Vaticano v Fleurfruit Pty. Ltd.
[2000] QDC 369
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- Unreported Judgment
- Vaticano v Fleurfruit Pty. Ltd.[2000] QDC 369
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Vaticano v Fleurfruit Pty. Ltd.[2000] QDC 369
Vaticano v Fleurfruit Pty. Ltd.[2000] QDC 369
![Vaticano v Fleurfruit Pty. Ltd. [2000] QDC 369](/judgmentview/image?name=315276.001.png&id=315276)
DISTRICT COURT OF QUEENSLAND
CITATION: | Vaticano v Fleurfruit P/L [2000] QDC 369 |
PARTIES: | NICOLINO VATICANO Plaintiff v FLEURFRUIT PTY LTD (ACN 068 986 854) Defendant |
FILE NO/S: | D 6/99 |
ORIGINATING COURT: DELIVERED ON: | District Court at Stanthorpe 24 November 2000 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 15 and 16 November 2000 |
JUDGE: | Judge Brabazon QC |
ORDER: | ORDER THAT THE PLAINTIFF HAVE JUDGMENT AGAINST THE DEFENDANT IN THE SUM OF $133,398. |
CATCHWORDS: | Personal injuries – breach of contract – Wylie v ANI Corp Ltd (2000) QCA 314 and Jones v Persal & Co (2000) QCA 386 - Followed |
COUNSEL: | Mr S. Di Carlo for the plaintiff Mr A. Musgrave for the defendant |
SOLICITORS: | Murrell Stephenson, Brisbane for the plaintiff Groom & Lavers, Toowoomba for the defendant |
JUDGMENT
- [1]This is a claim for damages for personal injury. Both liability and the amount of damages were in issue at the trial.
Liability
- [2]Mr Vaticano was injured on 27 August 1996, when he suffered a cut to the long finger of his right hand. He had then been employed for about eighteen months by the defendant as a worker on its orchard near Stanthorpe.
- [3]Mr Vaticano was 41 years old. He had left school in Year 10, without completing his Junior year, because he was working on his parents’ orchard, and his marks were not very good. His work history included seven years as a groundsman for a Stanthorpe school. He was retrenched when the school’s funding was reduced. He was on social services for a time. His father died, and he went to look after the family farm. He supplemented his income by doing some contract work with the farm’s truck, and also by working for other farmers or orchardists. Finally, that farm was sold. He came to work for Fleurfruit. He was given that job because he was known to be a good worker, with a range of useful skills. He knew about the main work of an orchard – thinning, planting, pruning, and packing. He was a capable driver of the farm vehicles, and was good with machinery. Like many with a farming background, he was a very handy man. He is a man of medium height and build. He was in good health.
- [4]The principals of the defendant are two brothers, Stephan and Ugo Tomasel. In 1996 Stephan had about 20 years experience as a farmer, mainly in the stone fruit industry. He was a witness at the trial. He appears to be a capable man, well used to all the practical aspects of running a reasonably large fruit-growing operation. In 1996 there were three full time employees, to assist him and his brother.
- [5]There was no reason to doubt the honesty of any witness. However, not surprisingly, there were somewhat different accounts of instructions that were given and about how the work was done, and about how the accident happened. The following findings of fact show what probably happened, where there is uncertainty.
- [6]In August 1996 the Tomasels wanted to renovate and expand their packing shed. A lot of the original shed was made from wood, with corrugated iron cladding. They decided to replace the wooden posts, and build a steel extension. To do that, both the western and southern ends of the shed had to be pulled down. There was to be a new concrete floor. It was a major renovation. A builder had been engaged to do the new work. However, Mr Stephan Tomasel planned to use the existing workforce, and equipment, to do the demolition work. Work actually started on 26 August, the day before Mr Vaticano’s accident.
- [7]Mr Tomasel agreed that he did not know if Mr Vaticano had any actual experience in demolishing a shed with walls made from sheets of corrugated iron. However, he assumed that it was the sort of job he could do, because of his general farm background, and because he had observed him capably doing other jobs around the farm. As it happened, Mr Vaticano had no experience in demolishing such a structure.
- [8]Mr Tomasel told his three workers what he wanted done. The three were the farm foreman, Mr Charlie Leggett, Mr Vaticano and a young man called Clayton Smith. He gave them some instructions, before work started, probably on 26 August. He asked them to be careful at all times, because they were to handle corrugated iron. He said that they should wear their gloves. At some stage, probably during the progress of the work, he demonstrated how to remove the vertical sheets on the western wall. Those sheets had been put up by Mr Tomasel’s father about 20 years before. For some reason, as well as using the usual three rows of large nails into the horizontal wooden battens behind the iron, he had fixed the top edge of the higher sheets with packing case nails. They were smaller nails. It is likely that Mr Tomasel did not himself lever a sheet away from the wall, but rather explained to the others how that should be done. The leverage on the nails would pull them out of the batten, and the sheet could then be put on the ground.
- [9]The western wall was made from two rows of corrugated iron. Starting at ground level, regular sized sheets had been fixed to the battens. No one was certain about the size of those sheets – it appears that they were in the range of 2 feet 6 inches x 9 feet, to 3 feet x 10 feet.
- [10]A second or third row of sheets was then used to clad the gable end of the building. That is, the bottom of the upper sheets overlapped the lower row of sheets, to make a waterproof join in the usual way. The top of the sheets were then cut at an angle to fit under the line of the roof. The roof descended from the ridge in the middle of the gable, so that the tallest sheets would have been at the middle, with the shortest ones at the end of the roof. The photographs, Ex. 4, show the wall in its present condition, with the extension added.
- [11]Mr Tomasel gave the three men claw hammers and pinch bars. He then indicated that Mr Vaticano should use the farm’s cherry picker to reach the higher row of sheets. He knew that Mr Vaticano was experienced in the use of the cherry picker. It was used for picking fruit and trimming fruit trees. Mr Smith also used the cherry picker on the fruit trees. This work was higher than the usual height of a fruit tree, and Mr Smith was not comfortable in working at heights, so the cherry picker job was given to Mr Vaticano. Mr Smith recalled that Mr Tomasel demonstrated how to lever the top sheets off, while being himself raised up to that level on the cherry picker’s platform. Mr Tomasel said nothing about that. Mr Vaticano denied hearing any such instruction at all. Mr Leggett, in his statement, made no comment about any such demonstration on the cherry picker – but he asserts that Mr Vaticano had been shown how to remove the sheets, by pulling them towards him. (Mr Leggett’s signed statement was admitted, as he had died before the trial.) On balance, it should be found that Mr Tomasel did not use the cherry picker.
- [12]In any case, it seems that removing the top sheets by levering them away from the wall was the easiest way of doing things. It was also the fastest – the small nails slowed down the removal of the sheets. As Mr Smith said, a hammer could also be used to do that job, by removing the smaller nails.
- [13]On the first day, some of the bottom sheets were removed. The work proceeded without undue difficulty. The next morning, work started on the top row of corrugated iron. Mr Vaticano got the cherry picker from the machinery shed, as he had been asked to do.
- [14]The cherry picker could be used to raise one man some three metres above the ground. It was powered by a petrol engine. A worker on the platform could manoeuvre the machine while raised up into the air. That was done by the use of foot pedals – they are illustrated in Exhibit 13. Mr Vaticano was skilled in the use of the cherry picker. There was some debate at the trial as to how stable a platform was provided by the cherry picker. In the area near the western wall, the ground surface was flat compacted gravel, which had been prepared as part of the renovation work. Mr Tomasel said it was a very stable platform. Mr Smith said that it moved a little, perhaps an inch and a half or two inches either way, when in the air. Mr Vaticano said that it would move. It seems not to be important – the facts here do not show that any instability in the cherry picker’s platform were a cause of Mr Vaticano’s injury. Rather, the confined area of the small platform should be noted. When Mr Vaticano stood on it to remove the iron, he did not have the freedom of movement compared to standing on the ground, or on a larger demolition platform.
- [15]Mr Smith was asked to help Mr Vaticano. The idea was that Mr Vaticano would raise himself up in the cherry picker, remove one of the top sheets, and then hold it by grabbing on to each side of the sheet. He would then lower himself and the sheet to the ground, when he would hand it to Mr Smith, who was to put it on a pile of sheets.
- [16]Mr Vaticano injured his finger on the afternoon of that second day. Work on the western wall must have been going on for quite a few hours before it happened. Starting at the lowest part of the roof, he had removed several of the higher sheets. Mr Smith put them in a pile. Both Mr Leggett and Mr Smith were not far away. However, the actual job of removing the higher sheets from the frame of the building was a job for him alone, as he was raised up on the cherry picker platform. It was at full height, about three metres above the ground.
- [17]The evidence suggests two different ways in which Mr Vaticano’s accident might have happened. He was removing a sheet that was five or six feet long. The defendant’s evidence suggested that he had taken all the large nails out of a sheet of iron, leaving it suspended by the smaller nails at the top. He then tried to pull the sheet down vertically, rather than levering it away from the wall. The nails let go, the sheet fell suddenly, and his right hand was caught between the falling sheet and the metal edge of the platform frame which surrounded him at about the level of his waist or hips. That was Mr Smith’s evidence. Mr Leggett’s statement says that he had previously tried to pull a sheet off by jerking vertically on it, and then told him to be careful, and that he should remove the sheets by pulling them away from the wall, towards him. He did not see the actual incident. Mr Smith recalls that Mr Leggett told him that it was safer to lever the sheets off.
- [18]Mr Tomasel did not see the incident. Most of the time he was actually away doing other jobs. He observed what was going on during his regular return trips to the demolition work. He recalls seeing Mr Vaticano aloft in the cherry picker, holding a detached sheet of iron vertically, with a hand on each side of the sheet.
- [19]Mr Vaticano says the incident happened in a different way. He recalls that he started at the top of the sheet, removing all the nails with a hammer. He worked down the sheet, until all its weight was sitting on one nail, left in the bottom row. He put up his left hand to stop the sheet toppling over. The sheet then either moved to its side or the bottom nail simply fell out. The result was that the sheet suddenly started to fall towards the ground. He put out his right hand to grab it. His finger was cut when the sheet jammed it onto the rail in front of him.
- [20]In my opinion, the exact method which Mr Vaticano was using to detach the sheet from the wall is not important, in considering the question of liability. If there is a difference, then it is likely that Mr Vaticano’s evidence more accurately describes what happened. The evidence suggests that levering the sheet away from the top row of nails was the preferred way to do it. He was not forbidden to use a hammer to remove those nails.
- [21]There was considerable evidence about the wearing of gloves. It is clear that Mr Vaticano was not wearing gloves at the time of his injury. He says that he never wore gloves to do this particular job, and that he had not been told to do so.
- [22]All workers at the farm were provided with leather gloves. They were soft leather gloves, of the type normally called “riggers” gloves. The main reason for their use was comfort during the winter months, and protection for the hands when doing jobs like picking up sticks from the ground, or working with other rough surfaces, such as concrete, which is abrasive. They were not usually worn for safety reasons, though wearing them did provide some protection for the hands.
- [23]Mr Tomasel insisted, in evidence, that he had given an instruction to wear the gloves while the three workers were handling the corrugated iron. Mr Smith agreed. Mr Leggett’s statement is to the same effect. Mr Vaticano does not remember such an instruction.
- [24]Mr Tomasel’s evidence should be accepted – there was an instruction to wear the gloves. It is also likely that Mr Vaticano did wear them for at least some of the time. Mr Tomasel recalled seeing him wearing the gloves, at least in the morning. Mr Smith’s recollection was consistent. It is likely that he took them off around lunch time, and did not put them on again. Mr Leggett did not recall him taking his gloves off, nor did he see Mr Vaticano with his gloves off, until being told about the cut to the finger. At the latest (according to Mr Leggett) Mr Vaticano had his gloves on immediately after lunch. It seems that Mr Leggett and Mr Smith were wearing gloves at the time.
- [25]It should be clear from the above descriptions of the incident that the sheet of iron suddenly fell from the wall because of the inappropriate way in which Mr Vaticano was removing it. That is, he either was attempting to jerk it free from the small nails at the top, or he allowed the whole weight of the sheet to be suspended on one nail, which allowed the sheet to fall. No attention seems to have been paid to the obvious difficulties that one man might have, in removing all the nails from a sheet and then taking hold of it so it could lowered to the ground. At least one hand, probably his right, was holding a hammer. He was right handed. It can be seen, that the method of levering the sheet away from the wall would have been one solution to the problem of the small nails at the top. However, it was not a method that was insisted upon. The notion that the levering away of the sheet was the only permissible way to do the job should be rejected. Mr Vaticano probably removed the sheet in another way – that is, by removing the nails, or almost all the nails, with his hammer. The platform restricted his movements. He was alone, three metres above the ground.
- [26]In any event, it seems that the rather obvious dangers of trying to handle a detached, or almost detached, sheet of corrugated iron at a height were not properly addressed. These difficulties seemed to have been caused principally by either a failure to have only one safe system of work, or by Mr Leggett’s failure to supervise, and to ensure that Mr Tomasel’s instructions were put into action. Those failures must be considered against Mr Vaticano’s lack of experience in this particular sort of job. Either way, the principal cause of his injury was his employer’s failure to ensure that he was doing the job in a safe way. That did not happen. It seems likely that Mr Leggett, rather than Mr Tomasel was the cause of that failure.
- [27]It is notorious that farm work is the cause of many injuries. Usually workers are good with their hands. Often they can make do with the available equipment, and their general skills. However, it can be seen here that a combination of Mr Vaticano’s inexperience, the use of the cherry picker, the fixing of the sheets with the smaller nails, his adoption of an unsafe method, and a failure to supervise him effectively, led to this accident.
- [28]It also seems likely that Mr Leggett failed to notice that he was not wearing his gloves, and to give him another instruction about them. It was submitted for the employer, that the failure to wear the gloves was the effective cause of the injury. That assumes that the wearing of the gloves would have prevented the severing of the tendon in his finger. That was the cause of all his later difficulties. Mr Vaticano described the cut as being across the full width of his finger, down to the bone. None of the medical practitioners were asked to comment on the likely effect that the wearing of the leather gloves would have had. The court is now asked to find, as a matter of common sense, that the wearing of the gloves would probably have prevented the injury. That is, as the expression goes, “a jury question”.
- [29]Before answering that question, it is helpful to recall the legal framework in which the question of liability is being considered. Mr Vaticano claims breach of the contractual duty to take care for his safety, that there was negligence in dealing with a foreseeable risk, and that there was a breach of s 28 of the Workplace Health and Safety Act 1995. All those sources of duty are admitted by the employer. However, in its defence, it denies that the injury was caused by any breach of contract or negligence on its part. In response to the allegation of a breach of statutory duty, the employer asserts that:
- (a)Mr Vaticano failed to comply with instructions (i.e., levering of the sheet and wearing gloves;)
- (b)under s.37 of the Act, there was no compliance or advisory standard, and that the employer chose an appropriate way, and took reasonable precautions, to prevent any contravention of s. 28; and that
- (c)the happening of the injury was due to causes over which the employer had no control.
- [30]The usual plea of contributory negligence is made.
- [31]As well, it is asserted that Mr Vaticano was under a contractual duty to look after his own safety, and that he was in breach of that duty, so that the employer is entitled to set off the amount by which Mr Vaticano has caused his own loss and damage.
- [32]With respect to each of the three ways in which Mr Vaticano bases his claim for damages, the following can be said: In the contractual claim, as a question of causation, the effective cause of the injury was the falling of the sheet of galvanised iron. That was caused by the employer’s breach of contract. If it be accepted that the wearing of the gloves would have prevented the injury, then it is but a secondary cause. Mr Vaticano is entitled to recover 100 per cent of his damages. See the recent discussions of principle by the Queensland Court of Appeal in Wylie v ANI Corp Ltd (2000) QCA 314, Appeal 409/999, 4 August 2000 and Jones v Persal & Co Appeal 7571 of 1999, 22 September 2000.) In accordance with those principles, once it is established that the employer’s breaches of the implied terms, to provide a safe system of work and to supervise, are established as the effective causes of the injury, then the worker will recover 100 per cent of his or her damages. There can be no reduction for contributory negligence under the apportionment legislation – Astley v Austrust Ltd (1999) 73 ALJR 403.
- [33]That is sufficient to establish liability in the employer. If it were necessary to consider the questions of negligence and breach of statutory duty, then it should be held that, as a question of fact, the injury would probably have been prevented by the wearing of the gloves. In that case, there would be a question of contributory negligence. An appropriate reduction, on the facts here, would be 10 per cent. That figure should be adopted because, as common experience would indicate, working with sheets of corrugated iron is not necessarily dangerous, and may be done without gloves. Secondly, the failure of Mr Vaticano to wear the gloves can be compared to his employer’s duties towards him. That obligation was not merely to provide a safe system of work; it was an obligation to establish, maintain and enforce such a system. The court must take account of the power of his employer to prescribe, warn, command and enforce obedience to its commands (following the joint judgment of the majority of the High Court in McLean v Tedman (1984) 155 CLR 306.) On the other hand, the worker’s conduct must be judged in the context of the finding, that the employer has failed to use reasonable care to provide a safe system of work, thereby exposing him to unnecessary risk. In those circumstances, the question is whether or not, considering the conditions under which he was required to work, the conduct of the worker amounted to mere inadvertence, inattention or misjudgment, or to negligence rendering him responsible in part for the damage (see the High Court in Bankstown Foundry Pty Ltd v Braistina (1985-86) 160 CLR 301.) Here, he was responsible in part – but it was only a small part.
Assessment of Damages
- [34]This injury has caused Mr Vaticano a moderate degree of pain and suffering. He has had surgery, and many attendances on his surgeon. Dr Duke, a hand surgeon, repaired the injury to the nerve in his finger.
- [35]The photographs, Exhibit 7, show the scar left by Dr Duke’s work. It does not follow the cut. It was directly across his finger. To repair the nerve, the surgeon had to remove a piece of the sural nerve below his ankle. The surgery was successful, but it had a disappointing result for Mr Vaticano. A familiar consequence of such surgery is to leave an area of hyper-sensitivity in the finger, and a loss of sensation in the ankle and foot, where the other nerve has been removed. Doctor Duke thought that the hyper-sensitivity should resolve. He saw Mr Vaticano on several occasions, and prescribed hand therapy. Mr Vaticano followed that for a time, and there was some improvement, but the hyper-sensitivity remains. While he has no functional disability in his foot, the altered sensation has been a trouble to him.
- [36]In the result, it should be found that he has suffered a significant disability, particularly in his right hand. It is true that the highest estimate, according to the WorkCover tables, is the 7½ per cent disability in his right hand. However, that percentage does not reflect the actual disability that it has caused to this man, who always used his hands to earn a living. It does seem that Mr Vaticano’s response has been surprising to the medical practitioners. For example, it was expected that the removal of the nerve in his ankle would cause him no disability. Surprising or not, there were only the faintest suggestions at the trial that Mr Vaticano was not sincere in describing the difficulties that he has had. His evidence should be accepted – consistently with the defendant’s recognition, that he was a good and honest worker. He has also been an honest witness. It is necessary for him to demonstrate that his injuries were the cause of his disabilities, and that he genuinely suffers from that disability. Those things should be accepted.
- [37]When he was able to do so, he returned to light duties with Fleurfruit. Eventually, he was put off because there were not sufficient light duties to provide him with work. He then sought other work. He has done his best with Woolworths, where he is still employed. For a time he got back to full time work there, but found it too difficult to manage. He is now working 20 hours a week. That would be accepted as an accurate measure of his disability.
- [38]Because of his inability to earn a full wage, he has been unable to provide properly for his wife and family. That has made him feel inadequate, moody, and “really stressed out”. Undoubtedly, he will have the continuing upset of not having his usual physical ability to work. He can no longer do jobs such as woodchopping. Tasks such as mowing the lawn are done more slowly, because of his hyper-sensitive finger. His capacity to work on a motor car has been reduced. He now spends money on servicing that he would have done himself.
- [39]He still takes Panadol at night.
- [40]His leisure interests are somewhat restricted. He still goes dancing, but feels clumsy because of the sensory changes to his left foot. Gripping a golf club gives him pain in his finger. He can still strum on his guitar, but can no longer use a pick.
- [41]Overall, he has a continuing loss of confidence in his ability to do things on a daily basis, because of his finger injury. He was 41 years old at the time of the accident. He is now 46 years old. Statistically, he has a life expectancy of about 31 years.
- [42]His general damages for pain and suffering and the impact that the injury has had on his life, and will continue to have, should be assessed at $24,000. Of that sum, one half should be for the past, and the other half for the future. The usual approach is to award interest at 2 per cent on the component for the past, from the date of injury to the present time. That is an amount of $1,020.
- [43]He is entitled to compensation for his economic losses up to trial. His income, and that of his fellow workers, was somewhat variable at the time of his accident. It was accepted at the hearing that, on average, he was taking home $360 a week. The accident was 217 weeks ago. At the least, he has lost that income, of $78,120.
- [44]It is accepted that his actual earnings up to trial amount to $37,441. Therefore, he has lost income of $40,679. That figure should not be discounted – his good health and good standing with his employers, and his work history, shows that his income would have been stable.
- [45]In addition, he is entitled to interest, to the extent that he is actually out of pocket up to the present time. He has received payments from WorkCover and Centrelink amounting to $30,744. Therefore, he is out of pocket to the extent of $9,935. There should be interest at 5 per cent. Over 4.25 years, that is an amount of $2,111.
- [46]As before, it was accepted during argument that his present earning capacity, had he not been injured, would have been $360 clear a week. In fact, he is earning $225 clear because of his part time job at Woolworths. That is a loss of $135 a week. Mr Vaticano’s counsel put forward an argument, based on a larger loss of income. However, I think it likely that Mr Vaticano would have continued to work in a similar outdoor job, so that the present loss of $135 a week is appropriate.
- [47]Apart from this injury, he is in very good health, does not smoke, is married, is a light drinker, and is a man who has always tried to work. Apart from some reliance on social service payments after being retrenched from his longstanding job as a school groundsman. He has always had a job. It might be assumed that he will work to age 65. On the assumption that any damages will be invested, it is agreed that the loss of $135 a week for the next 19 years has a present discounted value of $87,237. There was some debate at the hearing as to whether or not that figure should be discounted to take into account the various contingencies and dangers of life – such as the possibility of his future income being impaired in any event by accident or illness, or difficulties in getting a job. The relatively low discount of 15 per cent should be applied. That shows the present value of his loss to be $74,151.
- [48]It is accepted that the loss of future superannuation benefits should be recovered. That can be done by awarding him 7 per cent of the future economic loss. That is an amount of $5,190.
- [49]Following the accident, Mr Vaticano required assistance from his wife and family, to help him with the activities of daily living, food preparation and home maintenance. It is accepted that he should recover the sum of $2,280, on this account. (There is no claim for future care). Interest should also be allowed, now at the commercial rate of 6 per cent. That is $547.
- [50]Most of his special damages are agreed, in the sum of $6,333. In addition he should be allowed $100 for analgesics, which he has been using. There is a further claim for travel. He did make trips to Dr Ma and to Dr Duke. Dr Duke is in Brisbane, and there were six trips. His claim should be allowed, at $500. (It seems that the actual distance travelled would have been greater than the amount claimed.) No interest on those damages is claimed – most of them were paid by WorkCover.
- [51]It is agreed that the so called Fox v Wood component (to compensate for the impact of income tax) should be allowed in the sum of $3,430.
- [52]Therefore, his damages can be summarized as follows:
Pain and suffering, etc | $24,000 |
Interest on $12,000 (past component) | $1,020 |
Past economic loss | $40,679 |
Interest | $2,111 |
Future economic loss | $74,151 |
Future superannuation | $5,190 |
Past care | $2,280 |
Interest | $547 |
Agreed special damages | $6,333 |
Analgesics | $100 |
Travelling | $500 |
Fox v Wood | $3,430 |
TOTAL | $160,341 |
- [53]Mr Vaticano has already been paid $26,943 by WorkCover. That payment must be deducted, leaving a balance of $133,398. He is therefore entitled to an award of damages in the sum of $133,398.