Victorian WorkCover Authority v Prolift Fleet Management Pty Ltd
[2009] VSC 96
•25 March 2009
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
No. 4299 of 2007
| VICTORIAN WORKCOVER AUTHORITY | Plaintiff |
| v | |
| PROLIFT FLEET MANAGEMENT PTY LTD | Defendant |
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JUDGE: | KAYE J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11-13, 16-17 March 2009 | |
DATE OF JUDGMENT: | 25 March 2009 | |
CASE MAY BE CITED AS: | Victorian WorkCover Authority v Prolift Fleet Management Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2009] VSC 96 | First Revision: 7/4/09 |
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ACCIDENT COMPENSATION – Injury to worker – Compensation paid by Authority – Entitlement of Authority to indemnity from third party – Assessment of indemnity – Griffiths v Kirkemeyer damages – Future care expenses.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Philbrick SC and Mr B McTaggart | Wisewoulds |
| For the Defendant | Mr M Thompson SC with Ms C Harris | Norris Coates |
HIS HONOUR:
On 3 April 2001, John Wilson suffered a significant injury to his right knee, when he fell from a Toyota forklift in the course of his employment with Sleepmaster Pty Ltd (“Sleepmaster”). The forklift had been hired by Sleepmaster from the defendant, Prolift Fleet Management Pty Ltd (“Prolift”), in January 2001. Mr Wilson’s course of recovery was complicated, and he developed complex regional pain syndrome type 1. Because of the nature and severity of his ongoing symptoms, Mr Wilson, ultimately, underwent an above knee amputation of his right leg in May 2003. In 2005, common law proceedings were issued on behalf of Mr Wilson against Sleepmaster claiming damages arising from his accident. Subsequently, Prolift was joined as a second defendant in those proceedings. That case came on for trial on 10 March 2009. Mr Wilson’s claim was settled on that day before a jury was empanelled.
In these proceedings, the plaintiff, the Victorian WorkCover Authority (“VWA”), claims to be indemnified by Prolift in respect of past and future payments made by VWA to and on behalf of Mr Wilson, pursuant to s 138 of the Accident Compensation Act 1985 (Vic) (“the Act”). Subsection (1) (so far as relevant) provides:
“Where an injury or a death for which compensation has been paid, or is or may be payable, by the Authority, a self-insurer or an employer was caused under circumstances creating a liability in a third party to pay damages or that would have created such a liability if the injury or death had been caused in Victoria … the Authority, self-insurer or employer is entitled to be indemnified by the third party in accordance with this section.”
Evidence on liability
The first question, then, is whether the injury sustained by Mr Wilson was caused in circumstances creating a liability in Prolift to pay damages to him. In these proceedings, the plaintiff (VWA) alleges that Mr Wilson’s fall, and his injury, was caused because the floor pan of the forklift was in a defective and unsafe state, and because there was no grab handle attached to the vertical upright of the roll bar of the forklift. Alternatively, the plaintiff claims indemnity against Prolift on the grounds of an alleged breach by Prolift of regulation 605(2) of the Occupational Health and Safety (Plant) Regulations 1995. That regulation provides:
“A supplier of plant must ensure that between hirings and leasings, the plant is inspected and maintained to ensure the risk arising from the use of the plant is eliminated, or if it is not practicable to eliminate the risk, reduced so far as is practicable.”
Mr Wilson was born in 1974, and therefore, at the time of the accident, was 27 years of age. He commenced employment with Sleepmaster in September 2000 as a machinist. During the ten years between the date on which he left school and the commencement of his employment with Sleepmaster, he had worked with Sportscraft as a machine operator for a period of over seven years. During that time he drove a forklift. He obtained a learner’s permit in 1995, and was granted a licence to drive a forklift in 1999.
Mr Wilson commenced work with Sleepmaster as a machinist. In the course of his work, he was required to drive a forklift, in order to move large rolls of cloth from a storage area to another area of the factory, known as the “A-frame” area. After arriving at the A-frame area, Mr Wilson was required to alight from the forklift, cut the plastic off the rolls of cloth, and then manually move those rolls onto rollers. Mr Wilson stated that when he worked for Sportscraft he always got off a forklift backwards. When he commenced work at Sleepmaster, he received no instruction as to his system of work or how to alight from forklifts. In particular, he was never told that it was wrong for him to alight from a forklift backwards.
When Mr Wilson first commenced his employment with Sleepmaster, he drove an old forklift which he described as being in a “shocking” condition. In January 2001, a new forklift appeared at Sleepmaster’s premises, being the forklift which is in question in this case. Mr Wilson stated that at that time the floor pan was in the same condition as it was at the time of the accident. There was a grey area in the middle of the floor pan, which was intended to constitute a slip proof mat. However, that area was like “paper”, and the surface of it was not abrasive. Adjacent to it was a dark brown area depicted on photographs tendered in evidence. Mr Wilson stated that that area was rusted. The forklift was a left hand drive vehicle and Mr Wilson was accustomed to getting off it on its left hand side. On that side, the roll bar of the forklift did not have any grab handle attached to it. There were holes drilled into the upright of the roll bar on to which a grab handle could be, and might have previously been, attached. In addition, the part of the roll bar which would normally accommodate a grab handle, and the section above it, was covered with a plastic sun visor.
The accident occurred at about 7.00 pm on 3 April 2001. Mr Wilson stated that he had driven the forklift, with a roll of fabric, to the A-frame area. He was wearing new runners which had a rubber sole. He commenced to get off the forklift, pushing himself up from his seat by his right hand. At the same time he gripped, with his left hand, the part of the roll bar which was covered by the sun visor, just above where the sun visor commenced. He was able to get a grip on the roll bar with his fingers, but his thumb had to point upwards, because the sun visor would not permit him to get his thumb around the back of it. Mr Wilson then commenced to move to his left, turning in a clockwise direction. He was intending to put his left foot on the intermediate step, which was positioned on the left of the forklift between the floor pan of the forklift and the ground. As Mr Wilson was moving his left foot towards the intermediate step, his right foot slipped on the surface of the floor pan, as it was still turning. As a result of that slip, Mr Wilson fell backwards. His left foot caught on the edge of the foot step. Part of his toe was wedged on the side of the mudguard, on the edge of the step. At that time he was still holding the roll bar in his left hand. He was falling and twisting in a clockwise direction. His momentum swung his right leg out, and he landed on the ground on his right foot, facing almost away from the forklift. As his right foot hit the ground, he heard a crack and felt a “pop” through his knee. He twisted and collapsed onto the ground with the forklift behind him. His left leg was on top of his right leg, and both were bent.
Immediately after the fall, Mr Wilson was unable to stand. Eventually, another employee came to borrow the forklift, saw Mr Wilson in distress, and obtained help for him. After some first aid treatment, Mr Wilson was conveyed to the Blackburn Clinic.
Mr Wilson did not return to work until 8 May 2001. On 5 April 2001, he attended at Sleepmaster’s premises, and there he spoke to Mr Fyfe, an employee of Sleepmaster. He showed Mr Fyfe the forklift. He said that Mr Fyfe rubbed his hand on the floor of the forklift and Mr Wilson told him that that was where his right foot had slipped. Mr Wilson may have told Mr Fyfe that the floor was slippery. He also pointed out the sun visor, attached to the roll bar, and said that it had made it difficult for him to get an appropriate grip on the roll bar. When Mr Wilson returned to work in May, he took photographs of the forklift, which were tendered in evidence. He said that the floor pan and the sun visor were in the same state and position as they had been at the time of the accident. In re-examination, he said he took the photographs on the advice of a WorkCover officer, whom he had contacted in the meantime.
In cross-examination, Mr Wilson was questioned about a form entitled “CJU Worker’s Insurance Register of Injuries Incidents and Near Misses”, dated 5 April 2001, which he signed in the presence of Mr Fyfe. Mr Wilson stated that he had filled out parts of the form, and Mr Fyfe had also filled out parts of it. In the part of the form filled out by Mr Fyfe, there was a section in which Mr Fyfe stated “Checked forklift, no faulty areas employee advised he was getting off forklift on correct side – left side”. Mr Wilson stated that he read that section, and was happy to sign the document. In re-examination, Mr Wilson stated that he only filled in the top parts of the form relating to his name, address, date of birth, age and the date and time of injury.
Mr Wilson, in cross-examination, confirmed that it was his usual practice to get out of the left side of the forklift, going backwards. He said that he did not know that it was common for forklift drivers to exit forwards. As part of his certificate of competency, he had not been taught how to alight from a forklift. He was cross-examined, in some detail, as to how the slip occurred. He denied the proposition put to him that, on his description of the incident, it was impossible for him to have fallen on his right foot facing away from the forklift. He explained how he was twisting and falling, before his right foot contacted the ground. He said that he had never been taught that he should do a “three point dismount” from a forklift. He denied that he was alighting from the forklift too quickly. He denied that he was under any pressure of time, and also denied that it was common practice for forklift drivers to dismount quickly from their vehicle. He agreed that he had not previously made any complaint that the visor had been attached to the roll bar of the forklift.
The only other witness called by the plaintiff on the issue of liability was Dr Leonard Cubitt, who is a mechanical engineer. Dr Cubitt had been requested by Mr Wilson’s solicitors to provide advice as to the practicability of covering the floor pan of the forklift with a non-slip surface, and of attaching a grab handle to the roll bar. He produced some non-slip material he had purchased from Toyota at a cost of $27.40. He stated that the labour cost of attaching that material to the floor of the forklift would be about $20. Dr Cubitt stated that the co-efficient of friction of the material, which he purchased from Toyota, was approximately twice the co-efficient of friction of the bare steel surface of the forklift. He also stated that it would cost approximately $100 to purchase, and attach, a grab handle to the roll bar of the forklift.
The defendant did not call any witness from Prolift, as to the supply and maintenance of the forklift. However, the defendant did call evidence from Mr Don Meikle, who lectures in structural and applied anatomy to the School of Exercise Science at the Australian Catholic University, and Mr Geoffrey Hosford, who teaches biomechanics at the Royal Melbourne Institute of Technology. Mr Meikle and Mr Hosford conduct a business called “Accident Analysis”. They jointly compiled a report which, subject to some objections, which I upheld, was tendered in evidence. Mr Meikle and Mr Hosford also gave evidence.
It is not necessary for me to summarise the report in detail, since only parts of it became relevant to the issues in the trial. The report noted that although the literature recommends a backward egress as the favoured method, nevertheless Accident Analysis considers that a forward egress is safer and preferable. In the section of the report written by Mr Meikle, there is a detailed analysis of “anatomical considerations”, which analysed in detail the behaviour of the shoulder, elbow, wrist, hand and fingers by an operator gripping either a handle or part of a roll bar. The main relevant point made in the report is that the aperture in the grab handle, which is attached to other forklifts, is rather small. If an operator egresses backwards, holding either the grab handle or the upright of the roll bar with his left hand, and rotates in a clockwise direction, there is a tendency for the fingers to uncoil with a progressive loss of power. If backward egress is conducted in haste, then there is a risk of the operator landing on the right leg while rotating, and thus causing injury to the knee.
The section of the report entitled “biomechanical considerations”, written by Mr Hosford, summarised three tests conducted by Mr Hosford on a surface equivalent to the surface of the forklift depicted in the photographs. The tests indicated a static co-efficient of 0.43, 0.44, and 0.47, with a mean static co-efficient of 0.45. Mr Hosford notes that according to Australian Standard AS4586, a co-efficient of friction of 0.35 to 0.44 constitutes a moderate risk of slipping, and a co-efficient of friction of 0.45 to 0.54 denotes a low risk of slippage. The report stated that the co-efficient levels detected by Mr Hosford indicated that the metal test surface “was relatively safe under normal circumstances”. Tests carried out using an anti-slip abrasive tape indicated a co-efficient of friction between 0.8 and 0.9, rendering it highly resistant to slippage.
Mr Hosford conducted a test on a subject using a forklift. That test utilised a slip panel, on which the subject placed his right foot. As the subject egressed from the left hand side of the forklift, grasping the upright of the roll bar, his foot displaced the slip panel to the right. The report states that the test demonstrated that, with such a manoeuvre, the right foot extended to the right side of the forklift, and could not be recovered before the subject fell to the floor onto his back. In such a circumstance, the subject would not have time to have placed his right foot on the ground, and twist it, to injure it.
That thesis was elaborated by Mr Meikle in his evidence in chief. Mr Meikle had access to the transcript of the evidence of Mr Wilson. In his evidence, Mr Meikle stated that if the operator lifted out of the seat, as described by Mr Wilson, pushing down with his right hand and pulling with his left hand, that movement would take him to the left. If he slipped, the muscles of the front of his trunk would contract as a reflex. In that position, the subject could not have time to retract his right foot, and thus to land on the right foot on the ground. Mr Meikle insisted that if the accident occurred as described by Mr Wilson, then Mr Wilson could not have slipped. For, if a slip had occurred, Mr Wilson’s centre of mass would have been well over to his left side. His left foot would have hit the intermediate step, and the body would have continued in his backward rotation, causing him to fall on his back.
The evidence of Mr Meikle was relied on by the defendant in support of a submission that the accident could not have occurred as described by Mr Wilson. Rather, it was contended, on behalf of the defendant, that Mr Wilson sustained his injury, because he alighted with too much haste from the cabin of the forklift, lost his balance as he placed his left foot on the intermediate step, and fell to the ground on his right leg while rotating.
In my view, the evidence of Mr Meikle, when subjected to cross-examination, did not bear out the thesis which he sought to advance. In answer to questions from myself, and, in particular, in cross-examination by Mr Philbrick SC, who appeared with Mr McTaggart for the plaintiff, Mr Meikle accepted that his hypothesis was subject to a number of assumptions and variables. He agreed that the angle at which Mr Wilson would have exited from the forklift would depend on a host of factors, including the position of his feet, his body, his body mass and the like. The angle at which he fell would also depend on the strength of his grip, and how complete it was. Mr Meikle agreed that, given that Mr Wilson stated that he held on to the upright of the roll bar, and his left foot caught on the intermediate step, he would have been at 90 degrees to the front to back axis of the machine when his hand grip became irretrievable. He stated that the amount of swivel achieved by Mr Wilson, before he fell, would depend, amongst other things, on whether his grip was complete or incomplete. Further, in respect of his argument that the right leg could not have retracted by the time Mr Wilson fell out of the cabin, he agreed in cross-examination that that proposition would depend on the length of the slip. He agreed that in the test set out in the joint report, the slip panel was set at 10 centimetres. The subject was not tested over a shorter length of slip. He stated that “the foot rarely travels more than 10 centimetres on the ground in a slip”. Mr Meikle, understandably, could not postulate how long the slip would have to be in order for the movement of the leg to the right to be irretrievable. He stated that it would depend on the friction co-efficient of the surfaces, and many other factors, and stated “there are so many measurements that it would be impossible to determine”. Thus, he accepted that there were many variables. He agreed that if the right leg had been recovered and landed under him with the degree of rotation that Mr Wilson described in his evidence, the result would be that he would have landed on his right leg which was still rotating, and he would have damaged it.
Thus Mr Meikle’s hypothesis was based on a number of assumptions relating to the length of the slip, the precise position and movements of Mr Wilson, the type of grip maintained by him, and many other variables. He accepted that, given such variables, it was possible that Mr Wilson did fall and injure himself in the way in which he described.
Mr Hosford, in evidence in chief, stated that if Mr Wilson’s left foot was on the intermediate step, then he might have been able to save himself, rather than falling backwards to the ground. In cross-examination, Mr Hosford also agreed that the proposition advanced in the report, as to how Mr Wilson fell, would depend on a number of variables, including: the degree to which the body was already out of the floor pan on the left; where he was holding the roll bar; whether he was holding the seat with his right hand; and how hard he was holding it. He accepted that if Mr Wilson’s left foot did come into contact with the intermediate step, and Mr Wilson had swung around with his left hand holding on to the roll bar, it was feasible that he could have twisted around and landed awkwardly on his right foot, thus injuring himself.
For those reasons, in my view, the evidence of Mr Hosford and Mr Meikle is insufficient to discredit the evidence of Mr Wilson, that he slipped shortly before he fell out of the forklift, and that that slip played a causative role in his fall. I found Mr Wilson to be an honest and reliable witness. He did not attempt to embellish his evidence as to how the accident occurred or, indeed, as to the progress and cause of his injury after it. He gave his evidence in an open and forthright manner, and I found him to be a witness of truth. I am satisfied, on the balance of probabilities, that the accident did occur in the manner described by him, namely, that as he was exiting on the left hand side of the forklift, with his left foot above the intermediate step, his right foot slipped. I accept that his left foot then came into contact with the intermediate step. Mr Wilson was still holding the upright of the roll bar with his left hand. That motion caused him to swivel in a clockwise direction, and thus to fall off the forklift with his right foot taking the force of the fall. Mr Wilson was rotating as he fell. As described by Mr Meikle, it is understandable that, when subjected to those forces, Mr Wilson’s knee was thus severely injured.
Submissions on liability
The question, then, is whether, in those circumstances, the plaintiff has established that Mr Wilson’s injury was caused by negligence of Prolift, or by breach by Prolift of regulation 605(2) of the Occupational Health and Safety (Plant) Regulations 1995 (“the Regulations”). Mr Thompson submitted that the plaintiff had failed to establish negligence or breach of statutory duty by Prolift. In particular, he submitted that it had not been shown that there was any failure by Prolift to inspect or maintain the forklift, as required by regulation 605(2). He drew my attention to clause 5.2 of the terms and conditions of the rental agreement between Prolift and Sleepmaster, which required Sleepmaster to notify Prolift of any damage to the equipment during the hiring. He further submitted that the plaintiff had failed to establish that the forklift was unsafe. Mr Hosford’s evidence was that the co-efficient of friction of the floor surface of the forklift fell within the low moderate range. There was no evidence that that level was below any relevant existing industry standard. He further submitted that Mr Wilson’s evidence did not show that the part of the floor pan of the forklift, covered by the “grey” substance, was slippery. There was no evidence of the co-efficient of friction of that part of the floor pan. Further, there was no evidence as to the precise position of the plaintiff’s foot when it slipped. In particular, there was no evidence whether Mr Wilson slipped on the grey non-slip material, or on another part of the floor pan.
Mr Thompson further submitted that there was no evidence that the absence of a grab bar played a causative role in the happening of the accident. The only evidence by Mr Wilson relating to that issue was that, at the time when his right foot landed on the ground, his left hand had become detached from the roll bar. Mr Meikle stated that the effect of a hand rotating around an object in a clockwise direction is to force the fingers open. Therefore it was immaterial whether Mr Wilson had been holding on to the roll bar or the grab bar. Mr Thompson submitted that there was no evidence that the presence of a grab bar would have prevented the accident to Mr Wilson.
In response, Mr Philbrick submitted that the plaintiff had established a breach by Prolift of regulation 605(2) of the Regulations. He submitted that the evidence disclosed that the non-slip surface attached to the floor pan had worn away to a remnant, and was as smooth as paper. The presence of that non-slip surface was an implied recognition by the supplier of the forklift that it was necessary, for the purposes of safety, for such a surface to be affixed to the floor pan. The remainder of the floor pan was a mixture of painted steel and rusted steel. Mr Hosford had recognised that the inconsistent nature of the floor, caused by the three types of surface, was a risk which should have been eliminated. Two of the three tests conducted by Mr Hosford revealed that the surface had a friction co-efficient which was in the range of moderate risk. Thus, pursuant to regulation 605(2), there was a risk of slipping on the floor pan, which, under that regulation, Prolift was obliged to eliminate. The evidence of Dr Cubitt showed that it would have been simple and practicable for Prolift to have eliminated the risk, by fixing an appropriate non-abrasive surface to the floor pan.
On the issue of negligence, Mr Philbrick drew my attention to clause 4.1 of the hiring agreement, which required Prolift, during the rental period, to repair and maintain the forklift. He submitted that the forklift was supplied by Prolift to Sleepmaster in a poorly maintained condition, and that Prolift had failed to comply with its obligation to maintain it in the period before the accident.
On the issue relating to the absence of the grab bar, Mr Philbrick referred to the section of the joint report of Mr Meikle and Mr Hosford, which noted that the WorkSafe Guidelines included purchasing or retro-fitting forklifts with good footing, anti-slip surfaces and grab handles. He also noted the evidence of Mr Meikle, in cross-examination, that if there was a minor slippage, and if there had been a grab handle, Mr Wilson might have been able to steady himself. He stated that it was possible that the presence of a proper grip handle might have assisted, although it depended on the extent to which Mr Wilson’s hand slipped down the grab handle to the narrower part of the aperture. Mr Philbrick submitted that Mr Wilson was an experienced forklift driver, and it is likely that he would have used a grip handle if it had been in place. The fact that, instead of there being a grip handle, a sun visor covered the roll bar, exacerbated the danger to the forklift operator. Taken together, the moderate risk of slipping on the surface of the forklift, the absence of the grab bar, and the presence of the sun visor covering the roll bar, presented a risk of a fall to Mr Wilson. That risk took place in an industrial environment, where the forklift operator was working at height. In those circumstances, Mr Philbrick submitted that I should accept that the forklift was unsafe, so that Prolift had failed to comply with a duty of care on it in supplying the forklift to Sleepmaster.
Conclusions on liability
Regulation 605(2) of the Regulations required Prolift to ensure that the forklift was inspected and maintained, and to ensure that the risk arising from the use of it was eliminated or, so far as practicable, reduced. Mr Thompson correctly accepted that a breach of that regulation may give rise to a cause of action based on breach of statutory duty. He further accepted that Prolift, in supplying the forklift to Sleepmaster, owed potential users of it, including Mr Wilson, a duty to take reasonable care to prevent injury to him, and to protect him from any reasonable foreseeable risk of injury arising out of the use by him of the forklift.
I am satisfied that the plaintiff has established that the forklift was in an unsafe condition when it was supplied by Prolift to Sleepmaster, and throughout the period of the hiring before the accident. Accordingly, I am satisfied that Prolift breached its duty of care to Mr Wilson, and also the duty imposed on it by regulation 605(2). In particular, I am satisfied that the floor pan of the forklift was unsafe throughout the period of the hiring of the forklift to Sleepmaster, leading up to the date on which the accident occurred. As depicted in the photographs tendered in evidence, and described by Mr Wilson, part of the surface of the floor pan had been covered by non-slip material, which had worn to such a state that it no longer provided an abrasive surface to those using it. Mr Wilson described that part of the surface of the floor pan as being “like paper”. Mr Thompson submitted that Mr Wilson was not, in that way, stating that it was smooth. I disagree with that contention. It is clear, from the context in which Mr Wilson was describing the surface of the floor pan, that he was stating that the grey area in the middle of it, covered by the slip proof mat, was smooth and no longer abrasive. The fact that the surface had been covered, in part, by a non-slip mat, is, I consider, evidence of a proper recognition by the supplier that, in order to protect operators of a forklift from the danger of slipping and falling, it is necessary for the floor to have an abrasive surface. Further, as pointed out by Mr Philbrick, the WorkSafe Guidelines, referred to in the joint report of Mr Meikle and Mr Hosford, recommended the use of an abrasive non-slip surface in forklifts. Mr Hosford conducted tests on new abrasive material of the kind which had been placed on the floor pan of the forklift. He elicited that the co-efficient of friction of that substance was between 0.8 and .9. Accordingly, the type of floor surface originally used in the forklift, and recommended by the WorkSafe Guidelines, was twice as slip resistant as the surface of the forklift, at the time at which Mr Wilson fell.
In addition, part of the floor pan was covered by the worn abrasive mat, part of it was rusted, and part of it was bare steel covered with some paint. Mr Hosford agreed that, in that way, there would have been three areas of the floor pan with different co-efficients of friction. He agreed, in cross-examination, that in that way the floor pan was unsafe, because the operator did not know what to expect when he was putting his foot down.
It is important to bear in mind that the forklift, by its nature, was designed to be used in an industrial context. It was also foreseeable, by Prolift, that operators would mount, and alight from, the forklift on a number of occasions in the course of one day. Prolift would thus foresee that, as a result of over familiarity with that procedure, an operator might become somewhat “casual” when mounting or dismounting from a forklift. In an industrial setting, grease and other substances can be introduced into the surface of the floor pan. As pointed out by Mr Philbrick, the operator is working at a height above the floor, when alighting from the forklift. The co-efficient of friction of the surface of the floor pan presented a risk which, according to the Australian Standards, was on the cusp of the category of a moderate risk. Dr Cubitt’s evidence establishes that it would have been a simple, and inexpensive, matter for Prolift to have purchased and affixed an appropriate abrasive substance to the floor pan. I am satisfied that the failure of Prolift to take that simple step, of its own, was a breach by it of its duty of care to operators of the forklift, including Mr Wilson, and was also a breach by it of its duty to Mr Wilson under regulation 605(2).
The failure of Prolift to ensure that the surface of the floor pan was safe was exacerbated by the absence of a grip handle affixed to the roll bar of the forklift. The upright of the roll bar had holes designed for the fitting of a grip bar. Such a device could have been easily, and inexpensively, fitted to the forklift. Mr Meikle, in cross-examination, agreed that a proper grip around a grip handle might have assisted Mr Wilson, if there had been a minor slip. I am satisfied that a grab handle would have provided a better grip to Mr Wilson, than the upright of the forklift, when alighting from the forklift. In addition, the upright of the roll bar of the forklift was covered by a sun visor, which made it more difficult for Mr Wilson to achieve a proper grip on it. He described how, because of the presence of the sun visor, he was unable to wrap his thumb around the roll bar, but, instead, his thumb was left pointing upwards. Mr Meikle, in cross-examination, when asked if a grab handle would have assisted to steady Mr Wilson, stated that that would only be the case “if the thumb were engaged as well”. In my view, that evidence, and common sense, satisfy me that the dangerous state of the forklift, constituted by the condition of the floor pan, was exacerbated by the lack of a proper grip handle attached to the upright of the roll bar.
Mr Thompson submitted that if I came to the conclusion that the condition of the forklift was unsafe, nevertheless the plaintiff had failed to establish that the condition of the forklift was a relevant cause of Mr Wilson’s accident. In particular, he submitted that the evidence does not establish on what part of the floor pan Mr Wilson slipped. Thus, he submitted, it is not possible to postulate that if a part of the floor pan had been covered with abrasive material, that would have prevented Mr Wilson from slipping and falling.
Contrary to Mr Thompson’s submission, I am satisfied that the evidence establishes, on the balance of probabilities, a relevant causal nexus between the negligence, and breach of statutory regulation, by Prolift, and Mr Wilson’s accident. First, as I have already stated, the surface of the floor pan, as a whole, was unsafe. In particular, the variegated state of the floor, giving rise to different co-efficients of friction, rendered it hazardous. Further, while it would seem that only part of the floor pan had been covered by the non-slip mat, in my view Prolift should have had a substantial part of it covered with a proper abrasive material, in order to render it safe. I note that the WorkSafe Guidelines, referred to in the report of Mr Meikle and Mr Hosford, do not limit the part of the floor pan which should be covered with anti-slip surface. Further, for reasons I have already set out, I am satisfied that the absence of a grip handle played a causative role in Mr Wilson’s fall. The photographs of a forklift with a grab handle attached to it, contained in the report of Mr Meikle and Mr Hosford, clearly demonstrate, in my view, that such a handle would have provided a far more effective grip to Mr Wilson than the upright of the roll bar, particularly in circumstances in which the roll bar was covered by a sun visor. I am satisfied that Mr Wilson slipped because the floor surface of the floor pan was not sufficiently abrasive. He was then holding on to an upright, which did not afford to him a grip which would have been as effective if he had been holding on to a grip handle. I accept Mr Wilson’s evidence that, if there had been a grab handle in place, he would have used it. In those circumstances I am satisfied, on the balance of probabilities, that the unsafe condition of the forklift contributed materially to Mr Wilson’s fall, and injury.
Accordingly, for the reasons which I have set out above, I consider that the injury to Mr Wilson was caused under circumstances which created a legal liability in Prolift to pay damages in respect of that injury. Consequently, s 138(3) of the Act renders Prolift liable to pay to the plaintiff, by way of indemnity, the lesser of the amount of compensation paid or payable to Mr Wilson under the Act in respect of the injury, or the amount calculated in accordance with the formula prescribed by paragraph (b) of that subsection.
The application of that formula involves (inter alia) a determination of the extent, expressed as a percentage, whereby Prolift’s act, default or negligence caused or contributed to the death or injury. Mr Thompson stated that he was not submitting that there should be a finding of any contributory negligence on behalf of Mr Wilson. On the facts of the case, I agree with that concession. He submitted, however, that I should be satisfied that Sleepmaster would have borne the principal share of the responsibility for the injury to Mr Wilson. As Mr Wilson’s employer, Sleepmaster owed him duties under Part 7 of the Regulations, which were tendered on behalf of the defendant. Those duties included: a duty of the employer to ensure that all hazards associated with the use of plant are identified (regulation 702(1)); a duty to undertake a risk assessment in respect of any such hazard (regulation 703); a duty to ensure that any risk associated with the plant is either eliminated or reduced as far as practicable (regulation 704); and a duty to maintain and inspect the plant to eliminate risks associated with it (regulation 708). Mr Thompson further pointed out that, as Mr Wilson’s employer, Sleepmaster owed him non-delegable common law duties. Under the rental agreement with Prolift, Sleepmaster was obliged to carry out regular inspections of the plant. In those circumstances, Mr Thompson submitted that I should make a finding that the extent of Sleepmaster’s responsibility for the injury to Mr Wilson, expressed as a percentage, should be 75 percent.
In response, Mr Philbrick contended that the majority of the responsibility for Mr Wilson’s injury rested with Prolift. He accepted that, at common law, there had been a breach of duty of care by Sleepmaster to Mr Wilson. The forklift had been supplied by Prolift, and it was Prolift’s duty to maintain it. Accordingly, he submitted that Prolift should bear 75 percent of the responsibility for Mr Wilson’s injury.
In my view, in the circumstances of this case, Sleepmaster, not Prolift, should bear the principal responsibility for the injury to Mr Wilson. Sleepmaster, as the employer of Mr Wilson, owed him a non-delegable duty of care. That duty included the requirement that it provide safe plant and equipment to Mr Wilson. Sleepmaster controlled Mr Wilson’s working environment, the work he was to perform, the type of plant which he was to use, and the condition of that plant. Sleepmaster was under no obligation to accept the forklift, in a defective state, from Prolift. Further, under its hiring agreement with Prolift, it could have required Prolift to affix a non-slip surface to the floor pan of the forklift, and an appropriate grip handle to the roll bar of it. Mr Wilson stated that Sleepmaster’s employees, on occasions, would mount and dismount a forklift some twenty times per day. In light of the state of the forklift, there was a real potential for accidents, of the type sustained by Mr Wilson, to occur. While, as I have found, there was a breach by Prolift of statutory regulation, and its common law duty of care, in my view the culpability of Sleepmaster, in its dereliction of its non-delegable common law duty of care to its employee, and in breach of the regulations binding on it, was substantially more significant. In those circumstances, pursuant to s 24(2) of the Wrongs Act 1958, it would be appropriate to apportion 70 percent of the responsibility for Mr Wilson’s injury to Sleepmaster. Thus, for the purposes of factor X in the formula set out in s 138(3)(b) of the Act, I consider that the percentage of responsibility to be attached to Prolift is 30 percent.
Quantum
The amount which a third party, in the position of Prolift, is required to pay by indemnity under s 138(1) of the Act, is prescribed by subsection (3) which states:
“(3) The amount which a third party is required to pay as indemnity under subsection (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, were it not for the provisions of this Act, the Transport Accident Act 1986 and Parts VB, VBA and X of the Wrongs Act 1958, in accordance with the formula—
[A - (B + C)] x
where—
X is the extent, expressed as a percentage, whereby the third party's act, default or negligence caused or contributed to the injury or death;
A is the amount of damages (disregarding the extent, if any, whereby any other person's act, default or negligence caused or contributed to the injury or death) 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;
B is the amount recovered or recoverable by the Authority, the self-insurer or the employer under section 137 from the Transport Accident Commission (otherwise than under a settlement);
C is 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.”
It is clear that the determination of factor A, in the formula prescribed by s 138(3)(b), is ascertained by a hypothetical assessment of damages of the injured worker against the third party. The formula thus applied yields the “ceiling” to the indemnity for which the third party is liable.[1] Thus, it is necessary, in order to determine the quantum of the indemnity payable by Prolift in this case, to notionally assess the damages which would have been payable by Prolift to Mr Wilson at common law.
[1]Esso Australia Limited v Victorian WorkCover Authority & Anor (2000) 1 VR 246; [2000] VSCA 74, [16] (Winneke P); on appeal, Victorian WorkCover Authority v Esso Australia Limited (2001) 207 CLR 520, 530 [20]; [2001] 8 CA 53; Victorian WorkCover Authority v Anderson [2000] VSC 461, [17] (Ashley J).
The phrase “amount of compensation paid or payable” in subsection (3)(a) may present some difficulty of statutory construction. However, the courts have consistently construed and applied s 138(3), by making an order for indemnity of the amounts paid by VWA to the injured worker, and a declaration that the third party indemnify VWA in respect of any amounts accrued and payable by VWA, subject to the “ceiling” contained in the formula prescribed in subsection (3)(b). That construction has the support of dicta of appellate courts.[2] Mr Thompson acknowledged that I was bound by law to follow those authorities. However, he reserved the right of his client to argue, in a higher place, an alternative construction of s 138(3)(a), namely that the words “paid” or “payable” mean “paid to the present or payable in the future”.
[2]Esso Petroleum Limited v Victorian WorkCover Authority & Anor [2000] VSCA 74; (2000) 1 VR 246, 251 to 252 [16]-[17] (Winneke P); on appeal, Victorian WorkCover Authority & Anor v Esso Petroleum Limited [2001] 8 CA 53; (2001) 207 CLR 520, 529 to 530 [20] (Gleeson CJ, Gummow, Hayne and Callinan JJ); Victorian WorkCover Authority v Kenman Kandy Pty Ltd [2002] VSCA 190; (2002) 6 VR 666, 680 to 681 [41] (Batt and Vincent JJA).
The history of Mr Wilson’s injury is complex, but uncontroversial. As I have already stated, shortly after his accident, Mr Wilson was conveyed to the Blackburn Clinic. There he was attended by Dr Robert Dunn, a general practitioner, who has continued to care for Mr Wilson’s injury in the intervening years. Dr Dunn referred Mr Wilson immediately to Mr Bruce Love, an orthopaedic surgeon. Mr Love examined Mr Wilson on 4 April 2001, and diagnosed an internal derangement of the right knee. He performed an arthroscopy on 18 April 2001. However, following that procedure, Mr Wilson continued to suffer ongoing pain. His knee was swollen and he was on crutches. He was having difficulty sleeping. In the meantime, a representative of Work Solutions contacted him, and arranged for Mr Wilson to have part time work with Sleepmaster, working two days per week doing light duties. He returned to work on 7 May 2001, while still on crutches. After his return to work, Sleepmaster attempted to increase the number of hours per day worked by Mr Wilson, and to upgrade his duties. However, Mr Wilson found it difficult to cope and he returned to working shorter hours.
Mr Wilson continued to suffer from pain and disability in the knee. Mr Love referred him to Mr Grosbard, another orthopaedic surgeon, for a second opinion. As a result, Mr Love carried out further surgery, comprising a patella re-alignment procedure, on 11 July 2001. Mr Wilson was in hospital for one week after that operation. His leg was placed in a Zimmer splint, which extended from the top of his thigh to his calf. He was instructed to remove it at night, but when he took it off, his leg suffered unpleasant sensations, and commenced to swell. Accordingly, he left the splint on all the time.
Mr Wilson stated that his leg condition was deteriorating, rather than improving, during that time. He saw Mr Love in early October 2001, by which time his leg was very painful and swelling to almost twice its size. Mr Love organised for Mr Wilson to be admitted to the Donvale Hospital for intensive rehabilitation. Mr Wilson remained there as an in-patient for a period of three weeks, during which he received physiotherapy, occupational therapy and hydrotherapy. Despite that regime, he experienced little improvement in his symptoms. He was discharged on crutches for out-patient care. In December 2001, Mr Wilson commenced attending the Victoria Rehabilitation Centre, undertaking physiotherapy, hydrotherapy, exercises and occupational therapy. However, his leg did not improve. It became more painful and more swollen. In January 2002 he attended Box Hill Hospital Emergency Department, because of the level of pain and swelling that he was then suffering in the leg. After his discharge he was referred to Mr Love. In the meantime, Dr Harry Widjaja, of the Victorian Rehabilitation Centre, attended Mr Wilson. Dr Widjaja felt that there was a possibility that Mr Wilson might have complex regional pain syndrome type 1 (“reflex sympathetic dystrophy”). Therefore, he therefore referred Mr Wilson to Dr Peter Blombery, a vascular physician. Dr Blombery organised an ultrasound. He noted the features of ongoing pain, significant swelling, and changes in temperature and colour, to the leg. Dr Blombery made a diagnosis of complex regional pain syndrome type 1.
Dr Blombery initially prescribed medication for Mr Wilson, but to no effect. He then organised for Mr Wilson, successively, to undergo a phentolamine infusion (in September 2002), an epidural infusion of Clonidine and Morphine (between 11 and 17 November 2002), and an intravenous lignocaine ketamine infusion (between 2 and 6 April 2003). None of those treatments assisted Mr Wilson. He hallucinated badly as a consequence of the high dose of ketamine in the third treatment. Mr Wilson stated that after the three treatments prescribed by Dr Blombery, his leg was “a fair bit worse”. He produced, in evidence, a series of photographs of his leg, which depict significant swelling of the right lower limb at that time. He stated that, by that time, his leg was useless, it was very swollen, and extremely painful. Eventually, after obtaining a psychiatric opinion from Dr Tobie Sacks, Dr Blombery referred Mr Wilson to Mr Campbell Miles, a vascular surgeon, for an above knee amputation. Mr Miles performed that operation on 20 May 2003 at The Avenue Hospital.
Following the operation, the plaintiff’s stump healed satisfactorily, and, initially, he felt almost no pain. After he was discharged from The Avenue Hospital, he was admitted to Caulfield General Medical Centre, where he remained as an in-patient for six weeks. Subsequent to his discharge as an in-patient, Mr Wilson continued to attend that centre for rehabilitation, with a view to being prepared for transition to a prosthesis. However, he had problems with his first prosthesis, and found that he could no longer wear it. Some attempts were made to modify the prosthesis, without success. When he wore the prosthesis, he suffered a lot of pain at the base of the stump. In addition, he found that the prosthesis was too heavy. He was then fitted with a second prosthesis at the Caulfield General Medical Centre. However, that prosthesis was also too heavy, and caused Mr Wilson pain when he wore it. He suffered phantom pain, and “zapping” pain. In addition, he commenced to have problems with a displacement of his hip, as a result of a flexion contracture he developed. That condition resulted from the plaintiff not using his prosthesis for a long period of time. In December 2003, Dr Nunn of the Caulfield General Medical Centre, referred Mr Wilson to Mr Michael Leung, a plastic surgeon, for revision of his stump. An MRI scan was performed which was consistent with Mr Leung’s clinical findings of a sciatic nerve neuroma. Accordingly, Mr Leung operated on Mr Wilson on 7 June 2004. He performed an ostectomy of the femur. The sciatic nerve neuroma was dissected out and transposed into the femur. After Mr Wilson was discharged from hospital, the wound contracted an infection, which cleared up after a few months. Mr Wilson made further attempts to wear the second prosthesis, but could only tolerate it for short periods.
Mr Wilson then returned to Mr Leung in July 2005. Mr Leung carried out a further operation, in which he re-sected the femur further, re-explored the sciatic nerve, transposed it, and buried it more proximately in the femur. Following that operation, Mr Wilson’s stump became infected with staphylococcus aureus. As a result, he underwent a course of intravenous antibiotic treatment at home, using a device fitted to him for that purpose.
In about 2006, the staff at Caulfield General Medical Centre attempted to fashion a third prosthesis. It was designed in a manner which would avoid irritation of the base of the stump. Mr Wilson is able to tolerate use of that prosthesis a lot better than the first two. However, the design of the prosthesis is such that it causes him sciatic pains higher in the stump. In addition, because of the positioning of the socket, Mr Wilson suffers a lot of pressure on his back while he is wearing it. Thus, he is unable to wear the prosthesis for long periods of time. Although the prosthesis has been further modified, he still has difficulty walking with it.
In 2006, Mr Wilson’s medical advisers also considered whether he would be a suitable candidate for a procedure known as osteo-integration. That procedure is quite novel in Australia. Indeed, only two such procedures have hitherto been carried out in this country. It involves two procedures carried out at six monthly intervals. The first procedure involves insertion of a titanium fixture into the femur. The second procedure involves plastic surgery, including screwing a prosthesis into the implant. Thereafter, the weights attached to the prosthesis are progressively increased.
One of the obstacles to such a procedure consists of the fixed flexion contracture of the right hip of Mr Wilson. He has been given regular physiotherapy by Mr Simon Anning, a physiotherapist, to correct that deformity. When Mr Wilson initially attended on Mr Anning he had a 30 degree fixed flexion deformity. Thereafter, his condition improved substantially. However, in recent times it has regressed, so that in February 2009 Mr Anning assessed that he had a 40 degree fixed flexion deformity.
In summary, Mr Wilson continues to have significant ongoing problems with his right leg. He is unable to tolerate the prosthesis, with which he has been fitted, other than for short periods of time. He does not use a wheelchair, because the house in which he is living is not suitable for it. In addition, the wheelchair is too heavy for him to lift into his vehicle. He is confined to using crutches. He finds he can walk for about 200 metres, but he tends to suffer pain in the shoulders, back, arms and hands as a result. Mr Leung, who gave evidence, considered that the problem with the prosthesis is not related to the neuroma, which he treated, but, rather, to pressure exerted by the fitting of the prosthesis to the sciatic nerve in the upper part of the thigh. Accordingly, Mr Leung has referred Mr Wilson back to Dr Chou, head of the Amputee Unit at Caulfield Hospital, for further assessment.
In cross-examination, Mr Thompson SC, who appears with Ms Harris for the defendant, explored with some of the doctors the question whether the plaintiff is a suitable candidate for osteo-integration. I am satisfied on the balance of probabilities that that procedure is not a current viable option for the plaintiff, nor is it likely to be a viable option at least in the medium term. It would seem that there are two main obstacles to such a procedure being carried out on Mr Wilson. First, it is not possible to successfully fit and use the prosthesis inserted by osteo-integration in a patient who has a hip flexion deformity in excess of about 25 degrees to 30 degrees. Mr Wilson seems to have a persistent deformity, which currently is well in excess of that range. Secondly, Dr Nunn stated that in order to be a suitable candidate the patient needs to be in sound physical and psychological condition. It is clear from the evidence of Mr Wilson’s father, and also Dr Lester Walton, the psychiatrist, that it is unlikely that the plaintiff is currently in a fit state for such complex medical procedures. In this connection Dr Walton, who saw Mr Wilson on 23 February 2009, expressed the view that Mr Wilson has a chronic major depressive disorder, with some post-traumatic features. Dr Jager, who examined Mr Wilson in November 2007, made a similar diagnosis. In addition, Dr Walton elicited a number of features of anxiety. I gained the impression from Mr Wilson, during his evidence, that he is reluctant to subject himself to the rigorous medical procedures involved in osteo-integration. Mr Wilson’s attitude is understandable, given the most unfortunate progression of his condition, and the fact that he has had to undergo a significant number of surgical and medical procedures thus far. It is to be hoped that, at some stage, Mr Wilson may be able to undergo the osteo-integration process, which, if successful, will greatly improve his quality of life. However, for the purposes of the assessment which I am required to undertake, I am satisfied on the balance of probabilities, on the evidence before me, that it is unlikely that Mr Wilson will undergo such a procedure, at least in the short to medium term.
In light of that evidence, it is necessary for me to make a finding in respect of factor A of the formula prescribed in s 131(3)(b) of the Act. That factor constitutes the amount of damages (disregarding the extent to which Sleepmaster’s negligence contributed to Mr Wilson’s injury), for which Prolift would have been liable to pay in respect of Mr Wilson’s injury. That factor, in essence, requires me to assess the amount of damages which would have been payable, at common law, by Prolift to Mr Wilson. It is useful to consider this part of the equation by reference to six heads of damages addressed by the parties, namely:
(1)Past medical expenses.
(2)General damages.
(3)Past loss of earnings (including superannuation).
(4)Future loss of earning capacity (including superannuation).
(5)Past Griffiths v Kirkemeyer[3] damages.
(6)Cost of future care.
[3](1977) 139 CLR 161.
Past medical expenses
The parties have agreed the amount of damages which would have been awarded to Mr Wilson by way of past medical expenses in the sum of $181,952 to 10 March 2009.
General damages
Mr Philbrick submitted to me that general damages should be assessed in the sum of $450,000. Mr Thompson submitted that, at the most, general damages should be assessed at $400,000.
The history of Mr Wilson’s injury, and the medical and surgical interventions which have taken place in intervening years, is eloquent testimony of Mr Wilson’s past pain, suffering and loss of enjoyment of life. As Mr Philbrick correctly pointed out, the fact that he was driven to such radical surgery, involving amputation of his right leg above the knee, is a dramatic measure of the amount of pain and suffering to which he had been subjected before that operation occurred. Although that procedure alleviated the source of the pain, Mr Wilson has continued to suffer problems which I have already summarised. He is now in a position, some eight years after his accident, of finding himself unable to use a prosthesis. He uses crutches for ambulation. He can only walk limited distances with crutches, because of pain to his shoulders, back, arms and hands. In large measure he has become a recluse. His daily life is confined to lying on the couch, and from time to time venturing outdoors to have a cigarette. Substantially, his only company is his dog, and his father, who himself suffers from ill-health. The psychiatric evidence is unanimous that he suffers from major depression. That psychiatric condition, caused by his injury, is a substantial obstacle to further procedures which might enable Mr Wilson to gain greater mobility, including osteo-integration. He continues to suffer pain in the stump after wearing his prosthesis, or sitting down for a long period of time. He suffers aching in the back of his thigh and back when he has been sitting for some time. He can only drive a car for 20 minutes. His sleep is broken, and he is often up during the night. Mr Wilson stated that he is always drained physically and mentally because of his lack of sleep. He states that he has had “dark thoughts”, and has contemplated “ending everything”. He is substantially reliant on his elderly and ill father to carry out basic domestic tasks for him.
Mr Dennis Wilson, his father, gave evidence. I was impressed with Mr Dennis Wilson as a witness. He told me that before the injury, his son enjoyed life to the full. He was easygoing, had a lot of friends and was very sociable. John Wilson played competitive cricket and football, and had been a boundary umpire. He was particularly adept at fixing motor vehicles, and had an ambition, one day, to go into a business involving buying and renovating vehicles. John Wilson used to carry out a number of the household tasks, including gardening, cleaning the gutters, and some domestic chores. Mr Dennis Wilson described how since the accident his son has become withdrawn and depressed. He related how, during the night, he regularly hears his son moving about the house, because he cannot sleep or get comfortable. He confirmed that John Wilson suffers pain in his shoulders when he uses a manual wheelchair for more than 200 metres. He has become concerned that his son may one day bring to fruition the dark thoughts which he has already been contemplating.
It is common ground that, in light of that evidence, a court would award Mr Wilson a significant amount of general damages to reflect his past and future pain, suffering and loss of enjoyment of life. The amounts referred to by both counsel are, in my view, within an appropriate “range” of general damages. However, given the extreme nature of Mr Wilson’s condition, and the bleak forecast for his future, I consider that an assessment of general damages of $450,000 to be fair and reasonable.
Past loss of earnings (including superannuation)
Mr Philbrick’s primary submission was that I should assess damages for past loss of earnings, and indeed also for future economic loss, based on the comparable earnings of a forklift driver. On that basis, damages for past economic loss, comprising earnings and employer funded superannuation, amount to $320,173. Alternatively, the plaintiff claims damages for past economic loss, and loss of future earning capacity, on the basis of the earnings of an employee performing comparable duties to those undertaken by Mr Wilson before his accident. On that basis, damages for past economic loss would be calculated in the sum of $279,669. In response, Mr Thompson submitted that the appropriate basis, upon which to assess past and future economic loss, is by reference to the earnings of an employee undertaking comparable duties to those performed by Mr Wilson before the accident.
In my view, the approach for which the defendant contends is correct. Mr Wilson had not worked full time as a forklift driver during the decade in which he had been employed before the accident. For most of that period, he had been employed by Sportscraft as a machinist. As I have already stated, he obtained a forklift driver’s learner’s permit, and subsequently a forklift driver’s licence, in order to undertake some of the duties required of him in that employment. After he left Sportscraft, he worked for six months with Fashion Club Wear as a goods dispatcher. He did not drive a forklift during that time. His employment with Sleepmaster was in the capacity of a machinist. Although his duties involved him driving forklifts, he was not specifically employed as a forklift driver. While it is possible that, in the course of time, Mr Wilson may have graduated to becoming a full time forklift driver, the evidence is not sufficient to satisfy me, on the balance of probabilities, that that is likely to have occurred. Accordingly, I consider that the appropriate basis upon which to calculate damages for past loss of earnings, and loss of future earning capacity, is by reference to the duties of employees performing comparable duties to those undertaken by Mr Wilson at the time of the accident. As I stated, on that basis, Mr Wilson’s damages for past loss of earnings and loss of earning capacity (including employer funded superannuation) are calculated in the sum of $279,669.
Future loss of earnings (including superannuation)
In assessing damages for the loss of future earning capacity (including employer funded superannuation), the main issue which I need to determine is whether such damages should be calculated on the basis that Mr Wilson would have retired at the age of 60, or at the age of 65. Mr Thompson submitted that on the evidence of the actuary, Mr Wilson was entitled to withdraw his superannuation at the preservation age of 60. On the evidence, Mr Wilson was not likely to work in a desk job undertaking clerical work. Rather, it is probable that he would always have been involved in hard manual work. Therefore, he submitted, it was likely that Mr Wilson would retire at the age of 60, and thereafter live off his superannuation until he was entitled to his pension. In response Mr Philbrick submitted that, based on the figures contained in the actuary’s report, the amount of superannuation to which Mr Thompson would become entitled at the age of 60 would be insufficient to sustain him until he was entitled to receive a pension at the age of 65 years. Therefore, he submitted that it is more likely that Mr Wilson would have continued to work until he reached the age of 65.
It is, of course, never easy to postulate, in respect of a 35 year old man, the age at which it is likely he might have retired, if not for the intervening injury. However, I consider that the matters referred to by Mr Philbrick are persuasive. Before he was injured, Mr Wilson was fit. He had a history of regular employment, other than for one period when he was off work between jobs. On the balance of probabilities I accept that it is likely that he would have worked to the age of 65, rather than the age of 60, if he had not sustained his injury.
Mr Thompson submitted that I should apply a discount at the rate of 20 percent to allow for vicissitudes. He submitted that there were particular factors in this case, apart from the ordinary vicissitudes, which justified the higher than normal percentage being utilised. Among them, he referred to health matters identified by Dr Walton, and also the possibility that, at some time in the future, Mr Wilson might be able to undergo a successful osteo-integration procedure. Mr Philbrick accepted that the appropriate discount rate for vicissitudes in this case is 20 percent. In my view, that concession by Mr Philbrick is realistic. Accordingly, I shall apply it in calculating damages for loss of future earning capacity, and also for calculating damages for future care.
Thus, utilising a 20 percent discount rate, based on a retirement age of 65 years, and based on the earnings of employees performing comparable duties as Mr Wilson at the time of the accident, damages for future economic loss (including employer funded superannuation) are calculated in the sum of $585,064.
Past Griffiths v Kirkemeyer damages
Mr Philbrick submitted that I should assess past Griffiths v Kirkemeyer damages based on gratuitous care given by Mr Dennis Wilson to John Wilson for four hours per week from 10 July 2001. During the period between that date and the current date, some 20 weeks should be deducted, during which Mr John Wilson was in hospital, and did not require assistance from his father. Further, he submitted that a commercial rate of $30 per hour should be applied in calculating the relevant damages.
Mr Thompson agreed that the plaintiff had established that Mr Wilson would have been entitled to Griffiths v Kirkemeyer damages for the period from 10 July 2001 until the present date, excluding 20 weeks. However, he submitted that I should award damages on the basis of the Victoria WorkCover Authority prescribed rate of $20 per hour. He agreed that if, contrary to his submission, I were to assess Griffiths v Kirkemeyer damages on the commercial rate, the applicable such rate is $30 per hour.
In final address, Mr Thompson did not contest the proposition of the evidence established that Mr Dennis Wilson had, on average, provided four hours assistance to John Wilson over the last eight years since his accident. In my view, the evidence amply supports a finding that Mr Dennis Wilson has provided at least that amount of assistance to his son. Mr John Wilson gave evidence that, before the accident, he carried out a number of tasks around the house, including gardening and cleaning out the gutters, and general maintenance. He used to do his own laundry, and could prepare some of his own meals. He also used to assist his father with the shopping for the house. Since the accident, John Wilson stated that he has not been able to do shopping, prepare meals, clean the bathroom or use a broom. He can only put his clothes in the washing machine. He cannot stand to use a vacuum cleaner, but he does use it while he is sitting down. He stated that his father does most of the care for him, including preparing meals, cleaning and shopping. John Wilson only takes a bath if his father is home, because he is scared of having a fall. The gravamen of John Wilson’s evidence is that he is substantially, if not almost wholly, dependent on his father for his home care. He estimated that his father has spent about four hours per day, on average, in providing that care. In cross-examination, he adhered to that estimate. He reiterated that his father does the cleaning, makes his bed, makes his coffees and drinks through the day, prepares his lunch, and purchases items which he needs from the shop.
In this connection, Mr John Wilson’s evidence was, I consider, amply supported by the evidence of his father, Dennis Wilson. I have already stated that I regarded Dennis Wilson as an honest and impressive witness. He is clearly dedicated to the care of his son. He confirmed that, before the accident John Wilson did a lot of gardening, and that he carried out a number of household chores. Since the accident, Dennis Wilson does the cleaning, and does John Wilson’s laundry. He also cleans the bathroom after John Wilson has had a bath. It is hard for John Wilson to get in and out of the bath, and so the bathroom needs to be cleaned after he has used it. Dennis Wilson does the shopping, prepares the meals and fetches drinks for him. He hangs out his clothes on the line. Dennis Wilson stated that although the amount of work which he carried out for his son is variable, on average he spends four hours per day doing it.
Based on that evidence, I accept that Dennis Wilson has provided gratuitous care for John Wilson for an average of four hours per day since 10 July 2001, except for his various periods of hospitalisation, which, it is agreed, occupied a total of approximately 20 weeks. The principal contest between the parties concerns the applicable rate which I should apply in awarding Griffiths v Kirkemeyer damages. Mr Thompson submitted that the appropriate rate is that prescribed by the VWA Guidelines for attendant carers, which is lower than the current market rate. He submitted that an average of that rate over the last eight years should be $20 per hour.
In my view, the submissions by Mr Philbrick are correct. In Van Gervan v Fenton[4] the High Court held that, generally, the appropriate measure of damages, in this category, is by reference to the market cost of them. While the VWA Guidelines may exert some competitive pressure on the market, nonetheless it is agreed between the parties that the average market rate for care, during the period in question, was $30 per hour. It is therefore appropriate that that rate is adopted in calculating past Griffiths v Kirkemeyer damages. Based on those considerations, those damages, calculated at the rate of $30 per hour on the basis of 28 hours over a period of 383 weeks, totals $321,720.
[4](1992) 175 CLR 327, 333 to 334 (Mason CJ, Toohey J and McHugh J), 341 (Brennan J), 349 (Gaudron J); see also Grincelis v House (2000) 201 CLR 321, 327 [10].
Future care and needs
Ms Leanne Healy, an occupational therapist, gave evidence as to the future care and needs of Mr Wilson necessitated by his injury. For that purpose, Ms Healy had conducted an assessment in January and February 2009. She compiled a detailed report dated 5 February 2009, in which she comprehensively detailed the future needs of Mr Wilson, and allocated future costs for those needs. Ms Healy gave evidence, and her report was tendered as part of her evidence in chief. Attached to that report is a schedule entitled “Estimated costings - Mr John Wilson”.
Ultimately, most of the items set out in the schedule attached to Ms Healy’s report were not in dispute. The defendant took issue with some items. The main criticisms of the schedule made by Mr Thompson were, firstly, that some of the items were unlikely to be used by Mr Wilson in the future. Secondly, he challenged the costings of some of the future items provided by Ms Healy.
In respect of the first issue, Mr Thompson particularly submitted that, on the evidence, it is unlikely that the plaintiff will utilise a gym membership, a powered wheelchair, a powered recliner chair, or a tennis wheelchair. In considering those matters, a useful starting point is the principle that damages for future care and the like are recoverable by an injured plaintiff as constituting a measure of the plaintiff’s needs by reason of the injury caused by the defendant. Thus, it is not necessary for the plaintiff to prove that the need, caused by the injury inflicted by the defendant, is likely to result in future economic loss to the injured plaintiff.[5]
[5]Van Gervan v Fenton (1992) 175 CLR 327, 333 (Mason CJ, Toohey and McHugh JJ), 347 (Gaudron J); Kars v Kars (1996) 187 CLR 354, 358 to 360 (Dawson J), 379 (Toohey, McHugh, Gummow and Kirby JJ).
Bearing those principles in mind, I turn to the individual items which are the subject of dispute. I shall deal with them seriatim in the order in which they appear in Ms Healy’s schedule.
Gym membership
Mr Thompson submitted that Mr Wilson gave no evidence that he had used, or would use, the gym. He submitted that in light of the fact that allowances are made for regular physiotherapy and recreation, it is not fair and reasonable to include an allowance for future gym membership. In her report, Ms Healy noted that Mr Wilson’s endurance and activity tolerance had significantly deteriorated as a result of his injury. His reduced balance and mobility had significantly compromised his ability to develop his endurance and fitness, and he was at risk of becoming more de-conditioned as time progresses. Thus Ms Healy recommended that Mr Wilson should receive input and assessment from a physiotherapist or an exercise therapist. She recommended that Mr Wilson would benefit from involvement in a gym program to maintain his strength and endurance. In light of Ms Healy’s assessment, it is reasonable to conclude that Mr Wilson does need, and will continue to need, a suitably supervised exercise program in order that he can maintain at least some base line of physical fitness. In those circumstances, I consider that the plaintiff has proven a need by Mr Wilson for a gym membership, and damages should be awarded on that basis. I note in this respect that the plaintiff concedes that the need should only be assessed on the basis of a gym membership to the age of 65 years.
Powered wheelchair
Mr Thompson submitted that Mr Wilson gave no evidence that he would use a powered wheelchair. Mr Wilson did state that he drives his vehicle 20 minutes at a time. Mr Thompson submitted that on the evidence Mr Wilson is likely to use his motor vehicle if he attends places such as the shops.
In her report, Ms Healy stated that Mr Wilson requires both the use of a manual wheelchair, and a powered wheelchair when accessing the community, both at the present, and, to a greater degree, in the future. In reaching that conclusion Ms Healy noted the difficulties experienced by Mr Wilson in getting on and off public transport. His walking tolerance, using crutches, is reduced because of the pain he suffers in his arms and upper body. In my view, in a claim in which Mr Wilson is the notional plaintiff, it would be appropriate to assess his damages on the basis of a need for both a light manual wheelchair for use around his house, and a powered wheelchair for use at locations when he wishes to move away from his motor vehicle, or when he wishes to make short journeys, such as to the shops, without using his motor vehicle. The pain experienced by Mr Wilson in his upper body and arms, from using his crutches, emphasises the need identified by Ms Healy for a powered wheelchair. Accordingly, damages for future care should, in my view, include an allowance for a powered wheelchair, together with its servicing and parts.
Powered recliner chair
Mr Thompson submitted that there is no evidence that Mr Wilson would use or benefit from a recliner chair. He submitted that there was no evidence that Mr Wilson was uncomfortable using a couch.
In his evidence, Mr Wilson stated how he had difficulty remaining seated in the same position for any period of time. In particular, he suffers pain over the stump, the buttock region, and the lower back. He stated that he can only sit for 20 minutes, and he does so on the left hand side. On his evidence, he does spend a considerable part of the day reclining on his couch. Ms Healy stated that he does so because he does not have any comfortable seating position. It is for that reason that Ms Healy recommended the provision of a powered recliner chair, which would enable Mr Wilson to change his position and posture, thereby reducing his pain and stiffness, and assisting him to get in and out of the chair. In my view, that evidence establishes a need by Mr Wilson resulting from the injury caused by the negligence of the defendant. Accordingly, it is appropriate to assess damages for future care to include provision of such an item.
Tennis wheelchair
Mr Wilson stated that although he did enjoy wheelchair tennis, he did not continue to participate in that recreation because the VWA had refused to fund the provision of an appropriate wheelchair. Unfortunately, because of his ongoing problems, Mr Wilson is now not motivated to play wheelchair tennis. Accordingly, Mr Philbrick conceded that the allowance by Ms Healy for a tennis wheelchair should be omitted from the schedule. That concession is appropriate.
Attendant care – recreation
Ms Healy has made an allowance, in her computations, for attendant care for Mr Wilson’s recreational needs of eight hours per week. Mr Thompson submitted that it would be reasonable to allow eight hours per week for the first year in order to establish an appropriate recreation regime for Mr Wilson, but thereafter for such attendant care to be allowed on the basis of four hours per week. Mr Philbrick accepted that that was an appropriate basis of calculation of Mr Wilson’s loss, and I shall adopt it.
Gardening
Ms Healy in her report allowed three hours of gardening services per fortnight. Mr Thompson submitted that, because of modifications made to the garden after Mr Wilson was injured, very little gardening is now required. He referred to evidence to that effect by Mr Dennis Wilson. Mr Philbrick relied on the evidence of Ms Healy that, when she visited the premises, the garden was overgrown and in need of care. On her observations, she assessed that Mr Wilson would require gardening services of three hours per fortnight. In my view, based on that evidence it is appropriate to make an allowance for gardening services. Mr Philbrick has conceded that a fair and reasonable allowance would be two hours, and not three hours, per fortnight, and I agree with that concession.
Other personnel
In her section headed “other personnel”, Ms Healy referred to the need by Mr Wilson of a number of different specialists. Mr Thompson has taken issue with the need by Mr Wilson for the nurse specialist, and counselling services for his father. Mr Philbrick has conceded that those items should be disallowed. Further, the plaintiff does not press for the costs of a vocational provider or rehabilitation consultant.
Rates of services
In the course of her evidence, Ms Healy gave updated figures for the rates of service to be provided by attendant care, housekeeping, home maintenance, and gardening. Those rates are: attendant care $39.30 per hour; housekeeping $36.08 per hour; home maintenance $54.56 per hour; gardening $54.56 per hour. Mr Thompson submitted that the appropriate rates should be the Victorian WorkCover Authority rates which are: attendant care $29.55 per hour; housekeeping $22.80 per hour; home maintenance $29.85 per hour; gardening $29.85 per hour. Mr Thompson cross-examined Ms Healy about those rates. She stated that she derived the rates, which she was using, from Australian Home Care Services. She agreed that there are “many many people” being paid at the WorkCover rate. However, she considered that the rates prescribed by the Australian Home Care Services reflect the current commercial available rates. She stated that, in her view, the rates which she used are the rates being paid in the community.
In my view, the point made by Mr Thompson in this respect has merit in respect of the rates for housekeeping, home maintenance and gardening. The rates described by Ms Healy for those services seem excessive. There is no evidence that the defendant would not be able to access those services at rates equivalent to those prescribed by VWA. Accordingly, in calculating the cost of Mr Wilson’s current and future needs for housekeeping, home maintenance and gardening, I shall adopt the rates referred to by Mr Thompson.
On the other hand, it was agreed by the parties that the average commercial rate for attendant care, between July 2001 and the present date, was $30 per hour. Based on that concession, the current VWA recommended rate of $29.55 could not be commensurate with the current market rate. Rather, the current rate stated by Ms Healy, namely $39.30 per hour, would seem to be consistent with an average rate of $30 per hour over the last eight years. Accordingly, I shall accept that rate in assessing damages for future attendant care.
In her report Ms Healy, under “other personnel”, made an allowance for a prosthetist at an amount to be determined. Mr Woolley, a prosthetist who has cared for Mr Wilson, gave evidence. He said that Mr Wilson will need a replacement prosthesis each three years, at a cost of $5,000. In addition, repairs and servicing would cost him $1,000 per annum. He would review Mr Wilson each six months, and each review would cost between $200 and $300. In cross-examination, he agreed that his estimate of a replacement each three years assumes that the prosthesis has been worn almost each day. Using present day values, the plaintiff provided a chart calculating that a triennial expense of $7,000 produces a loss of $59,608. The plaintiff claims half of that amount, thus allowing for the fact that Mr Wilson does not regularly use the prosthesis. In my view, that allowance is appropriate. Accordingly, the damages to be awarded in this category amount to $29,804.
Physiotherapy
Mr Anning, Mr Wilson’s physiotherapist, gave evidence that he has been attending Mr Wilson twice weekly. His evidence supports an ongoing need by Mr Wilson for physiotherapy, in order to correct and prevent the hip flexion deformity from which he now suffers, and to alleviate the load on Mr Wilson’s lumbar spine. Mr Anning stated that he charges physiotherapy in line with VWA requirements, namely $43.40 per consultation, but that his normal rate is $58 per consultation. I did not understand Mr Anning to state that he would depart from the VWA rate in treating Mr Wilson. Accordingly, future physiotherapy costs will be assessed at the rate of $43.40 per consultation and thus $86.80 per week.
Travel costs
Finally, Mr Thompson took issue, in part, with some of the travel costs, on the basis that an allowance should be made for two hours of travel, rather than three hours by Ms Healy. I do not see any justification in departing from Ms Healy’s estimates in this regard and I shall use them as a basis for assessing damages for that component.
The assessment of damages for current and future needs
It is common ground between the plaintiff and the defendant that I should apply a discount of 20 percent of vicissitudes to the total calculation of the damages attributable to Mr Wilson’s future care and needs. The plaintiff has provided me with the appropriate multipliers, calculated to life, to age 65, and to age 60, to be applied to the calculation.
Based on the above considerations, I therefore calculate the damages, which would be awarded to Mr Wilson for his future care and needs, as follows. I shall deal separately with gym membership as it is only calculated to the age of 65 years. The remainder, which I set out below, are calculated on the basis that they are needs of Mr Wilson for life. On that basis, the appropriate multiplier is $1,332.
Item
Weekly Costs
($)
One Off Costs
($)
1. Physical Functioning
Hand held mirror on flexible wand
0.60
Forearm crutches
0.34
Ferrells @ $4.40 each
0.33
Light weight manual wheelchair with customised seating system
32.60
Annual servicing and parts (allow)
9.00
Powered mobility e.g. powered wheelchair (allow $7,000)
26.85
Servicing and parts (allow $300.00 per annum)
5.70
Powered recliner chair
Powerlift 660
18.25
Double sized mattress with inner spring system, postural support and pillowtop – allow $2,000.00
5.75
Bed pole
0.25
2. Activities of Daily Living
Mug x 4
0.73
Kitchen Trolley
0.65
Mobile self propelling commode with padded seat
3.97
Replacement padded seat
1.28
Stable table x 2 @ $25.00 each
0.31
3. Community Skills
Left foot accelerator
1.61
Kia Carnival with spring loaded ramp, wheelchair access, restraints/tie down for wheelchair and driver’s seat on power base
128.50
Servicing of vehicle per annum – allow $500.00
9.58
Attendant Care
3 hours per week @ $39.30 (shopping)
8 hours per week for 12 months, then 4 hours per week @ $39.30
117.90
157.20
8174.44
(4 extra hours per week for first 12 months)
Housekeeping
3 hours per week @ $22,80 per hour
68.40
Home Maintenance
2 hours per month @ $29.85 per hour
14.92
Gardening
3 hours of gardening services per fortnight @ $29.85 per hour
44.77
If Mr Wilson lives alone or if his father is unable to provide support the following additional support is required
Attendant Care
1 hour per day = 7 days a week @ $39.30
275.10
Housekeeping
2 hours per week @ 22.80 per hour
45.60
Other Personnel
Prosthetist
22.87
Occupational Therapy
Home Modifications
10 hours @ $150.00 per hour = $1,500.00 (one off cost)
1,500
2 hours per fortnight for 6 months = 24 hours @ $150 per hour = $3,600.00 (one off cost)
3,600
Travel in association with the above =
18 hours @ $150 per hour = $2,700.00
2,700
2 hours per month x 18 months = 36 hours @ $150 per hour = $5,400.00
5,400
Travel association with the above = 27 hours @ $150 per hour = $4,050.00
4,050
2 hours per 3 monthly for 12 months = 8 hours @ $150 per hour = $1,200.00
1,200
Travel association with the above = 6 hours @ $150 per hour = $900.00
900
Travel associated with above sessions.
4 hours @ $150 per hour = $600.00
600
3 hours annually @ $150 per hour = $450.00
8.63
Travel associated with above sessions.
1.5 hours @ $150 per hour = $150.00
4.32
Case Management
4 hours per month @ $140.00 per hour x 6 months
3,360
Ongoing Physiotherapy
Twice per week @ $43.40
86.80
TOTAL
1,092.81
31,484.44
The weekly costs for future care and needs, which I have set out above, will be incurred over Mr Wilson’s lifetime. Applying the appropriate multiplier ($1332), the present day value of that loss is $1,455,622.90. That figure is to be reduced by 20 percent for vicissitudes, producing a total loss, for that component, of $1,164,498.30. To that figure is to be added the sum of $31,484.44, set out above, in respect of “one off” costs, producing a total cost of $1,195,982.70. In addition, as I have already stated, the plaintiff’s needs will include gym membership to the age of 65 years.
The gym membership is calculated at a weekly cost of $12.90. The appropriate multiplier to the age of 65 years is $1,036. Thus the total loss in respect of gym membership is $13,364.40 That figure is to be reduced by 20 percent for vicissitudes, producing a total loss, for that component, of $10,691.52 Accordingly, the total loss for future care and needs is the sum of $1,206,674.20.
Future Griffiths v Kirkemeyer loss
Mr Philbrick did not pursue a separate claim for future Griffiths v Kirkemeyer damages. Rather, he submitted that I should accept the allowance by Ms Healy of an additional one hour per day attendant care if Mr Wilson lives alone or if his father is unable to provide support, as encompassing such a claim. In other words, to the extent to which Mr Wilson’s father provides future services, a claim should be allowed at current market rates on the basis of one hour per day. Alternatively, if Mr Wilson senior is unable to continue to assist, then Mr Wilson would be suitably compensated for the additional services required. In my view, the reasoning stated by Mr Philbrick is sound, and indeed Mr Thompson did not contend to the contrary.
Summary conclusions on loss and damage
Accordingly for the reasons which I have set out above, for the purposes of the formula in s 138(3)(b) of the Act, I calculate the damages, which would have been awarded to Mr Wilson in an action by him against Prolift as follows:
(1) Past medical expenses
$181,952
(2) General damages
$450,000
(3) Past Griffiths v Kirkemeyer damages
$321,720
(4) Past loss of earnings
$279,669
(5) Loss of future earning capacity (including superannuation)
$585,064
(6) Future needs and expenses
$1,206,674.20
TOTAL
$3,025,079.20
The matters which I have so far discussed in these reasons enable me to form conclusions concerning Factor A and Factor X in the formula specified by s 138(3)(b) of the Act. However, I was informed by the parties that there may be some remaining argument as to the computation of Factor C, should I come to the conclusion that Prolift is liable to indemnify VWA. Subject to that reservation, I summarise the conclusions which I have so far reached as follows:
(1)The injury to Mr John Wilson, for which compensation has been paid by VWA, was caused under circumstances creating a liability in Prolift to pay damages. Accordingly, VWA is entitled to be indemnified by Prolift in respect of the compensation paid or payable by it pursuant to s 138(3) of the Accident Compensation Act 1985 (Vic).
(2)For the purposes of Factor X in the formula set out in s 138(3)(b) of the Act, the extent, expressed as a percentage, by which Prolift’s act, default or negligence caused or contributed to Mr Wilson, is 30 percent.
(3)For the purposes of calculating Factor A in the formula, I assess the amount of damages, which Prolift would have been liable to pay in respect of Mr Wilson’s injuries at common law in the sum of $3,025,079.20.
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