Stephen Matthew Turk v Adecco Industrial Pty Ltd
[2012] ACTSC 114
•27 July 2012
STEPHEN MATTHEW TURK v ADECCO INDUSTRIAL PTY LTD AND ANOTHER
[2012] ACTSC 114 (27 July 2012)
NEGLIGENCE – evidence not supporting pleaded case – fundamental change in the nature of the plaintiff’s case during hearing – no application made to change the plaintiff’s particulars of claim – held that it would be grossly unfair to the defendants to change the plaintiff’s claim at the latter stages of the hearing – judgment entered for the defendants
No. SC 498 of 2008
Judge: Burns J
Supreme Court of the ACT
Date: 27 July 2012
IN THE SUPREME COURT OF THE )
) No. SC 498 of 2008
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN:STEPHEN MATTHEW TURK
Plaintiff
AND:ADECCO INDUSTRIAL PTY LTD
ACN 004 366 634
First Defendant
AND:THE AUSTRALIAN CAPITAL TERRITORY
Second Defendant
ORDER
Judge: Burns J
Date: 27 July 2012
Place: Canberra
THE COURT ORDERS THAT:
Judgment will be entered for the defendants.
On 25 September 2007 the plaintiff, Stephen Matthew Turk sustained an injury whilst employed by the first defendant, Adecco Industrial Pty Ltd. Whilst the plaintiff was employed by the first defendant on that date, it had contracted out his labour to the Australian Capital Territory, and in particular, the Department of Urban Services, the second defendant in these proceedings. In this matter the plaintiff claims that his injuries were occasioned by the defendants’ negligence and/or breach of contract and he claims damages for the personal injury he sustained.
The defendants have denied liability. In the alternative, if it is established that the plaintiff’s injuries were sustained as a result of the negligence of the defendants or either of them, each defendant pleads contributory negligence against the plaintiff. In addition, each defendant has served on the other defendant a notice claiming contribution or indemnity.
The plaintiff was employed by the second defendant as a gardener. As part of his duties he was required to mow parks and other public areas. This was work that he had previously performed in Junee in New South Wales, where he had completed three years of a four-year horticulturalist apprenticeship, before moving to the Australian Capital Territory.
The plaintiff pleads his claim against the first defendant both in contract and in negligence. He says that the first defendant was obliged by contract, or alternatively owed him a duty:
(a)to take all reasonable precautions for the plaintiff’s safety while he was engaged in his work;
(b)not to expose the plaintiff to a risk of damage or injury of which the first defendant knew or ought to have known;
(c)to take all reasonable measures to ensure that the place where the plaintiff carried out his work was safe;
(d)to provide and maintain suitable and safe plant and equipment, to enable the plaintiff to carry out his work in safety; and/or
(e)to provide and maintain a proper and safe system of work.
The plaintiff alleges that the second defendant owed him a duty:
(a)to take all reasonable precautions for the plaintiff’s safety while he was engaged in his work;
(b)not to expose the plaintiff to a risk of damage or injury of which the second defendant knew or ought to know;
(c)to take all reasonable measures to ensure that the place where the plaintiff carried out his work was safe;
(d)to provide and maintain suitable and safe plant and equipment, to enable the plaintiff to carry out his work in safety; and/or
(e)to provide and maintain a proper and safe system of work.
In his Amended Originating Claim the plaintiff said that on 25 September 2007 in Kambah in the Australian Capital Territory, in the course of his employment with the first defendant, he was carrying out his work when he was injured due to a large branch falling from a tree under which he had been mowing causing him to suffer an injury to his neck and back. He further states that he was mowing a footpath and floodway area when the ride on mower that he was using bumped a tree and immediately a large dead branch fell from the tree landing on him in his neck region.
The plaintiff alleges that the first defendant was in breach of its obligations to him in contract in:
(a)failing to take any or any adequate precautions for the safety of the plaintiff while he was engaged in his work;
(b)exposing the plaintiff to a risk of injury of which the first defendant well knew or ought to have known;
(c)failing to heed warnings by the plaintiff of the risk of injury created by the system of work;
(d)failing to undertake any or any adequate identification or assessment of the risks to the plaintiff’s health associated with the plaintiff’s work;
(e)failing to implement risk control strategies to minimise the risk of injury to the plaintiff;
(f)failing to provide a cage or rollover protection for the ride on mowers used by the plaintiff;
(g)failing to provide a system of work that avoided the need for ride on mowers to be close to tree trunks; and/or
(h)failing to ensure that the area in which the plaintiff was required to work was safe.
With respect to his pleaded claim in negligence against the first defendant, the plaintiff also relies upon the doctrine of res ipsa loquitur.
The plaintiff alleges that the second defendant was in breach of its duty of care towards him by:
(a)failing to supervise or adequately supervise the plaintiff during the course of his work;
(b)failing to control the plaintiff in the manner within which he carried out his work;
(c)failing to provide the plaintiff with any or any adequate training in relation to his work.
In particulars provided to the solicitors for the second defendant the plaintiff alleged that the reasonable precaution for his safety which the second defendant should have taken was the provision of some form of extended rollbar or cage on the ride on mower used by the plaintiff, such that it covered the plaintiff’s head and protected him from falling tree limbs. Further, the plaintiff should have been supplied with a normal mower or with a whipper snipper to mow under the trees without having to use the ride on mower. He alleges that he was not provided with this equipment. The plaintiff also particularised the reasonable measures that the second defendant should have taken to ensure that the place where he was carrying out his work was safe as providing a ride on mower that had a rollbar or cage which would have protected his head and body, and further that the second defendant should have provided him with a mower or whipper snipper so that he could have undertaken the mowing under the trees with that equipment rather than the ride on mower. Further, the plaintiff says that the second defendant should have provided adequate supervision and training to him to advise that a mower or whipper snipper should be used when working underneath a tree, particularly if a limb was likely to fall.
The plaintiff also particularised his claim that the second defendant had failed to take all reasonable precautions for his safety while he was engaged in his work as follows:
It is alleged that the second defendant failed to properly supervise the plaintiff in that it did not provide adequate training or equipment to the plaintiff...the plaintiff will allege that the only training he was provided by the second defendant was it was necessary for him to be careful, however they did not give him any training or supervision in relation to working under trees when the ride on mower he had did not protect him from falling limbs. If the plaintiff had been provided with a ride on mower with a rollbar that protected his head and body, as well as some form of cage, then the injury would have been provided (sic). Further, the second defendant should have provided the plaintiff with additional equipment such as a whipper snipper or ordinary mower so that he could have worked underneath the tree with a much lesser risk of a limb falling on him as there would be less impact on a tree. The plaintiff will allege that the second defendant did not provide him with any training as to how he should mow on a ride on mower under trees similar to the one where the plaintiff suffered injury. (letter dated 15 July 2009 to the ACT Government Solicitor)
It is clear that the mechanism by which the plaintiff alleges he sustained injury as pleaded is that the ride on mower he was using to mow under a tree in a park in Kambah struck the tree, causing a limb to dislodge and to strike him on the back of his neck. The plaintiff said that the risk of such an injury occurring was foreseeable, and could have been avoided by the second defendant either providing a ride on mower with a cage for the plaintiff to sit in, or providing the plaintiff with equipment such as an ordinary mower or a whipper snipper to mow under trees such that he was not likely to strike the tree and dislodge a limb. It is very clear from the particulars which have been provided that the plaintiff does not allege that it was negligent, of itself, to allow him to work under a tree, or to work under the particular tree in question. It is not suggested that his case against the first defendant differs materially from that pleaded against the second defendant. Nor was it suggested that the plaintiff’s case in contract against the first defendant differed from the basis of his case in negligence.
The problem for the plaintiff is that the evidence does not support the case he has pleaded. On the day in question he drove the ride on mower to an area in Kambah that he had been directed to mow. He worked for roughly an hour, and then took a break. He gave this evidence of what then occurred:
What happened after that?---I then proceeded to keep mowing. I moved onto the next little area and there were a fair few trees in the line. I mowed around most of the trees. And then at about 9:30 I’d say, I felt a very sharp pain through the back of my neck, and something had struck me on the back of the neck at that time.
Did you know what had struck you on the back of your neck?---I was a bit dazed to start off with. I didn’t know what had happened. I got a fair bit of pain down my left side through my shoulder to my fingertips, a lot of numbness, and that also proceeded to my hip as well, so I got a bit worried and I gently turned around, and I could see the branch still mostly on the machine at the time. So I gently threw it off the machine and just tried to gather my wits about me for a few minutes before I figured out what had happened.
Do you have any recollection about the dimensions of the branch?---I’d say it was at least two and a half metres long, maybe longer, and it was about five to seven centimetres in diameter, the actual branch.
And was it, did it have leaf matter on it, or was it- - -?---No, it had no leaf matter on it.
And you, had you seen the branch as you approached the - - -?---No, I- - -
- - - for your mowing?---I didn’t see it at all. I had no idea it was there.
The plaintiff made a workers’ compensation claim with respect to incapacity arising out of his accident. On 17 December 2007 he provided a statement to the workers compensation insurer in which he described the circumstances of the accident:
... Then I jumped back on the mower and about 20 minutes after smoko I was driving the mower under a tree, to mow underneath it, and a branch fell down and hit me on the back of my neck. From what I could figure out and from what people have told me, I think that the mower’s roll bar had hit a dead branch on the tree and knocked it down. The roll bar is a metal bar that runs over the head of the driver, but slightly behind his or her head. It is a safety measure in case the mower was to roll over. I would say that the bar is about 30 centimetres behind the driver’s head, so while it would have helped if the mower had accidentally rolled, it did not shield me from the falling branch. I think that when the branch fell down, it must have fallen in between the roll bar and me. It hit my neck directly in between my hairline and my collar. As soon as the branch hit me I felt a numbness and tingling in my left arm. I also felt pain in my left hip. The branch was still hanging on my shoulders, so with my right arm I got rid of the branch and threw it on the ground. I would say that the branch was about 5 to 7 centimetres in diameter and about 2.5 metres long. It was a dead branch and so it wasn’t that heavy. I think that it was really just the exact place that it hit me that did the damage.
Under cross-examination the plaintiff was questioned further about the accident:
Now, in your statement you say “I was driving the mower under a tree to mow underneath it and a branch fell down and hit me on the back of my neck. From what I could figure out and from what people have told me, I think the mower’s roll bar had hit a dead branch on the tree on (sic) knocked it down.” What have people told you?---People have told me that that could have happened, and I wasn’t sure because I couldn’t see the branch myself. I didn’t know where it came from. So people just gave me instruction that’s what could have happened, but I still to this day have no idea.
...
MR PILKINTON: Did you prior to seeking to mow under that tree, did you look to see whether or not there were any branches, low-hanging branches?---Always.
And did you see any dead branch or branches on that tree?---There were many dead branches on that tree and they were a long way up.
You in fact, you told Mr Griffith, who you saw at the request of your solicitors in September of 2008, that you had noted that it, that is, the tree, had a number of dead limbs?---Yes.
Well, didn’t that cause you some alarm, that there were a number of dead limbs?---I think you’ll find most trees in the Kambah area, not only the Kambah area, in the whole of Tuggeranong, have a lot of dead limbs in them, and that they were up so high up, I never factored into my mind that one would come down.
How many dead branches do you think there were?---I couldn’t tell you, to be honest.
But clearly more than one on what you’re telling---? Probably three.
Probably three? Did you check to see whether it was safe to go underneath?---Yes.
Well, if it was safe to go underneath, how do you explain the fact that a branch fell on you?---I don’t know. I honestly don’t know how it happened.
Later in cross-examination the plaintiff gave the following evidence:
Now, after this incident, you instructed solicitors to act for you?---Yes.
And you told them what happened?---Yes.
And presumably you were aware that by virtue of the fact that you’re here, you know that proceedings were commenced on your behalf, and can I suggest to you that in the statement of claim that was filed on 25th of – the statement of claim is the document that commences court proceedings, all right?---Okay, yes, sorry.
Dated 25 June 2008, it says that you were injured due to a large branch falling from a tree. Presumably that’s what you told your solicitors?---Yes.
On 25 June – sorry, 23 April 2009, your solicitors filed an amended statement of claim - that’s a second one, okay - where it states that the ride-on-mower, that is, the ride-on mower that you were driving, bumped a tree, causing a large dead branch to fall. Do you recall telling your solicitors that?---No I can’t.
Is that what happened? Did you actually bump the trunk?---I didn’t feel it bump the tree.
HIS HONOUR: Mr Pilkinton, it didn’t say the trunk?
MR PILKINTON: No, I’m sorry, I withdraw that, the tree. Did you bump the tree?
Thank you, your Honour.
THE WITNESS: I didn’t feel it bump the tree. That’s why I didn’t know it was coming.
The plaintiff agreed that the day of the accident was fine and sunny, with nothing affecting visibility. He was aware of the potential danger occasioned by low branches, and accordingly checked the site for such hazards before he commenced to mow.
When cross-examined by senior counsel for the second defendant, the plaintiff said that the tree in question was “like a needle sort of tree ... like a pine sort of tree”. He was then questioned further about the circumstances of his accident:
And so before you mowed under it you could see branches in the – dead branches – in the tree itself- - -?---Yes I could.
- - - which you know aren’t secured to the truck because they’re dead?---Yes.
And can easily fall?---Not always.
Do they always fall?---They hardly ever.
But they can easily- - -?---Cut them down.
They can easily fall, can’t they?---I wouldn’t say easily, not in my recollection of tree pruning and things like that.
And, in fact, sometimes the branches are dislodged from the truck and are just sitting there waiting to fall?---I didn’t see any of that.
Didn’t you? What did you see?---I saw probably three-quarters of the way up the tree about three branches that were of a dead nature.
And did you pay much attention to them?---I did to start off with.
But you went ahead anyway?---Yes.
You have no recollection of bumping anything?---I didn’t bump anything.
(emphasis added)
In the light of the plaintiff’s evidence about checking the scene for low hanging branches, and observing none, prior to moving under the tree, it is improbable that the branch fell as a result of the ride on mower hitting a low hanging branch. The plaintiff’s evidence that he did not “bump anything” makes it improbable that the ride on mower struck either a branch or the trunk of the tree. All the dead branches the plaintiff observed in the tree were attached to the trunk. The options as to how the accident occurred appear to be:
·there was a dead branch not attached to the trunk, whose presence was not observed by the plaintiff due to foliage, which either spontaneously, or by some other means (such as a bird alighting on the branch), dislodged and fell on the plaintiff; or
·one of the dead branches attached to the trunk and observed by the plaintiff spontaneously, or by some other means, broke away from the trunk and fell on the plaintiff.
There is no reason to suppose that an inspection of the site of the accident by the first defendant or second defendant would have revealed anything other than what the plaintiff observed.
The plaintiff brings his case on the basis that the ride on mower struck either a branch of the tree or its trunk, and that this caused the branch to fall on him. He says that was a foreseeable risk, and that his injury could have been avoided by providing protection by way of an enhanced roll bar or by a cage protecting him on the mower, or that he should have been provided with, and instructed to use, an ordinary mower or a whipper snipper to mow under the tree. The danger that the plaintiff rests his case on, as pleaded, is the danger of the ride on mower hitting the tree or some part of the tree such as a low branch and causing a branch to fall from the tree. The provision of a ride on mower with an enhanced roll bar or a cage protecting the driver is a measure calculated to meet that danger. Those measures would, coincidentally, also protect against any danger presented to someone working under the tree from spontaneously falling branches. The provision of an ordinary mower or whipper snipper is also a measure calculated to meet the danger pleaded by the plaintiff, in that the use of such measures would reduce the risk of, and level of, impact with the tree thereby reducing the risk of branches being dislodged. This measure, of course, would not protect against the danger presented by spontaneously falling branches.
The fact that some of the measures proposed by the plaintiff to meet the danger pleaded would also meet the danger that eventuated is not to the point. This does not change the plaintiff’s case as pleaded. The purpose of pleading is to set the forensic boundaries of the dispute between the parties. During his closing submissions counsel for the plaintiff suggested that it was open on the evidence to find that the defendants should have provided the plaintiff with some form of head protection, presumably a hard hat or helmet, so as to avoid the risk of the type of injury that eventuated. There are two responses to this. First, the plaintiff did not particularise the provision of head protection of this nature as a course the defendants should have taken so as to provide the plaintiff with a safe workplace. I note that counsel made no application to amend the particulars. Secondly, and more importantly, to suggest that the defendants owed the plaintiff a duty to protect him from injury occasioned by spontaneously falling branches would be to fundamentally change the nature of the plaintiff’s case. The plaintiff went to trial on a case alleging that it was reasonably foreseeable that a relatively large, ride on mower may come into contact with low hanging branches or the trunk of a tree during the course of mowing around the trunk of the tree, thus causing a branch to dislodge and strike him. That case has particular, identifiable causation and forseeability issues. Different issues arise in a claim based on a case of spontaneous fall. For example, evidence of the likelihood of a limb falling spontaneously from trees generally, or this particular species of tree, would be necessary in order to determine whether it was a risk that a reasonable employer would guard against. To allow the plaintiff to change the basis of his claim at such a late state of the hearing would be grossly unfair to the defendants.
There must be judgment for the defendants.
Damages
In accordance with accepted practice I will, despite my finding on liability, assess the damages that the plaintiff would have been entitled to had he succeeded.
After the accident the plaintiff suffered pain through his neck, arm and hip. He drove his mower back to the depot at Kambah and his supervisor drove him to the Phillip Medical Centre in the Australian Capital Territory where he saw his usual GP, Dr Sanderson. A neck brace was fitted, and he underwent an X-ray and a CT scan. He was sent home and given a certificate for a week off work. Over the next week he suffered a lot of neck pain, numbness through the left side and down his arms to his fingertips, and a painful hip. He also suffered headaches. The pain in his hip subsided over that week.
The plaintiff took Panadeine Forte, Panadol and Voltaren tablets. He found he could not sleep well. He also underwent physiotherapy at the Phillip Medical Centre in the Australian Capital Territory a few weeks after the accident. Not long after, he was sent to see Dr Chandran, a neurosurgeon. The plaintiff testified that Dr Chandran suggested a cortisone injection, and, if that was unsuccessful, surgery could be considered in six to 12 months time.
In addition to the physical symptoms referred to, the plaintiff developed psychological symptoms. He felt that the television was talking to him directly and became paranoid. He saw Dr Sanderson again who put him on different medication, including Effexor. The plaintiff described himself as “depressed” and “miserable” in the aftermath of the accident.
The plaintiff remained off work until December 2007 when he returned to light duties with the first defendant. He started working two hours a day. He continued to receive workers’ compensation benefits until he moved to Junee in New South Wales in mid 2008. The plaintiff had lived in Junee some years earlier. While he was working for the first defendant on light duties he continued to suffer pain in the back of his neck, throbbing headaches, and tingling down his left side through his arm. He could not sit or stand for very long and was having reduced sleep.
In December 2007 the plaintiff visited Junee and saw a local doctor, Dr Corbett, who reduced his pain medication and increased his dose of Effexor. He subsequently saw a psychiatrist, Dr Patterson, who prescribed Lithium, which helped to stabilise him.
When the plaintiff moved back to Junee in 2008 he was still suffering neck pain, daily headaches, numbness and tingling down his left side and arm and his psychological symptoms. When he moved to Junee the workers’ compensation insurer stopped his payments.
Before the plaintiff moved to Canberra he had been undertaking a horticulture apprenticeship. When he moved to Canberra he found it hard to find someone to take him on as an apprentice, so he decided to take whatever work he could and then try to complete his apprenticeship further down the track. He testified that he always wanted to do gardening, and that he intended to do it until he retired.
The plaintiff testified that approximately half a year after the accident he started gambling as a release from the pain, anxiety and stresses involved in his injury. When he was on Centrelink payments he found that he would be spending three quarters of his payment fortnightly on gambling. He also spent money from his partner’s earnings. He said that he did not believe that he had a gambling problem before the accident. He saw a gambling counsellor in Wagga Wagga in New South Wales, and also a psychiatrist, about the issue. He said he found the counselling very useful. He continues to have treatment from his psychiatrist, Dr Luke Johnston.
The plaintiff testified that he is only able to do light chores around the house. He is able to get clothes off the line, but he has to be careful because his left arm is “weak and sore”. He is able to do the dishes, and a bit of cooking as well. He is not able to do any renovation work around the house or any gardening.
After moving to Junee the plaintiff looked for work. He was able to gain employment at a job agency in Wagga Wagga as case manager for job seekers coming into the area. He was only in that job for about a month and a half. He found it very stressful and demanding on both his body and also his mental state. He started to get very depressed, and was anxious about everything, and also experienced psychotic symptoms. He also found he was in a lot of pain because it was predominately a sitting down job. There was a lot of computer work involved, as well as telephoning prospective employers. In that position he was earning approximately $1,200.00 per fortnight after tax. Subsequently he has been successful in obtaining a few job interviews, but has not yet been able to find employment. He believed that he could work in the area of car sales and retail work. He did not believe that he would be able to undertake the type of work that he had been undertaking when he was injured. His psychotic symptoms are currently stable due to medication. He understands that he will need to take that medication for the rest of his life. He has gained 20 kilograms since the accident. He is currently undertaking job retraining by way of an online retail certificate course through the Wagga Wagga Technical College.
The plaintiff’s partner, Courtney McNamara gave evidence. She has known the plaintiff for about nine years and has been in a relationship with him for about eight and a half years. She described him as a “happy-go-lucky” person before the accident, saying that he was very sociable and involved in a lot of sport. She described him as just generally a happy person. Ms McNamara came to Canberra to do a hairdressing apprenticeship in 2004, and was followed about 12 months later by the plaintiff. She said that the plaintiff used to help out a lot around the house, doing a lot of maintenance, gardening work and helping with the washing. She was unaware of him having any gambling difficulties before the accident. After the accident she noticed a change in his demeanour, in that he did not seem happy and was unsociable. There were a lot of things that he could not physically do, and she found herself doing a lot more of the housework and other duties. The plaintiff seemed to be uncomfortable all the time and he did not sleep very well.
Ms McNamara noticed when she returned to Junee with the plaintiff in December 2007 that the plaintiff was “very irate, had no patience ... and he was just upset”. He was telling her and his parents that he “heard voices”. They immediately took him to the Junee Hospital to seek treatment, and it was recommended that he stop using the pain killing patches he had been using.
In 2009 Ms McNamara purchased a house in Junee. It required significant renovations which the plaintiff was unable to assist in. Most of the work was done by Ms McNamara’s father. Ms McNamara said that the plaintiff was very limited in the work that he could do around the house and the garden.
Medical Evidence
A report by Associate Professor Owen B White dated 7 March 2008 was tendered by the plaintiff. The report outlines the plaintiff’s social background, stating that he was born in Sydney and educated to the end of Year 12 before undertaking an apprenticeship in horticulture. The plaintiff has continued in that field ever since that time, working as a horticulturalist, gardener and occasionally as a labourer. The report noted that the plaintiff has been employed by the first defendant and seconded to “Parks and Places” removing trees and undertaking general gardening work, including mowing. The report noted that the plaintiff is single, lives with his girlfriend, and does not have any children. The plaintiff previously helped with all the household cleaning, as well as playing competitive cricket, social soccer and hockey. He considered himself to be very active. The plaintiff also considered himself entirely fit and healthy prior to his work injury, and there was no prior history of injury or illness.
The report also gives a history of the plaintiff’s injury. It states that on 25 September 2007 the plaintiff was operating a ride on lawn mower under a tree when a tree branch broke off and hit him across the back of the neck and shoulders. The plaintiff did not have any loss of consciousness but was aware of immediate severe pain at the site of impact associated with numbness and paraesthesia radiating down the whole of his left arm into his hand and fingers. At the time of the injury the plaintiff was also immediately aware of some pain radiating towards his left hip, though this appears to have resolved very rapidly. The plaintiff attended a medical centre in Phillip in the Australian Capital Territory and was referred for a CT scan of his cervical spine. On review of those films, Associate Professor White agreed with the report indicating that there is some minor degenerative change. The report noted that at C4/5 there is a left sided disc protrusion just impinging on the expert foramen but not clearly impinging on neural structures. At C6/6 however there is a left-sided disc protrusion impinging on the foramen and probably displacing the C6 nerve root. The report noted that an MRI was performed approximately one week later and showed similar findings.
Associate Professor White also noted that the plaintiff had been referred to the Canberra Injury Management Centre and was placed on medication for pain and depression management. Whilst the plaintiff still suffered from pain, he had been able to return to office work four hours per day, three days per week. Associate Professor White examined the plaintiff and noted focal tenderness at C5 on the left where there was some muscle spasm. All cervical movements were associated with pain at the extremes of movement. Right lateral flexion was limited to 20 degrees and lateral rotation in each direction was limited to 6 degrees.
Associate Professor White was of the opinion that the plaintiff’s presentation was consistent with acute disc injury, primarily at C5/6 on the left. He considered that conservative treatment should be continued for at least three to six months. There remained the possibility that surgery may be required in the long term. He was hopeful that the plaintiff would be able to return to full duties “in the long run”.
A subsequent report dated 7 August 2009 was provided by Associate Professor White. He noted the plaintiff’s continued complaints of pain in the cervical spine radiating to the left shoulder and intermittently down the left arm. This was aggravated by activity. On this occasion Associate Professor White seemed to consider the plaintiff’s complaints, while apparently unchanged, consistent with left C5 nerve root entrapment at the C4/5 level. He did not believe the plaintiff was fit to return to work as a gardener, but should be able to manage light work which allowed him to move around and did not require lifting of more than 10 kilograms at a time. Whilst there was still significant opportunity for rehabilitation, he considered the prognosis to be guarded.
A report by Dr K Nadana Chandran dated 21 August 2008 was tendered by the plaintiff. This report contains a history as given by the plaintiff, stating that the plaintiff was a horticulturalist and was working in this role on 25 September 2007 when he suffered injuries to his back. According to the report the injury was sustained when the plaintiff was riding a ride on mower when a branch of a tree fell on his back. Soon after this event the plaintiff developed neck and left arm pain with pins and needles in the hand and a numb feeling in the arm, which radiated along the outer boarder of the forearm into the thumb and index finger.
Dr Chandran noted that the plaintiff was seen by his general practitioner, referred for a CAT scan, an MRI scan and physiotherapy. While there was improvement in the plaintiff’s symptoms, it was apparently insufficient to enable him to return to work. It was noted that the plaintiff applied hot packs and took anything up to six tablets of Panadeine Fort a day, as well as anti-inflammatory medications. At the time of the consultation with Dr Chandran the plaintiff was not working.
On examination, Dr Chandran noted that the plaintiff’s upper limbs showed normal power, reflexes and sensation. The plaintiff’s neck movements were moderately restricted in lateral flexion and rotation. Dr Chandran also noted that there was bilateral diffuse tenderness over the back of the neck and flexion extension also showed moderate restriction.
Dr Chandran noted that the plaintiff’s CAT scan of 26 September 2007 showed degenerative changes at C4/5 levels with disc bulge and osteophyte formation indicating pre-existing degeneration. The scan also showed a mild narrowing of the left C5 intervertebral foramen and possibly an acute left posterolateral disc protrusion at C5/6 level. The MRI scan of 5 October 2007 showed desiccation of the C4/5 disc and a left posterolateral disc bulge extending into the left C5 root foramen and probably compressing the exiting nerve root. No other abnormalities were found at C5/6 level.
Dr Chandran noted that the plaintiff was referred for a CT guided perineural block at the C4/5 level and reviewed on 3 January 2008. The plaintiff stated that the injection had made his pain worse for two weeks and he still had neck pain, headaches, left shoulder pain and stiffness in the neck. He was taking the anti-depressant medication Effexor and using Durogesic patches as analgesics. At the time the plaintiff was working two hours per day, three days per week and restricted to light duties.
Dr Chandran noted that the plaintiff was advised that if his symptoms persisted he may have to consider a cervical disc excision and fusion procedure within the next three to six months to relieve his symptoms. The plaintiff was also advised that if the pain improved he may consider a graduated return to more hours of work. The report noted that the plaintiff left his employment in June 2008.
In giving his opinion, Dr Chandran noted that the history given by the plaintiff indicated that there was a work-related injury on 25 September 2007 leading to pain in the neck and left arm. The symptoms were suggestive of nerve root irritation and a disc injury. Dr Chandran noted that the plaintiff had moderate restriction of movements, no neurological deficits in the upper limbs and CAT scan and MRI scan evidence of a disc bulge at C4/5, which was the probable source of the plaintiff’s pain. Dr Chandran noted that conservative treatment was being pursued at the time of the last consultation. If the plaintiff’s symptoms persisted and he wanted to pursue surgical treatment, Dr Chandran noted that it would be necessary to consider a discogram and proceed to an anterior fusion. At the time of the consultation Dr Chandran did not consider the plaintiff fit for the physical work of a labourer, though Dr Chandran considered the plaintiff fit for part-time light duties.
A report by Dr John Sanderson dated 27 September 2008 was tendered. The report contains a history of the incident, stating that the plaintiff was mowing a tract of grass in Kambah when the roll bar of the mower hit a tree branch. The tree branch broke off and struck the plaintiff above the collar line of the neck, causing severe pain in the neck and radiating pain down the left arm. When Dr Sanderson saw him, the plaintiff was sitting rigidly on a trolley in the treatment room. The plaintiff indicated that he had severe pain and tenderness in the posterior and left side of the neck, with pain tingling down the left arm. Dr Sanderson immediately applied a cervical brace and ordered an X-ray of the cervical spine to exclude cervical fracture and spinal cord injury. The X-ray showed no fracture but a CT scan indicated a C4/C5 disc bulge predominantly to the left.
Dr Sanderson noted that in the subsequent 12 months the plaintiff had slowly improved, but still suffered from neck pain. Dr Sanderson noted that the plaintiff had seen several specialists, undergone numerous scans and cervical blocks, but was still in pain. Dr Sanderson last saw the plaintiff on 12 April 2008 and at that time the plaintiff was still undergoing rehabilitation and was under a rehabilitation provider.
Dr Sanderson noted that the injuries suffered by the plaintiff included soft tissue injury to the cervical spine, rupture of C4/5 disc, spinal cord indentation from disc material, reactive depression, and shock. Dr Sanderson states that the plaintiff is unable to ever resume heavy manual work due to cervical pain and spasm. Dr Sanderson noted that the plaintiff had received treatment, specifically physiotherapy, cervical spine facet blocks, analgesic and anti-depressant medication.
Regarding further treatment, Dr Sanderson noted that though the current neurosurgical opinion is against surgery, the plaintiff may still require surgery if the disc pathology worsens and he develops precise radicular pain and loss of function. The plaintiff will require ongoing medications in terms of analgesia and anti-depressants. Dr Sanderson noted that physiotherapy and strengthening exercises are required from time to time according to the plaintiff’s symptoms.
Dr Sanderson is of the opinion that this was a devastating injury to a young man in the prime of his life. The plaintiff will suffer many years of incapacitating pain, weakness, stiffness of his neck and he will be prone to long periods of reactive depression. In terms of percentage disability, Dr Sanderson would rate the plaintiff as 20 per cent permanently disabled from the cervical spine point of view and 10 per cent from the reactive depression aspect. Dr Sanderson noted that the plaintiff is unemployable in the manual labour marker and will need to re-train into more sedentary careers.
In his prognosis, Dr Sanderson found that the plaintiff would suffer five to seven years of pain and loss of mobility in the cervical spine and would also suffer accelerated degeneration of the cervical spine.
A report by Dr Graeme G Griffith dated 7 November 2008 was also tendered by the plaintiff. The report contains a history of the plaintiff’s occupation and work duties. Dr Griffith noted that the plaintiff’s work was physically demanding. The plaintiff’s normal hours of work were between 7.30 am and 4.45 pm with a 45 minute lunch break. For the duration of his employment, the plaintiff was attached to the Kambah Depot. His work involved operating a Toro gang mower (a medium sized tractor powered mower), push mowers and also tree pruning, use of chainsaw and shears.
In regards to the plaintiff’s prior health history, Dr Griffith noted that the plaintiff reported no serious significant injury other than sport-related soft tissue injuries. The plaintiff had not been subjected to any form of operative surgery prior to the injury. The plaintiff considered himself fit and well at the time of the incident.
In describing the incident resulting in the plaintiff’s injury, Dr Griffith noted that the plaintiff was operating the gang mower on a flood way at approximately 9.30 am in fine conditions. The machine was fitted with a roll bar. The plaintiff was mowing under a tree with a trunk approximately 35 centimetres in diameter which he believed was a conifer. The plaintiff noted that the tree had a number of dead limbs. Whilst concentrating on mowing and gripping the wheel with both hands, the plaintiff received a sudden blow in the cervical region between his collar and his hairline, which knocked him forward without warning. The plaintiff was aware of immediate sharp pain in the cervical region and paraestesiae in the left arm extending to the fingertips on the left side. The plaintiff stated that the branch which had fallen without warning struck him in the manner described was approximately six centimetres in diameter and approximately two and a half metres long. The plaintiff was unaware of the height from which the branch fell. The plaintiff did not lose consciousness. After the incident the plaintiff remained sitting for some minutes before driving slowly back to the depot, which was approximately five minutes away. He was able to move his left leg, but his left arm was dangling with pain. In the cervical region he experienced major muscle spasm, stiffness and global restriction of all movement.
In relation to the plaintiff’s initial/early treatment, Dr Griffith noted that the plaintiff was taken to medical care at Phillip in the Australian Capital Territory where he was seen by Dr John Sanderson, who immediately referred the plaintiff to the Radiology Department at the clinic. The CT scan revealed a spastic cervicothoracic scoliosis to the left, osteophytes left uncovertebral articulation C4/5 of degenerative rather than post-traumatic origin. The CT scan also revealed a transverse disc bludge at C4/5 compressing the left side of the theca and minor narrowing of the left C5 intervertebral foramen. At C5/6 there was an apparently acute left posterolateral disc protrusion with the lateral recess displaced at the left C6 nerve root. Dr Griffith noted that these findings were entirely consistent with the nature of the accident described and the plaintiff’s complaints and clinical symptoms.
Dr Griffith noted that the MRI of 5 October 2007 confirmed degenerative change at C4/5, a broad based left posterolateral disc protrusion. Dr Griffith felt that there was a dichotomy in that the stated level of protrusion is C4/5 rather than C5/6. In light of the plaintiff’s symptoms and after viewing the films, Dr Griffith was of the opinion that the left C5/6 is the site of the lesion, rather than C4/5.
Dr Griffith noted that steroid injections were administered to the plaintiff’s perineural area of C4/5 at neurosurgeon Dr Chandran’s request on 26 November 2007. The plaintiff reported that this procedure was not only painful, but it also completely failed to relieve his symptoms, even for a short period. Dr Griffith suggests that this is because it was in fact the C5/6 level that was affected rather than the C4/5 level.
Dr Griffith noted that the plaintiff was taking Panadeine Forte in the dose of four to five daily, complemented by Voltaren orally and Voltaren Emugel topically. The plaintiff also used a heat pack.
The plaintiff reported to Dr Griffith that as time passed the range of motion slowly increased, but he remained symptomatic. Rotation to either side and extension of the cervical spine were particularly uncomfortable with lateral flexion to the left side aggravating tingling in the C6 dermatome. When asked, the plaintiff reported a cervicogenic occipitofrontal headache since the injury. There was also focal tenderness at C5/6 level in the midline on palpation. The plaintiff’s right upper limb was not affected.
The plaintiff had two to three attendances at physiotherapy per week for six months at Phillip, but without major or sustained improvement. His pain management was complemented by Fentanyl patches, changed every three days. The exercises advised by the physiotherapist did produce some improvement, but this was short term only.
The plaintiff advised Dr Griffith that in the first instance he was unfit for work for five months. The plaintiff returned to work performing specified duties in the first defendant’s office of a clerical nature, working 15 hours per week. The plaintiff reported finding that work difficult as keying and static posture aggravated his symptoms.
Dr Griffith noted that the plaintiff attended the Canberra Injury Management Clinic and was subjected to their integrated treatment program under the supervision of a physiotherapist who manipulated his neck and back, which unfortunately aggravated his symptoms. He was also seen by a psychologist for stress management and cognitive behaviour therapy on four or five occasions, which he found useful. The plaintiff complained that he suffered paraesthesiae three days per week, with pain in the C6 dermatone, which “comes and goes”. His grip strength was impaired, and he complained of the intensity of the pain as varying between five to seven out of ten.
The plaintiff reported that he was not coping well emotionally. He exhibited typical manifestations of a chronic adjustment disorder, with manifestations of depression and anxiety. This was characterised by early morning waking and rumination, and thus chronic tiredness follows. This was complemented by dysphoria, irascibility, social withdrawal and marked compromise of his physical relationship due to loss of libido and dyspareunia.
The plaintiff complained of a loss of ability to undertake duties around the home. Attempts at hanging clothing out to dry aggravated his symptoms. He was able to do a little cooking, albeit in discomfort, and prefers not to drive for longer than 60 minutes. He accompanies his partner shopping but does not lift heavy shopping baskets. He does not clean wet areas, nor does he iron.
In summary, Dr Griffith considered that the plaintiff had suffered nervous shock, mild concussion and an acute musculoligamentous strain in the accident, all of which had resolved. However, he had also suffered a left posterolateral protrusion at the C5/6 disc, an acute left sided C5/definite C6 with compression radiculopathy into the left upper limb, and an acute aggravation of C4/5 left sided uncovertebral spondylosis, which was pre-existing. As a consequence he had persisting cervical myalgia, cervicogenic headaches, persistent irritative neuropathy with left C5 neuralgia/paraesthesia, a chronic adjustment disorder with manifestations of depression and anxiety, and progression of C4/5 spondylosis.
Dr Griffith considered that the plaintiff required further treatment. He considered that conservative treatment was appropriate at that time, but that surgery may need to be considered in the future. Cost of such surgery would be in the order of $25,000.00. Following surgery he would be expected to make a full recovery, allowing at least three months for reasonable consolidation of any graft between the affected vertebrae. He considered that the plaintiff’s work capacity remained markedly restricted at that time, with no expectation of early major improvement.
Also tendered was a psychiatric assessment report by Dr Zoltan Zsadanyi dated 28 May 2010. Dr Zsadanyi provided a history for the plaintiff, stating that at the time of the report the plaintiff was 26 years old and had been living with his parents. The plaintiff and his partner had at that time been together for six and a half years, and had recently bought a house together. They had no children.
Dr Zsadanyi noted that the plaintiff was born in Sydney and grew up there until the age of 15 years when his father moved to Junee in New South Wales for work-related purposes. The plaintiff completed Years 11 and 12 in Junee, and worked there for a three year period in a horticultural apprenticeship before moving to Canberra for three to four years.
Dr Zsadanyi noted that the plaintiff continued to experience ongoing numbness and pain. The plaintiff noted less extreme variability to his moods. He was withdrawn socially, and no longer involved in sport. He no longer undertook gardening or helping around the house at his parents’ home. He felt that he had become a burden on everyone. The plaintiff stated that he did not do very much during the day time.
Dr Zsadanyi considered that after sustaining the neck injury the plaintiff developed symptoms consistent with depression. He was prescribed anti-depressant medication and thereafter started experiencing mood swings. It was Dr Zsadanyi’s opinion that the plaintiff developed depressive symptoms secondary to chronic pain which was as a result of the physical injury which occurred on 25 September 2007. Dr Zsadanyi was unable to determine whether the plaintiff’s onset of bipolar affective disorder is secondary to anti-depressant medication, or if the plaintiff had an underlying pre-disposition to developing a psychiatric disorder which the physical injury unmasked.
On behalf of the second defendant a report from Dr M Barrett, consultant psychiatrist, dated 6 June 2011 was tendered. Dr Barrett noted the history of the plaintiff’s injury on 25 September 2007. Dr Barrett also noted the history of the plaintiff’s psychiatric symptoms subsequent to the accident. It was Dr Barrett’s opinion that the most likely diagnosis was one of schizoaffective disorder, with a differential diagnosis of bipolar one disorder. He noted that the cause of schizoaffective disorder was not completely understood. Current psychiatric understanding is that patients have a pre-existing vulnerability to developing the disorder, which may begin following a stressor, either physical or psychological. It was his opinion that it was likely that the plaintiff had a pre-existing vulnerability, and that the onset of his symptoms soon after his physical injury indicate that they may well have been triggered by the heightened stress resulting from his injury. Dr Barrett was not able to determine whether or not the plaintiff would have experienced the onset of his illness at this time or at a later date in the absence of the injury. Whilst this latter statement by Dr Barrett is somewhat cryptic, I understand him to be saying that he is of the opinion that the onset of the plaintiff’s psychiatric illness is causally connected with his injury, but that if he had not been injured he may nevertheless have developed that illness. When he may have developed it is unpredictable.
Consideration
I found the plaintiff to be a straightforward, honest witness. There was nothing that I saw in the surveillance video of him that leads me to change that opinion. I am satisfied that on 25 September 2007 he was hit by a branch falling from a tree in Kambah while he was undertaking his duties as a gardener working for the second defendant. As a result he suffered a protrusion at the C5/6 disc with radiculopathy into the left upper limb and aggravation of a left sided C4/5 spondylosis. The pain from this injury, and its effect on the plaintiff’s life, acted as a stressor causing the onset of psychiatric illness.
Since the accident the plaintiff has been, and continues to be, unfit for duties as a gardener. He can undertake work such as car sales or retail, so long as he is able to move around and is not required to lift more than 10 kilograms at a time. It is probable that his physical condition will either improve over the next two years, or he will have to undergo surgery as postulated by Dr Griffith. In either event, any future economic loss based on his physical injuries should not extend beyond three years from this date. His psychological sequelae to the accident will remain indefinitely, but is able to be controlled by appropriate treatment and medication such that his ability to work will not be reduced. It is not possible to mathematically quantify the plaintiff’s future economic loss over the next three years. In his employment at Summit Employment in Wagga Wagga he earned $1,200.00 per fortnight after tax. In his employment with the second defendant, as I understand it, he was earning $15.80 per hour (exhibit 5), which on a 38 hours week equates to $1,088.00 per fortnight after tax using the weekly tax tables available on the Australian Taxation Office website. On the basis of these figures it does not appear that the plaintiff will suffer any economic loss over the next three years other than for time taken to rehabilitate from surgery. I would allow a buffer of $5,000.00 for this.
The plaintiff’s past out of pockets total $26,205.69. His past economic loss totals $99,000.00 (198 weeks at $500.00 after tax per week), with interest of $19,800.00 on that sum. I would assess general damages at $90,000.00, of which $60,000.00 would be for the past. I would allow $2,700.00 interest on that sum. I would allow $30,000.00 for future medical expenses and $20,000.00 for domestic assistance.
I certify that the preceding seventy eight (78) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Burns.
Associate:
Date: 27 July 2012
Counsel for the plaintiff: Mr A Muller
Solicitor for the plaintiff: Slater & Gordon
Counsel for the first defendant: Mr S Pilkington
Solicitor for the first defendant: Dibbs Barker Lawyers
Counsel for the second defendant: Mr B Meagher SC
Solicitor for the second defendant: ACT Government Solicitor
Date of hearing: 11 April 2012
Date of judgment: 27 July 2012
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