Williams v Mt Isa Mines Ltd

[2000] QSC 161

SUPREME COURT OF QUEENSLAND

CITATION:

Williams v Mt Isa Mines Ltd [2000] QSC 161

PARTIES:

GREGORY LYALL WILLIAMS
(Plaintiff)
v
MOUNT ISA MINES LIMITED
ACN 009 661 447
(Defendant)

FILE NO/S:

No 26 of 1997

DIVISION:

Trial Division

DELIVERED ON:

7 June 2000

DELIVERED AT:

Brisbane

HEARING DATE:

30 and 31 May, 1 June 2000

JUDGES:

de Jersey CJ

ORDER:

Judgment for the defendant against the plaintiff.
Costs including any reserved costs to be assessed.

CATCHWORDS:

EMPLOYMENT LAW – THE CONTRACT OF SERVICE AND RIGHTS, DUTIES AND LIABILITIES AS BETWEEN EMPLOYER AND EMPLOYEE – LIABILITY OF EMPLOYER FOR INJURY TO EMPLOYEE AT COMMON LAW – SAFE PLACE OF WORK

EMPLOYMENT LAW – THE CONTRACT OF SERVICE AND RIGHTS, DUTIES AND LIABILITIES AS BETWEEN EMPLOYER AND EMPLOYEE – LIABILITY OF EMPLOYER FOR INJURY TO EMPLOYEE AT COMMON LAW – SAFE AND ADEQUATE PLANT AND APPLIANCES

EMPLOYMENT LAW – THE CONTRACT OF SERVICE AND RIGHTS, DUTIES AND LIABILITIES AS BETWEEN EMPLOYER AND EMPLOYEE – LIABILITY OF EMPLOYER FOR INJURY TO EMPLOYEE AT COMMON LAW – SUPERVISION AND INSTRUCTION – claim for damages for injuries sustained in course of employment – plaintiff injured while alighting from Toyota Dyna truck – whether  particular step reasonably required of defendant in order to avoid unnecessary risk of injury –  whether truck inadequately equipped requiring modification – whether defendant reasonably required to instruct employees in alighting safely from such vehicles – quantum

Astley v Austrust Ltd (1998-9) 197 CLR 1, referred to
Brkovic v JA Clough & Son Pty Ltd (1983) 57 ALJR 834, referred to
Cross v TNT Management Pty Ltd (1987) 46 SASR 105, considered
Hill Douglas v Beverley, Appeal No 2829 of 1998, 18 December 1998, considered
McLean’s Roylen Cruises Pty Ltd v McEwan (1984) 54 ALR 3, considered
O’Connor v Commissioner for Government Transport (1954) 100 CLR 225, considered

COUNSEL:

K Dorney QC for the plaintiff
R Myers for the defendant

SOLICITORS:

VR Moffatt & Associates for the plaintiff
Thynne & Macartney for the defendant

1. de JERSEY CJ:   The plaintiff claims damages for injuries he suffered on 30 October 1995 in the course of his employment by the defendant.   The plaintiff then worked in a general capacity in the defendant’s parks and gardens department.  He was injured while alighting from a Toyota Dyna two tonne truck which he had driven to a particular location.  He sues in contract and tort, but has elected that his judgment be based in breach of contract, to avoid any diminution for alleged contributory negligence (Astley v Austrust Ltd (1998-9) 197 CLR 1).

1. I accepted the plaintiff’s account of how he sustained his injury.  Photographs of the truck are included in Ex 19.  The incident occurred in the early morning, at about 7.15am.  The plaintiff opened the door to the right.  He swung his body on the driver’s seat around to the right.  He could then see the recessed step on the outside of the cabin which could be used in stepping down to the ground.  He placed his left hand on the driver’s door windowsill (the window was fully open).  He placed his right hand on the seat.  Lifting his body somewhat, he put the ball of his left foot on the outside recessed step and then put weight on it, but it slipped.  He lost his grip on the door and fell, his body twisting to the left.  He somehow hit his back in the course of this.  He ended up in a crouched position on the ground. 

1. The vehicle was a compact, small truck which lawfully could be driven with an ordinary “A” class driver’s licence applicable to sedans. The defendant accepted it gave no particular instruction to employees as to the way by which they should safely alight from such vehicles.  The defendant contends, however, that it was a matter of obvious commonsense, and that no instruction was reasonably necessary.

1. The plaintiff’s case was that the truck was inadequately equipped, especially for a person of his height, 5ft.3ins.  The plaintiff called an expert in ergonomics, Mr King, who raised possible improvements to the vehicle: an extension of the length of the handrail on the cabin frame, situated to the right front of the driver, so that the handle extended lower, better accommodating drivers of lesser height; a hand grip surface above the wheel arch; and a retractable step operated by the movement of the door: see figure 6 on page 11 of Ex 18.  Dr Olsen, called by the defendant, suggested that it would be inappropriate and unsafe to tamper in any way with a standard vehicle of this character. I thought Dr Olsen went too far in adopting that position.  But by the same token I am not satisfied that it was reasonable that the defendant should have modified the vehicle in the ways Mr King suggested might possibly be worthwhile, for reasons to which I will come.

1. This sort of vehicle had been used in the defendant’s organisation effectively, and without incident, for a long time.  A number of the plaintiff’s co-workers, whose evidence I accepted, suggested that it was simply a matter of an employee deciding, by the application of commonsense, the best way suited to that employee for exiting. The action of exiting soon became an automatic thing.  See the evidence of Coral Dean, Daryl Christensen and Selena Turner.  Whether one went out frontwards (facing away from the vehicle), or backwards (facing the vehicle), the mission could be accomplished without mishap.

1. The plaintiff said that with his height, it suited him better to exit frontwards.  He did not, significantly, contend that there was anything defective about the step, or that there was any slippery material on it or his footwear which may have accounted for his losing his grip.  He was simply unable to explain why his foot slipped (page 28 line 51).

1. Apart from suggesting possible modifications to the vehicle, promoted on the basis that they would have facilitated maintaining a “three point contact” as one alighted (Ex 18, page 8), the other main pillar of the plaintiff’s case was that the defendant should have instructed him specifically about the manner of safely exiting the vehicle.

1. As to the question of modification, there was evidence that persons of varying stature had exited such vehicles safely on numerous occasions in the past.  The plaintiff gave evidence that he had observed the way others accomplished the task.  He adopted what he believed to be the safe method for him, and he compared getting out of the Dyna truck with getting out of his own Toyota Landcruiser.

1. While it is true that in an “incident report” Ex 28, concerning this occurrence, the plaintiff’s supervisor, Ms Christensen, as part of her “action plan”, raised the possibility of purchasing “a more appropriate vehicle”, I found her oral evidence more helpful: she considered the Dyna an “excellent” vehicle in terms of appropriateness (Ex 84 line 10), and suggested no particular way in which it should have been improved.

1. As to the latter matter, the issue of instructing employees on the way they should safely exit the vehicle, Ms Christensen also included in her “action plan” in Exhibit 28, “training in how to most safely alight from truck”.  That was of course simply her view, and could not be necessarily definitive of any breach on the part of the defendant.  Of course such training could have been offered.  The relevant question however is whether it was reasonably required of the defendant in order to avoid an unnecessary risk of injury.

1. The diagram attached to Dr Olsen’s report, Ex 19, suggested that for a person of the plaintiff’s height (161 centimeters), the pelvis is usually 84.6 centimeters above the ground.  The distance between the seat of the Dyna and the ground, as measured by Dr Olsen, was 110 centimeters.  The maximum “fall” for the plaintiff in this situation was approximately 25 centimeters or 10 inches.  It is difficult to see why that, akin to jumping down two ordinary steps, would impose an unreasonable force upon his body. Evidence of other witnesses who came out “forwards” was that they would as necessary drop to the ground: see, for example, Coral Dean (pages 51, 53).

1. The plaintiff relied on his height as a “special disability” affecting the standard of care owed to him (Brkovic v J A Clough & Son Pty Ltd (1983) 57 ALJR, 834, 835). I am not satisfied that the plaintiff could not, had he wished, reach the handle on the door strut. Selena Turner, who was of similar height, had no difficulty doing that (page 105). The evidence does not warrant the view that the plaintiff’s particular height increased the risk of injury to him while exiting this vehicle.

1. Bollen J found an employer liable in circumstances roughly resembling these in Cross v TNT Management Pty Ltd (1987) 46 SASR 105, a decision on which the plaintiff’s counsel relied. But that factual determination obviously cannot control this one, which must be made on the evidence given in this case. I found particularly helpful the analysis of the Court of Appeal in Hill Douglas v Beverley, Appeal 2829 of 1998, unreported judgment given 18 December 1998, in which the Court dealt with the question whether an employer need warn of the obvious, and as to when an employer can leave “the particular means of execution” of a task to an employee.

1. As said in O’Connor v Commissioner for Government Transport (1954) 100 CLR 225, 230,

“It seems … fanciful to suppose that a warning or special instruction was demanded about so simple and obvious a matter requiring neither special skill or knowledge to decide and ordinarily treated as a matter for the man doing the job.”

Other statements of similar import occur in subsequent cases, for example McLean’s Roylen Cruises Pty Ltd v McEwan (1984) 54 ALR 3,8:

“It is not reasonable to expect that the employer of an experienced (worker) should be obliged to warn him of a danger which is obvious, and of which he is in fact already fully aware, unless there is some circumstance that indicates that a warning is necessary …”

1. My conclusions are these:  the vehicle was appropriate for safe and effective work within the defendant’s business;  the particular method of safely exiting from the vehicle was a matter of commonsense which could reasonably be left to the individual employee; it was significant that such incidents had not previously occurred, although this operation had been carried out regularly by many employees over a substantial period; the plaintiff exited the vehicle using what he believed to be a safe procedure, and one which he had used without incident many times previously; the plaintiff’s slipping was simply a misadventure for which the defendant cannot be held liable; there was here no unnecessary risk of injury which reasonably obliged the defendant to take any particular step, whether with respect to the layout of the vehicle, by instruction to the plaintiff, or otherwise.

1. There must therefore be judgment for the defendant.

1. Quantum

The plaintiff experienced a sudden onset of lower back pain radiating into his legs, especially the right leg.  He had pre-existing largely non-symptomatic disc degeneration at the L5/S1 level, and L5 spondylitis.  The injury he sustained on 30 October 1995 was a central disc protrusion within the L4/5 intervertebral disc.  He was in traction for five days.  He returned to light work with the defendant on 5 December 1995, but the pain continued.  Doctor Rossato, neurosurgeon, considered that much of his problem related to pre-existing degeneration (Ex 5).  On 26 July 1996 Dr Low, orthopaedic surgeon, carried out an L4 to S1 fusion.  That removed a lot of the pain, especially in the legs.  The plaintiff resumed work with the defendant on light duties, continuing until his contract was terminated on 23 May 1997.  He has not worked since.  Mr Low removed the metal implants on 4 November 1998.  The plaintiff’s residual complaints concern continuing low back ache, described from page 12 of Ex 21.

1. I accepted the view of Dr Boys, orthopaedic surgeon, that the plaintiff’s bodily function is 20 percent impaired because of the back, of which 12.5 percent is referable to the spinal injury suffered on 30 October 1995, with the balance of 7.5 percent attributable to pre-existing degeneration (Ex 27).  All of that is compensable, however, because the fusion operation, necessary to resolve the pain from the injury, inevitably stirred up the pre-existing degeneration (pages 92-3 and Ex 6).  But the evidence supports the view that with the sort of work the plaintiff was carrying out with the defendant, that degeneration would likely have produced symptoms at some future time in any case (see, for example, Ex 5 and Ex 14).

1. The plaintiff is suitable for sedentary work, although he should not lift heavy weights and bend.  As confirmed by Dr Low, the plaintiff could drive a taxi, serve in a store, or carry out other unskilled sedentary work, even though not pain-free.

1. I consider that the plaintiff exaggerated his symptoms. While as Dr Cohn said, persons who suffer back problems can have good days and bad days, the doctor’s contrast between the plaintiff’s disabled presentation in the surgery when the doctor examined him on 19 January 1996, and the plaintiff’s nimble movements after he left and was unaware the doctor was watching him (page 102 line 15), was telling. The plaintiff claims that driving a four wheel drive vehicle is “very rough” on him (page 13 Ex 21), but the video evidence caused me to query that – even allowing for its covering but one occasion, and there being “good days and bad days”. I doubted the plaintiff’s claims not to be able to mow the lawn or wash the car, and I particularly noted his wife’s evidence that he had never even tried (p56). Neither has the plaintiff tried to get work since the termination of his employment by the defendant.

1. For all that, the plaintiff clearly suffered a spinal injury presently reflected in an approximately 20 percent loss of bodily function which will continue, and that brings about continuing back pain limiting his capacity to engage in physically demanding recreational activities and employment.  Discounting is necessary because of the prospect that the largely non-symptomatic pre-existing injury degeneration would at some stage likely have produced symptoms.  This was not a major fall, and was the sort of fall which could well have occurred at some other time as the years progressed.

1. My assessment follows:

1.          Pain, suffering and loss of amenities

I allow $40,000 and interest on the past component of $20,000, less the $13,198.50 workers’ compensation lump sum payment, leaving $6,801.50, upon which I calculate interest at 2 per cent per annum for 4.6 years, yielding $626.

2.          Past economic loss

The plaintiff is usefully compared with Mr Daniell, who, from 30 October 1995 to date may be taken to have earned $158.436.05, compared with the plaintiff’s $28,655.40.  (I rely on the plaintiff’s counsel’s schedule for this.) Comparative earnings in the period 30 October 1995 to 30 June 1996 were $9,053.99 and $19,299.01 respectively, and for the following full year $19,601.41 and $34,439.64 respectively.  For those years the plaintiff should receive the difference, amounting to $10,246 and $14,838 respectively.  For the following years, Mr Daniell’s earnings would calculate out at amounts of the order of $35,000 per annum.  For those years the plaintiff earned nothing.  In those years he did, however, have the capacity to earn, albeit limited, a capacity he did not exploit.  Doing the best I can, I would assess a $15,000 per annum loss for each of those three years.  His past economic loss therefore aggregates to $70,084.

Interest should be calculated on $51,369 ($70,084 minus $18,715 net workers’ compensation weekly payments) at 5 percent for 4.6 years, yielding $11,815.

3.          Future Economic Loss

The plaintiff is presently 40 years old.  I have calculated his current loss by reference to a weekly amount of approximately $290.  The period for which the future loss is to be allowed, and the amount, should reflect the prospect of the degenerative problems cutting in in any event, and his residual earning capacity, together with other ordinary contingencies.  I would allow $250 per week over 20 years, which, applying the multiplier of 667, yields $166,750.

4. Special Damages

These include Workcover expenses (Ex 16) of $25,031.11 and the Fox v Wood component (Ex 16) of $4,869.40. 

5. Loss of Superannuation Benefits

I take 6 percent of $70,084, which is $4,205, and 6 percent of $166,750, which is $10,005.  On the past loss, $4,205, the plaintiff would be entitled to interest at 5 percent for 4.6 years, which is $967.

6. Gratuitous Services

For the past, I accepted the plaintiff’s counsel’s calculation of $2,810, which can be detailed if necessary by him for the purposes of any appeal, but it suffices for the moment to record more broadly, that it is based on 281 hours at an agreed rate of $10 per hour.  That attracts interest at 2 percent per annum for 4.6 years, which is $258.

Counsel’s calculation for the future yielded $8,220.  But it assumed an inability, for example, to mow the lawn or garden or wash the car, which I did not accept.  I would not find any continuing disability warranting an award for the provision of gratuitous services into the future.  The plaintiff is able to carry out the necessary activities, even though with some difficulty and pain from time to time.

7.          Total

Those various amounts total $337,420.51, from which should be subtracted the Workcover refund of $61,814.50 (Ex 16), leaving $275,606.01.

1. There will be judgment however for the defendant against the plaintiff, with costs including any reserved costs to be assessed.