Stephen John Roberts v DRB Holdings Pty Ltd
[2013] ACTSC 268
STEPHEN JOHN ROBERTS v DRB HOLDINGS PTY LTD
[2013] ACTSC 268 (20 December 2013)
NEGLIGENCE – contributory negligence – plaintiff injured lifting pressure cleaner – where plaintiff had supervisory responsibilities – availability of alternative methods of lifting – employer failed to enforce system for lifting heavy items – no significant failure by plaintiff to take reasonable care
DAMAGES – personal injury – lower back injury – plaintiff lifting heavy weight – injury to L5-S1 disc – consequential chronic depression
Civil Law (Wrongs) Act 2002 (ACT) ss 45, 102
Czatyrko v Edith Cowan University (2005) 79 ALJR 839
Kondis v State Transport Authority (1984) 154 CLR 672
Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492
Stepanovic v GIO (1995) 21 MVR 327
Stove v Hall [2008] ACTCA 21
Vairy v Wyong Shire Council (2005) 223 CLR 422
No. SC 784 of 2010
Judge: Master Mossop
Supreme Court of the ACT
Date: 20 December 2013
IN THE SUPREME COURT OF THE )
) No. SC 784 of 2010
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN:STEPHEN JOHN ROBERTS
Plaintiff
AND:DRB HOLDINGS PTY LTD
Defendant
ORDER
Judge: Master Mossop
Date: 20 December 2013
Place: Canberra
THE COURT ORDERS THAT:
1. Judgment be entered for the plaintiff in the sum of $1,399,341.
2. Unless either party notifies my associate within 21 days of the date of these orders that it wishes to be heard in relation to costs, the defendant is to pay the plaintiff’s costs of the proceedings as agreed or assessed.
The plaintiff has claimed damages for an injury which he sustained at work on 27 November 2007 when he was lifting a pressure cleaner into a van. The defendant operated a business which traded as DRB Equipment Repairs. That business was a small engine repair business which repaired items such as lawnmowers, pressure washers, chainsaws, leaf blowers and other types of small mechanical equipment.
The plaintiff, who was almost 50 at the time of the hearing, had initially completed an apprenticeship as a motor mechanic and worked in a variety of jobs in the automotive industry in both ‘hands on’ and supervisory roles. On 7 June 2007 he commenced employment with the defendant. He was offered the job by Darren Bookham, the director of the defendant, whom the plaintiff had known previously. The plaintiff was employed as the workshop manager at the defendant’s premises. In that role he dealt with phone bookings, invoicing clients, controlling the workflow, ordering parts and repairing items himself. There were three other employees apart from the plaintiff and Mr Bookham meaning that in total there were five people engaged in the business who worked at the defendant’s premises in Lyell Street, Fyshwick.
On 27 November 2007 the plaintiff was loading a pressure cleaner into the side door of a commercial van. The van was a Toyota Hiace or similar which belonged to ACTEW – the government owned supplier of water and electricity in the Territory. There were two ACTEW employees also participating in lifting the pressure cleaner into the van. The pressure cleaner was an Aussie Pumps Monsoon 400 cold water high-pressure cleaning machine (“the pressure cleaner”). It was driven by an electric motor and weighed 105 kg. It had four wheels with pneumatic tyres which were attached to the base of a metal frame which surrounded the pressure cleaner. At one end the metal frame extended upwards so as to create a handle. The plaintiff had wheeled the pressure cleaner from the workshop through one of the doors of the workshop out to the van. It was then lifted up. The plaintiff lifted it from the handle end and the two ACTEW employees lifted the other end. The ACTEW employees put their end of the pressure cleaner inside the van. Inside the sliding door at the side of the van was a step. Between the level of the step and the level of the floor of the van was the vertical rise which created the step. When the ACTEW employees put their end of the pressure cleaner inside the van the wheels had not got over the step up to floor level and the whole pressure cleaner rolled back towards the plaintiff. He took the weight of the pressure cleaner. The evidence is not clear whether he supported the whole weight of the pressure cleaner or just the majority of it as it rolled back towards him. As a result of having to support this excessive weight, he felt a pain in the lower left hand side of his back and what he described as a burning sensation. He immediately spoke to “James” and “Trevor”, two other employees of the defendant. His evidence was that he spoke to Darren Bookham about five minutes later. Mr Bookham’s evidence was that he was away from the workshop that afternoon and that he was not told about the accident until the next morning. Nothing turns on this difference in their evidence. The plaintiff went home about 15 or 20 minutes after the accident.
He consulted his general practitioner Dr Yeung the next day. He was referred for physiotherapy treatment, made a workers compensation claim which was accepted and ultimately returned to light duties in February 2008. He had nerve block treatments in 2008 and 2009. None of the treatment provided has been able to eliminate the pain from which he suffers. He suffered a further injury at work in 2010 when a gas cylinder fell on his toe. He sustained six fractures in his right big toe. His employment with the defendant was terminated a few days after that. He was unemployed until April 2012 when he commenced work as a casual employee of the retail store called BCF. He ceased employment with BCF in June 2012 as a consequence of being unable to cope with the increase in pain caused by the work and the effects of medication associated with pain control. He has applied for other jobs both on his own initiative and with the assistance of the workers compensation insurer’s rehabilitation provider. He estimated that he had applied for hundreds of jobs.
He currently takes a variety of medications including OxyContin (morning and night), Endep an anti-depressant (morning and night), Endone (usually one to two per day) and Lyrica (morning and night). He was clearly in pain during the course of giving his evidence.
Dr Graeme Griffith, consultant surgeon, in his report to the plaintiff’s solicitor dated 23 May 2012 diagnosed the plaintiff’s condition as an annular tear of the L5-S1 disc which subsequently progressed into a frank disc protrusion, in particular narrowing the left intervertebral foramen, resulting in an irritative neuropathy and quasi-sciatic pain involving the left S1 nerve root.
Dr Raymond Wallace, an orthopaedic surgeon, reported to the defendant’s solicitor in February 2013 that the plaintiff continued to have persisting pain in the left posterior superior iliac crest with no radiation to his buttocks or legs. The pain was worse with prolonged sitting, standing, bending, driving or doing housework such as vacuuming and was relieved by lying down. He diagnosed muscular ligamentous strain of the lumbar spine and an internal disruption of the L5-S1 disc caused by his work injury in November 2007. His opinion was that the plaintiff’s employment with the defendant remained a substantial contributing factor to his lumbar spinal condition.
Dr Malcolm Pell, a neurosurgeon, reported to the plaintiff’s solicitors on 12 April 2012 that the plaintiff suffered a lumbosacral disc prolapse causing left L5 nerve root irritation or compression. That condition resulted in the clinical problems of ongoing lower back pain and left sided sciatica. He expressed the opinion that the back pain and sciatica arose from the injury on 27 November 2007. He appears to have formed that conclusion on the basis of the immediate low back pain and later left sided sciatica in circumstances where there was not any previous history of back pain.
Dr Gordon Stuart, a consultant neurosurgeon, reported to the defendant’s insurer in July 2010 expressing the opinion that the plaintiff’s chronic low back pain was due to degenerative disease of his lumbosacral spine. He also said that there may have been an initial disc injury in November 2007 but this would have long since resolved and his symptoms were now due to the degenerative disease of his spine. The doctor did not provide any clear reasons for this conclusion as to the resolution of his disc injury or the absence of a causal link between his 2010 symptoms and the incident in 2007.
None of these doctors were called to give oral evidence or cross-examined. I prefer the evidence of Drs Griffith, Wallace and Pell to that of Dr Stuart which appears to be out of line with the majority opinion and not clearly reasoned.
Dr Zoltan Zsadanyi, a consultant psychiatrist, reported to the plaintiff’s solicitors in May 2011 and diagnosed the plaintiff as suffering from chronic adjustment disorder with depressed mood secondary to chronic pain. He reviewed the plaintiff in 2013 and that diagnosis was confirmed. He said
The prognosis for his chronic mood disorder is pursuant on the effectiveness of pain management strategies. While he continues to experience pain which affects his ability to attend to his [activities of daily living] and reduces his ability to work, Mr Roberts is likely to remain chronically depressed.
In relation to work he said:
I do not consider that Mr Roberts is capable of pre-injury work. His negative and depressed mood state secondary to his chronic pain precludes him from working… In general, I do not consider Mr Roberts would be able to work. Please refer to my previous responses regarding the links between his chronic pain symptoms and his depression.
In the light of the above, I find that the plaintiff suffered an injury to his L5-S1 disc as a consequence of the accident at work on 27 November 2007. That injury is the ongoing cause of significant back pain and that in order to manage that back pain the plaintiff is required to take significant amounts of medication and suffers from chronic depression secondary to his back pain.
Liability
The defendant did not ultimately contend that it had not breached its duty of care to the plaintiff. The defendant owed to the plaintiff a non-delegable duty to take reasonable care to avoid exposing him to unnecessary risks of injury. In a small engine workshop such as that operated by the defendant, the loading and unloading of small but heavy machines was a routine part of the business. Similarly, the lifting of such machines to and from a work bench or the manipulation of such machines so as to undertake repairs was also commonplace. As a consequence there was, during the routine, day-to-day operation of the business, a risk of injury to the employees of the business notwithstanding that those employees were experienced in and conditioned to the kind of lifting and carrying that was necessarily involved in a manual mechanical job. The defendant was obliged to take reasonable care to avoid the risk by devising a method of operation for the performance of the tasks that eliminated the risk or provided adequate safeguards. In devising a method of operation or providing adequate safeguards the defendant was obliged to take into account the possibility of thoughtlessness, inadvertence or carelessness: Czatyrko v Edith Cowan University (2005) 79 ALJR 839 at [12]. The defendant clearly did take some steps to deal with the lifting of heavy items. It was common ground that there was a forklift with a qualified operator available on the site and that forklift was routinely used to lift heavy items. It was also Mr Bookham’s evidence that there were ramps of two different sorts available either in the workshop or otherwise on the site that could be used for getting heavy wheeled items into or out of vehicles. However even accepting Mr Bookham’s evidence – which was contradicted by that of the plaintiff – that there were ramps available on site, I am satisfied that the defendant breached its duty of care in so far as it failed to implement a safe system of work. Mr Bookham described the policy of the defendant as “use a forklift or the ramps”. He said the instruction he had given in relation to the forklift was “go and ask the operator to use it”. There was no evidence of any system, instructions or directions to ensure that the forklift or ramps policy was complied with. Nor was there any system, instruction or direction as to what was to be done if the forklift was not available. Mr Bookham agreed he gave no directions to employees to use the ramps. He accepted that there had been no “toolbox meetings” to instruct employees to use the ramps. He accepted that there were no written policies at the time, no process of induction for employees and no risk assessment carried out. He indicated that he thought he would not have been well liked if he told employees older than him how to use the ramps.
Plainly enough there may be different approaches to dealing with identified risks in a small business as opposed to a large business. It might not be expected that a small business will address safety and systems of work with the level of bureaucratic formality that can be expected in a large operation. However, the duty of the employer to provide a safe system must still be complied with. If any business “requires [its] employee to work according to an unsafe system [it] should bear the consequences”: Kondis v State Transport Authority (1984) 154 CLR 672 at 688. In the present case, there was very little by way of system and it appears that the employees were simply left to deal with the hazards associated with lifting heavy items in the way they saw fit. That often involved using the forklift to lift heavy items but there was no instruction or system requiring its use or addressing circumstances in which it was not readily available to be used. As a matter of substance the defendant failed to provide a safe system for dealing with the risks associated with lifting machinery. Had there been a system in place it would have specifically addressed the issue of getting heavy items in and out of delivery vehicles and dealt with that issue by mandating the use of the forklift or ramps or otherwise ensuring that the lifting of items did not expose the plaintiff to a risk that he would be left supporting an excessive weight in the manner that occurred. Therefore I am satisfied that the plaintiff has established that the defendant breached its duty of care and that the breach of duty caused the injury to the L5-S1 disc and the plaintiff’s current condition in the sense required by s 45 of the Civil Law (Wrongs) Act.
Contributory negligence
The point of substance that the defendant wished to agitate was that of contributory negligence. The defendant particularised its claim of contributory negligence as follows:
(a) “Failing to devise a safe system of work for himself or others by manually lifting the 120 kg pressure cleaner from the ground into the back of the van with manual assistance, rather than using specifically designed aluminium loading ramps or a fork lift which were available at the defendant’s workplace at the time.”
(b) “Exposing himself to a foreseeable risk of injury whilst being employed by the defendant in the capacity of a Workshop Manager, who knew or should have known the risks associated with manually lifting such a heavy object.”
The defendant’s case was not pleaded or conducted on the basis that the plaintiff should have obtained the assistance of another available worker at the business so that there were four rather than three men lifting the pressure cleaner.
In order to understand the allegation of contributory negligence it is necessary to understand why the plaintiff lifted the cleaner in the way that he did rather than adopting alternative means of getting the cleaner into the van.
A sketch plan of the layout of the defendant’s premises prepared by the plaintiff was tendered and became Exhibit 4. Annotated on that plan were the positions of three vans present on the site that day as well as a forklift which, the evidence discloses, could be used to load machinery into vehicles coming to collect it. The premises faced onto Lyell Street in Fyshwick. Facing the road was the showroom for the business and a concreted driveway which led down the right-hand side of the premises to a yard area at the back. Behind the showroom was a workshop in which there were workbenches, an area for spare parts and an open workshop area. Further behind that was an office. There was a substantial open area at the back right of the premises where vehicles could be parked and work could be carried out. That area was accessed via the concrete driveway on the right-hand side of the block. There were access doors from the workshop both to the back yard and to the concrete driveway.
At the time of the injury the van in which the pressure cleaner was being loaded (“the pick-up van”) was parked in the concrete driveway. That driveway was one lane wide and hence, because the pick-up van was parked in the driveway, there was insufficient room for another vehicle to pass it. At the point where the concrete driveway opened out into the back yard there was a gate. That gate was open. There was another van parked in the gateway. There was also a third van parked in the back yard area. Further into the back yard area there was the forklift owned and operated by the defendant. The two vans that were parked in or at the entry to the back yard were cleaning vans. Although they were not described in great detail in the evidence, the vans were the sort of commercial carpet cleaning vans which contain machinery in the back of them which is then operated for cleaning carpets or other commercial cleaning purposes. Both of those vans had machines inside them which were undergoing repair. At the time of the accident, because they were undergoing repair, they were parked and had various parts of machinery or tools around them. The parts that were on the ground included fan belts, fan covers, vacuum hoses, nuts and bolts. Further, within the workshop, there was equipment on the ground in the area between the doors which lead to the back yard and to the driveway. As a consequence, if the forklift was to be used to load the pressure cleaner into the pick-up van, there were obstacles present in either of the two paths that could be used to get to the pick-up van that would have needed to be moved.
While the plaintiff accepted that he could have requested the authorised forklift operator, a Mr Norris, who was present on site, to bring the forklift to lift the equipment into the pick-up van, he did not do so because that would have involved either moving the two vans and the parts and equipment that were around them so as to permit the forklift to get access to the driveway or alternatively moving the equipment on the floor of the workshop so as to permit the forklift to access the pick-up van through the workshop.
The plaintiff also gave evidence that the means by which the forklift would be used on equipment such as this would be to put chains around the frame of the cleaner and lift it using the tynes of the forklift. This would mean that the cleaner was hanging beneath the tynes via the chain. The plaintiff’s evidence was that this was not a very safe means of moving the pressure cleaner because the pressure cleaner would not be stable. Mr Bookham, on the other hand, gave evidence that the cleaner would be lifted from underneath using the tynes of the forklift. The evidence did not extend to any assessment of the distance between the tynes as compared to the width of the pressure cleaner and how the tynes would relate to the wheels or frame of the pressure cleaner.
Mr Bookham said that there were two different sorts of ramps that were available that could have been used to get the pressure cleaner into the van. First, within the workshop, there were aluminium motorcycle ramps, two of which could have been used to roll the pressure cleaner into the van. The plaintiff’s evidence was that although he had requested the defendant to acquire such ramps on three or four occasions prior to the accident, he only first saw them when he returned to work after the accident. Second, there were narrower ramps more specifically designed for wheeled machinery such as this which Mr Bookham had acquired when he took over the agency contract for a particular brand of cleaning machines in 2004. A photograph of these ramps taken the week before the hearing was tendered by the defendant and became Exhibit 10. Mr Bookham said that at the time of the accident those ramps were sitting at the edge of the property. The plaintiff denied ever having seen those ramps whereas Mr Bookham said he had personally used them prior to November 2007 and had observed the plaintiff using them on several occasions prior to the accident.
The defendant submitted that the plaintiff had been contributorily negligent. That negligence was in failing to use the available forklift and failing to use the available ramps to load the machine into the pick-up van. The defendant submitted that I should prefer the evidence of Mr Bookham to that of the plaintiff and hence find that there were ramps available to the plaintiff which he chose not to use.
There was no contemporaneous documentary evidence to corroborate either the evidence of the plaintiff or of Mr Bookham as to whether or not there were suitable ramps on site at the date of the accident. There was no documentary record relating to the purchase of the aluminium ramps prior to the accident and no documentary record that would demonstrate that the ramps shown in Exhibit 10 were acquired in 2004 or were on site at the time of the accident.
Further, notwithstanding that there were at least three other workers present on site that day (“James”, “Trevor” and Mr Norris), none were called to give evidence.
The defendant submitted that I should have concerns about the reliability of the plaintiff’s evidence as a consequence of an aspect of the report of Dr Zsadanyi, a psychiatrist whose report was tendered in the plaintiff’s case. In a report dated 5 May 2011 the doctor reported “He denied any previous psychiatric history. He reported having hypertension and asthma.” The defendant pointed to evidence that in 2004 the plaintiff was referred by his GP Dr Yeung to a psychiatrist, Dr Lawrence, because of his severe mood swings and depression. The referral recorded that both of the plaintiff’s sisters had bipolar disorder and that his wife reported that he had been drinking heavily. Dr Lawrence reported back to Dr Yeung that he had prescribed the plaintiff a mood stabiliser instead of an antidepressant or antipsychotic drug. The plaintiff said in relation to his apparent failure to report these things to Dr Zsadanyi that he had simply forgotten. He saw Dr Zsadanyi in 2011 and the consultation in question occurred in 2004. Dr Zsadanyi did not give oral evidence and hence it is not possible to discern what precisely the plaintiff was asked. However I accept that, having regard to the report of Dr Zsadanyi and the likely significance of a prior psychiatric history for the purposes of his examination, it is likely that he was specifically asked about any psychiatric history. I am not satisfied however that the plaintiff’s failure to tell Dr Zsadanyi about his previous history is a matter which reflects significantly on the reliability of his evidence. I am not satisfied that any failure on his part reflects on the honesty of his evidence. I observed the plaintiff giving evidence over two days and formed the impression that he was giving straightforward and honest evidence to the best of his recollection. While he did accept that in some respects his memory of events was poor, on the issue of the availability of ramps, in contrast to more peripheral issues, I do not consider that his evidence should be treated as unreliable because of what he failed to tell Dr Zsadanyi.
I also had the opportunity to observe Mr Bookham give evidence, although over a shorter period and in relation to a more limited range of issues. There was nothing in the manner in which he gave evidence which would lead me to have concerns about the honesty or reliability of his evidence.
There is nothing in the other circumstances surrounding the availability or non-availability of the ramps which would indicate that one or other version of events should be preferred. The plaintiff submitted that had the ramps been available then it is most likely that Mr Bookham would have insisted that they be used and that it is unlikely that if they were present they would not have been used. I do not accept that this is a factor which tells significantly in favour of the absence of the ramps. The choice to lift the pressure cleaner is just as likely to have been the result of the absence of any enforced system of safe lifting and the speed and convenience of lifting the cleaner by hand as because of the absence of the ramps themselves. The defendant’s evidence concerning the availability of the narrower ramps specifically designed for wheeled equipment such as cleaners, namely that it was acquired at the same time as taking over an agency contract in 2004, was also a reasonable explanation even if not corroborated by any contemporaneous evidence.
As a consequence there is no appropriate basis upon which to discount the evidence of either witness. Therefore the issue comes down to one of onus. A reduction in an award of damages by reason of contributory negligence is provided for by s 102 of the Civil Law (Wrongs) Act 2002. Relevantly, it provides:
102Apportionment of liability—contributory negligence
(1)If a person (the claimant) suffers damage partly because of the claimant’s failure to take reasonable care (contributory negligence) and partly because of someone else’s wrong—
(a)a claim for the damage is not defeated because of the claimant’s contributory negligence; and
(b)the damages recoverable for the wrong are to be reduced to the extent the court deciding the claim considers just and equitable having regard to the claimant’s share in the responsibility for the damage.
...
For the purposes of this definition wrong means, relevantly, an act or omission “that gives rise to a liability in tort in relation to which a defence of contributory negligence is available at common law”. Thus the section picks up those torts where a defence of contributory negligence was available at common law and then applies to that category of torts the statutory test for contributory negligence set out in s 102(1). Although s 102 speaks in neutral rather than adversarial terms, in my opinion the effect of the section is to maintain contributory negligence as a defence to a claim for damages. Consistently with the previous common law position: Stove v Hall [2008] ACTCA 21 at [25], the onus of proof rests with the defendant.
Given that the defendant bears the onus of proof, in the light of the competing evidence on this issue, I am not satisfied that the defendant has established that either or both of the forms of ramp were available on the site at the time of the accident. As a consequence, I am not satisfied that the defendant has established that there were ramps available to the plaintiff on site at the time of the accident. Therefore the factual matters available to the defendant to rely upon in relation to contributory negligence are limited to the availability of a forklift to permit the lifting of the pressure cleaner.
It is therefore necessary to determine whether the plaintiff failed to take reasonable care of himself and whether that failure contributed to the injury that he suffered. The plaintiff had an obligation to look after himself and not act in a way that may put himself at risk: Vairy v Wyong Shire Council (2005) 223 CLR 422 at [220]. In favour of a finding of contributory negligence are the following matters.
(a) As a mechanic with long experience in the automotive industry it would have been obvious to the plaintiff that lifting half of a 105 kg pressure cleaner would expose him to a risk of back injury.
(b) The plaintiff was in a supervisory position with the defendant and was principally responsible for running the workshop and he therefore had a considerable degree of autonomy in how he managed the issue.
(c) It would have been possible to arrange for the cleaning vehicle that was blocking the entrance to the back yard to be moved so as to permit access by the forklift to the driveway. It would then have been possible to load the pressure cleaner into the pick-up van either in the driveway or at the front of the premises. That may have involved some disruption to the work on the cleaning van that was required to be moved but would not have involved any excessive delay.
(d) On Mr Bookham’s evidence the pressure cleaner would have been able to be readily lifted using the tynes of the forklift and placed in the vehicle.
(e) The use of the forklift would have avoided any need for lifting and hence avoided the risk of injury.
Against a finding of contributory negligence are the following matters.
(a) The plaintiff was working in a situation where there was no documented or enforced system for dealing safely with lifting such equipment.
(b) On the plaintiff’s evidence the appropriate means of lifting a piece of equipment such as this one would have been to hang it from underneath the tynes of the forklift using a chain which itself involved some instability and lack of safety.
(c) There was evidence that the workshop was busy at the time and some impediments to obtaining the assistance of the forklift would have involved a delay, which in the circumstances was unreasonable compared with the course that was adopted.
I am not satisfied that the plaintiff failed to take reasonable care for his own safety. While I accept that the plaintiff, in lifting the equipment in the manner that he did, must have recognised that it was at the margins of what was physically possible for him to do and hence carried with it a risk of injury, in the circumstances that existed, I am not satisfied that he failed to take reasonable care by failing to arrange for the forklift to do the lifting. That is for a number of reasons. I accept the evidence of the plaintiff that access through the workshop was not readily available because there was equipment on the floor which prevented the forklift travelling from the back yard through the workshop to the driveway. I also accept the evidence of the plaintiff that there were equipment and parts outside the vehicle that was blocking the gateway. While in my view it is unlikely to have taken more than a few minutes to move that equipment so as to permit the van to move further into the backyard and hence permit the forklift access to the driveway, I am not satisfied that the forklift was such an appropriate means of loading the pick-up van that the failure to use it in those circumstances involved a failure to take reasonable care.
In reaching that conclusion I have assessed the competing evidence of the plaintiff and Mr Bookham as to the means by which the forklift could have been used to get the pressure cleaner into the pick-up van. If, as the plaintiff said, it was necessary to hang the pressure cleaner from underneath the tynes in order to get it into the vehicle, I am satisfied that that would have been an awkward process if the pressure cleaner was to be put in beyond the edge of the step. It would have involved fitting both the tynes above the cleaner and the cleaner hanging below into the opening created by the sliding side door of the pick-up van. This would have been a more involved process than the manual lifting exercise undertaken. The plaintiff also had concerns about the stability of the exercise. Mr Bookham’s evidence was that the tynes could have been placed underneath the pressure cleaner. The evidence did not extend to any comparison of the distance between the tynes as compared with the width of the pressure cleaner. Further, it did not deal with the issue that the pressure cleaner was being placed with its long axis across the width of the pick-up van. It was the placement of the cleaner in that orientation that meant that it was possible for it to roll back towards the plaintiff. If the pressure cleaner was placed in that way because that was how it fitted in the vehicle then, in order to lift it with the forklift, it would have been necessary to lift it with its short axis rather than its long axis between the tynes. The evidence was not sufficient to indicate that this was possible and, having regard to the photograph of the forklift and the photograph of the pressure cleaner that was in evidence I cannot be satisfied that lifting it on the tynes oriented in that manner was a practical means to lift it. Once again, I recognise that this is an area where the evidence was left in a state of some uncertainty. The defendant bears the onus of proving the facts necessary to establish contributory negligence. I am not satisfied that it has established that in the particular circumstances of this case lifting the pressure cleaner into the vehicle was a practical alternative available to the plaintiff. As a consequence I am not satisfied that the plaintiff failed to take reasonable care for his own safety and as a consequence it is not necessary to turn to the question of apportionment.
However, in case I am wrong as to the issue of contributory negligence, I would have assessed the degree of contributory negligence at 10%. What is “just and reasonable” for the purposes of s 102 of the Civil Law (Wrongs) Act is in substance the same test as applied at common law. That involves a comparison of both culpability in the sense of the degree of departure from the standard of care of a reasonable man and of the relative importance of the acts of the parties causing the damage: Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492 at 494. The fundamental failure of the defendant was the failure to have any documented or enforced system for dealing with the lifting of heavy items. The availability of a forklift, while certainly a means of lifting some items, has not been shown to be a practical alternative in situations where items were at the margins of what might be lifted manually or where there were restrictions on where the items needed to be placed. While the plaintiff did have some supervisory responsibilities he had never been directed to put in place any procedures relating to occupational health and safety or deal with the fundamental and obvious issues of lifting items which involved the manual handling risks. If there was a departure by the plaintiff from his obligation to take reasonable care for himself it was one which was minor having regard to the particular circumstances in which he made the decision. Manual handling was possible, had advantages of time and convenience when compared with lifting by forklift and advantages of time and convenience having regard to the location of the vans in the back yard area. In those circumstances, in my view the defendant is principally culpable in terms of its degree of departure from the standard of care of the reasonable employer and those facts were principally responsible for the plaintiff being put in the position that he was where manual handling was an attractive option even though it exposed him to the risks that eventuated.
Damages
As a consequence of my findings above damages must be assessed on the basis that there is no reduction due to contributory negligence.
There were a number of aspects of damages which were agreed between the parties. General damages were agreed at $120,000 with interest on the past component of $7,200. Past economic loss was agreed at $155,959. The Fox v Wood component of past economic loss was agreed at $25,299. Past out-of-pocket medical expenses were agreed at $81,252.
Therefore the issues to be determined were:
(a) future economic loss;
(b) future out-of-pocket expenses;
(c) Griffiths v Kerkemeyer; and
(d) domestic assistance.
I will deal with each of these matters separately.
Future economic loss
The plaintiff claimed loss of wages at the rate of $975 per week until the age of 67, namely, 17 years. Discounted at 3% this led to a claim of $679,575. This claim included no allowance for vicissitudes. The plaintiff submitted that the possibility of promotion counterbalanced the usual allowance for adverse vicissitudes of 15%.
The defendant accepted that $975 per week was “about the right figure”. This is equivalent to $62,500 gross per annum which, having regard to the rates in Exhibit 13 is slightly higher than what the plaintiff would have been earning had he continued in the employment of the defendant.
The plaintiff submitted that not all vicissitudes were adverse and that account should be taken of the possibility of the plaintiff earning more than he had when working for the defendant. The plaintiff therefore submitted that the possibility of advancement effectively cancelled out negative vicissitudes and hence the reduction for vicissitudes should be nil.
The defendant submitted that there should at least be the usual allowance for vicissitudes of 15% but that having regard to the plaintiff’s history of smoking and excessive alcohol intake, his family history of heart disease, the fact that he was currently subject to the care of a cardiologist and that he had previously suffered a heart attack the allowance for vicissitudes should be increased to 30%.
As to the possibility that the plaintiff would have moved to a higher paying job, this was something upon which counsel for the plaintiff opened and made submissions but in relation to which the plaintiff did not give specific evidence. There was evidence (Exhibit 14) that automotive service centre managers in regional areas were being sought on the basis of salaries up to $80,000 per year. The evidence disclosed that prior to working for the defendant the plaintiff had worked in a variety of positions. Since moving to Canberra in 1982 he had worked for All Make Automotive for two years, Ensign Tyres for a little over six years as a mechanic and a foreman, he had run his own business called TBM Brake and Mechanical for two years, he had worked for five years at Bridgestone Tyres in Fyshwick as the workshop foreman and between 1997 and 2005 worked for Dasfleet as a mechanic, workshop foreman and workshop controller. In the latter job he was responsible for supervising 13 mechanics and had particular responsibility at the Olympics in 2000 and the Commonwealth Heads of Government Meeting meeting in 2002 where he was responsible for looking after armoured vehicles. He was also responsible for servicing an armoured vehicle used by the Prime Minister. After leaving Dasfleet the plaintiff worked for eight months as a workshop foreman at Capital Steering and Suspension and then for two years and three months at Tuggeranong Muffler Centre as a motor mechanic.
While the work at Dasfleet was a job which clearly carried with it significant responsibility, the plaintiff had moved to smaller companies and jobs with less significant responsibilities. It is not, therefore, a case where there was a clear trajectory indicating a significant chance of an increase in remuneration. The plaintiff submitted that he was entitled to have the chance of an increased remuneration taken into account in determining what, if any, allowance should be made for vicissitudes. In the present case, taking into account that the net weekly loss figure that I have adopted incorporates a small level of advancement beyond his wage had he remained employed with the defendant, I consider that the possibility of the plaintiff working in a job with either increased or reduced remuneration effectively cancels each other out. The plaintiff had been working for many years and in the future he may or may not have earned significantly more than what he was earning with the defendant.
In relation to the medical matters that the defendant pointed to, I was referred to the decision in Stepanovic v GIO (1995) 21 MVR 327 where a reduction for vicissitudes of 30% was made by the New South Wales Court of Appeal on account of the plaintiff’s family history of heart disease, the degenerative condition of his spine and his proclivity for alcohol.
In the present case there was specific evidence in the reports of Dr Libby Anderson, a cardiologist, from 2011. For example, a referral dated 6 July 2011 by Dr Anderson for the performance of a coronary angiogram said:
He has major vascular risk factors, including a 30 pack year [sic] history of tobacco abuse, a personal history of hypertension which has been difficult to manage, and his father was diagnosed with coronary disease at the age of forty-four and died of a cardiac event at the age of fifty-one.
Following the angiogram Dr Anderson reported that “he does indeed have coronary disease” and “almost certainly” suffered a left anterior descending infarct.
Because of the specific evidence that is available about the plaintiff’s health I consider that it is appropriate to make some increase in the allowance for vicissitudes taking account of the increased chance of health difficulties arising from his pre-existing conditions. The evidence did not specifically address the risks that he faced. Notwithstanding that I consider that it would be unrealistic to say that a person in the plaintiff’s position with a history of smoking, alcohol overuse, a family history of heart disease and a previous heart attack was just as likely to continue working without interruption due to sickness as a person who did not have these pre-existing conditions. Although, in the absence of specific actuarial or medical evidence addressing this issue the exercise is necessarily imprecise, instead of the usual allowance of 15% I would make an allowance of 25% for vicissitudes.
There was some evidence concerning the possibility that the plaintiff may be able to exploit some residual earning capacity. The plaintiff had returned to work for a period in 2012 with one of the BCF retail outlets. However, he found that job too difficult to continue with because of the increase in his pain levels and the effect of painkilling medication. There is no doubt that the plaintiff has skills which could be used in gainful employment. However the combination of his back injury, the necessity to take significant painkilling medication, the depression from which he suffers and his age all make it very difficult for him to exploit those skills in a way that would reduce his economic loss. That is consistent with the opinion of Mr Vincent De Giovanni, a forensic occupational psychologist, who concluded:
When considering all available information from this current assessment and other sources, I am left with the view that Mr Roberts presents as a credible candidate for retraining and redeployment into a new occupation in theory, but not in practice.
For these reasons, I do not consider it appropriate to reduce the award in relation to loss of future earning capacity to take into account the possibility of employment in the future.
The above reasoning gives a net figure for future loss of earning capacity of $509,681 ($975 wk, 17 years, 3% discount (multiplier of 697) less 25% vicissitudes).
In relation to superannuation, 11% of the net figure for past economic loss ($155,959) gives a figure of $17,156.
The appropriate rate of superannuation to be applied to the net figure for future economic loss was not clear. That is because while there are programmed increases in the rate of superannuation up to a final level of 12% required by the Superannuation Guarantee (Administration) Act 1992 (Cth) there are amendments proposed by the present government which are currently the subject of exposure draft legislation which would have the effect of postponing the currently programmed increases in the rate of superannuation beyond 9.25% for a period of two years. If those legislative amendments are made the effect would be to delay the staged increases in the rate of superannuation so that the proposed final level of superannuation of 12% was reached in the financial year ending 30 June 2022 rather than the financial year ending 30 June 2020. The plaintiff claimed an effective rate of superannuation of 14% of the net figure for future economic loss. The actuarial basis for the equivalence between this percentage of the net figure and the staged increase in the rate of superannuation under current law over the next seven years was not the subject of evidence. In the absence of evidence as to the way in which the 14% figure was arrived at and in the light of the likely future delay in the staging of the increases and the fact that the staged increases will occur over either seven or nine out of the 17 years for which future economic loss is awarded I will make an award based on an effective rate of superannuation of 13% of the net amount future loss of earning capacity. This gives a figure of $66,259.
Future out-of-pocket expenses
The evidence established that the plaintiff was taking and likely to continue to have to take OxyContin. Because of the restrictions on the availability of that drug the plaintiff was required to see his GP one time per month. The cost of this according to the plaintiff was $112 per month. The plaintiff’s actuarial life expectancy was 35 years. For this expense I will allow $26 per week for this period discounted at 3% (multiplier of 1138) which gives a figure of $29,588.
In relation to future medication, Exhibit 7 demonstrated that the plaintiff’s monthly bill for Endone, Endep and OxyContin was $239.70. This gave a weekly figure of approximately $55.40 which for 35 years discounted at 3% gives a figure of $63,045.
The plaintiff also claimed an amount for psychological counselling of $10,000. The plaintiff submitted that although there was no specific evidence of the amount or cost of counselling, having regard to the evidence about the plaintiff’s mental state it is proper that an allowance be made. The evidence in relation to the plaintiff’s mental state was principally that of Dr Zsadanyi who diagnosed the plaintiff with chronic adjustment disorder. The plaintiff has not in fact had any psychological or psychiatric treatment since the accident. He has been assessed for medico legal purposes by Dr Zsadanyi. It is quite understandable that the plaintiff has psychological problems causally related to the disabilities and pain caused by his injury. In those circumstances I consider it appropriate that some allowance be made for the need for psychological or psychiatric assistance. However, in the absence of any particular evidence about the regime that is required, the likely duration of treatment or the cost of their treatment, in my view only a small amount should be permitted. I therefore will award the plaintiff damages in relation to this claim of $3,000, which represents a modest buffer for such treatment in the future.
The total allowed for future out-of-pocket expenses is $95,633.
Griffiths v Kerkemeyer
The plaintiff’s evidence that his wife provides five hours of domestic assistance to him was not challenged in cross-examination. As a consequence the plaintiff did not call evidence from his wife addressing that issue. In those circumstances the plaintiff’s evidence should be accepted notwithstanding the view of Dr Wallace who said that approximately three hours per week was reasonable. However in my view there is a substantial overlap between this aspect of the claim and the claim for domestic assistance provided by the engagement of a cleaner. Neither the evidence nor the submissions effectively disentangled these two claims. Having regard to the cleaner engaged for four hours per week from the beginning of 2013 it is appropriate to reduce the amount under this head of damages by four hours down to one hour per week. The parties agreed that the rate of $35 an hour was an appropriate rate. That results in a figure for the past of $47,250 (5 years at 5 hours, 50 weeks at 1 hour). No claim for interest was made in relation to this amount. In relation to the future that gives a figure of $39,830 ($35 per week, 35 years at 3% discount (multiplier of 1138)).
Domestic assistance
This aspect of damages comprised four components. Damages were sought for the engagement of a domestic cleaner, a domestic gardener, the cost of firewood which previously would have been obtained without charge by the plaintiff and car servicing which would have previously been undertaken by the plaintiff.
I will deal with each of these aspects of damages separately.
In relation to cleaning the evidence establishes that the plaintiff and his wife have engaged a cleaner at a cost of $140 per week from early this year. Only $120 per week is claimed by the plaintiff. I am satisfied that that was necessary because of the plaintiff’s disabilities arising from the injury. That gives a figure of $6,000 (50 weeks x $120). No amount for interest for the past is claimed. In relation to the future the claim is made for the full life expectancy of the plaintiff. I am not satisfied that the plaintiff is entitled to that full period. The actuarial life expectancy of the plaintiff was 35 years which would indicate a life expectancy to age 85. I am not satisfied that any cleaning assistance beyond the age of 70 would not have been required in any event. I will therefore only allow it for 20 years. A loss of $120 per week over 20 years at a discount of 3% (multiplier of 788) gives a figure of damages for the future of $94,560.
In relation to gardening, the evidence establishes that since early 2013 when the plaintiff’s son moved to Perth, the plaintiff has had gardening assistance at a cost of under $100 per fortnight or $50 per week. I am satisfied that that assistance has been necessitated by the plaintiff’s disabilities which were caused by the accident. That gives an amount for the past of $50 per week for 50 weeks which is $2,500. No amount for interest for the past is claimed. In relation to the future, for the same reasons as I have given in relation to cleaning, the claim should be limited to 20 years. $50 per week over 20 years with a discount of 3% (multiplier of 788) gives a figure of $39,400.
In relation to firewood the plaintiff’s evidence was that prior to the injury he would cut firewood at his father in law’s property at Wagga Wagga and bring that back to Canberra to use in his wood fire at home. He would cut and use 10 tonnes of firewood per year. Because of his back injury he has been unable to do that and hence has bought firewood at a cost of between $285 and $300 per tonne, leading to an outlay of approximately $3,000 per year. He has claimed an amount equivalent to that both for six years in the past plus interest and an amount for the future based on continuing to use 10 tonnes of timber for the rest of his life. This claim of $3,000 per year for firewood was specifically identified in the plaintiff’s statement of particulars. The defendant did not lead any evidence to indicate that the plaintiff’s need for heating of his house could be achieved at a lesser rate than the $3,000 per year he has spent in the past and claimed for the future. Similarly the time, cost and effort involved in cutting the timber and transporting it back to Canberra was not a matter which was explored in evidence. As a consequence, notwithstanding that I think it is likely that the plaintiff’s need for heating could be met in a way which was less expensive using other means of heating, the evidentiary basis for a finding to that effect has not been laid and I will allow damages at the rate of $3,000 per year or $58 per week both for the past and future. In relation to the past, at $58 per week for six years gives a figure of $18,096. Interest at the rates required by the Court Procedures Rules gives an amount of $4,610. However I am not satisfied that the plaintiff would have continued to cut 10 tonnes of timber indefinitely into the future. In my view, even without the accident it is unlikely that he would have continued to deal with his heating needs in that way beyond the age of 58. It is possible that he might have continued for a few years longer but it is also possible he might have continued for a few years less. As a consequence so far as the future is concerned I will allow damages for that loss for a period of eight years in to the future. At $58 per week for eight years discounted at 3% (multiplier of 372) gives a figure of $21,576.
The plaintiff claimed the cost of having cars serviced. The evidence discloses that he used to do this for both his car and his wife’s car and that the cost of having this done for him commercially is approximately $2,400 per year or $46 per week. The defendant did not lay an evidentiary basis for reducing this claim to take account any expenses that the plaintiff would have incurred in servicing the vehicles. In relation to the past, six years at $46 per week gives a figure of $14,352. Interest on this past amount gives a figure of $3,656. In relation to the future, I am not satisfied that the plaintiff would have continued this activity beyond the age of 65. I consequently assess a figure of $29,072 for the future being $46 per week for 15 years with a discount rate of 3% (multiplier of 632).
Summary
In summary the damages that I award are as follows:
General Damages (agreed) $120,000 Interest on past component (agreed) $7,200 Past economic loss (agreed) $155,959 Fox v Wood (agreed) $25,299 Future loss of earning capacity $509,681 Superannuation – past $17,156 Superannuation – future $66,259 Out-of-pocket expenses – past (agreed) $81,252 Out-of-pocket expenses – future $95,633 Griffiths v Kerkemeyer – past $47,250 Griffiths v Kerkemeyer – future $39,830 Cleaner – past $6,000 Cleaner – future $94,560 Gardening – past $2,500 Gardening – future $39,400 Firewood – past $18,096 Firewood – interest on past $4,610 Future $21,576 Car service – past $14,352 Car service – interest on past $3,656 Car service – future $29,072 Award of damages $1,399,341.00
Orders
The orders of the Court are:
1. Judgment be entered for the plaintiff in the sum of $1,399,341.
2. Unless either party notifies my associate within 21 days of the date of these orders that it wishes to be heard in relation to costs, the defendant is to pay the plaintiff’s costs of the proceedings as agreed or assessed.
I certify that the preceding sixty-eight (68) numbered paragraphs are a true copy of the Reasons for Judgment herein of Master Mossop.
Associate:
Date: 20 December 2013
Counsel for the plaintiff: R S McIlwaine SC, A R Muller
Solicitors for the plaintiff: Nicholl & Co
Counsel for the defendant: S H Pilkington SC
Solicitors for the defendant: Dibbs Barker
Date of hearing: 2, 3 December 2013
Date of judgment: 20 December 2013
7
0