Raitilava v Gold Coast City Council
[2004] QDC 436
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- Unreported Judgment
- Raitilava v Gold Coast City Council[2004] QDC 436
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Raitilava v Gold Coast City Council[2004] QDC 436
Raitilava v Gold Coast City Council[2004] QDC 436
DISTRICT COURT OF QUEENSLAND
CITATION: | Raitilava v Gold Coast City Council [2004] QDC 436 |
PARTIES: | ILARIO RAITILAVA Plaintiff v GOLD COAST CITY COUNCIL Defendant |
FILE NO/S: | BD3616/2003 |
DIVISION: |
|
PROCEEDING: | Trial |
ORIGINATING COURT: | District Court, Brisbane |
DELIVERED ON: | 5 November 2004 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 21, 22 April 2004 |
JUDGE: | McGill DCJ |
ORDER: | Judgment for the defendant. |
CATCHWORDS: | EMPLOYMENT LAW – Injury to employee – liability of employer – safe system of work – no obligation to prevent healthy employee from working within his capacity. |
COUNSEL: | P A Hastie for the plaintiff K S Howe on behalf of the defendant |
SOLICITORS: | Murphy Schmidt for the plaintiff Minter Ellison for the defendant. |
- [1]The plaintiff has worked for the defendant, generally as a labourer, since 1978. He has developed osteoarthritis of the right wrist. The plaintiff alleges that this condition was caused by the work that he did, and the way he did that work, during the course of his employment, and that it arose because of a failure on the part of the defendant to take reasonable care to avoid exposing the plaintiff to unnecessary risk of injury.
- [2]Osteoarthritis is progressive and it would have developed over a relatively long period. But the plaintiff’s condition was brought to light by two specific events. The first was on 25 September 1998. On that occasion the plaintiff, who was off duty but on call, was called into work about 9.00pm or 10.00pm to assist someone else who was repairing a broken water main: p. 98. A backhoe was in attendance. While there another emergency call came through about a broken service elsewhere, and the plaintiff went to attend to it: p. 99. When he arrived he had a look at the problem and thought he could fix it himself.[1] The plaintiff began to dig down to uncover the break at that job, where the water main was close to the roadside, and as he dug he must have hit some hard rock or concrete with his shovel. He had dug about two feet into the ground, and until that point he was digging through a mixture of road base, soil, sand and rocks: p.122. This jarred his wrist, which became so painful that he could not carry on, and he went to the hospital.
- [3]After a fairly lengthy wait the plaintiff was seen by a doctor at the hospital and given some painkillers, which he was very keen to receive, and sent home: p. 100. On the following Monday he went to a doctor at a 24 hour medical clinic near the Southport Hospital, and subsequently went to the defendant’s depot and reported the incident and filled in the appropriate form: p. 101. He had some time off work as a result, but after being given a clearance by a doctor (P. 122, Exhibit 11) he returned to work, to the same type of work that he was doing before the injury: p. 102. It appears that by the time he went back to work his wrist had largely settled, although he was still trying to protect it to some extent: p. 105. There were times when there was pain for a few days. That changed the way he did his work, but did not really interfere with it: p. 106.
- [4]The doctor also recommended a hand brace which he purchased at a chemist: p. 104. He wore this after he returned to work after the first incident, until it wore out after about a year, and he stopped wearing it. He continued to have some pain now and again in the wrist for a few days, when he exerted some pressure on the right wrist: p. 105. Then on 16 June 2000, he was one of three men who were trying to trace a leak in a water main which was under a concrete footpath: p. 109. They had a backhoe which had excavated beside the footpath, and they were attempting to dig under the footpath to locate the water main. Ultimately it was located about 18 inches under the footpath: p. 110. In the course of this job the plaintiff was using a crowbar. He and another man were taking turns at using the crowbar, which was about one and a half metres long. He had no particular problems at the time, but about a day and a half later his wrist became painful and started to swell: p. 110. He went back to the doctor, and was given some painkillers and two weeks off work: p. 111. This time when he returned to work he was on light duties only, so that he was not required to do any digging. He has been continuing to work for the defendant on that basis ever since. He now works only as a leak detector. This is the sort of work he has been doing for some time, but the difference is that now after he locates a leak others have to fix it, whereas before he would often go on to fix it himself.
Background
- [5]The plaintiff was born on 16 July 1946, in Fiji: p. 10. After leaving school in 1966, he worked in a clerical position in Fiji until 1977 when he came to Australia and settled on the Gold Coast: p. 11. While in Fiji he had some prominence as a rugby union player, playing in the Fiji team in international competitions a few times: p. 11. After he came to Australia, he continued playing at club level on the Gold Coast, initially first grade but over the years he had moved to lower grades before he gave up playing entirely in the late 1980s or early 1990s. He did not receive any injuries to his right wrist in the course of his football career: p. 11.
- [6]When he came to Australia he began working in 1978 for the Gold Coast City Council in the water supply section: Exhibit 10. He worked at one time as a tradesman’s assistant, working with a plumber (p. 136), and later he worked as a labourer, doing a range of work: p. 145. This included maintenance work, installing new water services and relaying water mains: p. 12. Maintenance work usually involved digging a hole by hand, to expose where there was a leak, in order to fix it. In places where the soil was soft and sandy this could be done with a shovel, but in other places a crowbar had to be used as well. When laying or relaying water mains the digging and backfilling was essentially done mechanically. By 1987 he was doing mostly valve maintenance work: p. 154. By 1995 he had also been trained in leak detection (p. 145), which involved the operation of some equipment, and was not physically demanding work.[2] In late 1997 he was appointed a ganger leading hand: Exhibit 6.
- [7]After the plaintiff was initially trained in leak detection it was not the case that he was doing nothing but operating that equipment. Up until the second incident, it was the situation that, if he was sent out to detect a leak he did so, and if he thought he could cope with the repairs himself, he would go on to do them: p. 102. To some extent that depended on whether there was some pressing need for leak detection work elsewhere, but my impression from his evidence was that that was the ordinary practice. Apart from this, he would also at times just do ordinary maintenance work, if there was no leak detection work needing to be done: p. 120. He was also on a roster for call-out work (p. 17), being on call one week in four. If called out after hours as a result of being on that roster, it was ordinarily for emergency repair work, rather than leak detection. After the first incident when he returned to work the position did not change: p. 105. In particular, he was not told after the first incident not to go on to fix any problems himself which he came upon while doing leak detection work: p. 103. After 1995 then, the plaintiff would certainly have been still doing some heavy manual work. On the other hand, his heavy manual work would have been even less intensive and less repetitive than would have been the case prior to 1995.[3]
Medical evidence
- [8]On 20 June 2000 the plaintiff’s right wrist was x-rayed; a report by the radiologist to the plaintiff’s GP became Exhibit 12. There was indication of some soft tissue swelling on the dorsal and radial aspect of the wrist, and some indications of early degenerative change in the scaphoid-trapezium-trapezoid joint space. There were also some other features which might have been caused by trauma some time ago.
- [9]The plaintiff was seen on 29 June 2001 by an orthopaedic surgeon, Dr Gillett, for the purposes of a report to his solicitors: document 4.[4] Reference was made to the first incident, which however was said to involve the plaintiff’s “breaking up concrete with a crowbar. A day or so later he developed pain and swelling in the wrist.” This is not consistent with the evidence before me. Dr Gillett then referred to a medical report which is also not before me, before referring to the second incident, and to other medical reports which are not before me. There was a little stiffness, but no swelling; it became worse in cold or wet weather, or if it received too much use. He did not report any previous injuries to the wrist, in sport or otherwise, or any problems with the left wrist. He was otherwise in good health.
- [10]On examination there was some loss of both dorsiflexion and palmar flexion in the right wrist, and to some extent in the left wrist. At the time of the examination there was not much pain in the right wrist, although this was because he had been looking after the wrist. Dr Gillett saw x-rays taken in June 2000, and in June 2001, both of which showed some early osteoarthritic changes, with no significant progression. In his opinion the plaintiff was suffering from osteoarthritis in the right wrist, which had been present for some time; the first and second incidents would have produced an aggravation and flare up of that process. Dr Gillett thought that the most probable explanation for this condition was repetitive jarring in the course of the plaintiff’s work practices over some 20 years. Modification of his duties and light activities would accommodate the wrist pain, and the plaintiff was best suited to lighter duties. He did not think surgery would be of assistance.
- [11]Dr Gillett was of the opinion that, had the plaintiff not returned to his manual work after the first incident then the progression of the condition would have been about two or three years longer than it otherwise would have, but it was likely to be some continuing degenerative process: document 1. Degeneration in the wrist meant some arthritic process: p. 29. Dr Gillett said that in his experience it was rare to have arthritis of the wrist as a constitutional condition, although he could not exclude the possibility that it was constitutional in this case: p. 31. He also may have had trauma associated with football, which he may now have forgotten about, which may have been the original cause. It was however not common to see the condition in the wrist except as a consequence of a specific traumatic event: p. 32. He had not seen a lot of people who have had heavy labouring jobs coming along with osteoarthritis in the wrist: p.38. To avoid this sort of condition developing it would be necessary to avoid taking force through the wrist, particularly from a situation where force was being applied with a crowbar or hammer: p. 38. He thought repetition was important in this respect: p. 39.
- [12]The plaintiff was seen by Dr Robinson, a hand and upper limb surgeon, on 4 June 2002, for the purposes of a report to his solicitors: document 2. The report records the history of the two incidents, although again the first incident is said to be one when concrete was being broken up with a crowbar. The pain was said to have settled over two weeks after the first incident and over four weeks after the second. At the time of the examination there was no pain in the wrist, but the wrist felt weak and was said to be easily aggravated. On examination there were restrictions in the motion of the wrist in all directions, but it was not tender. Grip strength was on average greater in the right than in the left hand. X-rays revealed decreased joint space at the STT joint, and other relatively minor changes; a later x-ray demonstrated more advanced changes.
- [13]Dr Robinson was of the opinion that the plaintiff had suffered a stretched scapho lunata ligament leading to functional loss and secondary osteoarthritis of the wrist joint. However the stretching of this ligament was said to be associated with long term manual activity, a product of repeated micro trauma rather than a single catastrophic failure.[5] This was something which was seen in manual labourers, particularly in fitters and turners. He was of the opinion that the plaintiff’s injury was consistent with 25 years working as a labourer for the defendant. Dr Robinson did not think this indicated anything unusual in the activities undertaken by the plaintiff in the course of his labouring work: p. 42.
- [14]In Dr Robinson’s opinion the plaintiff could continue to work if he took care in the execution of some of his activities. He accepted that the two incidents had aggravated a longstanding problem: p. 48. There was a risk of the osteoarthritis progressing, but it was unlikely that he would require a wrist fusion prior to reaching retirement age provided that he was careful as to what he did. A wrist fusion at some stage was a possible outcome. The impairment relating to loss of motion in the wrist was equivalent to six percent of the loss of use of the arm.
- [15]Dr Robinson conceded that osteoarthritis in the wrist might be constitutional; he said it was more commonly found in females than males, and in females it was thought to be constitutional: p. 42. He said it was possible that the underlying cause could be the plaintiff’s history as a rugby player: p. 43. The process of using a crowbar or a shovel could aggravate a degenerative process in the wrist: p. 43. Once the plaintiff began to develop pain in the arthritic wrist he ought to be doing work which did not involve using a crowbar or a shovel: p. 52. If the plaintiff had been employed doing work which did not involve putting a strain on his wrists, his symptoms might have emerged anyway in five or ten years: p. 44.
- [16]Dr Robinson did not know what caused the stretched ligament and the abnormal biomechanics of the wrist: p. 46. This sort of condition shows up more commonly in patients who are older, which suggests that it is a progressive change throughout the working life: p. 46. He accepted however that an alternative explanation might be that the ligament becomes less resilient with age, so that older patients are more susceptible to the ligament stretching over a relatively short period: p. 48. His preference however was for the former explanation. The arthritis would have developed over a period of years: p. 48.
- [17]The plaintiff was seen by Dr Walters, an orthopaedic surgeon, on 27 March 2003 for the purposes of a report to his solicitors: document 5. The history recorded was as I have given it earlier. His complaints at that stage were of pain with any physical activity, with the wrist becoming painful if it was overworked. He had responded by avoiding lifting with his right hand, and did not do any mowing or perform any chores at home. He had previously found a splint and anti-inflammatory drugs of benefit, but he was then taking occasional analgesics. On examination there was no specific localised tenderness, there was some loss of flexion and extension, and the upper right forearm measured slightly less than the left. X-rays were taken on 27 March 2003 which Dr Walters said indicated early degenerative changes; he said there was no widening of the scapho-lunate interval.[6] He said there was no established osteoarthritis.
- [18]Dr Walters did not regard it as established that heavy manual work in itself was a cause of joint degeneration.[7] It can occur in the absence of such work in which case it is usually attributed to constitutional factors. Neither of the incidents seemed particularly severe, but it was possible that they aggravated some pre-existing problem with the wrist. The plaintiff appeared to be coping with a less demanding position. He did not know what the cause of the early arthritis was, but thought it likely that they had been aggravated by the two incidents, and that the cause of the underlying problem was just unknown. It could have been an unrecognised injury dating from the time when the plaintiff was regularly playing football. Dr Walters thought it unlikely that the condition would progress to the point where arthrodesis of the wrist joint would be required. Dr Walters suggested that, if the plaintiff had not been performing heavy manual work, he might have developed similar symptoms within five to ten years[8] anyway, although he found it difficult to give such an estimate: document 6. He said if he was doing clerical work he might never have developed symptoms: p. 182.
- [19]Dr Walters said that many people do the sort of work the plaintiff was doing for a lifetime and do not develop arthritis in the wrist: p. 179. Dr Walters thought that if there had been recurrent soft tissue sprains, which normally resolve in time, these might have aggravated an underlying constitutional predisposition to arthritis: p. 182. Dr Walters did not regard it as established that just doing hard work could wear out a wrist or any other joint of the body: p. 183. There also appeared to be some restriction of movement in the left wrist as well as in the right: p.188. When degeneration is constitutional it tends to be present to some extent in both sides, although often the dominant hand becomes symptomatic earlier because it is used more frequently: p. 188.
- [20]The medical evidence is clearly to the effect that the arthritis to the wrist was not caused by either of the specific events, in 1998 and 2000. Rather they stirred up and made symptomatic a condition which had previously been asymptomatic. The first of the incidents produced a situation where the plaintiff had some pain in the wrist for a time, but it essentially settled and he was generally able to cope with his work, including some digging work, without any immediate pain. Indeed, even in the second incident the plaintiff did not get immediate pain; it came on a day or two later. That suggests that there was a difference between those two times in what it took to provoke a significant reaction from the wrist. At the time of the first incident, it required some actual jarring shock to the wrist to provoke a response. By the time of the second incident, mere use of the wrist in a relatively strenuous fashion provoked (more slowly) a response. That is consistent with the condition having progressed and deteriorated between those two times, and the doctors said that it was a progressive condition, becoming progressively worse. This was consistent with for example the evidence of Dr Gillett in document 1, to the effect that even if the plaintiff had not engaged in this more strenuous work after the first incident, it would merely have postponed the further deterioration of the wrist by two or three years.
The plaintiff’s work
- [21]A number of witnesses, who were familiar with the plaintiff’s work, spoke highly of him as a worker. It is apparent that he is well regarded by his superiors in the Council. Mr Reiser was called, who had worked for the Gold Coast City Council from 1960 to October 1995, for the 13 or 14 years as the health and safety coordinator: p. 125-6. He knew the plaintiff, and said he started as a tradesman’s assistant, and would have been doing heavy manual labour, particularly digging, for repairs or to install water connections. He was not aware of any difficulty the plaintiff had, or of his complaining about any difficulty with his work.[9] Mr Reiser saw the plaintiff from time to time, although normally not while he was actually at a worksite: p. 137. Mr Reiser said that the Council was aware of the need to avoid people overusing their hands or fingers or arms to the point where they might get injured as a result: p. 139. He also said that there were manual handling courses given to employees, which would have included the plaintiff: p.143.
- [22]Mr Batchelor was the civil works supervisor for Gold Coast Water, having started with the Council in 1987: p. 145. He was aware of the plaintiff’s working as a labourer, and had seen him performing that work: p. 146. It did not appear to him that the plaintiff had any problems doing it, and the plaintiff did not make any complaints about the work. The plaintiff was also doing valve maintenance work, which involved digging down to dig out the box the valve was in: p. 153. When doing this work he probably spent about half his time actually digging. Generally when doing this he would be working on his own: p. 154. The plaintiff became a regular leak detector in 1998. He thought that after the accident in 1998 the plaintiff returned to leak detection work: p. 147. That may have been true since the plaintiff returned to doing some work of that nature, but I do not think he was doing that work exclusively, until after the second accident. Prior to the amalgamation between the Gold Coast City Council and the Albert Shire Council, the section where the plaintiff worked had 30 men, and had two backhoes available to it: p. 151. Since the amalgamation, there are about 100 people in the civil works section of the water department: p. 167. The defendant had two employees doing leak detection work essentially full time, of whom one was the plaintiff: p. 153.
- [23]An occupational therapist, Ms Foster, was called; she had been conducting manual handling sessions in 1996 for the defendant: p. 155. This course was essentially directed to avoiding injury to the spine, and from her description of it it does not seem to me to have had much relevance to the matters in issue. She did not conduct sessions in occupation overuse: p.160. That was something she had done at other places, where people were doing fine repetitive assembly tasks. She was not aware of any specific research which has looked at overuse or repetitive injury in the context of people doing labouring work, in particular digging holes: p. 162.
Other expert evidence
- [24]The plaintiff also relied on a report from Mr Kahler, an engineer who has made a special study of workplace safety matters: document 7. Mr Kahler noted that from the point of view of work safety experts, there is said to be conflicting scientific evidence as to whether or not development of osteoarthritis is work related: p.14. That is indeed consistent with medical evidence before me; Dr Gillett thought that it was work related, whereas Dr Walters did not. Mr Kahler expresses the opinion that this is sufficient to justify addressing the work, but it is not at all clear to me why it is negligent not to address a risk the scientific connection for which remains controversial and not generally established.
- [25]In the report Mr Kahler suggested that there ought to have been greater use in the mechanical excavating equipment, and also use of a range of electric or pneumatic hammers, which come in various sizes and were illustrated on p. 17. It is not obvious to me however why the use of that equipment would not in itself place strains on the wrists, and involve some vibration or “micro trauma” to the wrist.[10] There is I think no medical evidence that the use of such equipment rather than a crowbar or shovel reduces the risk that someone like the plaintiff will develop arthritis in the wrist, and I regard this as no more than speculation on the part of Mr Kahler. In any case, the evidence was that equipment of this nature was available if requested from the defendant’s stores.[11]
- [26]Mr Kahler also referred to training in manual handling techniques, but insofar as that was necessary the evidence is that the defendant provided such training, from Ms Foster, in 1996. But in any case the problem here was not one of manual handling. The relevant question is whether the defendant ought to have required the plaintiff not to use, or to minimise the use of, crowbars, heavy hammers and shovels, even when he felt that he was able to do whatever he had to do just with the use of that equipment. The proposed manual handling training referred to by Mr Kahler was not directed to that issue, and was irrelevant.
- [27]He also spoke about rehabilitation and management of the condition after a problem arises. But in the present case the plaintiff received medical treatment, and was off work until a doctor cleared him to return to work. Once he had received the certificate that he was cleared to return to work, in my opinion it cannot be said that there was negligence on the part of the defendant in accepting that certificate at face value. Indeed, I did not understand the plaintiff’s case to involve any assertion to the contrary. This part of Mr Kahler’s report is therefore really irrelevant.
Analysis – negligence and breach of contract
- [28]The plaintiff’s case is in negligence, for breach of contract, and for breach of statutory duty, specifically s 28(1) of the Workplace Health and Safety Act 1995. It was common ground that so far as the non-statutory causes of action were concerned, the defendant had a duty to take reasonable care to avoid exposing the plaintiff to unnecessary risk of injury.[12] A risk of injury is unnecessary if by the adoption of some reasonable form of proportional safeguard it could have been eliminated or minimised: Neil v NSW Fresh Food and Ice Pty Ltd (1963) 108 CLR 362 at 370. The duty extended to providing proper and adequate means of carrying out his task without unnecessary risk, warning him of unusual or unexpected risks, and instructing him in the performance of his work where instructions might be thought reasonably to be required to secure him from danger of injury: O'Connor v Commissioner of Government Transport (1954) 100 CLR 225 at 229-30.
- [29]I am prepared to find on the balance of probabilities, in the light of the medical evidence, that the plaintiff’s arthritic condition in his right wrist was caused by the labouring work which he had done during the whole period he has worked for the defendant, particularly work with a shovel or crowbar or hammer which had the effect of jarring or putting sudden pressure on the right wrist.[13] I accept that although this did not cause any particular injury on a single occasion, the arthritis developed as a consequence of the long history of a relatively large number of individually minor shocks to the joint. In my opinion the crucial question is whether there was any breach of duty on the part of the defendant which caused this; that is to say, was there anything which the defendant ought to have done in order to prevent the condition from arising?
- [30]The plaintiff’s case as I understand it was essentially that more assistance, particularly mechanical assistance, should have been made available, and made available more readily, to the plaintiff, so that he was not put in a position where he was so frequently putting this strain on the wrist. It was submitted that there should have been greater supervision of the plaintiff to ascertain what work practice he was following, and that he should have been given instructions to ensure that he made greater use of assistance, particularly mechanical assistance, and steps should have been taken to enforce that.
- [31]I am not persuaded however that there has been any failure to take reasonable care on the part of the employer in relation to these matters. I accept that the standard of care required of the employer is a high one. Nevertheless, it is not one which requires an employer to do whatever could be seen with the benefit of hindsight to have been required in order to preserve a particular plaintiff from injury. There was nothing exceptional in the work the plaintiff was doing, so far as labouring work was concerned. It was not work which struck either him,[14] or any of the other people working for the Council, as unduly demanding, or as beyond the reasonable capacity of someone employed as a labourer. There was no suggestion that there were occasions when he had asked for assistance and it was not forthcoming, and the position was simply that he felt able to do most of the work that he came upon himself, and in fact did it, in a way which did not strike him or anyone else at the time as requiring anything by way of excessive effort from him.
- [32]Although I was referred to authorities dealing with the necessity of the employer to ensure that safe work practices are established and maintained, that was a context where the concern was that employees would otherwise avoid taking safety precautions, or not bother to take steps which would prevent a particular risk of injury. But the plaintiff’s case it seems to me must amount to the proposition that the employer ought to have ensured that the plaintiff did not in the course of his labouring work do work which seemed to him, and indeed to others, to be within his capacity. In effect, he should have been prevented from doing work which he felt at the time he was able to do.
- [33]Reference was made to the fact that it was recognised that overuse injuries could occur from repetitive work practices. But that is talking about assembly line type work, or other work where particular parts of the body are being used to perform a particular action constantly in the course of the employment. An example was given of telegraphers, and I am familiar with other trials, and reported cases, where issues about work of that nature have been raised. But that is not the sort of work the plaintiff was doing. Even when he was constantly doing a particular kind of job, such as repairing leaks or maintaining valves, he would need to drive to a particular site, unload equipment, do the necessary digging which involved a range and variety of movements, do the actual repair or maintenance work that was required, which involved doing things which so far as the evidence before me goes was completely irrelevant to the later development of arthritis, and then fill in the hole, which would largely not involve putting any shocks or pressure on the wrist.
- [34]The problem in this case so far as the plaintiff was concerned really in my opinion did not arise out of any repetitive nature of the work, in the sense in which that term is ordinarily used;[15] rather the situation was that in the course of his work from time to time he used a crowbar or hammer or shovel in a way which involved striking something hard with it, in order to break it up or dig it out. Each time such a blow was struck there was some shock to the wrist, of no significance in itself, but producing a cumulative effect over decades. That could presumably only have been avoided if the plaintiff either did not use a shovel or a crowbar or a sledgehammer at all, or greatly reduced his use of it.
- [35]There is simply no evidence upon which I could conclude that a reasonably careful employer ought during the relevant period (that is from 1978 to 1998) to have identified the use of a crowbar, hammer and shovel to the extent and in a way that the plaintiff was using it as posing any particular risk to the plaintiff. The evidence suggests that arthritis of the wrist is rare, and is commonly seen as constitutional, or a result of specific trauma. Dr Gillett when asked said he did not particularly see labourers coming along with this condition, and Ms Foster was not aware of any studies linking the work of a labourer involved in digging holes and that sort of thing to the development of this or any particular medical condition. There was no reason to think that the plaintiff in this respect was working any differently from any other labourer, and presumably they do not all develop arthritis in the wrist.
- [36]That suggests that, from the point of view of an employer looking at this situation in 1978, it was very unlikely that the plaintiff would develop this problem as a result of his doing the ordinary work of a labourer in the way in which the plaintiff was doing it. That does not mean that such an injury was not foreseeable, but the likelihood of the injury is relevant to the response to the risk of a reasonable employer. Indeed, I think in the context of the present risk the situation goes even further; the position in this case is that it is not shown that the risk was one which a reasonable employer would even have recognised, either in 1978 or at any subsequent relevant time. By 1998, and indeed probably for a few years before then, it was doubtless too late.
- [37]The plaintiff’s case was really that since 1978 it has been negligent for employers to employ labourers to do work that they felt that they were able to do, because of the risk of their developing arthritis in the wrist as a result of their doing that work, and work should have been arranged so that their wrists were not subjected to jarring from the use of crowbars and also hammers or to some unspecified limited amount of jarring only. There was really nothing special about the labouring work that the plaintiff was doing, and no reason why if the plaintiff’s argument is correct it would not apply to any labourer who developed arthritis of the wrist. I am entirely unpersuaded that reasonable care required an employer to prevent a labourer from doing such work during that period.
- [38]I am not persuaded that this is a situation where the plaintiff needed further assistance, either additional manual assistance or the assistance of equipment, and that was not provided. There is no evidence that anyone except possibly Mr Kahler would have thought that the plaintiff was unable to do the sort of work that he was being asked to do during this period. The evidence is that the plaintiff was regarded as a good worker, and never complained about it, but there is no suggestion that the plaintiff was doing work that other labourers would refuse to do, or that there was anything unusual in the way in which the plaintiff did his work which would have had the effect of exposing his wrist to some unusually large number of shock.
- [39]During the earlier period there was no doubt less use made of mechanical equipment; on the other hand, the gangs had two and three man gangs then,[16] so there would have been fewer occasions when the plaintiff was working on his own. There were at the time on the evidence two backhoes available for 15 gangs. No doubt there were occasions when a gang wanted a backhoe, and one was not immediately available. But there is no evidence that in those circumstances what happened was that the gang members were required to undertake unduly strenuous manual work. Either more of them would be brought in in order to spread the effort more thinly, or the job could simply have been left until a backhoe was available. There is no evidence that the number of backhoes was inadequate given the overall level of demand for jobs where backhoes were required.
- [40]There was evidence, from Mr May, that more recently more equipment has been made available in order to minimise the amount of physical activity required: p. 168. But I am not persuaded that that was a response, timely or otherwise, to any recognition that otherwise the employees were being required to undertake an unreasonable amount of work. Mr Reiser said and I accept that people were not pushed to their limit (p. 138) and that the work was not so demanding that people could not cope: p. 142. Mr Batchelor said that no one was pushed to work excessively (p. 148) and that he had never seen anyone working excessively: p. 149. I accept that a fair bit of digging was required, although the estimates of how much time was actually spent digging varied somewhat. Mr Batchelor suggested 50 percent of the time was spent actually digging (p. 153), whereas Mr Badyk estimated that it might take 20 to 30 percent of the day: p. 175. Much of the digging would have been easy digging in sandy soil.
- [41]In the earlier period assistance was more readily available in the form of other employees: p. 177. More recently there has been greater emphasis on the availability of mechanical assistance, rather than making additional people available. The plaintiff did not work too fast (p. 149), and he was careful and not reckless in the way he did his work: p. 59. If he thought he needed help, it was sought and provided: p. 20; p. 97.[17]
- [42]Counsel for the plaintiff alleged an absence of proper training and guidelines in manual handling techniques. There was a course provided some time ago by Ms Foster in relation to manual handling. The fact that the plaintiff did not at this stage have any clear recollection of it is not to the point. That course however was really irrelevant, because it was concerned with lifting, and other things which placed particular strain on the back. The plaintiff was not doing anything which placed any particular strain on his back, and in those circumstances the course, and indeed any obligation to give instructions in relation to such manual handling, is of no relevance. It is also unsurprising that he did not retain much from it. I do not think that this consideration is really relevant in the circumstances of this case. This is not in my opinion a case about effective manual handling techniques. Overall I am unpersuaded that any negligence or breach of contract has been proved.
Breach of statutory duty
- [43]The amended statement of claim refers to s 28(1) of the Workplace Health and Safety Act 1995. That Act commenced on 1 July 1995, just under three years and three months before the first event which brought the plaintiff’s condition to light. There is no evidence to support the view that the plaintiff’s arthritis was caused or indeed materially contributed to by what happened between 1 July 1995 and 25 December 1998; the medical evidence is rather that by the latter date the plaintiff had established arthritis in the wrist which had arisen over a long period of time. The plaintiff’s case was really directed to liability for that arthritis, rather than liability for any temporary aggravation of it in either of the incidents. Nevertheless, such an aggravation might itself amount to an injury for the purposes of this Act.
- [44]At the relevant times s 28(1) provided: “An employer has an obligation to ensure the workplace health and safety of each of the employer’s workers at work.” This provision gives rise to a civil cause of action: Schiliro v Peppercorn Childcare Centres Pty Ltd (No 2) [2001] 1 Qd R 518, which also establishes that a defendant may escape liability by establishing a defence under s 37 of the Act.
- [45]Counsel for the plaintiff did not rely on this cause of action in the written submissions, and accordingly I was not referred to any compliance standard or advisory standard alleged to be relevant. In the absence of such a standard, it is sufficient for the defendant to prove that it choose any appropriate way and took reasonable precautions and exercised proper diligence to prevent the contravention. In Schiliro the court at para [71] gave an analysis which showed that the employee in that case had taken a form of managed exposure to the risk and the taking of reasonable precautions in the exercise of proper diligence to prevent the contravention. In the present case, in my opinion the employer, by not putting the employees under pressure to hurry or to perform tasks which were beyond their apparent physical capabilities, and by making assistance, either additional manual assistance or mechanical assistance, available effectively on demand, provided reasonable precautions in the exercise of proper diligence to prevent the contravention of s 28. In my opinion the defendant has shown a defence under the 1995 Act, regardless of any considerations arising under the WorkCover Queensland Act 1996.
- [46]Counsel for the defendant also relied on s 312 of the 1996 Act. That provision commenced on 1 February 1997; it was repealed on 1 July 2001 by the WorkCover Queensland Amendment Act 2001. By s 588, the provision continues to apply in respect of an injury to a worker by an event happening before 1 July 2001. It would therefore apply to both of the specific events referred to earlier. The Act also did not apply to injuries suffered before the commencement of the Act, and accordingly cannot I think apply to the underlying condition of arthritis, although it could apply to the aggravation of that condition by the two particular events.
- [47]Section 312(2) at the relevant time provided as follows: “If the claimant relies exclusively on a failure by the employer to provide a safe system of work and fails to prove the matter mentioned in subsection (1)(a), the court must dismiss the claim.” Subsection (1)(a) provides as follows: “In deciding whether a claimant is entitled to recover damages not reduced on account of contributory negligence, or at all, all courts must have regard to whether the claimant has proved … (a) that the employer has made no genuine and reasonable attempt to put in place an appropriate system of work to guard the worker against injury arising out of events that were reasonably readily foreseeable.”
- [48]The question of whether the plaintiff relies exclusively on a failure to provide a safe system of work depends on the substance of the case advanced, rather than a literal reading of the pleadings: Karanfilov v Inghams Enterprises Pty Ltd [2003] QCA 242 at [4], [63].
- [49]The plaintiff however appears not to have submitted that s 312(1)(a) does not apply, that is to say, that the plaintiff’s case was in substance other than one which relied exclusively on the failure of the defendant to provide a safe system of work. The plaintiff’s submission was rather that the defendant had not relied on any system of work, had indeed made no attempt to put in place an appropriate system of work to guard the worker against injury, and that therefore paragraph (a) had not been satisfied. It was submitted that no training was provided about the possibility of injury from repetitive work or about the adoption of work practices that might avoid injury that arises from such repetitive work. The plaintiff characterised the defendant’s attitude as one where it was not required to do anything to safeguard him against the risk of injury from his ordinary labouring job.
- [50]I do not think that that is a correct characterisation of the position of the defendant. The defendant made assistance, both from other employees and mechanical assistance, readily available if required by the plaintiff. The plaintiff was not pressured to work beyond his apparent capacity. That is not a particularly sophisticated system, but as Schiliro (supra) shows systems may be sufficient even if they are straightforward, and not particularly sophisticated. In circumstances where the question of whether doing ordinary labouring work over a prolonged period of time involves a risk of arthritic degeneration is controversial anyway, a system of work is not necessarily one where there is no genuine and reasonable attempt to guard the worker against injury simply because it does not take precautions specifically to deal with that risk. As I have indicated, I am not persuaded that the risk was a large one. In my opinion, the system as I have outlined it was a genuine and reasonable attempt to put in place an appropriate system of work to guard the plaintiff against injury. Accordingly the defendant has a defence under s 312(2) of the Act.
- [51]The difficulty for the plaintiff in this case is that in order to succeed he really needs to show that the duty on the defendant, whether arising at common law or by statute, required it to put in place a system which would prevent the plaintiff from doing some work which he felt was within his capacity.[18] The effect of the plaintiff’s evidence is that, when he has been working doing labouring work, he has been doing work which he felt was within his capacity: p.126. Nevertheless, this led to the development of arthritis in the right wrist. Assuming that could have been prevented by reducing the amount of micro-trauma applied to the right wrist, for practical purposes that means stopping the plaintiff from doing some of the work that he would otherwise have done and which he felt was within his capacity. I have great difficulty in seeing how such a thing could be done.
- [52]Preventing a person from doing work which he felt was beyond his capacity might be a plausible enough course, indeed it is a natural extension from not requiring a person to attempt work which he felt was beyond his capacity. A subjective assessment of that nature provides a convenient natural limit for effort reasonably required. But it is difficult to identify a lower limit of effort, a limit which is below that limit but which would provide reasonable protection against excessive micro-trauma, let alone identify any method by which such a limit could be enforced, short of not having the plaintiff do work involving digging with shovels or crowbars at all. I have great difficulty in seeing how a person could be trained not to do some work which he felt he was capable of doing.
- [53]The matter is complicated by the fact that it was not apparent from the evidence what level of work of this nature could be attempted safely in the circumstance. It may be that any amount of work of this nature over a long period involved the same slight risk of developing arthritis in the wrist. I am quite unpersuaded that there is any practical workable system by which, with any amount of training and supervision, steps could have been taken to have safeguarded the plaintiff against this injury, other than effectively just not letting him do manual digging at all. I do not accept that there was any obligation to do that, either at common law or under the statute. In my opinion the plaintiff is not entitled to succeed on the basis of breach of statutory duty either. There must be judgment for the defendant in the action. Nevertheless, I will make findings as to quantum on a precautionary basis.
Quantum
- [54]I will assess damages on the basis of the whole of the plaintiff’s wrist problem; if some other assessment is required it may be that this assessment can be modified, or will have to be done again on the basis of the particular assessment required.
- [55]The plaintiff is now 58 years of age. As a result of the two specific incidents the plaintiff’s wrist was temporarily quite painful, but after the pain settled his wrist was generally not particularly painful. He said that his wrist is now okay, by which I take it that it is not particularly painful: p. 115. That is because he is very careful about what he does with it, and does not do any manual tasks which require the use of the right hand, such as mowing: p. 116. He is naturally right handed: p.130. He is however still able to cope with leak detection work, although he does not do any other kind of work at all now. The position seems to be that the wrist under normal circumstances is not particularly painful, but it interferes with his ability to use his hands in a normal way. From time to time something happens to stir up the wrist, and then it is painful for a time before it settles again. I accept that the loss of function associated with this is the equivalent of six percent loss of use of the arm. There is a risk that the condition will get worse, probably a substantial risk that at some point in his life it will deteriorate further, but as long as he continues to be careful with it there is not much risk that he will require a fusion to reduce the pain.
- [56]I think the plaintiff has therefore suffered some significant loss of function of the dominant hand, but it is ordinarily not particularly painful. It would interfere with some activities, although he had given up playing football anyway. Counsel for the defendant in written submissions conceded an assessment for pain and suffering and loss of amenities in the sum of $30,000, and I am content to adopt that figure. Of this I would apportion $10,000 to past loss, and allow interest of two percent per annum for six years.
- [57]There were particular periods when the plaintiff was off work as a result of the condition of his wrist, during which he was paid weekly benefits totalling $5,324.78: Exhibit 9. Presumably he was not rostered on call at this time so there would have been some loss of this additional income, although it is not clearly identified in the evidence. Since the second incident the plaintiff has certainly not been rostered on call to do after-hours maintenance work, although he is still occasionally called out after hours, presumably just to do leak detection work if that is required: p. 112. It is also likely that he would do less ordinary overtime as a result of his no longer doing ordinary maintenance work.
- [58]The plaintiff sought to show economic loss by a comparison between his earnings and the earnings of another employee of the defendant, Mr Burgess, who is also employed as a leak detector but who is also able to undertake maintenance work, and is on call one week in four for out of hours repair work: Exhibit 4. Counsel for the plaintiff prepared a schedule showing the average net weekly income of Mr Burgess, based on Exhibit 3, and the average weekly income of the plaintiff, based on Exhibit 8. This shows that up to the end of the 2000 financial year Mr Burgess was earning a small amount more per week on average, but that difference substantially increased thereafter. It is not immediately obvious however why there should be any difference in the average weekly earnings prior to the second incident; up until then the plaintiff was apparently still doing some maintenance work as well as leak detection, and was still available for call-out one week in four.[19] There is no evidence of a comparison of their earning levels prior to the first incident, and on the whole I am not persuaded that the difference in income prior to June 2000 is attributable to any injury on the part of the plaintiff, rather than simply reflecting a difference in earning patterns. I am not persuaded that there was any such economic loss prior to June 2000. In addition, the difference between Mr Burgess and the plaintiff in the period after this cannot in my view be taken at face value, and needs to be discounted so that only the increase in the difference in earnings is taken into account.
- [59]Approaching matters on that basis, I would deduct $67.70 from the average weekly loss in the period since the second incident. The schedule referred to shows an average weekly loss in the four financial years commencing 1 July 2000 of $217, and after the deduction of $67.70 there is a balance of $149.30. I will round that up to $150 for ease of calculation, and allow the plaintiff $150 loss of income per week from 16 June 2000 until the date of judgment, a total of 228 weeks. This produces a figure of $34,200. Because of the way this figure is arrived at, it would take into account any other tendency for the plaintiff to earn less than Mr Burgess, any overtime or call-out work the plaintiff is still doing (p. 112). and the vicissitudes of life; there is no reason to think that the plaintiff was otherwise more susceptible to these than Mr Burgess was. I therefore assess past economic loss in the sum of $39,525.[20] I would allow interest at the rate of 4% per annum for 4.4 years.
- [60]With regard to future economic loss, it was submitted that this was running at $250 net per week, on the basis of the difference in the last two financial years. That figure needs to be reduced for reasons referred to earlier, and I think in relation to future loss there should be some further discounting because of the possibility that the plaintiff would not have been continuing to work with the same degree of vigour anyway as he got older and approached retirement age. He may well have given up the on-call work at some point anyway; it was apparently a matter of choice as to whether or not a particular employee would go on that roster. The plaintiff said he expected to work until at least 65 (p.115) and on that basis I will allow future economic loss over a period of seven years. Seven years loss at $150 per week discounted at five percent comes to $46,350[21] but I think there should be some discounting from that figure to allow for the vicissitudes of life and for the prospect of call-out work diminishing over time as the plaintiff got closer to retirement age anyway.[22] In all the circumstances I assess future economic loss in respect of actual loss of income from his employment with the defendant of $40,000.
- [61]It was also submitted that there should be a global figure to allow for the fact that, if the plaintiff were to lose his employment with the defendant for any reason, he would have no real prospect of obtaining alternative employment. The plaintiff is currently working in a fairly specialised activity, leak detection, which is probably only required by the defendant, at least in the area in which it operates. It would not be a transferable skill. On the other hand, there is no reason to think that the need for leak detection is going to go away, or that the defendant would cease to be responsible for the water distribution system in the area. Even if it did, someone would have to be responsible for it, and whoever it was would need two leak detectors, preferable experienced ones. The plaintiff is highly regarded by the defendant, and there is no reason to think that the plaintiff’s employment is in any sense insecure.[23] Although Mr May was not able to guarantee the plaintiff’s position, the points that he made, that there has not been a significant reduction in employees, and that the service provided by the water supply department is a fairly basic service (p. 169) are I think of significance.
- [62]The real issue in my opinion is whether some allowance should be made for a very small risk that the plaintiff might lose his current employment, or whether that risk is so small as to make any such allowance unrealistic. On the whole, bearing in mind that the relevant period is only seven years, the plaintiff is well regarded, the expressed attitude of the defendant, that the defendant is a local authority, and the service that he is providing is a very basic one, I do not think that there is any real possibility of the plaintiff’s losing that employment prior to retirement, and it is not appropriate to make any allowance on this basis.
- [63]A claim for medical expenses in the sum of $141.95 refundable to the Health Insurance Commission (Exhibit 1 document 20) and a claim for $81 out-of-pocket expenses (Exhibit 5) were not contentious, and I will allow them. There were also medical expenses, physiotherapy and pharmaceutical costs paid for by the defendant, totalling $1,288.19: Exhibit 9. I will allow these amounts as well. There were no other amounts claimed.
- [64]The assessment of damages may therefore be summarised as follows:
| $30,000.00 |
| $ 1,200.00 |
| $ 39,525.00 |
| $ 6,956.00 |
| $ 40,000.00 |
| $ 1,511.00 |
| $ 19.00 |
Total | $119,211.00 |
Less amount refundable (Exhibit 9) | $ 6,613.00 |
Balance | $112,598.00 |
- [65]For the reasons given earlier however there will be judgment for the defendant in the action. I will hear submissions in relation to the question of costs.
Footnotes
[1] It was late at night and he thought it would be hard to get a machine in, and the others were at the other job; but his evidence was that he thought he could do the job himself: p. 99.
[2] Plaintiff p.119; see also p. 146, p. 165.
[3] This does not seem to be recognised by Mr Kahler, who focussed on the position after 1995: p. 81.
[4] Most of the documentary evidence is contained in a bundle of documents which became Exhibit 1. These documents are numbered as documents within that exhibit, and it is convenient to refer to the documents within Exhibit 1 in this form.
[5] Dr Gillett thought that he and Dr Robinson were essentially saying the same thing, although perhaps Dr Robinson had a more eloquent technical explanation for it: p.35. In any case, he would defer to Dr Robinson about the detail of something like this: p. 37.
[6] This suggested that there was no stretching of this particular ligament: Dr Walters did not agree with Dr Robinson’s approach: p. 186.
[7] On the other hand Dr Gillett thought that there was inevitably some wear and tear just through the nature of the work a labourer did: p. 30. At some point as a result he would not be able to work as a labourer: p. 31.
[8] The timeframe ran from the earlier incident, in 1998: p. 183. He conceded in oral evidence that this was essentially a matter of surmise: p. 180.
[9] The plaintiff said he never complained: p. 119.
[10] See the evidence of the plaintiff at p. 129.
[11] Plaintiff p. 123; p. 129; Riser p. 137; Batchelor p. 147; Badyk p.192.
[12] Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18 at 25.
[13] On this I prefer the evidence of Drs Gillett and Robinson to Dr Walters.
[14] Plaintiff p. 126.
[15] That leads to conditions such as tendonitis and soft tissue injury: see Thomas Borthwick & Sons (Aust) Ltd v Stapleton [1996] QCA 185; Exton v George Weston Foods Ltd [1998] QSC 214; Jamieson v Charge Card Services Ltd [1988] QSC 468.
[16] Plaintiff p. 14; Badyk p. 176.
[17] There was evidence that backhoes and other machinery was readily available if requested: Batchelor p. 147; May p.165; Riser p. 137. It was up to the individual to seek assistance: May p. 170; Badyk p. 195.
[18] Mr Kahler spoke about the problem of letting people set their own boundaries: p. 83, p. 85, p. 89, p. 92.
[19] Exhibit 8 shows net weekly income in the post-accident period to 30 June 1999 which is virtually the same as the net weekly income in the pre-accident period for that financial year in Exhibit 7.
[20] $34,200 + $5,324.78.
[21] With a multiplier of 309.
[22] I am taking this into account both in fixing the figure of $150 per week, and in some further reduction at this stage; I do not consider that the former alone would adequately reflect its significance.
[23] The plaintiff has been told he has a job until he retires: p. 125. See also May p. 165.