Sutton v Victorian Alps Wine Company Pty Ltd
[2014] VCC 2183
•19 December 2014
| IN THE COUNTY COURT OF VICTORIA AT WODONGA CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
Case No. CI-13-05029
| DARREN EARL SUTTON | Plaintiff |
| v | |
| VICTORIAN ALPS WINE COMPANY PTY LTD (ABN 88 077 074 965) TRADING AS GAPSTED WINES | Defendant |
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JUDGE: | HIS HONOUR JUDGE DYER | |
WHERE HELD: | Wodonga | |
DATE OF HEARING: | 29, 30 September, 1, 2, 3, 6, 7, 8, 9, 10 and 14 October 2014 | |
DATE OF JUDGMENT: | 19 December 2014 | |
CASE MAY BE CITED AS: | Sutton v Victorian Alps Wine Company Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 2183 | |
REASONS FOR JUDGMENT
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Subject:INDUSTRIAL ACCIDENT
Catchwords: Industrial accident – single incident – injury to dominant shoulder – pain and suffering claim only – system of work – statutory duty – contributory negligence – assessment of pain and suffering damages
Legislation Cited: Accident Compensation Act 1985
Cases Cited:Andar Transport Pty Ltd v Brambles Ltd (2004) 217 CLR 424; Liftronic Pty Ltd v Unver [2001] HCA 24; Nicol v Allyacht Spars Proprietary Limited (1987) 163 CLR 611; Van Der Sluice v Display Craft Pty Ltd [2002] NSWCA 204; Czatyrko v Edith Cowan University [2005] HCA 14
Judgment: Judgment for the plaintiff.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M Waugh | Harris Lieberman |
| For the Defendant | Ms K Galpin with Mr R Stanley | Wisewould Mahoney |
HIS HONOUR:
1 April 2010 was vintage time at the Gapstead winery. Darren Sutton was one of the cellar supervisors employed at the defendant’s winery. He was just finishing his shift around 6.30pm on 12 April when he received a call on the two-way radio asking him to adjust some valves on the heating and chilling system of the winery. The particular valves to be adjusted were located on large pipes approximately 3.65 metres above the concrete floor of that part of the premises. The valves were in the vicinity of chilling machines where the must (or crushed grape juice) was chilled or heated, depending on the winemaker’s requirements.
2 Mr Sutton climbed up on a metal bench, which sat at about waist height, and stepped onto the tops of the two chiller machines, and then negotiated some horizontal pipework in order to reach the valves. Photographs showing the location of the valves, described as “high brine valves”, the vertical brine pipes descending from these and the two chiller units were tendered in evidence (Exhibit A) and were produced to the jury which was originally empanelled to determine this proceeding.[1]
[1]On 9 October 2010, following an opposed application by counsel for the plaintiff, I made orders discharging the jury without verdict and proceeded to determine the matter as a cause.
3 According to the plaintiff’s evidence, which I accept on this point, he had climbed to the top of four horizontal pipes on top of the large chiller unit and had adjusted the valves as required. In descending from that position, he stepped not back onto the metal bench, but rather used horseshoe-shaped tubes abutting from the front of the smaller chiller unit as a type of step ladder to descend from his position. He stated in evidence that the adjustments to the high brine valves were rare, perhaps once or twice a year, and he could only recall doing it on one other occasion.
4 His evidence was that he was doing this task on 12 April 2010 in a manner he had been shown on an earlier occasion by Dylan Hetherington, a former supervisor.
5 As the plaintiff stepped down onto the top horseshoe-shaped tube on the chiller unit, it collapsed, having been left loose, and he was left hanging by his outstretched right arm, which had been holding onto a vertical steel support during this manoeuvre.
6 He then fell to the ground, apparently a relatively short distance of approximately one metre, and was immediately aware of pain in his back and his right shoulder. The incident was witnessed by a co-worker, Peter Glidden, who also gave evidence in the proceeding. The plaintiff completed an entry in the defendant’s register of injuries on the day of the incident.[2] This recorded the incident as having occurred at 6.30pm and described it as follows:
[2]Exhibit B
“Fell down from must chiller whilst climbing down after reattaching chill pipe. Took full weight on right arm whilst holding onto support brkt. Fell heavily onto left leg.”
The document recorded the nature of injury as follows:
“Right arm and shoulder pain very sore – wrenched shoulder – sore back/leg.”
7 The defendant accepted that the incident had occurred and the principal issue in dispute concerned the question of liability. The trial proceeded to occupy some six sitting days of evidence before a jury, with a further day being occupied with a view of the defendant’s premises in Gapsted.
8 A considerable portion of the time taken up in the hearing involved a number of witnesses called on behalf of the defendant, largely to contradict the plaintiff’s version of events and, in particular, the instructions (or absence of them) leading up to him climbing upon the chiller units to adjust the valves and then descending in the manner leading up to him sustaining injury.
9 There was no case advanced on behalf of the defendant challenging the existence of a duty of care owed to Mr Sutton as its employee. The thrust of the defence, as I perceived it, was in two parts. First, the plaintiff ought to have used an extension ladder in order to perform the work on the valves and such a ladder was available to him, and, indeed, he was told to use it by Mr Glidden. Secondly, the method adopted by him of climbing firstly on a bench, then over the chillers, and descending in the manner that he did was contrary to the method of using a ladder and was a method thought up by the plaintiff himself.
10 After the case had been opened to the jury by Mr Waugh, I invited Ms Galpin, who appeared with Mr Stanley for the defendant, to briefly identify the issues to assist the jury. She stated:
“There will be a challenge to quite a few things in this case. The defendant will be calling evidence in this case to say we had a system for doing this job. Our system was to use the ladder. Ladders were available. Goodness knows, whatever reason, the plaintiff performed some task – we’re unclear exactly what the task was, and we will be disputing what task he was performing to an extent. That he chose quite deliberately, to use a method that wasn’t approved, wasn’t used by anyone else and was told ‘Don’t do that’, and just went on his merry way and did it notwithstanding.
And we will say in those circumstances our system that we had was safe, he should’ve used it, deliberately chose not to use it and there should be no negligence at all.”[3]
[3] T124, L 26 – T125, L 11
11 For completeness, I should point out that Mr Waugh had opened the case alleging negligence on the basis of an unsafe system of work and a breach of statutory duty. The particulars of negligence relied upon were quite broadly cast. Essentially the plaintiff’s case was that the employer had simply left him to his own devices without any system being in place.
12 The plaintiff claims damages for pain and suffering, with the injury to his dominant shoulder identified as the major source of difficulty for him. Immediately following the incident in 2010 he had believed that the injury to his back was more severe. As time passed, this proved not to be the case. Ultimately the assessment of damages was not the most troublesome issue in this proceeding.
13 The plaintiff was forty-nine years of age at the time of this incident occurring in April 2010. He had started at the Gapsted winery in about 2006 as a cellar-hand, having done a variety of jobs, including some retail-management training, after leaving school at the age of sixteen. He worked at Gapsted until 2009, when he left for about six months to go to another winery. When he returned to employment with the defendant he was engaged as a cellar supervisor.
Was there a breach of common law duty?
14 Vintage time at the winery ran from about the end of January until the end of April. The number of staff working in the cellar area increased during vintage, from around six to around forty. The plaintiff gave evidence that the work was full-on, with 12‑hour shifts being regularly worked, and sometimes he would work seven days straight. The work was described in some detail in evidence, involving dragging of pumps, large hoses, bags of chemicals, and other items used in wine production. The plaintiff described often being exhausted at the end of a shift.
15 The evidence disclosed that the order of rank within the cellar area started with cellar-hand, then the cellar supervisor, the cellar manager, and the assistant winemaker and winemaker in overall control. At the time when this incident occurred in April 2010 the plaintiff was one of two supervisors working in the cellar area. He described the other supervisor as being inexperienced. His evidence was that he would sometimes work up to 16 hours per day.
16 Ultimately any question about the heavy nature of the employment was largely irrelevant to the cause of injury in this case. The plaintiff gave evidence that having finished his shift for the day, after working approximately 12 hours, he had a call on the radio and was asked to come back and change over some valves.
17 The evidence was unclear as to whether the plaintiff was to open or close the valves. The plaintiff stated:
“I had to climb up, I had to shut off valves, and I can’t remember exactly if I was shutting them off or putting them back on again to be honest, sir, but it was one of the two processes. It meant getting up to quite a high level, either opening or closing the valves. There were also pipes that had to be reconnected and they were also some distance off the ground as well.”[4]
[4]T134, L26–T135, L2
18 The evidence disclosed that another worker, Peter Glidden, was nearby working at a bench near the chillers. Mr Glidden gave evidence later in the trial.
19 The plaintiff went on to describe that he had only performed this task on one previous occasion, and that he had been shown how to do it during his first period of employment by Mr Dylan Hetherington. Mr Hetherington was the cellar manager at the defendant’s winery until he left just before Christmas 2008. He also gave evidence and denied that he trained the plaintiff to access the must chiller in this fashion.[5]
[5]T682, L20–21 and T683, L21
20 The evidence was clear that the must chiller was connected to the high brine valves by brine pipes which initially ran vertically down from the valves and connected to the chiller at a much lower level. The changeover of the brine valves needed to be done in a manner as to preserve the brine. It was therefore necessary to drain the brine pipes with the valves in the off position or reconnect the brine pipes before turning on the valves. Therefore, whichever task the plaintiff needed to do in relation to the valves, he must have necessarily disconnected or reconnected the brine pipes as part of the process.
21 The defendant led no oral evidence or produced any document to identify which of the tasks Mr Sutton was asked to perform.
22 The real challenge to the plaintiff’s version of events came from Mr Glidden, who as the acting cellar supervisor. Just prior to the incident occurring he was working on the earth filter described as being “right behind the crusher” to the right of the chillers directly in line with a large storage tank (No 2406).[6] The thrust of Mr Glidden’s evidence was that he had told the plaintiff to use a ladder. His evidence was:
“I said ‘There’s a ladder there. Why don’t we get the ladder and I’ll hold the ladder for you and we can do it that way, it’s safer.’ “[7]
[6]T411, L18–31
[7]T413, L11
23 The plaintiff denied this conversation took place.
24 I am concerned about the accuracy of Mr Glidden’s evidence, as it was unclear from him as to whether he had had the conversation before he observed the plaintiff climb up onto the chiller or at some later time. His evidence on this point was as follows:
“So he didn’t come down as far as you were?---No.
And what did you observe him commence to do?---Commence to go up and turn that valve.
What did he actually do in commencing to do that? What was the first thing you observed him to do?---Well, he was observed going up onto the chiller.
Did you have any discussion with him at that time?---No. On the way up he was getting up there, but on the way down I discussed it with him.
So can you tell us what happened, so he came along, you observed him getting up on the chiller?---Yes.
What did you see him do?---Climbed upon the chiller and I told him not to do that, there’s a ladder there.”[8]
[8]T412, L19–31
25 There were other aspects of Mr Glidden’s evidence which, in my view, suggested a large element of reconstruction:
“So you said to him ‘There’s a ladder there’ and you’d hold it?---Yes.
And why didn’t he use it? Did he reply to you at all?---Yes, he said he’s the supervisor, if anyone is going to get hurt it should be him.
And did you – do you recall the conversation?---I said ‘That’s crap’, no one should get hurt at work.
And what was his response to your comments?---There was no response, he just kept going.
You observed him continue to climb up?---Finish off what he was doing. As he’s come down, that’s when the incident happened.”[9]
[9]T414, L3–14
26 The plaintiff did not suggest that Mr Glidden was not present. Indeed, the entry in the injury register which was made by the plaintiff recorded Mr Glidden as a witness.[10]
[10]Exhibit B
27 It seems to me that the conversation described by Mr Glidden is more likely one that he wishes had taken place than one that actually did take place. My reasons for coming to this conclusion are as follows:
· He initially stated in chief that the conversation had taken place when the plaintiff was coming down, rather than going up on the chiller towards the valves.
· The content of the conversation with the plaintiff stating “If anyone is going to get hurt it should be him” would seem particularly unlikely to have taken place before any incident had occurred.
· If there was a ladder readily available and within five metres, why would there have been any conversation at all? Surely a reasonable person in those circumstances would simply have got the ladder and placed it near the valves to enable the job to be done in what, with hindsight, would have provided a potentially safer alternative.
28 The likelihood in this case is that the job was requested in a hurry at the end of a shift, and it was simply done in a method that appeared to be suitable at the time. I accept the evidence of Mr Hetherington, who was later called, that he did not instruct or train the plaintiff in this activity. I do note from Mr Hetherington’s evidence that he had climbed up on the chiller in other circumstances, and it may be that the plaintiff had observed this at some time, perhaps early in his employment.
29 There was no evidence from the defendant to show that there was any instruction or training given to the plaintiff in the manner in which this task was to be performed by him. Indeed Mr Quin, a former cellar supervisor, gave evidence of operating the valves by using a ladder on one occasion and by leaning down from an overhead walkway on another. There was other evidence called from Mr Bailey, the maintenance and engineering manager, although he had not performed tasks relating to the high brine valves. The most that could be said of his evidence was that he was aware that there were a number of operations performed at the winery at a considerable height above ground. His evidence did not lead me to conclude anything further about the existence of a system for doing the task engaged in by Mr Sutton on 12 April 2010.
30 The defendant owed the plaintiff a positive duty in terms of that stated by the High Court in Czatyrko v Edith Cowan University:
“An employer owes a non-delegable duty of care to its employees to take reasonable care to avoid exposing them to unnecessary risks of injury. If there is a real risk of an injury to an employee in the performance of a task in a workplace, the employer must take reasonable care to avoid the risk by devising a method of operation for the performance of the task that eliminates the risk, or by the provision of adequate safeguards. The employer must take into account the possibility of thoughtlessness, or inadvertence, or carelessness, particularly in a case of repetitive work.”[11]
[11][2005] HCA 14 at [13]–[14]
31 The duty on an employer is one to take positive steps as described in Czatyrko. It cannot be avoided or minimised by a later revelation that some other system might have been safer. In this case it is not clear to me precisely what system the defendant was suggesting. The case at trial was that the plaintiff should have used an extension ladder. Indeed, this was what Mr Glidden stated in evidence. However, the bundle of photographs that was tendered as Exhibit A included seven photographs said to have been taken by the defendant on or about 26 August 2013.[12] Photograph 4 showed a two-step stepladder. Photograph 6 showed a person standing next to the No 2 chiller and pointing up towards the valves. Photograph 7 showed another person in a similar position in front of the chiller, standing on the two-step stepladder, reaching up to a pipe leading from the lower valves on the brine system.
[12]Photographs numbered 4–7 forming part of Exhibit A
32 Further photographs were taken by Mr Richard Lightfoot, engineer, at views at the winery on 19 December 2013 and on 18 September 2014. In each of those series of photographs[13] can be seen an A‑frame ladder reaching slightly above the lower brine valves at the winery. Mr Lightfoot’s evidence was that this ladder was provided by the defendant at the time of each of his views.[14] It should be noted that leading counsel for the defendant conceded at the trial:
“Your Honour, we say an A‑frame ladder should not be used for the task of opening the valves up high. We say the extension ladders against the equipment should be used.”[15]
[13]Photographs numbered 8–21
[14]T 179 - 180
[15]T357, L4–7
33 A further question arises when Exhibit B is examined. Clearly the plaintiff had made a report of injury on the day it occurred. There was no evidence at the trial to suggest that he had in any way been counselled, cautioned or even spoken to in relation to the accident happening. If the evidence of Mr Glidden is to be preferred, then one could reasonably anticipate that there would be some evidence from the defendant to show that a supervisor, and one senior in experience to Mr Glidden, would at least have been reminded of the proper use of equipment when performing a task.
34 I find that the defendant had no safe system for performing the task upon which the plaintiff was engaged at the time that the incident occurred. If the defendant delegates its duty to a worker such as the plaintiff, then the most that can be said is that its system of work is the one devised by the plaintiff at the time, and again breaches the employer’s duty, as it illustrates the plaintiff was not trained or instructed in any other system.[16]
[16]Liftronic Pty Ltd v Unver [2001] HCA 24
35 I am therefore satisfied that the defendant had breached its common law duty of care owed to the plaintiff. I am also satisfied that the plaintiff had effectively been left to his own devices. I note that in cross-examination it was put to the plaintiff that it was his role as cellar supervisor to enforce safety issues if the workers did something wrong. It was further put to him that it was an important part of his role to convey information to management about issues that were unsafe or not working.[17] This proposition may well have relevance in terms of apportioning blame, but it ignores the non-delegable duty cast upon the employer.
[17]T207, L15–T208, L25
Breach of statutory duty
36 The plaintiff relied upon a breach of Part 3.3 of the Occupational Health and Safety Regulations 2007 relating to prevention of falls. The regulations were tendered as Exhibit C . The statutory duty requires an employer, so far as is reasonably practicable, to “identify any task that an employee is required to undertake at a workplace that involves a fall hazard, including a task at an elevated level”.[18] A fall means a person’s involuntary falls of more than two metres.[19]
[18]Reg 3.3.3
[19]Reg 1.1.5 and the definition of “fall”
37 An employer must ensure that if an employee is required to undertake a task at a workplace that involves a risk of a fall, the risk is controlled, so far as is reasonably practicable, by arranging for the task to be undertaken on the ground.[20]
[20]Reg 3.3.4(1)
38 Reference is also made in the regulations to the use of a ladder, which is only permitted if it is not reasonably practicable to comply with sub-regulations (1), (2), (3) and (4).[21]
[21]Reg 3.3.5(5)
39 I am satisfied on the evidence of Mr Richard Lightfoot, engineer, that the work on the valves at least was work that needed to be performed when the plaintiff was more than two metres above ground. It was therefore work which engaged the regulations. There was also evidence from Mr Vesey, the former winemaker, which suggested a practical and cost-efficient alternative whereby the changing of the valves could be done from the ground for a cost of $300:
“Mr Vesey, if the job of changing those valves could be done from the ground for a cost of $300, so you didn’t have to climb a ladder, would you agree with me that it would be a far preferable thing to do?---I would because it was done that way previously.
What happened? Why didn’t you keep doing it that way?---Well it depends on cellar supervisors because if parts are needed somewhere else, cellar supervisors and cellar hands tend to wrap the parts from one thing to take them to the job they need somewhere else and it’s a simple fact of the winery that that happens. No matter how many surplus things there are around, they get moved and taken from one spot to somewhere else.
So the system of work was to use a system from the ground but the gear movement was taken and used somewhere else?---It had been done from ground level previously.
That’s clearly what should have continued to have been done?---Yes that’s right.
Someone has taken that gear away and not replaced it?---Well at some point between 2010, 2009, 2008 at some point because the gear is not specific to that job. It can be used with many other fittings within the winery. Things tend to get moved around.”[22]
[22]T542, L9–31
40 On this evidence alone, noting that Mr Vesey was one of the winemakers at the time of the incident, I am satisfied that there was a viable cost-effective alternative system for operating the high brine valves which had been used in the past. This would have complied with the regulatory framework relating to prevention of falls engaged by this particular activity. I am satisfied that the evidence establishes that the employer had breached its statutory duty owed to the plaintiff. Although considerable evidence was given by Mr Richard Lightfoot, consulting engineer, touching on the question of statutory duty, it is unnecessary for me to consider his evidence, given the frank admission made by Mr Vesey.
Causation
41 The breach of duty, whether at common law or mandated by statute, must be a cause of injury to the plaintiff. Notwithstanding the inconclusive evidence as to the sequence of actions performed by the plaintiff on the day of the incident (ie, had he connected or disconnected the brine pipes before or after he adjusted the chiller valves), there is no doubt that he was descending from the area of the high brine valves when the incident occurred. I am satisfied that this was a direct result of there being no provision either for the valves to be adjusted from ground level, which would constitute a breach of statutory duty and/or a failure by the employer to establish and maintain a safe system to enable the plaintiff to perform this task, so as to minimise the risk of injury when descending from the area.
42 The evidence of Mr Vesey in particular satisfies me that there was a realistic and suitable alternative system for performing this task. This system was not being used. The absence of a safe system on that day was a cause of injury, and probably the sole cause of injury, to the plaintiff.
Contributory negligence
43 Care must be taken in a case such as this to avoid the temptation to view the events of April 2010 with the benefit of hindsight. A court must be careful to avoid the transfer of the responsibility of the employer to the employee. The authorities have consistently recognised that the duty of care on an employer includes a duty to take account of the possible thoughtlessness or inadvertence of an employee in the performance of his task. As against this, contributory negligence may be found when an examination of the facts reveals that the contribution of the employee had not occurred “from thoughtlessness or inadvertence but [he] was able to assess the risk, and having done so, took it”.[23]
[23]Davies v Adelaide Chemical and Fertilizer Company Limited [1946] HCA 47 per Dixon J at page 555
44 In McLean v Tedman[24] the Court stated:
“The issue of contributory negligence has now to be approached on the footing that [the employer] failed to discharge its obligation to provide a safe system, that is, to take appropriate precautions against the risk of injury arising from the motorist’s negligence and the employee’s failure to observe an oncoming vehicle as he carried out his allotted task. The question is whether that failure should be characterized as mere inattention or inadvertence or whether it amounts to negligence, there being a well recognized distinction between the two. It is accepted that in considering whether there was contributory negligence by an employee in a case in which the employer has failed to provide a safe system of work, the circumstances and conditions in which he had to do his work must be taken into account. And the issue of contributory negligence is essentially a question of fact.”[25]
[24](1984) 155 CLR 306
[25]McLean v Tedman (supra) per Mason, Wilson, Brennan and Dawson JJ at [19]
45 Mr Waugh, who appeared on behalf of the plaintiff, submitted that there should be no finding of contributory negligence in this case. Amongst other matters he raised in support of this submission, he submitted as follows:
· The plaintiff had adopted a method he had previously adopted without admonition.
· There was no admonition by the employer when the plaintiff reported the injury and the circumstance in which it occurred.
· The plaintiff, having worked a minimum of 12 hours, and probably 16 hours on that day, carrying out heavy and perhaps exhausting work, was called back to do this task because there was nobody else who knew how to do it.
· The plaintiff did not know that the pipe upon which he stood was unsecured, and had no reason to believe it was unsecured.
46 The defendant submitted that contributory negligence should be found and should be significant. In support of this submission, the defendant submitted:
· The plaintiff was not left to his own devices. He was requested or instructed to use a ladder, and refused to do so.
· The plaintiff gave no evidence that he was inadvertent. Whilst he was called back after a shift to do the work, the plaintiff did not assert that he was fatigued or impaired in any way. Rather, his evidence was that he considered the method to do the job.
· By rejecting the advice and assistance of Mr Glidden, the plaintiff chose to put himself in a position of danger. The preponderance of the evidence demonstrates that the use of ladders was widespread, and not productive of any incident or injury preceding the plaintiff’s injury. The overwhelming probability must be that if the plaintiff had used the ladder with Mr Glidden holding it from below, he would not have been injured. Even if the use of a ladder involved some risk of injury, it remains relevant to consider whether the defendant’s system involves a smaller risk of injury compared to the method adopted by the plaintiff. As the case of Liftronic Pty Ltd v Unver,[26] the plaintiff was using his own system, not the employer’s system, and it was his own system which carried with it the consequence of exposing him to a higher risk of injury than that involved with the defendant’s system.[27]
[26]Op. cit.
[27]Op. cit., at [26] per McHugh J
47 In my assessment, contributory negligence is not made out in this case. As stated above, I am not satisfied at least as to the timing of the conversation referred to by Mr Glidden in his evidence. Having found that the plaintiff was called back to do a job, and did it in the manner in which he had previously done it, albeit on rare occasions, without reprimand or correction, I can see no departure from the standard of care for his own safety occurring prior to him standing upon a horseshoe-shaped pipe extending from the smaller chiller unit.
48 Evidence was given in this case that the top nut securing the chiller unit would be cracked, and the bottom pipe opened to allow the chiller unit to drain. There was no evidence whatsoever in this case to suggest that there was anything visible to the plaintiff, prior to attempting this task, to suggest that the horseshoe-shaped pipe was other than securely attached to the end of the chiller. It was not until the very moment the plaintiff placed his foot on what appeared to be a solid object, and it collapsed beneath him, that he appreciated that there was a situation of danger. The absence of any evidence of rebuke or reprimand seems demonstrative of the employer’s acceptance of the plaintiff doing the job in the way that he had previously been shown.
49 The defendant submitted that, even if the plaintiff had climbed up to the valves via the bench, he should have descended in the same way, and not used the pipes on the chiller. For the reasons I have just enunciated, I find that there was nothing unusual about the appearance of the chiller, and no reason why it did not appear, externally at least, to be a reasonable foot-hold for a person descending from the area of the valves. I therefore find that contributory negligence has not been made out in this case.
Damages
50 The principal injury suffered by the plaintiff was to his dominant right shoulder. It was not the only injury. He initially suffered considerable back pain. In his evidence, the plaintiff stated:
“I did continue to work until 19 April ... I was in considerable pain, considerable back pain at the time and also some shoulder pain as well. But my back was unbearable.”[28]
[28]T142, L 14 - 19
51 He described going to the doctor in Beechworth, where he resided with his wife and three children, “because I couldn’t handle the pain any more, I was in agony”.[29]
[29]T 142, L22 - 23
52 He was initially prescribed anti-inflammatory medication and some painkillers, and told not to go to work. After taking the medication, he developed massive nose-bleeds and had to be referred to a specialist, Ms Eliza Tweddle, who performed an arterial ligation procedure on his nose on 3 June 2010. At around that time he was undergoing physiotherapy for his back injury. He stated in evidence:
“My back did resolve itself eventually, but the shoulder continued to get worse, and in fact I lost movement in the shoulder. I couldn’t move my shoulder.”[30]
[30]T144, L11–14
53 His doctor in Beechworth referred him to an orthopaedic surgeon in Wangaratta, Mr Kjar, who performed a hydrodilatation on the shoulder. He was seen by Mr Kjar in June 2010, and the shoulder was injected.
54 Mr Kjar believed that the plaintiff had developed a frozen shoulder or adhesive capsulitis, and eventually he was referred to a second orthopaedic, Mr Frawley, who operated on the shoulder on 30 November 2010. Following the surgery the plaintiff had intensive physiotherapy and stayed in hospital for a week. That surgery was performed under general anaesthetic, and apparently a nerve-block was used while the physiotherapy was being performed in hospital. The plaintiff states:
“I was pretty sore. I was in a fair bit of pain and I was on some strong painkillers. I had movement in my arm that I didn’t have before surgery but still a lot of pain attached to it ... My shoulder was very very sore.”[31]
[31]T148, L1–9
55 Following the surgery, for a period of about seven or eight months he was taking strong painkillers identified as Endone and OxyContin. The plaintiff described problems in his family life, as he had become irritable. He was grumpy and intolerant:
“You know I’ve got three little kids and my wife and that was pretty tough for them.”[32]
[32]T150, L1–2
56 The plaintiff’s life did not improve. He had tried to get back to work again after the surgery performed by Mr Frawley, but was told there were no light duties. In 2011 he was still taking Panadol for pain, and occasionally Panadeine Forte, but he was not on prescribed medication. He returned to see Mr Frawley in September 2011, as the pain in the shoulder was increasing and he could not sleep on his right side. He was given another injection which gave him temporary relief. He remained under Mr Frawley’s care, and a further injection was performed in August 2012, and finally further surgery, described as a biceps tenodesis, was performed in October 2012. That was also performed under general anaesthetic, although the plaintiff only remained in hospital overnight. After this second bout of surgery, the plaintiff described the pain as follows:
“The pain was excruciating once the anaesthetic had worn off properly. I was in real pain. It hurt. Lots, to the point where I would call it unbearable pain. I was almost beside myself. I didn’t know what to do.”[33]
[33]T154, L10 -14
57 He was again prescribed Endone, although on this occasion only for a relatively short period of time.
58 The plaintiff had a further injection in the shoulder in January 2013 and remained on Endep medication as at the time of the trial. He gave evidence that he was now doing exercises at home and having the Endep medication prescribed by his local doctor in Beechworth. He still takes Panadol and occasionally Panadol Osteo.
59 I accept the plaintiff has considerable difficulty with his shoulder and this is likely to continue indefinitely.
60 The plaintiff has had to change jobs, spending part of the year working at the Falls Creek ski resort, which keeps him away from his wife and children. When living in Beechworth he is involved as a local tourist guide. I accept that this work is less rewarding, both financially and in terms of career advancement. In assessing damages for pain and suffering I specifically disregard any loss or diminution of earning capacity.
61 The treating surgeon, Mr Frawley, was relatively optimistic in his assessment of the plaintiff, stating:
“I do not consider that Darren is likely to have any long-term permanent problem with his shoulder. As per the most recent MRI scan, there is no structural problems with his shoulder. Whilst he did have persisting stiffness some months ago, I am unaware as to whether this is still a problem for him.”
62 Mr Frawley’s reports were read into evidence at the trial. The extract above is from his report to solicitors dated 8 Nov 2013.
63 Mr Kenneth Brearley gave evidence, and had examined the plaintiff on 17 February 2014. In relation to the ongoing restrictions, Mr Brearley stated they were mainly affecting his recreational activities. He said Mr Sutton could not do moderate or heavy lifting.
64 The defendant submitted that in fact the evidence indicates that the plaintiff has made at least some limited return to prospecting, in that he has set up a company and has intentions to engage in a business relating to mining and prospecting.
65 There was evidence given by the plaintiff, and corroborated by his wife, to the extent that they were living in rental accommodation and were unable to save for a house. I found this evidence a little unconvincing.
66 Nevertheless, the plaintiff is a relatively young man and he has suffered a permanent injury to his dominant right shoulder, which has forced him to take alternative employment, and led to significant disruption in his family life. He has three children at present, and his wife is expecting a fourth. He has had two surgical procedures, and at least three injections into the right shoulder. He was on narcotic medication for many months following the first operation.
67 I regard the injury to his right shoulder as tending very much towards the more serious type of shoulder injury.
68 In my assessment, a fair and reasonable sum in relation to the plaintiff’s right shoulder injury alone would be general damages in the sum of $150,000.
69 That is not the end of the matter. The plaintiff also suffered excruciating back pain for a period of about three months following the incident, with that condition then settling down. He took medication in that immediate period following the incident, which resulted in severe nose-bleeds necessitating a referral to an ENT specialist and a further surgical procedure to ligate a nasal artery. These injuries must create an entitlement to some measure, albeit a modest measure, of general damages. I assess a reasonable figure for the pain and suffering resulting from the short-term spinal injury and the severe nose-bleeds at $10,000.
Conclusion
70 The plaintiff has proved negligence and breach of statutory duty against the defendant. Each was a cause of injury to him. The defendant has not proved contributory negligence. I have assessed the plaintiff’s damages for pain and suffering only in the sum of $160,000.
71 I will hear the parties further regarding the entry of judgment and other consequential orders.
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