and to his side.
Mr O'Sullivan did not agree that the activity in which the plaintiff was involved on the day of the accident was a safe manual handling activity. In cross-examination he said that the closer one can hold the load to one's body, the better. He agreed that the more stable the load, the better. He was asked:
"And the level of commonsense that those people display is also important?"
to which he answered:
"Well, in safety circles there's no such thing as commonsense."
The NIOHS Guide was referred to in evidence, but Mr O'Sullivan's view was that to try and reduce situations to mathematical equations was always going to be difficult and I formed the view that he did not put a lot of emphasis on that guide in the formulation of his opinion.
The plaintiff denied going to training courses but admitted that he knew that supervisors would have been in and around the defendant's premises. He said in cross-examination that the course of action that he undertook to unload the boxes was his own choice, that he had done so in the same manner previously without getting a supervisor, that it was common sense, and that he worked it out for himself.
Dr Bisby, in his evidence, had no concern about the lift as he considered that the weight of the boxes was not significant enough to be so concerned, but he was concerned about the plaintiff falling off the pallet.
David Goodrick had worked for the defendant for a number of years. He had not, prior to the plaintiff's accident, received any training in manual handling. He has had such training since the accident. He said he had performed the same task as confronted the plaintiff before, but not very often, and always with assistance. He described his usual process as follows:
"They're jam packed fairly high up and I'm at a height where I can't actually reach the top too so I have actually have to draw out a third one from the top so I can get the two to move. The driver has the same difficulty and together we just sort of make them lean forward and sort of catch the top two and we just lower them gently to the ground until you get a bit of room and then it gets much easier after that."
He was not aware of any standard operating procedures the defendant has for such tasks. In cross-examination he agreed that the task was not the most physically challenging he had dealt with and that after one had removed the top boxes, the task was fairly easy.
The plaintiff had been required to unload from containers before. As to his previous experience he said:
"Well most of the stuff that I was loading was Pantech stuff from like coming out of the factory into the cool room which I'd laid onto the Pantechs which went up to Launceston and Devonport, and the trucks that come in would be the magnum boxes which are those big boxes, I'd unload them, sugar box – sugar pallets and things like that which gets unloaded up the top dock, loading dock, which is just – you know just on pallets and things like that".
The following exchange is also relevant:
"Now had you before the 27th January 2000, unloaded containers containing boxes of caps? … Yes.
Could you describe to his Honour how you had done that previously? … Yep. Unloading the containers they'd reverse back, back to that loading dock, but they're all on pallets and they were shrink wrapped, except for the top two boxes where they weren't shrink wrapped, and we used a – you could get the back two out with a fork, but the ones further back in the container were used by a hook which was hooked onto the bottom of the pallet and then strapped to the forklift and you drove the forklift back which drags the pallet to the front or the back of the container, then unhooked it and used the fork to lift it off the container. And the boxes on top were stacked onto another pallet.
So prior to your injury on the 27th January 2000, you had unloaded the boxes of caps but it had all been done with a forklift? … Yes."
I accept the plaintiff's evidence about the circumstances of this accident. I found his evidence consistent and acceptable. I am satisfied on the balance of probabilities that there was no extension of the trailer beneath the container upon which he could stand. I accept the submission of the plaintiff that I am to consider the whole system of work and not the moving of one box in isolation. I am quite satisfied that the task undertaken by the plaintiff was one that a reasonable employer in the defendant's position would have foreseen involved a risk of injury to the plaintiff in a number of ways, including the manner in which the plaintiff was injured and also, either by falling off the pallet or being knocked off balance by falling boxes. I am further satisfied on the evidence of the plaintiff that his task involved significant rotation, forward bending and sideways bending of the spine. In the circumstances there was, in my view, a foreseeable risk of him injuring himself in the carrying out of his task, particularly without assistance.
Those risks were obvious and should have been foreseen by the defendant. The evidence shows that the task was usually done with assistance which would, of course, reduce the amount of bending and twisting involved.
In ordering the boxes unpalletised, the defendant knew, or ought to have known, that they would be loose within the container. The usual method of using a forklift truck to deal with the load would not be appropriate in these circumstances. It seems that it was work requiring two men to be involved. To have someone assist the plaintiff, at least initially, to unload sufficient of the boxes to create an area on which to stand on the container to complete the task, would not have been onerous, expensive or inconvenient. The task involved the movement of over 700 boxes and the repetition of movement should have also been considered. The risks were not far-fetched or fanciful ones.
I also accept the plaintiff's submission that the likelihood of the boxes falling, upon the doors being opened, was a foreseeable risk which would necessitate the plaintiff having to adopt an awkward stance and handle the boxes in a confined space and in a manner which would require stretching and bending with extreme rotation of the spine.
Mr O'Sullivan's evidence is important as it focuses attention, I think, on a crucial issue and that is the extent of spinal twisting that was required in the carrying out of the task by the plaintiff. The weight of the boxes, it seems to me, was not the most significant factor. The risk of such a large manual handling task being required would, of course, have been avoided if the boxes had been palletised. There is no evidence why this course was not open to the defendant.
The plaintiff submits the defendant knew it was changing from a system where very little manual handling of the boxes would be required to one where all boxes would require such handling. The plaintiff further submits the defendant had a duty to assess the new task that it was requiring its employees to undertake and, in particular, carry out a risk assessment, identify the risk of injury factor and address them. I accept those submissions.
The defendant had supervision available. In my view a supervisor could have assessed the task and, in particular, the position the plaintiff intended to take up to commence the unloading. It would have been obvious that, at least initially, with little room in which to work properly, the plaintiff would have required some assistance to remove the first of the boxes without having to stand awkwardly and expose himself to risk of injury. It would have been obvious that the container could not have been placed up against the loading bay as was the normal practice.
Turning to the particulars of negligence against the defendant, I find that the plaintiff has established negligence in each of the particulars alleged in par10(a) to (i) inclusive.
The defendant admits its duty of care pursuant to its contract of employment with the plaintiff. I repeat generally what I said in relation to the claim in negligence. I find each of the particulars of breach of agreement against the defendant established.
Breach of statutory duty
The Workplace Health and Safety Act 1995 ("the Act"), s9(1), is as follows:
"(1) An employer must, in respect of each employee employed by the employer, ensure so far as is reasonably practicable that the employee is, while at work, safe from injury and risks to health and, in particular, must ¾
(a)provide and maintain so far as is reasonably practicable ¾
(i) a safe working environment; and
(ii) safe systems of work; and
(iii) plant and substances in a safe condition; and
(b)provide facilities of a prescribed kind for the welfare of employees at any workplace that is under the control or management of the employer; and
(c)provide any information, instruction, training and supervision reasonably necessary to ensure that each employee is safe from injury and risks to health.
Penalty:
In the case of ¾
(a) a body corporate, a fine not exceeding 1 500 penalty units; or
(b) a natural person, a fine not exceeding 500 penalty units."
The Workplace Health and Safety Regulations 1998, reg65, provides as follows:
"In addition to the hazard identification, risk assessment and control of risk requirements of Division 1 of Part 3, an accountable person in a workplace must take all reasonable steps to ensure that the National Standard for Manual Handling, issued by Worksafe Australia, is complied with in the workplace.
Penalty:
Level 3."
Underwood J said in Menzie v Les Walkden Enterprises Pty Ltd (supra) at par51:
"The requirement imposed by the Act, s9(1)(a) is governed by the words 'so far as is reasonably practicable' and is a statutory expression of the duty of an employer imposed by the common law. The Act, s9(1)(c) imposes an obligation to provide instruction, training and so forth that is reasonably necessary. Thus, the latter statutory obligation is unfettered by what is reasonably practicable, ie, the competing considerations expressed by Mason J in Wyong Shire Council v Shirt (supra). However, upon the facts of this case, those competing considerations are of no significance and I see no real distinction between the conditions for liability to pay damages imposed by the statute and those imposed by the common law."
The evidence establishes that the plaintiff received no training in manual handling. This type of activity was not uncommon on the defendant's premises. There is no evidence that such training was difficult or expensive to provide. The National Standard applies to the defendant's operation of its workplace. The evidence of Mr Goodrick was also that no such training was provided and his evidence was not challenged on that point. I find particular (a)(iii) proved. I also find particular (b)(i), (ii) and (iii) proved for the reasons mentioned above.
Contributory negligence
The defendant says the plaintiff was contributorily negligent in that he:
"10If the plaintiff was injured as alleged (which is denied), then such injury was caused or contributed to by the Plaintiff's own negligence.
particulars of contributory negligence
The Plaintiff was negligent in that:-
(a) attempted to unload the boxes when he knew or ought to have known that doing so may place him at risk of injury;
(b) failed to report the instability of the boxes to the Defendant prior to attempting to unload the boxes;
(c) failed to seek assistance from the servants, agents or employees of the Defendant prior to attempting to unload the boxes, when he knew or ought to have known that attempting to unload the boxes may place him at risk of injury."
In South v James Loughran & Sons Pty Ltd & Ors [2003] TASSC 59, Evans J said, at pars74, 79 and 80:
"The plaintiff will be held responsible for contributory negligence if he has exposed himself to a risk of injury which might reasonably have been foreseen and avoided and the injury he has suffered is within the class of risk to which he was exposed: Nance v British Columbia Electric Railway Co Ltd [1951] AC 601 at 611; Jones v Livox Quarries Ltd [1952] 2 QB 608 at 615; Froom v Butcher [1976] QB 286 at 291. The test of contributory negligence is an objective one. The plaintiff is held to the standard of care expected of an ordinary reasonable person engaging in the conduct that caused the plaintiff's injury: Joslyn v Berryman; Wentworth Shire Council v Berryman [2003] HCA 34, pars32, 35 and 70.
Insofar as the plaintiff is a worker and one of the defendants stands in the position of his employer, the following paragraph from Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 at 310 is relevant:
'A worker will be guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not act as a reasonable and prudent man, he would expose himself to risk of injury. But 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. The question will be whether, in the circumstances and under the conditions in which he was required to work, the conduct of the worker amounted to mere inadvertence, inattention or misjudgment, or to negligence rendering him responsible in part for the damage'.
…
As to my approach when making an apportionment, I am guided by the following passage from Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492 at 494:
'The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, ie of the degree of departure from the standard of care of the reasonable man (Pennington v Norris (1956) 96 CLR 10, at p 16) and of the relative importance of the acts of the parties in causing the damage: Stapley v Gypsum Mines Ltd (1953) AC 663, at p 682; Smith v McIntyre (1958) Tas SR 36, at pp 42-49 and Broadhurst v Millman (1976) VR 208, at p 219 and cases there cited. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination.'
I am mindful of the need to take a balanced approach to the question of apportionment and am conscious of what was said in Liftronic Pty Ltd v Unver [2001] HCA 24, Gummow and Callinan JJ, par60, as to 'too ready a judicial inclination to absolve people in the work place from the duty that they have to look out for their own safety which will often depend more, or as much, upon their own prudence and compliance with directions, as upon any measures that a careful employer may introduce and seek to maintain'."
The plaintiff had not encountered a situation where the container was not able to be backed up to the loading bay before. In adopting the stance he did, with one foot on the container and one on the pallet, I think he should have been aware of the real risk of injury to which he was subjecting himself. He had no specific instructions to follow but, in my view, in adopting the method he did, and in particular failing to call for assistance before commencing, he exposed himself to a risk of injury which he ought reasonably to have foreseen. That risk included a risk of falling off the pallet or being struck by boxes, in addition to an injury caused in the manner in which it was. In obtaining assistance he would have avoided those risks. There is no evidence that help was not available. I am conscious of his concession in cross-examination that it was just a matter of common sense, but I am also conscious of the evidence of Mr O'Sullivan in that regard, to which I have already referred. I consider the plaintiff's actions went further than a "mere error of judgment" (see John Summers & Sons Ltd v Frost [1955] AC 740 at 777 per Lord Keith of Avonholm).
I find the plaintiff was negligent and I assess his contribution at 20 per cent and I will reduce his damages accordingly.
The plaintiff's present condition
The plaintiff is now aged 33 and lives with his girlfriend at Lindisfarne. She has two children aged 4 and 6 in her care. She describes living with the plaintiff as "Like being on an emotional roller coaster ride. It has its ups and downs." She says if he is having trouble with his back he can be bedridden. They separated in early 2004 when the plaintiff said he could not cope because of her children. He does not sleep well and they rarely go out socially. He can do some household chores if he is feeling well enough. He has been certified unfit for work by Dr Mackey. He still does his exercises. Before the accident he said he was a very fit man.
He says that he used to go out with his friends a lot before the accident but he does not go out with them now. His recreation now is limited to playing billiards or snooker which he started at the instigation of his father. That can cause problems with his back but he has learned to adjust his stance to keep himself able to play. He still takes medication prescribed by Dr Mackey and uses a TENS machine supplied by his physiotherapist to relax his back muscles.
His sleep pattern has changed dramatically since the accident and he has tried various ways of assisting in that regard, with limited success. He takes Valium to help him sleep and to help with his back and sometimes Serepax. At the time of the accident he was engaged, but that relationship broke down prior to the commencement of his present relationship. It is not possible to say what part his accident had in the breakdown of that relationship. He says that he just tries to keep himself fit, but he feels pretty low at times because of the pain.
He admitted that prior to his interview with Dr Colm Moore, a psychiatrist who also gave evidence, that he had taken some medication.
His medication regime now appears to be two to six Valium per month, Digesics and Panadol when required and one to two Serepax per month. He still has laser acupuncture with Dr Mackey.
He has difficulty showering because he sometimes gets sharp pains in his back. His friend, Nathan Dodd, says that since the accident the plaintiff has "definitely gone downhill" and that prior to the accident "he had a fair bit of go in him". They used to socialise together and play sport, but since the accident Mr Dodd says that they only ever have an occasional game of golf. What one must appreciate, of course, is that activities such as the plaintiff used to indulge in with his friends may well have lessened due to the passage of time and the acquiring of family responsibilities and the like.
Dr Moore examined the plaintiff and expressed the opinion that he is suffering from an intermittent psychologically understandable form of depression, otherwise described as chronic adjustment disorder with depressed mood, arising out of the injury suffered on 27 January 2000. Dr Moore also is of the opinion that the plaintiff suffers from a disturbance of higher mental function as a result of the consumption of medication which he is taking to deal with his injury.
Ms Hankin hopes that she and the plaintiff have a future together. He has ongoing problems with his back and depression and his social life is limited, as is his working capacity, which is severely restricted.
Damages
Pain, suffering and loss of amenities of life
On my assessment of the evidence, the plaintiff is a young man who has suffered significant disability as a result of the accident. Prior to his injury, he led an active life and loved his job. His recreational activities with his friends would no doubt have changed over time, but similar pursuits are now not available to him to any real extent.
His pain level is relatively constant, but varied. He seems, in my assessment, well motivated to keep himself as well as he can. He sees his general practitioner regularly and uses his gym.
Dr Moore's evidence, which I accept, indicates that the plaintiff has suffered to the extent that he now has a depressive disorder. This will hinder him, not only in his personal life, but also in his working capacity. Perhaps finalisation of these proceedings will assist him.
His daily routine now consists of doing his exercises and watching television. He likes cooking and is able to clean around the house, including mowing the lawn occasionally. As to the future he said "I don't see myself doing anything".
Prior to the accident he enjoyed a relatively full life, but this has changed now. Ms Hankin says that there are times when he is bedridden due to the pain he is experiencing. There is not a lot of evidence to enable me to say the breakdown of his previous relationship was due to his accident, but I draw the inference from Ms Hankin's evidence that the plaintiff is not an easy person to live with and perhaps it is difficult for him now to form relationships and maintain them. Mr Read criticised the plaintiff for his drinking habits. The evidence indicates that on occasions he would indulge in what I would describe as binge drinking, but there is no evidence that he lost time from work as a result of these activities and, on the evidence, I would describe his current habits as moderate. I would not describe him now as a heavy drinker on the evidence before me.
Overall, the injury has, I accept, using his counsel's submissions, "turned his life upside down". Under this head I award the sum of $40,000.
Loss of earning capacity
(a) Past loss
The plaintiff was in receipt of a weekly wage of $595.96 at the time of the accident. He intended to stay with the defendant. He was regarded (at least by Mr Goodrick) as a good worker and there is, in my view, no reason to suppose that his employment would not have continued until the present time. It has not been submitted that he would have been promoted in the meantime. Immediately following the accident, he was paid weekly payments of workers compensation which continued up until 28 July 2003. He had spent some time at work on the return to work program in the intervening time.
It was agreed the gross amount paid to him was $49,547 and the net amount was $35,178. At the time his workers compensation payments ceased, his net pay would been $32,181 ($681.81 per week), increasing to $33,273 in 2004 ($639.86 per week) to $33,626 in 2005 ($646.65 per week) (see par11 of the amended particulars). These figures were not disputed.
His loss of net income from 28 July 2003 to 29 July 2005 is $65,049.22, and that is the sum I propose to allow for past loss of earning capacity.
(b) Future loss
The plaintiff claims compensation for total loss of earning capacity. He claims had he not been injured he would have continued to earn at least $43,500 per annum in line with the average income earned by similar employees. The annual tax payable on that income is $8,905.55, and allowing for that deduction and the Medicare levy, it is claimed that his net annual income, had he not suffered injury, would have been $33,937.95 per annum, or $652.55 per week. The present value of $1.00 per week discounted by 7 per cent compound interest for 32 years is $683.00.
It is clear on the evidence that the plaintiff enjoyed his work with the defendant. He was delighted to have gained permanency and his effort on his return to work program, on occasions at least, in the opinion of Dr Mackey, resulted in him pushing himself perhaps a little hard. As I have said, there is no evidence to suggest that the plaintiff would not have continued to work for the defendant for the remainder of his working life. His employability on the evidence of the medical experts, Mr Hunn, Dr Mackey and Dr Moore, is extremely restricted and I am satisfied, for the purposes of this claim, is virtually nil.
I have no evidence of any specific financial problems he has but he did give evidence of having to receive an advance on his superannuation policy to purchase his gym equipment.
There was no evidence that he provides financial support for Ms Hankin and her children and, on the evidence, his only income is sickness benefits.
Mr Read submits the plaintiff has recovered and points to the incident of October 2001 which saw him prevented from returning to work, the fishing trip and the motor vehicle accident. The evidence of Mr Hunn and Dr Mackey, which I accept, is clear that the plaintiff has had no such recovery and his disability is a continuing one.
I am of the view he has suffered a total loss of his earning capacity.
His alcohol consumption has not, on the evidence, caused any loss of time from work, as I said earlier, and his other health problems, particularly the gastric troubles, seem to have settled.
In my view, his current situation is due to the injury of 27 January 2000. Further, the negligence of the defendant, as outlined earlier in these reasons, is, in my view "so connected with the plaintiff's loss or injury" that as a matter of ordinary common sense and experience, it should be regarded as the cause of it (Barnes v Hay (1988) 12 NSWLR 337 at 339).
The plaintiff, Mr Hunn and Dr Mackey, were all cross-examined in some detail concerning possible causes for his present situation but "to elevate the propositions contended for from mere possibilities to competing probabilities requires some evidence" (Crowden v Pickands Mather And Co International trading as Savage River Mines B32/1996).
The plaintiff's counsel submitted that a discount rate of 15 per cent for general contingencies is appropriate. The defendant's counsel submitted a further allowance for special contingencies was appropriate. I took him to accept 15 per cent was an acceptable allowance for the usual contingencies. It was submitted for the defendant that the plaintiff's proven low back problems, alcohol and gastric problems would have shortened his working life with the defendant in any event. I take the view there is no evidence to support that contention. There is no evidence of time lost from work prior to the accident due to the plaintiff's consumption of alcohol or his gastric condition and neither one of those in my assessment, is of such significance as to warrant a departure from the normal approach. Prior to the accident the plaintiff was an active young man following a number of sporting interests. His back problems appear to have been manageable, at least up until the cessation of his return to work program and, assessing his attitude as positive, as I do, I do not think this factor, either alone, or in combination with the others, persuades me to depart from the usual approach. I take the same view in relation to the evidence of cognitive deficits flowing from the taking of medication. I am conscious that prior ill-health and exposure to risk of injury are relevant considerations, but in the case of Mr Smith, I think the usual contingency discount of 15 per cent is appropriate and I will adopt it here in the relevant areas.
There being no argument as to the plaintiff's figures, and accepting his evidence as I do, together with the evidence of Mr Hunn and Dr Mackey, I propose to allow $445,000, with an allowance for contingencies of 15 per cent ($66,750), making a total of $378,250, under this head.
Superannuation
The plaintiff claimed that as a result of the accident he has lost the value of potential superannuation entitlements which would arise from the contributions that his employers would have been obliged to make on his behalf. This issue was considered in a report by Bendzulla Tas Pty Ltd which was tendered in evidence. The method of calculation employed was not challenged. As I have considered the plaintiff would, in all probability, have continued in employment until 65, I think it appropriate to assess this loss essentially in accordance with that report. This issue received little attention during the trial. Under this head I propose to allow the sum of $64,283, with an allowance of 15 per cent for contingencies ($9,642.45) making a total of $54,600 (rounded), which is the amount I award under this head.
Workers Rehabilitation and Compensation Act 1988 payments
These are agreed as:
(1)
weekly payments
$78,314.86
(2)
medical and associated
$32,108.47
(3)
travelling
$3,566.86
(4)
pharmaceuticals
$2,364.07
(5)
rehabilitation
$28,328.00
Total
$144,682.26
The amount of $144,682.26 must be added to the plaintiff's damages prior to a calculation of the appropriate reduction by reason of his contributory negligence. To the final figure then calculated as due to the plaintiff must be added what is commonly called a Fox v Wood component. That latter figure is agreed at $23,224 (see Wright J in Eaves v Huon Valley Council 66/1998).
Past medical expenses
I reject the submissions that Dr Mackey has been treating the plaintiff under the wrong diagnosis. I repeat what I said earlier in these reasons and consider his attendances with Dr Mackey were as a result of the injury sustained in the accident.
I accept the evidence of the plaintiff and Dr Mackey. The amount claimed for his visits was $1,405.50 (the quantum of that amount is admitted). The amount claimed, on my calculations, covers approximately 35 visits and it is now two years since workers compensation payments ceased. The number of visits claimed, in my view, appears to be reasonable and I allow $1,405.50.
The plaintiff claims six visits to his physiotherapist at $55 per visit, $330. He has established an ongoing disability as a result of the accident and the amount claimed is substantiated and is reasonable. I allow $330.
Massage treatment
There was no evidence to support this claim and I do not allow it.
Home gym
I accept the defendant's submission that the plaintiff does gym work to assist with other difficulties and that perhaps he may have acquired this possession in any event. I think the amount claimed should be discounted as the defendant suggests, and I allow $1,500.
Medication
The plaintiff gave evidence of his medication regime. Accepting his evidence as I do, together with the evidence of Dr Mackey, I conclude the amount claimed ($733.72) is reasonable. I accept the plaintiff has suffered to some extent from financial constraints in the two years since his workers compensation payments ceased and I accept his evidence that such a regime as claimed on an as required basis, is reasonable. I allow $733.72 under this head.
The subtotal for this head is $3,969.22.
Future medicals
I accept the plaintiff's submission that the claim under this head for visits to medical practitioners and medication is modest and supported by the evidence. I repeat the comments I made above generally, and accept the evidence of the plaintiff, Dr Mackey and Mr Hunn in this context. The amounts claimed are not in issue but liability is in dispute. I propose to allow the amounts claimed and will round off the amount awarded under this head to $7,000.
Future surgery raises other issues. As I said, the plaintiff is reluctant to have surgery, but may be forced to undergo such a process by necessity. On the evidence of Mr Hunn, the plaintiff may well require surgical intervention and I am satisfied on the balance of probabilities that it is likely. I accept the evidence that the facet block procedure is the more likely, but that discography is slightly less likely, but still probable. Having considered the evidence, I will allow the cost of one facet block and one discography as claimed. The likelihood of the plaintiff going further due to his attitude is difficult to forecast and I am conscious of Mr Read's submissions in this regard. However it seems to on the evidence of Mr Hunn and Dr Mackey that the decision may ultimately be out of his hands and surgery may become inevitable. I intend to allow the total cost as follows:
Facet block
$1,426.00
Discography
$1,32.65
Total
$2,758.65
The agreed cost of the surgical procedures is $25,000. Allowing for the plaintiff's attitude and the likelihood of him requiring and having surgery, I allow $12,000 and round off his claim to $15,000. With the cost of medical visits and medication, the total I award under this head is $22,000.
Annual leave
The plaintiff is entitled to compensation for loss of enjoyment of annual leave. The quantum is agreed at $15,081, but the liability for the claim is disputed. I propose to allow that figure as claimed. (See Luntz Assessment of Damages for personal injuries and death 4 ed, par6.4.10.) I am satisfied the entitlement came with the plaintiff's full-time employment. No allowance for contingencies is applicable, in my view, as there is no evidence of likely disentitlement. The amount awarded under this head is therefore $15,081.
Damages will be awarded as follows:
Pain suffering and loss of amenities of life
$40,000.00
Loss of past income 18 July 2003 to 30 July 2005
$65,049.22
Loss of future earning capacity
$378,250.00
Loss of future superannuation entitlements
$54,600.00
Past medicals
$3,969.22
Future medicals
$22,000.00
Loss of annual leave
$15,081.00
Workers compensation payments
$144,682.26
$723,631.70
Less contributory negligence
$144,726.34
$578,905.36
Less workers compensation payments
$144,682.26
$434,223.10
Plus Fox v Wood component
$33,224.00
Total
$467,447.10
There will be judgment for the plaintiff accordingly.
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