Tilocca v Boon and Willard Plumbing Pty Limited

[2003] NSWSC 389

CITATION:	Tilocca v Boon & Willard Plumbing Pty Limited [2003] NSWSC 389
HEARING DATE(S):	09-11 April 2003
JUDGMENT DATE:	12 May 2003
JURISDICTION:	Common Law
JUDGMENT OF:	Michael Grove J at 1
DECISION:	Judgment for the Defendant
CATCHWORDS:	NEGLIGENCE - WORKPLACE INJURY - SUPERVISION - CREDIBILITY - NO SPECIAL POINT OF PRINCIPLE
CASES CITED:	Dixon v Whisprun Pty Limited [2001] NSWCA 344
PARTIES :	Gianmario Tilocca v Boon & Willard Plumbing Pty Limited
FILE NUMBER(S):	SC 20610/01
COUNSEL:	M.L. Williams SC with R. Sheldon (Plaintiff) R.A. Gray (Defendant)
SOLICITORS:	Carroll & O'Dea (Plaintiff) Hicksons (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MICHAEL GROVE J

Monday 12 May 2003

20610/01 - GIANMARIO TILOCCA v BOON & WILLARD PLUMBING PTY LIMITED

JUDGMENT

1 HIS HONOUR: The plaintiff is a tradesman plumber. On 16 June 1999 he was employed by the defendant at a work site within the Warringah Mall Shopping Complex. The particular relevant task was to fix aerial drainage piping. Scissor lifts were being used to gain height access. Standard six metre lengths of 100mm (4 inch) pipe were being used. They were made of plastic (PVC) and a single piece weighed approximately ten kilograms. Within the site compound was an office and a shipping container which was used for internal storage and externally, on its roof, pipe lengths were stacked.

2 I shall later turn to disputes about particular circumstances, but shortly after arriving at work at about 6.30 am the plaintiff went to the door of the container and partly opened it. The door frame was fitted with railing and the plaintiff put one foot on a middle rail and hoisted himself so that he could extract pipe by sliding it from within the stack on the roof. He performed this function twice and on each occasion dropped the pipe to the ground. He climbed down, squatted and placed one pipe on each shoulder. He interlocked his hands over the pipes and adjusted them to a point of even balance on his shoulders. Having done so he said that they “felt right”.

3 Having so positioned the two pipes he proceeded to the workplace. In his evidence he estimated his traverse at about 100 metres. The surface crossed, he testified, consisted of about six or seven metres of bare reinforcing mesh upon which he needed to place his feet carefully and the balance over which he passed was simply flat concrete.

4 Upon arrival at the work location he let go of the pipes one after the other, letting them drop to the floor. During the walk he said that the pipes had twisted and turned and moved around. Upon arrival he was “puffed out” and took a couple of breaths whereupon he sensed “electric shocks” in his upper torso. The sensations repeated with each breath that he took. He thought that he may have pulled a muscle but when he cooled down he was conscious of localized pain in the centre of his back, that is between his shoulder blades.

5 He attended a local medical practice and was directed first for some physiotherapy. I shall sketch some subsequent medical investigation and attention. The plaintiff has not worked on full duty as a tradesman plumber since and has engaged in only sporadic work activity of any kind.

6 No medical witness was called. The plaintiff tendered a bundle of thirty medical and allied reports and, separately, an assessment of “activities of daily living” needs by an occupational therapist. The defendant tendered a bundle (excluding those duplicating the same in the plaintiff’s bundle) of sixteen reports. The medical opinions were not unanimous, but the absence of unanimity appears to a large extent to stem from the completeness of information available from time to time to the authors of the various reports.

7 In terms of physical symptoms the plaintiff complains of constant pain between the shoulder blades and a numbness or weakness in the left arm experienced first a couple of months after the incident in June 1999 and continuing to the present. It does appear that some investigations focussed upon the lumbar and cervical spines and there were x-rays and scans of those areas, however the principal support for the plaintiff’s claim is found in the report of MRI of the thoracic spine of 28 March 2000 as follows:

“The thoracic cord is of normal signal and morphology.
There is some narrowing and desiccation of the T2/3 and T4/5 intervertebral discs. At T4/5 there is some minor degenerative bulging of the annular contour.
No nerve root compressive lesion of the lateral recesses or foramina.
The bone marrow signal is normal. “

8 A report by Dr Crocker (a physician) of 5 November 1999 predates this scan but, although noting the plaintiff’s clinical presentation as atypical and diffuse, he postulated possible facet joint dysfunction in the thoracic area. Dr Conrad, a surgeon, saw him in October 1999 and diagnosed cervical and thoracic spine strain and a left shoulder sprain. He suggested that he would like to see an MRI. In May 2000 he reported seeing the scan above quoted and opined that it “fits in with an injury” to the plaintiff’s thoracic spine. Dr Selby Brown, an orthopaedic surgeon, saw the plaintiff in November 1999. He reported gaining an impression that the plaintiff may have suffered a significant injury in the upper thoracic spine area and he recommended MRI scan. He saw the report (but not the films) of the March investigation above and wrote (in April 2000) that the report appeared to confirm his impression that the plaintiff “may have sustained a significant injury in the upper thoracic spinal area”. By June 2000 he was supplied with the film which he assessed as supporting his tentative postulation and his diagnosis was that the plaintiff had a condition in the nature of intervertebral disc damage at T2/3 and T4/5. Dr Bentivoglio, another orthopaedic surgeon, saw the plaintiff in July 1999. He saw a CT scan of T4 to T9 but clinical observations led him to arrange a scan from C3 to T4. This was done. Both these scans were considered unremarkable. He arranged an MRI of the cervical spine about which he made the same comment. By November 2000 he knew the result of MRI to the thoracic spine. In April 2002 he opined that the plaintiff “would have sustained some degree of discal damage to his thoracic spine region” and said that it was likely that the plaintiff would experience “some degree of symptoms” for the foreseeable future and perhaps indefinitely. He thought the plaintiff should avoid arduous activities.

9 In November 2000 Dr Bentivoglio had written to the plaintiff’s current general practitioner noting that he had arranged for the plaintiff to see Dr Ditton at a pain clinic. Dr Ditton noted tenderness over the plaintiff’s thoracic spine but that it was not localized. He did not see the scans but was told of findings including the thoracic MRI. He suspected that symptoms related to disruption of the T4/5 intervertebral disc but added that “there does not appear to be any significant protrusion which would lead to nerve compression and associated neuropathy”.

10 Dr Lawson, a physician, noted the indication of intervertebral disc damage about which he commented, “in a man of this age group would appear significant”.

11 The defendant tendered a series of reports from Dr Stephenson, an orthopaedic surgeon. He thought that the plaintiff was fit for normal work without restrictions and that there were no indications for medical or physical treatment.

12 Having regard to explicit terms of his letter dated 30 March 2000 I have assumed that the word “no” is missing from the penultimate sentence of his report of 17 March 2003.

13 Dr Hope is also an orthopaedic surgeon. About the scan he commented:

“ Thoracic spine MRI scan, 28 March 2000, shows no significant abnormality. There is reduction in disc space at the T2/3 level and T4/5 level. These changes are not significant and do not explain the current condition.”

14 He considered that the plaintiff was fit for full duties and no orthopaedic condition existed.

15 Professor Oakeshott, a holder of various fellowships, a membership and a diploma, who signed his report as “Workcover approved medical specialist” reported that he was unable to identify objective clinical evidence of physical injury or underlying pathology, however he specified that no x-rays or other investigations were available to him at consultation and there is no evidence of any subsequent supply of these to him.

16 In December 2000, the plaintiff’s general practitioner referred him to Dr Chung, a psychiatrist. At that time he diagnosed major depression and recommended anti-depressants but noted that the plaintiff was reluctant as an earlier trial of Zoloft had led to side effects. The nature of these side effects was not specified. A copy letter from Dr Chung to the general practitioner (Dr Aldous) dated 21 March 2001 noted that since December the plaintiff had been attending every two or three weeks but appeared to have “dropped out of treatment”. His final comments included:

“On several occasions I suggested to Gianmario that he try antidepressants. These would have multiple advantages including the obvious antidepressant effect, as well as helping to manage his anger and possibly also his pain. He constantly refused the idea, but if he represents to you than (sic) this might be a useful intervention if he was willing. “

17 Dr Chung saw the plaintiff again for the stated purpose of report on 2 August 2002. He mentioned that he has last treated him on 23 January 2002. He affirmed diagnosis of major depression, alcohol abuse in remission and amphetamine abuse in remission. The purposes for which I have surveyed the medical evidence do not require me to explore the two lastmentioned diagnoses.

18 Dr Chung added:

“I have continually stressed to Gianmario that he would benefit from the use of antidepressants but he continues to refuse this. I suspect that this is a function of his personality structure. There is a high likelihood that if he were to take antidepressants, that his depression would at the very least ameliorate and possibly resolve. The depression could resolve within the period of one month, although I suspect that he will continue to have residual symptoms as long as he is suffering from chronic pain and is unemployed.
If Gianmario’s depressive symptoms resolve adequately, he would be fit to return to work from a psychological point of view.”

19 The defendant arranged for the plaintiff to be examined by Dr Samuell, a psychiatrist. Both parties tendered his single report. Counsel for the plaintiff referred to this report in opening and referred to this extract:

“Premorbidly his personality appeared to be quite vulnerable and narcissistic. He lacks self-reflection and his preoccupation with ‘fast cars, fast women and extreme sports’ portrayed him to be a superficial individual lacking psychological insight.
I have made these strong observations of Mr Tilocca in order to illustrate the personality the claimant has and the difficulties this has posed to recovery from his physical injury. Individuals with narcissistic personality and configurations are often vulnerable to unexpected limitations placed upon them. I would see his present suffering within the realm of the normal suffering one would experience as a product of personality.”

20 It should be observed however that following these comments the report continues:

“Mr Tilocca has not suffered from a psychiatric injury or illness as a consequence of his injury whilst plumbing.”

21 I have made extended reference to the medical material before turning to the issue of liability because, as will be seen, there is direct contradiction between the plaintiff and witnesses called by the defendant about circumstances surrounding the incident sued upon and I consider it important to bear in mind the (accurate) description of the plaintiff by his counsel as an angry man. I thought that answers to some questions appeared to be derived from emotion rather than deliberation. I have noted the plaintiff’s complaints on occasions that investigations were directed to the wrong area and to the extent that several x-rays and scans of the cervical and lumbar spines were undertaken, his frustration is understandable although he may not appreciate that they did operate to exclude possible injury to those areas.

22 Against this background I have approached the plaintiff’s evidence by trying to allow that some of his descriptions may give an appearance of inaccuracy by reason of an emotional lability. The obstacles to accepting his descriptions are, however, considerable.

23 The plaintiff’s pleaded case was that he was required by the defendant to carry two PVC pipes a distance of approximately 500 metres. Particulars were endorsed in the statement of claim. No submission was made that the plaintiff had established damage caused by breach of various provisions of statutes and regulations mentioned in the pleading. Particulars relating to common law breach refer to requiring the plaintiff to carry two pipes the specified distance, failing to supply assistance by men or machine, failing to instruct and supervise and specifically not directing him to carry one pipe at a time.

24 Further particulars were provided in correspondence. In response to whether the plaintiff had requested assistance it was said that there was “nobody to ask” and the distance that the pipes were carried was amended to approximately 200 metres.

25 Save documentary material, the plaintiff’s testimony was the only evidence called in support of his case.

26 He said that he met two supervisors at the lock-up, which I take to be a reference to the container. He identified his foreman John Fraser and his superior as a second man also named John. As the trial continued it seemed to be accepted that this second man was in fact Michael Cave. The plaintiff was told to “grab a couple of lengths of pipe” and meet them at the worksite. He brought the pipes down from the top of the container as earlier described and asserted that at the time both the other men were at the bottom of the container looking at plans.

27 It can be mentioned that in cross examination the plaintiff acknowledged that there were two ladders on site that he knew of, but he denied that there was any ladder near or in the container. He did not try to locate the ladders of which he knew because he was told to “hurry up”. Mr Fraser later testified that there were ladders on site but he could not recall if there were specifically ladders near the container on the particular day. He had seen other workers climb in the fashion described by the plaintiff and he agreed that such practice was unsafe. He said that in such circumstances he would draw attention to the ladder but he would not “rouse”. The conclusion I formed was that Mr Fraser, a comparatively young man and therefore comparatively young foreman, may not have wished to appear over assertive. He expressly said that he did not see the plaintiff ascend or descend the container door. I find that nothing turns on this as there is no suggestion that the plaintiff suffered any injury as a result of his actions in drawing the pipes from the stack and letting them fall to the ground. The plaintiff’s case relates to the subsequent transport of the pipes after which he dropped them to the ground and whether he obtained them originally whilst standing on a ladder or otherwise is of no consequence.

28 In addition to asserting that the supervisors were present at what might be called the commencement point of the pipe transport, he claimed that he expressly asked them to give him “a hand” but they refused saying that they would proceed to the job site and mark it up and that the plaintiff would be “right”. In cross examination he expanded:

“Q. And you’re quite sure that you asked for assistance, did you?
A. Positive.
Q. And you asked it of one of the people – one of the people was John Fraser?
A. That’s correct.

Q. And what were you asking for, additional workers to help carry the pipes, were you?
A. I actually asked him to carry the pipes, if not an apprentice, if not a trolley because of the distance mainly.”

29 Mr Cave denied that he was at the relevant time near the container, nor did he receive any request from the plaintiff for assistance. He first saw the plaintiff that day when the plaintiff was sitting down at the work site to which he had carried the pipes and he was then complaining of injury. Mr Cave also denied receiving any request for a trolley to be provided. It is noteworthy that no cross examination was directed to Mr Cave challenging his evidence that he had not seen the plaintiff at all on that day until what might be described as after the event.

30 Mr Fraser agreed that he had given the plaintiff instructions as to what job he was to perform and he could not now recall whether he also accompanied him to the particular location. His contradiction of the plaintiff was explicit:

“Q. When the plaintiff got down the pipes, did you see him get down the pipes from the container?
A. No, I didn’t.

Q. Were you present when he got them down?
A. No, I wasn’t.

Q. Were you and Mr Cave sitting there when he got them down?
A. No, we weren’t.
Q. Or standing there?
A. No, we weren’t.
Q. Did he at that time ask you whether or not you could help provide him with an apprentice or give him a trolley?
A. No he didn’t.”

31 I am aware that there was further evidence:

“HIS HONOUR: Q. When you say over near the job, do you mean near the container or near the aerial plumbing?
A. Yeah where he was going to do the aerial plumbing.
WILLIAMS: Q. And you had sent him to that location, telling him the job that he had to do, hadn’t you?
A. I would have either told him to go over there or come over with me.
Q. But you can’t remember which?
A. No, I can’t.
Q. And then did you next see him at the container, trying to get pipes off the roof of the container?
A. No.
Q. You just cannot remember that, is that right?
A. I didn’t see him trying to get a pipe off.
Q. You didn’t see him getting pipes off the roof of the container, did you?
A. Yes I did.
Q. Positively seen it?
A. Positively. “

32 Whilst contradiction is apparent I am of a view that there must be some transcription error. No submission was made that the evidence showed that Mr Fraser did in fact see the plaintiff ever get the pipes down. Cross examination directed to him involved a somewhat tentative and oblique challenge:

“Q. When you answered the questions to Mr Gray about whether or not he had asked you for help that morning or whether he had asked for a trolley you were not saying, were you, that you got a distinct recollection of the conversations, are you, you are just saying I can’t remember that happening, aren’t you?
A. Sorry can you repeat that?
HIS HONOUR: That’s a very difficult question actually because that assumes there has been some such discussion which is not the witness’s evidence.
WILLIAMS: Q. You are not positively denying that he asked you for help, are you?
A. I am not sorry, positively ---
Q. You are not saying he did not ask me for help, you are just saying I can’t remember that happening, is that that what is going through your mind?
A. Well yeah, like as I said I can’t remember him asking me to give him a hand because if he would have I would have gave him a hand.”

33 I accept the evidence of both Mr Cave and Mr Fraser. The latter, I note, is no longer employed by the defendant and I would regard him as a substantially independent witness, that is not to say that I consider that Mr Cave has slanted his evidence in any way.

34 In final submission reliance upon the credibility of the plaintiff’s claims that either of his superiors was present, told him to hurry up, refused him assistance, either manually or by supply of a trolley, was, by silence, impliedly abandoned. I reject the plaintiff’s assertions to these effects and, significantly, it was not put that I should accept those portions of his testimony and I was in fact referred to Dixon v Whisprun Pty Limited [2001] NSWCA 344 as authority for a proposition that destruction of a plaintiff’s personal credit does not inevitably lead to failure of an action. It is undoubtedly valid to say that the case of an uncreditworthy plaintiff may nevertheless be accepted. It may be proved otherwise than by testimony of an unreliable person.

35 The plaintiff’s case was ultimately argued on the basis of alleged failures to give the plaintiff adequate warnings, adequate instructions and adequate supervision. There was another conflict in the evidence concerning the scope of instructions. I accept the evidence that there is an industrial education system whereby safety precautions and advice, including reference to safe manual lifting practices, is given, and that this is evidenced by the issue to a worker who has been properly instructed of what is called a green card. An employee without such a green card was not permitted by the defendant to start work on the site. The plaintiff had such a green card and I am satisfied that he had received appropriate instruction.

36 In addition, at this site it was the requirement of the defendant that any employee (including qualified tradesmen such as the plaintiff) attend an induction presentation by the head contractor (Bovis Limited in this instance) and another by the defendant itself. The plaintiff testified that he attended only one induction course and that this was the one conducted by the head contractor. To the contrary of his evidence there was a work diary kept by Mr Fraser and there appears an entry in it of 7 June 1999 “induct J. Tilocca”. I am satisfied that this is no fabrication (nor was such suggested) and I am accordingly persuaded to accept Mr Fraser’s evidence that he properly conducted a suitable induction routine with the plaintiff. I therefore reject the plaintiff’s evidence that he exclusively attended an induction course of the head contractor.

37 The final submission on behalf of the plaintiff directed attention to the site safety plan which was in evidence. Some cross examination was directed to Mr Cave and Mr Fraser about the genesis of this plan and its site specificity. A reading of the document shows many general precautions and I have little doubt that the basic document is standard for any building or construction project and I would expect that it would be generated accordingly and amended by addition or deletion, as required to make it site specific on a particular job.

38 There is within the document a section entitled “Occupational Health and Safety Rules”. Some of these were referred to, in particular:

“11. Do not attempt any unfamiliar work without instructions. Do not attempt tasks beyond your physical strength – ask for assistance.”

39 It suffices to refer to this as an example. There is no evidence that the task – carrying pipes from a store to a workplace – was unfamiliar to the plaintiff. There is evidence from the defendant’s witnesses that they had in the course of time seen these types of pipes carried in multiples upon many other worksites. There is no reason in my view to impute to the defendant some requirement to assess the task being performed by the plaintiff as beyond his physical strength.

40 I should mention that a report by Mr Hely of a firm of ergonomic and safety management consultants was received into evidence. There is interesting criticism of a section of his report by Dr Olsen concerning the Mr Hely’s computation of at least 40 kilograms force (and likely well in excess of this) being applied on the shoulders of the plaintiff during the initial act of levering. Leaving aside that the plaintiff’s complaint of any sense of injury relates to the time when he was putting down rather than levering up the pipes, I would agree with Dr Olsen’s opinion that the biomechanics relied upon by Mr Hely are faulty. As observed, the actual weight of the pipes is much less than the postulated force figure and I am unpersuaded that there is anything particularly sinister about a plumber carrying hollow PVC pipes of the stated size. I found nothing of assistance in determination of liability in Mr Hely’s report.

41 The ultimate argument on behalf of the plaintiff incanting inadequate warning, instructions and supervision impressed as artificial and was in my opinion, untenable. In deference to the matter having been raised, I should also refer to the contention that there was conveyed to the defendant a view that the number of workmen on site (about eight) was inadequate and that the number required was nearer to twenty. As the plaintiff made no request of anybody for assistance, this circumstance is not germane to any issue of the defendant’s negligence. It was not his case that he was refused assistance because of unavailability of workmen but rather that he specifically asked both Mr Cave and Mr Fraser but they declined to help. As I have said, I reject the plaintiff’s version of that encounter.

42 In summary, the plaintiff a qualified tradesman, needed to move hollow pipes of a plastic style construction, from a storage point on top of a container to the workplace. This was a perfectly routine task for such a tradesman and there was no default on the part of the defendant in failing to give more explicit instructions as to how to go about this simple task. Nor was there default in warning or supervision.

43 I direct entry of judgment for the defendant. The plaintiff is ordered to pay the defendant’s costs.

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Last Modified: 05/13/2003