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Manning v Brisbane City Council

 

[2002] QCA 28

COURT OF APPEAL

DAVIES JA

McPHERSON JA

AMBROSE J

Appeal No 6589 of 2001

NOEL ANZAC MANNINGPlaintiff/Respondent

and

BRISBANE CITY COUNCILDefendant/Appellant

BRISBANE

DATE 15/02/2002

JUDGMENT

McPHERSON JA:  This is an appeal from a judgment given in the District Court awarding damages to the plaintiff in an action arising out of personal injuries sustained in the course of the plaintiff's employment.  He was, and for many years had been, a labourer working for the defendant council, and on 3 February 1998 was foreman in charge of a gang engaged in prising off a concrete cover from a manhole at Sandgate.

This operation is ordinarily carried out by inserting a tool known as an aspro cracker under the lid, or aspro, of the manhole and striking it with a sledgehammer to break the concrete seal holding it on.  However when this action was tried on the occasion in question, it was found that the manhole was not of the standard sort in use by the defendant, but one of a less common kind that needed jackhammering to destroy the steel reinforced concrete surround or seal and so remove the cover which was integrated with that reinforcement.

The members of the gang, including the plaintiff, then began taking turns at jackhammering the concrete.  In doing so they found that the gads or picks of the jackhammer became caught in the reinforcing of the concrete cover or its surround, necessitating disengagement of the hammer and removal of the gad from the concrete.  When they were reduced to their last useable gad, the plaintiff decided to smash the remaining gads out with a sledgehammer.

In swinging the sledgehammer over his shoulder, he suddenly felt pain in his shoulder and was unable to go on.  He was later diagnosed as having sustained a tear in the rotator cuff of his left shoulder, and in consequence suffered permanent impairment assessed at 20 per cent of the function of his left upper limb.

The learned trial Judge accepted the evidence and two reports of Dr Gillett, an orthopaedic surgeon, who gave evidence for the plaintiff.  He said that there were three possible ways in which the plaintiff's injury might have occurred.  His Honour accepted Dr Gillett's opinion that the extra forces generated by using the jackhammer, and its tendency to become caught in the reinforcing in the concrete, had imposed heavy stresses on the plaintiff's shoulder muscle, which gave way and tore when he took up the sledgehammer and swung it.

This was not normal jackhammer work, his Honour said,

"The gads became stuck in the concrete because of the reinforcing iron, causing the jackhammer to twist and buck, putting enormous strain on the plaintiff's shoulder, which in turn caused injury to the tendons and the shoulder joint, finally resulting in a tear when he swung the sledgehammer."

That was a rational and cogent explanation of how the injury had taken place and one that his Honour was entitled to accept. 

On appeal, however, the defendant complains that it is inconsistent with the plaintiff's original pleading in the action and with his application for workers' compensation dated 27 February 1998 (ex 12) in which he said he was using the sledgehammer and an aspro cracker to separate an aspro from a manhole when the injury occurred.  There was no mention in ex 12 of a jackhammer or of problems with the gads, nor was there any explanation of why the plaintiff had in his case as originally pleaded specifically alleged as a particular of negligence that the defendant ought to have supplied a jackhammer, when in fact it had actually done so.

Despite these matters, his Honour was satisfied that the plaintiff was not lying and that the injury had been sustained in the way he had described it in the evidence. 

It was submitted by the defendant on appeal that even allowing for the conventional attitude of appellate Courts to credibility findings at trial, his Honour's acceptance of the plaintiff's testimony in this instance went too far, that the plaintiff's case here was "glaringly improbable", and that the judgment should be set aside.

I am unable to agree with this submission.  One can well see how a not especially sophisticated labouring man might mistakenly suppose that, because the actual breakdown of his left arm was associated with sudden pain when using the sledgehammer, it must have been that activity that caused the injury.

In a purely sequential sense, of course, it was, but the real damage of weakening the tendon had already been done by the impact of the jackhammering under the conditions described.  Swinging the sledgehammer was simply the proverbial last straw.  It is a phenomenon that is by no means unknown in the case of injuries like this, and the plaintiff's mistake in relation to it is no more decisive against him in assessing his credibility than, for example, is his statement recorded in ex 12 that swinging the sledgehammer had, as he supposed at the time, caused a bone in his shoulder to fracture.

In the result I can see no legitimate basis for interfering with the Judge's findings on credibility, or with his acceptance of Dr Gillett's opinion of how the injury came about.  It is not disputed that the plaintiff suffered the injury he did, and I consider that the injury would have been avoided if, instead of the method used, the manhole cover or reinforced concrete had been cut with a diamond saw, which on the evidence could have been hired at a cost of as little as $120 to $150.

The defendant should have ensured that there was a system that provided or catered for the use of such equipment when a manhole of this type was encountered.  No instruction that a saw of that kind should be used on such an occasion was given to the men who were involved in this work.  The learned Judge was entitled to say that it was "readily" or was "easily" foreseeable that, without such an instruction, an injury like that suffered by the plaintiff would probably occur because of the powerful forces unleashed in using the jackhammer under the circumstances described, which involved jackhammering the steel reinforcement.

Because of the unusual type of manhole cover, it was all the more necessary that the defendant should have properly instructed and equipped its workforce so that they would be alert to this kind of problem and know how to deal with it.

The overall award of damages amounted to the sum of $157,712, of which future economic loss contributed $80,000 and the value of the corresponding superannuation benefits foregone was assessed at $6400.  His Honour accepted evidence from Dr Gillett that, whereas previously the plaintiff might have continued working to 65, he was now at risk of "making it" only to age 60.  It was submitted that his Honour misunderstood Dr Gillett's evidence on this point but specifically what the specialist said in evidence was that he was at least at a 50 per cent greater risk of not making it now than had he not had his injury.

The appellant's submission before us tends to ignore the emphasis on the words "at least".

The plaintiff's net weekly income was $621, which, when discounted on the five per cent tables, produces a capital value of some $130,000.  Dr Gillett says there is now at least a 50 per cent greater risk of his working life being shortened by five years.  If one allows the plaintiff, say only 70 per cent, the result would be to award a discounted sum of about $80,000, which is what his Honour did in respect of this head of future economic loss.

Having regard to the principles on which we act in appeals on quantum of damages, the outcome reached at the trial is not on any view of it such as to justify interference with the amount or award of damages involved.

I would therefore dismiss the appeal with costs.

DAVIES JA:  I agree.

AMBROSE J:  I agree.

DAVIES JA:  The appeal is dismissed with costs.

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Editorial Notes

  • Published Case Name:

    Manning v Brisbane City Council

  • Shortened Case Name:

    Manning v Brisbane City Council

  • MNC:

    [2002] QCA 28

  • Court:

    QCA

  • Judge(s):

    Davies JA, McPherson JA, Ambrose J

  • Date:

    15 Feb 2002

Litigation History

Event Citation or File Date Notes
Primary Judgment [2001] QDC 141 25 Jun 2001 Claim for personal injuries sustained in the course of employment granted; damages awarded: Trafford-Walker SJDC (delivered ex tempore).
Appeal Determined (QCA) [2002] QCA 28 15 Feb 2002 Appeal against judgment in [2001] QDC 141 dismissed with costs: Davies JA, McPherson JA, Ambrose J.

Appeal Status

{solid} Appeal Determined (QCA)