Watson v Mayne Nickless Ltd (T/as Sea Pak Transport Services)
[1988] TASSC 27
•27 April 1988
[1988] TASSC 27
CITATION: Watson v Mayne Nickless Ltd (T/as Sea Pak Transport Services) [1988] TASSC 27; A13/1988
PARTIES: WATSON, Peter
v
MAYNE NICKLESS LIMITED (trading as
SEA PAK TRANSPORT SERVICES
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION:
FILE NO/S: 1025/1981
DELIVERED ON: 27 April 1988
JUDGMENT OF: Wright J
Judgment Number: A13/1988
Number of paragraphs: 36
Serial No 13/1988
List "A"
File No 1025/1981
PETER WATSON v MAYNE NICKLESS LIMITED
Trading as SEA PAK TRANSPORT SERVICES
REASONS FOR JUDGMENT WRIGHT J
27 April 1988
In December 1979 the plaintiff commenced employment with the defendant at Lampton Avenue, Derwent Park. He started off as a truck driver on town deliveries but was subsequently employed as a fork lift truck driver loading and unloading containers from semi–trailers. In addition, he was required to set up containers and to cover and uncover them with tarpaulins. The containers are essentially large rectangular crates made of steel, open at the top and hinged at each end. The two long sides drop into place once the end sections have been lifted into position and fastened in that position. It is possible to increase the carrying capacity of the containers by placing metal hurdles or gates around the top perimeter. The gates are made of heavy steel piping about two to two and a half inches in diameter. The two end gates slot relatively simply over four steel posts projecting one at each corner on the upper edge of the container. Sockets formed from sections of heavy duty steel pipe are welded to the inner side of the vertical pipes forming both extremities of each of these end gates of the container. The sockets are designed to receive lugs or pins formed from right–angled pieces of iron–bar welded one above the other to the pipe forming the upright section of each end of the gates which form the long sides of the container extension. When each lug is in its corresponding socket, it no doubt forms a strong and serviceable extension of the main container. Such containers and extensions are in common use in the transport industry. However, the unsophisticated design concept of the extension which, no doubt, suggests it would be a simple task to position the four lugs over the corresponding sockets apparently proves to be a problem in practice in certain circumstances. It is usually not too difficult to place the lugs at one end into the sockets at that point but the long side extension then becomes a heavy gate swinging on the crude hinges formed by the lugs and sockets which have been fitted together in this way. The problem then becomes one of matching the two remaining lugs to the two remaining sockets at the other end of the container. To marry these two components together was clearly a source of frequent difficulty at all relevant times and it was whilst in the course of just such an operation as this that the plaintiff sustained a serious injury to his right hand on 6 May 1980.
The practice at the defendant's yard at this time entailed the lifting of the long side gate from the ground by fork lift truck and then, assisted by a man on the ground, the fork lift truck driver would guide the gate towards the container, slotting the first two lugs into the corresponding sockets and then, together, they would guide the remaining two lugs into the remaining two sockets. Because of the heavy usage sustained by these containers, it was not uncommon for both the containers and the side gates to become misshapen and bent. It was not uncommon for a side gate to be substantially distorted and for difficulty to be experienced in making its lugs slot into all four sockets. Sometimes it was necessary for sledge hammers and crow–bars to be used to knock the lugs into the sockets. Sometimes the side gates were so badly bent that it was necessary to run over them with the fork lift truck to press them back into some semblance of their original shape. The basic dimensions of the container were 18 feet long by 8 feet wide and the weight of each side gate was is about 60 kilograms. As the plaintiff said, "You would need two men to lift them". It was necessary for these gates to be lifted into place by the fork lift truck operator. The operation was described in this way by the plaintiff, "You put the tyne of the fork, roughly 1 to 2 feet, a minimum of 1 foot underneath the top bar of the gate and keep it level, keeping the fork dead level not sloping back or sloping forward. If it sloped forwards, the steel on steel will slide straight off. If it is sloping back, the gate will slide back to the mast of the fork truck. The fork truck driver then lines up the gate with the pins on either side on the end gates and just slowly lowers it onto it." He described the function of the person on the ground assisting the fork lift truck driver as follows, "He was to steady the gates and use the sledge hammer or the big crow–bar. They had a 6 to 7 foot crow–bar with a big hook on it maybe to bend out the pins if the pins had been bent".
On the day of the accident, the plaintiff had been delegated by his supervisor to help Mr Witzerman set up a number of containers. When the plaintiff went to commence the job Mr Witzerman had already started assembling a container. Mr Witzerman was an experienced though phlegmatic fork lift truck driver. There was no conversation between the two of them as to how the job was to be done but the plaintiff noticed that the gate to be used to form the top extension to the container was badly buckled and twisted. He said it was "warped all over it; just in a deplorable state". Even fitting the two lugs to the sockets at the right hand end presented something of a problem as the plaintiff said, "They were a bit tight. They did go in but they took a bit of persuasion with sledge hammers and a crow–bar at the bottom". After this part of the operation was completed it was found that the gate which was being fitted was just so badly damaged and twisted that it was impossible to swing it in to place to enable the other two lugs to be fitted. It fell short of the lugs by approximately 18 inches to 2 feet or if one accepts the plaintiff's estimate in cross–examination by about 2 feet 6 inches. The plaintiff said that when this occurred Mr Witzerman attempted to swing the unclosed end towards the end gate by using the fork lift truck. He did this by "moving the fork back fractionally, very slowly". The fork lift truck was at an angle of about 90 degrees to the container but the upper gate was so badly bent that Mr Witzerman was able to slide one tyne out from under the top rail of the gate whilst balancing the gate on the other tyne. He then used the free tyne to exert pressure upon one of the upright members of the gate to force it into a position from which it could be fastened into place on the top of the container. The plaintiff, at this stage, was holding onto the bottom rail of the gate which was resting in the V formed between the thumb and forefinger of each hand. Mr Witzerman then commenced to place pressure on the rail and succeeded in closing the gap between the free end of the gate and the end of the container to somewhat between 6 inches and 18 inches. The gate would not move beyond this and Mr Witzerman was exerting such pressure with the fork lift truck that the wheels of the vehicle started to spin.
Without warning Mr Witzerman released pressure on the gate and moved the fork lift truck backwards. The gate then dropped, momentarily crushing the plaintiff's right hand between its bottom rail and the top rail of the side piece immediately beneath it before bouncing clear. At first there was no pain but the plaintiff's hand became numb. His left hand was apparently not injured because due to the distortion in the gate, that hand was at a slightly higher level than the right hand and was not subject to the same crushing force. After having executed this manoeuvre with the fork lift truck, Mr Witzerman said, "I'm moving back". This warning came after the accident had occurred and was not given prior to the reversing manoeuvre. The plaintiff removed his canvas work gloves and saw what he described as a fountain of blood coming from between the forefinger and thumb of his right hand. The plaintiff was rushed to the Hopkins Street Clinic and subsequently to Calvary Hospital. There were no witnesses to the accident other than the plaintiff and Mr Witzerman. Unfortunately Mr Witzerman died before the case came to trial and therefore although he was originally joined as a co–defendant, as no application was made to continue the action against his personal representatives, proceedings insofar as they may have affected him or his estate, lapsed.
The plaintiff was subjected to a strenuous cross–examination as to the circumstances in which this incident occurred but I am satisfied, notwithstanding the extreme staleness of the case, that on the balance of probabilities, it occurred substantially in the way that I have described above. The plaintiff claims that his injury was caused either by the casual negligence of Witzerman in performing the operation in the way that he did or, alternatively, as a result of the unsafe system of work adopted by the defendant in connection with this kind of operation. There was certainly no evidence from the plaintiff or witnesses called on his behalf to suggest that the assembly of containers could be carried out in any other more efficient or safer way and it was submitted by defence counsel that the absence of such evidence was fatal to the plaintiff's claim insofar as it was based on an unsafe system of work. Defence counsel also pointed to the absence of evidence to suggest that any similar occurrence had taken place on a previous occasion. Nonetheless, I am satisfied that to employ such a method as described by the plaintiff was to offer an open invitation to disaster. Although the defendant's fork lift truck was being used to exert pressure on the gate at the relevant time, I think that the task in hand could well be characterized in the same way that lifting a bucket of molten bitumen was in Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18. Dixon CJ and Kitto J in their joint judgment at p25 described that as "a simple case concerning an unmechanised operation".
In that case although no expert evidence was given as to the availability of alternative methods of dealing with the job in hand, a majority of the High Court concluded that the risk of injury to the plaintiff was obvious and it would have been a simple matter to devise a different and safer method. Accordingly, they held that there was evidence upon which a finding of negligence by the employer could and should have been made.
There have been a number of subsequent cases which have gone to the High Court in which debate has occurred as to the necessity in different circumstances for a plaintiff alleging an unsafe system of work to call evidence to show how alternative methods of operation may have reduced the danger complained of.
In some cases such as Turner v South Australia (1982) 42 ALR 669 and McLean v Tedman (1984) 58 ALJR 541, the simplicity of the suggested method for obviating a risk and the likelihood that, if adopted, the risk would be minimized or avoided has been so clearly apparent that expert evidence to support the proposed remedial action has not been required.
However, in others – eg Neill v NSW Fresh Food & Gee Pty Ltd (1962 – 63) 108 CLR 362; Vozza v Tooth & Co Lt. (1964) 112 CLR 316 and Da Costa v Australian Iron & Steel Pt. Ltd (1978) 20 ALR 257, the absence of such evidence has been fatal to the plaintiffs' claim. Whether or not a case falls on one side of the line or the other will nearly always depend upon whether or not a situation has been established in which it can be said that common knowledge or common sense permits the tribunal of fact to "perceive the existence of a real risk of injury and to permit one to say what reasonable and appropriate precautions might appropriately be taken to avoid it". (Neill v NSW Fresh Food & Gee Pty Ltd (supra) at p.68 per Taylor and Owen JJ) or as stated in Vozza v Tooth & C. Ltd, (supra) and reaffirmed in McLeans Roylen Cruises Pt. Ltd v McEwan (1984) 54 ALR 1, the duty of an employer is to take reasonable care to avoid exposing his employee to unnecessary risk of injury and, to this end "it must appear, by direct evidence or by reasonable inference from the evidence, that the defendant unreasonably failed to take measures or adopt means, reasonably open to him in all the circumstances, which would have protected the plaintiff from the damages of his task without unduly impeding its accomplishment".
That this test whilst simply stated is sometimes difficult to apply in practice may be seen by the divisions of opinion which have frequently occurred in the High Court in individual cases. In Da Costa v Australian Iron & Steel Pty Ltd (supra), three members of the Court thought that without expert evidence, the plaintiff could not succeed whereas the other two expressed a contrary view although conceding that expert evidence would have been helpful and desirable. In commenting in that case upon a job which had certain broad similarities to that in the present case, Murphy J suggested that "the clumsiness of the procedure and the appellants' exposure to unnecessary risk were obvious". My view is that such a comment would be entirely apt in the present circumstances. This was not something that was done for the first and only time when the plaintiff was working with Mr Witzerman. It was a common experience, confirmed not only by the plaintiff but also by Mr John Davey who was Vehicle Controller for Sea Pak at the time, that the side gates were frequently damaged and distorted. Accordingly, unless the gates could be straightened out by some available means the fitting of them together by the series of lugs and sockets which I have described, became a matter of brute strength and ad hoc improvisation. As Mr Davey said the usual method of remedying a distorted gate was to "take it out and put it on the ground and hit it with a hammer or run over it with a fork and straighten it up to try to make it fit". It is apparent that Mr Witzerman was trying to make the gate in question fit without going through these intermediate procedures (if such they can be called) but there is little to suggest that what he was doing at the time of the plaintiff's injury was a significant divergence from common practice. Mr Davey did say that by pushing the gate with the fork lift to try and straighten it out, the fork lift driver would not be following "proper procedure". However, I remain unpersuaded that there was any specific procedure which Mr Witzerman or other employees engaged in this type of task had been instructed to follow to the exclusion of other methods. Furthermore, there was no clearly defined point at which workmen trying to fit a distorted gate to the side of the container would appreciate that the task was hopeless and that they should remove it from its partially secured position so it could be belaboured or steamrollered into some semblance of its original shape on the ground.
Whilst the man on the fork lift truck would appear to have been out of harm's way during an operation of this kind, the man assisting him from the ground was, at all relevant times, working in close proximity to a heavy metal object held, at best, in an uncertain state of balance on the tines of a fork lift truck which were apparently neither designed nor modified for that type of use and which, from time to time, were used to bring considerable pressure to bear to force the side gates into position. That there have not been similar or even more serious accidents resulting from this method over the years during which it has been in operation prior to the plaintiff's accident, is a source of mild surprise to me but plainly is a factor which I must and do take into account in weighing up the allegation of negligence.
I should also note that the defendant's submission that there was no evidence of an alternative method available for ensuring that the gates would fit was not entirely accurate.
The plaintiff gave evidence without objection and without contradiction that on many occasions he and others were told that badly damaged containers would be sent to Melbourne for repair. I infer that this was conveyed to him by one of his superiors and I also infer that there was some facility such as a power press, a pipe bending machine or other device in Melbourne which was capable of restoring bent container components to their correct shape. This does not surprise me and indeed I would have expected similar facilities to have been available in Tasmania. However, there was no evidence to suggest that there were.
In my opinion, a system which allows container components which have become substantially misshapen to continue in use and which requires workmen to utilize primitive methods of repair to ensure that they can be fastened together by force if necessary, is one which is plainly unsafe.
If I am wrong as to the defendant's system of work, and if the correct view is that Mr Witzerman's actions on the day in question were not in accordance with that system, it seems plain that Mr Witzerman was guilty of what is usually called "casual" negligence causative of the plaintiff's injuries. Although the plaintiff was an experienced fork lift truck driver himself, Mr Witzerman was the senior man and was in charge of the operation. He also was in control of the fork lift truck. He failed to warn the plaintiff before he reversed as he did after releasing what must have been a considerable pressure upon the top gate and moving back so that the fork lift truck ceased to support its weight. In his position he would, no doubt, have been aware of the plaintiff's stance and grip upon the gate or if he was not, he should have been. He should also have been aware that to suddenly release the pressure he was exerting upon the gate without warning the plaintiff and then moving back, was likely to cause the gate to drop or lurch in such a way that the plaintiff may be injured in some way. It is unnecessary for the plaintiff to show that Mr Witzerman should have anticipated the exact mechanism of the accident or the precise injury caused (see Cadbury Schweppes Limited v Belbin 25/1981 – Full Court).
The defendant concedes that if Mr Witzerman was negligent, the defendant attracts vicarious liability. However, it is argued that the plaintiff was also guilty of contributory negligence. I do not think he was. He appears to me to have been attempting to carry out this difficult and frustrating task in the way that it was generally performed by the off–sider working in his position. It is trite law that mere inadvertence, inattention or misjudgment by a workman does not amount to contributory negligence (eg McLean v Tedman (supra)). There is no evidence to suggest that the plaintiff was ever warned against putting his hands on the bottom rail in the way that he did or that he should have been aware of the likelihood or possibility of a serious injury of the kind which he sustained. Nor do I think he failed to take proper precautions for his own safety in any other respect. The defendant alleged (inter alia) that the plaintiff had pushed the gate off the tynes of the fork lift truck but this allegation was not supported by the evidence and I reject it. It was put to him that he should have suggested to Mr Witzerman that he was unlikely to force the gate into place by the method he was adopting but I am satisfied that Mr Witzerman was a dogged if not stubborn individual considerably older than the plaintiff who was quite unlikely to adopt alternative methods which the plaintiff may have recommended. It is also plain that even if common sense should have told the plaintiff that what he was doing was dangerous (and I am not persuaded that it should) it would be necessary for the defendant to succeed in its allegation of contributory negligence, to show that the plaintiff also appreciated that what he was doing at the relevant time was not required of him in the performance of his duties. (Commissioner for Railways v Halley (1978) 20 ALR 409 at 415 per Jacobs J.) This has not been established by the defendant. I hold that the defendant was negligent and that it has not been shown that the plaintiff was contributorily negligent. I now proceed to assess damages.
The plaintiff's injury consisted of a deep wound through the first interdigital cleft between the thumb and forefinger on the right hand. He was seen at Calvary Hospital by Mr John Carney, a plastic surgeon with particular interest and expertise in hand surgery. Mr Carney found that there was a very substantial crush injury to the thumb, in particular, the base of the thumb and the muscles surrounding it which required debridement and suture. Mr Carney carried out this procedure under general anaesthetic. He explored the thenar web and noted that the thumb had been considerably abducted from the line of the hand causing a fracture of the head of the metacarpal which extended into the metacarpophalangeal joint. The thenar muscle mass had been deeply damaged with division of the princeps pollicis artery. Both digital nerves and also the nerve running to the radial side of the index finger had been contused. In the course of debriding the wound, a small amount of dead muscle and the peripheral skin edges were removed. The wound was sutured and the plaintiff was immobilized in a plastic slab. He remained in hospital for three days and was seen again by Mr Carney on 16 May 1980, at which time the wound had healed and the sutures were removed. Mr Carney who gave evidence at the trial, said that he had seen the plaintiff on many occasions since then and on each occasion the plaintiff has complained of pain in his thumb of such a kind and degree, that he has been unable to work "whether it was writing or digging or driving a truck or anything of that nature". Mr Carney said that he would expect this pain to emanate particularly from the soft tissue injuries sustained by the plaintiff, involving as they did, ligaments and muscles. He said that he would expect these injuries to have caused permanent scarring and fibrosis of the soft tissues such as muscles, tendons and nerves in the base of the thumb. Mr Carney said that has encouraged the plaintiff to use the thumb as much as possible because the more use it is given the more likely it is to regain strength and mobility. When reporting on the matter to the plaintiff's solicitors on 29 July 1981, Mr Carney said:
"X–ray of his thumb shows the fracture to be healed and stable although there is still a step in the articular surface of the m.p. joint (the joint at the base of the thumb).
Examination of the thumb shows it to have a range of approximately 30 degrees of flexion, whereas the thumb on the opposite hand moves through 45 degrees.
There is some crepitus within the thumb and this causes him pain. The crepitus is related to the irregularity of the joint surface and is of a permanent nature."
Mr Carney foresaw the possibility that an arthrodesis of the affected joint may be required because of the pain of which the plaintiff continued to complain and, in fact this operation was carried out at Calvary Hospital on 19 October 1983. The affected joint was then fused together with 10 degrees of fixed flexion of the base of the thumb to approximate its normal working position. The right hand was immobilized in plaster of paris until the 13 December and the Kirschner wires which were stabilizing the joint during the fusion process, were removed on 9 January 1984. Mr Carney found that the thumb was solid with improving function on 3 February 1984 and the plaintiff then commenced to attend Douglas Parker Rehabilitation Centre. Although an operation of this kind is designed to alleviate pain in the injured joint, Mr Carney expressed the opinion that it was unlikely to "change greatly the pain attributable to damage to the muscles, the deep scarring in the muscle groups". On 14 January 1985, Mr Carney reported to the plaintiff's solicitors as follows:
".... I understand that Peter has been working with his hand and has gradually improved both his strength and mobility though it is not developed to the pre–accident situation. He says that his hand is less than half as strong as the left.
I understand that a grip strength was carried out at the Douglas Parker Centre on 9 January 1985 and this is reported as 33 Kilogrammes in the right hand and 55 Kilogrammes in the left. This compares favourably with the previous similar examination early last year when his grip strength in the right was 29 Kilogrammes and 55 Kilogrammes in the left.
Examination of his right thumb shows that the fusion remains stable and solid. Apart from slight tenderness over the medial aspect of the fused joint, there is no significant local pathology. The thenar muscle mass is strong and in particular, abduction is strong. He is able to oppose his thumb to all digits and his pinch grip is strong. The manipulative tripod functions normally with the movement of the fused joint being taken up at both the proximal and distal joints of the thumb.
There is tenderness over the thenar scar, though there is no undue induration in this region. My impression was that his abductor muscle group was less strong in the right hand then in the left.
Peter is playing lawn bowls, again it requires reasonable strength in the intrinsic muscles of the hand and in particular, the intrinsic muscle of the thumb. I would assess the overall disability in his thumb as being 30% diminished when compared with the normal thumb. This would represent a diminished total hand function of some 15%.
This, however, cannot be extrapolated into the work situation as it applies only to manual labour. Specific industry requiring use of grip strength i.e. holding a steering wheel would obviously present considerably more of a problem than other processes. I think there will be further improvement in Peter's grip strength as time goes by and his hand is used more and more in a manual capacity.
As to the pain he experiences in his hand, this I have mentioned at an earlier time, results from the crushing nature of the original injury and can be expected to continue for the rest of his life. He will always experience some degree of pain during cold weather. ...."
Mr Carney said that in his view, a complaint by the plaintiff that driving a motor vehicle for any length of time over about 40 minutes produced pain in the hand, was consistent with the injury. He also said that writing for extended periods of time was an activity which may cause pain in the hand. Indeed, Mr Carney said that anything requiring a grip for a long period of time is likely to produce pain. When it was put to Mr Carney in cross–examination that the injury could be placed in the lower category of seriousness, he replied that he did not agree with this proposition and described it as being fortuitous that the thumb had not been chopped off, involving as it did bone, nerve, muscle and joint. He said:
"The only thing that was spared was the tendon in fact".
It was put to Mr Carney that he had expressed a view that the plaintiff should have been fit for his former employment by 3 March 1984 and he agreed with this. He also agreed that occasionally he has had doubts about the plaintiff's genuineness in respect of complaints of pain. He said:
"I don't deny that Peter has caused me that question at times because it really has been a unexpected progression from the time of the injury through to the situation where the joint was fused and the subsequent sequelae. I can only explain it in terms of its subjective phenomenon, it's not my common experience with this sort of injury."
Mr Carney also conceded that in March 1984, he held the view that the plaintiff's description to him of activities that he was performing in the course of house renovations were inconsistent with his continuing symptoms of pain in that those activities required considerable physical dexterity and function on the part of his injured hand. Mr Carney was also questioned by defence counsel about views that had been expressed to him by an occupational therapist, Mrs Kathleen Fish, from the Douglas Parker Rehabilitation Centre following her assessment of the plaintiff in March 1984. Whilst not expressing firm dissent from, or agreement with, Mrs Fish's report, Mr Carney said:
"I thought that maybe there was the problem of an angry young man being placed in an environment which was likely to test him in one form or another and he didn't specifically want to be tested. I think that that may well have been Peter's attitude at that time."
Mr Carney also said that insofar as Mrs Fish suggested that the plaintiff had no disability he strongly disagreed with her.
Asked to describe the mechanism causing pain in the thenar muscle mass, Mr Carney said this was due to abnormal sensory information travelling to the brain from the stretch receptors in the damaged muscle mass. Mr Carney was unable to explain the additional pain that the plaintiff complained of across the back of the hand below the first knuckles and also extending down the outside and the outer aspect of the hand. He had some difficulty in appreciating why the plaintiff should experience pain after playing a guitar for a short period of time but did point out that the muscle which is used to hold the plectrum is the muscle which was, in fact, damaged in the accident. He attributed the pain of which the plaintiff complained in writing activities as resulting from the muscle group at the base of the thumb being required to maintain pressure at the tip of the pen. When questioned about activities shown on film which depicted the plaintiff driving a truck, opening car doors, shovelling and pulling on a rake or a mattock, Mr Carney was of the opinion that such activities should produce pain and he emphasized that tolerance to pain has a finite limit. As he said:
"If you are doing something with a painful hand you can do it for a while and then you have to stop and rest."
I think it is of particular importance to bear these comments in mind when considering some of the evidence of Mr William Brown Law, an experienced orthopaedic surgeon who was called on behalf of the defendant, particularly, when he expressed the view that the plaintiff's complaints to him appeared inconsistent with the activities being undertaken at the time the plaintiff was filmed. The films in question were tendered in evidence and were viewed by me both at the trial and subsequently. Indeed, I may have had a greater opportunity than either surgeon to observe them in some detail. They certainly show the plaintiff undertaking a number of manual tasks involving his right hand without apparent pain, discomfort or disability. However, closer scrutiny tends to suggest that even on the limited occasions portrayed in the films, the plaintiff has a tendency from time to time to guard his right hand or use his left hand in circumstances in which the use of the right may have been expected. On the other hand, the films do tend to show that the plaintiff's pain is neither as constant nor severe as his evidence at the trial suggested. Having seen the films, I am left with the overall impression that the plaintiff's manual dexterity is not significantly impaired and that he has been able to adapt to his injury to a greater extent than he is prepared to concede. It is noteworthy that the films in question were taken in 1982 and therefore before the arthrodesis operation.
I am satisfied that Mr Law, although he tended to minimize the plaintiff's complaints, adopted an objective if not sympathetic approach to the plaintiff's condition. For example, he suggested that it would have been reasonable for the plaintiff to absent himself from work following the arthrodesis operation for a period of six months – ie April 1984 whereas Mr Carney had thought him fit by March of that year. He also assessed the plaintiff of having a 40% to 50% disability of the thumb and a 22% disability of the hand as a whole which assessments were somewhat more generous than those made by Mr Carney. Similarly to Mr Carney he was unable to explain why the plaintiff should have pain in his hand when wearing rubber gloves as he claimed and was unable to explain the pain as already described across the back of the hand. Mr Law was unable to detect fibrosis in the thenar web but conceded that there may be scarring within that area and that it may be a source of pain. He conceded that his original attitude to the plaintiff's complaints had been "soured a little by what he had seen on the films" although he had seen the plaintiff after viewing the film and had not sought any explanation for the activities which he viewed. He conceded that the plaintiff may be caused pain by constantly gripping a steering wheel and by writing. I think that viewed overall there was no great conflict between Mr Carney and Mr Law, either in their assessment of the original injury or its physiological sequelae. Mr Carney, however, carried out both operations on the plaintiff's hand and has seen the plaintiff as his own patient over a number of years. These factors taken together, particularly taken in conjunction with Mr Law's concession that he had allowed his view of the plaintiff to be substantially affected by his interpretation of the films, persuade me that Mr Carney's evidence is to be preferred to that of Mr Law in relation to those matters upon which they do not have substantial agreement.
Mrs Kathleen Fish to whom I have already referred was employed as an occupational therapist at the Douglas Parker Rehabilitation Centre in 1983 and 1984 when the plaintiff attended for assessment. She was then aged in her mid–twenties and the plaintiff was in his late twenties, a factor which I mention because it may tend to reinforce Mr Carney's view that Mrs Fish's appraisal of the plaintiff in 1983 – 1984 was possibly attributable, at least in part, to a clash of personalities. However, there is nothing in the evidence to suggest that Mrs Fish had "an axe to grind" with the plaintiff or that she approached her task of assessment in other than what she believed was a genuinely professional and objective manner. Nor do I intend to be critical of Mrs Fish because I found her evidence to be most helpful. She felt so strongly about apparent discrepancies between the capabilities that Mr Watson said he had and those which he appeared to demonstrate, that in March 1984 she wrote a personal letter to Mr Carney expressing those misgivings. I have felt a certain level of uneasiness myself in putting the plaintiff's complaints of pain alongside his admitted degree of activity in such things as carpentry and joinery, house–painting and playing lawn bowls. However, on the other hand, to be fair to the plaintiff, one must bear in mind that Mr Carney has encouraged him to remain active and one can scarcely be critical of a man who does not retreat into his shell and give up such activities in the face of physical hurt. I think the plaintiff's tendency to dwell upon and exaggerate his symptoms may be attributable to some extent to the quite extraordinary and unexplained delay between the original accident in May 1980 and the trial in mid–November 1987.
In addition to the physical injury to the hand and the consequent pain, the plaintiff alleges that he has suffered psychological damage resulting in sexual impotence. This was a claim supported by the evidence of Dr Burgess Watson, a psychiatrist, who found the plaintiff's complaint both convincing and explicable in terms of the initial trauma which he endured. However, he expressed the view that the plaintiff's trouble in this respect is likely to be resolved in future when he finds a sexual partner who is able to accord him long term support and encouragement. On the probabilities, I consider this to be a comparatively short term disability suffered by the plaintiff but I am quite satisfied that it is attributable to the accident. The plaintiff does not appear to have been mentally affected in any other way by his experience.
The plaintiff is aged 33 years and is normally right handed. He gave evidence to the following effect. He left school at age 18 but did not qualify for the higher school certificate. He worked for a short time as a clerical assistant in a Bank and when offered a higher salary took a job as a truck driver. After a further 4 months he went to the mainland on a working holiday where, over a period of some 18 months, he held many jobs which could be categorized as semi–skilled labouring. He was not unemployed for any period of time. He returned to Tasmania in early 1975 and enrolled as a mature age student at Rosny College where he also obtained a part time job as an audio– visual aide. He remained at Rosny College for 12 months and was successful in obtaining his Higher School Certificate. He then left and began working for Palmer Sea Road as a truck driver until the commencement of the University year when he enrolled in the Arts Faculty. He also held a part time job in the University "Sound Lounge" and during University vacations he worked again for Palmer Sea Road. He ceased his university studies at the end of 1976 and took up full time employment with Palmer Sea Road. He was retrenched in June 1977 and sought and obtained similar work for Parko doing beer deliveries by day and driving taxis at night for Taxi Combined Services. After 3 months he went to the United Kingdom where he obtained employment driving tandem trucks on long distance haulage. After some time he progressed to the position of manager of a southern haulage company in England but because his work visa had expired, he was obliged to return to Tasmania in October or November 1978. He then worked for 5 or 6 weeks driving concrete mixer trucks and road working equipment. He was retrenched again after 3 months and after 4 weeks out of work, he secured further employment with Sea Pak in the job which he held at the time of the accident. He started this employment about December 1979.
There can be little doubt that the injury to his hand was initially very painful and that following his discharge from Calvary Hospital, he required considerable assistance from his relatives to care for him whilst his hand was immobilized in plaster. I note, however, that there is no Griffiths v Kerkemeyer component in his claim. He said that following the removal of the stitches and the application of a full plaster cast, the initial severe pain in the hand eased but he was sleeping badly. The full plaster remained on for between 2 and 3 months. During this time he was taking tranquilizers and sleeping tablets. Following the removal of the plaster it was necessary for physiotherapy to restore mobility to the hand as he had trouble holding eating implements and dropping things such as cups. He was at Lady Clarke Rehabilitation Centre for about two and a half months. During this period of time he was experiencing pain in the hand during changes of weather and he noticed a "horrible clicking feeling" in the thumb which was associated with a sharp pain whenever he tried to grip anything. This unpleasant sensation was obviously caused by the damage to the articular surface of the joint spoken of by Mr Carney.
The plaintiff returned to the defendant company on about 3 August 1980 and was put on "light duties". He was cleaning up rubbish and sweeping. After 2 or 3 days he returned to Mr Carney who prescribed more physiotherapy. After several weeks at Lady Clarke Hospital the plaintiff found that his hand had improved and he returned to the defendant company's employment again in November 1980. He was set to work unloading containers at a cool store but found that he was unable to cope as he was dropping many cartons. After a few days of working in this way he was dismissed. The reasons given for this dismissal were not explored in evidence. The plaintiff said that at this time he had about 40% of his original use in the right hand but changes in temperature and sharp movements proved to be painful and he found driving very hard.
Prior to the accident he had taken an interest in lawn bowls and he resumed this activity on a daily basis. He found that after 5 ends his hand was swelling but he persevered and apparently he quite enjoyed what he was doing. He commenced looking for work and in addition to other jobs he applied for several truck driving positions. He claims he had a lot of trouble writing out job applications but examples that were put in evidence quite plainly show that his style and neatness were not adversely affected. He did not tell potential employers of his hand injury and whilst it is difficult indeed to be critical of him for practising this deception, it does indicate an expectation on his part that he may be able to cope with such work. Hazell Brothers indicated to him that he had been successful in securing a job as a truck driver but subsequently telephoned him and indicated that they had found out that he was on "workers' compensation" and that therefore he could no longer have the job. He continued his search for employment during 1981 and during his enforced leisure, he continued bowling and making furniture and he embarked upon painting his parents' home. He said that he learned to adapt to his disability and started to use his left hand "a lot more than" the right. I think this is something of an over–statement but if the plaintiff means (and I think he does) that he started to use his left hand for some of the tasks that he had previously carried out with the right, I would accept this. He said that he continued to experience pain if the hand was knocked and he had a certain amount of difficulty training his dog to respond to hand signals. Why this should be so was not made clear.
The first job that he obtained after leaving Sea Pak was on a fish punt in Constitution Dock in Easter 1982. This business was owned by friends of his and he was able to perform truck driving duties for them on a casual and intermittent basis over a period of several months. He said that driving for prolonged periods caused his hand to swell. In July 1982 he secured work as a supervisor with Grace Bros, a firm engaged in furniture storage and removal. He held this job until January 1983. At first he was able to perform his duties without significant disability but as time went on, his employers expected him to do heavier work of a labouring nature. He said that during this period of time his hand seemed to be getting worse as it was swelling continuously. He said that writing was impossible and he found that cutting up hessian and blankets used for wrapping up furniture a difficult task. During the time that he was at Grace Bros, however, the plaintiff was painting his parents home, cutting all of the lawns and doing gardening. He had also done considerable work on a vegetable garden. He was dismissed from Grace Bros apparently on the grounds that he was not performing his duties in a satisfactory manner. During his employment with that firm he continued to consult Mr Carney in relation to the chronic pain in his hand. From time to time he was obliged to drive trucks for Grace Bros and although he could manage well enough with an empty vehicle he did not feel confident with a loaded truck. He was driving his own car at the time but did not feel confident that he would be able to return to his old occupation as a truck driver.
After losing his job with Grace Bros, he continued to apply for work without success and by October 1983 he had decided to ask Mr Carney to perform the arthrodesis on his thumb. He said that he was prompted to do this by the continued swelling in his hand, the clicking of the joint already mentioned and his diminished grip, as well as "a lot of pain". Following the operation he experienced a certain amount of post–operative pain until January 1984 and then undertook a limited course in physiotherapy. Although the clicking in his hand had gone and the grip had strengthened, he found that his hand was still painful. He conceded that the pain had improved after the operation but he considered that the grip strength in his right hand as compared with the left was still deficient. After the arthrodesis he continued looking for employment and eventually found a temporary job with the Lands Department in March 1986. Although dignified by the title of Intermittent Crown Land Warden, this job essentially involved his cleaning of lands and facilities under the control of the Department in the Seven Mile Beach, Carlton Beach and Meehan Range areas. He travelled between these locations by four–wheel drive vehicle and was obliged to use rubber gloves because of the nature of his work. He sustained a second injury to his right hand after cutting it on glass but no suggestion was made that this had increased his present disability. This job lasted until June of 1986 and as he had found the Lands Department a congenial employer, he applied for and obtained a similar position in December 1986. In the interim period he was without employment. On this occasion the job lasted until May 1987 but there was a new problem with the job as the Toyota Hilux vehicle that he had driven on the earlier occasion, was no longer available and he was required to drive a different vehicle which proved somewhat more difficult. These difficulties were increased when he was given an old model Land Rover which had very heavy steering.
Three weeks after finishing with the Lands Department in May 1987, the plaintiff secured a job as a taxi driver for City Cabs. He held this job at the time of the trial in November 1987 and said that although re–employment with the Lands Department had been offered to him, he doubted whether he would take up that offer in future because of the difficulties he had experienced driving the Land Rover. Mr Charles Pecats a Crown Land Warden, who at the time of his employment was the plaintiff's immediate superior, confirmed that the Land Rover is a vehicle with heavy steering and that if the plaintiff accepted employment with the Lands Department, he would be unlikely to be given the option of an alternative vehicle. The plaintiff said that he performs his taxi driving duties on the Eastern Shore in preference to the Western Shore and at night in preference to daytime because his hand gives too much trouble if he is driving continuously. He says that he has fewer corners to negotiate, less traffic to cope with and longer gaps between jobs when he is working from his present location. He described the situation with his hand at the time of the trial as follows:
"Weather changes cause a lot of problems. If I give it a hit at all or I hurt it at all or jar it, I can dry retch. I believe my right hand is about 50% the strength of my left hand."
He also said that the pain in the hand varies but he is not often without pain. He said that he would have pain probably 6 days a week. He said:
"Depending on what I am doing it can be very severe. As I am now driving taxis, by Friday night I have a lot of trouble holding the wheel. By Saturday night I have a lot of trouble holding the wheel. I get an extreme tightness in my thumb. I get pain going straight through to the other side of my hand, a hell of a lot of trouble holding the wheel and many times I feel like knocking off at about 12 o'clock."
He said that while he was in Court giving evidence the hand was "good". It was slightly aching but compared with what it had been in the previous two weeks, it was quite a relief. He says he is still unable to bowl a whole match right handed and has taught himself to bowl with the left hand. He has completed the renovations on his parents home and has moved into a flat where he mows his own lawns. I am of the opinion that the plaintiff's evidence as to his pain and disability, whilst basically truthful, was exaggerated or overstated to some degree. I accept that the plaintiff has a right hand which in a mechanical sense, has a disability of the order of 15% – 20%. I accept that the hand is frequently uncomfortable and often painful and from time to time it is a source of severe pain if knocked, subjected to extremes of temperature or overworked by repetitive or protracted use in many activities. It is a significant disability for a young man of the plaintiff's age seeking to obtain and retain employment in the unskilled or semi–skilled areas in which he has experience. Whilst it cannot be said that his employment with the defendant company was necessarily a long term commitment on his part or, indeed, on theirs at the time he sustained the injury, he did have a good record of fairly continuous employment alternating with academic study prior to that time. Since then, his employment has been considerably more intermittent and I think it fair to say that he is now more limited in the type of employment which he can accept and keep. I think that heavy duty truck driving is probably not a realistic option but that driving light commercial vehicles and taxis is within his capability. He therefore has some limitations upon his employability and is at a disadvantage in the labour market.
However, the plaintiff is an intelligent young man who still has many employment avenues open to him. He has shown a considerable capacity for adaptation in the past and I have no doubt that he will be able to use this facility to his advantage in the future. Nonetheless, he has suffered an invasion of his bodily integrity and has quite clearly been distressed by his experience. His residual disability though not immediately apparent to a prospective employer, may well place any position which he secures involving sustained use of the hand at risk. If he manages to keep such employment he will do so at the cost of a not insubstantial amount of pain.
The evidence available does not enable me to make a mathematical assessment of the wages that he has lost since the date of the accident. There are many complicating factors in this equation, not the least of which results from the plaintiff having sustained a neck injury in a motor accident on 27 January 1983. This accident resulted in his disablement for a period of time and the payment to the plaintiff of a moderate sum for damages including, I infer, compensation for temporary loss of earning capacity. This latter injury does not appear to be causing the plaintiff any current disability.
Mrs Lola Lenz, the paymistress at Hazell Bros Limited, gave evidence about the average earnings in the 3 months prior to the trial of truck drivers in various categories employed by her company. I have found these figures most useful but I do not regard them as a base upon which one can mathematically calculate the plaintiff's future loss of earning capacity by comparing those figures with his present earnings as a taxi driver. In my view, this is a case in which a broad assessment of damage for economic loss from the date of the accident is preferable to the method of mathematical calculation coupled with a discount which is frequently adopted in some cases. In assessing the plaintiff's entitlement to damages for lost earning capacity, I have not overlooked the fact that whilst he was recuperating for several months after each operation on his thumb, he was unemployable in any capacity. However, no evidence was given establishing his actual loss of wages during these periods.
A document was put in evidence during defence counsel's closing address, giving details of workers' compensation payments made to the plaintiff. These consisted of weekly payments between 7 May 1980 and 2 November 1981, amounting to $5,613.17, direct payments to the plaintiff for travelling and pharmaceutical expenses $471.21, Hospital $1116, Medical $1,103.80 and lump sum payment and interest $4680, a total of $12,984.18. The defendant as the plaintiff's employer is entitled under the Workers' Compensation Act 1927, s8E to recover any "compensation" which it has paid to the plaintiff in the event of his receiving damages at common law. In my view, only the amounts of $5,613.17 and $4,680.00 can properly be regarded as "compensation" in the context of this case and consequently only $10,293.17 is deductible from the plaintiff's award of damages. Despite the definition of "compensation" in s8F the costs paid under s8A should plainly not be repaid by the plaintiff for the simple reason that he has not sought to recover any such costs as special damages in this action.
In my opinion, the plaintiff's damages should be assessed as follows:
1
Pain, suffering and loss of amenities of life
$21,000.
2
Lost earning capacity
$95,000.
3
Agreed special damages as per memorandum from counsel dated 19 November 1987
$ 675.41
$116,675.41
4
Less compensation paid to the plaintiff
$ 10,293.17
$106,382.24
0
6
0