DISTRICT COURT OF QUEENSLAND

Facts

1. [1]
   The first defendant (employer) was the plaintiff’s employer.  The second defendant (Council) engaged the employer to provide contract labour.  Council was undertaking the Brisbane Grammar/Victoria Park Lighting – Stage 1 Project in Brisbane.  Council engaged the plaintiff from the employer on about 18 March 2009 as a labourer. 

2. [2]
   The plaintiff was an experienced manual worker. He had been working in manual occupations for over 40 years. Over those 40 years he had gone through many inductions. He had regularly been told that if he needed to lift something he should hold his back straight, bend his knees and lift the load close to his body. In order to get his blue card the plaintiff underwent manual handling training. The employer had given him manual handling instructions on his first day with the employer in 2009. They were identical with exhibit 7. He was familiar with the manual handling instructions on pages 20 and 21 of exhibit 7. He was allowed to take the booklet home. It contained typed and pictorial illustrations of safe lifting techniques, including techniques for floppy loads like sacks and bags. Mr Lunnon of the council conducted his normal induction process with the plaintiff on 18 March 2009, which would have included specific address of the key manual handling components listed in paragraph 5.2.3 of Exhibit 22. Among other things it contained instructions with which he was familiar, including to keep a straight back and bend the legs, to use team lifts and various other techniques to lessen risks of back strain.

3. [3]
   On 22 February 2010 it was about seven weeks before the plaintiff’s 64^th birthday.^[1]  Sometime before 7.30 a.m. a truck owned by Council had been driven to this site by Glen Coulton, an employee of Council.  The work site was in an area between a swimming pool and a railway track located in Victoria Park.  It had been raining and Mr Coulton, who was in charge, deemed the wet conditions too unsafe for the usual work. Instead he proposed that the team attend to various safety matters. The plaintiff’s first task was to cover the sharp edges of star pickets with yellow plastic caps. Such caps are placed on the top of pickets to ensure that the sharp edges do no damage.

4. [4]
   At about 7.30 a.m. the plaintiff began searching the various cabinets of the truck for the yellow caps. He tried several with no success. After a couple of minutes of fruitless searching he opened the door to another cabinet fixed to the truck. The cabinet was below the tray of the truck at a point behind the cab of the vehicle on the driver’s side and immediately forward of the rear wheel on the driver’s side. The yellow caps were not ordinarily stored in that cabinet. That day the cabinet contained bags or “premix” mortar and “premix” cement. After looking for the caps, the plaintiff tried to close and secure the door of the cabinet. He found that it would not secure in the closed position. He concluded that there was probably a bag or bags of premix blocking the door. A photograph^[2] taken the next day shows two 20 kg bags of concrete and two 20 kg bags of mortar in the cabinet.  There is no evidence as to whether they were identical with bags that were in the cabinet on the day before.  If they were in the cabinet the day before, there is no evidence that the position in which they were photographed was the same as the position of the bags the day before.  The plaintiff recalls a pile of three bags stacked one on top of the other with a partly used bag on top of that pile.  The partly used bag has since been weighed at seven kilograms.  I accept that the contents of the cabinet were as the plaintiff recalled them to be and so there was a pile of pre-mix concrete and pre-mix mortar weighing about 67 kilograms.  The plaintiff suspected that some part of the pile may have been the obstruction which prevented the door from closing.

5. [5]
   The plaintiff pushed against the door trying to close it. It would not close. He next pushed his knee against the door to close it but without success. He explained that by this stage, he had spent about three minutes looking for the yellow caps when he had hoped to find them within 30 seconds. He explained that he was frustrated.

6. [6]
   The floor of the side cabinet was about eight to ten inches off the ground by the plaintiff’s assessment and that is consistent with the photographs. With the cabinet door open the plaintiff was able to lift his left leg and kick forwards and downwards at the pile. He explained that in his frustration he held on to the side of the truck with both hands so he could give extra effort to kicking the pile and lifted his left leg and gave the “third” bag “an almighty kick”. When this happened he heard his Achilles tendon snap. He did this manoeuvre in the hope that he would move the bags so the cabinet door could be shut and he could continue looking elsewhere for yellow caps.

7. [7]
   That “third” bag to which he referred was the lowest, but the plaintiff clarified that he kicked in the area of that bag. The plaintiff demonstrated the way he kicked and it was to lift his foot to about knee height and to drive it downwards so that the point of contact between his foot and the pile was likely to have been in the area of the ball of his left foot. The plaintiff demonstrated the manoeuvre in court, though without a target or the benefit of anything to brace himself against with his hands.

8. [8]
   The plaintiff’s pleading alleges that he “placed his left foot against a stack of bags of cement to push them back into the tray so that the door could be shut and in doing so, suffered personal injury, loss and damage.” That may be literally correct but it creates an incorrect picture. He did not place a foot against a bag and then subsequently apply pressure with a push. There was one, stomping, kicking manoeuvre which began before the foot came into contact with any bag. The plaintiff drew his foot up by lifting his knee and then drove his foot forwards and down using the sole of his left foot to batter once into the lower part of the pile with a view to pushing the pile of pre-mix bags backwards.

9. [9]
   The plaintiff had never been instructed that the way to move a load is by kicking it. The plaintiff did not suggest in evidence that he did not know the proper way to remove or to move a bag or pile of bags. I find that the plaintiff did know on the day of his injury that kicking the pile was not an approved or a sensible way to move it.

10. [10]
    The plaintiff said that he did not stop to think. The plaintiff agreed that the proper way to move the bags was to squat down and take the bags out of the cabinet individually and then restack the bags. He agreed that moving the bags would have been the wiser thing to do. He accepted that he could have taken the bags out individually and that that would have been the proper thing to do. He said he could have restacked the bags. There were other workers about. The plaintiff’s brother-in-law was somewhere in the vicinity. His brother-in-law was second in charge. He could have asked him for help. Mr Coulton was in the driver’s seat of the truck at the time. He could have asked him for help. The plaintiff said that it is common sense not to kick something large to try and move. These frank concessions by the plaintiff were unqualified. He did not suggest that he gained this wisdom after the event or that he did not understand the wisdom of it beforehand. He was an impressively honest witness. I find that he knew these matters at the time of his injury.

11. [11]
    If, as the plaintiff’s counsel submitted, there had been breach of duties of care by each defendant for failure to explain safe handling techniques, those breaches did not have any relevant effect on the plaintiff’s knowledge of safe handling techniques. The plaintiff knew what were safe handling techniques and knew that kicking the pile was not sensible or approved.

12. [12]
    The yellow caps are normally kept in the cabinet behind the driver’s seat. The plaintiff checked there and could find none. He went right around the truck looking for them and checking in cabinets. That is how he came to the cabinet containing the concrete and mortar. The concrete and mortar was not to be used at the site that day. There had been no need to use pre-mix concrete at the site in all the time they had been visiting it. That may have been two or three weeks.

13. [13]
    As a result of that rupture, the plaintiff underwent a repair of his left Achilles tendon and afterwards his left leg was placed in a boot and splint. He required medical treatment and advice from a general practitioner, a physiotherapist, an orthopaedic surgeon and an anaesthetist.

14. [14]
    Following the accident the plaintiff received WorkCover payments from 22 February until 17 September 2010. After 17 September 2010 the plaintiff worked until 9 June 2011 with Contract Logistics. His employment ceased then when that company ceased trading. He was then about 65 years and two months of age.

Liability Issues

15. [15]
    The employer admits that it owed the plaintiff a non-delegable duty of care. The council conceded that, as the plaintiff’s host employer, council owed the plaintiff a duty of care in negligence.^[3] Having regard to the duration of that employment placement, council conceded that the duty owed by council was indistinguishable from that owed by the first defendant as the plaintiff’s actual employer.^[4]

16. [16]
    In Stitz v Manpower Services Australia Pty Ltd [2011] QSC 268 McMeekin J summarised the relevant legal principles as follows:

17. [17]
    At paragraph 10 his Honour stated that:

“[10]  The plaintiff’s case was not straight forward. One complication is that no evidence was led of an expert nature that there were forces involved in any aspect of the work performed that day that had the capacity to injure a person of normal fortitude.”

18. [18]
    At paragraph 55 his Honour stated that:

“[55] But it has never been the law that an employer must remove all risk of injury. And appeals to general principles such as that the standard of care expected of an employer is high does not fill the evidentiary gap.”

Has the plaintiff established a breach of duty?

19. [19]
    As against the employer, the plaintiff’s particulars of negligence or breach of duty were four. In submissions, the plaintiff’s counsel reduced the focus to alleged failure to provide adequate training or instruction, alleged failure to properly instruct the plaintiff in the best method of manual handling and failure to ensure that the plaintiff had a safe place of work at which to carry out duties by failing to carry out a site inspection and risk assessment to identify that the Council was not following its own relevant procedure set out in Exhibit 21 at p 58.  It was submitted that the employer did nothing more than a desktop audit to determine the safety of Council’s systems. 

20. [20]
    I reject the submission that the employer did only a desktop audit. I accept the evidence of Mr Nekken that the employer actually did site inspections.^[5]

21. [21]
    I reject the submission that the employer failed to properly instruct the plaintiff in the safest method for manual handling. The plaintiff conceded, by his counsel, that he had seen diagrams showing the proper method for manual handling in spite of the plaintiff’s evidence that he could not remember whether or not he had seen the defendants’ manual handling instruction documents. I am not satisfied by the plaintiff that the employer failed to properly or at all instruct the plaintiff in the safest method of manual handling.

22. [22]
    The attack on the employer for failing to notice that the Council was not following the Council’s own relevant procedure needs explanation. The Council has a 127-page document^[6] setting out a construction safety plan for the project.  On the 58^th page it sets out eight control options for use to limit the risk of back injury from handling bags.  Two of those control options are:

• ensure bags are stored at a height where bending of the back is not required
• ensure handling height is waist level by using a scissor lift is raised as the bags are removed.(sic)

23. [23]
    The plaintiff’s counsel concentrated on the first of those control options. He submitted that the bags were stored too low and contrary to the control option. I reject that submission. Bending of the back was not required by the plaintiff to access even the lowest bag in the pile. The plaintiff could have squatted and kept his back straight. The plaintiff’s counsel submitted that if the bags had been stored higher the plaintiff would not have been tempted to kick them. That may be true, but I am not satisfied that it was a breach of duty to store bags in that cabinet. The plaintiff’s counsel did not make submissions on the second of those control options quoted. I accept the submission of the employer’s counsel that the second control option, properly interpreted, relates to occasions where a scissor lift is being used and that it is a requirement that the scissor lift raises bags to waist height for ease of handling.

24. [24]
    The plaintiff has failed to establish that the employer breached its duty to the plaintiff.

25. [25]
    As against the Council it was alleged that there was a failure to conduct any adequate risk assessment of the tasks undertaken by the plaintiff at the time of the injury. That general allegation was supported by a submission that there was no “sign on sheet” from which one should infer that no such sheet was prepared from which one should infer that there were no risk assessments done. I reject those submissions. I accept that no sign on sheet for the relevant day exists any longer. There was evidence that Mr Coulton was filling in a sign on sheet at the time the plaintiff injured himself.  I reject the submission that there was a breach of duty for failure to conduct any adequate risk assessment of the tasks undertaken by the plaintiff at the time of injury. 

26. [26]
    It was submitted that there was a failure to provide a truck in which the cabinets were situated at a height safe for manual handling. I reject that submission. It was not a breach to store bags at the height at which they were stored. Having regard to the manual handling instruction which had been given to the plaintiff he had sufficient knowledge to know how to engage in manual handling safely.

27. [27]
    There was another allegation in the statement of claim to the effect that it was a breach of duty for failing to provide a truck which would have prevented the stored bags from moving against the door of the cabinet while the truck was being driven. That was not pressed in submissions. I am not satisfied that a bag or bags were pressing against the door as a result of their being moved while the truck was being driven. If I were so satisfied, I am not satisfied that it is a breach of duty to fail to provide a truck that would prevent the bags moving against the door while the truck was being driven.

28. [28]
    I am not satisfied that there was a breach of duty by the Council.

29. [29]
    The plaintiff alleges that he intended to work until his 15 year old son had completed his schooling. There was no evidence as to that date. I was asked by plaintiff’s counsel to infer that it will be in two years when the plaintiff will turn 70. It was submitted for the employer that I should not make that inference as there is no evidence on the point.

If there was a breach of duty, did it cause the injury?

30. [30]
    The plaintiff must prove a causal link between any breach of duty and the damage which he suffered. While I have found that there was no breach of duty by either the plaintiff or by the council it is appropriate that I consider the further factual matter of a causal link on the hypothesis that there has been a breach of duty.

31. [31]
    In Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11 French CJ and Gummow J observed^[7]:

“To satisfy the element of causation … it would be necessary to identify the action which, on the available evidence, the trial judge could conclude ought to have been taken; that action, if failure to take it is to be accounted negligent, must be such that the foreseeable risk of injury would require it to be taken, having regard to the nature of that risk and the extent of injury should the risk mature into actuality; and it would be necessary that the trial judge could conclude as a matter of evidence and inference that, more probably than not, the taking of that action … would have prevented or minimised the injuries the plaintiff sustained.”

32. [32]
    The plaintiff injured his tendon by giving a 67kg pile an “almighty kick”. None of the allegations of negligence, if they had constituted a breach of duty, caused that event. The plaintiff knew that it was unwise to kick it and knew how to shift it without kicking it. I am satisfied that it was the plaintiff’s failure to take reasonable care for himself which was the cause of this injury.

33. [33]
    The plaintiff fails to establish liability against the defendants and his proceeding should be dismissed. I will assess quantum, nevertheless.

      Quantum

General damages

34. [34]
    The plaintiff underwent surgery to his left ankle, and a period of physiotherapy and rehabilitation. He wore a “moon boot” to speed recovery of the tendon.

35. [35]
    His rehabilitation included work with Contract Logistics. The plaintiff was able to carry out his work at Contract Logistics which involved lifting up to 20kg.

36. [36]
    The plaintiff’s injury would have involved an initial period of pain. The duration of that pain is difficult to determine. The plaintiff appropriately and honestly conceded that by April 2010 all of his attendances upon his general practitioner concerned his right hip problem, rather than his left Achilles tendon rupture. The only time the plaintiff has attended a GP in relation to his achilles tendon injury was to get a WorkCover Medical Certificate (T1-41/L25). He has not attended a GP for treatment of his achilles tendon.

37. [37]
    In mid-2011, the plaintiff started to receive a retirement benefit (T1-38/L30 to 33). The plaintiff and his wife agreed that the plaintiff would stay home and she would work (T1-38/L32 to 40). Since that time, the plaintiff has been the primary caregiver of his children, two of whom are physically disabled as a result of myelopathy.

38. [38]
    The plaintiff described a nearly four year period during which his left ankle pain was:

1. at a rating of 5 out of 100;

2. only present when his toes were flexed toward his shin or when walking on the ball of his feet on stairs; and

3. less painful than his right hip pain.

39. [39]
    The plaintiff can use stairs by putting his foot flat on the stairs and in that way he feels no pain on stairs. That took some adjustment to his normal gait. He does not suggest that it is inconvenient. The adjustment successfully prevented pain on stairs.

40. [40]
    The history above suggests that there is minimal disability from the tendon now and that there has been minimal disability for several years. Consistently with the history, the plaintiff asserts that he is physically able to do the work he had been doing for the council. That sounds optimistic having regard to his hip problems. But it is useful as some measure of the plaintiff’s own assessment of his disability relating to the Achilles tendon. It tends to confirm that the disability is minimal. There is no evidence that the work with council on the project was still available when the plaintiff’s rehabilitation ended or that it is available now.

41. [41]
    In the circumstances, the plaintiff’s pain and suffering must be assessed as being of short duration with only intermittent symptoms since and on certain postures, which the plaintiff said he is able to avoid. The plaintiff’s counsel referred to Cruwys v Brambles Australia Limited DC 97/223, a decision of 5 August 1997 involving repair of a ruptured left tendo-Achilles and an award of general damages of $20,000. That plaintiff’s disability of the whole leg was assessed at 10-12%. That was a much more serious problem. There is evidence of only minimal functional disability for the plaintiff in this proceeding.

42. [42]
    The resulting award for general damages should be modest. I accept the defendants’ submissions that an award of $5,000.00 is appropriate.

43. [43]
    The plaintiff is entitled to interest on past general damages. This should be apportioned as 100%, given his description of managing his ankle pain through avoiding flexion. At 2% per annum, the resulting calculation is $447.00 (2% of $5,000 x 4.47 years).

Past economic loss

44. [44]
    There was no evidence of the duration or extent of any incapacity for work resulting from the plaintiff’s Achilles tendon injury. Indeed, the plaintiff himself did not provide such evidence. The plaintiff has the burden of proving incapacity for employment in a claim for economic loss. I am left to draw reasonable inferences consistent with the scant evidence.

45. [45]
    Further, the plaintiff conceded that from April 2010 he experienced ongoing and worsening problems in his right hip. This is a causally independent subsequent event, as described in Chapter 2, Section 6 of Luntz.^[8] Thus the primary reason for any incapacity for work since 2010 or at the latest January 2011, was the plaintiff’s right hip condition.

46. [46]
    The plaintiff’s situation is indistinguishable from the situation analysed by the House of Lords in Jobling v Associated Dairies Ltd,^[9] in which the plaintiff’s onset of myelopathy had overtaken any disability resulting from the compensable incident.

47. [47]
    The proper approach to this head of damage would be to award the plaintiff the amount of the weekly benefits paid to him by WorkCover Queensland, which he is obliged to refund from any judgment sum. Those benefits were a total amount of $23,003.95. There was no evidence as to whether the plaintiff received superannuation entitlements whilst on WorkCover benefits.

48. [48]
    There would be no award for interest in this scenario.

Future economic loss

49. [49]
    Again, there is no evidence to support this head of damage.

50. [50]
    In any event, Dr Morgan’s report details that the plaintiff is suffering from a causally independent subsequent event (right hip arthritis leading to hip replacement surgery) that precludes the plaintiff from work in any event. This has, independently of the subject injury, significantly restricted his earning capacity in any event.

51. [51]
    The plaintiff confirmed this condition was the “most prominent” problem.^[10] Again, the present case is indistinguishable from Jobling v Associated Dairies, and future economic loss must be reduced by the extent to which the evidence shows that the plaintiff will be precluded from employment activities as a result of his naturally occurring right hip condition.

52. [52]
    Dr Morgan concluded relevantly:

“The restrictions placed upon him in the workplace are those which would serve to protect his artificial hip. They are not related to the work practices required of him.”

“He is capable of sedentary or semi-sedentary work practices which would allow him to avoid the application of repetitive stresses and strains to the right hip.”

53. [53]
    The plaintiff has adduced no evidence (expert or lay evidence) of incapacity from sedentary or semi-sedentary work practices as a result of his left Achilles tendon injury. Indeed, he engaged successfully in work practices with Contract Logistics after his Achilles tendon injury, without apparent restriction.

54. [54]
    Thus there is no evidence of any loss of capacity resulting from the Achilles injury that is “over and above” the incapacity associated with his right hip condition.

Taxation instalments

55. [55]
    Pursuant to Fox v Wood ^[11] the plaintiff is entitled to an award for the amount of taxation instalments paid by WorkCover Queensland. This was a sum of $5,223.00.^[12]

Special damages

56. [56]
    The only evidence adduced in relation to special damages is the medical, rehabilitation and other expenses paid by WorkCover Queensland. These were a total of $13,448.36.

     Quantum summary

57. [57]
    Thus the quantum summary of the second defendant is as follows:

58. [58]
    The parties requested that costs be reserved to permit the council to make written submissions for indemnity costs and to permit the plaintiff to respond to the defendants’ applications for costs. The employer seeks costs on a standard basis. I will determine the costs orders together upon receipt of the council’s and the plaintiff’s written submissions due this week.