Wicks v Electrotechnology Industry Group Training Company Limited

[2004] NSWSC 677

CITATION:	Wicks v Electrotechnology Industry Group Training Company Limited & ors [2004] NSWSC 677
HEARING DATE(S):	17/05/2004, 18/05/2004, 19/05/2004, 20/05/2004, 21/05/2004, 24/05/2004, 25/05/2004, 26/05/2004, 27/05/2004, 28/05/2004.
JUDGMENT DATE:	30 July 2004
JUDGMENT OF:	Hislop J
DECISION:	Judgment with costs for the first and second defendants; Judgment with costs for cross defendants on cross claims.
CATCHWORDS:	Tort - Negligence - Employer's liability - Factual dispute as to liability.
LEGISLATION CITED:	Law Reform (Miscellaneous Provisions) Act 1946
PARTIES :	Brendan John Wicks - Plaintiff Electrotechnology Industry Group Training Company Limited - First Defendant Cold Rae Pty Limited - Second Defendant Christopher Kapetanellis - Cross Defendant
FILE NUMBER(S):	SC 20418/02
COUNSEL:	Mr J Gormly SC with Mr W B Nicholson - Plaintiff Mr N Polin - First Defendant Mr I G Harrison - Second Defendant Mr D J Cochrane with Mr C C Dwyer - Cross Defendant.
SOLICITORS:	Mr G Whiffin (Turner Freeman) - Plaintiff Mr S Cameron (Hicksons) - First Defendant Mr G Covington (Henry Davis York) - Second Defendant Ms D Moscardo (Photios Vouroudis & Co) - Cross Defendant.

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HISLOP J

30 July 2004

20418/02 Brendan John Wicks v The Electrotechnology Industry Group Training Company Ltd & anor

JUDGMENT

1 HISLOP J: In 1998 the plaintiff (date of birth: 31 October 1978) was a fourth year apprentice refrigeration mechanic. He was employed by the first defendant. The nature of this employment was described by a director of the first defendant in the following terms:

“It’s a group apprenticeship company, which is a company that takes on – employs apprentices and finds host employers, sends them out to host employers to be trained in their apprenticeship and fulfil their obligations of their apprenticeship, and on the end of their apprenticeship there is then no obligation, it is purely an apprenticeship scheme. Once they finish their apprenticeship they leave the employ of (the first defendant)”.

2 The second defendant was in the business of refrigeration and air conditioning, sales, service and installation.

3 By an agreement or arrangement between the first and second defendants the second defendant agreed to act as host employer of the plaintiff. Pursuant to this arrangement the plaintiff worked, relevantly, from 4 May 1998 for the second defendant. He turned up for work each day with the second defendant at sites nominated by it. The second defendant supplied a van which the plaintiff was able to keep during the working week.

4 On 1 July 1998 the plaintiff, in the course of such employment, was assisting Mr Kapetanellis, a tradesman refrigeration mechanic, to perform work at a Delifrance store in Park Street Sydney. Mr Kapetanellis was performing the work as a subcontractor to the second defendant. This was the first day the plaintiff had worked at that site.

5 The work, inter alia, required a compressor to be raised from the floor of the Delifrance kitchen and placed on a metal platform above the false ceiling of the kitchen.

6 It is common ground that in the course of this work the compressor was manually lifted from the floor into position above the false ceiling. The plaintiff alleges he was involved in the lifting process and was injured in the course of it. He claims damages in these proceedings from the first and second defendants for such injury which he alleges was caused by their negligence.

7 The first and second defendants have cross-claimed against each other seeking indemnity or contribution pursuant to the Law Reform (Miscellaneous Provisions) Act 1946. The second defendant has cross-claimed against Mr Kapetanellis seeking damages in tort and/or contract and indemnity or contribution pursuant to the Law Reform (Miscellaneous Provisions) Act 1946.

8 The defendants and Mr Kapetanellis have denied liability. They submit:

(a) The lift was not performed in the manner attested to by the plaintiff;
(b) No injury was sustained by the plaintiff in the course of the lift;
(c) If injury was sustained by the plaintiff in the course of the lift it was not caused by negligence on the part of the defendants or Mr Kapetanellis.

9 Mr Kapetanellis had taken measurements at the Delifrance store for the purposes of the hearing. He gave evidence of those measurements. The plaintiff essentially neither agreed nor disagreed with them, he not having carried out any measurements himself. He did however agree that the compressor weighed 38 kilograms and that an A-frame ladder was used in the task.

10 I accept Mr Kapetanellis’ evidence on these matters and find:

(a) The kitchen area was 1.9 metres wide and 2.9 metres long. The height from the floor to the false ceiling was 2.43 metres;
(b) There was a square manhole in the false ceiling. It measured 50 centimetres by 50 centimetres. Access to the area between the false and actual ceiling through the manhole was obtained by opening a hinged cover;
(c) The metal platform on which the compressor was to be located was 10-15 centimetres above the false ceiling and extended 26 centimetres into the area of the manhole space;
(d) An A-frame ladder was used in performing the task. It had five steps on each side with a flat platform at its apex. It had a width at the base of 53-55 centimetres. In the A-frame configuration the ladder was 1.8 metres in height. Its apex was 63 centimetres below the false ceiling when upright and in the A-frame configuration;
(e) The compressor was cylindrical. It was 35-37 centimetres high and 22-23 centimetres wide. It weighed 38 kilograms. It had four feet on the base.

The plaintiff’s evidence

11 The plaintiff’s evidence of events leading up to the incident, shortly stated, was that on 30 June 1998 he had been told to attend at the Delifrance premises on the following day where he was to meet Mr Kapetanellis; he received no instructions as to what work he was to carry out there; he attended on the following day; Mr Kapetanellis was not there; he observed no signs of work on the site; he had to wait a considerable period of time before Mr Kapetanellis arrived; ultimately Mr Kapetanellis arrived; the new compressor was obtained from Mr Kapetanellis’ van; the new compressor was in a carton and was wheeled on a trolley to the kitchen of Delifrance by him; he and Mr Kapetanellis then returned to the van and took from it an A-frame ladder, some tools and oxy-acetylene equipment; these items were taken to the kitchen; the ladder was set up in its A-frame configuration under the manhole, the cover to which was opened; the men then went for a long extended lunch, which finished about 1.30pm; they returned after lunch to Delifrance and commenced work; the plaintiff did not assist in the removal of the old compressor as it had been removed on a previous occasion by Mr Kapetanellis and was in his van; the A-frame ladder was opened out to 180 degrees and extended into the ceiling through the manhole; Mr Kapetanellis was standing on the flat platform of the ladder; he told the plaintiff, “if you can pick this compressor up and give it to me up here in the ceiling, your day is over, you can go”.

12 The plaintiff described the circumstances of his injury in the following terms:

“Q. What did you then do?
A. I picked the compressor up off the floor. As I was doing that I felt a very sharp twinge.

Q. When you first picked it up?
A. When I first picked it up and then, as I proceeded to go over to the ladder, he then gave me some instructions along the lines of, "Just step the step, put it up step for step, just get it up to me" he said. And then I kind of struggled on the first step and it nearly fell and he said, "Don't drop it.”

Q. What caused you to struggle?
A. Oh, it was just so awkward because the feet extend out.

Q. The feet of the compressor?
A. Yeah, they sit in the ceiling. As I manoeuvred it up step for step, I then had to get on the ladder myself. I'd run out of height. He was leaning off the side of the ladder, with one foot on the ladder, hanging awkwardly into the ceiling and then - there wasn't a great deal of room - I then climbed up the ladder and progressed with the compressor and tried to manoeuvre it awkwardly, to push it above me head, and then that was when I felt another sharp twinge and nearly - I struggled not to fall.

Q. At the time you lifted it above your head, how far up the ladder were you?
A. I believe I was about three rungs up the ladder, around about, if not a fraction, maybe one more above that.

Q. Would that have got the compressor above the full ceiling level?
A. It was. Whilst I was fully extended with my hands up it was at the height where Chris could just manoeuvre it across without taking any of the weight.

Q. And is that what happened?
A. That's exactly what happened.”

13 The plaintiff’s evidence was that, following the lift, he remained for about an hour, sitting on a bench in the kitchen and handing up tools to Mr Kapetanellis, who continued working in the ceiling from the ladder. During this time his back was “very discomfortable”; Mr Kapetanellis asked the plaintiff to take the old compressor and dump it at Rockdale on his way home; Mr Kapetanellis and the plaintiff walked to Mr Kapetanellis’ van and transferred the old compressor from it to the plaintiff’s van; whilst walking to the van the plaintiff said to Mr Kapetanellis, “Gees, my back’s sore”; he had said nothing to Mr Kapetanellis about his back prior to that time; the plaintiff drove home, dumping the old compressor on the way as agreed; his back was getting worse; on arrival home he got his gear and went to football training (the plaintiff was a reserve grader for the Cronulla Rugby League side); he left football training early because of his back, returned home, had a hot shower, took two Panadol and went to bed.

Mr Kapetanellis’ evidence

14 Mr Kapetanellis’s evidence was that he had visited the Delifrance premises on the previous day. He had returned early in the morning of 1 July 1998 and had done some work, leaving the ladder in its A-frame configuration whilst he went to pick up the new compressor. He subsequently met the plaintiff and they together removed the old compressor; Mr Kapetanellis took the old compressor from its place on the platform above the false ceiling and placed it upon the flat platform of the A-frame ladder, which ladder was in its A-frame configuration. He and the plaintiff then together lifted the old compressor from the platform of the ladder to the floor; the old compressor had remained in the kitchen until later when it was taken by the plaintiff and presumably placed in his van to be disposed of; Mr Kapetanellis did not accompany the plaintiff back to his van at that time.

15 Mr Kapetanellis’ evidence as to the lifting of the new compressor was that the ladder was at all times in the A-frame configuration; that he and the plaintiff, together, lifted the compressor from the floor and placed it on the flat platform at the apex of the ladder. This lift was performed with each man using his legs and lifting with a straight back on the count of three. The whole weight of the compressor once placed on the apex of the ladder was taken by the ladder. The plaintiff and Mr Kapetanellis kept a hand on the compressor to ensure it remained steady. Mr Kapetanellis then climbed into position on the ladder and himself lifted the compressor into the ceiling, the plaintiff helping guide the compressor through the cavity but taking only minimal weight. In response to the question, “When you were doing that did your upper part of your body still remain below the access hatch?” Mr Kapetanellis replied, “Yes, there’s no other way of doing it. There’s no room for myself and the compressor to go into the access hatch at the same time. It’s just physically impossible.”

16 Mr Kapetanellis denied the plaintiff made any comment to him in relation to his back on the day of the alleged injury. He said he first became aware of the allegation when he was told by the second respondent some weeks later.

The general credibility of the plaintiff

17 The plaintiff and Mr Kapetanellis, in their evidence, each categorically denied the description of the lift attested to by the other. There were further inconsistencies. There were no independent witnesses. It was submitted the plaintiff’s version should not be accepted as he was an unreliable and false witness whose version of events was not feasible. The plaintiff contended his version should be accepted and that Mr Kapetanellis’ version should be rejected. It is necessary to resolve these conflicts in order to determine the issue of liability.

18 The veracity of the plaintiff’s evidence was challenged on a number of grounds. Part of the challenge centred around a statement (exhibit XD1) given by the plaintiff to an insurance investigator. The statement was dated 20 August 1998. It was signed by the plaintiff and acknowledged by him at the time to be true and correct. There were a number of inconsistencies between the matters recorded in the statement and the plaintiff’s evidence in Court. Where there were such inconsistencies the plaintiff adhered to his oral evidence in preference to the statement. He said, by way of explanation, that after making the statement he went back to the shop and re-enacted every movement. This caused his recollection to become very clear.

19 Some of the inconsistencies between the plaintiff’s oral evidence and the statement, such as whether he received his instructions to go to Delifrance on the day of the injury or the previous day, whether he was told then what work he was to do and whether he or Mr Kapetanellis wheeled the compressor into the store, do not appear of particular significance in themselves, though they suggest the possibility the plaintiff’s recollection may be unreliable or the product of reconstruction.

20 Other grounds of challenge to the plaintiff’s evidence included the matters discussed hereunder.

21 The Statement of Claim, inter alia, alleged the first defendant “Failed to properly train the plaintiff as to restrictions that should be observed in manual lifting, and in particular, as to not lifting weights in excess of 55 kg alone” and “Failed to warn the plaintiff of the serious risk of injury to himself if he lifted more than 55 kg unaided”. In his statement the plaintiff said the compressor weighed about 150 kilograms. He informed Dr Hudson and Dr Sears whom he consulted in September 1998 that its weight was about 120 kilograms and he overestimated the weight to doctors subsequently consulted. In his evidence he agreed, as was the fact, that the compressor weighed 38 kilograms. He said, when questioned about the weight, that the assessment of 150 kilograms was “total and utter over the top. Misjudged it totally.” As the plaintiff was a professional rugby league player who, as part of his training regime, regularly lifted weights three or four days per week I do not accept the plaintiff made a genuine error of this magnitude, particularly when the weight of the compressor was marked on the carton containing it and, on the plaintiff’s evidence, it was he who had unboxed the compressor.

22 There was a conflict in the evidence as to the existence of prior back problems.

(a) The plaintiff’s evidence in chief was that he had only had one prior occasion of back pain. It had occurred during his mid-teens. He had two weeks of physiotherapy and “then all was good. I haven’t had a problem since”.

(b) Radiological examination of the plaintiff’s spine subsequent to the alleged incident at Delifrance showed desiccation of discs and a fracture through the tip of the transverse process of L3. This pathology pre-existed 1 July 1998. The plaintiff conceded under cross-examination that he had had back problems on two occasions, once when he was aged 14 in his left upper back, and once when aged 16 in his right lower back, though not quite as low as the problem which he now had. He asserted that those symptoms had long since cleared and he had had no back pain since shortly after those events until the subject incident.

(c) The plaintiff was treated by Dr Wilding for an injured knee. Dr Wilding reported (report 18 June 1997, exhibit 4) that the plaintiff “does have some back ache at present and I have told him to have some physiotherapy for that”. A report of Dr Matheson dated 20 May 1999 (part of exhibit W) recorded a few niggling bits of back pain following the onset of back pain four years before and a recurrence of that injury in the alleged incident of 1 July 1998.

(d) Dr Malouf recorded (exhibit XD6) that on 2 July 1998 the plaintiff gave a history of severe back pain four years before which went away, that he “had a niggling pain since” and that he had had low grade back problems most of the year.

(e) A physiotherapist who the plaintiff consulted on 2 July 1998 after seeing Dr Malouf recorded (exhibit XD7) that the plaintiff complained of lower back pain with referral into the right buttock. Has had off/on over last few months this week ? +++.

(f) The plaintiff did not concede he had given any such histories to the doctors and physiotherapist. However there is no objective basis upon which to conclude the histories were wrongly recorded. I find the plaintiff did have symptoms as recorded by the doctors and physiotherapist. I am unable to accept the plaintiff had forgotten the complaints, at least those made to Dr Malouf and the physiotherapist.

23 In his evidence the plaintiff said he and Mr Kapetanellis had a long extended lunch finishing about 1.30pm and subsequently they commenced work and the injury occurred. There was no mention of the lunch in his statement. In his Workers Compensation claim form dated 21 July 1998 (exhibit L) the plaintiff stated the injury occurred about 12.10pm. In his statement the plaintiff said he had not done weight training on the Tuesday because of work but that he usually caught up with weight training on Wednesdays and Fridays. The later the plaintiff finished work the less likely he would have been doing weight lifting at training on the day of the alleged injury.

24 The plaintiff made a claim for loss of future earnings as a footballer. He was cross-examined on the basis that his footballing prospects were not good as he had been demoted from 5/8 to centre in the reserve grade side for the previous two matches. The plaintiff stated that this had happened, not because of any lack of ability on his part, but because another player, Blaine Stanley, who was favoured by the Cronulla officials, had to be slotted into the side as 5/8. The rugby league programmes (exhibits S 10 and S 11) for the two games in which the plaintiff played centre showed that on neither occasion was Mr Stanley selected as 5/8.

25 A lengthy video of the plaintiff’s activities showed the plaintiff engaging with apparent ease in many physical activities, activities in which it was unlikely he would have engaged if they were productive of pain. When challenged in this regard the plaintiff explained that he was able to do such things because of his regular use of Panadeine Forte. When cross-examined as to where he obtained the Panadeine Forte the plaintiff’s evidence appeared evasive, creating the impression it was unlikely he resorted to Panadeine Forte on any regular basis.

26 As a result of the matters referred to in [21] – [25]. I have concluded the plaintiff’s evidence, at least in some respects, was unreliable, and, in relation to a number of matters, deliberately so. Consequently it is necessary to closely examine the plaintiff’s evidence as to the critical liability questions.

The general credibility of Mr Kapetanellis

27 Mr Kapetanellis gave a statement to the second defendant’s solicitor. The statement was dated 20 March 2003 and signed by him. Mr Kapetanellis was cross-examined upon the statement. He conceded he had erroneously stated therein that he had been informed by the second defendant that someone from the second defendant would bring the replacement part with them and that the plaintiff went and picked up the new compressor. He asserted his recollection improved after giving the statement. These matters raise the possibility that Mr Kapetanellis’ recollection may also be unreliable or the product of reconstruction.

Liability

28 I turn now to the major factual questions relating to liability. Those questions are:

(a) Did the plaintiff assist Mr Kapetanellis to remove the old compressor from above the ceiling at Delifrance?
(b) Was the A-frame ladder extended or not when the injury allegedly occurred?
(c) How was the lift performed?
(d) Did the plaintiff sustain injury in the course of the lift?
(e) Was the lifting procedure negligently performed?

These issues are considered seriatim hereunder.

Did the plaintiff assist Mr Kapetanellis to remove the old compressor from above the ceiling at Delifrance?

29 There was a clear conflict in the oral evidence on this question. The plaintiff asserted he did not assist Mr Kapetanellis. Mr Kapetanellis asserted the contrary. I accept the evidence of Mr Kapetanellis and reject that of the plaintiff on this point. I do so principally because the plaintiff in his statement said he assisted Mr Kapetanellis to remove the old compressor and because Mr Kapetanellis in the Service Maintenance Report which bears dates 30 June 1998 and 1 July 1998 (exhibits K and XD15) stated “removed old motor with help from Brendan”.

Was the ladder extended or not when the injury allegedly occurred?

30 Again the oral evidence of the plaintiff and Mr Kapetanellis was diametrically opposed. Mr Kapetanellis asserted that at all times the ladder was used in an A-frame configuration. The plaintiff’s evidence was that once the ladder was brought into the kitchen Mr Kapetanellis erected it into an A-frame configuration, just to open up and expose the unit, then subsequently fully extended it.

31 The evidence in the plaintiff’s statement was supportive of Mr Kapetanellis’ assertion in that:

(a) There was no reference in the plaintiff’s statement to the A-frame ladder being extended at any time;

(b) The plaintiff said he wheeled the compressor in on the trolley to a point at the bottom of the ladder in the kitchen area. This supports Mr Kapetanellis’ evidence that he had left the ladder in situ before the plaintiff had arrived on the site that morning;

(c) The statement refers to the use of “the two metre high ladder” when the plaintiff assisted Mr Kapetanellis to remove the old compressor from above the ceiling. This suggests the ladder was used in its A-frame configuration to remove the old compressor. If the ladder was used in its A-frame configuration to remove the old compressor it is probable it was used in this configuration to put the new compressor in place. The statement supports this inference. I have already found the plaintiff, contrary to his evidence, did assist in the removal of the old compressor.

32 Mr Kapetanellis’ credibility was strongly challenged on this issue. Mr Kapetanellis had taken photographs of the site. Included in those photographs was an A-frame ladder. That ladder had the appearance of one which could be extended. Those photographs were tendered by the plaintiff. Mr Kapetanellis later produced in court an A-frame ladder for demonstration purposes. This ladder was not extendable. He also produced photographs of a blue ladder (exhibit XD21, 22) which he said was the one which had been used at the time of the alleged incident. He subsequently produced a blue ladder the apex platform of which was broken. The blue ladder was not extendable. Mr Kapetanellis was cross-examined as to whether an extendable A-frame ladder had been used at Delifrance on 1 July 1998. Mr Kapetanellis appeared somewhat uncomfortable during this part of the cross-examination and his evidence was not entirely convincing. It did not to my mind exclude the possibility an extendable A-frame ladder had been used on that occasion. However even if an extendable A-frame ladder had been used it would not necessarily follow that it was used in an extended form.

33 The plaintiff, in his evidence, described Mr Kapetanellis as being in the cavity of the roof leaning left to make room for the compressor to be passed up to him. He confirmed Mr Kapetanellis’ head and upper body were in the ceiling cavity and that a third of his body from the knees down was below the ceiling when the compressor was lifted through the manhole.

34 The space available in the manhole, when allowance was made for the base of the platform on which the compressor was to be placed, was 24 centimetres, apart from a small area to which the base did not extend. The width of the compressor was 22-23 centimetres. This left free space of 1 to 2 centimetres. Mr Kapetanellis was a strongly built thick-set man. I agree with the contention of the defendants and Mr Kapetanellis that if Mr Kapetanellis’ body, or even just his legs, was partly on the ladder and partly through the manhole it would not have been possible for the compressor to be lifted through the manhole and into position. Mr Donohue, who was called as an expert on behalf of the plaintiff, stated that it would have been difficult, but not impossible to do so. I do not accept Mr Donohue’s evidence in this regard.

35 A further impediment to the ladder being in the extended position was that the plaintiff in his evidence seemed to say that the ladder was extended into that part of the ceiling where the platform was located and the manhole cover was hinged. If this was so it would throw further doubt upon the likelihood of the ladder having been used whilst extended. Additionally, the width of the base of the ladder was greater than the width or length of the manhole which again suggests the ladder was not used whilst extended.

36 I find that the ladder was in the A-frame configuration when the compressor was taken through the manhole and placed on the platform. I accept Mr Kapetanellis’ evidence that his upper body was not within the cavity when he lifted the compressor into the ceiling space.

How was the lift performed?

37 Once again the evidence of Mr Kapetanellis and the plaintiff was in conflict. The plaintiff asserted that he lifted the compressor from the floor and then put it up step for step on the ladder, then pushed it above his head. Mr Kapetanellis asserted there was a team lift by the plaintiff and himself. They used their legs, kept their backs straight and lifted the compressor straight up and placed it on the apex of the A-framed ladder, thereafter the weight was essentially taken by the ladder and then by Mr Kapetanellis.

38 Mr Kapetanellis’ evidence was challenged in this regard. It was put to him that the statement he had signed recorded that he said “I do not recall specifically how we attempted to lift the compressor”. He explained that he had “recalled a lot of the day and the lifting procedures” since that statement, that when he was asked to give the statement that was the first time he had been asked about the lift in relation to 1 July 1998 and that at that stage he was not a party to the proceedings and was unaware that proceedings were on foot.

39 The whole of the terms of the statement are not before me as it did not become an exhibit. However there was evidence that he had said in the statement that “two persons carrying the compressor and sharing the weight is usually sufficient for a compressor of this type”. It was put to him that in the statement he had given a description of how he said the old compressor was lifted out and how the new compressor was lifted in. Plaintiff’s counsel stated in putting the question “It is in some ways similar to the one you gave in evidence, do you agree?” An affirmative answer was given.

40 Accordingly it is not clear to me precisely how, if at all, the statement differs from the account given by Mr Kapetanellis in evidence as to how he removed the old compressor and lifted the new compressor into place.

41 The plaintiff was trained in, and well aware of proper lifting procedures. He said that in lifting the compressor from the floor he used proper lifting procedures. The execution of the lift from the floor to the apex of the ladder described by Mr Kapetanellis was a sensible way to perform the task. He said that it was in accordance with his usual practice (albeit normally he would do the lift by himself) and in accordance with the way the old compressor had been removed. It would be unlikely the method described by the plaintiff would be used as there were two persons present to make the lift. The onus is upon the plaintiff to establish that the lift was performed in the manner which he alleges. I am not satisfied on the evidence that it was performed in that way.

Did the plaintiff sustain injury in the course of the lift?

42 As previously stated, there was no independent witness to the lifting procedure. The plaintiff said he sustained injury at the time. Mr Kapetanellis did not support such a claim. It is necessary to consider the evidence bearing on this issue.

43 The plaintiff in his evidence described the symptoms felt by him during the course of the lift as “very sharp twinge”, “quite excruciating, like getting a dagger stuck in you”. Dr Silva (report 15 December 2000, exhibit 5) recorded a history from the plaintiff that he had lifted the compressor up to shoulder level when he doubled up with back pain. The plaintiff agreed with this history. Clearly on the plaintiff’s description a significant painful event or events occurred during the course of the lift. He described his condition thereafter before he left Delifrance as “very discomfortable”.

44 In those circumstances, if the plaintiff’s evidence was true, it would be expected he would have told Mr Kapetanellis at the time that he had hurt his back and that the injury had occurred whilst performing the lift. It would be likely the occurrence of injury or that the plaintiff was in pain would have been obvious to Mr Kapetanellis.

45 Mr Kapetanellis asserts the plaintiff said nothing to him about his back on 1 July 1998 nor was there any indication the plaintiff suffered an injury or was in pain so far as Mr Kapetanellis’ observations went.

46 The plaintiff says that he said to Mr Kapetanellis when returning with him to the van to transfer the old compressor from Mr Kapetanellis’ van to the plaintiff’s “Gees, my back’s sore”. Mr Kapetanellis in his statement said the old compressor would have been conveyed by the plaintiff by trolley to the plaintiff’s van. As the plaintiff assisted in the removal from the ceiling of the old compressor there was no reason for Mr Kapetanellis to have accompanied the plaintiff, in order to enable the compressor to be moved from his van to the plaintiff’s van particularly as Mr Kapetanellis had further work to do above the false ceiling. Mr Kapetanellis gave evidence he didn’t accompany the plaintiff back to the van.

47 No note of injury was recorded by Mr Kapetanellis in the Service Maintenance Report though he said he would have done so had the plaintiff reported an injury to him. I accept Mr Kapetanellis’ evidence that the plaintiff did not tell him that he injured his back or that his back was sore on 1 July 1998, nor did Mr Kapetanellis observe any indication the plaintiff suffered an injury or was in pain on that occasion.

48 Mr Kapetanellis gave evidence that he had been told by the second defendant some weeks after the alleged incident that the plaintiff had injured his back whilst working at Delifrance. Mr Kapetanellis said that he had telephoned the plaintiff on the plaintiff’s mobile phone and asked why the plaintiff had not said anything to him at the time. The plaintiff’s answer was “I didn’t realise at the time I hurt myself”. The plaintiff denied the call took place but when requested to provide his mobile phone number (apparently so that it could be objectively established that the call had or had not been made) he did not provide the number and gave no explanation for not doing so.

49 The plaintiff said that he left Delifrance and drove to the tip at Rockdale and pushed out the old compressor. He gave the following evidence:

“Q. After you’d been to the tip and got rid of the compressor where did you then go?

A. I went home.

Q. At home, what did you do?

A. Got my gear for football training and proceeded to go to Cronulla Oval.

Q. What did you do at training that night?

A. It was supposedly for goal kicking practice. I was unable to do goal kicking. It was very windy night and a rainy night, so we did our warm-up stretches inside the dresser sheds, which we didn’t usually do. I was laying flat on my back and tried to stretch out my hammies and I said to Matt Rogers that I had a sore back. I was trying to lift my leg, a leg raise, while I was laying on me back and I couldn’t get it off the floor hardly without being in excruciating pain.
Q. The pain being?

A. In my lower back.

Q. Did you do all of the training that was required of you that night or not?

A. No, after that stretch I gave up, and left. I went home..

Q. What did you did when you got home?

A. I had a hot shower. I focussed the hot water on my back and then I jumped straight into bed.

Q. Did you take anything, any medication?

A. I had to – the only thing we had in the house was two Panadol and I had two Panadol.”

This version conflicts in some respects with his statement and Dr Malouf’s notes.

50 The next morning he had excruciating pain, went to work for a short time but then left, later that day consulting Dr Malouf.

51 Dr Malouf’s notes as read by him in evidence state "Brendan local (sic - lower) back pain right side extending to the buttock, posterior thigh, not to the calf or the foot. Four years ago couldn't walk or get out of bed saw H Hazzard, a manipulative physiotherapist. Went away. Just had a niggling pain since. Low grade problems. Goal kicking yesterday" with an arrow pointing down. "No good" ... "Low grade problems most of the year. Current very severe” The notes have two additions to them in different coloured ink. These additions are in the following terms “On 1/7/98 lifting compressor at work and felt sharp twinge lower back right side – mentioned at work” and "Aggravated when goal kicking".

52 Dr Malouf gave evidence he had little recollection of the consultation. He considered it was possible the additions were made at the consultation on 2 July 1998 but that it was likely the additions were made on either 6 or 9 July 1998.

53 The plaintiff also attended a physiotherapist on 2 July 1998. The physiotherapist noted the plaintiff complained of lower back pain with referral into the right buttock. Has on and off over the last few months. This week ? +++. The entry contains no reference to any lifting or other incident.

54 It therefore appears that no complaint was made to the physiotherapist linking the back problem to any incident at work. I find it is more likely than not that the complaint of a work injury to Dr Malouf was made sometime after 2 July 1998. If the injury was as described by the plaintiff in his evidence it would appear inconceivable that the plaintiff would not have informed Mr Kapetanellis, Dr Malouf and the physiotherapist at the first opportunity that the injury had been occasioned by a lift in the course of his employment.

55 The plaintiff gave evidence in chief that he did not contact the second defendant on the day of injury or the day following, although when cross-examined such contact became a possibility, and later in cross-examination he became positive that he had. The only evidence from the second defendant was of a director who only became aware of the event some many weeks later, though the evidence of the director did not exclude the possibility of earlier notification to another of the second defendant’s employees.

56 The plaintiff’s mother gave evidence. She said that on 1 July 1998 the plaintiff had come home from work, had complained of lifting something that was much too heavy for him at work and that his back was killing him. He lay down and she gave him some Panadol. She said he later went to football practice. This version of events was quite different from the version given by the plaintiff. He made no mention of his mother’s presence when he returned home, of him complaining to her, of lying down or being given tablets before going to football training. When cross-examined Mrs Wicks displayed a seeming total lack of knowledge of the plaintiff’s previous injuries. This to my mind is inconsistent with her apparently detailed recall of the plaintiff’s return home on 1 July 1998. Her evidence was also inconsistent with the plaintiff’s history recorded by Dr Malouf and the physiotherapist on the following day. I do not accept Mrs Wicks’ evidence.

57 The plaintiff’s father gave evidence that the plaintiff visited him on 2 July 1998 having first attended upon Dr Malouf and the physiotherapist. He said the plaintiff complained that he had injured his back at work carrying a compressor up a ladder, when partially up the ladder he felt very strong pain in his back, had gone home to bed, given medication by his mother, went to Dr Malouf next day and told him he had had an accident. Having regard to my earlier findings particularly as to the absence of complaint of a work injury on 1 and 2 July 1998 to Mr Kapetanellis, Dr Malouf, or the physiotherapist. I do not accept the evidence of Mr Wicks.

58 I am not satisfied, on the evidence before me, that the plaintiff sustained injury in the course of lifting the compressor at Delifrance on 1 July 1998.

Negligence

59 The plaintiff had been taught and was well familiar with proper lifting techniques. He was 183 centimetres tall and 90-92 kilograms in weight at the time. He was extremely fit and experienced in lifting heavy weights. Mr Kapetanellis was also a man of powerful physique and accustomed to lifting heavy weights. In my opinion it was not unreasonable for two such men to engage in a team lift of the compressor from the ground to the apex of the ladder in the manner asserted by Mr Kapetanellis with the plaintiff thereafter guiding the compressor whilst Mr Kapetanellis took the majority of the weight. It was not negligent to require or permit the plaintiff to engage in such a lift. I reject the evidence of Mr Donohue to the contrary. In my opinion the cross-examination of Mr Donohue revealed he had little practical experience and was partisan in the way in which he gave his evidence.

Conclusion

60 On the evidence before me I am not satisfied that the plaintiff sustained injury at the premises of Delifrance on 1 July 1998 in the manner alleged by him or at all or, if he did, that any such injury was the result of negligence on the part of the defendants or Mr Kapetanellis.

Orders

61 There will be judgment for the first and second defendants against the plaintiff. The plaintiff is to pay the defendants’ costs.

62 There will be:

(a) Judgment on the first cross claim for the cross defendant thereto. The cross claimant is to pay the cross defendant’s costs of the first cross claim.
(b) Judgment on the second cross claim for the cross defendant thereto. The second cross claimant is to pay the cross defendant’s costs of the second cross claim.
(c) Judgment on the third cross claim for the cross defendant thereto. The third cross claimant is to pay the cross defendant’s costs of the third cross claim.
(d) Judgment on the fourth cross claim for the cross defendant thereto. The fourth cross claimant is to pay the cross defendant’s costs of the fourth cross claim.

63 I grant leave to the parties to file written submissions within ten days in the event any variation is sought to the costs orders.

64 The exhibits may be returned.

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Last Modified: 08/03/2004