King v CSR Limited[1997] QDC 353

CIVIL JURISDICTION

JUDGE DODDS

and

and

and

MAROOCHYDORE

DATE 24\3\97

JUDGMENT

This was an action for damages for personal injuries suffered by the male plaintiff on the 1st of February 1993 in the course of his employment with the defendant and by his wife, the female plaintiff, for loss of consortium.

The male plaintiff was born on the 5th of April 1934. He is 62 years of age now. The female plaintiff is also 62 years of age.

I accept completely the evidence of the male plaintiff and his wife. I thought they were both completely frank. Typically, for the type of man he is, the male plaintiff has tended throughout to understate the effects of the injury he suffered.

The male plaintiffs account of and surrounding the incident was not challenged. He had been employed by the defendant since the 1st of April 1998 as a loader operator at its sand plant. His tasks included screening sand\gravel by putting it by means of the loader onto a screen on the top of a large metal hopper. They also included dismounting the loader occasionally and climbing to the top of the hopper by means of a metal ladder fixed to it to clean away debris which accumulated on the screen.

Photographs in evidence illustrated the hopper and ladder although the ladder in the photographs has been bent in a way it was not at the date the plaintiff was injured. At that time it was straight. They also illustrated the loading ramp up to the hopper which was retained by a log wall the top of which was adjacent to the foot of the ladder and the bottom on the same level as the foot of the hopper. A conveyer operated under the hopper.

It had rained earlier on in the day before the plaintiff was injured. The mate plaintiff said it was always wet at the sand plant because of the nature of the product. He had been on top of the hopper cleaning the screen on other occasions earlier on in the day. On the occasion he was injured it was after lunch. He had climbed the ladder to the top of the hopper and cleaned away debris. He went to descend the ladder which involved stepping over the side, missed the rung, missed his handgrip on the screen and fell. He was wearing work boots and leather gloves. He landed on his right side on the dirt and logs at the base of the ladder and then fell further down the face of the retaining log wall to a point adjacent to the conveyer under the hopper striking his left side in the process.

No instruction was provided by the defendants to the male plaintiff about the way he should ascend or descend the ladder. Even before the ladder was bent it is reasonably apparent that a worker attempting to descend the ladder from the top of the hopper would be required to bend to establish a handgrip on either the screen or perhaps the sides of the ladder if in a straight state it extended to some degree above the top of the hopper as counsel for the defendant submitted I note there was no evidence that in a straight state it did so extend.

I think that as a matter of common sense, attempting to put a foot on the ladder whilst having to bend over to establish a hand grip was likely to increase the risk of the foot either missing or slipping on a rung of the ladder. This is particularly so in a wet work environment. Whilst I can think of a number of ways to increase the safety of a worker who was required to go to the top of the bin, I think provision of a continuous hand hold for both hands extending to approximately waist height of a person standing erect on the top of the bin at the point when the ladder met the top of the bin, such that a person wishing to descend could stand erect and hold on with both hands whilst establishing his or her foot on the first rung of the ladder and maintain a continuous hand grip as descending until able to establish hand grip on the sides of the ladder is a bare minimum. It would be simple and inexpensive to provide and would not unduly impede the loading of sandgravel onto the screen.

I make it clear I am not suggesting this bare minimum is all that may be necessary to discharge an employers duty of care. I have referred to it to express my view that in the particular aspect I am concerned with, the workplace lacked the most basic attention to the safety of the male plaintiff. Another more satisfactory method would be a ladder leading to a simple platform or landing with railings connected so that a continuous hand hold throughout ascent or descent could be maintained. Perhaps even more satisfactory would be the addition of walkways to the top of the bin as an area manager of the defendant apparently suggested in an accident report of the defendant (Exhibit 9) provided railings and proper hand holds were provided during ascent and descent.

I find that:

it was foreseeable that an incident such as occurred could occur; there were simple and inexpensive ways in which to reduce the risk of a person falling which would not have unduly impeded the work task; the male plaintiff was an experienced operator in sand and gravel pits; had there been available the sort of hand holds i have discussed above it would have been easy to and he would probably have established a hand hold before attempting the first step down the ladder;

in that circumstance his foot would probably not have missed or slipped on the first step or even if it did a fall would probably have been prevented by his hand grip; the male plaintiffs employer, the defendant, failed in its duty of care to the plaintiff.

There was a plea of contributory negligence which amounted to a failure to take sufficient care and have due regard for his own safety.

When the question considered in all the circumstances of the work place, the lack of any instruction as set out above and the repetitive nature of the plaintiff's work in having to regularly ascend and descend the ladder, the plaintiff's missing his footing and hand hold, at its best for the defendant, showed no more than a possible lack of care bred of familiarity. When all the circumstances are considered I am not satisfied contributory negligence is proven.

The male plaintiff is right handed. It was not in dispute that he suffered a tear to the rotator cuff of his right shoulder in the fall. He continued on at work but was in pain with his right shoulder. He eventually attended on a general medical practitioner who sent him for physiotherapy. Physiotherapy brought no improvement and he was referred to Doctor Welsh an orthopaedic surgeon on the 8th of February 1993. He had surgery on the 15th of February 1993 to repair the tear. Following that there was more physiotherapy and it appears that another tear occurred. Doctor Welsh made an arthroscopic examination on the 22nd of July 1993 and the plaintiff underwent a further surgical repair in August 1993. He returned to work on a rehabilitation scheme in November 1993 and on the 4th of January 1994 returned to work with the defendant doing supervisory work checking plant and writing out dockets on the weigh bridge. Approximately a week later after checking a pump he slipped on sloping ground and fell. He was conscious of protecting his right shoulder and he put out his left arm to break his fall. He experienced immediate pain in his left shoulder. He continued on with his duties with a painful left shoulder. He had some physiotherapy. He eventually saw Doctor Welsh again. He had a tear in the rotator cuff in his left shoulder. On the 14th of March 1994 he had a surgical repair to his left shoulder. His shoulder subsequently became infected and on the 12th of April 1994 he underwent further surgery to drain and clean it. It continued to be painful and in November 1994 he had a left shoulder replacement.

An issue was whether the fall in February 1993 had in anyway contributed to the pathology in his left shoulder from the fall in January 1994. In that regard the plaintiff in his evidence agreed that apart from generalised bruising and soreness in his left upper arm and on the left side of his body after the fall in February 1993 he suffered no symptoms in his left shoulder except that it felt tired and in July 1993 when starting a motor mower with his left arm he experienced pain in his left shoulder. However after a time the pain disappeared and it seemed alright until he fell in January 1994.

Whilst the possibility no doubt exists that the plaintiff's fall in February 1993 damaged his left shoulder and contributed to the significant injury it in January 1994 there is no sufficient evidence to support such a finding. There is little if anything in the male plaintiff's evidence upon which to base such a view other than that he struck his left side during his fall to near the conveyer belt and later bruising was evident. There is no medical evidence upon which to base such a finding, to the contrary.

Given the male plaintiffs work history and answers to interrogatories these is no reason to consider that the male plaintiff would not have continued in employment with the defendant until retiring age 65. Answers to interrogatories suggest that at the time the male plaintiff was injured he was earning on average $528 nett per week. They also suggest that a similar employee employed by the defendant since that time has earned between $495 and $517 nett per week. An average of nett weekly earnings of the plaintiff obtained from nett weekly earnings disclosed by the plaintiffs pay slips commencing in August 1992 is $580. Amongst the slips are a few disclosing a weekly nett higher than the average. The preponderance are below but in excess of $528. It is I think appropriate to adopt an amount of $560 nett per week for the purposes of assessing damages.

The plaintiff returned to work on the 4th of January 1994. A loss of $560 per week until then produced a loss of about $26 800. I will round this sum off to $26 000. The period is not lengthy and there is no reason on the evidence to discount it any further.

Taking into account receipt of Workers compensation nett of tax I allow interest on $11 250 at 12% for 1335 days rounded off in an amount of $4937.

In the event the fall in February 1993 was not found to have contributed to the incapacity now present in the male plaintiffs left upper limb no claim was pressed for damages for further loss due to impairment of earning capacity due to injury to his right upper limb.

I am satisfied the fall in February 1993 resulted in the male plaintiff needing assistance. Damages were sought to compensate the plaintiff for this. Both he and his wife gave evidence of the level and type of assistance which he required following his fall in February 1993. Essentially it amounted to a couple of hours per day immediately following the various surgical procedures reducing after about four weeks to one hour per day for about a similar period and reducing then to about a quarter of an hour per day. Counsel were agreed an appropriate rate at which to value satisfying the need pre trial was $9.50 an hour.

The plaintiff's wife satisfied this need. During 1993 there were two occasions the male plaintiff had surgery to his right shoulder. The first period then is from the 15th of February 1993 until the 16th of August 1993 and the second from the 17th of August 1993 until the 17th of January 1994. For these two periods I assess an amount of $2135 to satisfy the need created.

After the injury to the male plaintiffs left shoulder it contributed to the need for assistance. However the injury to his right shoulder has left the male plaintiff with permanent loss of up to 30% of function in his right upper limb. It would have continued to create a need for assistance. A moments consideration of the functional restriction in a dominant limb makes that apparent. Of course his left shoulder problems have combined with his right shoulder restriction and his need thereafter has arisen from the combination of both. However, aside from the increased time involved in satisfying the need after the episodes of surgery his left shoulder I think the injury to the left shoulder probably contributed little if any need for extra time to be devoted to satisfying his need for assistance.

To trial I assess an amount of $2200 which based on a quarter of an hour per day reduced by a little over 20% for contingencies and for injury to his left shoulder.

I allow interest on the total to trial of $4335 at 2% rounded off in an amount of $350.

For the future the agreed rate was $10.00 per hour. I am satisfied the need will continue indefinitely. I assess an amount using a period of 12 years for a quarter of an hour per day at $10.00 per hour reduced by 50% to take account of contingencies including increasing age and for the injury to his left shoulder. I assess $4500.

Other items of damages and interest include

Income tax in an amount of $3017.20 was paid in respect of workers compensation payments. I was referred to the decision of the Court of Appeal Queensland in Arndette Pty Ltd in liquidation) -V- Thurlow Appeal 274 of 1995 judgment delivered 20th of August 1996. In that case on appeal it was agreed by the parties that not only was it probable that the plaintiff would receive a refund of the amount of the tax paid on workers compensation from the commissioner of taxation but that refund of that amount had already been received by the respondent from the commissioner.

I am conscious of the taxation ruling referred to in Arndettes case described as “an administrative approach which would ameliorate the strict application of the tax law and avoid unfair or illogical treatment of a taxpayer”.

In the absence of evidence to support a finding that there will be an amendment of the male plaintiffs tax assessment for taxation so that he will receive an amount equivalent to the amount paid in tax, I assess an amount to compensate the plaintiff for the tax paid on workers compensation payments for which he must account to the Workers Compensation Board in an amount of $3017.20.

GENERAL DAMAGES

The plaintiff is 62 now. Prior to the fall in February 1993 he was in good health. His particular hobby was beach fishing which he has been unable to do since February 1993. He cannot cast. He would probably have been restricted in this activity even without injury to his left shoulder. Instead he and his wife now fish from a small boat. Right arm movement is quite restricted and he must be careful what he attempts to do. It is not difficult to consider numerous and various common everyday activities which will be restricted or painful if he attempts them. It is necessary to keep in mind that damages are to be assessed only in respect of his right upper limb. I assess damages in an amount of $30 000.

After allowing for the disability settlement by the Workers Compensation Board I assess interest at 2% on $5000 of that amount rounded off in a sum of $413.

THE CLAIM FOR LOSS OF CONSORTIUM\SERVITIUM

Damages are for loss of domestic services and society and companionship in the home and elsewhere. There is a useful analysis of the law in relation to this type of claim by Demack J in Johnson -V- Nationwide Field Catering Pty Limited (1992) 2 QR 494.

The evidence was that prior to the plaintiffs fall in February 1993 there was a roughly equal sharing of what might be described as domestic tasks. Both worked. The male plaintiff is now restricted in what he can do. I have awarded damages to compensate for the creation of the need for assistance which was satisfied by this plaintiff. However that award is in respect of a need for personal assistance by the male plaintiff. Relevant considerations on the evidence are that they had an active and satisfying sexual relationship which was brought to an end for a time and which, though having resumed, the female plaintiff finds reduced in both frequency and quality to a degree. The difficulty is in attributing an extent to which the ongoing effects are due to the injury to his right shoulder. Another relevant consideration is the reduction to the male plaintiffs share in domestic tasks.

I assess damages in an amount of $5000.

The male plaintiffs damages total $81357.44. Interest totals $5997.

$44652.53 is due to the statutory insurer.

I give judgment for the male plaintiff against the defendant and the defendant by election for $42701.91.

I give judgment for the female plaintiff against the defendant for $5000.

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Dodds DCJ