Tremble v Caboolture Commercial Motor Bodies Pty Ltd

[1999] QSC 34

IN THE SUPREME COURT

OF QUEENSLAND  No.  1879 of 1993

Brisbane

[Tremble v Caboolture Commercial Motor Bodies Pty Ltd]

BETWEEN:
  LANCE CAMERON TREMBLE
  Plaintiff

AND:
  CABOOLTURE COMMERCIAL MOTOR BODIES PTY LTD
  (ACN 010 530 186)
  Defendant

REASONS FOR JUDGMENT - MOYNIHAN J.

Judgment delivered 2 March 1999

CATCHWORDS:     EMPLOYMENT LAW - liability of employer - occurence and circumstances of the injury - plaintiff/apprentice coach and motor body builder injured back in the course of his employment while lifting a milk float body - further incidents exacerbated injury  whether plaintiff received instructions - consideration of natural degeneration of the plaintiff’s back - damages assessed.

Solicitors:  Carter Capner for the plaintiff.

Standish and Partners for the defendant.

Counsel:  Mr C. Newton for the plaintiff.

Mr D.F. Gordon for the defendant.

Hearing Dates:  8 - 10 February 1999
IN THE SUPREME COURT

OF QUEENSLAND  No.  1879 of 1993

Brisbane

BETWEEN:
  LANCE CAMERON TREMBLE
  Plaintiff

AND:
  CABOOLTURE COMMERCIAL MOTOR BODIES PTY LTD
  (ACN 010 530 186)
  Defendant

REASONS FOR JUDGMENT - MOYNIHAN J.

Judgment delivered 2 March 1999

1.  The plaintiff sues his employer for breach of the duties allegedly owed to him as an employee.

2.  The plaintiff was born on 19 June 1970, completed year 12 in 1987 and late in 1988 commenced as a casual employee with the defendant before becoming apprenticed as a coach and motor body builder on 3 June 1989.

3.  The plaintiff alleges that the injuries for which he sues were a consequence of three incidents.  The first occurred on 11 February 1989, when it is pleaded that at the direction of Noel Rackley, who described himself as owner and manager and a director of the defendant, the plaintiff was assisting Rackley and another man lift a milk float body from trestles onto a flat-bed truck tray.  As a consequence of this incident the plaintiff is alleged to have suffered “L5/S1 disc herniation and/or damage, L4/5 disc herniation and/or damage and soft tissue injury”. 

4.  The second incident is alleged to have occurred on or about 7 February 1990, when the plaintiff is alleged to have further injured his back or suffered an exacerbation of existing back injury while operating a press to bend zinc annealed sheets.  The third incident is alleged to have occurred on or about 21 September 1992, in essentially the same circumstances as the second.  The effects of the second and third incidents are pleaded both cumulatively and in the alternative.

5.  The occurrence and circumstances of the first incident was the principal, but by no means the only issue at the trial.  I am satisfied that on 11 February 1989 the plaintiff suffered an insult or injury to his lower back while lifting in the course of his employment.  That he did is supported by the fact that on 13 February 1989 he saw a general practitioner, Dr McLaughlin.  He stated he was “lifting a milk tray . . .” and suffered back pain.  He was put on workers’ compensation for two days.  He subsequently saw Drs Evans and Hartwig from the 13th to the 17th and Dr Evans on 19 February.  On those occasions he was diagnosed as suffering muscle strain which was treated by rest and medication. 

6.  A workers’ compensation form dated 20 February 1989, completed by the secretary and a director of the defendant, reported, “back muscle strain” “back (right side)” and that the plaintiff “lifted a heavy object incorrectly . . . without due thought”.  A claim form dated 17 February 1989 was signed by the plaintiff.  It recorded, “back muscle strain . . . right side” with the explanation that the “object was too heavy”.

7.  The plaintiff’s account of the incident was that he was directed by Noel Rackley, to assist him and a Mr Cavin Sue, a fibreglasser, to lift a milk float body which had been manufactured by the defendant onto a flat-bed truck.  Sue conducted his own business and did the defendant’s fibreglassing.  The plaintiff said that Rackley told him to get to the back and lift while Rackley and Sue lifted from the front.  As he made the lift on to the truck tray the plaintiff felt a sharp pain in his back but completed the lift.  The purpose of the exercise was for the milk float to be transported to Sue’s premises for work to be done on it.  The plaintiff did not complain to Rackley or Sue at the time.  It is not clear whether he accompanied Rackley and Sue to the latter’s premises or whether he went home but it seems that he did no more work on that day. 

8.  The plaintiff’s evidence was to the effect that the milk float body was being taken to Sue’s premises to be fibreglassed.  The evidence of Rackley and to a lesser extent Sue, was that the tray  would have been fibreglassed in the defendant’s premises and taken to Sue’s to have a finishing coat applied once the fibreglass had set.  The fibreglass body would have been heavier than an unfibreglassed body.  Sue was less adamant than Rackley that fibreglassing was not done in his shop but cast doubt on whether he had a vehicle at the time which fitted the plaintiff’s description.  Rackley suggested that he would not have attempted to lift the body and Sue thought it was unlikely they would have done.

9.  Both Anthony and Lance Manning were fellow apprentices of the plaintiff at the time of the alleged incident.  They lend in support of the view that on occasion bodies were taken to Sue’s workshop to be fibreglassed, although Anthony Manning may be mistaken in saying this was because Sue had what was described as a chopper gun.

10.                  Neither Rackley nor Sue had any particular recollection of the events which were 10 years  past by the time of the trial and there was no particular occasion for them to do so until they were asked to turn their mind to them for the first time in 1994.  Their evidence suffered thus.  Although they were honest witnesses it was impossible to be certain which parts of their evidence was recollection rather than reconstruction.

11.                  Essentially I accept that the plaintiff was injured when, as directed by Rackley, he lifted a milk float body from tressles onto the flat tray of the truck and that the body was too heavy to be loaded in that fashion.  There was a gantry and forklift available either of which could have been used to lift the float safely and there is no satisfactory explanation for one of these means not being used.  I am not persuaded that the plaintiff, who was in any event a recent apprentice acting at his employer’s direction, was instructed about lifting in any way which would relieve the defendant of its liability.

12.                  By the Monday the plaintiff’s back was so sore that he went to see a general practitioner, complaining of pain on the right-hand side of his lower back with sciatic pain down his right leg into the calf muscle.  He was diagnosed as having muscle strain, given a certificate for time off work, told to rest and given medication.  He returned to work but continued to be troubled by his back.  He had a number of days off and consulted a number of general practitioners.   They diagnosed muscle strain and advised rest and medication.

13.                  I am satisfied that the consequences of the first incident were exacerbated by the second and that the third exacerbated the consequences of the earlier incidents.  The circumstances relating to these were essentially the same.  The plaintiff was folding zinc annealed sheets on a large press, which at the time was manually operated although later was converted to be hydraulically operated.  Operating in a fairly confined space, each sheet had to be taken from the rack, placed on a marking bench, marked with desired measurements, cut to size by guillotine, taken to the press, manipulated to the relevant angle and the press then operated once the sheets were folded the requisite amount of times.  Once the metal sheet was positioned considerable force had to be applied to a lever to operate the press.  The process was repeated until the sheet was folded.  The machine was subsequently modified so that the necessary force was hydraulically applied which was of course far less stressful for the operator.  It is probable that the plaintiff’s injury was caused when he was operating the lever.

14.                  The whole operation was a difficult one to carry out unaided.  On the occasion of the second incident (the first with the press), the plaintiff had a work experience student with him.  On the third it seems he may have been alone.  It should also be noted that the injury to the plaintiff’s back caused by the first incident increased the risk of subsequent injury both in the sense that his back was more vulnerable and restricted his capability to left manoeuvres.  It was known to the defendant prior to the second and to the third incident that the plaintiff had injured his back in an earlier incident or incidents.  The risk of injury to the plaintiff could have been minimised or avoided by ensuring he had assistance.

15.                  The attitude in the workshop to assistance is probably summed up by Mr Rackley when he said to the effect that it wasn’t always convenient to use lifting gear and if you thought you could handle a task unaided you did it.  There was no instruction or training about lifting or direction to seek assistance in heavy work.  It may well have been that if assistance was asked for and was available it would have been given.  Because of his prior injury the plaintiff was in greater need of assistance in operating the press than an uninjured employee and he should have had assistance.  The fitting of a hydraulic mechanism as subsequently occurred would have minimised or avoided the risk involved in operating the press manually.

16.                  The considerations being those I have adverted to the plaintiff’s injuries were caused by the defendant’s breach of the obligations it owed him as its employee.  The effect of the injuries was cumulative.

17.                  Although there may have been signs of degenerative changes in the plaintiff’s spine prior to the first incident, they did not manifest itself or place any restrictions on the plaintiff’s activities.  He felt immediate pain on 11 February.  As I have said, his back became increasingly painful so that on the 13th he saw a general practitioner who gave him a certificate for workers’ compensation having apparently diagnosed muscle strain.  In the subsequent weeks the plaintiff saw a number of general practitioners all of whom apparently diagnosed muscle strain, advised rest, and prescribed drugs.  From that time on the plaintiff has suffered from varying degrees of back pain and disability on account of his back.  The second and third incidents aggravated the condition and progressively, once stirred up, it has taken longer to settle.  As I mentioned earlier the plaintiff also suffered sciatic pain as a consequence of the first incident.  He became increasingly obliged to take pain killers and sought relief by massage and acupuncture.  His interest in the latter has been as a consequence of his wish not to be so dependent on drugs.  He ceased his employment with the defendant on 18 February 1993 as a consequence of back pain and associated disability.

18.                  From the time of the first incident as a consequence of his injuries, the plaintiff was, is and will be restricted in his ability to carry out many day-to-day functions and he requires assistance from others, notably his wife, obviously the degree and level of assistance he requires fluctuates but can include assistance with dressing, moving up and down stairs and with domestic tasks such as cleaning which he would be able to carry out unaided were it not for his injuries.  He is unable to work in his trade.  There is not doubt that as a consequence of his injuries the plaintiff becomes anxious and depressed and is concerned about his future.

19.                  In all probability the first incident caused a disc herniation at the L5/S1 level initiating degenerative changes at that and the L4/5 level of the plaintiff’s spine.  I take into account that the plaintiff’s back may ultimately have caused him pain and disability on account of the progress of natural degeneration and that he worked in an occupation which imposed stress on his back.  It is impossible to make any precise findings about those consideration.  As I have said I am however satisfied that the plaintiff’s present and continuing disability was precipitated by the first incident and compounded by the second and third.  He has a permanent partial function disability of 10 to 15 percent as a consequence of the injury to his spine.

20.                  By 1992 the plaintiff and his wife were becoming concerned about his continuing pain and disability and sought a referral to an orthopaedic specialist.  On 7 October 1992 the plaintiff saw Dr Gillett who was an orthopaedic specialist.  He referred the plaintiff to Dr McCombe in whose particular area of speciality the plaintiff’s condition apparently fell.  A lumberdiscogram carried out on 10 December 1992 showed a right-side disc protrusion at L5/S1 and at L4/5 a central disc protrusion.  On 8 January 1993 Dr McCombe performed an automated percutaneous lumbar diskestomy.  This relieved the plaintiff’s sciatic pain but not his lumbar pain.  He continued to be plagued by pain and associated disability and sought relief by medication, massage and acupuncture as I have previously mentioned. 

21.                  The plaintiff sought further specialist orthopaedic attention and on 7 February 1994 Dr Ryan performed an L5/S1 and an L4/5 laminectomy which the plaintiff says, and I accept, did not alleviate his condition but in fact stirred up some pain on the left side of the affected vertebra.  Further surgical intervention carries risks with some prospect of lessening his disability but it was probably not indicated given the plaintiff’s history.

22.                  The plaintiff will continue to be troubled by pain and disability as of consequence of the insult to his lower spine and will need to continue to seek relief by drugs, massage, perhaps acupuncture, although that does not seem to be of much assistance and it is understandable that he tries whatever means are at hand to relieve his pain.  He uses a TENS machine.

23.                  Unfortunately, the plaintiff’s back prevents him pursuing occupations which he is best equipped to carry out.  He cannot work in his trade of motor body and coach builder.  He would have stayed with his trade up to retirement if he was able.  His strengths are in the area of practical skills but his back disability imposes severe restriction on the work that he can do particularly on a consistent day-to-day basis.  I should mention, because it was the subject of some attention at the trial, that the plaintiff’s capacity to travel in and drive a motor vehicle is  considerably restricted, particularly if he has to do so for any length of time or with any degree of constancy.

24.                  The plaintiff’s capacity to earn in a sedentary occupation is limited by his intellectual capabilities and limitations in areas such as abstract and arithmetical reasoning.  He is best suited to work which is semi-sedentary in nature and which would allow him to regularly alternate periods of standing, sitting and walking and which did not involve load handling save perhaps of light material on an intermittent basis.

25.                  On 9 July 1994 the plaintiff married a young woman with whom he commenced an association when they met at high school.  On 8 September that year their first child was born and a second on 20 October 1995.  The plaintiff’s wife worked as a nurse latterly on a casual basis but gave up work following the birth of the second child to become a full-time carer.  Towards the end of 1991 the plaintiff and his wife commenced a business working from home as Amway distributors but that did not generate any significant income and are unlikely to do so .  The sort of work involved is not in the area of the plaintiff’s residual strength and he was troubled by his back.  A suggestion that the plaintiff had not disclosed the full extent to which he had exercised an earning capacity was, quite properly, not pursued in the light of the evidence at the trial.

26.                  It is now necessary to reflect the considerations I have been canvassing in an award of damages.  Many of these components are not capable of precise calculation.

27.                  I assess the plaintiff’s damages as follows:-

Pain, suffering and loss of amenities ..................................... $60,000.00

Interest on $30,000.00........................................................... $5,400.00

Past economic loss ............................................................ $139,000.00

Past superannuation loss ........................................................ $8,631.00

Interest on past loss (allowing for benefits received) ......... $40,860.00

Future economic loss ........................................................ $230,000.00

Future superannuation loss .................................................. $25,000.00

Past Griffiths v. Kerkemeyer damages (interest not claimed) $25,000.00

Future Griffiths v. Kerkemeyer ......................................... $15,000.00

Special damages (including Fox v. Wood) ........................... $34,404.87

Future expenses .................................................................. $15,000.00

Total    ............................................................................  $598,295.87

Less Workers’ Compensation Board refund............. $34,709.69

Total    ............................................................................  $563,586.18

Judgment for the plaintiff in the amount of $563,586.18.