Morton v Ivor Fritz Removals Pty Ltd
[2013] QDC 293
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- Unreported Judgment
- Morton v Ivor Fritz Removals Pty Ltd[2013] QDC 293
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Morton v Ivor Fritz Removals Pty Ltd[2013] QDC 293
Morton v Ivor Fritz Removals Pty Ltd[2013] QDC 293
DISTRICT COURT OF QUEENSLAND
CITATION: | Morton v Ivor Fritz Removals Pty Ltd & Ors [2013] QDC 293 |
PARTIES: | GLENN MORTON (plaintiff) v IVOR FRITZ REMOVALS PTY LTD (first defendant) and JOHN LEONARD GLYNN (second defendant) and SELWYN MARY GLYNN (third defendant) |
FILE NO/S: | D1730/2011 |
DIVISION: | |
PROCEEDING: | Trial |
ORIGINATING COURT: | District Court at Brisbane |
DELIVERED ON: | 14 November 2013 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 20-22 May 2013 |
JUDGE: | McGill SC DCJ |
ORDER: | Judgment for the defendants with costs. |
CATCHWORDS: | EMPLOYMENT LAW – Injury of employee – Liability of employer – whether plaintiff supervised – whether safe system of work – negligence not shown. NEGLIGENCE – Dangerous premises – Occupier’s liability – removalist injured while moving furniture at occupier’s direction – whether occupier liable. DAMAGES – Personal injuries – Measure of – non-economic loss assessed under New South Wales law. Civil Liability Act 2002 (NSW) s 16, 17. Coles Supermarkets of Australia Pty Ltd v Meneghello [2013] NSWCA 264 – cited. Czatyrko v Edith Cowan University (2005) 79 ALJR 839 – applied. Dell v Dalton (1991) 23 NSWLR 528 – cited. Doubleday v Kelly [2005] NSWCA 151 – cited. Eire Contractors Pty Ltd v O'Brien [2012] NSWCA 400 – applied. Great Lakes Shire Council v Dederer [2006] NSWCA 101 – applied. Javer v Rockdale City Council [2008] NSWCA 98 – applied. Khan v Polyzois [2006] NSWCA 59 – considered. Leighton Contractors Pty Ltd v Fox (2009) 240 CLR 1 – cited. Leyden v Caboolture Shire Council [2007] QCA 134 – applied. Lusk v Sapwell [2012] 1 Qd R 507 – followed. Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 – cited. Marsland v Andjelic (1993) 31 NSWLR 162 – applied. Nemeth v Westfield [2013] NSWCA 298 – cited. Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 – cited. Sydney Water Corporation v Abravovic [2007] NSWCA 248 – applied. Unilever Australia Pty Ltd v Pahi [2010] NSWCA 149 – cited. Vairy v Wyong Shire Council (2005) 223 CLR 422 – applied. Wilson v Paisley (1976) 50 ALJR 207 – cited. |
COUNSEL: | S D Anderson for the plaintiff A S Mellick for the first defendant D J Schneidewin for the second and third defendants |
SOLICITORS: | Shine Lawyers for the plaintiff Gadens Lawyers for the first defendant Barry & Nilsson Lawyers for the second and third defendants |
- [1]The plaintiff was formerly employed by the first defendant as a removalist, for a period of about 14 years: p 13. On 5 December 2008 he and another man associated with the first defendant were carrying a desk in a flat in Sydney when the plaintiff, who was essentially walking backwards, bumped his left leg against a footstool, causing him some loss of balance so that he had to apply a sudden twisting force to his right leg. As a result he suffered an injury to his right knee. At the time the plaintiff was involved in delivering a truckload of furniture which was being supplied to the owners of the flat by the second and third defendants, who carry on in partnership a business of interior design[1] and who had retained the first defendant to deliver the furniture from their premises in Brisbane.
- [2]The plaintiff has had problems with his right knee ever since, and has stopped work as a removalist, although he did obtain alternative employment in which he is still working, on a casual basis but essentially fulltime, for a hardware store near Brisbane. The plaintiff claims damages in respect of his injury from his employer the first defendant, and from the second and third defendants on the basis that they were the people in occupation or control of the premises at the time of the incident.
- [3]The flat was owned by people who were not living in it at the time, but who had retained the second and third defendants to decorate it, which involved the selection and supply of furniture and soft furnishings, and perhaps other things: p 57. They had selected and assembled the necessary furniture at their premises in Brisbane, and contacted the first defendant to arrange for it to be delivered to the flat in Sydney: p 59. They were regular customers of the first defendant, and they knew the plaintiff, and had a high opinion of him as a removalist: p 60, p 87. They were particularly impressed by his ability to pack a truck or other container in a way which was both efficient and safe, so as to avoid damage to the furniture being moved, and generally with his professionalism. They requested that the plaintiff conduct the moves that they made, and the first defendant acceded to that request.[2]
- [4]The first defendant is a small family business.[3] It was founded by the father of the present director and owner, whose husband, Mr Herewini, worked in the business until 2008 when he retired: p 3. He was an experienced removalist himself, and he trained the plaintiff when he came to work in the business. After his retirement, the director’s husband continued to help out in the business, mostly by doing maintenance work or other work around the business premises, but sometimes by filling in for an employee in a delivery.[4] It was as a result of this that he was present with the plaintiff on this occasion: p 4.
- [5]There was an issue before me as to whether he was the plaintiff’s supervisor on this occasion, that is to say, whether the plaintiff was in charge of this delivery, or whether the director’s husband was. The director said that she allocated the job to the plaintiff,[5] and he was the one identified as the driver on the waybill for the job. She said she gave this waybill to him, as did her husband (p 5); the plaintiff denied that it was given to him,[6] but there was no dispute that he drove the truck, at least most of the time.[7] The plaintiff said that the director’s husband was in charge of the job (p 14) and Mr Glynn had the same impression (p 60), although this was not on the basis of his having observed any exercise of authority on his part, but simply because he knew that Mr Herewini was the husband of the director who ran the business: p 85. It would be unsurprising given the circumstances if the plaintiff had been disposed to defer to Mr Herewini in relation to the conduct of work involving both of them, though in fact he said that the plaintiff was not like that, that the plaintiff was not somebody who would be told how to do things, and that he did not attempt to tell the plaintiff how to do anything that day: p 17, p 20, p 34.
- [6]Apart from the plaintiff, it seems that as at 2009 most of the employees of the business were the director’s sons: p 106. In my opinion the question of who was in charge as between the plaintiff and Mr Herewini was a matter for the employer, and therefore ultimately it is a question of what arrangement was in fact put in place by the director of the first defendant. I was invited not to accept her evidence, and that of her husband, on these matters. Although there were aspects of her husband’s evidence which I found unpersuasive, in my opinion there is no good reason to reject the evidence of Mrs Herewini, and I accept that her husband had retired prior to this occasion, although he was still doing some work for the business, and that the plaintiff was the person who as far as the first defendant was concerned was in charge on this occasion. I suppose it is possible that the plaintiff might have been unaware of the retirement of Mr Herewini, though given the size of the business that strikes me as quite unlikely, but in any case there was nothing in the plaintiff’s evidence about what happened on this occasion which suggests that he was in fact then relying on Mr Herewini in any relevant way. I find that Mr Herewini was not the plaintiff’s supervisor on this occasion.
The incident
- [7]There was a remarkable disparity between the witnesses as to exactly what happened. The plaintiff said that at one stage they were asked by Mr Glynn to reposition a desk which was in a room being set up as a study: p 17. He said that the desk had been against a wall in front of the door into the room, and they were asked to place it against a wall to the side of the door, which essentially involved moving the desk a short distance and turning it through 90 degrees.[8] The room in question was a fairly small room, 3.37 metres by 3.82 metres: Exhibit 20. According to the plaintiff, at the relevant time it contained two desks, two bookcases, a sofa bed and a low, rectangular padded footstool.[9]
- [8]The plaintiff drew a diagram of the room, Exhibit 4, which however exaggerated the amount of space available for the manoeuvre, and had the desk being moved from in front of a bookcase which was adjacent to the wall so as to put it against the other wall. He said that for this purpose he was at the end away from the door, and Mr Herewini was at the other end, and he had to turn his end so that it was still the end further away from the door when the desk was against the other wall: p 60.[10] He said that he got into position, lifted the desk, looked over his shoulder, and moved off: p 49. He described this as his moving backwards (p 18), though it seems to me that if it occurred in the way described by the plaintiff they would essentially both be moving sideways.
- [9]The plaintiff said that he did not notice the footstool when he looked, but as he moved back his left leg came into contact with it causing him to lose his balance to some extent and stagger, though he did not fall over or drop the desk.[11] He felt a pain in his kneecap, but recovered himself and continued with the move: p 20. He said that the third defendant, who had been standing in the room, asked how he was and made some remark suggesting that she had seen some indication of pain on his face: p 18.[12] He replied he would be right and continued with that task, and indeed with the rest of the move that day.[13] As far as he was concerned, he followed his usual practice when undertaking a two man move of some furniture of that nature, but just failed to notice the presence of the footstool. It occurs to me that, given the dimensions of the room and the furniture, if it in fact happened in the way he described he must have been fairly close to the footstool when he started off.
- [10]Mr Herewini agreed that the plaintiff bumped into a stool when he was moving backwards while they were carrying a desk, but said that this occurred in the lounge room, when they were moving the desk from that room into the study: p 17. He said the stool was a round, white kitchen stool.[14] He said that the plaintiff recovered himself and continued to work, and made no complaint of having hurt himself that day. He said that most of the items that were being unloaded from the truck were brought into the unit and placed in the lounge area, from where they were subsequently distributed to different rooms at the direction of Mr Glynn: p 6. It was in the course of moving the desk in this way that the incident occurred, but in the lounge area.
- [11]Mr Glynn said that he was not aware of the plaintiff’s having any problem with his knee that day, or his having stumbled against a footstool while carrying a desk: p 62. He was helping his wife unpack and distribute a number of items which were in boxes placed in the kitchen area, but he was trying to ensure that as the items of furniture were brought into the unit they were placed where he wanted them, and he tried to be aware when the removalists arrived with an item of furniture, to tell them where to place it.[15] He was particularly conscious of the desks, because there were two relatively small desks for this room: p 63. He had in mind placing them side by side along a particular wall, but he had not measured the wall and he was concerned as to whether they would actually fit in that position. He was therefore keen to see what happened when the removalists placed the second desk in the room: p 76. He said that when they arrived with it he had them put it straight into the room, and they put it into position beside the other desk, where it did fit. He was in the room to confirm this (p 78), and the desks were left in that position thereafter.[16] No complaint was made to him that day of the plaintiff having any problem with his knee, nor did he observe anything. On his account, neither of the manoeuvres described by the plaintiff and Mr Herewini occurred: p 77, p 78, p 81.
- [12]Mrs Glynn said that she was largely concerned with unpacking items and to some extent setting up the premises, and not paying much attention to the furniture: p 87. She was not particularly aware of the furniture being brought in, and she was not in the study at any time while any desk was being carried or manoeuvred, either for the purpose of delivery or to reposition it: p 97. She did say however that she had some recollection that, during the afternoon, she saw one of the two desks in a different position: the desk which was in the corner of the room near a bookcase at one stage was turned so that it was facing the other wall, in line with the bookcase, and she looked to see whether the furniture in the room worked better with the desk in that position: p 95-6. Her impression was that it did not, and she later saw that desk back where she had previously seen it, essentially in the position shown in Exhibit 20.[17] Mr Glynn on the other hand said that the desks were put into that position initially and stayed there.
- [13]It does occur to me that if the desk closer to the corner were turned the other desk might have been moved out of the way to facilitate that manoeuvre, and then might have been moved back into its previous position, and that could have explained how the desk came to be moved in the way described by the plaintiff. The plaintiff however had this incident occurring in the late morning, not in the late afternoon when any such rearrangement must have occurred.[18] The plaintiff also had the sofa in the room at the time (p 16), and most of the witnesses had the sofa coming on the scene quite late in the piece,[19] after the other items of furniture were in the room and in position. It would have been a bit of an exercise to get the sofa into the room if the other furniture shown in Exhibit 20, particularly the bookcase near the door, were already there and it would have made sense to have left at least some of the items from the study out of it until the sofa was in position. That would not apply to the desks given that they were on the other side of the room and out of the way. Perhaps when this desk was brought into the flat they were told to put it in the study, and initially they just put it in front of the bookcase until Mr Glynn came in and told them where it was to go, and the relevant move occurred then.
- [14]The matter has to be resolved by reference to whose evidence I am prepared to accept, and to what extent. The plaintiff had the most reason to be recalling what happened on this occasion, because he certainly had problems with his right knee subsequently, and one would therefore expect him to have a better recollection than someone who was not so personally involved. If Mr and Mrs Glynn were not in fact aware of any problem with the plaintiff’s knee at the time, they had no particular reason to remember the circumstances surrounding such a thing. Mr Glynn’s evidence was very much what I would have expected: he had a fairly good recollection of the unit as a decorating job, and I think that his evidence about being concerned about fitting the desks into the room was genuine, and that for that reason he is likely to have some recollection of that matter, though perhaps more about the outcome than the process by which the desks came to be in that particular position. He may well have forgotten some experimentation with the furniture arrangements in the room; subject to that I suspect he is reliable about the furniture.
- [15]Mr Glynn’s evidence that furniture was being put where it belonged as it arrived in the unit strikes me as more plausible than Mr Herewini’s evidence about its being first placed in the lounge and then repositioned, though it does occur to me that some items might have been put in the lounge if there was some particular reason not to put them in their final position,[20] for example what looked like two hall tables might have been kept out of the hall in order to keep that clear while furniture was being carried into the flat. The same could apply to chairs that went with the desks. There are other aspects of Mr Herewini’s evidence which were most implausible. He spoke about a big desk and two small desks, and ultimately was led in this way to the assertion that at the end of the day there were three desks in the study (p 44), which was obviously not the case. Ultimately, it appeared to me that, at least in terms of what was going on and what happened to the furniture during the day, Mr Herewini had the poorest recollection of the witnesses.[21] It was I think of some significance that he had some recollection of the plaintiff stumbling after backing into a stool, but I do not think that the other evidence that he gave about the circumstances was reliable.
- [16]It does not follow however that I reject other aspects of his evidence. He said that, when there was a two man move involving a piece of furniture, the man at the front was the one in charge even though he was walking backwards, and he was the one responsible for keeping a lookout to avoid obstacles: p 4, p 7. Obviously the extent to which the item being carried would impede the view to the front would depend very much on what that item was, but there could be plenty of large items which if carried would certainly block any effective view for the man at the back. There is also the consideration that the person walking backwards has the more difficult and demanding task, and therefore it is logical for that person to be essentially in control of the process. Given that at least in some circumstances that would be the appropriate way to arrange things, it would be logical for there to be a system of work where that process was followed all the time, even if the particular item being carried was one where the view forward of the man at the back would not be impeded to any significant extent.
- [17]Although my initial reaction during the trial was that this was not a sensible way to arrange things (p 43), on reflection I can appreciate the sense of it, and accept that that was the system of work. The plaintiff eventually agreed that that was the system (p 43, p 44, p 49) and it certainly seems to have been consistent with the way the plaintiff in fact operated, since he said that, when he and Mr Herewini were lifting something together, he would look over his shoulder to check for obstacles before moving off, and indeed that he did so on this occasion; the problem was simply that he did not notice the stool: p 49.[22]
- [18]I thought all the witnesses were generally telling me their best recollection of the event, although I did not regard the account of Mr Herewini as reliable. In general I thought the plaintiff was an honest witness and generally I accept his evidence. Some discrepancy in the accounts in the notices of claim (Exhibit 12, 13) and the pleadings was probably attributable to his lawyers: Exhibits 14, 15. Some of his recollection as to the positions of the desks (e.g. p 82-3) is not I think reliable, but these are not matters that would have been of importance to him at the time. I do not think it matters who did what driving.
- [19]In the circumstances I do accept that there was an occasion when the plaintiff, while carrying a desk with Mr Herewini in the study, and for that purpose moving backwards, bumped his leg against the footstool and as a result staggered, putting unusual pressure on his right knee, but was able to regain his balance without falling over or dropping the desk. For reasons that will be clear when I discuss the medical evidence, I accept that the plaintiff did suffer an injury to his right knee in this process. The first question however is whether there was any breach of duty on the part of either the first defendant or the second and third defendants towards the plaintiff which caused that injury.
The first defendant
- [20]The first defendant as the plaintiff’s employer owed him a non-delegable duty to take reasonable care to avoid exposing him to unnecessary risks of injury. If there were a real risk of injury to him in the performance of the task in the workplace, his employer must take reasonable care to avoid the risk by devising a method of operation for the performance of the task that eliminates the risk, or by the provision of adequate safeguards. The employer must take into account the possibility of thoughtlessness, or inadvertence, or carelessness, particularly in a case of repetitive work.[23] The obligation however is limited to taking reasonable care, so the employer is not an insurer against harm. The question to be considered is what response a reasonable person confronted with a foreseeable risk of injury would have made to that risk, and the answer to that inquiry may be “nothing”.[24]
- [21]The risk of injury to someone who is carrying furniture from bumping into another piece of furniture, particularly when walking backwards, is obviously foreseeable. The plaintiff submitted that the injury would have been easily preventable if the other employee of the first defendant, Mr Herewini, had checked the path the plaintiff was going to travel, and had advised him about the presence of the footstool, or if he had warned the plaintiff to watch out more carefully. The difficulty with this case however is that the plaintiff said he did look before they began to move the desk, but when he looked he just did not notice the footstool. It would not have been obvious to Mr Herewini that the plaintiff had not noticed the footstool, whereas the fact that he had looked would have been obvious to him. The plaintiff knew he needed to keep a proper lookout and believed he did so: p 42. He said he did not require supervision: p 43, p 45.
- [22]It is not simply a matter of encouraging other employees to watch out to see that the usual work system is being followed. Under that system the person at the front of the piece of furniture being moved is in charge of the move and will check to see that the path is clear, or as the case may be. There was no particular reason for the first defendant, or Mr Herewini, to anticipate that it would be helpful to the plaintiff to exercise particular care when checking that the path was free from obstacles on this occasion. Saying that some steps should have been taken to ensure that extra care or proper care was taken on this occasion would involve falling into the trap of looking at the issue of breach of duty retrospectively.
- [23]The difficulty here for the employer is that, accepting that the system of work is that the person who is at the front of the piece of furniture, and therefore carrying it backwards, will be the person in charge of that particular move, there is no way to ensure that that person properly identifies hazards associated with that particular move before beginning it, or before coming upon the particular hazard.[25] It may be acknowledged that even a careful employee might make a mistake from time to time, and might for example look but fail to notice a particular obstacle, such as a relatively low footstool, or may fail to appreciate that it poses a problem for the move that is to be undertaken.[26]
- [24]I do not think it is practicable to have a system of work under which both the persons involved in the proposed move of an item of furniture check the proposed path for potential obstacles, and then presumably compare notes on what they have seen. Such a system would be more time consuming, and would interfere with one strength of the current system, having a clear rule about who is in charge of a particular move. It could also tend to make each of the employees less careful than they would be if one of them had the responsibility to check a particular proposed move, because each would to some extent be relying on the other and could well as a result take less care personally.
- [25]Accordingly, although I consider that there was some risk in the current system of work being used by the first defendant, that the person in charge of the lift will not check the proposed path carefully enough, or will overlook some potential hazard, whether through a lack of appropriate care or simply human error, I am not persuaded that a reasonable person in the position of the employer, conscious of the heavy responsibility of an employer for the safety of its employees, would nevertheless have instituted a more complex and rigorous system of work. There was no evidence that some other system of work was common or ought to have been implemented. Accordingly I am not persuaded that the first defendant has been shown to have been negligent in relation to the system of work then being implemented.
- [26]In relation to whether there should have been some warning to the plaintiff, a generalised warning to look carefully to see that the path was clear before making the move would have been pointless in circumstances where there was no particular reason for it to be given specifically on this occasion. It could only be justified on the basis that it was always necessary, and there is I think no reason to believe that had there been a ritualistic warning given in this way by Mr Herewini every time a piece of furniture was lifted it would have made any difference to the way in which the plaintiff was in fact behaving. I accept the plaintiff’s evidence that in fact he did look before this move was undertaken, and I do not doubt that he was trying to look carefully and believed that he had done so. As it happened, subsequent events showed that he was mistaken, but it is not obvious to me, and there was no evidence, that any particular change in the system of work, or any particular warning, would have avoided that situation.
- [27]To some extent this issue was caught up with the question of who was in charge as between the plaintiff and Mr Herewini. I do not accept Mr Herewini was in effect a supervisor of the plaintiff on this occasion, and in those circumstances there can be no question of any vicarious liability of the first defendant for any negligent supervision on the part of Mr Herewini. I consider that the implementation of the system of work meant that, as between the two of them, it was the plaintiff who was in charge of this particular move, and in those circumstances any particular significance Mr Herewini might have held because of his position as husband of the director of the business would have been of no consequence. There was no evidence from the plaintiff that there was anything that he did specifically in relation to the move of this desk which was based on any reliance on Mr Herewini’s due performance of any particular supervisory function. Overall the plaintiff has not shown negligence or breach of duty on the part of the first defendant.
Second and third defendants
- [28]The plaintiff’s case against the second and third defendants was based on the proposition that they were in occupation of the flat at the time when the plaintiff and Mr Herewini were involved in moving the furniture into and around the flat, and that they were in charge of the operation in the sense that it was the second defendant who was directing the plaintiff where the furniture was to be placed, or in the case of furniture that was being moved, where it was to be moved to. It was further submitted that I should find that both the second and third defendants were in the room at the time this particular move was being made, and that the third defendant was in a position to see the footstool, and could have warned the plaintiff about its presence, and was negligent in failing to do so.
- [29]This last proposition was based on the plaintiff’s evidence, that the third defendant was present and had evidently noticed something in his face at the time of the incident, because she had inquired after his wellbeing. The third defendant denied that she was present or that any such incident occurred, and neither of the other witnesses at the time had any recollection as to her presence. She said that her concern at the flat on that occasion was unpacking soft furnishings and other smaller items, and distributing them about the flat, but of course it is possible that she was engaged in that in the study at the time this occurred. It occurs to me that this is the sort of thing that, had it occurred, the third defendant could easily have forgotten in the time that has passed since the incident, whereas it does strike me as a strange thing for the plaintiff to invent, and on the whole I prefer the evidence of the plaintiff, that the third defendant happened to be present at the time of the incident, and made some remark to the plaintiff after he stumbled.
- [30]It does not follow however that the third defendant was in a position to see that the plaintiff was going to back into the footstool prior to his having done so. There was no particular reason for the third defendant to be looking out for the presence of footstools or indeed to be paying any particular attention to that aspect of the furniture. The fact that she noticed that something unusual had happened involving the plaintiff from the expression on his face, does not necessarily mean that she would have been fully aware of the significance of the placing of the footstool prior to the incident, and that she would have been in a position to appreciate both that the plaintiff was about to come into contact with the footstool, and that he was unaware of the presence of the footstool prior to his having done so, so that it would in fact have been helpful if she had warned him about it. In all the circumstances, I am not persuaded that this was a case where the third defendant was in fact in a position to give a timely warning that the plaintiff was about to bump his leg on the footstool, had she appreciated this and chosen to do so. Even if she had been, the mere fact that she was able to give a warning does not establish the existence of a duty to do so, although that may be part of the content of the duty of an occupier. The evidence is no stronger in respect of the second defendant. In those circumstances, it is necessary to consider the question of a breach of duty on the part of the second and third defendants on a different basis.
- [31]It was submitted for the plaintiff that at the time he was moving furniture under the direction of the second defendant. It is correct that the second defendant was directing operations in the sense that he was indicating where it was that he wanted the furniture to be placed, but in my opinion what the second defendant was doing was directing what was to be done, rather than the manner of doing it. He was telling the plaintiff and Mr Herewini what they were to achieve in terms of the positioning of the furniture in the rooms, telling them what was expected of them in order for them to do their job, but not how they should be doing it.[27] I do not accept that he was taking it upon himself to determine how the work was to be done, nor do I accept that the plaintiff was in some way relying upon him to take reasonable care to ensure that the work was done safely.
- [32]This was not a situation where an employee was working on premises occupied by someone other than the employer who was responsible for organising the interrelationship of various individuals working on the premises, in a way which involved the occupier taking on some of the duties which would ordinarily be undertaken by an employer who was in occupation of such premises.[28] The second and third defendants were on the premises for the purpose of decorating them, and for that purpose, they had obtained a quantity of furniture, and the first defendant was, through the plaintiff and Mr Herewini, moving that furniture into the premises for them on this occasion.
- [33]This is not a situation where the plaintiff was injured as a result of some hazard associated with the premises, independent of the performance by the plaintiff and Mr Herewini of the task of moving furniture into the premises.[29] Rather, this was a case where the plaintiff was injured as a result of the way in which that task was being performed, not a matter in respect of which he was taking direction from the second and third defendants. In the most immediate sense, how the plaintiff and Mr Herewini undertook the process of moving the desk from one place in the room to another was a matter under his control and direction, and for him to determine. Even if the second defendant had been aware of the footstool, he would not have been aware that the plaintiff was not aware of it, and that he was going to move in a way which would bring him into contact with it.
- [34]To the extent that the footstool constituted a hazard, I could not be satisfied that it was placed in the position where it happened to be at the time the plaintiff’s leg came into contact with it as a result of its having been put there by the second defendant (or for that matter the third defendant) rather than the plaintiff or Mr Herewini. In any case, the footstool was not hazardous in itself, the issue was simply one of the plaintiff’s failing to be aware of the presence of the footstool when undertaking the move of the desk, which arose because, when he checked the path to be followed, he failed to notice or appreciate the significance of the presence of the footstool. Unless the second defendant was under a duty to supervise the plaintiff, and I find that he was not, his duty as occupier would be relevantly limited to one to warn him of hazards of which the second defendant was or ought to have been aware, given that he had not created the hazard. It was not shown that the second defendant was in fact in a position to appreciate the risk to the plaintiff, and to give a timely warning, that is, that he knew or ought to have known of the risk presented by the footstool.
- [35]In these circumstances I am not persuaded that there was any breach by the second and third defendants of their duty as occupiers of the premises which was relevant in any way to the plaintiff’s having stumbled on the footstool, and any consequent injury suffered by him. I am conscious of the general principles in the Civil Liability Act 2002 (NSW) ss 5B, 5C, but in this situation the central issue is whether there was a duty to control and supervise the manner of the work; I consider there was none. I assume that the second and third defendants could be characterised as the occupiers of the premises, at least as against the plaintiff.
- [36]It was submitted for the second and third defendants, and not I think ultimately disputed, that issues of liability had to be decided under New South Wales law, so that relevantly the Civil Liability Act 2002 (NSW) applied. I accept that this is the case. One of the matters relied on by the second and third defendants was that the presence of the stool was an obvious risk for the purposes of s 5F of the New South Wales Act. On the view that I take of this matter, it is unnecessary for me to determine whether that is correct, but I would find on a precautionary basis that the risk of harm from the stool was not an obvious risk in the circumstances of this case. The reason for this is that the question of whether the risk is obvious does not depend just on whether the condition which gives rise to the risk is obvious, but whether the risk which the condition produces is obvious.[30] In these circumstances it is not sufficient that the footstool was obvious, the question is whether the risk of injury posed by the footstool was obvious.
- [37]It seems to me that the New South Wales authorities establish that it is necessary to have regard to the particular risk which has materialised in the particular harm in fact suffered by the plaintiff when assessing the question of whether that risk was obvious. In the present case the footstool, although obvious enough as an item of furniture present in the room, does not in my opinion present as something which obviously poses a risk of the sort of injury suffered by the plaintiff in the present case. The footstool was padded and the possibility of suffering an injury to the leg or knee as a result of bumping it against the footstool does not strike me as obvious at all. In my opinion a reasonable person could well have thought that the footstool was essentially harmless, in that there was no real risk of injury or harm being suffered as a result of bumping against it. Accordingly, were it necessary to decide the matter, I would hold that a defence is not available on the basis that the risk of the plaintiff suffering this injury was an obvious risk under the New South Wales Act. It follows that the second and third defendants cannot rely on s 5H of that Act.
- [38]The second and third defendants also pleaded that the plaintiff voluntarily assumed the risk of injury in proceeding as he did. This was in reliance on the common law defence and the statutory equivalent. Again on a precautionary basis I find that neither the common law defence of volenti nor a statutory equivalent of that defence applied in the circumstances of this case. This is not a case where the plaintiff perceived the existence of danger and was in a good position to make a proper assessment of the risk, and then with an appreciation of it voluntarily chose to run it.[31] The problem was that he was not aware of the danger from the footstool.
- [39]It follows that the plaintiff fails on liability against all defendants. I should also on a precautionary basis deal with the question of contributory negligence, but only for the purpose of saying that contributory negligence was alleged by all defendants, and, on the view that I take, the plaintiff was negligence in that, when he checked to see if the path was clear, he failed to examine the area with sufficient care to detect the presence of the footstool, which must have been there to be seen. Since the purpose of checking in this way was to detect anything which could pose a risk of harm to him in performing the move of the desk, his failure to check with sufficient care amounted to a failure to take reasonable care for his own safety. It would however be quite unrealistic for me to attempt any precautionary apportionment.
Quantum
- [40]I will assess quantum on a precautionary basis. There is the complication that the assessment must be on a different basis for the first defendant, since I accept that the provisions of the New South Wales Act for the assessment of general damages are substantive, and therefore the damages as against the second and third defendants have to be assessed by reference to the relevant provisions of that Act. On the other hand, the first defendant did not assert that damages as against it should be assessed other than in accordance with the law of Queensland (p 73), and did not rely on any provisions in the Civil Liability Act 2002 (Qld).
- [41]The plaintiff was born on 6 April 1957 (p 12) and so was 51 at the date of injury; he is now 56. He had been working for the first defendant for about 14 years; prior to that he worked in various physical jobs, including as a bricklayer for 12 years, and had also been a pipe layer and labourer: p 34. He generally had a good employment history. The plaintiff had some problems with the right knee prior to the accident, and had been complaining to doctors of pain in the right knee in August 2005 and October 2006: p 33-4. His symptoms varied, and did not prevent him from working prior to this incident, though he did occasionally have bad days when he used to take Voltaren for the knee: p 34. His position essentially was that, although he had some problems with the knee before this incident, they became worse after the incident.
- [42]The plaintiff was able to continue working the day of the incident, although his knee became sore during the day; there was no swelling that he noticed until the next day, when he spent a lot of time on the truck: p 35. By then his knee was stiff and sore and he was limping and at times had some difficulty walking: p 24. He worked for about two and a-half weeks, taking painkillers. On 31 December 2008 he saw a GP who sent him for x-rays and then to an orthopaedic surgeon, Dr Boulton: p 24‑5. He reported the incident to the first defendant on 1 January 2009.[32]
- [43]He saw Dr Boulton on 13 January 2009. On examination there was some limitations in movement with pain, he was tender on the medial joint line but the knee was stable: Exhibit 1, tab B, p 18. Dr Boulton recommended that he undergo an MRI on the right knee, which was performed later that month and showed a complex medial meniscus tear, osteoarthrosis of the joint and probably some chondral damage.[33] Dr Boulton recommended an arthroscopy which he undertook on 29 January, revealing a torn posterior horn of the medial meniscus, and reasonably superficial articular cartilage damage on the medial femoral condyle and medial tibial plateau. Dr Boulton agreed that the plaintiff had a deteriorating knee as a result of matters not associated with this particular incident, and he thought the plaintiff probably would have needed a knee replacement anyway at some point in the future, though he could not say whether it was going to be two years or 20 years before that occurred: p 23. That could well depend on whether another injury had the effect of stirring up his arthritis, or increasing the rate of deterioration. It could have been a minor incident: p 32.
- [44]After the arthroscopy the plaintiff continued to have symptoms and found when he went back to work on light duties with the first defendant his knee began to swell again: p 26. He saw Dr Boulton again and a further MRI was undertaken, which revealed an area of bruising in the bone, giving rise to concern about the possibility of avascular necrosis: p 24. In the event that was not the problem, and Dr Boulton concluded that the symptoms were due to the deterioration associated with wear of the cartilage, as a result of which on 19 October 2009 he performed a further operation, a tibial osteotomy. The plaintiff was then in a removable knee splint for some time. Dr Boulton said that that operation was technically successful, but it was not successful in the sense that it significantly reduced the plaintiff’s pain, and he was not able to return to removalist work: p 28. Dr Boulton had expected more improvement following the second operation than was actually achieved: Exhibit 19 para 12.
- [45]The plaintiff has however been able to return to some work, at a hardware store where it seems he works as a storeman, initially to a limited extent but on a permanent casual basis for about two years as at the trial: p 13. The position was obtained through a rehabilitation service, but he continued on after that program finished: p 53-4. He sometimes needs to take painkillers, but essentially can do the work required at that job: p 28. He has a forklift ticket, and sometimes uses a forklift, and sometimes makes deliveries (p 51); he can cope with this work, but it does not involve the sort of heavy lifting and carrying which he was previously doing as a furniture removalist.
- [46]Dr Boulton was not able to confirm positively that the injury seen in the MRI, and during the arthroscopy, was an acute tear associated with the recent injury to the knee, but in circumstances where it seems to me that the plaintiff’s symptoms had become significantly worse after that injury, I think it is probable that there was an acute tear or aggravation of a pre-existing tear in the medial meniscus as a result of the plaintiff’s injury,[34] and I so find. That had the effect of stirring up the arthritic condition in his knee, and in a practical sense was the cause of the arthroscopy, and the cause of the subsequent operation, which although designed to treat the pre-existing arthritic degeneration, probably would not have been needed at that time had the plaintiff’s injury not occurred.
- [47]Dr Boulton did not think it particularly significant that the knee did not swell straight away, particularly if he was continuing to work: p 26. Dr Boulton thought that it was reasonable to conclude that the plaintiff had some degree of degeneration in the knee with which he could cope for a number of years until the twisting injury in 2009: p 26. Dr Boulton thought the plaintiff would need a knee replacement at some time in the future, but would be better off if the knee replacement could be postponed at least until he was in his sixties, as then there was a good chance that he would not then need a further knee replacement later: Exhibit 19.
- [48]The plaintiff was seen by Dr Pentis, an orthopaedic surgeon, on 3 August 2010 for the purposes of a report: Exhibit 1, tab C, p 1. At that stage the plaintiff was complaining about difficulty with slopes, uneven ground and stairs, he could not jog, jump or run, and had difficulty with squatting and kneeling. The knee swells sometimes, but does not give way. On examination there was the same range of movement as with the other knee, with a slight block to full flexion, wasting of the quads and calves on the right side and difficulty squatting fully, and some tenderness in the joint line on both sides. Dr Pentis thought the pre-existing degeneration in the knee had been aggravated by the injury and that only conservative management was left in the short term, although ultimately he thought that a total knee replacement would be necessary. He thought that the plaintiff should avoid work which required squatting, kneeling, climbing or walking on uneven ground. Dr Pentis assessed the impairment at 10% whole person impairment in respect of his current condition, of which one-third to one-half would be due to the effect of this incident. Dr Pentis thought it likely that the plaintiff sustained the tear to the meniscus as a result of this incident: Exhibit 1, tab C, p 8.
- [49]The plaintiff was seen by Associate Professor Steadman, an orthopaedic surgeon, on 5 October 2010 for the purpose of a report to WorkCover: Exhibit 1, tab C, p 9. At that stage the plaintiff was still complaining of a lot of pain if he had to walk around a lot. He had stopped fishing but was still playing darts. He was taking eight Panadol a day to manage his pain. On examination he had what was described as an excellent range of motion. The plaintiff had been working on his muscles, with his quadriceps on the right larger than on the left. Dr Steadman thought it more likely that the plaintiff had aggravated a pre‑existing tear on this occasion, because of a lack of swelling on the day after the injury, although the plaintiff’s evidence to me was that there was swelling on that day: p 34. He also thought that the plaintiff would be likely to require a knee replacement at some stage, but did not think that this was a consequence of this injury. Dr Steadman assessed whole person impairment at 5%, on the basis of a 12% lower limb impairment, but he conceded that the impairment may be amenable to some uplift under chapter 18 because of ongoing discomfort.
- [50]Dr Steadman said that on examination the plaintiff’s presentation was consistent with his history: p 68.[35] It appeared that the plaintiff had worked hard to try to rehabilitate the knee: p 69. This might indicate that the plaintiff would be able to go longer before he required further surgery, but this was by no means certain: p 70. The incident described by the plaintiff was one which could cause or aggravate a meniscal tear: p 72.
- [51]Overall I think there is little difference between the doctors who gave evidence. The main difference perhaps is that Dr Pentis had a greater percentage impairment attributed to the injury, and perhaps was more inclined to attribute a greater proportion of that impairment to this particular incident. Such an exercise is always somewhat artificial; what really matters is to what extent the plaintiff is worse off than he would, or would probably, have been if this incident had not occurred, taking into account the possibilities.[36] When assessing matters on that basis, it is clear that the plaintiff might have been in the same position anyway at some time because of some other injuries at the knee occurring in some other way, possibly from something quite trivial, but on the other hand he might not have been. I do not think that ultimately Professor Stedman was saying that the plaintiff would have been in the same position anyway by two years after the date of the incident, but I think the general view was that it was probable that at some point within some years of this incident it was likely that the plaintiff would develop the problems that have developed in the right knee in any event.
- [52]It seems clear that the plaintiff had long term degeneration in this knee, and it was vulnerable to this sort of injury, and that, because of the degeneration, if the plaintiff did suffer an injury of this nature it was likely to stir up long term problems which could well be difficult to treat effectively, as they have probed to be with the plaintiff. I accept that the adverse consequences he has suffered occurred because the plaintiff suffered some particular injury to the right knee on this occasion, being either a tear or the aggravation of a pre-existing degenerative tear in the meniscus. I accept that injury probably occurred because the plaintiff’s right leg came into contact with the footstool while he was moving backward carrying one end of the desk, because it interfered with his placing his foot and caused him to put some twisting pressure on the right knee.[37] Such an injury was on the evidence something which would be consistent with the plaintiff’s not having fallen over at the time.
- [53]Although the incident seems at first sight to be quite minor, I accept that because of the particular effect on the plaintiff of his having bumped into the stool in this way, coupled with the vulnerable state of his right knee as a result of his degeneration, that caused this injury to his right knee, and the plaintiff has had a lot of problems with the right knee as a result. The complicating feature is really the question of what allowance should be made for the prospect that, had this incident not occurred, the plaintiff would have suffered problems with the right knee of a similar kind anyway sooner or later.
- [54]The injury has made the plaintiff a lot less active; although he did have problems in the right knee from time to time in the past, he was able to cope with a fairly demanding form of work, and he was also reasonably active, with recreational activities and around the home, in ways which are now closed to him or much more difficult. He is still relatively young to have problems of this nature.
- [55]On the other hand, it seems clear that sooner or later he was probably going to end up in much the same condition anyway, as a result of the degeneration in the knee, which may well have been caused by his more demanding employment in the past. Accordingly a substantial discount needs to be applied to the damages which would otherwise be payable to accommodate that. What the plaintiff is really being compensated for is the loss of the time between when this incident occurred and when he would probably have developed these problems had this incident not occurred. That has to be assessed by reference to the probabilities of various outcomes. When this would occur is essentially unpredictable, but on the whole I think it is fair to assess general damages on the assumption that the effective period of acceleration was seven years. I recognise of course that there are a range of possible outcomes and that the plaintiff might have been lucky and he might have gone a long time before these problems developed, and if that were the case his damages would be much larger; but the chance of that I think was fairly small. It seems to me that the submissions on behalf of the plaintiff really did not make proper allowance for this circumstance; they appeared to be based on the proposition that, as long as the injury was probably caused by this incident, the plaintiff should receive full compensation for the injury without any allowance for what would probably have happened had this incident not occurred, and that in my opinion is not the right approach.
- [56]As against the first defendant, damages are to be assessed on common law principles. Approaching the matter in this way, I think a reasonable allowance for general damages is in the sum of $25,000. The plaintiff is entitled to interest at 2% per annum for that part of this figure which relates to past loss, which I would assess at $15,000, for a period of approximately five years.
Economic loss
- [57]There is relevantly little difference between the submissions for the plaintiff and for the first defendant in relation to past economic loss, except that the first defendant’s submissions included that once the plaintiff reached the stage of working more or less full time at his current work he had ceased to suffer any economic loss. In the 2007-8 financial year the plaintiff’s income after tax by reference to his notice of assessment came to an average of $665.00 per week.[38] The plaintiff’s average net weekly income in 2011-12 financial year, calculated in the same way, came to $675.00.[39] It may be that the plaintiff was still working as a removalist his income would be higher than it was in 2008, although there is no evidence of this. Strictly speaking therefore past economic loss ceased on 30 June 2011.
- [58]In both 2011 and 2012 the plaintiff’s hours of work per week appear to have been somewhat variable.[40] There is a summary of the plaintiff’s taxation records in Exhibit 2, from which some indication can be derived of the plaintiff’s loss of income following the incident. There ought to be a discount however to accommodate the fact that had this incident not occurred the plaintiff might have been unable to work as a removalist anyway because of the problems developing with the knee for some other reason. In 2009 gross income from the first defendant was $23,664, as so there was a drop in gross income compared with 2008 of $22,787, about half the gross for 2008. So the after tax loss was about half the after tax income, about $17,300 for that year.
- [59]In 2010 the plaintiff was receiving WorkCover payments until April, and then Centrelink payments until the end of the financial year, though he also received some earnings when he began work at the hardware store in May 2010. Effectively his loss of after tax income for that year was $33,400. In 2011 the net yearly income was down by about $3,300 for the year. Accordingly past economic loss is $54,000, to 30 June 2011, less an allowance for the possibility that something else could have caused the plaintiff to stop working as a removalist before then. There was I think a real risk of that in the circumstances, and accordingly I think the allowance for past economic loss should be reduced to $45,000.
- [60]Interest is payable on the out of pocket loss, that is after allowance for WorkCover and Centrelink payments, but these occurred in the period closer to the time of the incident when the chance of the plaintiff suffering economic loss had this incident not occurred would be least, and accordingly I would adopt the calculation advanced by counsel for the first defendant, although I would extend the period to five years; this produces a figure of $3,150. Loss of past superannuation at 9% is $4,050.
- [61]With regard to future economic loss, the most likely outcome for the future is that the plaintiff will stay in his current employment until his knee deteriorates to the point where he is unable to cope even with that work. In his current employment it seems that essentially there is no economic loss, but some allowance should be made for the fact that the plaintiff is obviously at risk in the open labour market because of his injury, bearing in mind that his lack of skills would not fit him for any sedentary occupation. There is also the consideration that as time passes the chance of the plaintiff having problems with his knee anyway which would prevent him from working as a removalist increase. Just as some discount was made to past economic loss, proper allowance needs to be made in relation to future economic loss for the possibility of a more sanguine outcome. For that reason it is not appropriate simply to refuse an allowance of future economic loss, as sought on the part of the defendants, but the submissions of the plaintiff seemed to ignore the prospect that the plaintiff would have probably had the problems eventually with his knee anyway which would have prevented him from working as a removalist. On the whole I consider that the correct approach is to make some modest allowance, which I assess on a global basis at $30,000. Because this is not a calculated figure, I will not include an additional amount for loss of future superannuation benefits; they are treated as being included in the global sum.
- [62]Special damages were uncontroversial, in the sum of $25,326.60, of which $1,453.44 were paid personally by the plaintiff and would carry interest.[41] The first defendant properly conceded a Fox v Wood component of $6,576. The remaining issue is as to future recurrent expenses; the first defendant submits that no allowance should be made. The plaintiff claims half the costs of a knee replacement on the basis that there was a chance that he might not have required a knee replacement but for this incident. The plaintiff will probably require a knee replacement somewhat earlier than would otherwise have been the case because of this incident, though it is impossible to know how much earlier, and because of his age there is a risk that he will need a replacement so early that he will face the prospect of requiring that replacement itself to be replaced. The medical evidence was to the effect that replacement knees wear out, particularly when they are installed in younger patients, so that for recipients in their sixties it is unlikely that a further replacement will be necessary, but a recipient in his fifties may well need one.[42]
- [63]I therefore think that some allowance should be made for the prospect that the plaintiff is at risk of a second knee replacement, the prospect that the first knee replacement will be required somewhat earlier than might otherwise have been the case and the possibility that it might have been avoided. Because of the considerable uncertainty about when he will need a knee replacement anyway, and when and if he would have had one had this incident not occurred, these amounts are not capable of calculation, but some allowance should be made for them. Bearing in mind that the costs of a second knee replacement, if they arise, will occur some time in the future, the allowance should not be very great, but I think it is reasonable to allow an amount on this basis of $10,000. There should also be some allowance for future medication, travelling and medical expenses, which again should not be all that great, and I would allow $1,500 for these future costs.
- [64]In summary then the assessment of damages as against the first defendant is as follows:
(a) General damages | $25,000 |
(b) Interest on past general damages | $1,500 |
(c) Past economic loss | $45,000 |
(d) Interest thereon | $3,150 |
(e) Loss of past superannuation | $4,050 |
(f) Future economic loss | $30,000 |
(g) Special damages | $25,326.60 |
(h) Interest on out of pocket specials | $3,633 |
(i) Future expenses | $11,500 |
| $6,576 |
SUBTOTAL | $155,735.60 |
Less WorkCover refund | $71,095.71 |
TOTAL | $84,639.89 |
Damages as against the second and third defendants
- [65]The position in relation to the second and third defendants is different, in three respects. First, general damages can only be recovered if the plaintiff satisfies the threshold criteria imposed by s 16 of the New South Wales Act. Second, the plaintiff is not entitled to interest on any award of general damages.[43] Third, no deduction is to be made in respect of payments made by WorkCover.[44]
- [66]Section 16 of the New South Wales Act provides:
“(1) No damages may be awarded for non-economic loss unless the severity of the non-economic loss is at least 15% of a most extreme case.
(2) The maximum amount of damages that may be awarded for non-economic loss is $350,000, but the maximum amount is to be awarded only in a most extreme case.
(3) If the severity of the non-economic loss is equal to or greater than 15% of a most extreme case, the damages for non-economic loss are to be determined in accordance with the following Table.
[table omitted]
(4) An amount determined in accordance with subsection (3) is to be rounded to the nearest $500 (with the amounts of $250 and $750 being rounded up).”
- [67]The section is followed by a note which is in the following terms:
“The following are the steps required in the assessment of non-economic loss in accordance with this section:
Step 1: Determine the severity of the claimant’s non-economic loss as a proportion of a most extreme case. The proportion should be expressed as a percentage.
Step 2: Confirm the maximum amount that may be awarded under this section for non-economic loss in a most extreme case. This amount is indexed each year under section 17.
Step 3: Use the Table to determine the percentage of the maximum amount payable in respect of the claim. The amount payable under this section for non-economic loss is then determined by multiplying the maximum amount that may be awarded in a most extreme case by the percentage set out in the Table.
Where the proportion of a most extreme case is greater than 33%, the amount payable will be the same proportion of the maximum amount.”
- [68]Section 17 provides for indexation of the maximum amount specified in s 16(2); as at the date of this accident, the maximum amount declared had come to $450,000.[45] However, the maximum applicable is that in force at the time of judgment: Marsland v Andjelic (1993) 31 NSWLR 162 at 168; Eire Contractors Pty Ltd v O'Brien [2012] NSWCA 400 at [182]-[185]. The current maximum is $551,500.[46]
- [69]This is of course unfamiliar territory for me, and I have looked at a number of decisions made recently by New South Wales courts, which give particular examples of assessment of particular injuries as a percentage. Decisions of the New South Wales Court of Appeal generally stress the proposition that that court is reluctant to interfere in assessments of this nature,[47] something which provides me with little assistance as to the basic approach to the section. Neither counsel provided me with a decision from New South Wales which was factually comparable to the present case. My impression however is that in general not very much needs to be shown in order to meet the 15% threshold.
- [70]An example which throws some light on this is the decision in Khan v Polyzois [2006] NSWCA 59, a decision which is helpful because the Court of Appeal did interfere with the trial Judge’s decision, and reassessed the percentage, though the case is factually remote from the present. The plaintiff suffered a torsion of the left testicle, which initially was misdiagnosed, and as a result it became necrotic and had to be removed. The plaintiff had considerable pain following the injury until he did have the operation, but he recovered after a couple of months and had been left with no ongoing disability apart from the loss of the testicle. His capacity and fitness for work was unchanged, and there were no ongoing physical disabilities. He was pain-free, and although he was concerned about the possible effect of his injury on his marital relationship and fertility, the trial Judge considered that those fears are unjustified. He had some disfigurement in a part of the body normally covered by clothing. He had avoided heavy lifting and contact sports because of fear of injury of the remaining testicle, and it was conceded that he was at risk of more serious consequences if something happened to that one.
- [71]Hislop J with whom Mason P agreed said at [26]:
“Cases that are assessed below 15% of a most extreme case typically are cases of soft tissue injuries which heal relatively rapidly. The respondent’s injury is more significant than that but well short of approaching one third of a most extreme case. In my opinion the appropriate ratio is in the order of 1:5 when compared to a most extreme case. Accordingly I have concluded his Honour’s assessment of non-economic loss is such as to warrant the intervention of this Court. I uphold the appellant’s submission and substitute an assessment of 20% of a most extreme case.”
- [72]Even allowing for the prospect that the plaintiff was likely to suffer significant problems with the right knee anyway sooner or later, it seems to me fairly clear that both the actual result and the comments about the class of cases that fall under the threshold in Khan support the view that the plaintiff in this case has suffered an injury which exceeds the threshold.[48]
- [73]This plaintiff had undergone a good deal of pain in the right knee, had had two operations, both of which failed significantly to improve his condition, and was now facing a lack of anything terribly helpful at least until his knee had deteriorated to the point where he required a knee replacement, something which would be much more substantial and would at best leave him with a significant permanent impairment.[49] The plaintiff was unable to continue his previous employment, and copes with less physically demanding employment essentially only by a combination of regular painkillers and a stoic disposition. On the other hand, it is necessary to bear in mind that he probably faced the prospect of these problems sooner or later anyway, though the timing was uncertain.
- [74]Bearing all that in mind, I think an appropriate assessment for the purposes of s 16 is that the plaintiff has suffered 25% of the most serious case. That under the table in subsection (3) equates to 6.5% of the current cap, which comes to $36,000.[50] Accordingly for the purposes of an assessment as against the second and third defendants, that amount should be substituted for general damages, and the allowance of interest on past general damages should be deleted. Accordingly the assessment for damages as against those defendants becomes $165,235.60.
- [75]For the reasons I have given however, the plaintiff’s claim against all defendants is dismissed. I assume that costs follow the event, but will invite submissions on costs when these reasons are delivered.
Footnotes
[1] Second defendant p 56; third defendant p 86. As partners they would be both liable if either was in breach of a duty of care.
[2] Second defendant p 60; Mrs Herewini p 100; plaintiff p 45.
[3] Mrs Herewini p 98.
[4] Apparently he was not paid for this: p 9; Mrs Herewini p 100.
[5] Mrs Herewini p 101, p 102.
[6] Plaintiff p 47, but see p 46 line 8, p 47 line 12-16. A copy of the waybill became Exhibit 17.
[7] Plaintiff p 47-8; Exhibit 11. He agreed he was responsible for it: p 48.
[8] See his diagram Exhibit 4, which is very different from the scale drawing Exhibit 20, which was agreed (p 54) except as to the position of furniture at the time of the incident.
[9] Plaintiff p 16, p 50. The footstool had dimensions, according to the agreed plan, of 670mm by 425mm by 360mm: Exhibit 20.
[10] Later he said that before this move the front of the desk was facing away from the bookcase so that it then had to be turned: p 79. I do not think the move would have occurred in this way had that been the case, and think he was mistaken about this.
[11] Plaintiff p 18; p 49, p 51, p 81.
[12] The third defendant said this did not occur: p 94.
[13] He made no complaint of injury that day: p 23.
[14] Herewini p 39, 40; it was not the footstool put in the study: p 13. The second defendant did not recall any such stool in the flat: p 81.
[15] Second defendant p 61; p 64; this was also the plaintiff’s recollection: p 15.
[16] Exhibit 5, photos he took the next day showing the final position: p 62.
[17] Not exactly in that position: Exhibit 20 shows the desks almost 20 centimetres away from the wall, whereas the photographs taken the next day show that the desks were essentially up against the wall.
[18] Plaintiff p 23; he did however put 2 p.m. on his application for worker’s compensation: p 36, Exhibit 10.
[19] E.g. second defendant p 76 – sofa after the desks.
[20] Mr Glynn conceded this could have occurred with smaller items p 82.
[21] Another example was that his evidence about the sofa and the bookcases at p 14 appears inconsistent with the evidence about them at p 37.
[22] See also plaintiff p 79, which suggests that he did not see it because he looked over his right shoulder, but it was to his left.
[23] Czatyrko v Edith Cowan University (2005) 79 ALJR 839 at [12].
[24] Vairy v Wyong Shire Council (2005) 223 CLR 422 at [124]; Lusk v Sapwell [2012] 1 Qd R 507 at [17].
[25] Depending on the distance the furniture is being carried, it might be necessary for that person to check the path ahead several times.
[26] It occurs to me that it is possible that the footstool simply did not register as a hazard because the plaintiff when he looked did not think that the move that he was going to undertake would bring his leg into contact with it, or that it would matter if it did. That is simply another way in which human error could prevent a check of the proposed path from effectively identifying a potential hazard.
[27] Plaintiff p 76.
[28] Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16; Leighton Contractors Pty Ltd v Fox (2009) 240 CLR 1; Unilever Australia Pty Ltd v Pahi [2010] NSWCA 149. None of the criteria identified in Sydney Water Corporation v Abravovic [2007] NSWCA 248 at [98] is present here.
[29] The plaintiff had moved the footstool into the study earlier that day himself: p 20. It would have been moved around a lot subsequently: p 22.
[30] Javer v Rockdale City Council [2008] NSWCA 98 at [36]; Great Lakes Shire Council v Dederer [2006] NSWCA 101 at [149].
[31] See Leyden v Caboolture Shire Council [2007] QCA 134, and the authorities on volenti discussed in the judgments.
[32] Plaintiff p 36; Mrs Herewini p 102.
[33] Exhibit 1 tab B p 43, p 18.
[34] See Dr Boulton p 25, p 30.
[35] Dr Boulton also thought the plaintiff was genuine in his presentation: Exhibit 19 para 18.
[36] Malec v J C Hutton Pty Ltd (1990) 169 CLR 638.
[37] Dr Boulton p 29, p 30.
[38] Exhibit 1, tab D, p 24: Taxable income $42,620 minus tax and Medicare Levy, divided by 52; Exhibit 2.
[39] Exhibit 1, tab D, p 50; Exhibit 2.
[40] Exhibit 6, 7.
[41] Plaintiff p 31, 32; Exhibits 8, 9.
[42] Dr Boulton Exhibit 19 paras 15, 16.
[43] Civil Liability Act 2002 (NSW) s 18(1).
[44] No submission was advanced that assessment of economic loss was affected by s 13(1) of the New South Wales Act.
[45] This appears in an editorial note in the reprint of the legislation with which I was provided at the trial, referencing Gazette No 118 of 19/9/08, p 9369.
[46] Civil Liability (Non-Economic Loss) Order 2010 reg 3.
[47] Wilson v Paisley (1976) 50 ALJR 207; Dell v Dalton (1991) 23 NSWLR 528 at 534; Doubleday v Kelly [2005] NSWCA 151 at [35]; Nemeth v Westfield [2013] NSWCA 298 at [11].
[48] See also Coles Supermarkets of Australia Pty Ltd v Meneghello [2013] NSWCA 264, at [103]-[108], where the court reassessed what seemed to be relatively minor injuries to 10%.
[49] Dr Pentis, Exhibit 1, tab C, p 4: 15-30%.
[50] 6.5% of $551,500 is $35,847.50, rounded up: s 16(4).