Turner v Absoe Pty Ltd[1998] QDC 203

12. Mr Allen, for the plaintiff, then tendered as Exhibit 16 a letter of WorkCover Queensland to the plaintiff of 18th March 1997 advising the degree of impairment attributable to his injury had been assessed at:

12. The letter indicated “WorkCover may make an offer of a lump sum compensation if you accept the degree of permanent impairment is the degree assessed by a registered medical practitioner.” The letter recites that a copy of ss.182A, 182B and 182C of the Act are attached, but without spelling out the serious implications for Mr Turner, should he proceed to a common law action (as he did).

12. Mr Allen also tendered as Exhibit 17 the defendant's offer to settle for $17,500 clear of the refund due to WorkCover Queensland.

12. This material did not establish that the plaintiff had rejected any relevant offer. I indicated I would withhold making any costs order until the parties had the opportunity to present written submissions. Submissions have come in from Mr Allen and Ms Downes, who appeared for the defendant. These indicate that the plaintiff had made an “offer to settle pursuant to Part 9 of the District Court Rules” for $28,500 and costs to be taxed or agreed. This offer was dated 10th July 1998. There had been an earlier offer of 29th April 1998 from the plaintiff pursuant to Part 9 that the defendant accept liability and pay costs of and incidental to that issue, quantum of damages remaining in dispute. Costs aside, the plaintiff has equalled this offer. I have been shown a copy of a letter dated 23 July 1998 headed “Without Prejudice” indicating the plaintiff's possible willingness to accept an offer of $25,000, also asking the defendant to admit, inter alia, the reports of Dr Milroy and Mrs Helen Coles.

12. The more significant aspect of the material provided to me under cover of written submissions is a photocopy of an enclosure referred to in Exhibit 16, which, on its face, confirms that Mr Turner, in writing on 27th March 1997, rejected WorkCover Queensland's offer plainly communicated by the enclosure. The plaintiff has thus rejected lump sum compensation as referred to in s.182C(1), so that subs.(3) applies.

12. Ms Downes submits there can be no order made as to costs. Mr Allen accepts that s.182C applies, but that its effect is limited to the issue of quantum. He argues that the plaintiff's offer to settle liability is an offer within the meaning of Rule 118 of the District Court Rules, citing Davies v Fay (1995) 1 Qd.R. 509. He argued that the court retains its discretion under Rule 118(1) of the District Court Rules, and also a discretion under Rule 363 to award costs to the plaintiff on the “issue” of liability. See Colburt v Beard (1992) 2 Qd.R. 67. The defendant failed not only on the issue of its own negligence but on the issue raised by it of the plaintiff's alleged negligence.

12. With considerable regret, I find myself quite unable to ignore the clear and absolute language of s.182C. Subsection (7) does not apply, nor am I concerned with the costs of an interlocutory application as dealt with in subs.(6). Subsection (4) is the only warrant for an order for costs. It would assist the plaintiff only if he had done better than his own offer, and then, only from the day of his final offer. If I have correctly understood subs.(4), its effect is that a plaintiff ought to make a modest offer which he or she is likely to better at a trial before any substantial costs are incurred. As I understand the system, a plaintiff seeking damages for substantial future economic loss is compelled to litigate, as the lump sum compensation offered, as referred to in subs.(1), will include nothing in this respect.

12. Harsh as this may seem, measured against the former regime, it is a rational approach. In my opinion, it leaves no room whatever for the two rules mentioned to be resorted to to justify costs orders.

12. The Board has not certified that Mr Turner's injury is a “serious injury”, a defined term, so that the Board of WorkCover Queensland is confined in the way in which it may make the decision (which belongs to it alone) to certify or not.

12. I ought to record particular reasons for my attitude of regret, which seem to me to show the outcome is unjust. I hesitate to say that the defendant deliberately embarked on an abuse of process, but, from any other point of view than its own, its attitude of insisting that Dr Milroy and Mrs Coles be called put the plaintiff to increased costs, which cannot be sheeted home to it. Although the witnesses were called, not a single question in cross-examination was asked of either of them. Further, without wishing to be critical of Ms Downes to whom I would pay tribute for her economical conduct of the case, the part the defendant's representatives played at the trial, to no useful effect from the defendant's point of view, in the end, caused the trial to extend to a second day. The legislature may care to consider providing some means by which (accepting the severe nature of the general scheme) a more just or flexible situation in respect of costs could be introduced, to protect litigants, not necessarily plaintiffs alone, from costs occasioned by unreasonable conduct of their opposition. Although it is not relevant to consider subs.(6) in this case, it seems to me obvious that “unreasonable delay” ought not to be the only basis on which a respondent in an interlocutory application ought to be ordered to pay costs. There could well be cases where what is “unreasonable” is an outright refusal to permit some examination or inspection, for example.

12. It is not clear to me that the enactment of s. 182C was accompanied by an intention to deprive a plaintiff of costs who wins a contested issue of liability. I cannot find any room in the statutory language, however, for admitting the exception Mr Allen contended for. Costs being a “creature of statute”, there can be no resort to some notion that the section cannot have been intended to abrogate long established common law rights. It is intriguing that s.182C contains nothing precluding offers being relevant, analagous with RSC Order 26 r.6 or r.115 of the District Court Rules. It may be open to a party to make an offer otherwise than under the rules of court and inform the court of its contents during the trial.

12. (There is nothing in the Minister's Second Reading Speech, Hansard 2.11.95 page 943 to support Mr Allen's contention, much to defeat it:

There will be judgment for the plaintiff against the defendant for $21,714.15, with no order as to costs.

CIVIL JURISDICTION

JUDGE ROBIN QC

and

BRISBANE

DATE 30/07/98

JUDGMENT

HIS HONOUR: The plaintiff is a young man born on 29 May 1972. He was injured on 29 October 1996 while working in the employ of the defendant when he lost the top joint of his right-hand ring finger. He is right hand dominant.

The defendant has a business dealing in commercial and industrial shelving and had acquired at an auction sale a large quantity of raised benches supported by metal frames on which a Government Department had stored large quantities of records, supposedly with a view to keeping them above the level of flooding which was feared in the relevant location. The plaintiff and a number of other workers were engaged in loading the shelving and the frames which were loaded and transported separately.

The frames were knee height or slightly higher, something like two feet six inches in width, and an average of five metres in length, some longer, some shorter. They were heavy, weighing between 121 kilograms and 149 kilograms, according to the evidence. They consisted of a base for the shelves made of angle iron welded together appropriately and supported on cylindrical legs of piping. Each bench had more than four legs and very likely at least eight. With a view to the stability of the load on a truck which the defendant hired for the purpose of transporting the frames to its own premises, a deliberate decision was made by Mr Skyring, the defendant's purchasing officer, to load the frames on the truck tray in pairs which “married” a frame with its legs pointing upwards with another with its legs pointed downwards, the ends of the legs supposedly nestling conveniently inside the opposed angle iron. Mr Skyring devised the system in consultation with others, including the auctioneer's representative and perhaps other employees of the defendant's. I don't suggest the plaintiff was involved. The truck tray was wide enough to take three pairs of frames side by side and the system adopted was to have three pairs on the tray of the truck, a further three pairs on top.

Implementation of the system revealed that the legs did not fit into the proposed angle iron as readily as had been expected, often catching. This difficulty was dealt with by kicking or using some implement to belt the troublesome legs.

Mr Turner was engaged in a kicking exercise along these lines. Unfortunately, when the upper frame of a pair, which he was holding from a position standing inside it, fell, his finger got caught, indeed was amputated at the top joint level. It took him some time to realise what had happened, he apprehending there had been a crushing injury of some kind.

The tip of his finger was found in a leg of the upside down frame.

Asked to explain the accident in his own words he said this:

Mr Allen, for the plaintiff, asked me to infer that the leg that was being kicked was a downward pointing one and not the one which received the finger tip, although Ms Downes says the Court ought not to draw that inference and that the circumstances of the event must remain more obscure. I think it is a necessary inference. Indeed, it is almost impossible to imagine the accident happening in a way which has the finger tip being amputated by contact with the very leg Mr Turner was kicking. Accepting employees are inadvertent very often, an accident occurring in those circumstances would reveal an incredible degree of foolhardiness of which Mr Turner, in my assessment of him, is unlikely to be capable in the work environment.

I don't overlook the evidence he gave about recreational activities of a kind which many would regard as rash and dangerous, involving, to quote Mr Allen, climbing both upwards in a conventional sense and downwards in disused mine shafts. Activities of that kind, which Mr Turner participates in, appear to me to indicate he is capable of exercising the requisite level of care. I mention these activities partly to note that one of the complaints Mr Turner makes of his present situation is the impairment of the grip he is able to get in climbing activities which he engages in a few times a year and his finding that, because pressure on his stump causes pain, he has to rest every now and then to recover which slows him up.

In his daily life, and he has said on a daily basis, he knocks the stump in work and domestic activities which may cause some discomfort. He has spoken of the vibration experienced riding his motorbike being a very minor source of discomfort as well.

His finger has healed well and, apart from the top 18 millimetres of it being missing, does not show any significant cosmetic defect.

Dr Millroy was of the opinion that 5 per cent of the efficient use of his dominant right hand has been lost to the plaintiff. He told me that the loss of function of hand translates to 90 per cent of that percentage loss of the arm.

Dr Millroy confirmed the well-known phenomenon that hand injuries are extremely painful in the early stages of treatment. That's been the plaintiff's experience as well - for about a month or a month and a half. Fortunately for him, the healing, after Dr Gilpin cleaned up the amputation and sewed a flap across it, has been uneventful except that too heavy use on his return to work, after only a couple of weeks, resulted in the wound splitting open and a further week off work.

The plaintiff is an unusual person who has avoided the use of painkillers even at the early stage when undoubtedly there would have been great pain, as there would have been for the next month or so. Another feature of his personality is that he is not at all ambitious, he insisted he doesn't want the responsibility of a decision-making role in his employment or look for promotion. He enjoys the physical nature of labouring work which he has always done after leaving school at the equivalent of Grade 10 level in Queensland. I don't think he completed that grade.

His demeanour at the trial tends to bear out his own assessment to Mrs Coles that he was a troublesome student at school, not prepared to put in much effort at academic work.

I can find it understandable, observing him, that while in the defendant's employ he felt there was a personality clash between him and the manager of the defendant's relevant division, Mr McCasker. He thought Mr McCasker treated him harshly and unfairly in a couple of instances.

I assess the plaintiff as honest and reliable in his evidence.

The plaintiff conceded that after Mr McCasker sacked him some 11 months after his employment began in February 1996, and six months after that employment became permanent in July 1996, and three months after the injury, (sacked him on the basis of his poor performance at some kind of written test unexpectedly administered to him and other employees of the defendants), he was able to obtain sporadic casual employment for cash which was not reported as income.

This information raises some problems for the assessment of his past economic loss. Given the plaintiff's evidence on the point, it is quite impossible for me to accept Mr Allen's suggestion that I regard the plaintiff's injury as the cause of his being without employment for a substantial part of 1997 before he found new employment at a similar rate of pay, although one apparently not attracting as much overtime.

Mr Allen asked me to theorise that further time off work when the plaintiff's wound split open was simply too much for Mr McCasker, who engineered the plaintiff's departure. This would perhaps have the consequence that there was a substantial claim for past economic loss. The evidence doesn't support such a conclusion.

The first question to be decided in the case is whether the defendant is liable. I am reminded by Ms Downes that the mere occurrence of a work accident is not enough to establish liability, by reference to Windeyer J's well known statement in Vozza v. Tooth & Co Pty Ltd (1964) 112 CLR 316 at 318-9:

In Raymondo v. State of South Australia (1979) 23 ALR 513, Mason J said at 518-9 - in unusual circumstances where a painter adjusting a plank stood underneath the plank supported by two trestles, so that when he attempted to move the trestles closer together the plank hit him on the head:

Mr Skyring gave evidence showing that the risk of injury of the kind which happened, categorised by the safety expert, Mr McDougall, as a nip or pinch injury, was very clear to him. I do not think that the risk was nearly as clear to the plaintiff, who had minimal, if any experience with frames of the relevant kind. It was unusual for him to be working away from the defendant's premises.

Mr Skyring considered that a warning was required and said that he gave one to the men in terms of being careful of their fingers. That warning did not impress itself on the plaintiff, whom I accept when he says he can't recall it. He agreed it was possible the warning had been given. The defendant's evidence contains one version that the warning was given before the task was commenced, another that it was given once the task was underway and problems had arisen. It is well known that it is an employer's duty to enforce instructions given for the safety of employees, not merely to issue appropriate instructions (see Bartley v. Coles Myer CA 66 of 1994, 25 October 1994, page 2 of the unreported reasons).

The defendant was engaged in a large scale operation, although a one-off one. There were at least 30 frames to be moved. I don't know that it is necessary to go as far as Mr McDougall, who recommended use of a forklift and a truck crane to minimise risks of employees being hurt. He was concerned with a wider range of possible risks than the one which eventuated here, including back injuries and trip injuries.

Mr McDougall's views and Mr Skyring's are at variance as to the economic practicability of the former's recommendations. It is noteworthy, however, that the defendant had a forklift and used it to unload the frames at its own premises after transporting them there.

In my view the defendant was negligent in failing to both give and enforce, by appropriate insistence on them, instructions to obviate a danger which was very clear to Mr Skyring, the supervisor on the day. At the risk of being repetitive, I record again that he appreciated the danger of nip or pinch injuries as categorised by Mr McDougall and gave some general instruction to the men to be careful of their fingers which may have occurred some time after the task had got underway rather than being an instruction at the outset. That would increase the possibility that Mr Turner did not even receive the warning. Assuming it was given, I find it made no impact on him.

I think it significant in this case to note the assessment of the defendant by Mr McCasker, who knew the plaintiff much better than Mr Skyring, made in the staff review following the examination. Mr McCasker wrote:

Mr McCasker's sincerity seems to be confirmed by his carefully worded reference for the plaintiff, exhibit 5, which says:

I am drawing attention to these matters not to embarrass the plaintiff or, indeed, Mr McCasker, whose frankness may have much to commend it. I am certain Mr Turner is far from a rarity in our population in his particular attitudes to employment. He has a good work history. Not only does he enjoy his employment, he is obviously capable of giving satisfaction.

I think in this case, when one assesses what is appropriate in the way of instructions and enforcement of them, the defendant should be judged against its own assessment that the plaintiff required supervision and/or direction. It would be unrealistic to regard that assessment as post-dating the accident.

Having reached the view that the defendant is liable to the plaintiff, I have to consider whether he ought to be held contributorily negligent. In the end I think it is inevitable that the well-known description “inadvertence or momentary inattention” is the right one to apply to his lapse. There clearly was a lapse from perfection on his part. It doesn't require much of an employee to appreciate the risk which he took, but I don't think he was guilty of contributory negligence: mere inadvertence or inattention which employers are required to guard against doesn't amount to that.

Ms Downes poured a certain amount of scorn on Mr Turner's assertion that he was continuing to hold up the upper frame while he kicked, as I find, one of its legs out of concern to avoid a bang when it fell. I think that's an understandable attitude for a person in this situation to take. The precise conditions in the subject warehouse aren't clear but there is evidence that there were purchasers, other than the defendant, of items sold from the warehouse, who had to remove their purchases. There is a possibility at the least that some of them had personnel doing that at the time. There was certainly a representative of the auctioneer present.

I don't think Mr Turner is to be criticised for the reason he assigned for his unfortunate action in holding on to the upper frame and tragically in a position where his finger came into contact with one of the upturned legs.

The last task I have is assessment of damages. Mr Allen has referred me to a decision of my own, Sear v. Space Frame Buildings Pty Ltd, plaint 67 of 1995, 7 August 1996, and an assessment of damages by Judge Skoien in Lane v. Livestock Meat Authority Queensland, Ipswich, 106 of 1993, 22 February 1995. Those are of some assistance, although each involves a more severely injured plaintiff. The percentage loss of efficient use of the dominant hand in Lane, which involved a 24 year old at the time of injury, was 8 per cent. The Judge made an allowance for future surgery which it is not suggested might be appropriate here. The plaintiff in Sear had a much more serious injury which involved two fingers and “20 per cent loss of function of the left hand composed of 50 per cent loss of function of the index finger and 50 per cent loss of function of the middle finger”. Mr Sear was in his 40s.

The sums assessed by me are as follows:

General damages for pain, suffering, loss of amenities: $15,000; I will allow $270 interest for the period since the injury which is calculated on about half the damages.

I make a small allowance for future economic loss of $5,000 which coincides with Judge Skoien's assessment in Lane.

In respect of past economic loss, it is common ground that $795.29 has to be allowed. That represents a period for which Workers' Compensation payments were received. I think it is appropriate to make a modest addition to that. I accept that the plaintiff made determined efforts to find employment, walking the streets in industrial areas to seek it, and that at that time in 1997 before the introduction to his present workplace he was at a disadvantage in the workforce.

For past economic loss, I think he ought to be awarded $1,300 inclusive of interest.

In respect of Griffiths v. Kerkemeyer services provided by the plaintiff's fiancee and her parents, I award $750 inclusive of interest. Intriguingly in this respect Ms Downes was disposed to be more generous than Mr Allen.

In respect of special damages, WorkCover expenses have been summarised by Mr Allen at $2,699, although that may overlook a few cents.

So far as other special damages are concerned, there are claims for pharmaceutical expenses and travelling expenses. Mr Turner, whose frankness I appreciate, wasn't able to say whether the limited painkillers he used after surgery by Dr Gilpin, which was performed under general anaesthetic, were purchased by him or supplied by the hospital. In the circumstances I shouldn't allow anything for that.

So far as travelling expenses are concerned, what the evidence establishes clearly enough is five visits to the Holy Spirit Hospital to see Dr Gilpin, necessitating five return trips from Deception Bay where Mr Turner lives. There were attendances at the hospital's hand therapy department but Mr Turner wasn't prepared to assert they were on different days - once again, I shouldn't allow anything for that.

Doing the best I can, I allow $200 inclusive of interest for travelling expenses.

If I am right, the total is $25,219. Making allowance for the refund to WorkCover of $3,494.85, it appears there will be judgment for the plaintiff against the defendant for $21,714.15 and costs.

(Note: When judgment was given, after further submissions, on 7 August 1998, there was no order as to costs.)

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