SUPREME COURT OF QUEENSLAND

1. McMURDO P:  This is an appeal from a judgment given on 2 December 1998 in favour of the respondent in the sum of $214,044.12 for injury suffered by the respondent in the course of his employment with the appellant on 20 July 1991.  The appellant appeals against the finding that it was negligent in failing to provide a safe place of work and also claims that the consequential assessment of damages was flawed.

Liability

2. The primary judge found the following facts.

3. The appellant is a manufacturer and servicer of large earthmoving machinery; it operated in two ex-aircraft hangers, each building the size of several football fields. In the building in which the respondent worked, yellow floor markings indicated the area required to be kept clear to enable vehicular movement and access to and from various equipment.

4. The respondent and his co-worker Brendan Mulgrew were to disassemble rollers for cleaning and reassembly. The procedure they adopted was as follows: the respondent disassembled the rollers at an hydraulic press and carried some of the disassembled parts to a tank where they were degreased and cleaned; he carried the cleaned parts to another table behind the degreasing tank where he continued the cleaning process with an air blower and sand blaster; the parts were then left on a nearby table for Mulgrew to treat and reassemble.

5. At some time between the respondent finishing work on 19 July 1991 and commencing work on Saturday, 20 July 1991 to perform overtime duties, about eight pallets of heavy items of equipment were unloaded onto the floor area within the yellow markings; this area should have been kept clear.

6. The edge of one of the eight pallets rested against one end of the degreasing tank; this pallet contained very heavy machinery parts stacked on it in a pyramid shape. In order for the respondent to carry the parts to the degreasing tank and onto the air and sand blasting table it was necessary for him to walk on the sides and corner of that pallet between its outer edge and the equipment stacked upon it.

7. The respondent and Mulgrew knew the pallet should not have been so positioned. They looked for a forklift to shift the pallet so that the respondent could more conveniently perform his work, but despite searching diligently for some time, not only within the very large shed in which they worked but also in the second shed of similar size where others were assembling heavy equipment, they were unable to locate one. The respondent was anxious to get on with his overtime work. His Honour noted that the appellant did not lead contradicting evidence or suggest that the respondent and Mulgrew did not make all reasonable efforts to obtain a forklift suitable to move the heavy pallet or pallets and that the respondent conceded that had they persevered they may eventually have been able to locate a suitable forklift.

8. The pallets should not have been deposited in an area which impeded the respondent's access to and from the degreasing tank. At about 12 noon, as he was taking parts to the degreasing tank he stood on the obstructing pallet, lost his footing and bumped into the sharp corner of the degreasing tank with very significant force, dropping the part he was carrying into the degreasing tank and seriously injuring himself in the area of his right scrotum.

9. His Honour concluded that in unnecessarily obstructing the path required to be taken by the respondent in his work the appellant was negligent. The absence of a forklift took it out of the power of the respondent and his co-worker to move the pallet into a safe area.  Mr T Matthews, who appeared for the appellant here and at trial, challenged those conclusions on the basis that the learned trial judge ignored or failed to give sufficient weight to the concession made by the respondent during cross-examination that he most probably could have secured a forklift sometime on the morning of the accident.

10. Although this issue was not specifically pleaded by the appellant, it arose in cross-examination and was to the following effect; the respondent agreed the work rule was to engage in as little manual lifting as possible and that overhead cranes and forklifts should be used as often as possible. Pallets were not moved with cranes but with forklifts; the respondent's section had two forklifts, one with a crane arm and the other with forks. When the big forklift could not manoeuvre in a confined area it was necessary to borrow a smaller forklift from hanger 2; there was always a forklift available although there was a problem waiting for a forklift to become available. He wanted a forklift that morning to move the pallets to provide a clear pathway to the trough as an overhead crane was unsuitable, but they could not find their forklift in either hanger:

"Our forklift, the one with the arms lift, was not there, our forklift the one with the two tines, was not in our shed either.  We went to look for the forklift in hanger 2.  They were working a 24 hour shift.  …  We looked for our forklift, we couldn't find our forklift."

He was asked:

"So what did you do, just did the job with the pallet there? – We did the job as we are required to come in and do the job."

Later he said: "The forklift we were (sic) required to move the pallet was not there"; there were no suitable forklifts in his shed.  He was asked:

"If you thought they were in the way you would move them, wouldn't you? --  Most of the time in the way I would move them and like I said on Saturday we could not find a forklift."

The following exchange, upon which Mr Matthews places considerable reliance, took place later in the cross-examination:

"MR MATTHEWS:  Could I suggest to you that even if there was a 24-hour shift taking place in another part of the premises that you would have been able to secure a forklift to move pallets of components and parts sometime that morning? – Most probably would have, yes."

11. It was not put to the respondent that there were other suitable forklifts available which could and should have been used by him to move the pallet(s).

12. The only other evidence touching on this issue came from Mr Kevin Osborne, the appellant's supervisor, equipment assembly and weld shop, to whom the respondent was responsible. His evidence does not suggest that he was at work on Saturday 20 July 1991 when the injury occurred.  Osborne said that in July 1991 there would have been a minimum of five forklifts available in the service department and about eight or nine forklifts available within the two hangers.  The matter was not touched upon in cross-examination.

13. Mr Osborne's evidence went no further than outlining the number of forklifts available; it did not deal with the actual availability of suitable forklifts at the relevant time. On the evidence, his Honour was entitled to infer that although the respondent would probably have eventually been able to secure a forklift to move pallets sometime that morning, a suitable forklift was not reasonably available when it was needed so that the respondent got on with his overtime work, having been unable to move the unsafely positioned pallet. His Honour correctly noted there was no evidence contradicting the respondent's evidence on this point. On those facts he was entitled to conclude the appellant failed to provide a safe workplace with resulting injury to the respondent.

14. I would dismiss the appeal against the primary judge's findings as to liability.

Contributory negligence

15. The appellant complains that the primary judge wrongly stated: "The [appellant] has not raised contributory negligence",^[1] that this was an oversight on the part of the judge that flaws the reasoning and that the respondent was at least contributorily negligent.

16. Although the appellant's defence contained no specific allegation that the respondent failed to make a reasonable search to find a suitable forklift to move the pallet, the defence pleaded contributory negligence in that the respondent failed to remove the offending pallets. Contributory negligence was not abandoned in the course of the appellant's address at trial but nor was it specifically relied upon.

17. His Honour's statement must be looked at in context in the reasons. Having carefully reviewed the relevant facts as to liability, his Honour concluded that the respondent suffered a serious injury to his scrotum at about 12 noon on 20 July 1991 by coming into contact with a sharp corner of the de-greasing tank after losing his balance as he walked over the edge of the pallet which, by its position, subjected the respondent to unnecessary and easily avoidable danger. His Honour then noted that: "The [appellant] has not raised contributory negligence", pointing out that there was no evidence to contradict the respondent's evidence as to his inability to locate an appropriate forklift to move the pallet; the respondent's injury resulted from the appellant's breach of its duty to provide a safe workplace and that the absence of an appropriate forklift took it out of the respondent's power to relocate the pallet to make the workplace safe.

18. It is clear that the learned primary judge in fact gave consideration to the issue of contributory negligence but rejected it because of his factual conclusions and the conduct of the defence case at trial. Plainly, in saying that the appellant had not raised contributory negligence, his Honour effectively meant "successfully raised" or "established". On the facts which the learned judge was entitled to and did find, the respondent was plainly not contributorily negligent; it was the appellant who had failed to provide a safe place of work for the respondent by positioning pallets unsafely and not providing a reasonably available method of moving them. In such circumstances it would not be fair to conclude the respondent was contributorily negligent: see Bankstown Foundry Pty Ltd v Braistina.^[2]

Quantum

19. The primary judge had the difficult task on the evidence of assessing how much of the respondent's serious physical and psychological present condition related to this work incident and how much related to a severe comminuted pelvic fracture, ruptured bladder and ruptured urethra that he received in an unrelated work accident with a different employer in Western Australia in 1978.  The respondent left Western Australia and came to Queensland in 1988 when he commenced employment with the appellant.  Before the July 1991 accident he attended Princess Alexandra Hospital on a number of occasions for urological problems arising from the 1979 accident, including the treatment of urethral fistulas and dilations of urethral constrictions.

20. His Honour noted the serious physical and psychological effect of the 1978 accident but found that the respondent "continued to work and his wife managed to put up with his reaction to his very serious injury which affected his urinary continence and his ability to engage in satisfactory and painless sexual intercourse with her" and "that by far the more significant and devastating psychological/psychiatric injury was caused to the [respondent] by the 1991 injury". His Honour accepted the unchallenged evidence of psychiatrist Dr Chalk, who treated the respondent from November 1992 until June 1995, that by August 1993 the respondent was suffering a major depressive illness following the loss of his sexual potency, income and in many ways his purpose in life.

21. His Honour found little inconsistency between the evidence of the two treating urologists called at trial, Dr Heathcote and Dr Winkle. It was not disputed that the respondent was suffering from a serious debilitating urological injury primarily related to the 1979 accident. Dr Heathcote operated upon and treated the respondent for the consequences of the 1991 injury until November 1992. In a report to the appellant's solicitors of 20 February 1998, Dr Heathcote expressed the view that the respondent had a fistula before his accident on 20 July 1991; that accident possibly accelerated or aggravated the effects of the fistula by a short period, say 6-12 months; had the 1991 accident not occurred, the respondent would almost certainly have had urinary health problems in any event. In his oral evidence, Dr Heathcote noted that in 1979 the respondent suffered one of the most severe injuries he had every seen and that it was a credit to him that he had done so well with his life, given its severity. He reaffirmed his opinion that quite apart from the 1991 injury the respondent would have developed further problems at some time although it was difficult to say when, but he thought within 6-12 months at most. During cross-examination, he conceded his estimate of 6-12 months was "a clinical feel" only. He was asked by his Honour: "I suppose there's a chance of some sort that he might have gone for 5 or 10 years, but I suppose the longer it is the smaller and smaller the chance is? --- I think it's pretty unlikely. It could have happened, I guess, but it's very unlikely, very unlikely." Later, at the end of the cross-examination, his Honour again asked:

"You say they would likely have arisen within 6-12 months, but it may have been – he may have been really lucky and they may not have arisen for some years? --- Yes.

That's it.  It is just like tossing a coin, I suppose ------? --- Yes.

----- as to what the chances are?"

22. Dr Winkle examined the respondent in October and November 1992 at the request of Dr Heathcote. He noted the respondent was admitted to the Princess Alexandra Hospital in 1988 with a severe bladder infection but his condition then seemed to settle for some three years until his 1991 injury. As he did not examine the respondent following that injury, he was unable to comment as to its likely effect on his ongoing problems. He again reviewed the respondent in April 1998 and noted:

"There was certainly significant underlying abnormality of the urethra prior to this injury but it is conceivable that a further injury to an already compromised area may have been enough to precipitate the events which subsequently ensued after July 1991.  It is not possible to say that this injury in isolation would have caused these problems but it is certainly possible that the injury may have contributed to the worsening of [the respondent's] problem."

During his oral evidence, he agreed that because of the very serious 1979 injury the respondent was always at risk of developing these problems regardless of the 1991 injury.  A similar injury in someone without his pathology may well have not caused anywhere near the problems faced by the respondent.  He did not agree that the respondent was likely to develop his present problems within 6-12 months regardless of the 1991 accident because such predictions cannot be made.

23. The learned trial judge concluded that although the respondent was already seriously disabled at the time of the 1991 injury, were it not for that injury he may have lasted for years before deteriorating. Although Dr Heathcote was of the view that this would probably have happened within 6-12 months, the respondent had persevered and endured his physical disabilities from 1980 to 1991, rearing a family and maintaining regular employment, albeit with medical treatment from time to time. After the 1991 accident the respondent continued to work for the appellant until his dismissal in 1993 because of work absences caused by ill health. The respondent and his wife, Mrs Hellmuth, gave evidence that before the 1991 injury the respondent worked and lived a life not without difficulty but of reasonable quality; the 1991 injury involved significant force and the respondent's life immediately grossly and detrimentally changed.  His Honour was conscious of the difficult task in assessing damages on such evidence but because of the proven determination and motivation of the respondent both prior and subsequent to the 1991 injury, he concluded that the respondent would have reached his current physical and mental condition in about July 1998, that is about seven years after the injury.  His Honour also took into account that towards the end of that period the respondent would have had increasing time off work until eventually he became unemployable because of the effect of the 1979 injuries and carefully assessed damages consistent with these findings.

24. The appellant submitted the learned trial judge erred in not accepting the evidence of Dr Heathcote that the respondent's physical and psychological condition would probably have been reached within a 6-12 month period from 20 July 1991, regardless of the 1991 injury.

25. Whilst Dr Heathcote was of this view, he also conceded that the respondent may have been lucky and his present condition not arisen for some years but for the 1991 injury. His Honour rightly concluded that there was not a great deal of difference between the evidence of Drs Heathcote and Winkle; Dr Heathcote gave his "clinical feel" whilst Dr Winkle said it was impossible to accurately predict such matters. Both Dr Heathcote and his Honour were satisfied that the respondent demonstrated remarkable perseverance despite his disability from the 1979 incident.  On the state of the evidence in this case it is not trite to point out that the trial judge had the advantage of observing both the respondent and Mrs Hellmuth in determining the extent of the respondent's stoicism and the effect of the 1991 injury on his health.  The judge's task was difficult and different minds could have reached different but equally sustainable conclusions.

26. The respondent's stoicism, the immediate detrimental effect of the 1991 injury which was of significant force and the uncertainty of the urologists' evidence persuade me that the judge was entitled to conclude that the respondent would not otherwise have reached his present condition until about July 1998, although taking more and more time off work towards the end of that period. The judge did not err in rejecting Dr Heathcote's "clinical feel" that the 1991 injury brought on the inevitable symptoms by only 6-12 months.

27. I would dismiss the appeal with costs.

28. PINCUS JA:  The circumstances giving rise to this appeal are set out in the reasons of the President.  The appellant's argument, advanced by Mr T Matthews, was that the judge should not have been satisfied that the presence of the obstructing pallet referred to in the reasons of the President was a breach of duty on the part of the appellant.  The basis of the point is that there was no satisfactory evidence that means of removing the pallet were unavailable to the respondent.  Relying principally upon the passage in cross-examination of the respondent set out in the President's reasons and also upon the evidence of one Osborne, Mr Matthews urged us to conclude that the judge should have found in favour of the appellant on this issue – i.e. on the question whether the obstructing pallet could and should have been removed by the respondent using a forklift which was, at least as a matter of probability, available at the time.

29. The argument just mentioned is connected with a subsidiary contention, that the trial judge expressed the view, erroneously, that contributory negligence was not an issue. The appellant's contentions on these points have substance; it is not easy to see, with respect, that the evidence about the availability of a forklift to remove the obstruction was of sufficient strength to require a conclusion that none was reasonably available, nor is it clear what prompted his Honour's observation that the appellant had not raised contributory negligence. But I have, in the end, come to the conclusion that the learned trial judge's advantage in having seen and heard the relevant witnesses should be considered to outweigh what appears, on the face of the record, to be a paucity of evidence to support the finding his Honour made about forklift availability.  Further, I think that the judge's reference to contributory negligence not having been raised should be treated as a conclusion, perhaps a little over-stated from the way in which the case was argued before his Honour.

30. Subject to these observations, I agree with what the President has said on the question of liability.

31. As to quantum, the critical point appears to me to have been the lack of evidence giving specific support to the judge's estimate of what would have been the extent of the respondent's disability, had he not suffered the injury complained of. I agree that, for the reasons given by the President and Thomas JA, his Honour was entitled to make the estimate he did, having regard to the factors to which their Honours refer.

32. I agree that the appeal should be dismissed with costs.

33. THOMAS JA:  I agree with the President's reasons for dismissing the appeal in so far as it challenges the learned trial judge's findings on liability and contributory negligence.

34. The issue of quantum of damages is more difficult.

35. One of the main submissions on behalf of the appellant is that the learned trial judge should have accepted the evidence of Dr Heathcote, a urological specialist who treated the respondent upon referral approximately two months after the incident the subject of this action. The respondent had previously suffered extremely serious injuries to the pelvic and genital areas in an accident in Western Australia in 1978. Despite the damage and atrophy resulting from that original injury the respondent carried on with his life and retained his employment until some time after the later incident of 20 July 1991. The incident in question involved his bumping the area of his right scrotum against the corner of a tank. He did not report it immediately and did not seek medical treatment for two days. The acute complaint of pain which led to the respondent's referral to Dr Heathcote in September 1991 did not occur for a further two months.

36. In these circumstances Dr Heathcote expressed the opinion that the fistula and combination of systems which ensued were the result of his original injuries and that the effects of any trauma suffered in July 1991 were limited to a maximum period of between six and 12 months.

37. However another specialist, Dr Winkle did not agree with that view. He did not think that such a prediction could be made. He acknowledged that the respondent had very unhealthy tissue at the time and that he may well have ended up as he did (apart from the 1991 incident), but whether and when this would have happened is unknown. Accordingly, Dr Winkle did not express any view as to the likely period before onset of symptoms comparable to those that in fact emerged.

38. Plainly his Honour was not prepared to act on Dr Heathcote's estimate. However there was no other specific evidence available on this question. The learned trial judge proceeded to make what he called "a more optimistic appraisal" of the respondent's prospects, and acted on the footing that apart from his injury in July 1991 he would have reached a comparable level of disability by about July 1998. In short, his Honour assumed that the plaintiff would have continued to cope with his damaged condition for a further seven years, and that over the last two years of that period his condition would have deteriorated to the extent that he would have earned income at only half the normal rate. His Honour's view took into account an evaluation of the personality, motivation and perseverance of the plaintiff, which on all accounts was outstanding. His Honour noted that he had coped with a very debilitating condition for a period of over 10 years before the incident in question. His Honour also noted that there was little in contemporaneous records to suggest that any sudden deterioration was imminent.

39. The central issue is whether the 1991 incident should be regarded as a transient aggravation of an inevitably deteriorating condition (as Dr Heathcote thought) or as the precipitation of a condition that would not necessarily have eventuated for a number of years, the calculation of which was for the trial judge to make as best he could on the evidence.  Whilst I have considerable reservations in relation to his Honour's view of probable coping for a further seven years, I cannot say that such a view is the result of any misunderstanding of the evidence or that it must be replaced by a more conservative view.  The fact that the respondent had continued to work for 12 years after suffering the initial injuries, the fact that the 1991 incident did precipitate the decline in his condition, and the unusual spirit shown by the respondent militate against setting aside this critical finding of the learned trial judge.

40. As the submissions of counsel for the appellant were based upon the setting aside of his Honour's findings on this point, the appeal against the assessment of damages fails.

41. I agree with the orders proposed by the President.