Triplett v FERMONT Holdings Pty Ltd
[2002] WADC 211
•11 OCTOBER 2002
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: TRIPLETT -v- FERMONT HOLDINGS PTY LTD [2002] WADC 211
CORAM: O'SULLIVAN DCJ
HEARD: 31 JULY & 1 AUGUST 2002
DELIVERED : 11 OCTOBER 2002
FILE NO/S: CIV 1723 of 2000
BETWEEN: WAYNE RUSSELL TRIPLETT
Plaintiff
AND
FERMONT HOLDINGS PTY LTD
Defendant
Catchwords:
Negligence - Contractor's liability to employee of sub-contractor - Duty to provide safe system of work - Assessment of damages - Injuries to both elbows and post traumatic stress disorder
Legislation:
Nil
Result:
Plaintiff awarded general damages of $579,528.31
Representation:
Counsel:
Plaintiff: Mr K J Bradford
Defendant: No appearance
Solicitors:
Plaintiff: Keith Bradford & Co
Defendant: No appearance
Case(s) referred to in judgment(s):
Forsayth Mining Services Pty Ltd v Gavin Jack & Anor, unreported FCt SCt of WA; Library No 950300; 10 May 1995
Fox v Wood (1981) 148 CLR 438
Kondis v State Transport Authority (1984) 154 CLR 672
Stevens v Brodribb Sawmilling Co Pty Ltd (1985) 160 CLR 16
Case(s) also cited:
Nil
O'SULLIVAN DCJ: The plaintiff was injured in an accident at work on 13 December 1994 and claims damages for negligence and breach of statutory duty.
The defendant did not appear at the trial but has filed a defence putting both liability and quantum in issue.
The plaintiff's background
The plaintiff is now 38 years of age having been born in Western Australia on 14 February 1964. He is married with three children. He left school at 15 and between then and 1993 worked in a variety of occupations including those of a trades assistant, a dogman, a rigger, a roustabout and a van driver. In 1993 he joined Phillips Engineering as a trades assistant and in about January 1994 commenced an apprenticeship in boilermaking. He has qualified as a boilermaker since the accident but claims that he is no longer able to work in that occupation.
The accident
At the time of the accident the plaintiff was working for Phillips Engineering upon a ship known as the "Danny F II" in Fremantle harbour. The evidence was that the defendant had a contract to construct a permanent deck or platform extending out from the bulkhead at the stern of the ship and to move two radiators and fans onto the platform. The defendant used its own employees to carry out the work and in addition engaged Phillips Engineering to provide labour.
The plaintiff commenced work on the day of the accident at 7.00 pm. He was initially engaged in assisting in the moving of a radiator. After that he was instructed to fabricate handrails around the platform and at about 10.00 pm commenced estimating the number of staunchions that would be required to support the handrail. In order to do this he walked to the starboard side of the platform where Geoffrey Hill was welding a radiator into position. Mr Hill was in a crouched position and the plaintiff tapped him on the shoulder to let him know that he was coming past. As he did so the plaintiff said that he stepped onto a piece of loose plywood flooring. The plywood gave way causing the plaintiff and Mr Hill to fall to the deck below. Both men were injured.
The platform
The floor of the platform was supported by channel iron spaced about 800 millimetres apart upon which marine plywood had been laid.
Michael Soltwisch, a boilermaker/welder employed by Phillips Engineering gave evidence that he and another welder employed by the defendant went to fix 6 millimetre chequer steel mesh plate onto the channel iron but he was instructed by Mr Galipo the defendant's employee and supervisor of the work to use marine plywood instead. Boards were laid across the channel iron and a nail gun was used to fasten them. At about 3.00 pm on 13 December 1994 the nail gun malfunctioned and Mr Galipo advised that he would obtain another one. None was immediately available and at about 6.30 pm Mr Soltwisch said that he advised Mr Galipo and Graeme Phillips of Phillips Engineering that there were loose plywood boards on the platform and that it was unsafe to work on it. Mr Soltwisch worked until about 10.00 pm and as at that time there were still boards which had not been secured. He said that between about 6.00 pm and 10.00 pm he had assisted in the positioning of the second radiator on the platform and upon walking on it observed movement in the unfastened plywood boards and he reported that movement to Mr Galipo.
Liability
The plaintiff pleads that the defendant, its servants and/or agents were negligent in that they:
"(a)failed to ensure the cover was securely attached to the platform;
(b)failed to provide adequate support for the covers;
(c)failed to provide covers of sufficient strength to take the weight of the Plaintiff and fellow workers;
(d)caused, permitted and allowed the Plaintiff to perform work on the platform when it was unsafe to do so;
(e)required the Plaintiff to work on the platform when it was unsafe to do so;
(f)failed to give the Plaintiff any or any adequate warning or instruction as to the dangers associated with carrying out such work."
Although the plaintiff was not employed directly by the defendant I am satisfied on all the evidence that he was working under the supervision and instruction of its employee Mr Galipo and it is clear in those circumstances that there arose a duty in the defendant to take reasonable care for the safety of the plaintiff. (Kondis v State Transport Authority (1984) 154 CLR 672 at 687 per Mason J; Forsayth Mining Services Pty Ltd v Gavin Jack & Anor, unreported FCt SCt of WA; Library No 950300; 10 May 1995 per Malcolm CJ at 14; Stevens v Brodribb Sawmilling Co Pty Ltd (1985) 160 CLR 16 at 31 per Mason CJ.)
I am further satisfied that the defendant failed in its duty to the plaintiff in each of the particulars of negligence set out in the statement of claim. It is clear that Mr Galipo failed to take appropriate action to ensure that the plywood boards were securely attached to the framework of the platform and that in allowing the plaintiff to work on it and failing to warn him of the dangers of so doing he unreasonably exposed the plaintiff to the risk of injury.
In all the circumstances I am satisfied that the accident was caused by the negligence of the defendant.
Quantum
The plaintiff gave evidence that he fell a distance of about 4 metres onto the deck below where he landed on Geoffrey Hill. He was shaken and dazed, felt pain in both arms and legs and had blurred vision for a few minutes. He was taken to Fremantle Hospital where he was treated for abrasions, certified unfit for work and advised to see his own doctor.
On 16 December 1994 he saw his general practitioner, Dr Belinda McManus. Dr McManus wrote in a report dated 15 August 2000:
"On examination his right inner elbow was badly bruised and swollen and both of his thighs in medial and posterior aspects were also badly bruised and swollen. He was evidently badly shaken up by the fall which could have cost him his life had he not landed on a fellow worker. However he stated that he wanted to go back to work. He was referred to a physiotherapist and was asked to consider some post traumatic stress counselling with a psychologist, prescribed an anti‑inflammatory drug and at his own request declared fit for light duties for one week subject to review."
The plaintiff gave evidence that he was determined to return to work and had a need to earn money for Christmas and that is why he requested Dr McManus to certify him fit for light duties. However, he said that when he attended at Phillips Engineering with Dr McManus's certificate he was informed that there was no light duty work available for him.
On 23 December 1994 the plaintiff returned to Dr McManus who stated in her report dated 15 August 2000:
"He returned on the 23rd December 1994 stating he had had vague headaches and although he had not lost consciousness during the fall, he had nevertheless knocked the back of his head on the way down recalling for a few minutes after the fall he was unable to see. He remembers gaining his vision at the end of the fall at the same time he realised that his fellow worker was collapsed underneath him making a grunting sound. On examination he was tender over the medial condyle of the right elbow with the remainder of the examination being otherwise unremarkable. He was declared fit for normal duties but required ongoing treatment with physiotherapy and non‑steroidal anti‑inflammatories."
The plaintiff testified that when he saw Dr McManus on 23 December 1994 he continued to be suffering from significant pain in both elbows and particularly in the right elbow. He described the pain as sharp and "like a nail or sharp object being driven through the joint".
The plaintiff also said that in addition to his physical complaints he suffered from memories of the accident and worries about what might have happened. He lost sleep and became tired and anxious about his physical health and the need to provide for his family. He continued to work for Phillips as an apprenticed boilermaker/welder but said that he took frequent days off.
On 21 April 1995 he saw Dr McManus again, complaining of pain in his right elbow with certain movements. He was sent for an x‑ray and returned for review on 28 April when it was confirmed that there was no evidence of any bony damage. He was not seen by Dr McManus after this date.
Nevertheless the plaintiff said that he continued to suffer from stress and anxiety as well as pain in the elbows, headaches and disturbance of sleep. He found heavy lifting and swinging of hammers and work involving sustained use of the arms to be difficult and painful. He also became very conscious ("almost paranoid") about safety in the work place and lost confidence in his ability to work, particularly at heights.
By about July 1996 the plaintiff said that his anxiety had progressed to a point where he felt he could no longer work at Phillips and he resigned. However, he re‑entered the workforce on 19 September 1996 obtaining employment as a boilermaker, a qualification he had now obtained with United Construction at Kwinana. He remained in that position until 15 December 1998 continuing to work notwithstanding what he described as acute knife-like pain in the right elbow joint and general pain in the right and left arms.
On 1 January 1999 the plaintiff obtained employment at Watmarine Engineering Services. His duties involved supervising a team of boilermakers and welders and pipe fitters at Austal Ships in Henderson. He remained so employed until November 1999 and during this period said that his anxiety about safety in the work place increased. He could not put thoughts of the accident out of his mind and became increasingly concerned about being responsible for the safety of others as well as himself. He returned to working on the tools in about September 1999 and immediately began to suffer weakness in his grip in both hands.
Sometime in about October 1999 the plaintiff was transferred to work for Watmarine at a site in Henderson supervising a night shift. He gave evidence that he thought the site was dangerous and he started to become extremely frightened. He said that he suffered tingling in both right and left hands, headaches, tension, chest tiredness, disturbance of sleep and anxiety. Eventually he said that he found that he was unable to continue and he resigned from his employment with Watmarine on 27 November 1999.
Further medical evidence
The plaintiff had seen Dr McManus at the Chisham Avenue Medical Centre and he returned to the Centre on 13 December 1999 when he saw Dr Paul Babich. Dr Babich stated in a report dated 21 September 2000:
"He had noticed an ache in his left elbow over the six weeks prior with paraesthesia of the left hand. This pain had been present since the above mentioned work accident in which he fell some 4 metres through a platform on a ship. …
Examination at the time of my first review revealed some reduced neck flexion but there were no other specific abnormalities. In particular there was no focal tenderness of the elbow, there was a full range of movement and no neurological abnormalities detected.
I suspected his elbow pain was due to the early development of degenerative osteoarthritis precipitated by the trauma of the fall. I also suspected that this was causing ulnar nerve compression at the ulnar tunnel.
I recommended the anti‑inflammatory medication Voltaren and requested an x‑ray. I next saw him on the 31st January 2000 complaining of right elbow aching and a clicking feeling in the elbow on movement. He also admitted to suffering increasing anxiety since his fall in 94. He had been having recurrent memories of the fall and thoughts of how lucky he was to escape major injury. That was his initial feeling at the time of the fall, and was the reason he had tried to play down his symptoms since the fall. He had found that his thoughts of the fall were now occurring on most days and his intrusive thought of death increasing over the past few years. He was ruminating on the thought that he should have died in the fall and felt guilty to be alive.
He was becoming pre‑occupied with his thoughts of his death and how his family would cope without him. I suspected he was suffering from Post Traumatic Stress Disorder.
On examination his anxiety was evident. He was unable to sit still. He was uncertain of most of my enquiries and having difficulty concentrating. His right elbow appeared normal. I requested x‑rays of both elbows.
I reviewed him with those x‑rays on the 7th February 2000, which were reported as normal, and there were no signs of obvious degeneration. He was continuing to have bilateral elbow pains with clicking, worse on the right, worse with activity. It was particularly when welding. His physical symptoms were still overshadowed by is anxiety symptoms and I recommended psychiatric review by Dr Peter Shannon to whom I referred him on the 11th February 2000.
I next saw him on the 3rd April 2000 with complaints of right elbow ache and paraesthesia of the fingers of both hands more so at night. He reported that he had been feeling this increasing over the past year. He was anxious and still pre‑occupied with the fall and death. He felt unsafe at work. Standard anti‑inflammatories were upsetting his stomach and so the new Cox2 inhibitor Celebrex was prescribed.
On review on the 8th May 2000 he was suffering from increasing gastric symptoms and required anti‑acid medications. He was still depressed and felt angry about these feelings which he dates back to his fall. His elbows were still sore. I encouraged him to see Dr Shannon again.
On the 12th June 2000 his mood disturbance and arms were worse. He was only able to sleep 2‑4 hours per night. He was planning some time away. I allowed him Temazepam to help him sleep.
On the 26th June 2000 he was worse still. His gastric symptoms were worse with stress. Minor problems both were stressing him at work and at home. He was beginning to have real difficulties coping with family life and was unable to face work.
I referred him for electromyelogram of his arms testing and I insisted on him commencing the anti‑depressant medication Aurorix.
On the 17th July 2000 there was some emotional improvement on Aurorix but even after his break he still felt unable to work. I certified him unfit for work until the 30th August 2000.
Electromyelogram confirmed that he was suffering from bilateral Carpal Tunnel Syndrome worse on the right. On the 21st August 2000 I reviewed x‑rays of his lumbar spine, which showed obvious advancement of degenerative changes show (sic) on x‑rays done in 1996. I increased his Celebrex and allowed some Temazepam to help sleep.
On the 25th August 2000 his mood had deteriorated again with an increase in his anxiety. He was having problems at home and his family was suffering from his irritability. I certified him unfit for a further 4 weeks."
Dr Shannon saw the plaintiff for the first time on 3 March 2000 and he has continued to review and treat him. It is his opinion that Mr Triplett suffers from post traumatic stress disorder. Dr Shannon stated in a report dated 9 April 2001:
"… Apart from the accident which he had found extremely frightening, Mr Triplett was still having problems with experiencing memories of the event. He was preoccupied with death and dying. He tended to avoid many things in life such that his social interactions and general aspects of life were considerably limited. His sleep was extensively broken by concerns about what might happen to him.
…
The prognosis in this case was complicated by the fact that Mr Triplett essentially had not had any treatment for this condition when he was first reviewed. He was quite ambivalent about having treatment, or if it was needed. This has gradually changed over the time I have known him and he is now receiving treatment. This has placed him in a more positive frame of mind and I think he is now in a position to begin to come to terms with some of the issues that have been worrying him."
Dr Shannon initially prescribed an anti‑depressant medication, Aurorix for the plaintiff and after a couple of months that was changed to Prozac. In a report dated 26 June 2001 Dr Shannon stated:
"Since taking Prozac regularly, Mr Triplett said that he felt his depression has considerably improved. There are still episodes of occasions when Mr Triplett feels extremely angry. In this regard, when he starts talking about work situations in general, and his own accident, in particular, he still becomes quite distressed. Mr Triplett has known other men who have been killed in the workplace, and he often ruminates about that."
It is Dr Shannon's view that the plaintiff has been totally incapacitated for work over the period during which he has seen him. He also gave evidence that in his opinion the plaintiff will continue to have problems and will not be able to return to work as a boilermaker. He wrote in a report dated 6 February 2002:
"In summary then, Mr Triplett is now almost certainly not totally incapacitated for work. However, he is still totally unable to return to the type of work he was performing prior to his accident. In my opinion, unless Mr Triplett receives some rehabilitation and retraining, he will not be able to return to the work force, that is despite him expressing desires to be involved in various employment activities."
Although his psychiatric problems have preoccupied him the plaintiff has also continued to experience pain and incapacity as a result of his physical injuries. On 16 August 2000 he was seen by Dr Ross Goodheart, consultant neurologist, who noted that the plaintiff complained of knife-like pain over the right medial elbow region, a progressive loss of grip strength in both hands and diffuse paraesthesia of the hands particularly prominent at night or following gripping activity. Dr Goodheart performed electrophysical studies the results of which, in his view, confirmed significant carpal tunnel syndrome on both sides. He stated in a report dated 16 August 2000:
"In the first instance I would recommend right carpal tunnel release. I am certain this would remove a large proportion of Wayne's right arm symptoms. Subsequently it would be appropriate to proceed to left carpal tunnel release. It may then be possible to look more closely at the more proximal arm symptoms (particularly at elbow level).
There is electrophysiological evidence of severe median nerve compression at the right wrist and moderate/severe median nerve compression at the left wrist (carpal tunnel syndrome)."
There is no doubt in Dr Goodheart's opinion that the plaintiff's elbow problems are the result of his fall. The fact that he has developed a significant bi‑lateral carpal tunnel syndrome remains quite consistent with the mechanism of the injury.
The plaintiff has not yet undergone surgery in respect of his carpal tunnel syndrome problems, and I was left in some doubt as to whether and when he planned to undergo surgery.
Economic loss
I already noted that the plaintiff continued to work after the accident and eventually qualified as a boilermaker. In the year ending 30 June 1998 his taxable income was $47,438 and in the following year it was $56,031. The plaintiff has not worked since 27 November 1999 except for two short stints with United Construction when he earned net amounts of $3,668 and $4,180.
Lisa Biglin is the help services manager of United KG formerly United Constructions, which is a company which employs boilermakers throughout Australia. She gave evidence that she knew the plaintiff and knew him to be a very good employee for whom a job was available. There is and has been boilermaking work available in Western Australia and elsewhere in Australia at all material times since the accident. It was Ms Biglin's evidence that if the plaintiff was fit for work he would be able to earn $23.538 per hour working casually as a boilermaker. That amount would be increased depending upon site rates applicable at the place of work. The notional weekly wage based upon a working week of 51 hours at this rate would be $1,450.33 gross. This amounts to something in excess of $900 per week net.
Past loss
The net earnings of the plaintiff in the years ended 30 June 1998 and 1999 were in the order of $750 per week net. Counsel submitted, and I accept, that that is an appropriate amount upon which to calculate past loss of earning capacity.
As at 9 October 2002 150 weeks have elapsed since the plaintiff stopped work on 27 November 1999 and at the rate of $750 per week that results in a sum of $112,500. From this amount there should be deducted the sums he earned while working for United Construction, giving a reduced total of $104,652.
In assessing past loss it is necessary to take into account that as at the date of trial the plaintiff had received gross weekly payments of workers' compensation amounting to $42,426.72 and tax on this sum amounting to $9,334 was paid. That sum, the so-called Fox and Wood component (Fox v Wood (1981) 148 CLR 438), should be added to the total assessed for past loss of earnings.
Interest on past loss
The plaintiff is entitled to interest on past loss at the rate of 3 per cent per annum.
Future loss
Counsel for the plaintiff submitted that future loss should be calculated at the rate of $850 per week and I accept that proposition. It is clear on all the evidence, and particularly that of Lisa Biglin, that it is appropriate to proceed upon the basis that but for the accident the plaintiff would be working in the boilermaking industry earning a net amount in at least that sum.
The plaintiff is now 38 years of age and allowing for retirement at 65 he would have had another 27 years in the workforce. The multiplier on the 6 per cent tables is therefore 709.8 giving a total for future economic loss of $603,330.
Counsel submitted that the plaintiff's earning capacity has been virtually destroyed by his injuries but in my view that submission goes too far. While it is clear that he probably will not return to work as a boilermaker again the plaintiff nevertheless impressed me as an intelligent and resourceful man who is unlikely to remain permanently out of the workforce. He has expressed a desire to work with young people and while I accept that if he does become a youth worker he will be unlikely to earn anything like he earned as a boilermaker it seems to me that that is an indication of his capacity and resourcefulness. There is also the possibility that he might retrain and gain other qualifications which would reflect his undoubted abilities. On the other hand it should be borne in mind that the plaintiff was in an occupation which enabled him to command a significant income and that it is very unlikely that he will return to it.
In all the circumstances I think it appropriate to proceed to assess future economic loss upon the basis that the plaintiff's future earning capacity has been reduced by one-third.
It is also necessary to take into account all the various future contingencies, including untimely death, sickness and unemployment. Counsel submitted that a starting point of $850 per week already allowed for those contingencies but I consider that an allowance should be made. It is true that at the present moment the plaintiff would clearly be capable of earning more than $850 per week in the boilermaking industry, particularly if he was working on the Northwest Shelf, but over the long run I consider that it is appropriate to allow something for adverse contingencies and in my view a discount of 5 per cent would be appropriate.
Taking all these matters into account the plaintiff's loss in respect of his future earning capacity is assessed in an amount of $382,109.
Loss of superannuation
The plaintiff should have an amount to compensate him for past superannuation losses calculated at the rate of 8 per cent until 1 July 2001 and 9 per cent thereafter. The result is $12,688. In addition the plaintiff should have interest on this sum at 3 per cent per annum amounting to $1,013.
For future loss of superannuation the sum should be $16,992.65 after allowing for retained earning capacity and 5 per cent for adverse contingencies.
Future medical expenses
The plaintiff has been left with a need for ongoing medication and psychiatric review for the foreseeable future. I would allow the sum of $5,000 in respect of this aspect of the claim.
Special damages
The sum of $4,349.15 should be allowed.
General damages
As a result of the accident the plaintiff has suffered injuries to both elbows and ongoing pain and incapacity and a post traumatic stress disorder. As a consequence his ability to enjoy life has been significantly diminished. He continues to suffer anxiety attacks, flashbacks and disturbance of sleep and he remains pre‑occupied with his physical health and safety. He also suffers from depression and is in need of medication and ongoing psychiatric review. I accept Dr Shannon's evidence that while this condition may not be permanent the plaintiff is likely to continue to have problems in the long term. In addition he remains in pain in the elbows and as a result is restricted in his physical capacity for work.
Taking all these factors into account it is my view that an appropriate award for pain, suffering and loss of amenities would be $40,000.
Conclusion
The plaintiff should have damages in an amount of $579,528.31 made up as follows:
General damages $40,000.00
Past loss of earnings $113,968.00
Interest on past loss $12,757.66
Future loss of earning capacity $382,109.00
Past and future loss of superannuation $29,680.65
Interest on past loss of superannuation $1,013.00
$579,528.31
0
6
1