Symons v The Haggarty Group Pty Ltd
[2011] QSC 46
•23 March 2011
SUPREME COURT OF QUEENSLAND
CITATION:
Symons v The Haggarty Group Pty Ltd [2011] QSC 46
PARTIES:
PETER JOHN SYMONS
(Plaintiff)v
THE HAGGARTY GROUP PTY LTD
ACN 065 154 921
(Defendant)FILE NO/S:
11092 of 2009
DIVISION:
Trial Division
PROCEEDING:
Claim
ORIGINATING COURT:
Supreme Court of Queensland
DELIVERED ON:
23 March 2011
DELIVERED AT:
Brisbane
HEARING DATE:
31 January to 4 February 2011
JUDGE:
McMurdo J
ORDER:
The defendant pay the plaintiff the sum of $326,743.95.
CATCHWORDS:
TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – DUTY OF CARE – REASONABLE FORESEEABILITY OF DAMAGE – PARTICULAR CASES – AS BETWEEN EMPLOYER AND EMPLOYEE –where the plaintiff was employed by the defendant as a roofing plumber – where the plaintiff suffered a serious back injury at work – where the plaintiff was using a scissor lift to move sheets of corrugated metal roofing across a building site and up to the roof of a building – whether the defendant was negligent – whether there were reasonably practicable means of avoiding a risk of injury – whether there was contributory negligence
DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – PARTICULAR CIRCUMSTANCES – where the plaintiff had a 20-25% whole person impairment – where the defendant had a pre-existing knee injury and heart condition – what amount of future economic loss is appropriate
COUNSEL:
RJ Lynch for the plaintiff
R Morton for the defendant
SOLICITORS:
Trilby Misso for the plaintiff
Sparke Helmore for the defendant
The plaintiff, Mr Symons, claims damages against the defendant, his former employer, for an injury to his back in November 2008. The defendant denies that it was negligent. There is also a substantial contest as to quantum.
The accident
Mr Symons was working as a roofing plumber on a building site near Ipswich. He and another employee, Mr Clark, had to move some sheets of corrugated metal roofing about 30 to 40 metres across the site and then up to the roof of the building. There were about 20 of these sheets made of a “Colorbond” material. Each weighed about 15 kilograms, was six metres long and 840mm wide. The two men used a scissor lift which was on the site. This was a vehicle with four wheels supporting the lifting mechanism and the lift platform on top, which was surrounded by a handrail. The platform was a rectangular shape, wider than the width of the metal sheets but not as long. The two men placed the sheets so that they rested on top of the handrail, overhanging each end by about one metre. They were not tied or otherwise attached to the handrail or any other part of the lift.
They each stood on the platform as it moved across the site. Mr Symons drove the vehicle standing at one end and alongside the sheets. Mr Clark stood at the other end of the platform. At some point the sheets moved and they were about to fall upon Mr Clark. Mr Symons reacted quickly. He placed his body under the load, pushing it up with his shoulders. Somehow Mr Symons also managed to place some timber under the sheets to support them. The load was steadied and they continued to the point where the vehicle stopped. The platform was lifted and the sheets were unloaded.
Later that morning Mr Symons began to feel pain in his back. It is uncontested that these events occurred and that as a result Mr Symons suffered a serious back injury.
Liability
The evidence of Mr Symons is that he and Mr Clark were directed by the defendant’s leading hand or foreman to move the sheets in just this way, using the scissor lift. He also says that the foreman assisted with the loading of the sheeting onto the lift. That evidence is uncontradicted and uncontested. Mr Clark gave evidence but was unable to recall whose idea it had been to move the sheets in this way.
On this building site, the ground over which the lift had to travel was rough and uneven. Because the sheets were not tied or otherwise attached to the lift, there was at least a real chance that as the lift moved across the site, the sheets would not remain where they had been placed on top of the handrail, but would slide or fall from it. The sheeting had sharp edges and, as a pile, weighed about 300 kilograms. There was a risk of injury from the movement of the sheeting which was reasonably foreseeable. In particular, there was a foreseeable risk of injury to a worker who might instinctively respond to that movement, just as Mr Symons did.
The case for Mr Symons is that there was a reasonably practicable means of avoiding such risks. It was to use a crane to move the sheeting both laterally and then up to the roof. But there was no crane on the site on that day. The defendant argues that its obligation to take reasonable care did not require it to provide a crane for this task.
The defendant’s argument is at odds with its pleading. It pleads that Mr Symons was not instructed to use the scissor lift for this purpose, and that it had “implemented control measures” which included “directing staff not to use the scissor lift to carry heavy loads”. The defendant pleaded a denial of negligence on grounds which included the following:
“19.…
(e)The defendant provided safe and appropriate means to carry the corrugated iron including lifting cranes and the provision of manual assistants through his co workers;
(f)The scissor lift was not provided for use to move the corrugated iron;
(g)The defendant’s system did direct that scissor lifts were not to be used for the movement of roof sheeting;
…
(m)The defendant did not conduct a risk assessment of the use of the scissor lift to move corrugated sheets as the scissor lift was not to be used for this purpose;
(n)The leading hand did not instruct or direct the plaintiff to move the corrugated sheets using the scissor lift.”
Thus on its pleaded case, the defendant appeared to accept that the scissor lift should not have been used and that a crane was a practicable and safe alternative. But its ultimate argument was that Mr Symons had failed to prove his case by not leading evidence of the practicability of obtaining a crane or as to the cost involved in doing so. On the state of the defendant’s pleading, it was not incumbent upon Mr Symons to prove that matter. The issue raised on the pleadings was effectively whether Mr Symons was instructed to use the lift in this way or whether, as the defendant pleaded, he and other staff were directed not to do so. On that issue, as already noted, the evidence of Mr Symons was uncontradicted and unchallenged. I am persuaded to accept that evidence.
The case put to Mr Symons in cross-examination was that the lift was overloaded, so that if half a dozen sheets instead of 20 had been loaded, they could have been held by the two men as the lift was driven across the site. Mr Symons answered by saying that “if I only had six sheets on that and they started sliding I would have cut me fingers off” and that “they would have slid easier on the top rail”. Then it was put to him that it would have been “sensible to load one on and try and lift it up” to which Mr Symons responded that this would have taken “all day”. There was no challenge to his evidence in chief that the foreman or leading hand assisted with the loading, passing the sheets up to him as he stood on the platform.
Of course it would have been possible for Mr Symons and Mr Clark to carry the sheets, one or two at a time, across the site to the point immediately below that to which the sheets would be lifted. They could not have been carried up to the roof because of the limited space in the stairs. But as I have found, they were instructed to use the scissor lift by the foreman who then assisted them to load it.
I find that there was a means of avoiding risk which was the use of a crane. Upon the defendant’s pleaded case, it cannot be heard to say now that this was not a reasonably practical means. Mr Symons became exposed to a risk of personal injury by the movement of the load which was next to him as the lift moved across the site. The defendant’s failure to avoid that risk was a failure to take reasonable care for his safety.
Contributory negligence was pleaded. Most of the matters relevant to that case have been discussed already: the alleged overloading of the lift, the suggestion that the sheets should have been carried across the site manually and, remarkably, failing to use a crane. There was also a series of allegations pleaded to the effect that Mr Symons did not operate the scissor lift in a safe way and according to “the manufacturer’s/suppliers instructions/directions as the safe manner in which to use and operate the scissor lift”. But these particulars were not put to Mr Symons in cross-examination. The same applies to two further particulars, which was a failure to inform the defendant that he, Mr Symons, had a pre-existing back condition and his “engaging in physical activities [was] beyond his capacity”. Again, once it is seen that Mr Symons did what he did upon the direct instructions and with the assistance of the foreman, contributory negligence cannot be found.
The defendant’s liability is proved and contributory negligence is not.
Damages
Mr Symons was born in 1962 and he was 46 at the time of the accident. He was a qualified roof plumber and had been working as such for the defendant from about 23 February 2008. As I will discuss, until he went to work for the defendant he had had what his counsel described as an unenviable compensation history, largely to do with a knee injury of which he complained for many years. He also had a longstanding heart condition. The defendant argues that his knee problems were exaggerated and that for many years he received compensation which should not have been paid. This is relied upon to challenge his credibility, although the outcome of this case is not so much dependent upon that factor. As I have discussed, the critical part of his evidence on liability was uncontradicted and unchallenged. And as I will discuss, the critical consideration as to quantum is the effect of his heart condition on his capacity to earn income, for which his credibility or otherwise has some relevance but is not essential. Before going to that question, it is necessary to discuss his back injury.
On the day that he was injured, he went to the Wynnum Hospital and then to the Redland Hospital where a CT scan of the lumbar spine was performed which showed a large L4/5 disc protrusion. He was treated with rest, painkillers and physiotherapy for a few weeks before being referred to a neurosurgeon. An MR scan of the lumbar spine was performed which confirmed the disc protrusion and showed also an L5/S1 disc bulge. As recommended by the neurosurgeon, Mr Symons underwent surgery in January 2009, specifically a L4/5 microdiscectomy operation. This was unsuccessful in relieving his pain.
Further surgery was recommended and he underwent a L4/5 discectomy and fusion operation in February 2009. This did not improve his pain but, he said, made it worse.
According to Dr Campbell, a neurosurgeon called in the plaintiff’s case, Mr Symons has been left with a 20% whole person impairment as a result of the injury and the subsequent fusion at the base of his spine. In his opinion, the incident with the metal sheeting was the sole cause of this back injury. His symptoms of lower back pain/stiffness and left leg pain are, Dr Campbell said, chronic and unlikely to resolve. He says that deterioration in those symptoms is possible, especially were Mr Symons to perform heavy lifting or repetitive bending at work or around the home.
The defendant called Dr Reid, a neurologist who saw Mr Symons in August 2009. In her report, she wrote that “Mr Symons sustained an aggravation of his chronic degenerative back condition, giving rise to low back pain and pain referred to the legs”. She said that he had had a prior history of low back pain for which he had claimed compensation in 1992. In her opinion, the incident with the metal sheets had some impact only for “a short period of time” and that his ongoing pain was the result of a “natural progression of his underlying degenerative disease”.
Mr Symons was extensively cross-examined about his medical and work history and in particular his claims for workers’ compensation in Victoria over many years prior to this event. Yet there is no history of back problems, save that there was an isolated case of a claim in 1992. Nor is there anything significant in the voluminous material recording his medical history which refers to some problem with his back. Yet, as Dr Reid accepted, by August 2009 he had a very substantial impairment as a result of back problems. She estimated that he had in total a 25% impairment of the whole person. But she attributed only 3% of that to “the temporary and reversible aggravation sustained in the workplace” and the remaining 22% to a pre-existing condition and the effects of surgery which she said was required by that condition. At one point in her oral evidence, Dr Reid seemed to say that most 46 year olds have a degenerative spine. She agreed that it was possible that what was shown by the radiological evidence was typical of the type of the degeneration to be seen in just about any 46 year old man. Having regard to Mr Symons’ long history of claiming compensation before this event, it is impossible to accept that he had any significant back symptoms yet made no complaint of them. The onset of his symptoms occurred immediately after this event. I do not accept Dr Reid’s opinion. I find that his permanent impairment is entirely due to this injury. That it was so caused was all but conceded by counsel for the defendant in his ultimate argument.
In 1997, the plaintiff claimed to have suffered a knee injury when working for a roofing company in Victoria. He underwent surgery upon his left knee in May 1997 and he was off work for about 10 months, he said. In 2002, he claimed to have suffered another knee injury, again at work. On account of this alleged injury he was off work until February 2008 when he went to work for the defendant. During that period of unemployment he continued to complain of knee problems and to receive compensation payments for them. There is no explanation for his apparent recovery when returning to the workforce in 2008.
The only evidence as to his performance in working for the defendant was from Mr Clark, as well as from Mr Symons himself. Mr Clark said that he was a good worker with no apparent physical restrictions. Mr Symons said when cross-examined, that he has continued to experience knee problems. But as to their effect upon his earning capacity, the telling fact is that he worked for the defendant without apparent difficulty for the best part of a year before suffering his back injury.
Therefore I accept the defendant’s argument that he must have been able to work prior to 2008, during at least some of the years in which he was claiming that he suffered from knee problems. But what is the relevance of that finding? It does affect his credibility. But as already discussed, that is not fatal to his case. It is also relevant, however, to what was described as his work ethic, that is to say the prospects that, but for the back injury, he would have continued to work full time over a normal working life, subject to the next matter.
That matter is his heart condition. He has ischaemic heart disease which was described by Dr Riha, a cardiologist called in his case, as an aggressive and progressive form of the disease which would limit his performance of heavy physical work. However, she said that it was possible that, with the correct treatment and monitoring, he would be able to perform light physical work in the future. This condition dates back to the late 1990s when he had a stent placed in one of his coronary arteries. In January 2008, a stent was placed in another artery. Dr Riha noted that there was a history of ischaemic heart disease within Mr Symons’s family, although his father lived until the age of 78. She said it was difficult to predict the life expectancy of a patient with this disease. She considered that she would not have been particularly concerned by Mr Symons’s working as a roof plumber in 2008, noting that at the time he seemed to be asymptomatic. She concluded that in the absence of his back injury, Mr Symons would have been able to continue work as a roofing plumber for a period of time notwithstanding his heart disease. She could see no reason why he could not work whilst at the same time being treated for the condition.
The defendant called Dr Hossack, a cardiologist. In October 2009 he wrote that Mr Symons’s ischaemic heart disease appeared to be a “particularly aggressive form”. He wrote that it may be possible for Mr Symons to return to work in a full time capacity, but only in a sedentary type occupation having regard to his cardio condition. He believed that that condition would preclude him from working as a plumber performing heavy manual labour. Moreover, Mr Symons’s expectancy would be reduced as a result of his heart disease to the extent that his “chance of surviving a further 10 years is less than 30%”.
On 4 November 2008, only some weeks prior to suffering his back injury, Mr Symons went to the Wynnum Hospital, complaining of chest pain and a tightness associated with it. Mr Symons says that he had flu like symptoms. He underwent a chest x-ray and the radiologist reported that the heart appeared to be normal and the results were consistent with bronchitis.
In February 2009, Mr Symons had an echocardiogram and a dobutamine stress echocardiogram performed. The former was satisfactory, but the dobutamine echocardiogram, according to Dr Riha, was “strongly positive for extensive inferior ischaemic”. Dr Riha said that this indicated the need for Mr Symons to undergo an angiogram to address a blockage of the stent in the right coronary artery.
From the account given to her by Mr Symons, Dr Riha believed that he had been asymptomatic. However, unknown to her, there had been an extensive history, going back to the 1990s, of his complaining of symptoms such as chest pain. She agreed that his long term prospects would also be affected if he continued to smoke and to show the same poor adherence to his prescribed treatment for his heart condition. Ultimately, she agreed that his life expectancy was affected by this disease, but unlike Dr Hossack, she felt unable to quantify that affect.
I conclude that Dr Riha’s somewhat more optimistic view of his work prospects was affected by the inadequate account which he had given to her of his previous medical history, and in particular, his lack of symptoms. Nevertheless, I am not persuaded that Dr Hossack’s estimate of his life expectancy is bound to be correct.
The argument for Mr Symons accepts that his heart condition warrants a substantial discount of his award. It is said that what would otherwise be the award for past and future economic loss for a healthy man might be reduced by one-third, having regard to his heart condition, his chequered work history and what is said to be his knee condition.
Undoubtedly his heart condition substantially affects the value of his earning capacity. It will shorten his working life and reduce his life expectancy. Further, it is likely to have restricted him to lighter duties, had he not suffered his back injury. Against these matters, there is the fact that he performed satisfactorily throughout 2008 when employed by the defendant. This demonstrates that he had a valuable earning capacity, of which he was deprived by his back injury.
The suggested discount of but one-third would not, in my view, appropriately recognise the effect of his progressive heart disease upon his earning capacity. He was 46 when injured and it is difficult to see that he would have worked much into his 50s, given the seriousness of his heart condition. His earning capacity should be valued upon the basis of his being able to work full time in a similar position for, say, five or so years from this accident. Of course that is necessarily imprecise: he may have stopped work earlier or later. Consistently with that approach, I will not discount his award for past economic loss on account of his heart condition and I will award him a component for future economic loss calculated by reference to a loss over three years. Of course it will be necessary to apply some discounting for other contingencies, one being that his work ethic might not have remained as it was during 2008.
I come then to the components of his award. There is little difference between the arguments as to general damages. There is at least a 20% whole person impairment. This was suffered at age 46, although the assessment of this component should also allow for his reduced life expectancy from heart disease. I am persuaded to award general damages of $60,000. And I will award interest on one-third of that at 2% per annum which is $930.
I accept the argument for the plaintiff that his earnings were the equivalent of $1,170 per week net of tax. That translates to $1,173 for the 2010 year and $1,179 for the current year applying the appropriate tax rates. The result is a past loss, subject to a discount, of $142,404. Although that will not be discounted for the prospect that he would have stopped working by now because of a heart condition, some allowance should be made for time off for treatment of that condition, for the prospect of some unemployment in the economic conditions in late 2008 and his previous uneven work history. This component will be discounted by 15%, resulting in an amount of $121,044. Interest will be allowed on that sum, less what was paid by WorkCover Queensland for weekly benefits of $21,523, at 5% per annum, resulting in an amount of $11,578. A claim is not pursued for past loss of superannuation.
Future economic loss will be calculated by applying that sum of $1,179 per week over three years, which results in an amount of $172,134. This should be discounted by 15%, resulting in $146,314.
There should be some allowance for the lost prospects of superannuation from future earnings. I would apply the statutory rate of 9% to one-third of the future economic loss, resulting in an amount of $4,389.
The amounts for Fox v Wood damages and WorkCover special damages are not controversial. There are claims for out of pocket expenses, both to date and in the future, for pain killers. This is upon the basis of Mr Symons’s evidence, which was unchallenged, that he spent about $20 every two to three weeks. The calculation of the future expenditure for that item might be made in a different way than that suggested by the plaintiff’s argument, but the difference in amount would not be significant. I will allow the amounts made by the claim for the plaintiff.
Accordingly, the award will be as follows:
General damages for pain, suffering and loss of the amenities of life $60,000.00 Interest thereon $930.00 Past economic loss $121,044.00 Interest thereon $11,578.00 Future economic loss $146,314.00 Future superannuation loss $4,389.00 Fox v Wood damages $6,018.00 WorkCover special damages $65,378.82 Past out of pocket expenses $912.00 Interest thereon $100.00 Future out of pocket expenses $3,000.00 Sub-Total $419,663.82 Less refund to WorkCover Queensland $92,919.87 Total $326,743.95
There will be judgment for the plaintiff against the defendant in that sum.
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