Holland v Wilson Graham Services Pty Ltd
[1995] QDC 380
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- Holland v Wilson Graham Services Pty Ltd[1995] QDC 380
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Holland v Wilson Graham Services Pty Ltd[1995] QDC 380
Holland v Wilson Graham Services Pty Ltd[1995] QDC 380
IN THE DISTRICT COURT HELD AT BRISBANE QUEENSLAND | Plaint No. 1102 of 1993 |
BETWEEN:
PHILIP SIMON HOLLAND | Plaintiff |
AND:
WILSON GRAHAM SERVICES PTY LTD | First Defendant |
AND:
BARRY ROY DALEY | Second Defendant |
REASONS FOR JUDGMENT - QUIRK D.C.J.
Delivered the 1st day of September 1995
This is a claim for damages for personal injuries sustained by the plaintiff on 19th April 1990 in the course of his employment. At the relevant time the plaintiff (who is 26 years of age) was employed as a “driver/supervisor” by the first defendant company which was in the business of collecting shopping trolleys from around the car parking area of the Garden City Shopping Centre. Trolleys, when collected from where they had been left by shoppers, were loaded on to a trailer specifically designed for the purpose and taken to a point from where they were returned to the stores which owned them.
The plaintiff's case was that on the night in question he was supervising a group of youths who were employed on a casual basis to collect trailers from the parking area. He was driving a Suzuki Sierra vehicle which was towing the trailer but it broke down at about 10 p.m. He contacted one of the directors of the first defendant who said he would arrange for another vehicle to tow the trailer. Subsequently another Sierra arrived. It belonged to the second defendant who was involved in the collection of trolleys for another group of shoppers and was driven by his son Mark.
As the plaintiff and his assistants went on with their work, Mark continued to drive the vehicle which towed the first defendant's trailer. As the vehicles were moving through the car park, the plaintiff took up a position standing at the front near side of the trailer outside the rails that held the trolleys in place.
The plaintiff's evidence was that it was not unusual for the first defendant's employees to ride on the trailer in this way. Neither of the directors (who visited the site from time to time) had every instructed any employee not to do so. The plaintiff was also confident that the directors would have seen employees riding on the trailer on the occasions when they visited the centre. He denied a suggestion put to him that the trailer carried signs prohibiting any person from riding upon it.
The plaintiff said that he fell from the trailer as it was making a right turn from one internal road to another. The trailer had been towed along a straight section at about 60 kilometres per hour and the driver had slowed to about 20 kilometres per hour before commencing the turn. He had “cut across” the intersection and as he accelerated out of his turn, the plaintiff fell from the trailer into a garden which was to his left.
He was wearing joggers at the time and although it was not difficult to keep his footing as the trailer moved along, it did tend to “jerk” (evidently as a result of hard suspension) and it was “jerking around” at the time of his fall. He put out his left hand to break his fall and it was this that resulted in his injury.
The credibility of the plaintiff's version of events has been challenged. Mark Daley was called as was his brother Andrew. They gave a version of events quite different to that of the plaintiff. It was said that only they and the plaintiff were present at the time of his fall and that the plaintiff and Andrew had been ordered off the truck by Mark just before the incident. It was further claimed that after the vehicles had commenced to move, the plaintiff had announced “I'm getting back on” and had run after and mounted the moving trailer. He had then made his way to the angle leading to the coupling point where he crouched and acted as though he was riding a motor cycle. As the trailer was moving along at about 10-15 kph, he fell off to the right of the trailer as it was moving.
As it was pointed out by counsel, it is impossible to reconcile these versions of events. It was submitted that I should reject the plaintiff's evidence because of other discrepancies. The plaintiff said in his evidence that he thought two other youths, Todd and Scott Rutledge, had been present at the time. Both of these persons were called and although they agreed with the plaintiff about work practices in place, they could not recall seeing the plaintiff being hurt in the way that he described. It was also pointed out that when completing the form appropriate to a claim for workers compensation, the plaintiff had referred only to the Daley brothers as witnesses.
I have considered these submissions but had the advantage of hearing the evidence given by the witnesses and have to say that I was more impressed with the plaintiff's evidence than that of the Daleys. There were other factors which made me feel more comfortable in that impression. In the evidence of the Rutledge brothers (who, I am satisfied, did not come to Court to do whatever was required to support the plaintiff's case), there were important contradictions of the evidence of the Daleys. They related to the presence of a warning sign on the trailer in question and, work practices regarding the riding of the trailer by youths employed by the first defendant and the absence (or otherwise) of warnings in that regard. The Rutledge brothers also referred specifically to riding on the trailer when it was driven by Mark Daley (who was the plaintiff's predecessor in employment with the first defendant) and neither could recall ever having been “ordered off” by him. In many of these matters they were supported by another youth Nigel Huismann who was also called.
While I recognize that one must be careful (in the absence of appropriate scientific evidence) not to draw conclusions as to how an accident occurred from its results, I feel that there are features of the plaintiff's account which make it inherently more probable than that of the Daleys.
I find that the plaintiff was injured in the manner which he described. I am satisfied that the practice of employees riding on trailers was clearly unsafe and one in respect of which an appropriate prohibition should have been in place and, importantly, enforced. This was not done. I find the first defendant negligent in this regard.
I am also satisfied of the negligence of the second defendant by its statutory agent Mark Daley. I am satisfied that when the plaintiff fell from the trailer Mark was aware of his presence on it. In driving the trailer in the manner described by the plaintiff (which description I accept) Mark was negligent in that he exposed the plaintiff to a risk of injury of which he knew or ought to have known by driving too fast and with insufficient care.
In regard to the matter of apportionment of alibility as between defendants pursuant to the Law Reform (Tortfeasor's Contribution Contributory Negligence Division of Chattels) Act I have had regard to the comments of the Full Court in Sherras v Van der Matt and Others (1989) 1 Qd.R. 114. I have concluded that the plaintiff's presence on the trailer and the way in which it was driven along at the relevant time were matters of importance in respect of which it is difficult to draw any distinction. I find that liability should be apportioned equally between the first and second defendants. The circumstances of the accident do not warrant, in my view, any finding of contributory negligence on the plaintiff's part.
After the incident the plaintiff was apparently unaware initially of any significant injury but overnight discomfort in the left wrist increased and in the morning he went to the QEII Hospital where x-rays were taken and a fracture of the scaphoid bone was diagnosed.
A plaster cast was applied and the wist was immobilized for a period of four to five months. Union was not satisfactory and in October, operative fixation was carried out. In April 1991 it became necessary to remove the screw from the scaphoid bone. Apart from some physiotherapy there has been no further treatment.
The injury has caused the plaintiff considerable pain and discomfort. He is predominantly left handed. He was very found of playing pool and did so at a high standard. He can no longer play as well. If he writes for long periods he experiences pain and he has difficulty in lifting weights with his left hand. His difficulties have been added to by subsequent injuries to his right hand and right knee which are not related to this case.
By way of medical evidence I had the advantage of that of three orthopaedic surgeons, Doctors Pentis, Boys and Morgan. There is agreement between Doctors Pentis and Morgan that, as a result of his wrist fracture, the plaintiff has been left with a permanent disability of the left upper limb assessed at 5 per cent loss of normal functional capacity.
There was some difference of opinion between Doctors Pentis and Morgan regarding the possibility of future degenerative changes in the wrist but I prefer the evidence of Dr Morgan who has had very extensive experience in dealing with fractures of this kind. Dr Morgan is of the opinion that the wrist has united well and is stable. He does not anticipate any further degeneration or the need for surgical intervention.
On the whole of the evidence I find that an appropriate award for pain, suffering and loss of amenities is $20,000. I attribute $10,000 of this to the past component and allow interest of $1,000 on this. I accept that the plaintiff is entitled to recover economic loss for the period leading up to the removal of the screw from his wrist but thereafter it appears that he was fit to return to work if he so desired. I find that his spasmodic efforts at employment (which involve mainly “hospitality” type work) since then are attributable to his other injuries, his own circumstances and attitude rather than to the fracture of his left wrist.
I accept Dr Morgan's assessment which was given in these terms:
“He does have some functional impairment and I have quantified that. That means that he is not normal, he is not perfectly capable of doing all things. There may be some very arduous duties which would give him some intolerable discomfort. For example breaking concrete with a sledge hammer for seven days without a break. I would expect that would hurt him but in general terms he could work as a gang labourer on a construction site, he could work as a tree feller, all that sort of laborious duty”.
Having regard to the plaintiff's overall employment history, I am not satisfied that he had a disposition to engage in heavy labour intensive work irrespective of this injury.
The plaintiff was, at the time of his accident, earning $342 nett and on that basis, I find that an award of $18,000 (rounded off) for past economic loss to 1st May 1991 is justified. I all $5,000 for a relatively minor diminution of earning capacity for the remainder of the period to trial. I allow interest on past economic loss (assessed at 6 per cent) at $6,900. Similarly, only a relatively moderate award for impairment of earning capacity in the future is called for and, without any pretence at mathematical precision, I allow $10,000 for this. Special damages were proved at $793.32 as was a “Fox v Wood” component of $2,557.55. In all, damages are assessed at $64,250.87.
Judgment for that amount must be given jointly against both defendants. However, pursuant to s.10.1 of the Workers Compensation Act 1990, workers' compensation benefits already paid to the plaintiff of $19,841.94 must be taken into account in relation to the legal liability of the first defendant in respect of the plaintiff's damages.