Thomson v Mybner Pty Limited

[2000] NSWSC 766

CITATION:	Thomson v Mybner Pty Limited [2000] NSWSC 766
CURRENT JURISDICTION:	Common Law
FILE NUMBER(S):	SC 20202/99
HEARING DATE(S):	17 July 2000 - 18 July 2000
JUDGMENT DATE:	20 July 2000
PARTIES :	Ian Ross Thomson v Mybner Pty Limited
JUDGMENT OF:	Michael Grove J at 1

COUNSEL :	C. Hickey (Plaintiff) P. O'Connor (Defendant)
SOLICITORS:	Peter Long & Patricia Howland (Plaintiff) Hunt & Hunt (Defendant)
CATCHWORDS:	Negligence - Master/Servant - Vicarious Liability - Damages Assessed
CASES CITED:	Kempsey District Hospital v Thackham 1995 36 NSWLR 492 Nair v The Health Administration Corporation 1995 ATR 81-312 AWA v Keogh 3 MVR 243 McLean's Roylen Cruises v McEwan 1984 58 ALJR 423
DECISION:	Judgment for Plaintiff

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MICHAEL GROVE J

TAMWORTH: Thursday 20 July 2000

20202/99 - IAN ROSS THOMSON v MYBNER PTY LIMITED

JUDGMENT

1    HIS HONOUR: In this action the plaintiff seeks damages from his relevant employer in respect of injuries which he claims to have sustained on 14 July 1998. The plaintiff was employed by the defendant as a heavy vehicle driver. On the date in question, and for sometime prior to that, he had been required to transport feed grain by means of what is described as a B-Double rig. This consists of two trailers; in this instance the one closer to the cabin carrying a load of approximately thirteen tonne and the one further from the cabin carrying some twenty six tonne.

2    There is evidence that the ordinary routine was for the plaintiff to deliver his load from the Tamworth area to various chicken farms located to the south; generally in and about the outer suburbs of Sydney. On occasions his employer arranged for the acquisition of a back-load on the return trip to the Tamworth area.

3    It is significant to note that the plaintiff was employed purely as a driver. This is relatively unusual but not unknown in the trucking industry.

4    The limitations, therefore, upon his employment included the circumstance that he was not involved in the loading of the truck, nor was he involved in the tying down of covers upon the load, nor was he involved in the discharge of the load at the delivery point.

5    The plaintiff's tasks, so the evidence goes, did not extend beyond simply picking up the preloaded vehicle and making the delivery that I have indicated. He also performed some superficial checks to which I will later refer.

6    The system was that when other employees of the defendant had the load prepared and ready to roll as it were, the plaintiff would receive a telephone call, he would attend at the depot, and deliver the load.

7    On 14 July it is the plaintiff's recollection that he had made a delivery and returned to the depot at about 3.30 in the afternoon. He thinks he did bring back a back-load, although this would not seem to be of any significance to the matters in contest.

8    He did notice that there were some minor tears in the tarpaulins which are used to cover the load. It was no part of his function to attend to the repair of these, and he reported this to the maintenance staff, and apparently remained at the depot long enough to see them remove the tarpaulins for the purpose of attending to the minor repair.

9    At about 7 pm that evening he received a call telling him that there was another load to be taken, and he reported to the depot at about 20 to 8 in the evening.

10    I might mention in passing that records show that at sometime during that day the plaintiff called upon an osteopath, Mr Mullens. His surgery records, which are now Exhibit 2, indicate this visit, and I shall make reference to this later in this judgment.

11    When the plaintiff returned to the depot he found his truck ready to be taken out. He checked the tyres and visually made sure that locking pins were in place in the tailgates. He checked the turntables, visually saw that the tarpaulin was down, and checked that the ropes were tight.

12    This would seem to be the full extent of any requirement of the incidents of his employment other than the actual delivery of the load.

13    He set off on the southbound journey. According to his evidence he noticed something about the load at approximately the village of Rutherford, and some five kilometres or thereabouts further south he came to the large roundabout near the City of Maitland, which is particularly well lit and wide, thus giving the driver an opportunity to make a visual inspection to the rear of his load using the vision mirrors, even though it was by then well into the night.

14    He had observed that there was a flapping of the tarpaulin covering the rear load of the B-Double rig. He decided to stop to check and see if he could attend to the matter. This was consistent with the description given of him by fellow workmen that he was an extremely conscientious and careful driver. When he went to look at the load he noticed that the last of three ropes securing the particular tarpaulin had not been secured around the appropriate hook. I should pause to make some observations about the tarpaulin system.

15    The particular tarpaulins on these loads were attached by fixed ropes to the nearside, and these were tied in what has been described as a truckies hitch. On the offside there were other ropes, but to these were attached rubber sewer rings, which were flexible, and thus in order to uncover the load it was possible on the offside simply to use the elasticity of the rings to detach that side and roll back the tarpaulin. Indeed it was the practice to use this system to open the tarpaulin halfway in order to put the load into the trailer from the hopper. I repeat, however, that the plaintiff himself was not involved in this part of the operation.

16    It is also to be observed that at the delivery end the trailers, which had a tip facility, were not used for that function, but the feed grain was taken out by means of a blower.

17    Another matter to which I might conveniently refer during this pause is a suggestion made by the plaintiff to his employer about using a different tarpaulin attachment system which for convenience I will call a roll-top.

18    The plaintiff had raised this matter with one of the principals of his employer, Mr John Carey, but what he told him was that the tarpaulins were not safe because the rubber bands - that is to say the sewer rings - which they were using, were recoiling. He told him that some of them when they recoiled flew back in the face of the operator, and you could not get consistent tension all the way through.

19    The suggested alternative involved the fitting of the trailer with a handle, something like a jack handle, so that the tarpaulin could be simply rolled on and off. Whilst that is no doubt an attractive alternative, it has to be pointed out that the complaint made had nothing whatever to do with the incident that later befell the plaintiff and, as I have indicated, his concern was about the recoil of the elasticity in the rings.

20    The roll-top, so far as I can judge, was one of many alternatives that might have been used on this particular truck. I return, however, to what occurred on 14 July.

21    The last three securing ropes on the nearside of the trailer consisted of vertical ropes, one attached on that side nearest the rear and the one, third from the rear. The centre attachment of the three was a rope that moved diagonally so that it attached and made the corner of the tarpaulin snug on the angle.

22    The plaintiff observed that these three ropes had not been tied behind the hook, but there was in position a truckies hitch, and to his observation it looked intact. He said that he was familiar with ropes which were tied in a truckies hitch, but it had never been his experience that such hitch had ever given way before. I am able to infer the probable reason for this experience, and I shall give reasons for my conclusion in a few moments.

23    The plaintiff undid the first misapplied rope (in the sense that it had not been passed around the hook) and he held it tightly, taking the tension in his left-hand whilst he threaded it back through the hook and through the cloves of the truckies hitch. He encountered no difficulty in doing this.

24    As I understand it, this first rope to which he attended was the diagonal rope that I have earlier described.

25    He then set about performing the identical task with a second rope, but as he was holding it, the rope and its cloves gave way, and as a result he fell suddenly forward and noticed severe pain in his lower back. Undoubtedly it was necessary for him to stand in a relatively awkward position, and importantly he was exerting pressure upon the rope in order to maintain and give it tension. Hence he was vulnerable to the injury to his lower back.

26    In the course of evidence quite a lot was said about the truckies hitch. It was said to be something that was familiarly used, and commonly used throughout the industry. Indeed this proposition was vigorously advanced on behalf of the defendant. And I accept that it is probably the case that the truckies hitch is commonly used throughout industry. But the truckies hitch consists of a single piece of rope, but it is not accurate, as was put by counsel for the defendant, to say that simple pressure upon it will cause it to string out into a single long strand. This is because if the hitch is properly tied it not only has cloves but it has, what any boy scout would be able to tell you, a locking hitch, and it is plain that these ropes, or at least the rope that gave way, had not been tied with a locking hitch.

27    I do not need to rely upon the general knowledge of boy scouts for this conclusion, as indeed in passing, as it were, one of the experts, a Dr Coyle, who spent a long time discussing ergonomic matters and rubber rings and the like, said this:
"Because of the way in which the ropes had been initially secured, it was impossible for him to ascertain that they had been in fact tied incorrectly, most probably without a locking hitch on the clove hitch without undoing all of the ropes".


28    I infer from that evidence that there is in the proper tying of a truckies hitch a requirement that there be a locking hitch. No doubt this is the reason why the plaintiff had never before encountered one of these hitches coming apart. If the rope was correctly tied you could place pressure upon the rope as he did with the first one and it would not come apart. The cloves would remain in place and it would be possible, if it was necessary, to re thread the rope to pass it through the cloves and reapply tension.

29    Thus I ask myself the question whether or not the plaintiff has established a case in negligence.

30    Putting and securing the tarpaulin in the first place was the responsibility of other employees. I am satisfied that he was entitled to assume that this had been securely and properly done. I accept that it was not securely and properly done in respect of the relevant rope in two aspects: First it was not threaded about the hook as it ought to have been; and second, there was not a locking hitch in the truckies hitch as an ordinary knot of that sort should contain.

31    If the rope had been properly tied and properly threaded in the first place I am satisfied that the tarpaulin would probably not have come loose and, therefore, the plaintiff would not have been exposed to a risk of injury. A risk of injury was unnecessary in that if the rope had been properly tied with its locking hitch and threaded around the hook there would have been no need to attempt an adjustment whilst in the middle of the delivery run.

32    I find that it was foreseeable to any reasonably prudent employer that if the tarpaulin was not properly secured, that that may be a causative risk which would result in some injury to an employee such as the plaintiff.

33    It is not necessary for the defendant to foresee the precise circumstances in which the injury occurred. In my view the issues of foreseeability, causation and the necessary ingredients of negligence are made out.

34    An alternative case was proposed by the plaintiff on the basis that the supply of a roll-on type tarpaulin would have avoided this risk. It would have avoided it in the sense that the particular operation would not have been undertaken at all if there was a different method of securing the tarpaulin, but as I have earlier indicated, I am unable to find on the state of the evidence that there ought be a preference for one system against the other. The evidence showing that the use of ropes and truckies hitches, that is to say properly tied truckies hitches, are common and appropriate throughout the industry.

35    I would not have found in favour of the plaintiff on this alternative case but, as I have indicated, I am satisfied that his case is made out on the primary allegation of negligence.

36    I should make some reference to the expert evidence which was tendered. No expert was called but I have reports from them. The defendant presented a report from a Mr Johnson. It suffices to observe that he simply does not deal with the circumstance of the absence of a tie around the hook on the trailer, nor does he advert to the absence of the locking hitch upon the rope.

37    As I have already mentioned in passing, Dr Coyle spent a considerable amount of his reports volume discussing matters which I have found not to be relevant to the essential issues, but I do rely upon his observation as to the probability of the absence of a locking hitch in the rope which is compatible with my own finding concerning the circumstances. The plaintiff will be entitled to an award of damages.

38    The issue of contributory negligence was advanced on behalf of the defendant. I have already said that the plaintiff's experience that the total collapse of a truckies hitch had never been encountered is explicable on the basis that properly tied hitches would have the quality of locking the cloves by the further hitch.

39    I should also mention that I have noted the considerable reference in Mr Johnson's reports to what he would expect of a truck driver in terms of knowledge and experience, but these references relate to what I might advert to as the commoner situation where the driver has responsibilities beyond simply delivering from point A to point B. It was this defendant's system to divide the responsibilities, and loading and unloading were not part of the responsibilities of the plaintiff. As I have said before, his task was simply to deliver from one point to another.

40    It was said that commonsense would have indicated to the plaintiff that a single strand rope might come apart, but I have already given my reasons for rejecting that assertion.

41    Insofar as the plaintiff was employed as a driver, I am unpersuaded that the defendant has demonstrated that he failed to take reasonable care for his own safety in respect of any of the aspects of the relevant circumstances surrounding the accident, and I reject the defendant's argument on this issue.

42    I turn to the question of damages. I can deal with this relatively briefly, not because the matters are minor but because the defendant has essentially not fought these issues. There is evidence that the plaintiff was seen on four occasions by medical practitioners to be qualified in order to give evidence on behalf of the defendant, but no medical report from the defendant at all was tendered. The evidence is that the plaintiff had two bouts of major surgery as well as other minor procedures, essentially to the lumbar fourth and fifth level, and the fifth lumbar to first sacral level. There is an important observation in the medical material which is, as I have said, comes in its entirety from the plaintiff that there is detected arachnoiditis in the region of the cauda equina and emerging nerve roots. I believe I am entitled to use my own knowledge of the condition of arachnoiditis to observe that it is well-known that this condition can be productive of extreme pain and disability. This is, as I say, a matter of notoriety.

43    One of the doctors described the plaintiff as having adopted a simian stance and gait, and this is consistent with his presentation in court. And as he has been observed in and about the area of it, it has to be said that the plaintiff presents as a somewhat pathetic figure, bent over using a stick and manifesting observable signs of distress which I would conclude are likely to be products of the pain inspired by the arachnoiditis.

44    I conclude that the plaintiff's presentation both to the doctors and in the Court has been genuine. No suggestion was made that his condition is likely to remit, and no suggestion has been made that his condition will be assuaged by further necessarily successful intervention. The conclusion I reach is that the plaintiff is likely to be affected indefinitely.

45    There has been some controversy about what has been asserted to be the plaintiff's pre-injury position, and I should make some reference to the issues raised.

46    I accept the plaintiff as a witness of truth and reliability. I accept that he had no previous symptoms in the lower back, which is the area of the important source of present pain and disability. It is true that he has had some symptoms in other parts of his back in the past and, as I said, he had seen a Mr Mullens, the osteopath, on the day in question. That is to say 14 July. These symptoms, however, did not inhibit the plaintiff from going about his ordinary work, and although he has given history of some pain and discomfort in his upper back from time to time, I am unprepared to conclude that this is a matter of any current significance, bearing in mind that it has not significantly interfered with any of his activities, including work activities, up until July 14.

47    I should make specific reference to a matter about which he was cross-examined, that is to say the reference in a claim form of symptoms consequent upon the accident being at his mid to lower back. A couple of things might be said about this. First, the form was in fact filled in by the plaintiff's wife, although he accepted that he signed it. A description "mid to lower back" no doubt makes certain anatomical suggestions to members of the medical profession, and to members of the legal profession who commonly practise in compensation law. The plaintiff explained that what he was attempting to convey was that the pain which he experienced was in the middle part of his lower back. That is to say the middle part, if one took a horizontal plane as distinct from a vertical plane. I would accept this explanation, and I decline to infer from what was written in the form that the plaintiff was suffering some symptoms in his lower back referable in particular to anything that occurred prior to the incident near the roundabout at Maitland.

48    I am satisfied that the relevant causal relationship between the plaintiff's present pain and disability and the incident on 14 July has been proved.

49    I have made reference to the history of earlier symptoms in different parts of his back. I would observe that there is no specific evidence that any previous condition was going to progress or to give him any problem in the future. For my part I would regard this as a matter of chance, and will take it into account in relation to the ingredients of damage in a manner that I will advert to when dealing with the individual ingredients.

50    A specific submission was made on behalf of the defendant concerning the asserted earlier symptoms that the plaintiff should be assessed as having a likely compensable entitlement in any event for disability emerging from the nature and conditions of employment giving rise to the hypothesized disability in the upper back. It suffices to say that the evidence does not persuade me that there is any probable compensable injury to be assessed in that regard. The most that I would find that such matter should be taken into account will be in the finding that I make that the probability is that the plaintiff would give up the relatively intense work of truck driving in the pattern that he had undertaken at the age of sixty rather than the age of sixty five.

51    It can be observed that the plaintiff's own evidence was that he would work till sixty at least. It could do justice between the parties if I take the figure mentioned of sixty rather than extending it as submitted to sixty five.

52    In this regard I finally note that the defendant's counsel specifically referred me to Kempsey District Hospital v Thackham 1995 36 NSWLR page 492. For the reasons that I have given I find nothing in the judgments in that case applicable to the present circumstances.

53    Whilst recording matters, although I recognise it as a little out of context, I should in fairness to the defendant also record that on the issue of liability generally, my attention was drawn to the following cases: Nair v The Health Administration Corporation 1995 ATR 81 - 312; AWA v Keogh 3 MVR 243; and McLean's Roylen Cruises v McEwan 1984 58 ALJR 423.

54    I finally turn to the assessment of the ingredients of damage. This can be done with relative dispatch thanks to the cooperation of counsel who have provided me with their respective submissions where relevant on the individual ingredients of damage. It is agreed as a statistical matter the plaintiff's life expectancy from the present is forty years. He is aged but thirty seven, although I should observe that having regard to his condition he presents as a person well beyond those years.

55    The out-of-pocket expenses are agreed in the sum of $113,116. There is a report from a psychologist suggesting that the plaintiff would benefit from some further treatment in this regard. The amount claimed is $2,250. No argument was presented suggesting that I should not include that amount, and I do so accordingly.

56    A calculation has been made that the cost of medication (principally for the assuaging of pain) can be estimated at $30 per week, including necessary consultations from time to time. Over the plaintiff's statistical life expectancy a capitalised calculation can be done by using a 5 percent discount factor of 917.5 at $30 per week. This produces a sum of $27,525, and I include that sum in the damages.

57    It is further agreed by counsel that to avoid the detriment identified by the High Court in Fox v Wood I should include $5,208 in the damages.

58    If I may borrow some convenient descriptive language from another place and another age, I am satisfied that the plaintiff is totally and permanently incapacitated for practical earning. I am conscious of the fact that he worked for a little time after this accident, but this is typical of the onset of injury of the type that was detected by the surgeons and led to the radical operations that were necessary but unfortunately not successful in relieving his condition.

59    The plaintiff, as I have indicated, was employed as a driver. He worked at a particularly intense rate, and I have already made some mention of that. The result of his attention to work was that he demonstrated a nett average weekly wage of $963 per week. In the hundred weeks that have passed since the accident, during which he did not earn income, I am satisfied he has in any practical sense been unable to earn any income at all. I, therefore, include $96,300 in the damages for what is conveniently referred to as passed economic loss.

60    I have already indicated that I would project the plaintiff's notional working life to sixty years. I do not retrace the reasons that I gave for selecting that age. I take into account the possible consequences of any underlying condition but, as I have said, the evidence does not persuade me that this was at any time incapacitating in the sense of preventing him from working, and there is simply no specific evidence that it was likely to deteriorate in the future.

61    I propose to take the plaintiff's current net earnings of $963 as a guide to project that to his age of sixty, which in round years is twenty-three years. The factor on the 5 percent tables is 721.2. I apply a discount against the calculation of 15 percent to allow for the conventionally assumed preponderance of adverse over favourable vicissitudes, and also to take into account the matters to which I have adverted. If one takes $963 per week at the factor that I mentioned, and deducts 15 percent for vicissitudes, a capital sum of $590,338 can be estimated, and I will include that sum in the damages.

62    A claim is next made for the loss of the compulsory contribution by the employer of the plaintiff's superannuation. The cooperation of counsel has led to an agreement that the value of the employer's contribution is to be estimated at $77 per week. That contribution would be made on the hypothesis that I have approached of the question of loss of future earnings over the next twenty-three years. Accordingly, I would again use the 5 percent discount factor of 721.2. However, although the employer makes contributions week by week, the plaintiff is not entitled to the benefit of those contributions until he reaches the age of sixty. Accordingly, as a matter of mathematics, it is necessary to apply a discount factor for the deferral of payment for twenty-three years.

63    Counsel have agreed that the appropriate factor is 0.326. Accordingly, to compensate the plaintiff for this loss on the basis of the agreed sum of $77 per week, a calculation should be made by multiplying that sum by 721.2 and multiplying the result by 0.326. I include in the damages $18,104.

64    Next I move to a claim for non-economic loss. These are necessarily matters of impression. As I have said, the medical evidence in this case has all come from the plaintiff, and no point would be served by my attempting to recapitulate the tale of tragedy that can be read in those reports.

65    The plaintiff had submitted that an appropriate figure against a most extreme case would be 80 percent. As I have said, these are matters of impression and estimation. I have come to the conclusion that justice between the parties would more appropriately be done by the selection of a figure of 70 percent. It is agreed that the relevant figure for a most extreme case was $228,350. Applying my conclusion, therefore, there will be included in the damages $159,845.

66    It is convenient to mention at this stage that no submission was made that the plaintiff had not qualified in the sense of all the threshold bars which are necessary to be passed in order to justify the award of damages. Those bars being set out in the Workers' Compensation legislation, it is not necessary for me to refer to those matters in detail.

67    Finally a claim was made for the loss of voluntary services. There was in fact no evidence from the plaintiff as to what services were rendered to him. They were said to be done for him by his wife or members of the family, but what they were I do not know. The plaintiff relied entirely upon a medical report which suggested that it would be reasonable to allow him assistance for about an hour a day. This is contradicted by another report also tendered by the plaintiff which says that the plaintiff is entirely independent in all the aspects of daily living. Having regard to the fact that I have no evidence before me of the provision of any services at all, the plaintiff necessarily must fail on this claim, and there will be no award.

68    The defence in para 3 of payment pursuant to statute is by consent made out in the sum of $119,884.

69    Recapitulating then the ingredients of damage that I have assessed, they are as follows:

Out-of-pocket expenses, $113,116;
Future psychologist, $2,250;
Future medical and the like, $27,525
Fox v Wood, $5,208;
Past economic loss, $96,300;
Future economic loss, $590,338;
Loss of employer's superannuation contribution,
$18,104;
Non-economic loss, $159,845.
Deduction for defence of payment $119,884.


70    This leaves a nett sum of $892,802. And unless somebody wishes to move in arrest of judgment I propose to direct entry of judgment for the plaintiff for that amount.

71    I direct entry of judgment, therefore, for $892,802.

72    I am informed that an offer of comprise of less than the amount of judgment which I have entered was made on 28 or 29 February to expire on 29 March. The defendant is to pay the plaintiff's costs of action. Those costs to be on an indemnity basis after 29 March 2000. The exhibits may be returned.
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Last Modified: 09/26/2000