Victorian WorkCover Authority v Gray's House Removalists Pty Ltd
[2005] VSC 451
•22 November 2005
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
No. 5123 of 2002
| VICTORIAN WORKCOVER AUTHORITY | Plaintiff |
| v | |
| GRAY'S HOUSE REMOVALISTS PTY LTD | Defendant |
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JUDGE: | Cummins J | |
WHERE HELD: | Bendigo and Melbourne | |
DATE OF HEARING: | 19 August 2004 - 26 August 2004 | |
DATE OF JUDGMENT: | 22 November 2005 | |
CASE MAY BE CITED AS: | Victorian Workcover Authority v Gray's House Removalists Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2005] VSC 451 | |
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Accident compensation – indemnity – s.138 Accident Compensation Act 1985 – accident at worksite – house placement on stands – house fell onto worker causing grievous injury – negligence – contributory negligence - negligence of employer and of house removalist company – no negligence by worker – damages – assessment – declaration.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | J.H.L. Forrest QC with D.J. Martin | Wisewoulds |
| For the Defendant | D. Beach SC with C.J. Blanden | Minter Ellison |
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HIS HONOUR:
This is a claim by the plaintiff, the Victorian Workcover Authority, against the defendant, Gray’s House Removalists Pty Ltd, pursuant to s.138 Accident Compensation Act 1985 for indemnity for payments of compensation to and on behalf of an injured worker arising from a work accident at Bendigo on 10 October 1996. On that day the worker was grievously injured when a house section which had been relocated to a site in Bendigo fell on him during its positioning at the site of relocation. The worker, Mr Bryan Keogh, was working on site at 18 Crowther Street, Eaglehawk, Bendigo. He was employed by Transhome Developments Pty Ltd, of Golden Square, Bendigo which owned the Crowther Street site and which employed Mr Keogh to work there as a labourer. Transhome had engaged the defendant, Gray’s House Removalists Pty Ltd, to effect the removal of a timber house from a site in Pascoe Vale and to position it on stumps at the site at 18 Crowther Street, Eaglehawk. The agreement between the defendant and Transhome was that at the Crowther Street site the defendant would excavate the stumpholes for the house but that if rock were struck in any stumpholes Transhome would excavate the rock. To facilitate the removal and relocation, Transhome at the Pascoe Vale site had cut the house into three sections. The defendant transported the section to its premises at Bendigo. On 9 October 1996 the first section of the house to be removed to the Crowther Street site by the defendant was transported to the site. With the section still on the trailer the defendant commenced to dig stumpholes on the site. Rock was struck in about six holes at the rear of the site. The defendant then placed the house section on A-frames on the site. That evening Mr Murray Gray, director of the defendant, informed Mr Bradley Gooch, director of Transhome that rock needed to be cleared by Transhome from the affected stumpholes. The next morning, with the house section still on the A-frames, Mr Keogh commenced working under the house section clearing stumpholes containing rock. The house section slipped and fell on him (the accident). Mr Keogh sustained grievous injuries. Very substantial payments in relation thereto have been made by the plaintiff and will continue to be made. Mr Keogh was 43 years of age at the time of the accident. The plaintiff claims that Mr Keogh was injured by reason of the negligence of the defendant in that the defendant failed to provide a safe system of work at the site. The plaintiff seeks indemnity from the defendant for the substantial amounts paid in the past and to be paid in the future in compensation thereby. Thus this proceeding.
Mr Keogh had been underemployed for some three years prior to October 1996. On the morning of the accident he was verbally engaged by Mr Bradley Gooch for Transhome Developments Pty Ltd (Transhome) to work at the Crowther Street site as a labourer, at the rate of $10 per hour for about three weeks. Mr Keogh started work at around 8.00 am and the house fell on him an hour and a half later. He suffered grievous bodily injuries which will affect him for the rest of his life.
At the relevant time, 10 October 1996, the provisions of s.138 Accident Compensation Act 1985 were as follows:
“138. Indemnity by third party
(1)Where an injury or a death for which compensation has been paid, or is or may be payable, by the Authority, an authorised insurer, a self-insurer or an employer was caused under circumstances creating a legal liability in a third party to pay damages in respect of the injury or death, the Authority, authorised insurer, self-insurer or employer is entitled to be indemnified by the third party in accordance with this section.
(2)In determining for the purposes of sub-section (1) whether an injury or death was caused under circumstances creating a legal liability in a third party to pay damages in respect of the injury or death, Division 9 of Part IV must not be taken into account.
(3)The amount which a third party is required to pay as indemnity under sub-section (1) is the lesser of-
(a)the amount of compensation paid or payable under this Act in respect of the injury or death; and
(b)the amount calculated in accordance with the formula —
X A
— x — – (B + C) –100 1
where —
Xis the extent, expressed as a percentage, whereby the third party's act, default or negligence caused or contributed to the injury or death;
Ais the amount of damages for pecuniary loss and non pecuniary loss which the third party is or would have been liable to pay in respect of the injury or death were it not for the provisions of this Act and the Transport Accident Act 1986;
Bis the amount recovered or recoverable by the Authority, the authorised insurer, the self-insurer or the employer under section 137 from the Transport Accident Commission (otherwise than under a settlement);
Cis the amount paid by the third party in respect of the injury or death to the worker or the dependants of the worker under any settlement of, or judgment in, an action by the worker or dependants of the worker against the third party.
(4)Judgment against or settlement by a third party in an action by a worker, or dependants of a worker, in respect of an injury or death referred to in sub-section (1) does not eliminate or diminish the right of indemnity given by this section, except to the extent provided in this section.”
Section 138(3)(b) was substantially amended as from 17 December 1996, two months after the accident, which amendments are here inapplicable.[1]
[1]Victorian Workcover Authority v Kennan Kandy Pty Ltd (2002) 6 VR 666
The plaintiff alleges that Mr Keogh was at all material times employed by Transhome Developments Pty Ltd and was performing work in the course of that employment with Transhome on the block of land at Crowther Street, Eaglehawk. The defendant was engaged to remove and relocate a house to Crowther Street. The plaintiff alleges that on 10 October 1996 Mr Keogh was assisting servants and agents of the defendant to position and relocate the timber house to the block when the house fell from stands and onto Mr Keogh who was working underneath the house at the time. The plaintiff alleges the accident was caused by the negligence of the defendant, its servant and agents, particularised in paragraph 8 of the statement of claim as follows:
“PARTICULARS OF NEGLIGENCE
(a)Failing to provide a safe system of work.
(b)Locating the house upon ground that was unstable.
(c)Failing to properly secure the house.
(d)Failing to warn the worker of the risk of movement of the house.
(e)Failing to provide the worker with any or any adequate plant and equipment.
(f)Failing to take reasonable care for the safety of the worker in the circumstances.
(g)Failing to provide any or any adequate:
(i)stands;
(ii)jacks
under the house.”
The defendant by its defence denies the negligence alleged and itself alleges in paragraph 13 of the defence that the injury to Mr Keogh
“was attributable solely to the act, default or neglect of:
(a)Keogh; and/or
(b)the employer [Transhome].
PARTICULARS OF NEGLIGENCE OF KEOGH
(a)Failing to take any or reasonable care for his own safety;
(b)Failing to keep any or any proper lookout;
(c)Failing to wear any or any proper safety clothing;
(e)Failing to use equipment in a safe and workmanlike manner;
(f)Having known or ought to have known that the house was placed on stumps and jacks, failing to adequately inspect the safety of the house before sitting beneath it and failing to ensure that any tarpaulin attached to the house was properly secured;
(g)Placing himself in a position of danger.
PARTICUALRS OF NEGLIGENCE OF THE EMPLOYER [Transhome]
(a)Failing to provide Keogh with a safe working environment;
(b)Failing to comply with the provisions of the Occupational Health & Safety Act 1985 (Vic);
(c)Failing to provide Keogh with appropriate training;
(d)Failing to properly instruct Keogh of the manner in which to carry out the task at hand;
(e)Exposing Keogh to risks of injury of which it knew or ought to have known;
(f)Failing to provide any or any adequate supervision for Keogh.”
At the commencement of the hearing in Bendigo, counsel for the defendant announced that the allegation of negligence against Mr Keogh was not maintained by the defendant. In my view that was a proper concession, given the facts that Mr Keogh had no prior experience in the relocating or stumping of houses, was on his first day of the job, was given no instruction or training on the job as to its hazards, and was subject to direction.
Proceedings herein were filed in this Court on 11 April 2002. At 9 April 2002 payments made by the plaintiff to and on behalf of Mr Keogh as a consequence of the accident totalled $623,500.42 and were continuing. By 29 May 2004 payments totalled $873,680.49 including GST and were continuing. The hearing of the matter in Bendigo and Melbourne occurred in August 2004.
Mr Keogh took common law proceedings against the defendant and Transhome, which proceedings were settled prior to the institution of the proceedings before me.
I turn first to the circumstances of the accident on 10 October 1996.
On the matter of the circumstances of the accident, before me the plaintiff called as witnesses Bryan Keogh, Bradley Gooch and J.R. Coghlan and tendered numerous documentary exhibits. Mr Gooch, of White Hills, Bendigo was a plumber who had incorporated Transhome Developments Pty Ltd to effect house removals and placements, which company employed Mr Keogh as a labourer on the Crowther Street site and engaged the defendant to remove the timber house from Pascoe Vale and place it on the Crowther Street site. Mr Coghlan was a building consultant who gave evidence as to the methodology employed at the site. The defendant called Mr Murray Gray, of Marong, director of the defendant company and tendered numerous documentary exhibits.
The essential concomitant facts, which were uncontested, were the following.
Transhome was incorporated a year before the accident by Mr Gooch. Mr Gooch had been a qualified plumber for some 12 years. Mr Gooch’s wife was an interior decorator. The busy seasons for plumbing in the Bendigo area were summer and winter. To make productive use of the other seasons, Transhome was incorporated. Its commercial purpose was to purchase houses which were for sale, arrange for their removal by a contractor to sites purchased by Transhome in Bendigo and siting the houses thereon, and then for Transhome to refurbish the houses and either rent them out or sell the house and land. The house involved in the accident was the second house Transhome had purchased in that business. The first house was on the adjoining site to that on which the accident occurred, Transhome owning both sites. Transhome had engaged a contractor who levelled both sites by bulldozer.
Gray’s House Removalists Pty Ltd of Marong had been operating as a company and previously as a husband and wife partnership since 1985 as house removalists. It effected house removal and relocation, primarily in the Bendigo area.
Exhibit M was three documents by the defendant, a quotation dated 18 September 1996 to Mr Gooch, a statement dated 4 October 1996 to Mr Gooch, and a receipt dated 21 October 1996 to Transhome acknowledging payment of $7500.00 for the transporting and restumping of the house. The quotation clearly states the terms of the agreement between the defendant and Transhome (although addressed to Mr Gooch) as follows:
“We are contracted to transport and restump only 3 sections of house from Pascoe Vale to Eaglehawk …
Price $6500.00
This price does not include the following:
-if rock is struck you’ve agreed to jack hammer it out.
-tarps on the sections, if required, to be done by you.”
The other two documents constituting exhibit M do not shed any further light upon the agreement between the defendant and Transhome relevant to the issues before me.
Eaglehawk was a rocky and windy area.
As I have stated, Mr Keogh had been underemployed for some three years prior to the accident. He commenced work for Transhome as a labourer on the day of the accident.
In September 1996 Transhome purchased a weatherboard house in Pascoe Vale. Mr Gooch prepared the house for removal by disconnecting the plumbing, electrical and other services and by having the house cut into three sections for removal. The sections were a smaller front section and two rear sections horizontally cut in half. The sections were covered with tarpaulins by Mr Gooch as the roof had been removed in preparation for transportation and resiting. The tarpaulins remained on the sections throughout. Transhome owned the Crowther Street site and had prepared the site by clearing and levelling it. In October 1996 the defendant removed the front section and transported it to its premises at Bendigo and a few days later did likewise with the two larger sections. That part of the process was completed a couple of days before the accident. The sections remained on the defendant’s trailers at its Bendigo premises pending movement to the Crowther Street site. The sections remained covered by tarpaulins at all times. Part of the engagement of the defendant by Transhome was for the defendant to prepare stumping for the house at the Crowther Street site. That involved the defendant digging the holes for the stumps to be placed in. On 9 October 1996 the defendant moved a house section, which was still on its trailer, to the site at Crowther Street. It was one of the larger, rear house sections. The defendant marked out the holes for the stumps and drilled the majority of them. Rock, being sandstone, was struck in about half a dozen holes. A-frame stands were placed on the site over the holes and the house section lowered onto the A-frames. The house section remained covered by a tarpaulin. Mr Gray that evening spoke to Mr Gooch and said that he had struck rock in three or four holes and that Mr Gooch would have to organise to get it out. That evening Mr Gooch attended the site and Mr Gray showed him the holes in which there was rock. Mr Gooch spoke to a local, Mr Ron Dixon, who was a neighbour of Mr Keogh. Mr Dixon spoke to Mr Keogh and said there was work offering at the Crowther Street site, commencing the next morning.
Thus it was that shortly after 7.00 am on 10 October 1996 Mr Keogh attended the site and was engaged by Transhome in the person of Mr Gooch to do labouring work on the site. The verbal conditions were remuneration of $10.00 per hour for some three weeks’ work. Mr Gooch showed Mr Keogh the initial work to be done, which was to get the rock out of about six stumpholes at the rear of the house section on the high side of the land. Mr Keogh commenced to do so.
Mr Gray arrived at the site at about 9.00 am. The plan that morning was for the balance of the holes to be cleared and for the stumps to be cut and placed in the holes. The house section was then to be raised from the stands, the stands to be removed and the house section to be lowered onto the stumps. Before that had occurred, the house portion slipped from the stands and pinned Mr Keogh beneath. At the time he was under the house section clearing out a stump hole. It was the first stump hole Mr Keogh had worked on.
The site was a cleared block of land. The soil was dry and firm. The block had been levelled by bulldozer and sloped slightly, at an angle of approximately 10-15 degrees. The day of the accident was a clear, fine day. Wind commenced to spring up at about 9.00 am. The accident occurred shortly after 9.30 am.
On liability the critical issues are first, was the system of work at the site unsafe; second, if so, whose fault was it; and third, who instructed Mr Keogh to work under the house? The third issue is a limited factual issue connected to the holistic first and second issues.
I summarise the evidence relevant to those issues. The principal evidence was given by four witnesses before me: Mr Keogh, Mr Gooch, Mr Coghlan and Mr Gray.
A summary of Mr Keogh’s evidence, taken from his oral evidence as a witness including cross-examination and a V.W.A. incident investigation statement he made on 9 November 1996, Exhibit B, and which before me he adopted as true, is as follows.
Mr Keogh was 43 years of age at the time of the accident. He was a married man residing in Eaglehawk. He had had practical experience in the construction and building industry over many years. He had no academic or formal qualifications. He had had no experience in house removal and relocation or in house stumping. He had been underemployed in the three years prior to the accident.
On the evening before the accident, a neighbour came to see him and asked whether he was interested in a job. The job was close to his house. The neighbour said he had spoken to Brad Gooch who was looking for someone to help with house restumping and general repairs to a house, the work to commence at 8.00 am the next day at the Crowther Street site. And so Mr Keogh, the next day, attended the site, at 7.45 am.
He there met Mr Gooch. Mr Gooch said that Mr Keogh would receive $10.00 per hour and there was about three weeks’ work. Mr Keogh asked Mr Gooch what was required and was told to use the shovel to clean out some stumpholes on the outside line of the house. Mr Keogh observed that there were pre-dug holes under and beside the section of house on supports on the site and that ‘some holes were not dug’. He was not concerned about the supports for the house as he had known that Mr Gray had been in the house removal industry for many years. Mr Gooch was using a jackhammer on the holes when Mr Keogh arrived. Mr Keogh observed that there were about twenty holes to be hammered because of the sandstone base, mainly at the rear of the house section.
Mr Keogh cleared the dirt from the stumpholes on the perimeter (“outside”) of the house. As he was doing that, Mr Gooch told him
“to get under the house and line up the stump holes with the bearer of the house. This was to be done by using the electric jackhammer to make the stump holes larger.” (9 November 1996 statement, p.2).
Mr Keogh went under the house to commence the process. He was working with the jackhammer on the first hole some fifteen minutes after going under the house when he heard someone yell that the house was falling. The section of the house fell on him and he blacked out.
The above is taken primarily from Mr Keogh’s V.W.A. incident investigation statement made on 9 November 1996. His oral evidence before me was consistent with that statement but was less detailed.
In evidence before me Mr Keogh was asked the following by senior counsel for the plaintiff (T.27):
“When you went under the house did you go under the house at the instruction of Mr Gooch? --- Yes.”
In cross-examination Mr Keogh said that when he arrived at the site on the day of the accident the only person present was Mr Gooch. He was asked in cross-examination:
“Can I suggest to you that when you arrived on that day and after you’d had your discussion with Gooch, that it was he who directed you to work under the house? --- Yes.
And at the time you commenced your work under the house … no-one else, apart from yourself and Gooch, were present at the site? --- Yes.”
In Mr Keogh’s 9 November 1996 statement he said:
“Murray Gray has visited me in hospital weekly since the accident and during a conversation he told [sic] that he was sorry and that the accident was his fault. Murray also told me that all the jacks were on the truck and that the house was jacked off me within minutes after the accident. Murray told me that he wished that it had been him that was crushed by the house. He also told me that if the house had fallen five minutes later that all the workers, that is five men, would have been under the house. He told me that he believed the house collapsed because it (the house) came off the jacks and the house stands fell onto their side.”
The statement was not the subject of examination in chief before me. It was not traversed in cross-examination save the final question (T.43-44):
“Did he, do you recollect, ever say to you that the accident was actually his fault? - - - It’s hard to recall that, but he did say he’d wished the house had fell on him instead of me.”
Mr Bradley Gooch gave evidence that having set up for removal by the defendant the house sections in Pascoe Vale and the defendant having removed the sections to its premises at Bendigo, on 9 October 1996 the first section was moved by the defendant to the Crowther Street site and there placed on A-frames. Mr Gray
“had organised the holes to be drilled. Whether he done it himself or he had a subcontractor, but that was Murray’s responsibility.” (T.157).
Mr Gooch played no part in that. Mr Gooch stated (T.158):
“Before the job I said to Murray, in fairness to him, ‘If you happen to strike rock, give me a call and I will give you a hand to get the rock out’.”
On 9 October 1996 at the site Mr Gooch showed Mr Gray where to position the house. Later that day Mr Gray telephoned Mr Gooch and asked him to have the rock removed. Thus Mr Gooch arranged through a local person for a labourer to be contracted and on 10 October 1996 at approximately 7.15 am he met Mr Keogh on site. No-one else was then present. The employment arrangements were as stated by Mr Keogh. In evidence in chief Mr Gooch stated (T.160):
“I had told him that there was holes at the back that had rock in the holes and I walked around to the back of the house to the outside of the building to where the holes that were pointed out to me the day before by Murray and I told Bryan ‘That’s the job we’ve got to do, we’ve got to get this rock out of these holes’ …”
There were four to six holes on the high side of the site. Mr Gooch had brought to the site a small jackhammer he had hired. This jackhammer soon malfunctioned and Mr Gooch left the site to hire another. That was between 8.00 am and 9.00 am. At that time Mr Keogh was still working on the perimeter holes. At a time which Mr Gooch cannot recall Mr Gray and two employees arrived at the site. When Mr Gooch returned to the site he observed Mr Keogh working at the rear of the house section. Mr Gooch in evidence-in-chief stated (T.164):
“I asked him why he was working on widening the holes when I said to him all we had to do was get the rock out of the holes … He said, ‘no, Murray has told me to widen the holes’.”
Mr Gooch commenced working on the side of the house. He knew Mr Keogh was in “the vicinity” of being under the house but may have been “on the edge of the house”. Then the house section moved, struck Mr Gooch laterally, and fell onto Mr Keogh.
In cross-examination Mr Gooch agreed that on 9 October 1996 Mr Gray rang him and said (T.175):
“We’ve dug the holes but we’ve struck rock. There are about half a dozen holes that haven’t been completed because of difficulty with the rock and you’ll need to complete them.”
Later that evening Mr Gray showed Mr Gooch which holes needed clearing. Those stumpholes
“were outside stumpholes so they were on the outside of the house, so there were no holes physically in under the house that I had to – because it would have been impossible to try and get in underneath the house and work in a confined area like that to get the rock out.” (T.183).
When Mr Gooch met Mr Keogh at the site on 10 October 1996 he told Mr Keogh (T.184)
“ … today we have to get the house ready for Murray to stump down and we have yet to clean out some holes down to the depth that he requires.”
Mr Keogh was retained by Mr Gooch and was working at his direction, with tools provided by Mr Gooch. The first task for Mr Keogh was clearing the rock from the stumpholes. Later tasks were to include painting of the house. When Mr Keogh’s evidence that Mr Gooch had directed him to work under the house was put to Mr Gooch, he answered (T.185):
“I didn’t … I wouldn’t have felt comfortable with either of us having to get under the house. That’s – as far as I am concerned I didn’t instruct him to work under the house, and all the holes were either on the outside of the house or next to that section of house in the clear opening because the other section had not been placed, so that is where the holes were in question.”
Mr Gooch said that two employees of Mr Gray were working under the house section that morning. Cross-examination of Mr Gooch concluded as follows (T.194-195):
“Do you recall saying in your evidence that when you returned from Eaglehawk Hire, I think it was – that Mr Keogh was working in a different position from the one he’d been in when you left? --- What – yeah, I do remember saying that when I returned Bryan was working on a hole that I hadn’t instructed him to work on.
Can I suggest to you you’re mistaken when you say that his explanation to you was that Mr Gray had directed him to work in that hole? --- No.
Murray Gray will say that he never gave Mr Keogh any directions at all and that when he first arrived on site that morning that Bryan Keogh was already at work situated in the area where he was situated when ultimately the house fell; is that your recollection of how he worked? --- Definitely when Mr Gray arrived, yes – Bryan Keogh was already working on the holes that I’d told him to work on, but as far as – Bryan definitely said to me that – I asked him why he was working on that, widening the hole – I said, we’re not supposed to be widening the holes. He said to me, Murray had asked him to do it – and I thought to myself, well okay, well if Murray wanted him to do it, that’s fine.”
In re-examination Mr Gooch was asked (T.195-196):
“In terms of Bryan Keogh working under the house as opposed to around the edges, did you ever give him an instruction to work under the house? --- No.”
Mr J.R. Coghlan, building consultant and the principal of Buildspect & Co Pty Ltd, was called by the plaintiff and a statement of expert evidence of his, dated 29 June 2004, was tendered before me.
Mr Coghlan holds the qualifications of Bachelor of Mechanical Engineering from the University of Melbourne and a Diploma of Electrical Engineering. He is a Fellow of the Australian Institute of Building, a Foundation Fellow of the Institute of Arbitrators and Mediators Australia, a Grade One Arbitrator, an Accredited Mediator, an Approved Adjudicator, a member of the V.C.A.T. Domestic Building List Mediator Panel, a Master Builder, a registered building practitioner and a Member Australian Society of Building Consultants. He is a past President Master Builders Australia, past President Master Builders Association of Victoria, past Chairman Victorian Chapter Institute of Arbitrators and Mediators, past President Australian Society of Building Consultants and past President Building Dispute Practitioners Society. He has had 40 years experience in the building industry as a proprietor of a building company, involving construction of homes and some commercial buildings and 15 years as principal of a building consulting practice. The consulting practice involved, amongst other matters, investigations and inspections including assessment of safety engineering and preparing reports on accident and related health and safety matters. He was familiar with the standards that applied throughout the building industry and for five years was a Member of the Australian Building Codes Board.
Mr Coghlan was engaged by the plaintiff to express an opinion concerning the practices employed at the Crowther Street site on 9 and 10 October 1996. To that end he examined statements, spoke with Mr Keogh at his home in Eaglehawk, spoke with Mr Gooch and the plaintiff’s legal representatives at the Crowther Street site in November 2003 and inspected the site as then it was.
Plainly the standards to apply to the system of work at the Crowther Street site are those of 1996, not those which have evolved since.
Mr Coghlan’s report of 29 June 2004, and to a lesser extent his evidence, comprehended a number of matters not germane to the critical issues before me. Also one matter was predicated upon material not fully pursued in evidence before me. That matter was the suggestion to Mr Coghlan that wind at the site on the morning of 10 October 1996 caused the tarpaulin on the house section to fill and billow which in turn caused the house section to slip from the A-frames. While wind might well have been the immediate cause of the accident I make no such conclusive finding. Given the issues joined by the parties no such finding is germane to a conclusion on liability.
On the critical matters before me, Mr Coghlan gave evidence in chief as follows (T.262-265):
“From your experience as a builder what do you say as to the adequacy of permitting this house to sit upon four A-frames – I’m sorry, A-frames on either side unsupported by anything else and requiring men to work underneath it? - - - I would not require men to go under such a house, nor would I go under myself.
Why not? - - - Because it would be very dangerous.
Why is it dangerous? - - - Well, the – you can – the house can move by all sorts of – for all sorts of reasons and the A-frames can tilt or tip for all sorts of reasons, and once that happens the whole thing is too heavy for anyone to stop it.
What I want to ask you about, what would be in your opinion given your expertise an appropriate way, given that the holes have to be dug and the stumps have to be put in, what would be an appropriate way to reduce the risk posed to persons working on the site of the house coming off the A-frames? - - - Well, as far as possible, the holes should be dug their full depth and full size before the house is anywhere near them so that there’s plenty of room for the man to walk around and do that work. The – if it is then going to be supported on A-frames you have to make sure that there’s enough bearing capacity under the A-frames so that they won’t tilt. The A-frames – the only thing I know about the A-frames are the pictures I was shown of them in a report by the WorkCover Authority and the base of the work frames were square, looked to be about 400, 450 millimetres on each side.
Yes - - - ? - - - That doesn’t cover a large area so that once the load is on, you’re not sure what’s likely to happen under those A-frames. They – if they – if one side of the ground is softer than the other, then they can tilt somewhat and once they start tilting you have the possibility of the house coming down. They should have had much bigger bearing capacities underneath those A-frames.
How do you say one would properly ensure, to use your expression, enough bearing capacity under the A-frames? - - - You put some heavy planks on the ground which are joined together and then you sit the A-frames on top of that so there’s now a much bigger area over which the load is spread.
… Can we just go back a step to the various proposals. Firstly, in terms of digging out the rock, was there anything from what you’ve been told and the history you’ve related to us that’s your understanding of what happened that would have precluded or prevented the rock being dug out before the house was placed on the A-frames? - - - No, I don’t believe so. It was referred to as sandstone, which is not all that difficult to get out, and the equipment that was used was some form of digger which should have been able to get that out and it could have been got out before the house was placed in position. In other words, it wasn’t hard granite-like rock. It was sandstone, I’m told, in the documentation.
Thank you. Secondly, insofar as widening holes as opposed to digging out rock might be concerned, was there anything that you were told that – from your understanding of what happened that day that would have precluded the widening of the holes to be done whilst the house was not on the A-frames, [but] on the trailer? - - - I couldn’t see any reason for that. The house was there. It was possible to measure exactly where the bearers were or whatever else was going to support the house, used for the bearers running down the length of the house, and you would have you known how frequently they had to be put down, these bearers, so you be able to locate the hole, where it should be, and you would make it abundantly large so that you had some tolerance when you put the stump in place.
So, assume for the moment that the measurements hadn’t been done at Pascoe Vale in this case. With the house on site is there anything – part of the house being on site, is there anything to prevent as far as you could tell the persons in charge of putting the house onto the stumps of doing the measuring up prior to the house being in situ? - - - No, I – I don’t know – I do not know any reason why that would be so.”
Mr Coghlan was shown photographs taken of the A-frames on site, exhibit N, and then was asked (T.266-267):
“What do you say as to the adequacy of that type of A-frame supporting the house you see above it? - - - Well, I would not want to go under that house while that was the only – eight or so of those were the only support, assuming they were properly located under the bearers, which they would have to be, the – any sort of lateral pressure on the house or any softness in the ground is liable to result in the house moving, and once it starts to move that it will tip over.
In modern building practice, and I’m talking in about in the mid-‘90s through to – and in the mid-‘90s this accident happened October ’96, was there a practice in the building industry by which in terms of building operations risk assessments and hazard identification was carried out? - - - Yes, they did exist. Those laws existed at that time and required people to make analyses of hazards and prepare safety analysis work. I would have to say they were not honoured very closely at that time. They are now much more closely honoured and most people in the industry have done courses and have what’s known as a red card which shows that they’ve done it and know how to make a job analysis examination of the way in which something should be done, whether – how far that had gone with people in this site, I am not aware.
If back in October 1996 you were called upon to make a risk hazard analysis of this particular method of restumping – of stumping this house, can we take it that the views you’ve expressed today would or would not have been the views you would express then, back in ’96; what would you have said about the - - - ? - - - They – I would have had a similar view. Moving houses has been known to be a dangerous exercise for a long time. People are killed with considerable frequency and the – it is a dangerous exercise.”
That concluded the evidence in chief of Mr Coghlan.
In cross-examination Mr Coghlan said that his understanding was that there were six to eight A-frames under the house section when it slipped “but I don’t think the difference matters” (T.268). His understanding, erroneously, was that the house section had been placed on the A-frames on the morning of the accident and not the day before, but that he “wasn’t overly influenced by the possibility that it might have only been there for an hour” (T.272). Mr Coghlan was asked (T.272-273):
“If we put that to one side as you were asked to do earlier, that is wind and billowing of tarpaulin and I think the other factor was ‘open window’, just put those to one side for a moment and assume for the purposes of this question that none of those were present on this morning and that there was no concern about the weather; what do you say then as to the reasonableness of placing this house section on eight A-frames on otherwise level solid ground? - - - I would not have felt that was a safe practice, I would have wanted before anybody went under the house – I would have wanted the house to be securely supported on large bulks of timber so that they were not – the loads weren’t concentrated on relatively limited areas and the house was fully supported even if one of those pieces of timber moved, the rest were quite stable and all would have been well.
Your reliance on pieces of timber under the A-frames relates only however to the A-frames themselves moving vis-à-vis the ground, doesn’t it? - - - I think we might be confused. There are two things: (1) the A-frames in my view should have been on some sort of platform, if the ground was in any way unsatisfactory but, once you got the house to the right level they should have been on blocks – big blocks of timber, inserted under the house and all secured – secured all the way around before anybody got under there. Then the house couldn’t fall on anyone.”
Mr Coghlan said that, if the house section were to be worked under, the problem was probably not the A-frames but what they were sitting on. In that regard he was asked (T.275-277):
“As long as on a proper inspection of the area … there was no concern about the soil either being soft or likely to subside or any of those sorts of matters, then you would be satisfied that the A-frames could be placed into position without such underneath support by way of planking? - - - Under the A-frames, yes.
… Assuming that the soil was said by all who observed it to be rock hard and not soft or capable of subsidence to observation, by experienced people who were used to doing this sort of job, then that’s an assessment that you would accept in the circumstances? - - - Yes, if that’s what they said, yes.
In those circumstances the placement of A-frames not on further bearers or wooden supports would be a satisfactory way of going about it? - - - Yes.
If conditions otherwise were that the placement of the house was achieved in a fashion where it was level, secure and solidly placed on eight of those stands; bearing in mind there’s a section of house not a whole house, then if the assessment was it was solid and secure you’d need – well, firstly, can I ask you this: you would need to make that assessment before you allowed people to get under the house? - - - Yes.
An employer for example would need to satisfy himself that such was the case before an employee was sent into a hole to complete excavation of it? - - - It would be very reasonable for him to do that, yes.
It would be more than reasonable it would be necessary wouldn’t it? - - - It would be negligent perhaps to do otherwise.
Insofar as the placement of the house was concerned, if in fact it had been on the stands and to observation had not moved for a period well in excess of 12 hours prior to the event and on observation – so what I’m suggesting to you it was placed in fact on the stands the evening before or the afternoon before and, on observation the following morning, had not shifted, moved, altered – the stands were all upright, stable et cetera, then that would be further evidence would it not that the house section was in fact stable? - - - That would be so, yes.”
In re-examination Mr Coghlan was asked (T.279-280):
“What do you say as to the adequacy of the use of A-frames alone to support a house while men are working underneath? - - - I would not send anybody under, I would not go under myself, and clearly, it wasn’t adequate because it fell over.”
He said that the provision of large, stable blocks of wood of sufficient height beneath the house section would have prevented it descending if the A-frames failed to keep it in place.
On the epistemological question, Mr Coghlan said that there was no published Standard and no written requirements, procedures or guidelines in existence in Victoria in 1996 in relation to safe methods of relocating houses on site. There were few persons or companies who specialised in that activity and consequently no specific known standards or procedures. In my view the lack of formal criteria matters not, because the dangers were obvious and so too were the solutions. I come to those matters hereunder.
The defendant called Mr Murray Gray to give evidence.
Mr Gray in evidence in chief stated that he had had twenty years’ experience in house relocations at the time of the accident. The defendant operated primarily in the Bendigo area and also transported houses from Melbourne to various sites in regional Victoria. Normally it performed the whole of the relocation but in the instant case Transhome retained the defendant for a limited part of the relocation, Transhome itself performing the preparatory tasks of disconnecting services, cutting the house into sections and applying tarpaulins to the sections. Transhome obtained all necessary permits. Normal procedure was that access to the new site was arranged by the owner of the site who also ensured the site was clean to enable work to commence and that was done in this case. It was agreed between the defendant and Transhome that the defendant would dig the stumpholes on the new site and stump the house, but if rock were struck in the process of digging the stumpholes Transhome would remove the rock. That was reflected in the quotation by the defendant dated 18 September 1996 being part of Exhibit M. The price quoted was $6,500. Had the defendant been retained for the full job, the price would have been in excess of $15,000.
The defendant attended the site at Pascoe Vale and transported the sections to its Bendigo premises. The sections remained on the trailers. The first section to be moved to the site at Crowther Street was moved there on 9 October 1996. That was one of the larger, rear sections.
As to 9 October 1996 Mr Gray was asked (T.312):
“ … what work was undertaken by or on behalf of your company in relation to preparing the site for stumping? - - - I believe by memory we took the first section of the house to the property, we marked out the holes, drilled some holes, majority of them. We struck a bit of rock in about half a dozen holes. We then unloaded the house over the holes and placed it onto the stands. That was the first day, and that’s when I spoke to Brad [Gooch] that night and told him about we’d struck some rock in three or four holes and he’d have to organise to get it out.”
The truck had been backed into position, the house section was jacked clear of the trailer, the stands were placed in position, the trailer was removed, the house section was lowered onto the stands and then the jacks were removed. There were three different sizes of stands because the site land was sloping. The stands were strong and were a safety precaution. There were four stands under each side of the house section. Prior to the stands being placed, the ground was checked to ensure the stability and safety of the stands. Timbers can be placed under the stands for additional stability but there was no reason for timbers on this site because the ground was dry and solid. The house section was placed on the stands about midday on 9 October and remained there until the accident. After tea on 9 October Mr Gray rang Mr Gooch and told him there were five or six holes at the rear of the house section from which rock needed removal.
Mr Gray returned to the site on 10 October at about 9.00 am or shortly thereafter. He arrived about half to three-quarters of an hour before the accident. Mr Keogh and Mr Gooch were there. When Mr Gray arrived, Mr Keogh was under the back section of the house with an electric jack hammer, working on one of the holes containing rock. Mr Gray did not give Mr Keogh any instructions or directions.
The defendant’s task that morning was to cut the stumps and put them under the house including in the rock-cleared holes when that task had been done, and once the stumps were in position the house section would be raised off the stands and then lowered onto the stumps. Mr Gray had two other workers on the site. Mr Gray was working at the rear of the house. He stated (T.320):
“ … I was putting stumps under and I got out of the house and a big gust of wind come up and next minute I was just yelling out ‘Watch out, she’s going’.”
He saw the section start to move. He realised Mr Keogh was under it. Mr Gray
“yelled out to the boys to grab a jack and we jacked the back corner of the house off Bryan.” (T.320).
An ambulance was immediately called, which transported Mr Keogh to hospital.
The defendant and Mr Gray had never had a house section fall off stands before. On 9 and 10 October 1996 he considered the house section was stable and safe. He had no reason or cause to suspect any instability in the house section.
Mr Gray said the practice in 1996 in the house removal industry was that stumpholes could be dug while underneath a house or the house could be positioned over the site, plumbs dropped to identify the places for stumpholes, the house removed while the holes were dug and the house then returned over the dug holes.
In cross-examination Mr Gray agreed that it was the defendant’s responsibility and decision how to load the house sections at Pascoe Vale, how to transport them, how to unload them at the Crowther Street site, how to use the A-frames at that site and how to place the sections on the A-frames. It was the defendant’s responsibility and decision to dig the stumpholes and stump the house, with the exception that Transhome had to clear the rock from any stumpholes containing rock. The depth and width of stumpholes were governed by Council regulation. Mr Gray agreed that a sideways force such as wind or a vehicle could destabilise an A-frame. There was no reason why he would not have used solid timber blocks to support the house section, as distinct from A-frames. Mr Gray stated that there were no written procedures for the works provided by the defendant and that the defendant had undertaken no risk assessment other than Mr Gray visually inspecting the house section on the A-frames on 9 October.
Mr Gray stated that when he arrived at the Crowther Street site on 10 October Mr Keogh was already working. Mr Gray did not talk to Mr Keogh at that time. Later, when Mr Gray was putting stumps under the house section
“ … Bryan asked me was this hole right, was that enough and I said ‘Yes’ and then he continued on to the next one.” (T.339).
Mr Gray said that when some time later he visited Mr Keogh in hospital he could have said to Mr Keogh that if the house section had fallen five minutes later all five workers would have been under the house. Mr Gray said he did not believe he said to Mr Keogh that the accident was his (Mr Gray’s) fault, but the conversation was a long time ago and he could not remember.
Mr Gray was asked in cross-examination (T.347):
“In relation to the location of the holes that had to be dug out that had rock, Mr Gooch has given evidence that those holes were situated around the perimeter of the house but not under the house? - - - No, that’s not correct.”
Mr Gray said that the holes with rock were located one row from the outside of the house section, at the rear. There were also holes under the house section that needed widening. Mr Gray gave Mr Keogh no instructions about widening. As to Mr Gooch’s evidence that on the evening of 9 October he and Mr Gray met at the Crowther Street site and Mr Gray showed Mr Gooch the holes that contained rock, Mr Gray said he was unable to say whether that occurred.
In re-examination Mr Gray stated that the information as to the requirements of positioning, width and depth of the stumpholes was contained in the Council permit which was Transhome’s responsibility to obtain.
The two employees of the defendant who were present on site at the time of the accident attended court but after discussion between counsel were not called by the defendant, it being agreed that no comment as to non-calling would be made by counsel for the plaintiff. This was a sensible agreement as apparently the employees had no relevant evidence to give on the critical matters before me.
The defendant called no expert or practitioner witness as to the standards and methods in 1996 of the house removalist and relocation industry other than Mr Gray, and did not by other evidence traverse the evidence of Mr Coghlan.
As to the witnesses called before me on the question of liability, Mr Keogh gave his evidence under great physical and emotional difficulty deriving from his grievous injuries. Counsel for both parties displayed tact, restraint and good judgment in examining Mr Keogh and I commend counsel for that. I consider Mr Keogh to be a truthful witness and despite the burden upon him of his injuries an accurate witness also. It was evident that both Mr Gooch and Mr Gray were affected by the enormity of the consequences upon Mr Keogh of the accident. I consider Mr Gooch to be an honest and substantially accurate witness and a man of intelligence and sensitivity. I consider Mr Gray to be an honest and accurate witness and a very decent and straightforward man. Mr Coghlan was a knowledgeable and able expert witness.
On the factual matter of who gave Mr Keogh instructions to work under the house section, I find that it was Mr Gooch who gave those instructions and that Mr Gray did not give those instructions. I so find because of the preponderance of the direct evidence and because of the circumstances proved. As to the direct evidence, Mr Keogh’s evidence unequivocally was that it was Mr Gooch who gave him those instructions. Although Mr Keogh as a witness was afflicted by the extent of his injuries, there is no reason to reject his clear evidence on this matter. Mr Gray gave clear evidence that he did not give Mr Keogh those instructions. I do not accept Mr Gooch’s evidence that he did not give those instructions to Mr Keogh. This matter is one of two matters in Mr Gooch’s evidence that I do not accept as accurate. I consider that by reason of his consciousness of the enormity of the consequences to his employee of two hours’ duration that Mr Gooch has come to believe he did not give those instructions. The other matter is the position of the stumpholes with rock. I accept Mr Gray’s evidence (T.347 cited at paragraph 52 above) that the stumpholes with rock although at the rear were under the house. Mr Gray’s evidence was firm and clear on that matter (T.347 “No, that’s not correct”) and Mr Gooch’s was not (T.185 “as far as I am concerned” cited in paragraph 31 above); and Mr Keogh’s evidence confirmed that of Mr Gray. As to the circumstances proved and which lead to the conclusion that it was Mr Gooch and not Mr Gray who gave the instruction, the following obtain. Mr Keogh was Mr Gooch’s employee, not Mr Gray’s. It was Mr Gooch’s responsibility, not Mr Gray’s, to effect the removal of rock from the stumpholes once rock was struck, as it was on 9 October. On the evening of 9 October Mr Gray on site showed Mr Gooch the affected holes. Thus Mr Gooch knew which were the holes. After 7.00 am on 10 October Mr Keogh met Mr Gooch on site. They were the only persons present. They had a discussion. When Mr Gray first arrived on the site on 10 October, at 9.00 am, Mr Keogh was already working under the house section. Mr Gray had had no opportunity to give Mr Keogh instructions. Later while Mr Gray was under the house section with Mr Keogh, Mr Gray gave him an instruction as stated at T.339 cited in paragraph 51 above but that was a subsequent instruction not the initiating instruction and was not the cause of Mr Keogh being under the house section. Finally, the immediate purpose of Mr Gooch employing Mr Keogh on 10 October was for Mr Keogh to remove the rock from the affected stumpholes. Both men were present at the site early on 10 October; there was work to be done; there was the means of doing it; there was the knowledge (from the Gray-Gooch meeting on site the evening before); and there was no impediment to getting on with the job. All before Mr Gray arrived at 9.00 am.
Accordingly I find that it was Mr Gooch and not Mr Gray who gave Mr Keogh the instruction to work under the house section.
I turn to the question of the liability if any of the defendant and of Transhome for the accident. Counsel for the parties made most helpful and comprehensive oral and written submissions upon this matter and upon quantum, and for which I express my appreciation. I proceed upon the principles stated by Hayne J (in whose judgment Gaudron, McHugh, Gummow and Kirby JJ agreed) in Wynbergen v Hoyts Corporation Pty Ltd[2].
[2](1997) 149 ALR 25 at 29.
I find that the defendant owed a duty of care to Mr Keogh and breached it, and that Transhome owed a duty of care to Mr Keogh and breached it.
I find that Transhome has some liability for the accident. That is for the following reasons. First, Transhome was the employer of Mr Keogh. Mr Keogh was obliged to act according to its directions. Mr Keogh did so act. Second, Transhome had a non-delegable duty to its employee to provide a safe place of work and a safe system of work. That was a duty of profound importance. Third, Mr Gooch was fully aware, and should have been fully aware, of the danger of working under the house section. Yet he instructed his employee Mr Keogh to do so. Mr Gooch made no enquiry of Mr Gray as to alternative methods of proceeding and exercised no judgment whether to proceed. Mr Gooch was not an experienced or expert house removalist but he was an employer and he could see the danger. Finally, it was Transhome’s agreed task to effectuate the rock removal.
I find that the defendant has some liability for the accident. That is for the following reasons. First, the defendant had responsibility for and control over the overall operation (but not the rock removal). It was the defendant which brought the section to the Crowther Street site on 9 October, which commenced the stumping and which placed the house section on the A-frames above the uncompleted stumpholes. Second, Mr Gray was a very experienced house removalist. Third, Mr Gray knew Mr Gooch was not. Fourth, the defendant made no safety arrangement to prevent injury if the A-frames failed to hold the house section by reason of wind or vehicular interference or otherwise. Fifth, Mr Gray knew an employee of Transhome was to work under the house section (as well as the defendant’s own employees and including Mr Gray). Sixth, the defendant created the situation of danger at the site.
I do not consider the lack of written procedures by the defendant or the formal lack of risk assessment other than Mr Gray visually observing the house section on the A-frames on 9 October to be of critical importance in this case. What is critical is that the system of requiring (or permitting) persons to work under the house was in the circumstances unsafe. There was no supplementary preventative methodology should the A-frames fail to support to support the house such as strong wooden blocks. The effective error was that of the defendant on 9 October when, having struck rock in the stumpholes, it nonetheless proceeded to place the house section on the A-frames above the uncompleted stumpholes. The defendant should have left the house section on the trailer until the next morning when the rock could have been cleared. Only then should the house section have been lowered onto the A-frames. Thus the defendant made two egregious errors. First, it relied solely on the A-frames and provided no other method of support or system of safety. Second, it placed the house section above uncompleted stumpholes when it should not have done so. And Transhome made an egregious error by instructing its employee to work under the house section when it was obvious that so to work was dangerous and Mr Gooch knew it was dangerous.
I do not regard Mr Gray’s statement to Mr Keogh in hospital that the accident was his fault as legally significant. I consider it was a statement by a decent man in understandable emotional circumstances and is not appropriate for analytical reliance on the question of liability.
Looking at the matter holistically, I find that the major responsibility and liability for the accident is that of the defendant. That is because it had overall responsibility for the operation, it was the expert, it placed the house section above the uncompleted stumpholes when it should have left it on the trailer until the next morning, and it had no secondary safety procedure should the A-frames fail to support the house section. It was the defendant which created the situation of danger at the site. I find that Transhome has significant responsibility and liability for the accident, although substantially less than that of the defendant. That is because Transhome was the employer of Mr Keogh and owed a non-delegable duty of care to him, and Mr Gooch knew the danger of working under the house section and yet instructed Mr Keogh to work there. I assess the responsibility and liability for the accident as 70% by the defendant and 30% by Transhome. Mr Keogh bears no responsibility for the accident.
In terms of factor X in s.138(3)(b), the extent whereby the defendant’s negligence contributed to the injury is 70%.
I turn to the question of quantum.
On the question of quantum, before me a number of witnesses were called and numerous reports and other documents tendered. The plaintiff called as witnesses Mrs Noelene Joy Keogh, the wife of Mr Keogh, Dr S. Hanna, medical practitioner, of Bendigo, Mr D.J. Mitchell, psychologist, of Bendigo, Ms K.S. Noske, occupational therapist of Kew and Mr P.C. Farnbach, consultant psychiatrist, of Malvern. The defendant called Mr J. Cooper-Nolan, occupational therapist, of Strathmore. By way of medical and other reports, the plaintiff tendered or filed the following reports or statements: of the Alfred Hospital, Melbourne (multiple reports and records from October 1996 to March 1998); Mr C. Atkin, general, laparascopic and endoscopic surgeon, of East Melbourne (reports dated 6 June 1997 and 4 December 1997); Dr P. Farnbach, consultant psychiatrist, of Malvern (reports dated 1 April 2003 and 13 August 2003); Mr M. Flaim, surgeon, of Fitzroy (reports dated 20 March 1997 and 10 June 1997); Dr S. Hanna, medical practitioner, of Bendigo (multiple medical reports from August 1998 to October 2003); Mr G. Joyce, urologist, of Fitzroy (reports dated 30 June 1997, 26 August 1997 and 27 February 1998); Dr A. Kaplan, psychiatrist, of St Kilda East (reports dated 1 July 1997 and 2 March 1998); Dr D. Mitchell, psychologist, of Bendigo (multiple reports from March 1998 to November 2003); Mr R. Mitchell, surgeon, of Bendigo (reports dated 8 March 2000, 30 May 2000 and 19 July 2004); Dr D. Murphy, consultant physician in rehabilitation medicine, of Bendigo (reports dated 28 January 1998, 19 March 1998, 28 October 2002 and 13 February 2004); Mr K. Myers, vascular surgeon, of Richmond (report dated 27 February 1998); Dr M. Nadarajah, medical practitioner, of White Hills, Bendigo (reports dated 10 March 1998 and 20 April 1998); Ms K. Noske, occupational therapist, of North Fitzroy (multiple reports from November 1997 to August 2003); Mr R. Strangward, surgeon, of South Yarra (reports dated 5 June 1997 and 25 February 1998); and Dr J. Wood, tissue trauma consultant, of Bendigo (report dated 19 March 2003). The defendant filed a report of Mr B.T. Collopy, surgeon of Fitzroy of 4 August 2004 and reports of Mr J. Cooper-Nolan, occupational therapist, of Strathmore dated 15 December 2003 and 17 February 2004. For the plaintiff, financial documentation was tendered including the taxation returns of Mr Keogh for the financial years ending 30 June 1994 and 30 June 1996, and filed was a report of Mr G. Webster, forensic accountant dated 17 June 2003. Numerous photographs were tendered for the plaintiff. In the presence of the parties’ counsel, on 20 August 2004 I held a view of the home of Mr and Mrs Keogh in Eaglehawk in order to see the living arrangements. Consonant with the principles enunciated in Scott v Numurkah Corporation[3], no evidence was taken on the view.
[3](1954) 91 CLR 300.
There is a vast amount of description, analysis and detail in the voluminous medical reports which I shall not here rehearse. The reports are a matter of record and are exhibited.
Mr Keogh has endured and shall continue to endure a harrowing personal odyssey. His mental and physical life has been blighted. A review of the medical and paramedical documentation and also oral evidence conclusively demonstrates the grievousness of his state.
Mrs Keogh has been and remains an heroic support for her husband. She is a tower of strength and of devotion, a selfless woman who is Mr Keogh’s life support. I was greatly impressed by Mrs Keogh both as a witness and as a person.
Judgment does not proceed according to sympathy (or prejudice) but is sober, measured and analytical. I proceed upon those premises. Further, I agree with the submissions on behalf of the defendant that the character of s.138 proceedings and the incidents of Factor A evidence involve that especial care must be exercised in scrutinising evidence adduced by the plaintiff as Mr Keogh is not a party; and I proceed on that premise also.
I turn first to the submissions on behalf of the defendant.
I do not agree with the submission on behalf of the defendant that the evidence of Mr Cooper-Nolan is to be preferred to that of Ms Noske. Even if there were “an element of approbation and reprobation” by the plaintiff in relation to those witnesses, objective assessment of the evidence supports that of Ms Noske. Although her assessment ran to October 2002 whereas Mr Cooper-Nolan’s ran to December 2003, Ms Noske had attended the Keoghs to a far greater extent and significantly her opinion was based upon what was reasonable and not as was Mr Cooper-Nolan’s what was confined to the plaintiff’s guidelines.
I do not agree with the submission on behalf of the defendant that on the evidence Mr Keogh’s life expectancy at trial was 15-16 years. The defendant so submitted by reason of Mr Keogh’s smoking and alcohol ingestion, his weight, emphysema and impaired liver function and poor health and prognosis. The defendant’s witness Mr Collopy had not examined Mr Keogh. Dr Hanna, the treating general practitioner, stated that Mr Keogh’s life expectancy “could be a little bit diminished” and Dr Murphy estimated the reduction to be “perhaps 10 years”. Mr Keogh has shown great fortitude since the accident. I consider Dr Murphy’s reduction estimate to be reasonable.
I do not agree with the submission on behalf of the defendant that for loss of earning capacity an allowance of $125,000 is appropriate. The defendant so submitted primarily because of the patchy work history of Mr Keogh prior to the accident. Given the level of income revealed by the 1994 and 1996 income tax returns I consider a reasonable quantum is $250 nett per week, to 65 years.
I do not agree with the submission on behalf of the defendant that an appropriate allowance for past medical and related expenses would be $400,000. The defendant submitted that the expenses scheduled in Exhibit A (the s.239A certificate) demonstrated what was incurred but not its reasonableness. Given the unremitting history of Mr Keogh’s burdens since the accident I consider the expenditure was reasonable.
I do not agree with the submissions on behalf of the defendant as to the future care and services likely to be needed by Mr Keogh. I consider the defendant’s submissions undervalue the quantum as well as the nature of the care and services likely to be needed in Mr Keogh’s parlous personal situation. But for the heroic and selfless devotion of his wife the cost of support would be much greater.
Finally as to the submissions on behalf of the defendant, I consider that payment of costs (in this case $20,966) was not “in respect of” the injury as contemplated by Factor C. Although those words are words of wide import, there is no justification in terms function or policy for extending Factor C beyond its evident function to that of reimbursement of costs. Its evident function is to fix upon the amount paid in settlement of the claim and to enable assessment of the proportionate liability of a defendant in relation to a notional assessment. I do not include payment of costs in Factor C.
I turn to the submissions upon behalf of the plaintiff and hereafter follow the scheme of the written submissions on behalf of the plaintiff.
Substantially I agree with those submissions. Initially I considered some of the proposed assessments were a little light, especially that of general damages, but upon consideration I conclude they are fair and reasonable.
Mr Keogh suffered the following injuries: severe injuries to the pelvis including diastasis of the pelvis; fractured sacrum requiring external fixature; injury to the left leg including fracture of the tibia; injury to the back including fractures of the lumbar transverse processes of L2-L5; resultant pelvic infection and secondary pelvis sepsis with resultant small bowel and bladder fistula; gastro-intestinal bleeding requiring multiple intestinal surgical procedures; reflux oesophagitis and resultant upper digestic tract impairment; development of E.coli bacteraemia; development of pneumonia; small bowel obstruction requiring surgery; chronic pelvis abscesses involving the small bowel, bladder and colon; gross intraperitoneal small bowel adhesions; multiple surgical procedures on the small bowel, pelvis and abdomen; development of chronic pain; and bi-polar disorder and depression.
Mr Keogh’s condition and history whilst at the Alfred Hospital is summarised in the reports of Mr Flaim, Mr Joyce, Mr Strangward, the set of reports from the Alfred Health Care Group, and the report of the treating general surgeon Mr Atkin. Dr Hanna thereafter stated (Exhibit G):
“During the last four years since 1998 to 2002 Bryan consulted me at different times mainly with chronic abdominal pain, chronic infected abdominal fistula with mesh protruding through this abdominal wounds, chronic back pain, depression and anxiety symptoms and lack of sleep. His medications included mainly pain killers, non steroidal anti-inflammatory, laxatives, anti-emetics, sleeping tablets, antibiotics, anti-depressants, and more recently mood stabilisers following admission to hospital with bi-polar disorders.”
Mr Keogh suffers from chronic pain as the result of the massive injuries to his abdomen, back and pelvis. In addition he has developed a bi-polar disorder which complicates his treatment. He is subject to violent mood swings. He has been in and out of hospital for partial bowel obstructions since he was discharged from the Alfred Hospital. He is on very high doses of medication. Mr Mitchell stated that when Mr Keogh’s condition worsens he can “swell up and vomit his own faeces”. His mental condition has deteriorated and his wound continues to weep.
As to prognosis, Dr Hanna expressed the view that Mr Keogh’s condition would not get better and would either stabilise or get worse. Dr Farnbach and Mr Mitchell expressed similar views. No contrary view was expressed.
As to the level of care of Mr Keogh, at the time of trial his care consisted of constant semi-nursing care from his wife, regular attendant care 15 hours per week, household assistance of 5 hours per week, care for the garden – 1 hour per fortnight, masseur attention – 2 visits per week and GP and specialists’ care when required.
Vital to Mr Keogh is the care provided by Mrs Keogh. Numerous witnesses deposed as to Mrs Keogh’s role in caring for her husband. Mrs Keogh gave evidence concerning the level of care which she provided. The care included overseeing and dispensing medication, checking on her husband at night, not being able to be out of her husband’s sight, helping her husband shower and dry himself, cooking all meals, cleaning his room, cleaning up after him, changing his bedding (sometimes on numerous occasions each night), cleaning the bathroom and toilet, taking him to doctors, specialists and hospital, and of dressing her husband’s wounds. The care also included of getting up and down at night, sitting with her husband when he was having a bad night, and assisting him when he was in severe pain. Mrs Keogh in evidence stated that the care which she provided to her husband was “really 24 hours”. Ms Noske gave similar evidence. The role of Mrs Keogh is, in essence, that of a full time carer. It is necessary, and reasonable, that she be on hand virtually 24 hours per day. A reasonable assessment of the level of care which Mrs Keogh has provided to her husband, and which she is likely to continue to provide in the future, is 8 hours per day, 7 days per week.
As to the hourly rate which ought be applied, the unchallenged Goldfield Attendant Care Services Schedule of Attendant Care rates is applicable. On the evidence, it is apparent that Mrs Keogh provides care very much akin to nursing care, and certainly care in excess of that which is ordinarily provided by a professional attendant carer. In this regard, the control and dispensation of medication is a not insignificant task and one which an attendant carer would not appropriately undertake.
As to counselling from Ms Thomas, Mr Keogh suffers from grievous physical and psychological conditions and requires very substantial care. Central is that provided by his wife. Mrs Keogh described the assistance provided by Ms Thomas, in particular that Ms Thomas was
“someone that I can talk to and when things are happening … talk to her and get it out of my system … Geraldine is also on call 24 hours a day. If Bryan goes to hospital, because I have so much trouble and trauma going through the nursing sector of the hospital, she comes with me and she sits with me at anytime of the day or night”.
Mrs Keogh gave evidence that the assistance provided by Ms Thomas “assisted me a great deal. It kept me together”. The counselling provided by Ms Thomas significantly assists Mrs Keogh. Without that assistance, there is a significant risk that Mrs Keogh would not be able to continue providing the level of care which she has thus far provided. Without that level of care, Mr Keogh would require 24 hours a day attendant care. The evidence of the treating general practitioner Dr Hanna and the treating psychiatrist Dr Farnbach is that such care has not only been necessary in the past but will be necessary in the future. In the future, one hour per week for psychological assistance and counselling is wholly reasonable.
As to life expectancy, Mr Keogh became 53 years of age on 8 November 2005. His normal life expectancy, by the 2000 - 2002 tables (Ex Z) is 27.4 years. Some reduction for reduced life expectancy is appropriate. Of Mr Keogh’s treating doctors, Dr Murphy stated in relation to life expectancy:
“It is very difficult to estimate the reduction, perhaps 10 years.”
Dr Hanna, the treating general practitioner stated:
“It is very hard to say whether he would have a normal life expectancy. … His life expectancy could be a little bit diminished but from my point of view I can’t tell exactly how far this diminishment would be.”
Mr Collopy did not examine Mr Keogh. Mr Keogh has survived many life threatening episodes at the Alfred Hospital. He has demonstrated fortitude and resolve.
I consider Mr Keogh’s life expectancy to be 17.4 years (27.4 years less 10 years).
As to the cost of care (past and future) the cost of past care is disclosed in Exhibit A. I consider all those payments were justified. Utilising three months prior to trial as a reliable predictor of the future, subject to the evidence of Ms Noske as to the provision of other items, Exhibit A and the schedule provided to the Court reveal that, excluding hospital expenses, over the 3 months prior to trial, the average weekly cost of care was $1,269.00. The evidence of Ms Noske demonstrates the following additional ongoing costs: cost of Austar is $28.00 per week. Five hours’ home help was being provided at time of trial. Three hours’ additional home help is justified, on the basis of 2 hours per day 4 days per week compared with the existing 5 hours per week. The weekly hourly rate is $23.00, or an additional $69.00. Further, there is additional gardening, 1 hour per week at $30.00; linen replacement, $88.50 per week; respite care for Mrs Keogh, $300.00 per week; and psychological assistance to Mrs Keogh, 1 hour per week, $86. An additional amount is to be allowed for future hospital expenses: based on hospital expenses incurred between 2001 and 2004 as contained in Exhibit A, total hospital expenses incurred during that three year period were $31,742.00, or $203.00 per week.
As to loss of earnings and impairment of earning capacity, Mr Keogh is 53 (being born on 18 November 1952). He has limited education, training and experience. His pre-accident employment was that of a manual worker. There were periods of unemployment as well as periods of employment. In 1994 he earned $13,041 gross plus cash (Exhibit D). In 1996 he earned $4,298 gross plus cash (Exhibit D). Taking into account all relevant matters, a fair measure of his lost earnings and earning capacity is the amount of approximately $13,000.00 nett per annum ($250.00 nett per week). 409 weeks elapsed between the date of injury and trial. The past loss is $102,250.00. But for suffering injury, it could reasonably be anticipated that Mr Keogh would have wished to continue working until at least aged 65 years. Applying the multiplier of 527 to a loss of $250.00 nett per week, but reducing that amount by 15% for vicissitudes, results in a calculation of $111,987.00. An appropriate allowance is $210,000 for impairment of earning capacity past and future.
As to loss of expectation of life, an amount of $20,000.00 is appropriate.
As to general damages, Mr Keogh suffered grievous and debilitating injuries. There is no evidence that his pain levels, physical condition or mental condition will improve in the future. The medical evidence is that he will remain in a similar if not worsening condition for the balance of his life. Almost 8 years elapsed between the date of injury and trial. For all of that time, the plaintiff has been in constant unremitting pain. That situation will continue indefinitely.
A fair and reasonable assessment of general damages is $450,000.
Counsel for the plaintiff have provided the following data which I consider reasonable and factual.
As to past Griffiths v Kerkmeyer damages:
(i) 10 October 1996 – 1 November 1997:
28 hours per week, 55 weeks x $16 per hour=
$24,640
(ii) November 1997 to November 1998:
56 hours per week, 52 weeks x $16 per hour=
$46,592
(iii) November 1998 to November 1999:
56 hours per week, 52 weeks x $19 per hour=
$55,328
(iv) November 1999 to November 2000:
56 hours per week, 52 weeks x $20 per hour=
$58,240
(v) November 2000 to November 2001:
56 hours per week, 52 weeks x $21 per hour=
$61,152
(vi) November 2001 to November 2002:
56 hours per week, 52 weeks x $24.50 per hour=
$71,344
(vii) November 2002 to November 2003:
56 hours per week, 52 weeks x $25.60 per hour=
$74,547
(viii) November 2003 to 25 August 2004:
56 hours per week, 42 weeks x $26.90 per hour=
$63,268
TOTAL $455,111 Reduced by $20,111 (approximately four months) for times Mr Keogh was hospitalised after his return to Bendigo in November 1997.
$435,000
Calculations as to future loss:
(a) To death
– 3% multiplier
– on basis of life tables at age 53 life expectancy is 27.4 years (Exhibit Z)
– reduced by 10 years it is therefore 17.4 years
– 3% multiplier for 17 years is 697 (Exhibit Z).
(b) To end of working life
– 3% multiplier
– 12 years (ie to age 65 years)
– 3% multiplier for 13 years is 527 (Exhibit Z).
As to future hospital, medical and like expenses:
(i) Excluding hospital expenses as per s.239A certificate and schedule based upon the certificate (Exhibit A) and the schedule handed to the Court during the opening $1,269 per week
(ii) Austar $28 per week (iii) 3 hours’ additional home help per week (2 hours x 4 days compared with existing 5 hours) at $23 per hour $69 per week
(iv) Additional gardening
1 hour per week
$30 per week
(v) Linen replacement $88.50 per week (vi) Respite $300 per week (vii) Psychology, 1 hour per week at $86 per hour $86 per week (viii) Hospital expenses:
Based on hospital expenses incurred between 2001 and 2004 as contained in Exhibit A, total hospital expenses during 3 year period were $31,742, or
$203 per week
TOTAL $2,073 per week Multiplier 697 x $2,073 per week: $1,444,881
As to future Griffiths v Kerkmeyer damages
8 hours per day, 7 days per week at $26.90 per hour: $1,506 per week Multiplier 697 x $1,506 per week:
$1,049,682
As to loss of earnings and impairment of earning capacity
Past
(i)
$250 per week x 409 weeks =
102,250
Future to 65 years
(ii) $250 nett per week, multiplier of 527, reduced
by 15% for vicissitudes:
$111,987 $214,228
Say $210,000
In summary I assess damages as follows:
(A)
past hospital, medical and like expenses:
$857,672
(B)
past Griffiths v Kerkmeyer damages:
$435,000
(C)
future hospital, medical and like expenses:
$1,444,881
(D)
future Griffiths v Kerkmeyer damages
$1,049,682
(E) Loss of earnings/future impairment of
earning capacity:
$210,000
(F)
Loss of expectation of life
$20,000
(G)
General damages:
$450,000
TOTAL:
$4,467,235
Accordingly I make the following Orders:
(1)There is judgment for the plaintiff in the sum of $887,494 being payments of compensation made by the plaintiff pursuant to the Accident Compensation Act 1985.
(2)Payment of interest on that amount pursuant to s.60 Supreme Court Act 1986.
(3)Declaration that for the purpose of the formula contained in s.138(3)(b) Accident Compensation Act 1985:
Factor X is 70%;
Factor A is $4,467,235;
Factor C is $143,400
I shall hear the parties on the question of costs at a time convenient to the parties.
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