Byers v Bonnerking Pty Ltd[1997] QDC 97

BETWEEN:

AND:

REASONS FOR JUDGMENT - WOLFE D.C.J.

Delivered the 2nd day of April 1997

In this action the plaintiff who is 51 years old, sues for damages for personal injuries allegedly sustained in an incident on 10 February 1993 while employed by the defendant at its Carindale fruit shop. Both liability and quantum are in issue.

The plaintiff claims he injured his back when he twisted and fell while carrying two boxes of lettuce out of a cold room into the work area of the fruit shop, and that the loss and damage he suffered was caused by the defendant's negligence, breach of statutory duty and/or breach of contract. At the time of the incident the plaintiff was aged 46 years.

The injury to his back was said to have occurred because the boxes he was carrying caught on wet plastic curtains and he slipped on water which had collected on the vinyl tiled surface of the floor outside the cold room. As the evidence emerged the plaintiff's case depended upon whether there was a system to ensure that condensation did not form on the cold room curtains and if it did, then to ensure water did not collect on the floor and whether the defendant foiled to instruct him on or provide him with foot wear appropriate to working in wet and slippery conditions.

the facts

The plaintiff was born on 16 April 1945. Except for two years between 1966 and 1968 when he served with the military in Vietnam, he was employed for most of his working life in the fruit and vegetable industry. For most of this time he worked at the Rocklea Markets. While employed there he suffered occasional pain in his lower back, and on at least one occasion received some physiotherapy for his back. Apart from this, and an incident with a fork lift when he suffered abrasions, he appeared to have enjoyed good health. He resigned from his position at the markets in March 1992 in order to spend the next few months doing heavy manual work around his house. He said he was able to perform this without any difficulty, although his back ached as it would after gardening.

In October 1992 Theo Theodoro, the principal of the defendant, offered him a job at the defendant's Carindale Shopping Centre fruit shop. The plaintiff did not serve customers, but was employed to carry, move, store and set up the produce in the defendant's shop. The plaintiff said he was suffering no long term back problems or back pain and in February 1993 was able to undertake a full range of work and social activities.

He worked the early shift, which began at 2 am on some days and 4 am on others, and he finished work mid-morning. He was required to unload produce from the cold rooms, re-do displays in the fruit shop, prepare reserve stock for the later crew, remove old stock from the cold room, load new stock into the cold room, replace the older stock above the new stock in the cold room, unload some of the stock from the truck and clean up the work area. The defendant employed a number of staff who worked various shifts. Mr Theodoro usually arrived at the shop at about 5 am before going to the markets, from whence he returned with fresh produce at about 9 am. Lenny Catalano the foreman who ran the shop when Mr Theodoro was not there worked the same hours as the plaintiff and a few others. Many of the staff arrived later in the plaintiff's shift, including Nicholas Theodoratos, who arrived about 6 am. Some of the women staff arrived about 8 am.

The shop is located in the part of the shopping centre which was constructed in about April 1992 and was in fairly good condition. It seems it is a fairly large shop, consisting of a sales or display area and a work area behind the display area. A ramp leads from the work area to the rear of the building where trucks park to make deliveries. The work area contains sinks, benches, cutting boards, wrapping machines and scales as well as two cold rooms, the “main” cold room and a “warm” cold room for produce such as bananas. The main cold room is approximately 4×6 metres and is near the ramp. It is sealed by a 1.8 metre sliding door behind which heavy plastic curtains hang from floor to ceiling apparently to keep the temperature fairly constant when the sliding door is open. These curtains are made of strips between 6 and 8 inches wide. They are translucent, although discoloured. The floor of the main cold room is of painted concrete. There is a brass strip dividing the cold room floor from the work room floor which is covered by square vinyl tiles.

In February 1993 the temperature of the main cold room was kept at about 2 degrees centigrade, and the ambient temperature of the shop, including the work area, was about 25 to 30 degrees. It seems that the cold room tended to stay dry when its sliding door was closed and the two fans in it turned on. However there were periods, usually when stock was being loaded or stacked, when the sliding door of the cold room was left open and the fans inside the cold room turned off. When this occurred water condensed on the plastic curtains and dripped on to the floor, puddling on the tiles outside the cold room door. The plaintiff said he always closed the door of the cold room if there was nobody inside it, but the others did not. He had been used to doing so during his many years at Rocklea Markets where he had also learned never to turn the fans off. He said he would turn the fans back on but the next employee to enter the cold room would switch them off and he was always in trouble with the younger staff for turning the fans back on again and they would turn them off again. He said it was his idea to keep the door closed at all times, but the other employees did not follow that practice.

The plaintiff mentioned this to Mr Theodoro, but nothing was done and as for as he knew no instructions were given to close the door after using the cold room or to keep the fans turned on. The plaintiff also told Mr Catalano on a few occasions about the cold room door being left open and he probably told Mr Theodoro that he should make the staff close the door. He said nobody seemed to take much notice, and after he had made complaints about the door, the practice of not closing the door did not alter. Neither Mr Theodoro nor Mr Catalano had ever given him instructions about keeping the cold room sliding door closed. He said he had also mentioned to both Mr Catalano and Mr Theodoro that they should leave the fans on because it was good practice, but there was no real response, and the other staff continued to turn the fans off. The plaintiff's evidence suggested that the water was cleaned from the floor at the end of the early shift, and that none of the staff was instructed to keep the floor dry or clear the water away as it formed on the floor.

Prior to the incident the plaintiff had been required to bend forward when carrying out many of his duties, for example, when removing bulk produce from the bins for packing into bags. When picking up produce inside the cold room he had been required to bend forward and turn to stack the produce on trolleys. The plaintiff said he had not been instructed in any methods of lifting and had never been told to use a trolley. There was a pallet jack and various trolleys and at the shop to assist in moving the produce, including at least one two-wheeler trolley, four wheel shopping trolleys and trolleys which the plaintiff had made for the defendant consisting of four caster wheels and a plastic tub to hold produce or rubbish. The plaintiff said the trolleys were usually used to take heavier produce out to the shop but neither Mr Theodoro nor Mr Catalano had ever given him instructions on the method by which he should lift and carry boxes of lettuce, nor was he ever told he should use a trolley to lift the boxes.

On the morning of 10 February 1993 the plaintiff set up the vegetable display. By about 6 a.m. or 7 a.m. he was ready to trim lettuces and load them into a shopping trolley for use by staff later in the day. Two boxes of lettuce weigh approximately 15 to 18 kilograms, and each was about 30 centimetres square on the end and about 70 centimetres long. They were made of waxed fibre board. The plaintiff said he could lift and handle them easily. By that time staff had made hundreds of trips to the cold room. The plaintiff said water from the curtains had collected on the vinyl tiled surface outside the cold room. It had been there for a considerable time, as it was every day. The plaintiff said he picked two boxes up from a pallet inside the cold room door. The boxes were about 5 feet from the ground. He carried them on his right shoulder, supporting with the lower box with the palm of his right hand and with the fingers of that hand holding the box towards the side of his head with the length of the box being carried from front to rear. He said as he began walking out of the cold room, he parted the curtains with his left hand but the wet strips dragged on the boxes pulling them to the right so that when he was about three-quarters of the way through he twisted around to the right to move the weight of the strips off the boxes to allow the boxes to follow him through the hole he was making with his body. He said his left foot slipped on the puddle of water on the tiled floor just outside the main cold room and he slipped and fell backwards on a full twist to the right.

When the plaintiff fell another employee, Nicholas Theodoratos, was sitting at the work bench with his back to the cold room door. Mr Theodoratos, who is now a carpenter, gave evidence, and recalled the incident. He said he turned around after he heard something fall over and someone say something and saw the plaintiff was on the ground at the cold room door. His evidence of the door being left open and the fans turned off while the loading and storage work was done corroborated that of the plaintiff, as did his account of the problems with wet curtain strips grabbing waxed cartons and water pooling on the tiled floor from the condensation on the curtains. He said the “girls” mopped the floor at 8 am and throughout the day. Mr Theodoratos' evidence suggested that women employed by the plaintiff mopped the floor frequently, but that this did not occur until after about 8 a.m. when they began their shift, and that no instructions were given to the men working in the earlier shift to mop the floor and keep it dry, nor to keep the cold room door closed and the fans on to prevent condensation and water puddling on the floor. Mr Theodoratos were sneakers at work. The plaintiff said he was wearing elastic sided work boots with synthetic rubber soles when he fell. These were the same type of boots he had worn in the 30 years he worked at the markets. He said neither Mr Theodoro nor Mr Catalano had ever given him any instructions as to what he should wear on his feet.

The plaintiff said he landed on his tail bone and right back buttock. Although he felt pain in the lower part of his back he thought he had twisted his back a little, at that stage he was fairly warm from working all morning, and he finished his shift. Although Mr Theodoro usually returned between 8.30 and 10 am the plaintiff did not mention the incident to him that day. He went home and rested. He did not seek any medical treatment.

The next morning when the plaintiff woke, he said he felt very stiff and a bit sore. He thought he had done more damage than he originally thought. He went to work. He said he reported the incident to Mr Theodoro and performed his usual shift although he had pain in his back but after a couple of days he had pain down his left leg and pins and needles all the way to the toes on the left foot. He continued to work with difficulty. He finally sought medical attention in April 1993. He continued to work while receiving physiotherapy between April and June 1993. In August 1993 he underwent an L4/5 discectomy.

the floor

The plaintiff said that on the day of the incident the tiles outside the main cold room adjacent to the brass strip were in the same condition as that of the tiles outside the “warm” cold room on 13 January 1997. That day Dr Ian Coyle, a consultant ergonomist and psychologist who prepared a report for these proceedings, inspected the floor with the plaintiff Photographs of the floor outside the main cold room and of the floor outside the “warm” cold room were tendered. Some were taken in January 1997 and others no later than May 1995. These photographs show that by January 1997 the tiles near the brass trip outside the main cold room were broken and dirty and in some parts completely worn away with the concrete floor showing through, that these tiles were worn, but to a lesser degree in May 1995, and that the tiles outside the “warm” cold room were in for better condition than those others at those times. The plaintiff said that the tiles outside the main cold room were in reasonably good condition in 1993, appeared to have been cleaned regularly and that their condition, when he slipped, was similar to that of the tiles outside the “warm” cold room in January 1997. Dr Coyle conducted slipperiness tests on the latter to measure the static and dynamic co-efficients of friction of various types of soles on the wetted surface of the floor. The defendant did not call any evidence to prove the floor was not in the condition described by the plaintiff, nor was there evidence of the usual rate of deterioration of vinyl flooring when subjected to heavy and frequent traffic. Dr Coyle found that when the tiles outside the “warm” cold room were wetted with a thin film of water the co-efficients of static friction and dynamic friction of a 4S rubber soled shoe was 0.46 and 0.30 respectively. He said the latter was unsafe and that aqua-planing could be expected to result if the floor was covered with a puddle of water. His tests indicated that boat shoes or shoes with similar soles of softer rubber with ridged and indented surfaces, produced a co-efficient of static friction on the wetted floor of 0.81 and a co-efficient of dynamic friction of 0.78.

The defendant called Dr Johnn Olsen, a consultant occupational physician and engineer who also conducted slip testing on the work room floor, on 16 January 1997. However Dr Olsen conducted his tests on an area of old tiles about 2.5 metres from the main cold room door as the plaintiff was not then asked to indicate the condition of the floor when he fell. In Dr Olsen's view a co-efficient of dynamic friction of 0.35 is considered borderline unsafe and 0.40 is the design limit for slipping. He said an aqua-planning effect would be more likely on a smoother surface than on the dirty, worn tiles he tested and a safety boot with a ridged sole would produce more grip.

credibility

The plaintiff said this was not the first occasion when he had injured himself at work, having had slight muscle strains at the markets over numbers of years when he had seen a physiotherapist, but within a week he would be back doing full time work. It was submitted on the defendant's behalf that the plaintiff's evidence should be treated with some circumspection. The ultimate finding depends on the assessment of the evidence, including the medical evidence. As the defence was conducted, the fact that the plaintiff had fallen was at first in issue, as was the date when the plaintiff reported the incident to Mr Theodoro, even though the Board had earlier obtained the statement of the plaintiff's co-worker, Mr Theodoratos, and whose surname neither the plaintiff nor his legal advisers had been able to ascertain until after the trial commenced.

When these issues were resolved largely by Mr Theodoratos' evidence, alleged discrepancies in the plaintiff's account and his work history after the incident were emphasised. The discrepancies were mainly what was said to have been told by the plaintiff to his orthopaedic surgeon, Dr Geoffrey Askin (who was not called but whose reports were tendered under s. 92 of the Evidence Act) and to a treating physiotherapist, Miss Heather Martinson. An example of an issue raised by the defendant in relation to the plaintiff's credibility which I have not found to be of much weight is the statement in Dr Askin's report to the effect that the plaintiff was carrying a box weighing 30 kg, not two boxes of 15 kg or 15 to 18 kg. Further Miss Martinson, who did give evidence, certainly did not claim that the history described in her report was an accurate account of the incident. She did not take a history for the purposes of a medico-legal report. Neither this nor her method of note-taking and occasionally changing or adding to the background history during the course of a patient's treatment, her decision to await a second letter from the plaintiff's solicitors requesting the correction of some “facts” in her report, nor her failure to check the facts written in her shorthand notes in 1993 against those she dictated for her report 14 December 1995, can found adverse criticism of Miss Martinson's professional expertise. However I was not persuaded that her report contained an accurate account of the plaintiff's history or that the plaintiff exaggerated the incident or his injuries to her or to Dr Askin, or in his evidence before me. I do not think I would be justified in forming an adverse view of the plaintiff's credibility.

The impression I formed of the plaintiff, and of his wife, at the trial was that both were hard-working, straight-forward people. In this respect it is significant that there was no credibility attack on Mr Theodoratos who corroborated the plaintiff's evidence in some instances on which he was attacked, or on the plaintiff's wife. Further, the defendant failed to call Mr Theodoro or any other officer or employee of the defendant. At the end of the trial nothing said or done by the plaintiff during its duration provided me with any positive basis on which to make a finding adverse to his credit. On balance I have come to the view that I would accord the plaintiff credibility on his testimony and the histories he has given. I do not ignore his responsibility to discharge the onus of proof. The medical opinions of two orthopaedic surgeons, Dr Askin and Dr Day, sustain a conclusion that the disc injury of which the plaintiff complains was caused by the incident.

Consequently, the evidence established that during the plaintiff's employment up to and including 10 February 1993:—

The evidence further established that on 10 February 1993, between about 6 and 7 am:—

I am satisfied that the plaintiff reported the incident to Mr Theodoro on 11 February 1993.

Liability

Owing to the nature of their relationship, the defendant owed the plaintiff the “more stringent kind” of duty of care (Kondis v State Transport Authority (1984) 154 CLR 672 at 686) and had a “special responsibility or duty to see that care [was] taken” (Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 at 550-551), and in particular it had a duty to provide a safe system of work. In order to determine whether the defendant breached this duty, it is necessary to consider the magnitude of the risk, the degree of probability of the accident occurring, the degree of injury likely to result from the risk and whether that risk could have been eliminated by some other system or safeguards “along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have” (Wyong Shire Council v Shin (1980) 146 CLR 40 at 48; Miletic v Territory Health, Commission (1995) 69 ALJR 675), although in some cases the question as to whether an employer has failed to take reasonable care may be resolved “by the application of common knowledge” (Neill v NSW Fresh Foods and Ice Pty Ltd (1963) 108 CLR 362 at 369). The risk of injury to an employee from slipping on wet tiles was reasonably foreseeable, as was injury resulting from an employee twisting when the boxes caught on the plastic strips. The defendant was bound to have regard to any risk that may have occurred by reason of the plaintiff's “inadvertence, inattention or misjudgment in performing an allotted task” (McLean v Tedman (1984) 155 CLR 306 at 312). Usually if an injury occurs within an area of foreseeable risk, then in the absence of evidence that the breach had no effect or that the injury would have occurred even if the duty had been performed, it will be taken that the breach of the common law duty caused or materially contributed to the injury (Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 427 per Mason J). However the onus is on the plaintiff to prove that at the time of the injury there was available a reasonably practicable system of work which would have eliminated the risk of injury (Kingshott v. Goodyear Tyre & Rubber Co Australia Ltd (1987) 8 NSWLR 707 at 727). The evidence of the experts establishes that the work boots worn by the plaintiff did not provide sufficient grip for a person carrying a load and walking from the cement cold room floor on to a puddle of water lying on vinyl tiles in the condition they then were, and further, that water would not have collected on the tiles if the door was kept closed and the fans operating. The effect of Dr Olsen's and Dr Coyle's evidence was that a plain pair of rubber soled shoes, such as sneakers, would have provided sufficient grip on the wet floor to prevent slipping.

Dr Coyle suggested that the condensation problem could have been reduced, if not entirely obviated, by ensuring that other employees closed the cold room door when not using it for access and that this would have been an easy thing to do. I accept that the risk of slipping on water outside the door would have been significantly reduced had these instructions been given and enforced and if the plaintiff had not carried two boxes high on his shoulder because of the difficulties associated with waxed boxes catching on the wet plastic curtain. However I was not persuade that a system requiring the door to be kept closed or an instruction to keep the cold room door closed and the fans on was a practical alternative, having regard to the frequency of the traffic in and out of the cold room particularly during the plaintiff's shift, while loading, unloading and storage duties were being undertaken, although a system of ensuring the floor was always dry would have been. In the absence of other, cogent, evidence, this is a case where “no more than common knowledge, or perhaps common sense, is necessary to enable one to perceive the existence of a real risk of injury and to permit one to say what reasonable and appropriate precautions might appropriately be taken to avoid it”: see, Neill v NSW Fresh Food and Ice Pty Ltd (1963) 108 CLR 362 at 368; Kingshott v. Goodyear Tyre & Rubber Co Aust Ltd (no 2) (1987) 8 NSWLR 707; Miletic v. Capital Territory Health Commission (1995) 130 ALR 591 at 594. It is unlikely that the accident would have occurred had there been no water on the floor.

Alternatively Dr Coyle suggested that an air curtain replacing the plastic strips would prevent condensation on the plastic curtains and water pooling on the floor. The air curtain would be activated when the sliding door was open and he estimated this would cost about $1,000. Dr Olsen said an air curtain would have been highly unpleasant, but they are used in other workplaces and would have been an effective means of eliminating the risk. Dr Coyle also suggested that the risk from water collecting on the floor could be reduced by installing a grating or a non-slip that outside the cold room door, but I was not persuaded that this would provide a not unduly expensive or practical alternative-- a mat might increase the risk of a tripping accident. Dr Coyle measured the lighting inside the cold room, which was about 30 lux and accordingly did not conform to the Building Code of Australia and AS 1680 of 1976, but I am not satisfied that low illumination was one of the causes of or contributed to the plaintiff's foil. Finally, the accident would possibly not have occurred had the plaintiff wheeled the cartons out using any one of the trolleys then at the shop. It seems that not only the plaintiff, but other employees such as Mr Theodoratos, commonly carried two cartons or boxes in and out of the cold room as the plaintiff did that day. Had a trolley been available, I am not persuaded that he would have used it.

The incident occurred because the plastic curtains were wet and the defendant failed to ensure that the floor was kept dry or that the floor surface provided an adequate grip for the plaintiff. It failed to keep the floor surface dry, it failed to ensure that it was not wet or slippery, and it failed to ensure, by providing appropriate footwear or by instructing him to wear it and ensuring that he did, that the risk of the plaintiff slipping on the wet floor was eliminated. Dr Coyle's and Dr Olsen's evidence demonstrated that had the employer insisted on the staff wearing sneakers or boots with similarly ridged rubber soles, the risk of injury posed by the wet tiles outside the cold room or anywhere in the shop would have been eliminated. This would have been an inexpensive and practicable means of avoiding the risk and would not have unduly impeded the task, see: Vozza v. Tooth & Co Ltd (1964) 112 CLR 316 at 319; Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 at 308. Thus the risk that a worker wearing boots of the type worn by the plaintiff on 10 February 1993 would slip on water lying on the vinyl floor was reasonably foreseeable and the risk could have been easily avoided:

Consequently the defendant was negligent and its negligence caused or materially contributed to the injuries sustained by the plaintiff in the twist and fall.

Further the evidence of Dr Olsen showed that the defendant breached the Code of Practice for manual handling by failing to implement a system whereby the risk of injuries to its employees could be identified, assessed and controlled. The Code of Practice came into effect on 2 February 1991 pursuant to s. 34 of the Work Place Health and Safety Act. Section s. 4.1 of the Code requires employers to ensure that all manual handling in the workplace is subject to risk assessment. By reference to ss. 4.27 and 4.34 employers, in assessing the risk, are required to consider factors in the work environment which influence risk, including climate, floors and other surfaces under foot, the characteristics of equipment and loads including the dimensions, stability, surface texture and temperature. Experts like Dr Olsen could have advised the defendant to introduce and insist on appropriate footwear. I infer that the defendant did not obtain expert advice on workplace safety matters. The defendant also breached regulations 141 and 143 of the Work Place Health and Safety Regulations 1989 by failing to provide a safe and protected means of access to every relevant part of the shop. This breach of statutory duty also caused or contributed to the plaintiff's injuries.

contributory negligence

The defendant alleged that the plaintiff's injuries were caused or contributed to by his failure to take proper care for his own safety, particularly by failing to use a trolley provided for the carriage of cartons from the cold room. However, no instructions were given, there was none available, and even though the plaintiff, if not instructed to use one, probably would not have done so, the defendant foils on this aspect of the case.

Medical evidence

The plaintiff said he kept working after the incident because he thought he had a pulled muscle which would get better, Mr Theodoro was a mate of his and at his age jobs were hard to get. However he was severely restricted in performing some of his duties, especially lifting weights out in front of his body. He was unable to bend into the bins or bend over and lift. He changed the lifting system that he had previously used in lifting potatoes because he could no longer lift the potatoes and tip them into the bin area. He modified the way in which he carried out his tasks so that he could perform them.

In early April 1993, at Mr Theodoro's insistence, the plaintiff sought medical attention at the Princess Alexandra Hospital. Panadeine and physiotherapy were prescribed, providing him with a small amount of comfort, and subsequently a private physiotherapist, Heather Martinson, treated him on five occasions between 17 May and 10 June 1993. On her recommendation a general practitioner referred him to Dr Geoffrey Askin who examined him on 19 July 1993. Dr Askin diagnosed an L4/5 disc herniation with L5 nerve root entrapment. Consequently, Dr Askin performed an L4/5 discectomy in August 1993, finding an extruded fragment of disc lying underneath the L5 nerve root on the left side. After the operation the plaintiff underwent physiotherapy, back pain management and rehabilitation programs, attending the South Brisbane Rehabilitation Centre about six weeks after surgery.

He returned to part time employment at the fruit shop. He had little difficulty with straight back lifting, but the work there is not so limited. The plaintiff was restricted in what he could pick up and the pain increased the further forward he moved in lifting. After two or three hours the plaintiff was unable to engage in any physical activities apart from walking or he would need to lie down for the rest of the day. Finally he left this employment so that the defendant could replace him with a more able bodied person. In early 1994 Dr Askin referred him to the Belmont Rehabilitation program and by April 1994 Dr Askin found that he was functioning well, able to lift with his back straight but would be unable to work as he had previously done as that had involved lifting crates of up to 50 kilograms leaning forwards.

The plaintiff's pre-accident condition is not to be ignored. He has established a prima facie case that he has been incapacitated as a result of the injuries sustained by the defendant's negligence. The defendant then has the onus of proving that the plaintiff would have been permanently disabled within an ascertainable period, that is the onus of adducing evidence that his partial incapacity would, in any event, have resulted from a pre-existing condition.

Dr Askin, the surgeon who performed the discectomy, was not called but his reports were tendered. Two other orthopaedic surgeons, Dr Tony Blue and Dr Gregory Day gave evidence at the trial. They agreed with much of what Dr Askin had said in his reports, and were in substantial agreement with each other in many respects. Dr Blue gave his evidence by telephone, and in this case as the medical experts were not asked to illustrate their evidence by pointing to photographs, diagrams, or radiographs in the court room, his evidence was not any less helpful than that of Dr Day by reason of his not being physically present in the court room.

Dr Askin examined him again on 28 March 1994 and on 27 July 1995, Dr Day on 24 September 1994 and Dr Blue on 26 November 1996. It seems that the plaintiff's symptoms have stabilised, that there was a marked improvement in his condition since the surgery and his complaints to the surgeons were generally consistent. He told Dr Askin in March 1994 of back pain and “fuzzy” feeling in his left leg with sitting increasing these symptoms, he described to Dr Blue constant left buttock pain with pins and needles in his left leg and a consistent finding of numbness in the left leg corresponding to the L/5 dermatome (Dr Blue recognised this as a definite pattern which made him believe the plaintiff was genuine in his presentation) and he complained of low back pain and leg pain to Dr Day. None of the experts suggested the plaintiff exaggerated his symptoms, and Dr Blue accept as consistent with his condition the complaints the plaintiff made of his present condition-- that the plaintiff finds it more comfortable driving in a small truck where the seat is more upright position, that he has problems with bending, twisting and lifting if performed quickly, difficulty bending to iron a shirt, that bending over a dining room table for 15 minutes would give him problems and that he would have problems working in any occupation where he had to maintain a constant flexed or abnormal posture. All agreed that the plaintiff has not lost his capacity to work, that he is now suited to light manual or sedentary type work (Dr Askin); that moderately heavy to heavy manual work is beyond his capacity and part-time sedentary work or light manual work is within his capacity (Dr Day) and that the plaintiff is now fit enough to carry out many physical activities even of a non-skilled nature, provided they do not require of him excessive mobility, repetitive bending or the prolonged maintenance of a fixed abnormal spinal posture, such as sitting all day (Dr Blue). Within those limitations, there were many things the plaintiff could do, such as part-time gardening, taxi driving (Dr Blue has several patients with much greater disabilities than the plaintiff's who are full-time taxi drivers), and perhaps driving for express courier service provided he was not required to stop frequently in order to empty and refill his taxi truck (Dr Blue) or change the truck tyres (Dr Day). Dr Day and Dr Blue accepted the occasional pre-incident back pain of which the plaintiff complained was the norm for those employed in heavy work that in those circumstances such pain is not necessarily indicative of a bad back problem.

All agreed that the plaintiff suffered some degeneration of the spine prior to the incident-- Dr Askin suggesting degeneration of the disc which had suffered the prolapse, Dr Blue referring to “well established” facet osteoarthritis adjacent to the significant left-sided L4/5 disc protrusion However there was some disagreement as to the extent of the degeneration of the plaintiff's spine prior to the incident and as to the likelihood of his now being permanently partly incapacitated if the incident had not occurred.

The plaintiff had performed heavy labouring activities for almost all his adult life and was 48 years old when the incident occurred. Dr Askin's opinion seems to agree with that of Dr Day. When Dr Askin reviewed the plaintiff was on 28 March 1994 he formed the opinion that:

In his report dated 2 August 1995 of the July 1995 consultation, Dr Askin said of the plaintiff's then current symptoms, “[these] are predominantly those of a degenerative lumbar spine rather than necessarily in relation to his previous injury”.

The plaintiff told Dr Day he injured his back in 1988 or 1989 and that after one week's physiotherapy he had been asymptomatic. In his report of 24 September 1996, Dr Day said:

Dr Blue thought that the segmented lumbar cat scan taken on 21 July 1993, after the incident, confirmed a significant left sided L4/5 disc protrusion with adjacent well established, facet osteoarthritis, and that the plaintiff's back was an accident waiting to happen. In his report of 3 December 1996 Dr Blue stated:

Dr Blue said that he presumed that plaintiff's disc was severely predisposed to prolapse with very minimal trauma and that a similar minor injury would have produced exactly the same result in a matter of a month or two and that it was highly likely that a person with the degree of degeneration that Dr Blue assumed that plaintiff had because he suffered the disc prolapse, would have had the same problems within a month or two in any event as some simple incident similar to that of February 1993 could produce a disc prolapse. He did not think it was just as likely for it to go on for a significant period of time without any further deterioration at all, and if the prolapse had not occurred that day, then he may have sneezed in a month's time and the same thing might have happened. Dr Blue estimated, firstly, that the plaintiff now has a permanent disability equating to the loss of 10 per cent of total body mechanical function or a permanent disability equating to a 20 per cent loss of the function of his lower dorsal and complete lumbar spine, and secondly, that the plaintiff would have had to cease that work in any event within, at most, six to nine months of February 1993 and absent the incident he would have been in the condition he now is by the end of 1993. Absent the incident and the surgery, Dr Blue could not conceive of any prospect of the plaintiff's back improving.

However Dr Days' opinion of the extent and effect of the pre-existing degeneration of the plaintiff's spine differed markedly from that of Dr Blue. In Dr Day's opinion, absent the incident and given his pre-February 1993 condition, the plaintiff had a 70 per cent prospect of remaining the same for 10 to 15 years and a 20 per cent prospect of actually improving. He thought the plaintiff's current symptoms were related to the incident in February 1993 rather than being those of a degenerative lumbar spine.

At the trial it became apparent that Dr Blue and Dr Day did not disagree that the prolapse was more likely to occur in a moderately degenerative spine and highly unlikely to occur in a severely degenerative spine or given his work history that the plaintiff was likely to have some degeneration. Dr Day explained that he inferred (from the prolapse having occurred) that there was some pathology present prior to the incident but one could not speculate as to the extent of the disc pathology present when the plaintiff fell, as there had been no radiological examination made of the plaintiff's spine prior to the incident. Dr Day had not, as Dr Blue had not, noted evidence of moderately severe or severe loss of height of the disc such as would be consistent with severe disc damage, so probably the disc pathology was not severe prior to the incident. Although Dr Blue noted the x-rays as showing well established fact osteoarthritis, Dr Day said it is normal for a 50 year old person to have some evidence of wear and tear, that is of arthritis in the facet joints of the lower lumbar spine, and in this case it was a borderline finding. He explained that a disc protrusion or extrusion occurs more probably than not as a result of a slightly degenerate but asymptomatic disc; that a disc protrusion of the type suffered could occur to a slightly degenerate disc as a result of a sneeze, a bend or a twisting fall and that these protrusions do not occur spontaneously but are almost certainly related to a specific incident; that the plaintiff's history was consistent with the protrusion having occurred in the way he related and that the plaintiff's having felt onset of pain almost immediately was consistent with the disc protrusion having occurred in the twisting fall. I preferred Dr Day's reasons for his opinion to those of Dr Blue. Dr Day also said that:

Quantum

Accordingly, as a result of the incident, the plaintiff suffered the loss of 20 per cent of the function of his lower dorsal and lumbar spine and was deprived of approximately 7 years of further full time employment with the defendant.

The plaintiff was born on 16 April 1945. The plaintiff said he still has pins and needles in the leg, his left buttock constantly feels as though it has a cork injury, although walking helps it. He walks about 5 kilometres 2 or 3 times a week, but still has trouble leaning forward taking any weight, has trouble sleeping and since the operation has slept in a separate room from his wife, apparently so they can both sleep. He said from not long after the accident he had become and has remained grumpy and hard to live with. He no longer has an intimate sexual relationship with his wife, this having ceased after the surgery and as a result of the condition of his back. The plaintiff said he is now restricted in what he can do at home, as prior to the incident he had done all mowing and gardening and had shared the household tasks with his wife. He is no longer able to vacuum, mop the floor, start the motor mower or, according to his wife, clean the shower recess as he used to do. I accept that his contribution to the household tasks has been reduced by about 2 hours per week and that his wife, and to a much smaller extent his son, performs the work that he used to do, and that assistance is reasonably required.

He has suffered considerable pain and his quality of life has been badly affected by the condition of his back. This much was not challenged by the defendant, and is borne out by the medical opinions and the evidence of Mrs Byers as well as that of the plaintiff. In assessing damages, both for pain and suffering and for economic loss, it is necessary to give effect to speculative possibilities and I have considered awards in similar cases (Keinath v BHP-Utah Coal Limited, SC No 86 of 1993, Demack J, 29 December 1994; Lister v Coca-Cola Bottlers (Brisbane) Ltd, DC No 59 of 1994, McMurdo DCJ, 16 December 1994; Acheson v HW Findlay Pty Ltd, DC No 49 of 1004, Nase DCJ, 14 October 1994; Crabbe v Sorenson, DC No 1531 of 1993, Robin DCJ, 6 September 1994). Thus $35,000 will be awarded for pain suffering and loss of amenities. Interest is allowed on $10,000 of this component as the plaintiff received a lump sum disability settlement of $5,553.75.

The plaintiff sought unsuccessfully to find employment in the retail fruit and vegetable industry. He has not been in full time employment since surgery. The plaintiff said he applied for management jobs in the fruit industry both out at the Markets and through the newspapers to various shops but has been unsuccessful. In February 1995 he joined the Corps of Commissionaires, an organisation which assists ex-service personnel to find casual or permanent employment. He underwent a course for unarmed security personnel and obtained part time employment during the 1996 Brisbane Exhibition and part time relief work driving between hospitals. This work does not require any lifting or carrying. The Corps of Commissionaires pays the plaintiff and it appears his work is satisfactory and he has always accepted the part time work offered. Although his earnings as a part time worker with the Corps of Commissionaires averaged only about $2,000 per year, he more recently earned almost $5,000 in one six month period. Although the medical experts suggested that he is capable of driving taxis or taxi trucks this was subject to the proviso that he would not be required to engage in repetitive bending or heavy lifting. I accepted the plaintiff's evidence, and his wife's, of his avoiding car travel as that causes pain. He is unable to travel for long seated in a car, and he is only able to travel for any distance in his truck, because of the upright nature of the driver's seat in that vehicle. There was no evidence of the average earnings of an employed taxi driver or taxi truck driver, or other evidence of the labour market in taxi truck driving and in particular of the market in taxi trucks where the driver is not required to lift heavy parcels or objects or where the driver is not required to forwards bend in loading or unloading his truck. The defendant failed to discharge the evidentiary burden cast on it to show there was, or had been, suitable alternative full-time employment or more remunerative or greater part-time employment opportunities available to the plaintiff (Thomas v O'Shea (1988) Aust Torts Reports 80-251, at 68, 071).

Consequently the disabilities suffered by the plaintiff were responsible for his ceasing work for the defendant and for his failing to obtain other work as renumerative as his former employment had been. His past steady employment history and the likelihood that he would have been unlikely to have been able to continue working in heavy physical employment past the age of 55 years are relevant in assessing the prospects of his earning income had the accident not occurred and his prospects of earning income in the light of his having suffered those injuries. The plaintiff ceased his employment with the defendant in June 1993. Had he remained employed with the defendant until the date of the trial, he would have earned $57,362.56. However there was a 10 per cent chance, according to Dr Day, that he may have suffered the prolapse had the incident not occurred. Consequently his past economic loss will be discounted by that factor (Malec v. J.C. Hutton (1990) 169 CLR 638), and the net weekly benefits paid by the Board of $12,557.45 is taken into account in allowing interest on part of the past loss. The plaintiff earned $4,895.44 gross with the Corps of Commissionaires, and most of this amount since July 1996. I then assume he is capable of earning and will earn about $9,0000 per year. As it is unlikely that he could have continued in his former employment past 55 years of age his future economic loss is calculated for the period of three years, and is based on the award net weekly wage of $340.54. It is heavily discounted to take account of the matters relevant to his condition and circumstances, and $18,250 is awarded for future economic loss.

I accept the evidence of the plaintiff and his wife as to the gratuitous care he received and will require which care is reasonably necessary. Finally I decline to award an amount for the cost of lodging an amended tax return to recover the Fox v Wood component, having regard to the evidence of the accountant who was called, although so far as it is relevant for the taxation of costs, the evidence of the export accountant was not only admissible but also useful.

In summary the assessment is as follows:

Subject to arithmetical accuracy there should be judgment for the plaintiff against the defendant in that sum. Costs will follow the event.