Wdelaide Brighton Cement v Harkins No. Scgrg-97-972 Judgment No. S6605

[1998] SASC 6605

ADELAIDE BRIGHTON CEMENT v HARKINS

Full Court:  Matheson, Prior and Debelle JJ
Prior J

The respondent successfully sued the appellant for damages for injuries suffered on 11 or 12 and 30 October 1990 while employed by another company, Rexco Pty Ltd, and working at the appellant’s premises. 

The trial judge found the respondent guilty of contributory negligence and reduced part of the damages by 20 per cent.  The respondent appeals against the finding of contributory negligence.  That finding related to the injuries attributable to the injury suffered on 30 October.  The appellant complains that the damages assessed are manifestly excessive.

Rexco is a labour hire firm.  It supplied workers to the appellant when it required additional assistance in its dry mix plant.  The respondent was introduced by a supervisor of his employer to one of the appellant’s workers, who told him what to do.  The respondent had worked casually for Rexco at the appellant’s dry mix plant for some days before October 1990.

The respondent was one of two Rexco employees brought in during the morning shift of 11 October to clean up a spill of cement dust.  They continued in this work on the following day, using twenty litre metal buckets to carry dust they were cleaning up to a waste bin.  Two weeks after this work the respondent saw Dr Hughes, complaining of a right shoulder injury.  He returned to work but ceased work on the morning of 30 October because of a left shoulder injury.  He saw Dr Hughes again later that day in relation to that injury.

The trial judge found that the cement spill resulted from the escape of a substantial quantity of cement powder from a broken coupling on a rubber pipe, which occurred early in the morning shift of 11 October 1990.  In emptying buckets of cement dust into a waste bin, on 11 and 12 October, on numerous occasions the respondent was required to lift the bucket, weighing approximately 25 kilos, to about his shoulder height.  At some point towards the end of this particular job the respondent, while emptying the bucket of cement dust into the bin, experienced for the first time a sharp pain in his right shoulder and thereafter had pain in that shoulder.

The trial judge also found that after the respondent first experienced this right shoulder pain he continued to work normally at the appellant’s premises as a trades’ assistant and labourer.  Because the pain symptoms in the right shoulder persisted, the respondent first went to see Dr Hughes on Friday, 26 October.  The trial judge found that the doctor did not certify the respondent as unfit for work.  The respondent returned to work on the following Monday.  The trial judge rejected the respondent’s evidence of specific complaints about this injury to the right shoulder to various of the appellant’s employees.  The trial judge accepted the respondent’s evidence that he was frightened he would lose his job if he told the truth about his shoulder.  The trial judge found the respondent worked on, without seeking time off or lighter duties, putting up with some pain in the shoulder.  The trial judge did find that there was "some informal mention of his shoulder problem" to the appellant’s leading hand before the further incident of 30 October.  The trial judge also found that it was also likely there had been some casual reference, by the respondent, to having some minor shoulder problem during conversations with various lower level employees of the appellant in the lunch room.

As to the injury sustained on 30 October, the trial judge found that shortly before 11.00 am the respondent was working on a bagging machine in the appellant’s dry mix plant.  When a new batch came through from a mixing machine it was necessary to weigh the first two bags filled to ensure that they were of the correct weight.  The respondent lifted the bag from scales on to a nearby pallet.  In doing so he suffered pain in his left shoulder.  Because of the problems he was then having with his right shoulder, he attempted to take most of the weight of the bags on his left side and thus placed undue strain on his left shoulder.  The bags which the respondent was lifting weighed 40 kilos.  The respondent reported the problem with his left shoulder to one of the appellant’s employees and left work early, at 11.00 am. 

Contributory Negligence

No challenge is made to the findings of negligence made against the appellant with respect to the systems of work applicable when the injuries to the shoulders were sustained.  The trial judge declined to find the respondent guilty of any contributory negligence in relation to his right shoulder injury.  With respect to the injury to the left shoulder, the trial judge found the respondent guilty of contributory negligence on the ground that he should have made a full and frank report to the appellant about the difficulties he was experiencing with his right shoulder.  The trial judge’s view was that even if, as the respondent said, he told his employer about his right shoulder injury before 30 October, the respondent was not thereby absolved reasonably from also informing the appellant of the true situation about his right shoulder.  The trial judge accepted that the respondent had informed an employee of the appellant, Mr Mavrojianis about some problem with his shoulder but the trial judge found that that was not a full and frank disclosure of the true situation about the right shoulder.  The trial judge said that if the respondent had made a reasonably full disclosure of his continuing problems to the appellant it may well have led the appellant to take steps which would have prevented the left shoulder injury which the respondent sustained.  Upon that basis, the trial judge reduced the damages attributable to the left shoulder injury by 20 per cent, for contributory negligence.

On the cross appeal, the respondent’s counsel submitted that this Court should find that the respondent was not guilty of any contributory negligence.  Persistence should have been accepted as the explanation for the respondent not seeing Dr Hughes until 26 October.  Besides that, there was no suggestion from Dr Hughes that the respondent should have time off work.  The doctor’s evidence was that he prescribed rest but that was in the context of continuing to work.   The doctor spoke of the respondent altering his duties at work and changing his role there.  The respondent’s counsel correctly put it that there was no suggestion, anywhere in the evidence, that the respondent was told that to continue to work was to put his left shoulder at risk.  Had the injury sustained on 30 October been an aggravation to the original right shoulder injury, a finding of contributory negligence could well be justified.  It was put that unless, some how or other, the respondent either knew or ought to have known that by continuing to work with an injury to one shoulder he thereby put at risk the other, a worker continuing to work should be commended rather than found guilty of contributory negligence. The  proper finding was that there was no failure on the respondent’s part to take care for his own safety.  Mr Mavrojianis had been informed of the injury to the right shoulder.  Thus the appellant was on notice but did nothing.  It was also put that the work being done on the bagging machine was not very heavy work.  In all the circumstances it was not appropriate to criticise the respondent for what was an error of judgment, not contributory negligence.  Overall, I think the submissions advanced for the respondent are correct.  In my judgment the respondent was merely inattentive or inadvertent but not negligent .  The respondent should not have been found guilty of contributory negligence.  I would allow the cross appeal.

The Appeal Against The Assessment Of Damages

The appellant complains that the sums assessed for economic loss and pain and suffering are manifestly excessive.  The trial judge awarded $155000 as damages for past economic loss and $110000 for future economic loss.  The award for non-economic loss was $5000 for the past and $35000 for the future.

The respondent was born in 1958.  He was thirty-nine years of age at the time of trial.  He left school at the age of fifteen, working in a variety of generally unskilled employment.  In 1976 he injured his back, which still gives him occasional problems.  He married at the end of 1984.  His wife managed the finances of the family, being experienced in commercial matters and having worked for a sharebroker and in various secretarial and administrative positions.  Shared parenting responsibilities saw the respondent at home for some eighteen months before the couple’s only son went to school.  His wife worked to provide the family’s income.  By this time, the couple had commenced a hobby of keeping, breeding, training and racing greyhounds.  This interest no doubt contributed to a change in work patterns pursued by the respondent after the 1990 injuries.  The respondent’s son started school in 1990.  The respondent commenced his employment with Rexco in March of that year, working at a variety of places and often grossing between $700 and $800 per week.  The work was usually heavy manual work.  The respondent was admired by his employer as a willing worker with a positive attitude, prepared to do dirty and heavy work which other employees were often reluctant to do.  For the financial year ended June 1990, the respondent’s gross taxable income was $25340.  The trial judge found the respondent was motivated to work, enjoyed it and was hoping to find suitable permanent employment, through his employment with Rexco, with one of its clients.  The marriage and family life were happy.

The respondent’s condition was first diagnosed by Dr Hughes on 30 October as involving a left rotator cuff injury, for which anti-inflammatory medication and physiotherapy were prescribed.  The respondent was said to be unfit for work then in contrast to what had happened with respect to the injury to the right shoulder.  The respondent received physiotherapy and acupuncture.  He complained about his right shoulder.  Capsulitis was the diagnosis for the condition in that shoulder.  He received physiotherapy and underwent chiropractic treatment on both shoulders.  Continuing complaints of pain saw the prescription of anti-inflammatory tablets and sleeping pills.  In February 1991 the respondent had a cortisone injection into the right shoulder.  In August 1991 he saw a rehabilitation counsellor.  The respondent pursued a programme of work-hardening and returned to Rexco, part-time on light duties, at the end of 1991. 

In March 1992 he resigned from Rexco.  The trial judge rejected the respondent’s evidence that he was told that no more light duties were available and found that the respondent chose to resign to run a pet food business, using contacts he had developed in the dog racing industry.  The trial judge also found that the respondent believed he could obtain a lump sum payment from Workcover to help set up the business.  In fact no payment eventuated until 1995.  The pet food business commenced in April 1992.  It was set up in a way which sought to minimise any strain on his shoulders associated with the lifting and manoeuvering of pet food, particularly kangaroo meat.  The trial judge found that the respondent had significant pain in both shoulders, from the
physical activity required of him in the business, but that he was very enthusiastic and determined to succeed, putting up with the pain as best he could.  The pain meant the respondent continued to see his general practitioner, taking pain killing and anti-inflammatory medication and having chiropractic and physiotherapy treatment. 

The business recorded a loss in its first year of operation.  In 1993 the respondent’s problems with his shoulders continued.  The business was still not profitable.  In April 1993 the respondent was referred to an orthopaedic surgeon, Mr Sandow.  He performed arthroscopic surgery on the respondent’s right shoulder, after diagnosing a possible partial rotative cuff tear with sub-acromial impingement.  With physiotherapy and hydrotherapy treatment on that shoulder some improvement was noticed for six months before it deteriorated back to what it had been before the surgery.  The respondent continued to have difficulty sleeping.  The trial judge found that he became increasingly frustrated because of his pain and the difficulties with his business.

In mid 1994 the respondent consulted his general practitioner about emotional problems and depression.  At the end of 1994 the respondent was examined by an orthopaedic surgeon, Mr Fry, and told that he had clear mechanical impingement problems in both shoulders.  He was referred to another specialist to consider further treatment.  An appointment was made for the respondent to see Mr Maguire just before Christmas of that year.  However, about a fortnight before that appointment, the respondent attempted suicide by taking an overdose of medication.  He was referred to Dr Jagermann, a psychiatrist, who continues to treat him.  There is no doubt, as the trial judge found, that by December 1994 the respondent had become very depressed through continuing frustration arising from his shoulder pain, his consequent problems in sleeping, delays in legal claims and the inability of the medical profession to treat his problems effectively.  So bad was the respondent by this time that within a week of Christmas he fell after stubbing his toe and tripping over a brief case.  This caused him to lose his self-control and in great anger, punch a glass pane in an internal door, with his right fist, three times.  He received micro surgery at the Flinders Medical Centre for lacerations of various arteries, nerves and tendons in his right hand and wrist.  On the day of discharge from the Flinders Medical Centre, the respondent kept his appointment with Mr Maguire.  However, Mr Maguire was unable to examine the respondent’s right shoulder because of the injuries to his hand and wrist.  The respondent was admitted to the Fullarton Private Hospital, where he remained for six weeks and was given various tranquillising medications.  The respondent returned home in early February 1995.  He failed to take his prescribed medication.  He returned to training and racing his dogs.

On 4 May 1995, Mr Maguire operated on the respondent’s right shoulder, excising a bursa to remove a tuberosity impingement.  The respondent was in hospital for ten days.  After some initial pain, the shoulder has improved.  The respondent spent six weeks in the Fullarton Hospital after this surgery, for psychiatric monitoring and treatment.  In August 1995, Mr Maguire performed a similar operation on the respondent’s left shoulder.  He was in hospital for three days and then spent another six weeks in the Fullarton Hospital following his surgery.  The left shoulder also improved as a result of the surgery.

Later in 1995 the respondent returned to working in the pet shop but depression troubled him and gave him difficulty in dealing satisfactorily with customers.  The financial position of the business was improving but the strain was telling on the marriage.  The respondent’s wife was also under medical treatment for depression.  The business was sold early in 1996.  The trial judge found that the medical conditions of both the respondent and his wife were then such that it was necessary for them to sell at that time even though they were hopeful that the business could shortly become profitable.  The respondent has not worked since the sale of the shop.  He has done very little.  There has been some involvement with his dogs.  He has continued with chiropractic treatment for his shoulders.

The respondent and his wife separated soon after the sale of the shop.  This prompted the respondent’s readmission to the Fullarton Hospital.  Attempts at reconciliation of the marriage have failed.  The respondent has been a patient in the Fullarton Hospital since December 1996.

In assessing damages, the trial judge found that the respondent was pre-disposed to rotator cuff impingement conditions in each of his shoulders because he naturally had tight sub-acromial spaces.  His Honour said that even if there had been no breach of duty by the appellant, it was more likely than not that in the next five to ten years after the 1990 incidents the respondent would have suffered similar conditions in his shoulders to some significant extent through the type of heavy labouring work he was likely to have pursued.  On this approach, His Honour said that, to a substantial degree, the breach of duty by the appellant had "merely hastened by five to ten years a disability in each shoulder which would have been likely in any event".  Thus the respondent’s "present physical limitations for work would have been likely, although not inevitable after that five to ten year period"  The trial judge correctly acknowledged that the respondent had not received a correct diagnosis or treatment for his shoulder problem until he saw Mr Maguire in 1995.  Since the respondent’s 1995 operations the condition of the respondent’s shoulders has substantially improved but he still has some residual problems with pain and minor restrictions of movement.  However, since late in 1995, whilst physically fit for light to moderate work but not for heavy work, he was never again able to undertake the type of heavy labouring employment he did before  October 1990.  The incapacity to cope mentally or emotionally with things since December 1994 has effectively made him unemployable. 

The trial judge found that, but for the October 1990 injuries, things might not have been as devastating for the respondent but that it was more likely than not that in five to ten years after October 1990 the respondent would have been mentally and emotionally impaired to some significant degree as a result of his physical disabilities.  On this basis, the trial judge’s view was that not all of the respondent’s likely long-term psychiatric disability could be held to be caused by the negligence of the appellant.  The trial judge assessed an economic loss upon the basis that, up until trial, the respondent had suffered a total loss of earning capacity less anything derived from the pet food business.  His Honour acknowledged that the respondent was likely to have received considerably more in cash from that business than he admitted.  The trial judge used the common ground figure of gross earnings of $500 per week in 1990.  He made some allowance for the possibility of unemployment, had there been no injuries, but in view of the respondent’s good work history and his motivation to work, the trial judge said the discount was to be small.  His Honour said he made but a small discount from the past economic loss for the contingency that Mr Maguire spoke of.  He assessed past economic loss at $155000. 

The appellant says that the sum arrived at assumes an annual loss in excess of $23000.  This is said not to take account of the fact that the respondent may well have been unable to work, irrespective of the incidents at work in October 1990, after a period of five to ten years.  It was complained that the trial judge failed to make a deduction for the fact that the respondent returned to light to moderate duties in 1991 and then voluntarily chose to devote his time to his business.  That capacity for light to moderate work remained until the psychiatric disorder prevented his working in 1994 and 1995.  On this basis the award for past loss of earning capacity was said to be manifestly excessive.

I think the respondent is correct in the submission that, in fact, the trial judge has misunderstood Mr Maguire’s evidence.  Properly understood, the period of five to ten years runs from when Mr Maguire diagnosed the respondent, not from the date of injuries sustained in October 1990.  On this approach, I think the award cannot be said to be anything other than appropriate.  It cannot be said to be manifestly excessive.

With respect to future economic loss, the sum allowed by the trial judge was $110000.  On a proper understanding of Mr Maguire’s evidence there was still some time to go before the respondent’s shoulder condition was likely to have impaired his earning capacity.  The sum awarded of $110000 for future economic loss is reasonable and not manifestly excessive.  A figure of $100 per week, identified as a residual earning capacity gives, on actuarial calculations, a sum of the order of $150000 when added to a sum of around $70000 for 31/2 years future work without impairment.  With an appropriate discount for contingencies the award fixed is a reasonable award.  I would dismiss the appeal against the awards for economic loss.

Non-Economic Loss

With respect to pain and suffering, the argument for the appellant was that the award insufficiently took into account the fact that the appellant was going to have similar disabilities within five to ten years after the accident.  As already observed, that submission cannot be upheld upon the interpretation now placed upon Mr Maguire’s view.  A further fact was said to be that the failure of the business was perhaps more brought upon the respondent because of other factors than the accident.  Gambling was referred to.  It was said that the award fails to properly acknowledge the continuing "very active interest" that the respondent has in dogs.

Against the sorry history of events that have occurred since the October 1990 injuries, I cannot say that the award for non-economic loss is outside a reasonable range.  There is no proper basis made out for interference with the allowance awarded.

The appeal should be dismissed and the cross-appeal allowed.  Thus, the assessed damages of $567582 is the sum that the appellant must pay the respondent together with costs of action in lieu of the sum of $558282 referred to in the judgment in the District Court.

Matheson J

I agree with the orders proposed by Prior J and with his reasons.

Debelle J

I agree with the reasons for judgment of Prior J and with the orders he proposes.
 JUDGMENT CITATIONS LISTED IN ORDER OF APPEARANCE IN JUDGMENT

McLean v Tedman (1984) 155 CLR 306 at 315