Buckley v A Raptis and Sons (Qld) Pty Ltd
[1999] QDC 48
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Buckley v A Raptis and Sons (Qld) Pty Ltd[1999] QDC 48
Buckley v A Raptis and Sons (Qld) Pty Ltd[1999] QDC 48
DISTRICT COURT | No 2311 of 1996 |
CIVIL JURISDICTION
SENIOR JUDGE SKOIEN
ROBBIE JOHN BUCKLEY | Plaintiff |
and
A RAPTIS AND SONS (QLD) PTY LTD | Defendant |
BRISBANE
DATE 01/04/99
JUDGMENT
HIS HONOUR: For the reasons which I now publish, I give judgment for the plaintiff for $234,674.
I order that the defendant pay the plaintiff's costs of and incidental to the action to be taxed, but I further order that the plaintiff pay any costs of the defendant thrown away by reason of the adjournment of the trial on 15 and 16 February 1999 to be taxed.
IN THE DISTRICT COURT HELD AT BRISBANE QUEENSLAND | NO. 2311 OF 1996 |
Before His Honour Senior Judge Skoien
[BUCKLEY v. A RAPTIS & SONS (QLD) PTY LTD]
BETWEEN:
ROBBIE JOHN BUCKLEY | Plaintiff |
AND:
A. RAPTTS & SONS (QLD) PTY LTD | Defendant |
REASONS FOR JUDGMENT
Reasons for judgment delivered: 1 April 1999
Counsel: | Mr. M. Grant-Taylor for the plaintiff Mr. M.T. O'Sullivan for the defendant |
Solicitors: | Kruger Law for the plaintiff Cleary Hoare for the defendant |
Hearing Dates: | 22.3.99 - 23.3.99 |
IN THE DISTRICT COURT HELD AT BRISBANE QUEENSLAND | No. 2311 of 1336 |
BETWEEN:
ROBBIE JOHN BUCKLEY | Plaintiff |
AND:
A. RAPTIS & SONS (QLD) PTY LTD | Defendant |
REASONS FOR JUDGMENT - SKOIEN S.J.D.C.
Delivered the First day of April, 1999
This is an action for damages for personal injury in which breach of statutory duty, negligence and breach of contract are all alleged. Both liability and quantum are in issue.
Liability
The action arises out of an alleged fell suffered by the plaintiff while engaged in his employment with the defendant at about noon on 8 March 1995. He was then aged 25 and is now aged 29. He was employed as a process worker in the defendant's fish packing factory, his duties including that of taking cartons of fish products from the processing room into the freezer room on a trolley. The freezer room was about 15 m. long by about 9 m. wide, had a concrete floor, and was maintained at a temperature of minus 23°C. Entry to it from the processing room was through a doorway equipped with a sliding door which was shut at night and during lunch breaks. Otherwise it was open and a curtain of heavy plastic strips was relied on to retain the cold air within the freezer room.
The plaintiff said in evidence that the whole area of the freezer room floor on which he had to walk was habitually covered with ice. That was the area along the left hand wall (as he proceeded) against which were lined the pallets which were to be stacked with the cartons offish products. The pallet on which he was to place a 20.5 kg. carton was towards the far end of that wall so he had to push the trolley along most of its length, that is, something approaching 10 metres. He said that for all of that distance the floor was icy and slippery, the more so at the time in question because a Vietnamese co-employee, named Van Nguyen, had hosed the floor of the freezer room very shortly before.
He said that when he reached his destination he picked up the 20.5 kg. carton and went to turn to place it on the pallet when his feet slipped straight out from beneath him causing him to fall heavily onto his right buttock. He immediately felt some pain in the lower back but unloaded his trolley and went back to the production line where he reported his fall to the supervisor Inez McPherson. It is significant that she, in evidence, said that he reported “slipping”, not “tripping” or some other mechanism causing a fall. He worked for the two hours remaining that day and for the following days, experiencing pain but expecting it to improve. It did not and in fact worsened so on 16 March he consulted a general practitioner, Dr. Kelly who prescribed pain killers. The doctor also offered to give him time off work on workers' compensation but he declined the offer being in need of his wages. He continued to work until, on the morning of 24 March 1994, he decided he could not continue. He has never returned to his job with the defendant since then. The medical evidence makes it clear that at least since then he has been suffering from a lumbar spine disability.
Evidence from the defendant on the question of liability was given principally by Miss McPherson and Mr. Richardson, the production manager. Each denied that there was habitually ice in the area in which the plaintiff described it (that is, extending from the door along the length of the left hand wall) and particularly in the area where he said he fell. In fact each denied ever seeing ice at that spot. Each said that there was often a build-up of ice at the doorway, forming a lip which could be as high as an inch or an inch and a half and which might extend into the freezer room to a distance of up to a metre. Other isolated areas of occasional build-up of ice which they described, for example along the right hand wall under the cooling units, could not be relevant to this action. So there was a clear divergence in the evidence on the amount and distribution of ice within the freezer room both generally and particularly at the relevant time.
Miss McPherson and Mr. Richardson each said that a supply of coarse salt was available on shelves in the processing room a few metres from the door to the freezer room which was used to get rid of the ice. Miss McPherson's understanding of the process (which accords with my dim recollection of schoolboy physics) is that the salt lowers the freezing point of water so that it melts the ice. Mr. Richardson said that two men, Mr. Van Nguyen and Mr. Biggs had that specific task but that all employees had access to the salt. Miss McPherson said that she had told the plaintiff to throw salt on any ice he might see “when you walk into the room of a morning”. The plaintiff, by contrast said that he was never told that he should apply salt to the ice.
Mr. O'Sullivan of counsel, for the defendant attacked the plaintiff's credibility. First, he submitted, the plaintiff's evidence of the habitual extent of ice on the freezer room floor could not be accepted in the light of the evidence of Miss McPherson and Mr. Richardson. Second, he submitted, the evidence of those witnesses that ice did not form at the point where the plaintiff said he fell ought to be preferred. Third was the fact that Dr. Kelly on 16 March made no note of the plaintiff saying that the injury was work-related and I was urged to find that the plaintiff made no such statement to him. Fourth was the evidence of the defendant's employee Mrs Quilty that one morning (probably 24 March) she received a phone call from a woman (probably the plaintiff's then girlfriend Vicki Windsor) who said that he would not be coming to work because he had had a motorbike accident. The fifth point was the feet that the plaintiff continued to work for the defendant without apparent difficulty until 24 March.
I think, in relation to the first point, that the plaintiff may have exaggerated somewhat the extent to which ice habitually formed on the floor. It is by no means uncommon to hear truthful injured plaintiff's exaggerating the risky nature of the work they were performing when they suffered injury. That can be a natural tendency. But it seems to me that the exaggeration could well have been less than it might at first have seemed. Mr. Richardson finally conceded under cross-examination that Mr. Van Nguyen's duties included that of using a hose within the freezer room as he considered it necessary rather than only first thing in the morning or on weekends as he had originally maintained. So there could well have been times when water penetrated well into the freezer room and on the evidence the floor was so cold that water would turn to ice very quickly. Then two photographs, exhibits 13 and 14, depict the freezer room floor and Miss McPherson agreed they depict it as it frequently was. They show a very substantial covering of a white substance which she described as a sort of powdery snow, like the frost which occurs in a refrigerator freezer. She denied that it was ever slippery. That must, as a matter of common sense and experience, depend on the thickness of the frost and I would not be surprised if a concrete floor covered in frost were at least sometimes slippery. But the real point is that it bears favourably on the plaintiff's credibility. It would be hard indeed to label as untruthful a plaintiff who described a floor which was frequently covered with frost to the extent shown in exhibits 13 and 14 as “icy and slippery”.
As to the second point, while initially the defendant's witnesses said that no hosing of the floor of the freezer room took place other than at weekends or first thing in the morning, as I have said, Mr. Richardson later conceded that the hose was sometimes used during the day. Miss McPherson denied the possibility although she once, in cross-examination, conceded that it could happen “rarely”. Mr. Van Nguyen was not called, his whereabouts not being known to the defendant. The plaintiff said that the hosing occurred ten minutes or so before his fell and given the state of the evidence from the defence on the point I would be unreasonable in rejecting him on the point. So I find that Mr. Van Nguyen hosed water onto the freezer room floor shortly before the plaintiff entered the freezer room. What his purpose was is impossible to say with accuracy so I cannot reasonably restrict his hosing activity to one particular area. I accept that some water must have been directed, or flowed, to the area in which the plaintiff said he fell. It seems that there was no system of using a squeegee or other drying device after the hose was used. Nor, on the state of the evidence I am prepared to find that the defendant's system forbade other employees from entering the freezer room when the hosing was occurring or had just taken place. Given the relative infrequency of its occurrence during working hours, indeed given the reluctance of Mr. Richardson and Miss McPherson to admit it ever occurred, it would be surprising if such a system were in place.
As to the third point, Dr. Kelly made no note at all of any event which brought on the lower back pain of which the plaintiff was complaining. That no mention was made of the alleged fell at work can be inferred from the feet that Dr. Kelly did not fill out a worker's compensation form. There is also the plaintiff's evidence that at the time he was not conscious of the significance of the fall. Yet is seems to me to be probable that the plaintiff did mention the fall. I base that on his evidence that Dr. Kelly wanted to put him off work on compensation but that he declined the offer. Dr. Kelly would not have suggested compensation unless an episode at work had been mentioned which seemed to be the cause of the pain. I accept the plaintiff's evidence of Dr. Kelly's offer of compensation. I do not think he was capable of making up such a subtle piece of supporting evidence.
The fourth point raised by Mr. O'Sullivan is puzzling. I accept that the caller (Vicky Windsor) phoned Mrs. Quilty and that she referred to a motorbike accident as the reason for his non-attendance at work that day. But it seems inconceivable that such was actually the reason or that the plaintiff told her to convey that reason. It does not fit with the probable chronology as I find it. The plaintiff gave evidence that at noon on 8 March he slipped and fell. Within a matter of minutes he told Miss McPherson that he had slipped over. That was confirmed by her in evidence and it is recorded in the defendant's worker's compensation form 3 (exhibit 16 ). As I have found, he probably mentioned some such event to Dr. Kelly on 16 March. It seems clear that from 24 March on, when he saw his general practitioner Dr. Petavrakis (and later other doctors), he has attributed his inability to work to the fall in the freezer room. So he has consistently blamed his pain on the fall. I have not had the benefit of hearing evidence from Vicky Windsor and while one might speculate on possible explanations for her phone message I am not prepared to draw the conclusion that the plaintiff had a motor cycle accident (which he denies) which was the real reason for his ceasing work and, possibly, for his present back disability. Why would he tell her to give a motor cycle accident as his reason for non-attendance at work in the midst of statements to others that his troubles dated from a fall? He would have had to be stupid to tell her to give that reason if he had some plan falsely to claim a compensable injury; indeed he would have been stupid not to impress on her that she must not mention the motor cycle accident. The plaintiff impressed me as somewhat vague but not stupid nor a liar. I am bound to say that that the evidence of Mrs. Robins, an executive officer for the defendant, that the defendant's policy is not to put in the employer's form 3 comments adverse to the plaintiff's claim is very strange. I find it extraordinary that the form should be completed so as completely to support the plaintiff's claim. Had proper enquiries been then made they would surely have uncovered Mrs. Quilty's account of the phone conversation with Vicky Windsor. Open disclosure in the form (and it surely seeks honest, open information) of the doubt thereby raised would have permitted born plaintiff and defendant to investigate the matter properly. As it is, all that was led before me was a basis for a suspicion as to the plaintiff's credit.
As to the fifth point, I accept that the plaintiff thought, and no doubt hoped, that the painful systems would fade. But he certainly went to Dr. Kelly on 16 March complaining of lower back pain so if he concealed his pain from his co-workers I put that down to stoicism.
So I conclude that in the course of his employment he pushed the trolley into the freezer room in which, about 10 minutes earlier, Mr. Van Nguyen had been hosing. The floor of the freezer room was habitually frosted which sometimes was slippery. The area at and inside the door frequently had a lip of ice and other areas of ice would form if water were present there. This ice would remain until it was removed by the application of salt by Mr. Van Nguyen, or by Mr. Biggs and sometimes by Miss McPherson. The plaintiff himself had not been instructed to use the salt nor given any instructions about remaining out of the freezer room during and immediately after occasions when Mr. Van Nguyen hosed the floor. While Mr. Van Nguyen's job was to scatter salt on ice formed after his hosing, on the day in question he did not do so or did it imperfectly. In particular a patch of ice remained where the plaintiff was to unload the 20.5 kg. carton and while he was so engaged his feet slipped from under him on the ice and he fell, injuring himself.
On these findings, there can be no doubt that the defendant breached the duty imposed on it by the then applicable s.9(1) of the Workplace Health and Safety Act 1989 in that it foiled “to ensure the health and safety at work of the plaintiff. The exclusion “except where it is not practicable for the employer to do so” cannot apply. Mr. Van Nguyen, for example, could have been instructed to place a barrier across the door to deny access to all until he had completed his hosing and salting. A system of careful warning and instruction could have been set in place. Neither of these courses was adopted.
On my findings negligence is also established. There was a foreseeable risk of the plaintiff slipping and hurting himself if Mr. Van Nguyen were permitted to hose in the freezer room without excluding the plaintiff until the floor had been made safe by the removal of ice. The duty thereby imposed was breached. There is no question of contributory negligence in these circumstances. The plaintiff was doing what he was employed to do and did not breach any instruction or ignore any warning. Similarly, the defendant breached its duty under the plaintiff's contract of employment to take reasonable care for his safety.
Quantum
The plaintiff left school at age 15. Apart from a brief period as a “clerk” (I think “office boy” while perhaps now out of favour as a job description would be far more accurate for a 15 year old than “clerk”), he worked for various employers as a process worker. While that involved manly unskilled labour, at one job he supervised 30 people and was responsible for the overall operation of 15 machines.
The plaintiff would have continued in his employment with the defendant indefinitely. Had he left that job I consider he would have found another paying least an equal wage. His employment history demonstrates an ability to get jobs and hold them with little unemployment. I expect that he would have worked to about age 60, say another 30 yeas (in round figures) from today.
The orthopaedic evidence is that the plaintiff has an L4/5, and L5/S1 disc prolapse. Whether it is one or two discs is not clear but on the evidence nothing turns on that. What is in dispute is the cause of the prolapse and whether, and to what extent, he had a pre-existing lower back disability.
I accept the plaintiff's evidence that the pan in his back has been present since 8 March 1995 and that within a fortnight he developed right sided sciatica. Dr. Ho, the orthopaedic surgeon called by the plaintiff sad in evidence that such a delayed onset of sciatica (a symptom of disc prolapse) is not unusual and the defendant's orthopaedic specialist Dr. Boys did not deny that. The radiological evidence tends to date the prolapse at about the date of the fall. Dr. Boys doubt of the connexion between the fall and the disc prolapse was partly related to the feet that the plaintiff continued to work without difficulty. I have accepted, however, that he worked with continuing back pain.
Dr. Ho, in April 1997, considered the condition of the prolapsed discs not yet to be stable, requiring continuing physiotherapy. He was not prepared to exclude surgery to remove a disc or discs nor possibly to fuse the affected vertebrae. In evidence he said that a fall such as the one described by the plaintiff is a known cause of disc protrusions. His earlier visits to the doctors (in July 1990, May 1991 and October 1993) complaining of lower back pain, in the absence of sciatica, were unlikely to be related to disc protrusion and there was no sign of bony degeneration on radiological investigation in 1995 which would have been evidence of serious earlier spinal disability. So I conclude that the episodes of earlier back pain were caused by muscular strain. None of these occasions involved any follow up treatment and none seemed to involve any (or any significant) time off work. The plaintiff's lack of recollection of these episodes is, in those circumstances, unsurprising. Dr. Ho thought however some part of the plaintiff's disability was related to that. He thought that the sort of work the plaintiff was doing put him at some risk of suffering disc prolapse. He was guardedly optimistic of the plaintiff's chances of returning to work as a supervisor. He also thought the plaintiff could manage a sedentary job but given his intolerance to sitting for lengthy periods it would have to be a job allowing him to move about at regular intervals.
Dr. Boys saw the plaintiff in August 1995. He also diagnosed a disc protrusion. The plaintiff reported steady improvement to him and the doctor's report notes that he had completed a course of rehabilitation and was undergoing physiotherapy. He did not think surgery would be needed. By November 1997, when he saw the plaintiff again, the condition had improved somewhat and had become stable. Dr. Boys thought that a programme of muscle conditioning would be advisable. He accepted that the plaintiff would be unable to take on a job requiring repetitious bending and lifting but considered sedentary employment in which he could stand or sit at will was open to him. In oral evidence he repeated that opinion, adding a supervisory job as Mother option. He accepted that a heavy fall onto the right buttock could cause the disc protrusion. He thought that the other episodes of lower back pain pointed to the feet that his spine could have been degenerating. He initially was prepared to attribute about ⅓ of the plaintiff's disability to his prior back problems, but in cross-examination conceded that if those problems caused no particular disruptions to his work (as I find) the episodes were relatively minor.
All in all I prefer the evidence of Dr. Ho where he differs from that of Dr. Boys.
Since the accident he has attempted to work on three occasions. Each time he lasted only one day and I am satisfied it was his physical condition that prevented his continuing. He has lived almost entirely on worker's compensation payments and (since 27 June 1996) on social security payments. He has invented, or is in the course of inventing, a fish filleting machine from which he hopes to earn a living. Few details of it were given in evidence and absolutely nothing from which I could reach any estimate of a likely income from this venture.
I have decided that the plaintiff should be assessed as a man who, quite apart from this fall, would have continued to experience occasional episodes of low back pain from muscle strains. As he aged those would probably have become more frequent. It is at least possible that they would have impaired his ability to work at the kind of job he was doing for the defendant and made it harder for him to obtain alternative employment. So the sum assessed for future economic loss would have to be discounted to reflect that. It must also be discounted because even with his disability he has recognisable chances of getting a job which he can manage. He is still a young man. He has a good work history. He has a pleasant manner. However unemployment is notoriously high and shows no sign of great improvement. Any physical disability adds to the risk of unemployment. I propose to leave the period of 30 years as the multiplier but to discount his future economic loss by 40% to reflect all of those contingencies I have mentioned.
I accept the submission of Mr. Grant-Taylor of counsel for the plaintiff that the evidence amply demonstrates a net weekly loss of at least $270. For the future, capitalised at 5% for 30 years the figure is $221,940. As I said, I reduce that by 40% to $133,164.
He has undoubtedly suffered pain and inconvenience which, although it has improved somewhat over time, still affects him. He takes Panadeine Forte, a prescribed pain killer, at the rate of 4-6 per day but originally at the rate of 30 per day. He has pain on waking and during most days. He cannot do any strenuous lifting, bending or stretching. Repetitive such movements, even if not strenuous increases his pain. Sitting, standing or walking for extended periods increases his pain. He has attempted to do some light work but was prevented from continuing back pain. Surgery is not recommended so I expect he will always have to lead a life with his physical activities greatly curtailed by the onset of pain. I consider that $40,000 is a reasonable sum to assess for pain and suffering and loss of amenities. I allow interest on $15,000 of that at 2% for 4 years, that is $1,200. In selecting $15,000 I have taken into account the amount of $3,702 which he received for his permanent partial disability from Workcover.
His loss of income to date (210 weeks) is calculated at an average of $270 net per week is $56,700 and I discount that by 15% for contingencies. The sum is therefore $48,195. Interest on that is allowed for 4 yeas at 5% on $4,055, a sum arrived at after deducting net workers compensation weekly benefits of $16,640 and social security payments of about $27,500. That sum for interest is $811.
Lost superannuation benefits paid by the employer to date are calculated at 5 % of the sum for past economic loss ($48,195) that is $2,410. Interest was claimed on that at 5% over 4 years which seems to me to be reasonable, and is $482.
On the authority of Hyne & Son Pty. Ltd. v. Tomlinson (unreported C.A. 8283/97) it seems that the loss of future superannuation benefits is customarily calculated at 6% of the figure for future economic loss. That is $7,990.
The plaintiff has been unable to do much of the ordinary household tasks he once managed, such as house cleaning, laundry, gardening etc. The tendered schedule (exhibit 8) sets out the very modest claims of two hours per week initially and one hour per week thereafter. The amount thus calculated, $5,530 is allowed. Interest is claimed on that and I allow it at 2% for four years, that is $442. The plaintiff is not out of pocket for the money. For the future it is likely that the plaintiff will have to continue to get assistance for at least one hour per week, for the heavier household tasks. At the cost of$12 per week for 40 yeas capitalised at 5% the sum is $11,016.
Future pharmaceutical expenses are allowed on the basis of one packet of analgesics per month (cost $3.60) for 40 yeas, capitalised at 5%, which is $2,000.
Total special damages as set out in exhibit 5 are $4,854 of which interest at 5% is allowed on $900 over 4 yeas, that is $180.
The Fox v. Wood component is $2,956.40 and the refund to Workcover is $26,556.40. Damages are therefore:
(a) Pain and suffering $40,000 | 00 |
(b) Interest thereon | 1,200 |
(c) Past economic loss | 48,195 |
(d) Interest thereon | 811 |
(e) Past superannuation | 2,410 |
(f) Interest thereon | 482 |
(g) Future economic loss | 133,164 |
(h) Future superannuation | 7,990 |
(i) Past care | 5,530 |
(j) Interest thereon | 442 |
(k) Future care | 11,016 |
(l) Future medical and pharmaceutical | 2,000 |
(m) Special damages | 4,854 |
(n) Interest thereon | 180 |
(o) Fox v. Wood | 2,956 |
mmm | $261,230 |
Less Workcover refund | $26,556 |
$234,674 |
Conclusion
There will be judgment for the plaintiff for $234,674.