McDonald v Kistlands Pty Ltd[1997] QDC 306

BETWEEN:

AND:

REASONS FOR JUDGMENT - McGILL D.C.J.

Delivered the 14th day of November 1997

By this action the plaintiff claims damages for injuries suffered by him on 8 August 1995 when he fell at his workplace. The plaintiff originally claimed damages for negligence, but during the trial I gave leave to amend to add an alternative claim for breach of statutory duty: Exhibit 41. Liability and quantum are both in issue, and there was a significant dispute as to the circumstances of the accident.

Facts: Background

The plaintiff was at the time of the accident employed as a bricklayer by a bricklaying contractor who was building a brick wall around an elevated play area which was at the back of a child care centre at Coorparoo. The centre was built in a location where there had previously been a petrol station, and some of the concrete foundations used for the petrol station were reused as part of the centre: p.107. The actual building for the child care centre was constructed above a concrete slab which had been part of the service station forecourt, and at the back of this an existing concrete slab was extended to provide an open but protected play area: p.9, 107. To one side of this there was a sloping concreted area which was to be used as a car park for the child care centre. The defendant contractor had been working on the site some months before this accident, constructing the building itself, but returned to the site only one day before the accident in order to build a brick fence along the edge of the concrete slab at the back of the centre (p.10, 72, 978). It had initially been intended that a different fence would be constructed.

A view from the opposite side of the carpark (Exhibit 30) shows the end wall of the child care centre to the right; at the time of the accident that had been built but the brick wall to its left was not there as this was the project on which the defendant was working. The open section of the slab immediately behind the centre was about 4.3 metres wide. Below it was the sloping concrete car park, although there is now a garden a couple of feet wide below the wall, and it may be that that was there at time (p.110), in the form of a strip of compacted earth. There is a ledge below the end wall of the building which was there at the time, the slightly higher ledge to the left was the edge of the new slab constructed behind the centre: p.107. When the fence was built a strip was left outside to form this ledge. The rest of the concrete slab had along its edge a raised area which probably operated like a beam to support the slab. This stood some .4 of a metre above the level of the slab (Exhibit 39), and also extended a little below it. Next to the building the slab was 2.1 metres above ground level, but because of the slope at the end next to the beam it was 2.35 metres above ground level: Exhibit 39. The section of the slab with the beam along the edge was all higher than this, most of it a good deal higher (p.10 and Exhibit 31).

Before the brick wall was built most of the edge of the new slab was bounded by this concrete beam, except for the section adjacent to the building where the slab simply ran to the edge and stopped: (p.109, 110, 106). Indeed the final 170mm of the slab tapered downwards slightly, at an angle of 5°: Exhibit 39. This meant that once the wall was constructed the ledge outside the wall fell away to the edge in this way; the ledge below the building was also tapered, at an angle of 8°: Exhibits 30, 39.

When the child care was constructed it was necessary to build a new slab floor for the centre, because the concrete slab inherited from the petrol station was not flat (p.107). A few courses of bricks were laid around the boundary, and the concrete slab was then constructed inside those bricks, so that the floor of the child care centre was a little above two bricks above the level of the lower ledge: p.89 This is identified by weep holes visible in Exhibit 38 and see p.94. The floor of the slab constructed behind this part of the child care centre was only slightly below the level of the floor of the centre: p.109.

The accident

The plaintiff had worked on this job with others on the previous day, when part of the wall was built, starting from the other end and working towards the building (p.10). He arrived for work on the day of the accident at about 6.30am, well before the usual starting time which was 7am, and there was no one else there (p.11). He said that he got out of his car and took his lunch and a thermos and climbed onto this slab by climbing a piece of steel reinforcing mesh which was leaning against the wall of the building immediately adjacent to the edge of the building (p.12 and see Exhibit 28). He said he had in mind doing some cleaning out work on the bricks that had been laid the day before, in preparation for extending the wall further (p.11). For this reason after he reached the slab he initially moved to his left towards the point where work had stopped the previous day, but then decided to leave his lunch box in the shade of the building, and turned around with a view to walking back towards it (p.13). As he did so he lost his balance and fell over the edge of the slab. He said (and it was common ground: see Exhibit 2 answer 9) that at that point there was no barrier or anything to prevent him from simply falling over the edge. He said he landed heavily on his feet, and felt something like a zip running up his back: p.14. When he tried to move his feet were in pain and he was unable to walk, although he made his way across the car park towards his car where he had a mobile phone. However he was unable to get into his car and had to wait until the site foreman, Mr Dignan, arrived shortly before 7am.

Mr Dignan arrived at the front of the building, unlocked it (p.98), and unlocked the other doors to the building. He then took a ladder which had been kept inside the building for safe keeping and brought it near the place where the plaintiff had fallen so that it would be possible for a person to climb from the car park onto the slab by climbing up the ladder close to the wall of the building: p.99. It was while doing this that he saw the plaintiff who beckoned him over. He gave some assistance to the plaintiff who attempted to telephone his employer, but at that time his employer Mr Mason also arrived.

According to Mr Dignan the plaintiff when asked what had happened replied “I fell off the concrete there where I walked along” and pointed up to where he said he fell off: p.99. The area identified by Mr Dignan was a point along the end wall of the building, perhaps 2½ metres from the open slab, a point which was identified by a small white outlet called a frog trap visible in Exhibit 30. Under cross-examination (page 104) he said that the plaintiff had said that he was walking along the ledge (not the edge) and he fell off, and pointed to something in the middle of the building itself, rather than the open edge of the slab. Mr Dignan also said that there was no reinforcing mesh leaning up against the building at that time, and indeed that there was no such mesh anywhere on the job at that time: p.102. There was however some concreting work done in the car park where some broken concrete was replaced (p.103, and see p.28). It appears as lighter coloured concrete in view A on plate 1 in Exhibit 33. It looks fairly extensive. Reinforcing mesh was used for that job: p.104. Nevertheless Mr Dignan felt sure that there was no mesh still around the site at the time of the accident: p.104. In this he was supported by Mr Mason who as I said arrived on the scene shortly after. He said there was no such mesh there, and that when he worked on the site on the second occasion it was reasonably clean: p.74.

The defendant's argument was that I should accept this evidence that there was no reinforcing mesh present at the time. This meant that the plaintiff could not have climbed onto the slab on any such mesh. In the absence of the mesh or something else to stand on the only way to get onto the slab was to climb along the ledge below the building. It was then argued on the basis of Mr Dignan's evidence that I should find that while performing this exercise, the plaintiff fell off that ledge and injured himself.

Alternatively it was argued that the plaintiff had fallen when attempting to climb from the lower ledge onto the slab, which was a more difficult exercise in circumstances where there was nothing at that point to hang onto. This argument could have applied equally even if the plaintiff had climbed some reinforcing mesh, if the mesh was not immediately adjacent to the slab.

It seems to me that the first matter I must determine is whether the plaintiff fell while climbing along the lower ledge adjacent to the building, or fell while attempting to climb onto the slab, or fell, as he said after he had gained the slab when he was simply walking on it. The only person who was present at the time of the fall was the plaintiff. The version given by Mr Mason at page 75 of the plaintiff's account to him was simply “I fell getting up there” which does not really identify where the fall was from, although it is most consistent with the proposition that he fell while actually climbing onto the slab. (Note Exhibit 2 answer 5, although this may refer to a different occasion.) Mr Dignan's evidence at face value indicates that the fall was from the ledge, but this is subject to two considerations. The first was the plaintiff's indication of the frog trap as the area from which he fell. The plaintiff at that time was a little distance away on the other side of the car park, was not looking directly towards the wall but was sitting side on to the wall (p.104), would have been in considerable pain, and was I suspect not concerned to identify with precision the place of the fall. There is no particular reason for Mr Dignan to have been concerned to identify precisely where he was pointing at the time. Even if he did happen to point to the vicinity of the frog trap, I do not think I should regard this as a reliable admission by the plaintiff. The other consideration is that Mr Dignan, who is an elderly gentleman now retired (p.97), was a trifle deaf, and it is plausible that he thought he heard the plaintiff say that he fell off the ledge when he actually said he fell off the edge. If he did make this mistake it was understandable that he would be reluctant to admit it, since he probably really believes that he heard ledge. But if the word “walked” was used that seems inconsistent with the plaintiff's having been on the ledge at the time. The ledge is only 180mm wide (Exhibit 39) sloping as I have said and immediately adjacent to a brick wall which is not entirely without obstacles, and the plaintiff was carrying an esky and a thermos and possibly some tools (p.26 and see p.101). I would regard that as a challenging manoeuvre for the plaintiff, and one that would not be carried out by any process which would be ordinarily described as walking.

One of the difficulties with the defendant's first theory as to how the accident occurred is that I find it difficult to believe that a person could actually get along this ledge as far as the plaintiff must have got before he fell off. The plaintiff would have been a fair way along the ledge, because of the severity of the injuries he suffered. There were crush fractures of three of his vertebrae, and a fairly severe fracture of a bone in his left foot. The orthopaedic surgeons who were asked about the matter said it would be possible for a person to suffer these injuries with a fall of a distance of 1.5 metres, the height of the ledge in the vicinity of the frog trap, but it was rather more likely that they were caused by a fall of the order of 2.2 or 2.5 metres (p.123,146). It seems to me that in the light of this evidence the severity of the plaintiff's injuries tells against the theory that he fell from the ledge. It was probably in the light of this that the argument emphasized in addresses was the theory that the plaintiff had successfully negotiated the ledge and actually fell when he was climbing onto the slab, by which time he was climbing from 1.8 to 2.1 metres above the ground.

The other difficulty with the theory that the plaintiff had obtained access by climbing along the ledge is that, even if it was possible to do it, it seems unlikely that anybody would try unless they had some particularly good reason for doing so. Counsel for the defendant was unable to suggest any particularly good reason for the plaintiff's doing so, and none emerged from the evidence. The plaintiff was unable to start any real work until the whole team arrived, certainly not until Mr Mason arrived because he had the key to the cement mixer: p.80. He might have been able to do a bit of cleaning up work which he said he was going to do, but I think it unlikely that even the most conscious bricklayer would attempt the obviously dangerous task of climbing several metres along this sloping ledge simply in order do this fairly rudimentary task a quarter of an hour before starting time. Mr Mason expressed some surprise that the plaintiff would be concerned to do it before starting time at all (p.80), but I suppose if the plaintiff is just sitting in the car park with nothing else to do and it is reasonably easy to climb onto the slab to put his lunch box away and get himself ready for work it is plausible that he might do so. It is somewhat less plausible that he would attempt to do so if the process required something as obviously dangerous as climbing along this ledge.

There is one other matter which I think is of some relevance. When the plaintiff went the same day to Princess Alexandra Hospital he evidently gave an account of a fall of the order of 10 to 12 feet: Exhibit 8 and see p.37. The report does not give any other indication of where he fell from, but a height of 10 to 12 feet, being higher than any relevant height along this wall, also supports the theory that the fall was towards the higher end rather than the lower end.

I have analyzed this question in a little detail because I think that the matter can not be resolved simply by confidence in the reliability of the plaintiff's evidence, since there were aspects of the plaintiff's evidence which seem to me to be unreliable. The account he gave in the witness box of the place from which he had fallen, which was quite close to the highest end of the slab, was inconsistent with a point identified in answers to interrogatories, near the middle of the slab. This was initially explained on the basis that at the time when he had answered the interrogatories he had not then been back to the site or seen photographs of it, but Mr Smolakovs, a safety expert who accompanied him to the site a few days before the trial said that the place identified to him by the plaintiff as the point from which he fell was about the middle of the slab, which is consistent with the answers to interrogatories. The difficulty with the evidence of Mr Smolakovs is that he said he measured the height of the slab above ground at that point and derived a measurement of 2.59 metres: Exhibit 34. Ultimately a series of measurements were agreed between the parties: Exhibit 39. It is plain from that diagram that the point at which Mr Smolakovs measured the height would have been slightly under 2.25 metres. This is a substantial error over a relatively short distance in an exercise in measurement which ought to have presented no difficulties. In the circumstances Mr Smolakovs is plainly unreliable and I think therefore I should not place any great reliance on his evidence as to what he was told by the plaintiff, or even where it was that he made the measurement which was so inaccurate.

There were also some inconsistencies with other aspects of the answers to interrogatories Exhibit 40, such as whether the plaintiff had waited for 10 or 15 minutes in the car park before attempting to climb onto the slab, or whether he went there straight away (p.23-25). Whatever the true situation, and I think it more plausible that the plaintiff did wait in his car for a time, this inconsistency demonstrates that in one version at least the plaintiff is not reliable. There were other inconsistencies about matters not as relevant with the evidence of Mr Mason and Mr Dignan. There were also a number of inconsistencies between what he told the doctors about the treatment at the PA Hospital, and what must have happened, most notably his statement to Dr Gillett that no x-rays of his back were taken which was plainly wrong (see below). Although the plaintiff presented as an honest and straight forward witness, in view of these inconsistencies I can not regard him as entirely reliable. I think that the correct approach is to regard him as being generally or broadly reliable, but not necessary to accept as true everything the plaintiff said simply because he said it. On the whole I am not prepared to accept the plaintiff's version of events simply on the basis of the plaintiff's evidence.

Nevertheless because of the considerations mentioned I think that it is most probable that the plaintiff fell from about the point he indicated on Exhibit 28, that is about where the red line is. It follows that I reject the proposition that he fell while making his way along the lower ledge, or that he fell while moving from the lower ledge to the slab. I am therefore prepared to accept the plaintiff's evidence that he fell because he was initially walking towards the point where he was going to start work, then changed his mind and turned around so that he could leave his lunch in the shade and over-balanced at that point. It is therefore strictly speaking irrelevant whether he climbed onto the slab by means of the reinforcing mesh, or whether he arrived by successfully negotiating the ledge, although I think the former is a much more likely explanation and if it were necessary to make a finding about that point I would find that he climbed up reinforcing mesh.

There is no suggestion that the plaintiff fell over anything. His own account at page 13 was simply that he over-balanced as he turned around: as he put it himself “I might have been too close to the edge of the slab.” It may be that he fell because he placed his foot on the sloping edge of the slab, the part that now sits outside the wall and has the 5 ° slope I spoke of earlier, and this caused him to over balance, but there is no actual evidence of this, and the case for the plaintiff depends on an absence of edge protection, not that anything the defendant did caused the plaintiff to fall.

Common law negligence

The plaintiff's case at common law is pleaded in a number of ways, some of them fairly vague. I do not think there was any negligence in failing to provide adequate access, because adequate access was provided through the child care centre once the building was opened: p.78. At the time when the plaintiff was seeking to gain access it was not appropriate for him to do so since it was not time to commence work. The plaintiff was not required to access the slab by climbing up from the car park below without the assistance of a ladder. Whether a ladder at that point was appropriate access is not something I need to decide. I do not think there was any negligence in failing to warn the plaintiff of the danger of walking too close to the edge of the slab. Again it is not as though he was required to walk there by something he had to do in order to carry out his job. He simply chose to walk where he did (p.38), and the hazard posed by the edge of the slab must have been obvious to him. This is not a situation where an employee was exposed to an obvious danger by the exigencies of his work, where it might have been necessary for an employer to provide some warning or reminder about even obvious dangers to prevent their being overlooked while distracted by the processes involved in doing the work.

In my opinion the plaintiff's case at common law comes down to the question of whether there was negligence in failing to provide some barrier along the edge of this slab to prevent people from falling off it and injuring themselves. If a barrier had been provided it is likely that the plaintiff would have been walking further away from the edge, and that the barrier would have caught him if he had over-balanced anyway. Depending on the nature of the barrier, it may have been an effective deterrent to attempting to climb onto the slab at all, but I do not think that that is the point. A barrier he could have climbed over or a hand rail he could have climbed under would still have been effective to prevent his fall.

It is in my opinion plainly foreseeable that a person who fell from the edge of the slab, particularly the higher end, might suffer injury as a result. The fall is up to 2.35 metres, and the medical witnesses said that the sort of injury the plaintiff suffered was consistent with a fall of that distance on to concrete. Some injury in these circumstances is plainly foreseeable. It then becomes a question what a reasonable employer would do by way of response to the risk. The answer to that is found in the evidence of Mr Richards, a contractor experienced in building and construction practices, who at page 162 said that it would be opportune to put some form of barrier there as a precaution if people were working in that general area. He did go on to say however that he would expect the barrier to be removed when the wall was actually built (and see p.163), and thought that it could be built appropriately using the overhand method. That involves building the wall whilst standing on the inside of it, and to the extent that it is necessary to obtain access to the outside of the wall, for finishing the mortar in the joints, doing this by leaning over the top of the wall.

In my opinion the question of whether that method of construction is consistent with taking reasonable care for the safety of employees does not arise in this case since the plaintiff did not fall while working using that method, although the evidence was that that method had been used the previous day and would have been used by him on the day of the accident once work had started.

It is not clear that the job was to be finished on the day of the accident, and there is no suggestion that any barrier which had been along the edge of the slab had been removed in order to enable the wall to be built. If it had I think it was removed too early. The plaintiff's evidence was that about half the job had been done the previous day (p.10) and there was no evidence to the contrary. In my opinion there ought to have been a barrier along this edge of the slab, and it should not have been removed at that stage. Whether it was necessary for the employer to provide a barrier which would only be removed after the wall had been completed is also I think unnecessary to determine, but if it were necessary I would find that the barrier could be removed before construction of this particular section of the wall although it should be removed really only just before the work on this section started.

Some point was made about the use of this section for access using a ladder, which was a common practice: p.10, 78, 101. So far as I can recall there is no evidence that goods or equipment were placed on the slab in this way, and access by someone climbing the ladder could have been accommodated by climbing under the hand rail, or by leaving a gap in the hand rail immediately adjacent to the ladder.

The defendant's duty to provide a safe place for work was non-delegable, and was not discharged by relying on the head contractor to provide a safe place of work generally. There are no proceedings before me between the defendant and the head contractor or anyone else, and I think that once I have decided that the workplace was not reasonably safe the result is that the defendant is liable in negligence.

Breach of statutory duty

With regard to breach of statutory duty, this was not a position where a person could fall 2.4 metres or more (Exhibit 39) and therefore there was no obligation to guard the edge of the slab under Regulation 117(4)(b) of the Workplace Health and Safety Regulations 1989, which were applicable at the time of this accident: Workplace Health and Safety Act 1995 section 190. It also follows that Regulation 102 was not applicable. Counsel for the plaintiff relied on Regulation 117(2) and (4)(c). As to the latter it was submitted that concrete was a substance likely to cause injury and therefore there was an obligation to erect a guard rail and mid rail where a person could fall onto concrete. I do not think that that is what this paragraph is intended to cover, since concrete would not present much more risk of injury then hard ground, and it is the sort of surface that I would regard as the ordinary surface for the purposes of determining whether a fall at a particular place was likely to be dangerous (cf.p.135). Obviously one could have a softer surface, but I suspect it would be unusual to have a surface which was much softer unless some special effort had been made to provide one. On the other hand it is not difficult to imagine a situation where there was something much more likely to be dangerous to fall into or onto than concrete. I think that paragraph (c) is concerned with a substance which is more than usually likely to cause injury or be harmful, and was therefore not applicable in this case.

With regard to subregulation (2) that applies in circumstances where persons or material are likely to fall. I do not read that as being the equivalent of a situation where it is foreseeable that a person might fall. The word “likely” commonly connotes a probability of greater than 50%, that is to say more likely than not, but even where that is not the case there must be a substantial likelihood of such an event occurring: see R. v. T. [1997] 1 Qd. R. 623 at 662, 664, 667. It may be foreseeable that a person could injure themselves by falling off the edge of the slab, but I would not characterize it as a place from which a person was likely to fall. I suspect that in practice it is very common for building workers to work where there are unprotected edges such as this (p.37), without any adverse consequences except very occasionally. That does not mean that injury is unforeseeable in these circumstances, but it does prevent a fall from being likely.

It follows in my opinion that there was no breach of Regulation 117 either. Regulation 141 is concerned with provision of access, and for the reasons I have already given I do not regard that as relevant. It does not appear therefore that any of the specific obligations on employers under the regulations is relevant in the present case. There would however be a breach of statutory duty under the general provision (s.28(1)) which incorporates the common law duty to provide a safe place of work, for reasons given earlier, so that the circumstances amounting to negligence at common law also amount to breach of statutory duty. I do not consider that the defendant has discharged the onus on it of proving that it was not reasonable practicable to provide a barrier along this edge: s.37(1), and see Rogers v. Brambles Australia Ltd (Appeal 189/95, 8.11.96, Court of Appeal).

Contributory Negligence

With regard to contributory negligence the question of whether an employee such as the plaintiff is guilty of contributory negligence depends on whether he ought reasonably to have foreseen that, if he did not act as a reasonable and prudent man, he would expose himself to risk of injury: Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 at 310. As was pointed out there, his conduct must be judged in the context of the finding that the employer was in breach of his statutory obligation to ensure his health and safety, by exposing him to unnecessary risks. The question is whether in such circumstances the conduct of the work amounted to mere inadvertence, inattention or misjudgment, or to negligence rendering him responsible in part for the damage (ibid). Some emphasis needs to be placed on the word “mere”, because inadvertence inattention or misjudgment and contributory negligence are not mutually exclusive categories. Inadvertence inattention or misjudgment can amount to contributory negligence: the question of whether it does so depends on the test posed by Windeyer J in Sungravure Pty Ltd v Meani (1964) 110 CLR 24 at 37. As explained by the majority in McLean v Tedman (1984) 155 CLR 306 at 315, some temporary inadvertence, some inattention, or some taking of a risk will be excusable if in the circumstances it is not incompatible with the conduct of a prudent and reasonable man. The issue is ultimately one of fact. The question is whether the plaintiff acted as a reasonable and prudent man in the circumstances in which he was injured: Alexandrow v Tully Cooperative Sugar Milling Association Ltd (Appeal 65/88, Full Court of Queensland, 5.6.89, unreported) per Ryan J. p.7, Connolly J. agreeing. In the same judgment His Honour rejected the proposition that a person cannot be guilty of contributory negligence if he shows lack of reasonable care for his own safety in carrying out a dangerous operation as part of his employer's business.

In the present case there was I think more than mere inadvertence, inattention or misjudgment. The plaintiff fell because he was too close to the edge, and he was too close to the edge because that was where he chose to walk. This is not a case where a plaintiff might have been distracted by something he was required to do, or was engaging repeatedly in an activity which required some rudimentary precaution which might occasionally be overlooked. The need for care on the part of the plaintiff depended entirely upon how close he was to the edge, and that in turn was entirely a matter of his choice. The presence of the edge and the absence of edge protection must have been obvious to him. There was evidence that he was an experienced bricklayer (p.21), but I would have thought that any intelligent person in his position would have been readily able to appreciate the risks involved in walking too close to the edge of the slab under these circumstances. I think that a person who chooses to walk close to an unprotected edge ought to respond by taking extra care for his own safety, and evidently the plaintiff did not do that. In the circumstances I think there was more than mere inadvertence, inattention or misjudgment and I find that there was contributory negligence on the part of the plaintiff in walking too close to the unprotected edge and failing to take care in executing the turn.

With regard to the question of apportionment, it is recognised that the duty of care on an employer is not a low one, and the plaintiff's own negligence did not endanger anyone but himself. On the other hand the plaintiff was not doing something that the employer expected him to be doing, nor was he doing anything that he had been directed or was reasonably required to do in order to carry out his work; he was simply moving about on the work site in the course of getting ready for the day's work. The fact that he happened to walk when and where he did and in particular the fact that he was so close to the edge was in no way attributable to the act or default of the employer. In the practical sense it was the plaintiff's own negligence that caused his fall, but the defendant is also liable because there ought to have been a precaution in place which would have prevented such a fall. In these circumstances I apportion responsibility for the fall ⅓ to the plaintiff and ⅔ to the defendant.

Quantum

Following the accident the plaintiff was in considerable pain and was unable to walk. He was taken to the Princess Alexandra Hospital where x-rays were taken and it was found that he had a compression fracture of the left os calcis and a possible compression fracture of part of the thoracic spine: Exhibit 8. The plaintiff discharged himself from the hospital contrary to medical advice, and received outpatients treatment for about 2½ months. He subsequently told his GP that his back pain was treated at the Princess Alexandra Hospital as muscular pain: Exhibit 9. Apparently he told Dr Gillett in December 1995 that x-rays were not taken of his back: Exhibit 21. Plainly from Exhibit 8 the possibility of fracture was identified, but he may have been told it was probably muscular pain.

In November 1995 he still had pain in the left foot, and was referred to physiotherapy which continued until March 1996. The GP referred the plaintiff to an orthopaedic surgeon, Dr Saxby who reported in January 1996 that the plaintiff was walking with a limp, with some swelling in the left ankle, and that the pain had plateaued: Exhibit 10. There was subsequently a bone scan which revealed subtalar arthritis: Exhibit 4, Exhibit 11. At that stage Dr Saxby thought it was worthwhile seeing if the condition improved over a period of six months, but because of continuing pain Dr Saxby decided in April 1996 that he should proceed to a subtalar joint fusion (Exhibit 14) and such an operation was carried out on 7 May 1996: Exhibit 15. When reviewed in July Dr Saxby reported very little discomfort following the surgery and the arthrodesis appeared to be solid. In August 1996 he told the Workers' Compensation Board that the plaintiff was progressing well but that it would take at least six months to recover from the surgery: Exhibit 18.

In February 1996 the plaintiff was sent by his GP to Dr Ryan, another orthopaedic surgeon, for an opinion about the fractures to the spine: Exhibit 9. This is outside Dr Saxby's area of particular interest. Dr Ryan reported that the plaintiff had had a thoracic spine compression fracture in the fall, but he also noted that there was low back pain from naturally occurring lumbar disc degeneration: Exhibit 19. In his report to the Workers' Compensation Board Dr Ryan noted that the plaintiff also complained of pain in the knees and both feet about the heels: Exhibit 20. He reported that the compression fractures had healed, and noted that there was significant restriction in the spine, and some tenderness but no spasm or scoliosis: Exhibit 20.

The plaintiff was seen by three orthopaedic surgeons for the purposes of a medico-legal report. The first was Dr Gillett who saw the plaintiff at the request of his solicitors for the purposes of a report in December 1995: Exhibit 21. At that stage the plaintiff was complaining that pain in his back was continuing although not as bad as it had been for two months after the accident, sleep was uncomfortable and he could not sit for any length of time and had difficulty with bending and twisting. He noted that he was unable to do domestic tasks such as mowing or gardening or carry out recreational activities of fishing (and see p.17), golfing, or walking. Dr Gillett thought that there would be a need for ongoing exercise program for the lumbar spine, but that surgery would not be required. He thought there would be a permanent partial disability of the order of 5 - 10% of bodily function as a result of problems of the spine. With regard to the left heel he thought that a subtalar fusion would probably be required and thought that the heel injury would leave him with a permanent partial disability of the order of 20%. In the witness box he seemed to acknowledge that, in terms of actual loss of function, the percentage disability in the left leg would be conventionally identified as much lower than this, but Dr Gillett thought that was unrealistic in view of the practical affect on someone who had had a subtalar fusion. His estimate was not changed by the knowledge that the fusion operation had been carried out. He had not seen the plaintiff since December 1995.

In December 1996 the plaintiff was seen by Dr Packer at the request of the Workers' Compensation Board. At that stage the plaintiff was complaining about some pain around the left ankle and trouble with walking particularly on uneven ground. He had difficulty squatting, the knees were aching and there was soreness in the middle and lower back, worse at times. He could not sit for more than an hour at a time: Exhibit 25. He had given up golf and squash and had difficulty with surf fishing. Dr Packer thought that the plaintiff had suffered injury to both feet particularly to the left and crush fractures of the T6 and T7 vertebral bodies. His condition was relatively stable and it was unlikely that any further treatment would be required. He thought there was 12% loss of use of the left leg as a whole, no real impairment in the right leg, and any impairment from the fractured vertebrae would be less than 5% of the whole person.

In February 1997 the plaintiff was seen by Dr Dickinson at the request of the defendant's solicitors. The plaintiff told Dr Dickinson that his back was continuing to hurt, and seemed to have become worse over the last year. The foot was considerably better than prior to surgery, but still caused problems if he walked on uneven ground. Various activities he had engaged in prior to the accident were now closed to him. Dr Dickinson thought that the outcome in terms of alignment and range of movement of the subtalar fusion were excellent (p.119), and put the impairment of the left leg at 10%. He put the impairment to the spine at 5%; he agreed there were crush fractures there: p.117. He did not expect that either condition would deteriorate, and did not think that there was any need for assistance in terms of domestic duties.

I have taken into account the opinions expressed by all three specialists. Where they differ it usually means that different views can reasonably be taken on the point. The main difference was as to the percentage disability in the leg, and in view of the evidence of what the plaintiff can and cannot do I think that the most appropriate estimate is 12%. The impairment of the spine is 5%.

The plaintiff complained of pain in the back all the time, which causes problems from prolong sitting, but the back is also aggravated by various things particularly lifting or twisting: p.19. The left foot causes problems if something provokes it. He also made complaints about his knees: p.45. I have said something about the plaintiff's credibility; that is also relevant to the assessment of damages.

The plaintiff was seen in March 1997 by a clinical psychologist, Ms Britton: Exhibit 22. He gave a detailed account of his problems and complaints and these are set out in her report. She noted the effect of the accident on the plaintiff's employment and recreational activities. Psychometric testing indicated that the plaintiff had a well integrated personality, was not suffering from depression or hopelessness about the future, had normal anxiety levels and was not suffering an effective disorder. She thought however that he had a personality type which was often present with some people suffering a somatoform pain disorder. Such a condition would only be indicated by complaints of pain which did not appear to have any objective cause, and that does not appear to be a problem with this plaintiff. It appears that he is coping quite well psychologically with his condition.

Overall the plaintiff would have suffered a good deal of pain particularly until the subtalar fusion which was nine months after the accident (p.15). Since then he has had a good deal less pain in his foot, and it seems to be mainly his back which is bothering him, although that seems to involve in part problems with the lower back which may have arisen in any case. No doubt such problems would have been aggravated by the fall, although the x-rays did not show any significant degeneration. On the whole I think the plaintiff normally now does not have a great deal of pain, particularly if he is careful (p.40), but various things can stir up his condition and make the back in particular painful, and it is unlikely that the condition will get any better as time goes on. It may be that his ability to stay within the limits of what does not hurt him, or at least does not hurt him very much, will improve with practice, and he may benefit from strengthening exercises or other forms of rehabilitation. He is likely to get additional pain if he finds some employment, and I should make allowance for the possibility of this. He was born in August 1950 so that he is now 47.

In all the circumstances I assess general damages in the sum of $38,000, of which I attribute $8,000 to the past. In making this assessment I have referred to the decisions in Judd v. McLean (Helman J., Writ 835/95, 19.11.96); O'Sullivan v. Hotchin (Williams J., Writ 1656/86, 19.3.97); Byers v. Bonnerking Pty Ltd (Wolfe DCJ, Plaint 75/96, 2.4.97); Saliba v. Silvester Bros Ltd (Williams J., Mackay Writ 73/95, 6.6.97). Interest on the past component is not payable as it is less than the amount of lump sum disability settlement: Exhibit 23: Mahoney v. GEC Australia Ltd [1994] 1 Qd. R. 397. Amounts of $13,000 for past gratuitous care and $2,000 for future gratuitous care are agreed, and the past component will carry interest at 2% from the date of the accident. There are refundable expenses to the Workers' Compensation Board in the sum of $9,432.09, and a Fox v. Wood component of $7,522.70: Exhibit 23. It was agreed that I should allow $200 as a refund to Medicare, $100 for pharmaceutical expenses and $300 for travelling expenses. This produces an agreed total of special damages of $17,554.79; interest would be allowable on $400 of this. It is likely that the plaintiff will have to spend money on pain killers in the future, and will require occasional visits to a doctor although this was not the subject of evidence. Doing the best I can I allow the sum of $1,200.

With regard to economic loss, the plaintiff has not returned to work as a bricklayer, or indeed to any gainful employment. The medical evidence was that he would be unable to work in the future as a bricklayer. Apart from that work, in the past the plaintiff has worked as a truck driver and as a waterproofer: p.8. He says that he would not be able to cope with truck driving because of the constant sitting required, and because of the roughness which would aggravate his back, and he could not cope with any truck driving which involved heavy lifting: p.19. The waterproofing involved a good deal of bending over and squatting neither of which he can do now. He said that he had tried some things since the accident (p.15 +), but that it took him a very long time to do them and it was difficult and painful. He said that he had problems getting in and out of cars (p.19), and this together with difficulties of lifting heavy luggage were the main reasons he gave for not having tried to get work as a taxi driver: p.41

The defendant sought to show the plaintiff would be able to work as a taxi driver and earn a reasonable income in that occupation, although it would be a good deal less than he had been earning as a bricklayer. Dr Dickinson thought that the plaintiff would have no limitation working as a taxi driver: p.119. Dr Packer thought that there would be very little difficulty provided he had the opportunity to get out of the cab and change his position from time to time: p.143. He did think however that shifts of eight hours would be more suitable for the plaintiff than shifts of twelve hours: p.144. Dr Gillett thought that the plaintiff may be able to do taxi driving although it could cause his back to hurt in the light of his pathology: p.138. He would not recommend that a person with this condition work where he was required to sit for extended periods, and he would expect the plaintiff to have trouble with carrying luggage and climbing in and out of the car and helping people.

The plaintiff called evidence from a taxi owner who spoke about the need to carry luggage (p.65) and said that other things being equal he would prefer to employ someone who did not have a back problem: p.66. That is a fairly limited condemnation. A taxi owner called by the defendant said that he knew a lot of follows with back problems and other ailments, people like retired bricklayers who were working as taxi drivers: p.128. He said it was not a physical job; he had a driver at that time who had a knee problem: p.129. There had always been a demand for drivers: p.125. I might add that in a couple of other matters that I have tried plaintiffs who had back problems because of injuries subsequently worked as taxi drivers.

No doubt the plaintiff would find working as taxi driver more painful than not working at all, and he might find it particularly demanding at first until he got used to what was involved, and worked out what things he should do and not do. The plaintiff has not attempted to work as a taxi driver, so that the position is simply that there is some reason to think he probably would be able to do it, although he may well experience difficulties and there is certainly some chance that he would find it beyond him. The list of desirable features for a taxi driver given by Mr Hay at page 128 would fit the plaintiff so far as I can tell; there is no evidence that the plaintiff is a poor driver. Certainly the hours are long: the standard shift is twelve hours from 4 o'clock and it seems to be unusual to have any other working hours, although in theory any hours can be worked provided that the owner agrees to them: p.71,130.

Apart from taxi driving the medical evidence referred to some other possible occupations. The plaintiff would appear to be able to work in any position which did not involve regular or heavy lifting, which gave him the opportunity of changing his position from time to time, and did not require him to be walking on uneven ground or climbing or squatting (p.138, and see p.118,145). The plaintiff expressed keenness to find something he could do: p.19.

It was argued on behalf of the plaintiff that I should apply the principle in Thomas v. O'Shea (1989) ATR 80-251. There are I think several difficulties in applying that decision in the present case. That case involved a clear instance of circumstances where a person was really physically incapable of anything other than quite light work, from which he was likely to excluded by language problems, and the circumstances were in my view a much more compelling case for saying that there was an evidentiary onus on the defendant to demonstrate the availability of work that plaintiff was capable of doing. The second difficulty is that in order to throw any onus on the defendant the plaintiff has to prove that he had really tried to obtain employment and been unable to do so: Adsett v. Noosa Nursing Home Pty Ltd (Appeal No.223/95, Court of Appeal, 6.12.96). I am not satisfied that the plaintiff has proved that in the present case. It also seems to me that the approach in Thomas v. O'Shea is difficult to reconcile with the approach to the assessment of future hypothetical facts determined by the High Court in Malec v. JC Hutton Pty Ltd (1990) 169 CLR 638. The position is that the plaintiff in the future, assuming he makes reasonable efforts to obtain suitable employment, may or may not do so. No doubt in part this will depend on economic circumstances, and in part on the extent to which he is willing to persevere, and the extent to which he proves to be able to cope with such aggravation of his symptoms as inevitably occurs in such employment. The accident happened a little over two years ago, so that he really has not had very much time to stabilize and find suitable employment thus far (p.139). He was recently divorced, and therefore does not have the same pressure from family responsibilities to earn an income.

I think that I should assess damages on the basis that but for the accident the plaintiff would during the period to trial probably have continued to earn income at much the same rate as prior to the accident, and that the whole of that amount represents past economic loss.

I have been provided with copies of the plaintiff's income tax returns for the years ending 1992, 1993, 1994, and 1995, although I find these in their present form somewhat difficult to follow. The 1995 return claims that the plaintiff was employed by the defendant from 1 July 1994 to 28 February 1995, receiving a total remuneration of approximately $27,200 in gross, although Mr Mason had claimed the gross earnings during this period was $16,328. The plaintiff claimed a taxable income in 1995 of $35,877, in 1994 $22,400, in 1993 $22,829, and in 1992 $39,058. (Exhibit 1) His marriage broke up in October 1993: Exhibit 22 and see p.44. He was subsequently living with his mother before the date of the accident. I think on the whole the best course is to take the income for the two years before the accident as indicative of the sort of income the plaintiff might have earned in the period prior to trial. It appears from the figures in Exhibit 1 that the average nett weekly income was $355.86 in 1994, and $557.95 in the 1995 year. These figures average $457. It seems that bricklayers' incomes have not risen in the last two years: p.154. Allowing 116 weeks since the date of the accident, this produces, with a small amount of rounding down, past economic loss of $53,000.

It was also argued that there should be some allowance for loss of superannuation benefits, something which should in an appropriate case be taken into account: Jongen v. CSR Ltd (1992) Aust. Torts Reports, 61, 706. This approach has been followed in Queensland: Meyer v. Beck (Ambrose J, Townsville Writ 101/94, 8.6.95); Leivers v. Eltin Pty Ltd (Ambrose J. Writ 1122/88, 9.6.95). This is a complicated area: see 17 QL 5. In the present case however it appears from the tax returns that I have seen that prior to the accident the plaintiff was ordinarily working as an independent contractor rather than as an employee, the last occasion on which he received substantial salary and wage income being in 1992. I suspect that the requirement of compulsory superannuation for employees will if anything tend to speed up the practice of people such as the plaintiff working as independent contractors rather than employees (p.158). In the circumstances the plaintiff has probably lost some chance of obtaining some additional superannuation benefits had he been at work during this period, but not very much. I should add that although the plaintiff seemed to regard the job with the defendant during which he was injured as being indefinite employment (p.42), it was clear from Mr Mason's evidence that he had been employed only to work on this particular project (p.82). I think that the amount should be regarded as cancelling out any deduction for the vicissitudes of life, which should also be small.

As for future loss, the evidence suggests that it is unusual for bricklayers to work past 55: p.149. The plaintiff might have continued to work after 55, but it would be unlikely to be strenuous work such as truck driving which involved heavy lifting which he had done in the past. He might have been able to do less strenuous truck driving, or indeed other less strenuous jobs, but presumably these would have resulted in some loss of income. There was no evidence of what the plaintiff was earning when he was a truck driver or how it compared with his earnings as a bricklayer. I think it likely that after age 55 the plaintiff's earnings would have dropped anyway, but the whole thing is quite uncertain. It is possible that he might have obtained some alternative form of employment which was more remunerative. I think the appropriate approach is to make some allowance for loss of future earnings based on an income of $460 per week nett for the next ten years, and then some global award for economic loss thereafter.

There was some evidence that at least in some parts of the building industry there has been a contraction in the demand for bricklayer's services in the last couple of years, (p.79, 158) and it is difficult to know what the future might have held. On the other hand the plaintiff in the past had worked in other occupations, and it is probable that but for the accident the plaintiff if not working as a bricklayer he would have been doing some other work of the kind he had done in the past. He would also have had much greater capacity to turn to alternative work then he has at the present time. I think it is reasonable to start the calculation for future economic loss on the assumption that apart from the accident he had an earning capacity of $460 per week.

As a result of the accident it may be that he has lost that completely, but I think that is not the more probable consequence. I think in the future he is likely to be working for a good deal of the time, though probably not all the time. The evidence indicated that a taxi driver working the three best shifts in a week could make of the order of $500 gross (p.126), but I expect the plaintiff's earnings as a taxi driver would probably be less than this. He would probably work less demanding shifts, which would be quieter and less remunerative. If the plaintiff worked in effect full time as a taxi driver for the next ten years his future economic loss would be fairly limited, perhaps $50 or $60 per week. If he did not work at all his economic loss would be $460 per week, but I think it is unlikely that he will not work at all for the whole of that period. The more likely result is that he will be doing some work most of the time, but it will usually be less remunerative than bricklaying. Whether this consists of taxi driving on a more limited basis, or some other form of employment, does not really matter for present purposes. On the whole I think that the various possible outcomes and their attendant probabilities are best allowed for by finding the plaintiff has lost half his earning capacity over the next ten years, that is allowing $230 per week loss over that period. On the 5% tables this comes to $94,300, which I will round down to $90,000 to take some account of the vicissitudes of life. I do not think that I should add any further amount for loss of superannuation benefits; I am bearing that factor in mind in determining what amount to take off for the vicissitudes of life.

As I have said for the period after the next ten years I think it is appropriate to make some global allowance. I allow $30,000, which means a total future economic loss of $120,000.

Conclusion

I therefore assess damages as follows:

I therefore give judgment for the plaintiff against the defendant for $124,949.63 together with $1,615.80 for interest.

I will hear argument on costs, but consider that the plaintiff should not in any case recover any costs in respect of the witness Mr Smolakovs, whose evidence was unhelpful, being either inadmissible (p.52) irrelevant, inaccurate (Exhibit 34), unnecessary (so far as it sought to prove Acts and regulations) or not relied on (so far as it proved Australian standards).

BETWEEN:

AND:

SUPPLEMENTARY REASONS FOR JUDGMENT - McGILL D.C.J.

Delivered the 11th day of December 1997

On 14 November 19971 delivered judgment in this matter. For reasons which I then published I gave judgment for the plaintiff against the defendant for $124,949.63 together with $1,615.80 for interest. I ordered the defendant to pay the plaintiff's costs of and incidental to the action to be taxed. In order to arrive at this judgment I found that the defendant had been negligent, that the plaintiff was guilty of contributory negligence, and I apportioned responsibility for the plaintiff's injuries one third to the plaintiff and two thirds to the defendant.

The accident occurred in the course of the plaintiff's employment, and the plaintiff had workers' compensation payments made to him or for his benefit. Pursuant to s.183(1) of the Workers' Compensation Act 1990, the amount of the damages that the defendant was legally liable to pay was to be reduced by the total amount paid or payable from the fund by way of compensation under that Act in respect of the injury. It is well established that effect is given to that provision, and its predecessors, by making the reduction required from the amount which would otherwise be payable after any reduction effected pursuant to s.10(1) of the Law Reform Act 1995, formally s.10(1) of the Law Reform (Tortfeasors Contribution, Contributory Negligence and Division of Chattels) Act 1952. A recent illustration of this is the decision of the Court of Appeal in Queensland University of Technology v. Davis (Appeal No.3691/97, 5.12.97, unreported).

Since delivering those reasons it has been pointed to me that they were erroneous in not following this approach; rather the amount of workers' compensation was deducted from the total damages assessed, $247,178.49 (including interest) before the reduction of one third for contributory negligence was made. What I should have done was reduce that total by one third, an amount of $82,392.83, giving a balance of $164,785.66, before deducting the amount of workers' compensation in the sum of $57,330.34, to leave a total amount recoverable (including interest) of $107,455.32. On this basis the assessment of damages that I made and my other conclusions properly lead to a judgment for the plaintiff against the defendant for $105,839.52 together with $1,615.80 for interest.

I was aware that the reduction for contributory negligence ought to be made before the deduction of the workers' compensation payment, and I have delivered a number of other judgments where these calculations have been performed in the correct order. The fact that the order was incorrect in this instance was simply due to a slip or a mechanical error on my part.

I understand that the judgment has not yet been taken out, and therefore there is no difficulty about my varying it to correct such an error. In any case there is power to correct an accidental slip in Rule 108(2). I should say that this is not a case where I had deliberately intended to make the workers' compensation deduction first, and had only been persuaded that was erroneous as a result of submissions received after publication of the reasons; this was an error which I should have noticed and corrected myself.

I therefore give judgment as indicated above, for $105,839.52 together with $1,615.80 for interest, in substitution for the judgment delivered on 14 November 1997. It is not suggested that this change would justify any different order for costs, and the order for costs made earlier will stand.