O'Doherty v Gold Coast City Council
[2008] QDC 195
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- O'Doherty v Gold Coast City Council[2008] QDC 195
- Add to List
O'Doherty v Gold Coast City Council[2008] QDC 195
O'Doherty v Gold Coast City Council[2008] QDC 195
![O'Doherty v Gold Coast City Council [2008] QDC 195](/judgmentview/image?name=317164.001.png&id=317164)
DISTRICT COURT OF QUEENSLAND
CITATION: | O'Doherty v Gold Coast City Council [2008] QDC 195 |
PARTIES: | ANTHONY DENIS O'DOHERTY (Plaintiff) v GOLD COAST CITY COUNCIL (Defendant) |
FILE NO.: | 416 of 2008 |
PROCEEDING: | Trial |
DELIVERED ON: | 12 August 2008 |
DELIVERED AT: | Brisbane |
HEARING DATES: | 30, 31 July 2008 and 01 August 2008 |
JUDGE: | Judge Brabazon QC |
ORDER: | Judgement for the Plaintiff for $264,680.00, together with costs to be assessed on the standard basis from 30 June 2006. |
CATCHWORDS: | TORTS – NEGLIGENCE – reasonable foreseeability of risk of injury – personal injury – employee suffered injury in course of duties TORTS – NEGLIGENCE – DAMAGES – personal injury – assessment of quantum |
COUNSEL: | Ms J McClymont for the Plaintiff Mr M Howe for the Defendant |
SOLICITORS: | Sciacca’s Lawyers for the Plaintiff Minter Ellison for the Defendant |
The Issues
- [1]Mr O'Doherty says that he was injured while working for the Gold Coast City Council, and that the Council was at fault, and liable to compensate him. The Council denies that. In any case, it does not agree about the amount of any damages he might be awarded.
Liability
- [2]In 2003, Mr O'Doherty was employed by the Council as a relief worker at its waste transfer stations and weighbridges. By September 2003, he was working at the Reedy Creek weighbridge. The pleadings admit that he started work there on 1 May 2003, and it seems likely that he actually began full time work in mid August. His job was to check the vehicles as they drove over the weighbridge into the waste station. Some vehicle drivers had to pay a fee. His job was to take the money from the hand of the driver, and hand back a receipt and any change. Other vehicles used an account, and the driver would hand in a docket. Others, particularly Council vehicles, entered without handing over any payment or documentation.
- [3]By September 2003 Mr O'Doherty started to get discomfort in his right arm and shoulder. He spoke to his supervisor. The symptoms got worse. He had discomfort in his neck. It got so bad that he could not continue. He stopped work on 21 October 2003. He has not worked since. He says that his difficulties were caused by the way he had to work at the weighbridge, and that the Council should have realised that danger, and taken steps to avoid it.
- [4]By mid 2003 Mr O'Doherty was 50 years old. After leaving school he always had a job, either self employed or working for others. He liked working outdoors. He became a concreter. He got a job with the Council in the 1980s. He twice hurt his lower back, around 1988, so the Council gave him the lighter work, at the transfer stations and weighbridges. Ms Madonna Forster, an occupational therapist retained by the Council, thought that he should not do work requiring stooping or bending, and that his lifting weights should be limited. He was redeployed into waste station attendant duties.
- [5]He had some health difficulties. In 2000 a heart valve was replaced, and he had to continue taking warfarin to thin his blood. Ms Forster noted that, “The advent of ongoing pain resulted in fluctuations in blood consistency and difficulty regulating medication. This process appeared to result in fatigue and limitations in endurance.” However, it should be noted, it was not suggested here that he had ongoing heart problems which caused him any difficulty. He denied that he had any real heart problems, and that appeared to be accepted. He had two melanomas on his back, which were removed in 2002. There is no evidence that they are presently a danger to him. He has gout which is treated with a prescription drug.
- [6]He continued to have some intermittent lower back pain, but it was not a serious problem. He enjoyed golf, fishing, boating, and car driving. He did the usual jobs around his house. He was married, with no children.
- [7]He was well regarded by the Council as a keen worker. He was proud of some favourable comments he received about his work. He was anxious to do a good job. He appears to be a straightforward, honest man. There was no suggestion here that his evidence was other than honestly given.
- [8]He is not a tall man, a bit less than 5 feet 8 inches, and of solid build. By mid 2003 he weighed around 94kgs.
- [9]In the three years or so before mid-2003, he worked at different places on the Council’s waste stations. He was given a small truck to drive around to the unsupervised stations. He did work such as cleaning up after people who had not put rubbish in the bins. He managed that work without difficulty. He sometimes lifted transfer lids, and swept up at other stations. He worked in the weighbridge office at Suntown.
- [10]The weighbridge office at Reedy Creek was rebuilt, before Mr O'Doherty started work there. It is shown in the photographs. In effect, it is a small shed built alongside the weighbridge. The weighbridge itself is a concrete ramp, with raised edges. There is no evidence about the width of the raised edge, but the photographs would indicate it to be around 300 mm wide. The width to drive on is quite wide compared to the width of an ordinary car – see Dr Low’s photo 1.
- [11]Unlike other weighbridges where Mr O'Doherty had worked, without difficulty, the edge of the office was not built as close as possible to the edge of the weighbridge. There was a gap which was filled in by two planks, at the same height as the edge of the weighbridge. The result was that a distance of 695mm separated the wall of the office from the surface of the weighbridge on which the vehicles could be driven. That is, the two planks, the small gap between them and the weighbridge, and the raised edge of the weighbridge, made up a space of 695mm. The trafficable surface of the weighbridge was somewhat below the floor level of the office.
- [12]The side of the office beside the weighbridge had a wall from ground level up to about waist height. On top of the wall there were sliding glass windows and fixed metal bars. The attendant had to deal with the drivers of the vehicles by reaching out between the bars. The bars were there for security reasons. A good deal of money accumulated in the office safe.
- [13]Usually, the attendant would remain seated. On the attendant’s left there was a desk containing a computer, in which the details of each transaction had to be entered.
- [14]Vehicles of different sizes came to the weighbridge station. For an ordinary car, the attendant would reach out and down. For the bigger trucks, the attendant would have to stand up and reach up towards the truck driver. Occasionally, a driver would get out of the vehicle and approach the office directly. That was discouraged, for security reasons. Because the weighbridge was wide (3520mm), it was possible for a driver to stop completely out of reach of the attendant, even when the driver’s door was in line with the attendant.
- [15]At Reedy Creek, the workload was less than at busier stations. Some days, and parts of days, were busier than others, depending on the time of day and the weather. Mr O'Doherty worked a 10 hour day. An analysis of the computer records showed that he would put his arm and hand out towards the driver of a vehicle, on average, around 10 or 11 times an hour. That would mean a movement about every 5 minutes or so. At times there would be gaps between vehicles, so that he could read a book. Other times, no doubt, he was busier. Overall, he would use his right arm to reach out around 100 times a day.
- [16]Mr O'Doherty explained that sometimes he would reach out with his right arm between the bars, to the extent that the bars pressed up against his upper arm, near the shoulder.
- [17]Mr O'Doherty said that he had no difficulties in working at the other Council weighbridges.
- [18]Mr O'Doherty, and the Council, did not know that he had degenerative changes in his neck and shoulder. He also had what the orthopaedic surgeons described as a C-type acromion bone in his shoulder. That is, the bone had a curved shape, an anatomical variant found in 15-20% of the population. It predisposed him to a shoulder injury, particularly when reaching up and out with his arm.
- [19]The orthopaedic surgeons agree that he was vulnerable to an injury to his right arm and shoulder. That was because of the fixed bars, his stocky build which restricted how far he could reach, his age and existing degenerative changes in his neck and shoulder, the fact that this office had been built further away from the weighbridge, the C-type acromion bone in his shoulder, and the need for him to reach up towards the drivers of the bigger trucks.
- [20]The result was a very painful shoulder, right arm, and neck, including pins and needles down to his hand. He was forced to stop that work. It can be safely concluded that his work did cause him an injury. The majority of the medical experts were of that view. Dr Low had been of the view, that his work was not the cause of his symptoms. He had been to inspect the weighbridge, and had not observed any stretching. If there was stretching, he accepted that there was a heightened risk of physical injury, at least causing some soft tissue strain in the region of the muscle.
- [21]Mr O'Doherty himself spoke about some other possible causes of his difficulties. On 28 October 2003 he spoke about his discomfort to the occupational therapist, Ms Forster. According to her note,
“… Tony says he has been working at Reedy Creek Tip and doing lots of overtime. He says he believes the repetitive sweeping involved has caused the shoulder problems. He said the group have discussed the problems and blowers are going to be supplied to reduce the sweeping involved. Tony said everyone who works at Suntown Tip raves about the changes made. …”
- [22]However, the medical experts were inclined to discount the likelihood of sweeping movements causing his injuries.
- [23]Mr O'Doherty also said that he had lifted heavy transfer lids at work, before going to Reedy Creek. Dr Walters and Dr Johnstone thought that lifting the lids could have caused his injuries.
- [24]After he stopped work, Mr O'Doherty told the Pain Logic staff that he recalled experiencing some lower neck pain, before the shoulder pain appeared. He noticed it particularly while driving a Council truck. He was sent to see Dr Boys, an orthopaedic surgeon, on 26 November 2003. He told Dr Boys that he had initial discomfort in his shoulder in about March 2003, at a time when he was lifting metal transfer lids. He recalled no injury at that time. He described intermittent discomfort, with a deterioration of symptoms about early September 2003.
- [25]These earlier complaints were signs of degenerative changes. They were not serious enough to stop him doing his job. They do show, with hindsight, how vulnerable he was to some more serious injury.
- [26]The evidence points to the weighbridge as being the most likely cause of his present difficulties. He said that the greater difference between the bars and the vehicles, because of the two planks, made it harder to reach out to the drivers. That is where his symptoms became serious. There is no reason to doubt Mr O'Doherty’s account of the developing symptoms in his neck, shoulder and arm, while at the weighbridge. He commenced full-time work there in August 2003, and first complained to his supervisor in September. The neck and shoulder problems got worse, up to 21 October 2003. His work injury report of 24 October referred to a neck and shoulder strain while working at the weighbridge.
- [27]It was submitted for the Council, that there was no evidence that it had been negligent, or had breached any duty, in providing a safe system of work for Mr O'Doherty. It was pointed out that he did not raise any difficulty with his supervisor, Mr Ian Aves, with whom he had a very good relationship. He had mentioned in passing to Mr Aves that his shoulder was getting sore, but he kept on working. Otherwise, he told his supervisor that he was happy with the work, and that he was capable of doing it.
- [28]Indeed, Mr O'Doherty had told his supervisor that he liked his work, and was capable of doing it. It was only when he was close to finishing work, that he had trouble with his arm. As Mr O'Doherty put it:
“I was just talking to Ian. Well I took it just as a conversation. He and I were talking and I mentioned it to him.”
- [29]Mr O'Doherty enjoyed his new duties at the weighbridge. He did not give his supervisor any details of what was causing his difficulties with his neck, shoulder and arm. He did not tell the supervisor that he had difficulty reaching out. It seems that his supervisor had a good opinion of him, and gave good reports about him to the Council.
- [30]It was not suggested that the Council should have all employees x-rayed, to look for anatomical differences or pre-dispositions to injury.
- [31]In August – October 2003, an observer of Mr O'Doherty at Reedy Creek could have seen the increased distance from the weighbridge to the attendant’s window, the fixed bars, the wide weighbridge with no markings to show where a vehicle should stop, the different types of vehicles, including large trucks, and the need for him to reach outwards and upwards, sometimes with his upper arm pressed against the bars.
- [32]If the Council had consulted medical experts about the sort of work that Mr O'Doherty was doing at the Reedy Creek weighbridge, then the evidence here would indicate advice that reaching and stretching with the arm upwards and outwards had the potential to cause a shoulder injury. That would be more so in someone with a C-type acromion, and in a man 50 years of age.
- [33]Coincidentally, the Council received, on 17 March 2003, a report about another employee, at the Suntown weighbridge.
- [34]In late 2002 to early 2003, the Council employed a Miss Tucker who worked at the Suntown tip. She did the same job as Mr O'Doherty. She developed painful symptoms in both arms and her neck. She attributed at least some of those symptoms to the stretching and twisting of her arm to collect money. Her complaints, and the reports of her medical advisers, are summarised here in Dr Low’s report.
- [35]Miss Tucker’s complaints came to the attention of Mr Adrian Smith, the co-ordinator of waste management for the Council. He invited a delegation from Queensland Motorways to visit the Suntown tip on 17 March 2003. The purpose of the visit was to advise the Council on how they could alter the design of the booth, to prevent manual handling injuries to the attendants at that workplace. The delegation included Mr B J Tombs, a Workplace Health and Safety Adviser employed by Queensland Motorways for 18 years. He had completed a brief course years ago, with recertification every 5 years. He wrote a report containing these observations:
“Working Postures
● Operator has to reach between bars and take payment. Sometimes overstretching if vehicle only slightly away from the window. On two occasions the operator’s face was pressed against the steel bars as she stretched with her right hand to reach a driver’s hand.
- - -
Risks Identified
● Operators are required to use extended reach to collect tipping fees and return receipts because of the height of the service window.
- - -
Recommendations
● Lower the service area to eliminate the need to overstretch when serving cars …
● The steel bar should be removed from the service window. If there is a security reason for the bars to remain out of working hours then consider giving the section on the service window the ability to slide across and clear the window during work times.
● Encourage operators to always stand and serve customers to prevent any overreaching injuries.”
- [36]That report came to the attention of Mr Mark Dank, a Council Officer. He asked Ms Forster, the occupational therapist, for her comments. She wrote to him on 27 May 2003:
“… It would be prudent from a commercial perspective to review the problem with a risk management approach by completing a full job safety analysis and documenting the consideration of the hierarchy of intervention. If this process is completed the question of taking money or invoicing regular customers can be fully explored prior to introducing physical interventions which may solve one problem e.g. restricted reach but may create another e.g. reduced security and greater possibility of physical assaults. This process can also include the function of the gate.
It would be prudent to include management and operational staff from the refuse area, one representative from safety, one representative from workers’ compensation and one personnel from building maintenance or building design to give feedback on what is feasible and rough costings.”
- [37]There is no evidence that the issue was taken any further by Council. Ms Forster did not know of any review being done.
- [38]So, by May 2003, the Council had a report which showed that the position of a similar work station, and the presence of steel bars, might lead to a situation where the Council’s attendant overreached towards vehicles. Dr Low’s report, prepared for the purposes of this trial, says that there was no connection between Miss Tucker’s complaints and the structure of her work station. In his opinion, in that report, the proposed alterations to the height of the wall of her booth, were unnecessary. However, the weight of the medical evidence here is that stretching can cause injury – even Dr Low conceded that. The interest taken by Mr Dank and Ms Forster was appropriate, but the Council took no further action. Mr Toombs’ report was an accurate and appropriate warning that overreaching was a risk to the attendants.
- [39]Therefore, it has been demonstrated that there was a foreseeable risk of injury to Mr O'Doherty, and that the Council did not take steps to avoid the injury. That could have been done – the workplace could have been redesigned, or Mr O'Doherty could have been moved. The Council is liable to compensate Mr O'Doherty for his losses.
The Assessment of Damages
- [40]Almost 5 years have passed since Mr O'Doherty stopped work. He has not worked again. He would like to work, but sincerely believes that he cannot do so. Pain persists around his arm, neck and shoulder. It is aggravated by any activity, apart from the lightest work. He lives quietly at home, in a village which does not require any outdoor gardening. His only recreation is lawn bowls, which he can manage. He sleeps badly, is irritable and regrets the loss of his earlier activities. He can only drive a car for short periods of time.
- [41]Dr Boys and Dr Burke felt that the temporary aggravation of symptoms in his neck and right shoulder had ceased long ago.
- [42]Dr Johnstone operated on his shoulder, in an attempt to relieve the problem. He said that the result was good, but not excellent, and he noted the ongoing symptoms suffered by Mr O'Doherty. He thought there was a 9% whole person impairment with respect to his neck, and 2% whole person impairment with respect to the right shoulder. He explained that pain could continue even though the problem had been repaired surgically.
- [43]Dr Johnstone’s surgery, and an injection into a nerve sheath on his neck, relieved his symptoms somewhat.
- [44]It should be accepted, for whatever reason, that he has genuine, permanent, and serious levels of discomfort around his neck and shoulder, when he tries to do any more than the lightest tasks. Whatever the precise cause of those symptoms, they are genuine, and a real barrier to his happiness and ability to earn an income. It may be that his emotional responses to his disability have contributed to the symptoms from which he suffers. The staff at Pain Logic, in March 2004, observed his difficulties with anger management, perfectionism, anxiety, and depression.
- [45]Dr Walters considered that there was some ongoing work related contribution to his injury, which he quantified at 3% of the whole person.
- [46]It was conceded by Ms McClymont that he did have some capacity to earn an income. It is not great. The Council could find no other place for him. See its assessment – exhibit 13.
- [47]The medical experts were not able to make any prediction, about when he might have developed symptoms because of the degeneration in his neck and shoulder. It is necessary for the court to weigh up that chance. At most, he would have had 15 years to work until he reached age 65. Because of his general health, and the passing of time, it is most unlikely that he would have worked until then, in any event. There is no precise way to calculate what his actual financial losses are. He is now almost 55 years old. An appropriate response would be to discount his loss of earnings up to the present time by 30%, and then to discount his losses up to the usual retirement age, by 60% (Ms McClymont suggested 15% and 40%).
- [48]Three video surveillance tapes were played during the trial. They showed him attending to some domestic tasks, and playing bowls, not long ago. However, they are inclusive. There was nothing in them to indicate that his evidence here is inaccurate.
- [49]Mr O'Doherty’s general damages are agreed at $30,000.00. If $10,000.00 of that sum is referrable to the period up to trial, then interest at 2% over 4.8 years is $960.00. That figure is agreed.
- [50]It is agreed that his economic loss up to trial, after tax, is $780.00 a week. Two hundred and fifty weeks have passed. That is a total loss of $195,000.00. After a discount of 30%, that amounts to $136,500.00.
- [51]Mr O'Doherty has received Workers’ Compensation benefits of $45,036.00. His Centrelink benefits are $37,770.00, a total of $82,807.00. To that extent he has not been out of pocket. However, he has been out of pocket because of the gap between that figure and the total net lost wages of $136,500.00. Interest on the $53,693.00 gap at 5% for 4.8 years is $12,886.00.
- [52]As to the future, the submission on behalf of the plaintiff is that is he is largely unemployable, though he may find some work from time to time. On the other hand, it is submitted for the defendant that he has a significant work capacity, and has simply opted for a retirement lifestyle. In any event, it is said the injuries were merely an aggravation of his pre-existing injuries. An award of $35,000.00 would be sufficient, it is said.
- [53]It should be accepted that Mr O'Doherty is now largely unemployable. However, he has not just chosen to be unemployed. His present loss of income is $780.00 a week, up to age 65, discounted would be 5%, is $346,320.00. That is Ms McClymont’s submission. She submits that there should be a 40% discount because of the possibility of symptoms in his neck or lower back, in any case. Overall, it is submitted for him that an award of $200,000.00 should be made for future economic loss.
- [54]The appropriate discount is 60%. Therefore, the appropriate award is $138,528.00 for his future economic loss.
- [55]Past and future loss of superannuation, at 9% of that figure, is, in round figures, $24,753.00.
- [56]Agreed special damages, and the Fox v Wood factor, are agreed at $34,416.00. Interest on that amount is $834.00.
- [57]There was a claim for future expenses for medication. His admitted expenditure at present is $3.00 per week. On his behalf, it is observed that his life expectancy is 30 years and therefore the discounted amount of $2,000.00 should be allowed to cover that. However, it is very hard to disentangle the need for medication arising out of these injuries, with medication for unrelated ailments. It would be appropriate to award the modest sum of $500.00.
- [58]The agreed refund to the defendant is $62,028.00.
- [59]Therefore in summary, this is the position:
General Damages | $30,000.00 |
Lost income to trial | $136,500.00 |
Future Economic Loss | $138,528.00 |
Loss of superannuation at 9% | $24,753.00 |
Future medication | $500.00 |
Special damages plus Fox v Wood | $34,416.00 |
Sub Total | $364,697.00 |
Less refund to Defendant | $62,028.00 |
Sub Total | $302,669.00 |
Interest on general damages | $960.00 |
Interest on past economic loss | $12,886.00 |
Interest on special damages | $834.00 |
Interest Sub Total | $14,680.00 |
Limit of jurisdiction | $250,000.00 |
Plus interest | $14,680.00 |
TOTAL | $264,680.00 |
- [60]It is agreed that pursuant to s 316(2) of the Workers’ Compensation and Rehabilitation Act 2003 (Qld), Mr O'Doherty is entitled to costs on the standard basis from 30 June 2006 (the date of Mr O'Doherty’s offer to settle).
- [61]There will be judgment of the plaintiff for $264,680.00, together with costs to be assessed on the standard basis from 30 June 2006.