Flood v Kimela Pty Ltd[1997] QDC 147

REASONS FOR JUDGMENT – JUDGE ROBIN Q.C.

Judgment delivered: 30th May 1997

Catchwords:

Tort – negligence – employee sues employer – alleged failure to provide safe equipment – plaintiff claims a back injury sustained at work caused by a faulty seat in a dump truck – unreliability of plaintiff's evidence on quantum vitiates his evidence seeking to establish liability – action dismissed – plaintiff to pay defendant's costs

BETWEEN

AND

REASONS FOR JUDGMENT – JUDGE ROBIN Q.C.

Delivered the 30th day of May 1997

The plaintiff sues his former employer for damages for personal injuries, namely a back injury, claimed to have been suffered at work on 1 July 1994, which may have been exacerbated if it was not caused by earlier insults to the back over preceding days. The trial was not completed in the one day set down for it in Maroochydore, essentially because the defendant put in evidence a video tape recording certain activities of the plaintiff in mid January 1997, the viewing took some time and the evidence of the plaintiff's medical witness had to be deferred to afford him an opportunity of watching it. The hearing concluded in Brisbane on 27 May. In the end the video tape evidence is decisive in the case. It led Dr. Winstanley to revise his estimate that “due to the aggravation (of pre-existing degenerative change present on the lumbar spine), (the plaintiff) has a permanent partial disability relating to his lumbar spine of 5% loss of bodily function” to a 2% loss, on the basis that the plaintiff's word was believed when he claimed he suffered painful symptoms in his back attributable to a work injury.

I agree with Dr. Winstanley, who was called by the plaintiff, that the video shows him moving completely freely, and doing things which he had suggested he could not do or at least could not do without suffering considerable pain. He claims to be in pain literally all the time. Mr Grant-Taylor submitted that I ought to regard him as a person of great stoicism, soldiering on in spite of constant pain. While this is a logical possibility, it is not one I am willing to act upon. I would expect an ordinary stoic to take some steps to alleviate pain experienced constantly. Although the plaintiff has made a small claim for analgesic pain killers, the position, as recorded by Dr. Winstanley in his report of 23 February 1995, Exhibit 3, appears to be that “he does not take any regular medication for his symptomology by choice”. He has conceded some improvement of his condition from July 1994, by way of diminution of sciatic pain radiating to his leg. He says he has had no benefit otherwise from physiotherapy, hydrotherapy or rehabilitation at the South Brisbane Centre in January 1995.

The video shows the plaintiff engaging in activities such as what was termed a “tug of war” to pull apart a fishing rod, pushing a motor mower and repeatedly pulling the zip starter, tilting the mower up, and jiggling it, all in a way one would not expect in a person who says he would avoid such activities because of painful effects; the video reveals a great deal of bending of a kind the plaintiff's evidence said would be very painful to him, in circumstances where he was not compelled to attempt it. Dr. Winstanley recorded that the plaintiff claimed to experience pain on the administration of two classic tests designed to establish malingering, in the sense that there is no known orthopaedic reason why the doctor's manoeuvres would cause pain.

Mr. Grant-Taylor and Mr. Morton each presented well thought out arguments calculated to show that the plaintiff was credible in the one case, or not credible, in the other. Thus, Mr Grant-Taylor submitted the video showed the plaintiff doing only things which he had conceded he could do, albeit producing pain. Mr. Morton expressed bewilderment that Mr. Flood would voluntarily subject himself to so much pain. As to the plaintiff's failure to submit income tax returns for the years before the time when he came within the PAYE regime (the year to 30 June 1994 and following), which produced gross sales of kangaroo carcasses to P & A Game Meats of Cobar, New South Wales of $24,092.10 in the year to 30 June 1992, and $35,116.54 in the following year, Mr Grant-Taylor pointed out that the evidence does not show what the taxable income was, or that there was one. Mr Morton submitted this aspect showed Mr. Flood was willing to use dishonest means to enrich himself. In my view he overstated things considerably by saying it shows the plaintiff to be a liar. He asserted there were discrepancies within the plaintiff's evidence, and further discrepancies between it and the opening. There were discrepancies with liability evidence adduced by the defence witnesses. Further opposed submissions concerned alleged discrepancies between the way in which the plaintiff completed “Form 4” for the Workers Compensation Board, so far as the nature of the accident is revealed, and a statement he gave on 16 May 1995, Exhibit 12.

Given the plaintiff's limited education and reading difficulties, it seems unduly harsh to penalise him by taking his statements, or statements attributed to or endorsed by him, too literally.

Nevertheless, at the end of the day, he presents as a person whose account of his sufferings is so exaggerated, particularly measured against the failure to do anything to alleviate them, that I feel driven to regard his account as completely unreliable. Mr. Morton has persuaded me that in the circumstances I ought to accept his evidence on any subject, and on the liability issues in particular, only where there is corroboration.

There is too much mystery in this case, and in particular as to events on the crucial day, 1 July 1994. At one point the plaintiff appeared to say he went home at 4.30 p.m. in considerable pain, unable to do anything; at another point he said he would have gone to work the next day but for rain. See page 19 of the transcript, for example. He did not see a doctor until 5 July 1994.

Taken literally, the documents he signed appear to me to suggest that there was a dramatic event about 8 a.m. on the morning of 1 July 1994 in which the Volvo dump truck the plaintiff was driving in the course of earthmoving activities in the development of Noosa Waters Estate “hit a bad bump which jolted (his) back.” The later statement suggests the seat was broken in the same bump, but the Form 4 is probably communicating an assertion that it was already broken. The plaintiff seems to say he spent the whole day (and it seems earlier days too) driving with a seat which provided no support for his lower back and was broken in some way such that the right side was tilted, forcing him to sit unnaturally.

The defendant agrees the seat was broken, indeed that it had two different problems, each attended to as soon as notice of them was given, by Trevor Wolfe, one of three fitters employed by the defendant to service, maintain and repair its large fleet of 100 or so items of plant. I accept Mr. Wolfe's evidence. The first problem, reported and attended to on 23 June was a broken bolt or rivet which led the upright back of the seat to sag backwards a centimetre or so. The second problem reported on 1 July concerned a bar which had been bent or twisted out of shape. It ran along the right hand side of the frame in which the cushion sat and prevented the seat's adjustment mechanism from working. The defendant's view, in reliance in Mr. Wolfe's evidence, is that such damage was virtually unheard of and spoke of sabotage. If it was sabotage, there was no evidence the plaintiff was responsible for it. Mr. Wolfe's observations of the seat on 1 July 1994 were made after the plaintiff had stopped work. At some time he could not identify, a work colleague of the plaintiff's, Mr Broada, whose honesty the defence did not impugn, saw the seat which was in a dump truck being operated only by the plaintiff at the time. He described it as “stuffed”, saying “it had had it. You couldn't use it. You couldn't sit on it”. He described the back rest as “definitely non-existent”, but was not saying it was not there. He went on to say “the front of the seat was tilted up so you had trouble with your legs actually operating pedals.” He said that considerations of his safety would have led him to refuse to drive the truck. Mr Broada did not go into particulars of what was broken on the seat or investigate the circumstances, which seems to me somewhat curious in the situation, simply saying “I am not a mechanic”.

At the end of the work day on 1 July 1994, which I think was probably the time Mr. Broada spoke of, the seat in the plaintiff's dump truck was certainly non-functional and unsafe. However, the plaintiff's evidence does not satisfy me that he had used the truck for any appreciable period of time while the seat was unsafe. Nor is it shown that, except for the problem of 23 June which I am satisfied was effectively repaired straight away, the defendant had any information that the seat had developed any other problem. It is impossible to find that the defendant knew (or ought to have known) that prior to the close of work on 1 July 1994 that the seat required further repair. At that time the defendant became aware further repair was necessary and attended to it, before the truck was used again.

Unusually, in this case, there was evidence adduced by the defence that the plaintiff was regarded by the defendant and fellow employees as less than a willing worker, and was known as “Mr. Attitude”. He claimed that the response made to one request by him for repair of the seat was that the best way to repair it was to get a new driver. If such a response was made, the evidence would not justify the conclusion that it represented the defendant's response, since the plaintiff could say nothing regarding the identity or status of the speaker. It was certainly not Mr. Tenkate, the defendant's manager, nor Mr. Henry Roy, who worked for another company, but was the site foreman. I am satisfied that Mr. Roy passed on any requests made to him by the plaintiff for the seat to be attended to, and that the defendant did attend to them as soon as reasonably practicable.

There is no doubt that at common law an employer has a duty to take reasonable care that employees are required to use only plant which is safe - see Glass, McHugh and Douglas, Employers' Liability 60-62. A recent example of an employer held liable for breach of that duty in respect of an insufficient seat in a four wheel drive motor vehicle, which Mr Grant-Taylor's industry unearthed, is Michael John O'Sullivan v. Ian R. Hotchin & Others, Supreme Court of Qld, 1656/86, Williams J, 19 March 1997. The learned Judge regarded the defendant's conduct in replacing the seat a few months later as “critical to the resolution of the issue of negligence”; in that task his Honour was perhaps assisted by Mr. Hotchin's admission that the plaintiff complained to him that the seat had caused his back injury, and that he (Hotchin) accepted that. It was found that the plaintiff had complained to Mr. Hotchin of the condition of the seat before his injury. Whereas Williams J reasoned that the seat was inadequate at the crucial time when the plaintiff was injured while using it as required in the course of his work duties, Mr. Flood's evidence does not satisfy me on the balance of probabilities that his is the same case. I do not believe he would persist for a day in using a seat Mr. Broade would not have used at all.

That conclusion really disposes of the action. However, I ought to record Mr. Grant-Taylor's submission that the plaintiff was entitled to succeed, even if (as has happened) evidence was not established against the defendant, on the basis of the defendant's breach of its statutory duty to the plaintiff under s.9(1) of the Work Place Health and Safety Act 1989. Mr Morton, for the defendant, objected that such a cause of action could not be pursed, not having been pleaded. In my opinion, it was effectively pleaded, in that the statutory obligation, arising because it is an offence for an employer to fail “to provide and maintain plant and systems of work that are, so far as is practicable, safe and without risks to the health and safety to any person” was pleaded, and in a following paragraph the defendant's breach of duty. Mr Grant-Taylor's submission was that the potential defence, in terms of what is practical, is one which must be pleaded and proved by the defendant. He relied for this proposition on Kingshott v. Goodyear Tyre & Rubber Co Australia Ltd (No. 2) (1987) 8 N.S.W.L.R. 707, 717 and what he claimed was endorsement of that view by the majority of the Court of Appeal in Craig Raymond Rogers v. Brambles Australia Limited (Appeal No. 189/95, judgment delivered 8 November 1996, at p.8ff in the reasons of Pincus JA), a decision which confirms that s.9(1), now repealed, but with a saving of rights accrued under it, could be the basis of a civil damages claim.

Although the action fails, I am required to assess the plaintiff's damages. That is a difficult task, because the plaintiff's evidence, on which the case depends, is unreliable. It will be recalled that Dr. Winstanley's ultimate conclusion that the plaintiff suffers a 2% disability attributable to the accident depends upon the truth of the plaintiff's claim that there was an accident, or alternatively an injury suffered at work, as claimed by the plaintiff. On that basis, the damages still are limited. Dr. Winstanley's evidence is that, assuming the plaintiff did suffer some injury 1 July 1994, that would have been a soft tissue injury, which ought to have resolved within six weeks or so. There can be no claim for future economic loss, in light of the doctor's evidence, accepted by me that there is nothing to suggest the plaintiff was incapable of returning to his last employment driving a truck. I am not prepared to accept the plaintiff's evidence that lifting carcasses is too heavy for him, precluding a return to roo-shooting professionally.

For the six week period, the plaintiff's economic loss is limited, his claim presumably based on his established rate of earnings with the defendant, whom he had worked for for a few months, being only “$167 net loss per week”. $1,000 ought to be assessed, which would not bear interest, because the plaintiff's workers compensation payments were, it seems, at the same rate weekly, or higher. The explanation for this curiosity may lie in the circumstances which led the plaintiff to describe himself as in receipt of “Jobsearch” in his Form 4, which was dated 7 July 1994. It would be reasonable to allow $100 for analgesics and travelling expenses, again, I would not allow interest. I would assess general damages at $2,500 and, as suggested by Mr Morton, who submitted that everything being well in the past, the plaintiff ought to have interest at 4% on $2,000 for the period since the accident. $235 by way of interest. Mr Morton conceded the $100 for pain killers for six weeks and travelling expenses.

By and large, I do not think that the other items claimed by Mr. Grant-Taylor by way of medical expenses, Workers' Compensation Board miscellaneous expenses and rehabilitation expenses have been established as attributable to anything that happened on 1 July 1994. Exhibit 6 records consultations with a local general practitioner, Dr. Tedman, although the plaintiff claims these to date, I would allow only one, for a single surgery consultation on 5 July 1994. It appears to me that all other items before 29 September 1994, by when Mr. Flood ought to have been over his soft tissue injury to his back may relate to other matters such as items on 12 July 1994 for tumour, cyst, ulcer or scar removal.

There will be a Fox v. Wood component, which I cannot quantify. No evidence was adduced regarding the plaintiff's ability to recover tax instalments from the Commissioner of Taxation. As I understand it, the practice in those circumstances is to include Fox v. Wood, at least unless an undertaking is forthcoming from the defendant that if reasonable efforts made by the plaintiff to recover instalments from the Commissioner fail, the defendant will make things good. Mr. Morton has been offered an opportunity to furnish a suitable undertaking. His Honour Judge McGill S.C. in Frank Van Look v. Shaft and Tunnel Pty. Limited (Plaint 273 of 1995, 11 April 1997) reviewed various relevant authorities and other materials in detail, firstly approaching the matter in terms of assessing the probability of the plaintiff getting repayment of tax instalments, and allowing 40% of the deductions (or tax and $200 as an estimate of the cost of recovery). The Fox v. Wood payments revealed by the Workers' Compensation Board letter, Exhibit 8, relate to payments well past the six weeks which I would recognise as the period of the plaintiff's inability to work on account of work injury.

The Fox v. Wood component must be segregated, just as in appropriate cases must total payments made by the Workers' Compensation Board be to ensure that the statutory reductions of damages which the Board has the advantage of do not result of a plaintiff having to disgorge Board payments received in respect of matters not the subject of common law damages assessed in his favour. Mr. Grant-Taylor referred in this connection to Fechner v. Yerkovich (1993) 1 Qd.R. 249 and Lausberg v. Burns Philp & Co Ltd (1992) 2 Qd.R. 642.

Payments made by the Board here exceed the damages assessed by me. However, in the circumstances, there is no call for engaging in the exercise contemplated in those authorities.

The plaintiff's action should be dismissed with costs to be taxed.