Meechan v Savco Earth Moving Pty Ltd
[2021] QDC 14
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- Unreported Judgment
- Meechan v Savco Earth Moving Pty Ltd[2021] QDC 14
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Meechan v Savco Earth Moving Pty Ltd[2021] QDC 14
Meechan v Savco Earth Moving Pty Ltd[2021] QDC 14
DISTRICT COURT OF QUEENSLAND
CITATION: | Meechan v Savco Earth Moving Pty Ltd [2021] QDC 14 |
PARTIES: | GRAYSON GEORGE MEECHAN (plaintiff) v SAVCO EARTH MOVING PTY LTD (ACN 103 377 715 ) (defendant) |
FILE NO/S: | 382 of 2017 |
DIVISION: | Civil |
PROCEEDING: | Trial |
ORIGINATING COURT: | District Court at Brisbane |
DELIVERED ON: | Friday, 5 February, 2021 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 10 and 11 June 2019 |
JUDGE: | Sheridan DCJ |
ORDER: |
|
CATCHWORDS: | TORTS – NEGLIGENCE – GENERALLY – where plaintiff employed by sub-contractor of defendant – where plaintiff fell off the back of a truck after being struck by the boom of an excavator causing injury to right elbow and shoulder – where excavator was operated by unlicensed employee of the sub-contractor – where plaintiff admits to throwing a weighted object at excavator driver – where allegations by plaintiff include failure to ensure integrity of excavator on site, failure to ensure excavator was operated exclusively by experienced and licenced operators and failing to isolate the keys of the excavator – where quantum in issue – whether defendant breached its duty of care – whether any breach by the defendant was causative of the loss suffered by the plaintiff |
LEGISLATION: | |
CASES: | Bennett v Minister of Community Welfare (1992) 176 CLR 408, cited Leighton Contractors Pty Ltd v Fox & Ors (2009) 240 CLR 1, applied Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16, applied Sutherland Shire Council v Heyman (1985) 157 CLR 424, cited |
COUNSEL: | R J Lynch for the plaintiff E J Williams for the defendant |
SOLICITORS: | Gouldson Legal for the plaintiff Jensen McConaghy Lawyers for the defendant |
Introduction
- [1]The plaintiff, Mr Grayson Meechan, was employed by a sub-contractor of the defendant, Savco Earth Moving Pty Ltd (Savco).
- [2]Mr Meechan says that on 21 January 2014, in the course of his employment, while standing in the back of a truck he was struck by the boom of a hydraulic excavator owned by Savco. Mr Meechan alleges that he was knocked to the ground, thereby suffering personal injuries, loss and other damage.
- [3]Both liability and quantum are in issue.
- [4]Savco carried on the business of an excavating contractor.
- [5]Savco was the principal contractor of a job site situated at St Francis College, Julie Street, Crestmead in the State of Queensland (the Site). Savco engaged CD Kerb and Channelling Pty Ltd (CD), to perform kerb and channelling around the car park at the Site. Mr Meechan was employed by a related entity of CD, Nanray Pty Ltd trading as CD Kerb and Channel, as a labourer on the Site. Mr Joshua Harris was also employed by Nanray Pty Ltd, and was the foreman on the Site. It is alleged that Mr Harris was operating the excavator at the time Mr Meechan was struck by its boom.
- [6]In the statement of claim, it is alleged on behalf of Mr Meechan that the incident and consequent loss was caused by the negligence of Savco, by it:
- (a)failing to ensure the excavator was exclusively operated by appropriately experienced and licenced operators;
- (b)exposing Mr Meechan to a risk of injury which it knew or ought to have known by allowing an inexperienced person to operate the excavator;
- (c)failing to isolate the excavator by removing its ignition keys when Alex Savic was not operating it; and
- (d)failing to ensure the integrity of the excavator while on the job site.
- (a)
- [7]By its defence, Savco denies that Mr Meechan’s injury occurred in the way pleaded, and asserts that the evidence does not support the allegations of Mr Meechan It is denied that Savco was negligent on the grounds that:
- (a)the allegation that Savco has failed to ensure the excavator was exclusively operated by appropriately experienced and licenced operators is untrue;
- (b)Savco only allowed the excavator to be operated by appropriately skilled operators;
- (c)Savco did not allow an inexperienced person to operate the excavator and gave no permission to Mr Harris to operate the excavator;
- (d)keys were not left in the excavator when it was not being used by Savco; and
- (e)the incident was caused by the negligence of Mr Harris who operated the excavator without Savco’s permission to do so.
- (a)
LIABILITY
The Witnesses
- [8]Mr Meechan gave evidence and called three witnesses; Mr Joshua Harris, the site foreman, Dr Mark Robinson, an orthopaedic surgeon and Ms Amy Vincent, an occupational therapist.
- [9]Savco called Mr Alex Savic, director of Savco, and Mr Damien Savic and Mr Marc Savic, sons of Mr Alex Savic and employees of Savco, and Dr Phillip Duke, an orthopaedic surgeon
The Incident
- [10]CD used a kerb and channelling machine on the site. Given the weight of the machine it needed to be lifted mechanically in order for it to be moved. Ordinarily, the kerb machine was moved around the Site by a crane, a Hiab, which was attached to a truck owned by CD. On 21 January 2014, however, Mr Harris said, because of the location of the kerb machine on the Site, the Hiab could not gain access, and the excavator was required to be used to move the kerb machine onto the back of a truck. Mr Harris gave evidence that, on the morning of the incident, he had explained this issue to the supervisor who he thought was named Damien. He could not recall his surname, but knew Alex was his dad. Mr Harris said that this person said he would arrange to have a Savco employee bring the excavator to the kerb machine for this purpose.
- [11]Mr Harris said that, on the afternoon of the incident when the kerb machine was ready to be moved, he had sent one of his labourers to alert the Savco employees to come with the excavator as discussed. The excavator was brought to where Mr Harris and the kerb machine where on the Site.
- [12]Mr Harris said that the Savco employee who was operating the excavator asked if anyone else could operate the machine, because he had other duties to undertake. To this Mr Harris said that he had put his hand up and said “Yes, I can operate the machine.”
- [13]The Savco employee, who it is said moved the excavator to the kerb machine, was not identified and was not called to give evidence at the hearing. Given that both Mr Meechan and Savco could have called this witness no inference can be drawn against either for the failure to do so.
- [14]To lift the kerb machine onto the back of the CD truck, Mr Meechan rigged the chains to the four lifting points on each side of the kerb machine, which were secured by a D shackle.
- [15]Mr Harris operated the excavator moving the kerb machine from the ground onto the back of the truck. While operating the excavator, Mr Harris left the door of the glass cabin of the excavator open so that he could give instructions to Mr Meechan. While the kerb machine was being lifted onto the truck, he instructed Mr Meechan, who was standing in the back right-hand corner of the truck, to guide the machine into the middle of the truck so that the weight of the machine was evenly distributed. After the kerb machine was placed onto the truck, Mr Meechan removed the D shackles from the machine, leaving the chains in place.
- [16]Mr Harris said that he was waiting for Mr Meechan to finish de-shackling the machine from the excavator and give him the “all clear” to move the excavator, when he heard Mr Meechan yell out “Heads” or “Heads up”, a couple of seconds after which Mr Meechan had underarm thrown a D shackle to him through the door of the excavator. As Mr Harris reached out of the cabin to catch the D shackle, he thinks his left knee must have bumped the joy stick of the excavator. Mr Harris felt the excavator slew to the left and as he looked up the boom of the excavator was rocking slightly and Mr Meechan was on the ground.
- [17]Mr Meechan’s evidence regarding the incident was largely similar. Crucially however, he says that he was instructed by Mr Harris to throw the D shackle, belonging to the excavator, to him. He then said that with his right arm he underarm lobbed the D shackle approximately four to five meters to Mr Harris, who was leaning out of the cabin of the excavator with his left hand extended. Mr Meechan said that he had seen Mr Harris lean out and catch the D shackle. Mr Meechan says he was struck by the arm of the excavator and “thrown through the air”. He says he “did a couple of somersaults in the air” and landed upon his head, arm and shoulder.
- [18]Mr Meechan made no mention of throwing the shackle to any of the medical people who initially treated him. It does not appear in the first report of Dr Robinson, though it does in the second.
- [19]In examination in chief, Alex Savic said he had no independent recollection of any events specifically of 21 January 2014. He said that, if he had been asked if a Savco employee could shift the kerb machine for CD, he would have answered yes. He said for them to shift the kerb machine for CD, just makes their work easier.
- [20]In cross-examination it became clear that there was a distinction between shifting the kerb machine and moving the machine onto the back of the truck. It was clear that Alex Savic, in referring to shifting the kerb machine, was referring to moving the kerb machine from where it had been working into a different position on the Site.
- [21]When it was put to Alex Savic in cross-examination that a request had been made to use their excavator to move the kerb machine onto the back of the truck on that day, he said there was not. When he was then asked whether he was requested to shift the kerb machine for them on that afternoon, he said, “Yes, they did.” He said usually the request would come through the foreman on the Site and he said he thought it was a guy called Joshua. When the name Joshua Harris was then put to him, he said he was pretty sure it was that guy.
- [22]Marc Savic said he had no recollection of the day in question. In examination in chief, he said that if a request had been made for a worker outside of Savco’s employ to use the excavator it would have been denied. In cross-examination, when it was put that the foreman of CD asked to use one of the Savco excavators to load a kerb machine onto a truck, he said it would not have happened because there was no need for them to use Savco’s machine.
- [23]Damien Savic said he was not on the Site on 21 January 2014; and produced an entry from his diary referring to two different sites and to him performing traffic duty at those sites.
- [24]The evidence from the members of the Savic family is of little assistance in resolving the dispute as to the events of the day in question. It is clear that they had no specific recollection of that particular day or the incident. They would have no reason to; it not being suggested that they were present during or after the incident.
- [25]The evidence of Alex Savic as to his recollections of requests made that day is inconsistent. It seems, belatedly in cross-examination, he appears to recall a request to help move the kerb machine on the site that afternoon, but he continued his denial of any request to move the machine onto the back of the truck. In any event, it was not suggested by Mr Harris that he made his request to Alex Savic, who Mr Harris clearly was able to identify as the father of the person to whom he made the request.
- [26]The specific questions put to Marc Savic by both counsel do not accurately pertain to the incident alleged in the claim. The diary upon which Damien Savic relied was only located the Sunday before the first day of the trial and produced the day he gave evidence. The diary has many pages that are empty. On the evidence of Mr Harris, it was Damien Savic that had to distance himself from the Site that day.
- [27]Other aspects of the evidence of the Savics, relating to the safety awareness of Savco, of which more will be said later, also cause me to discount any reliance on their evidence as it relates to the events on the day in question.
- [28]On the other hand, Mr Harris gave his evidence in a straightforward manner, with no apparent bias.
- [29]Although Mr Meechan gave evidence that he had known Mr Harris through mutual friends before they were employed by CD, and that Mr Harris had played a role in securing Mr Meechan a job at CD, there was nothing in his evidence which suggested that he was trying to assist Mr Meechan in making this claim. In fact, Mr Meechan said that the two had lost touch since the incident.
- [30]Further, Mr Harris in giving his evidence did not attempt to exaggerate and, on several occasions, made appropriate concessions. Mr Harris openly conceded that he did not have a ticket to operate the excavator and agreed when it was put to him that by not disengaging the hydraulic lever to the excavator he had potentially caused or contributed to the injury of Mr Meechan.
- [31]There is, in addition, a high degree of consistency between this evidence and the evidence of the only other person during the incident, Mr Meechan.
- [32]The slight difference in evidence requires a consideration of the strength of the evidence of Mr Meechan.
- [33]Mr Meechan admits that the versions of the incident given by him in writing and orally to WorkCover, to its doctor and on five occasions to those treating him were not accurate; on one occasion admitting he lied and, on another occasion, saying he “misled the truth”. Mr Meechan conceded that on several occasions he had not accurately described how he was injured, as he had deliberately left out the role Mr Harris played in his injury. He explained that he had done this because Mr Harris was his friend that got him the job and he was quite scared that he would get Mr Harris in trouble; as Mr Harris did not have a licence to operate the excavator.
- [34]In the written submissions of Mr Meechan, it is said that the motivation for the inconsistencies was both “understandable and in one sense honourable”. It is also true that not too much necessarily has to be made of the fact that the history recorded in medical notes differs from the patient’s account in sworn testimony.
- [35]It is, however, necessary to make a factual finding about the precise circumstances of the incident, and in doing so it is impossible to choose the evidence of a person who has failed previously to give accurate accounts of the incident and who, particularly taking into account the medical evidence (which I will discuss later), is prone to exaggeration. I am also influenced in preferring the evidence of Mr Harris to Mr Meechan, though to a lesser extent, by the circumstances said by Mr Meechan to pertain to his earnings since approximately 2010; of which more will also be said later in this judgment.
- [36]I am accordingly satisfied that the incident happened largely in the way described, namely as a consequence of Mr Meechan suddenly throwing the shackle at Mr Harris whilst Mr Harris was operating the excavator with the consent of one of the employees of Savco. I certainly reject the defence case, which was not based on any evidence, that an incident arising from the use of the excavator may not have happened at all.
System of Work
- [37]In giving his evidence in chief, Alex Savic described Savco’s attitude towards safety on worksites as “absolutely paramount”. He also reported that in the last 14 years there had been no recorded safety incidents at Savco’s worksites.
- [38]Marc Savic also stated that safety was a priority to Savco, and they make sure that whoever was operating the machinery has been trained and knows what they are doing. He also said that, at the time of the incident, everyone that was operating the machinery had to be licenced.
- [39]When questioned as to any existing policy of Savco with respect to allowing workers outside of Savco’s employ to operate its machinery, Alex Savic stated that it was definitely not a part of Savco’s policy and not something that they would endorse. He said that if someone asked to use the excavator, Savco’s policy would be to refuse and insist that if they wanted something shifted a Savco employee would do it for them.
- [40]In cross examination, Alex Savic agreed that in order for a new employee to be allowed to operate the excavator, he would have to be satisfied that the employee was competent to use it; irrespective of whether the employee claimed to have sufficient experience. Damien Savic, in cross- examination, gave similar evidence. Specifically, he agreed that one of the exceptions to the general rule against allowing outside employees to use Savco machinery, would be if Savco trusted someone as being confident in what they were doing.
- [41]Marc Savic, giving evidence on this point, stated that there was no allowance for other persons who were not employees of Savco to use their machinery. In giving reasons for why this was the case, he explained that it was a “safety reason”, as they “…don’t know if [the] person is qualified to be able to operate the machine in a safe manner. We don’t know if they follow our standards as to how we work.” He also said that inexperienced workers could cause a lot of damage very quickly.
- [42]All witnesses, Alex, Marc and Damien Savic, denied that they had allowed Mr Harris to use the excavator on the date of the incident.
- [43]In cross-examination, Alex Savic gave evidence that when Savco employees are finished with what they are doing with the excavator, the key is removed from the machine, even when the employees have morning tea or lunch breaks. After giving this evidence, Alex Savic was directed to a statement that he had provided to an investigator on 1 December 2014, marked as exhibit 14 in these proceedings. In his statement, Alex Savic had said that, “The key is always left in the excavator while we were at the site as several of our employees would be using the excavator at diverse times during the day.”
- [44]Clarifying this statement, Alex Savic said that if he or the Savco employees were in close proximity to the excavator, they would leave the keys in the ignition. Alex Savic disagreed when it was put to him that the keys to the excavator were left in the ignition on the date of the incident, but he could not possibly know that as he was not in the vicinity of the incident at the relevant time.
- [45]In his examination in chief, Alex Savic said that, while there was a specific key used to operate the excavator, a similar key, such as the fuel cap key to Alex Savic’s Ford Ranger could be used to both open and start the excavator. He gave evidence to the effect that, on the day of the incident, Mr Harris could have had access to a key to start the excavator quite easily.
- [46]While Alex Savic, in the course of giving evidence, appeared to give evidence that Mr Harris had asked him to shift the kerb machine for CD that afternoon, he denied that one of his employees had driven the excavator to the kerb machine to be used by one of CD’s employees. He also denied that a Savco employee had asked one of the CD employees to operate the excavator.
- [47]Alex Savic said initially in evidence in chief that it was not possible for the lever on the excavator to be knocked by a kneecap, stating that, “the machines are not made like that. They are very safe.”
- [48]In assessing this evidence, it is clear Alex Savic overstated the safety protocols employed by Savco and the safety of the machine. Given that Savco is a small family business, the embellishments in his evidence and that of his sons were presumably to protect the image of the company.
- [49]The assertion regarding the safety features of the machine was really qualified in any event by his explanation that if the machine is not operated for a while it will automatically idle down, and that it takes a few seconds for the machine to be moved after the lever has been touched. Clearly only a few seconds were involved in this incident. The allegation was not, in any event, put to Mr Harris; who, although he did not have what he described as a “ticket” to operate the excavator, he did have some previous experience with operating excavators. In addition, having accepted the evidence of Mr Meechan and Mr Harris that the injury occurred essentially as they describe, there is no other plausible explanation of the event.
- [50]Apart from the inconsistency in his evidence regarding the removal or otherwise of the key to the excavator, the inconsistencies in the account of Savco’s practice of using the excavator to move equipment for their contractors is striking. At times Alex Savic said that employees of CD, usually the foreman Mr Harris, would ask if Savco employees could shift their kerb machine for CD and he would agree to this. Elsewhere in his evidence, however, he said that the CD employees do not ask Savco to move their machines, as they had their own crane.
- [51]While I accept the evidence that a generic key could be used to open and operate the excavator, I do not accept that Mr Harris took the excavator without permission. On the contrary, I find that Alex Savic arranged for an employee to drive the excavator to the location of the kerb machine and that this employee requested and allowed Mr Harris to use the excavator.
- [52]The attempt to mount a case that Mr Harris would have taken a key from some other machine or vehicle is bizarre. The evidence that this could have occurred given that any key would fit the excavator is quite inconsistent with the assertions that Savco was safety conscious. It also was not put to Mr Harris that he gained access to the excavator this way.
- [53]It is not possible to overlook these inconsistences and exaggerations. I reject the evidence of Alex Savic and Marc Savic in relation to the events of the day in question, the use of the excavator and the removal of the key when it was not being operated.
The Duty
- [54]Savco, in its further amended defence, admits that it owed a duty of care to Mr Meechan.
Common Law Duty
- [55]The common law does not impose a duty of care on a principal contractor for the benefit of independent contractors engaged by them, of the kind which the principal owes to its own employees.[1]
- [56]As was recognised in by the High Court in Leighton Contractors Pty Ltd v Fox & Ors:
“It is common in the construction industry for the principal contractor to arrange for the works to be carried out by subcontractors rather than by employing its own labour force. Among the advantages that accrue to the principal contractor in adopting this model for its undertaking is that it does not incur the obligations that the law imposes on employers. An employer owes a personal, non-delegable, duty of care to its employees requiring that reasonable care is taken. This is a more stringent obligation than a duty to take reasonable care to avoid foreseeable risk of injury to a person to whom a duty is owed.” [2]
- [57]The relevant considerations under which a principal will come under a duty to use reasonable care to ensure that a system of work for one or more independent contractors is safe, recognised in Leighton,[3] were discussed by Brennan J in Stevens:
“An entrepreneur who organises an activity involving a risk of injury to those engaged in it is under a duty to use reasonable care in organising the activity to avoid or minimise that risk, and that duty is imposed whether or not the entrepreneur is under a further duty of care to servants employed by him to carry out that activity. The entrepreneur’s duty arises simply because he is creating the risk[4] and his duty is more limited than the duty owed by an employer to an employee. The duty to use reasonable care in organising an activity does not import a duty to avoid any risk of injury; it imports a duty to use reasonable care to avoid unnecessary risks of injury and to minimise other risks of injury. It does not import a duty to retain control of working systems if it is reasonable to engage the services of independent contractors who are competent themselves to control their system of work without supervision by the entrepreneur. The circumstances may make it necessary for the entrepreneur to retain and exercise a supervisory power or to prescribe the respective areas of responsibility of independent contractors if confusion about those areas involves a risk of injury. But once the activity has been organised and its operation is in the hands of independent contractors, liability for negligence by them within the area of their responsibility is not borne vicariously by the entrepreneur. If there is no failure to take reasonable care in the employment of independent contractors competent to control their own systems of work, or in not retaining a supervisory power or in leaving undefined the contractors’ respective areas of responsibility, the entrepreneur is not liable for damage caused merely by a negligent failure of an independent contractor to adopt or follow a safe system of work either within his area of responsibility or in an area of shared responsibility.”[5] (Emphasis added).
Findings
Allowing Mr Harris to use the excavator
- [58]It is pleaded on behalf of Mr Meechan, that Savco breached its duty of care by negligently failing to ensure that the excavator was exclusively operated by appropriately experienced and licenced operators, and exposing the plaintiff to a risk of injury thereby.
- [59]While I accept that, Savco have a general practice of ensuring that the excavator is only used by Savco employees, on this occasion I have found that a Savco employee had allowed Mr Harris to operate the excavator.
- [60]No evidence was led that this involved disobedience to any instruction specifically given by Alex Savic, or that employees of Savco were instructed not to allow the excavator to be used by people other than employees of Savco or persons who demonstrably had a license to operate the excavator.
- [61]In these circumstances, that the Savco employee thought it reasonable to allow Mr Harris to use the excavator without obtaining the permission of Alex Savic, or checking Mr Harris’ formal qualifications, is not surprising.
- [62]The events occurred in circumstances where, on their own evidence, Alex Savic and his sons were aware of the risks attendant to inexperienced persons using the excavator. They also occurred in circumstances where the director of Savco had authorised the use of the excavator to move the kerb machine. In my view, the absence of any instructions involved a failure to exercise reasonable care to avoid unnecessary risk of injury.
Failing to remove the keys to the excavator
- [63]It is also pleaded that Savco breached its duty of care by failing to isolate the excavator by removing its ignition key when it was not being operated, and failing to ensure the integrity of the excavator.
- [64]It is clear that the key was not always removed when the excavator was not being operated. It is, in any event, remarkable that the machine was capable of being operated through a variety of keys.
- [65]In the circumstances, I consider that Savco failed to take reasonable care to avoid unnecessary risks of injury to Mr Meechan.
Causation
- [66]The next question is whether these failures were the cause of the injury suffered by Mr Meechan.
- [67]The test of causation is referred to as the common sense view of the events:
“Was the act sufficiently important and closely connected with the accident to make it reasonable on a broad common sense view to regard its author as responsible for it in law.”[6]
- [68]Mr Lynch, as counsel for Mr Meechan, urged the court to find that, having demonstrated that a breach of duty had occurred, followed by injury within the area of foreseeable risk, a prima facie causal connection was established, with the result that Savco had an evidential burden to adduce evidence that the breach had no effect or that the injury would have occurred even if the duty had been performed.
- [69]In the written submissions it was said that if there was sufficient evidence to displace the prima facie case, it remained upon Mr Meechan to satisfy the court upon the whole of the evidence that the injury was caused by or materially contributed to by Savco’s negligence. He submitted that Mr Meechan had proved that the breach of duty was a material cause of the harm suffered by him. He submitted that the cause of Mr Meechan’s fall was the inexperience of Mr Harris, a risk in the contemplation of Savco.
- [70]Although Mr Lynch did not cite any authority for the concept of a shifting evidentiary burden in these circumstances, he did refer to the well-known dictum of Gaudron J in Bennett v Minister of Community Welfare,[7] to the effect that once an injury occurs within an area of foreseeable risk, in the absence of evidence that the breach had no effect or that the injury would have occurred even if the duty had been performed, it will be taken that the breach of duty caused or materially contributed to the injury.
- [71]In this case, Mr Meechan acknowledged that, at the time of the incident, he was aware that Mr Harris was not qualified to operate the excavator. He agreed that standing next to an unqualified person operating an excavator was dangerous. Further, he agreed it was even more dangerous to throw a heavily weighted object in the vicinity of someone who was not qualified to operate the excavator.
- [72]It was, in any event, dangerous for Mr Meechan to have thrown an object at any person operating an excavator. In my view, the injury would have occurred as a consequence of that act, even if the excavator had been operated by a very experienced and qualified operator. It was the throwing of the weighty object, with little or, in effect, no notice, that was the cause of the injury.
- [73]In the result, I find that Savco was not responsible in law for the injury, and the claim is dismissed.
Contributory Negligence
- [74]If I had found that Savco was the cause of the injuries to Mr Meechan, I would have found, for the reasons already stated, that Mr Meechan contributed to his injury by undertaking what was clearly a dangerous activity; namely standing on a piece of heavy machinery and throwing a weighty object at the operator of the machinery.
- [75]In those circumstances, if I had found that the injury was caused by the negligent conduct of Savco, I would have found that the extent of Mr Meechan’s responsibility for his injuries would have been 80 percent.
DAMAGES
Events after the incident
- [76]Despite the finding that Savco is not liable for the injury, it is necessary to assess damages on the contrary basis.
- [77]Mr Meechan attended the emergency department of the Redcliffe Hospital the night of the incident. An X-ray on his right elbow confirmed the presence of a mildly displaced, comminuted, intraarticular fracture of the right radial head. This fracture was confirmed by a CT scan and Mr Meechan was placed in a neck brace. Mr Meechan recalls feeling pain down his whole right-hand side.
- [78]Mr Meechan was managed in a sling for approximately six weeks. At that stage, it was expected he would be not be able to return to full activities as a labourer until three months post injury.
- [79]When he started to mobilise his arm, Mr Meechan said he noticed pain in his shoulder. Mr Meechan was referred to Dr Houston, who further investigated his right shoulder with an MRI scan. The MRI scan was unremarkable with no signs of cuff or labral tears.
- [80]Mr Meechan gave evidence that he did not return to work at CD until approximately three months after the incident when the WorkCover doctor told him that it was suitable to return. Mr Meechan gave evidence that, at this point, he did not think he was “full health ready to work yet” and that the actual experience of returning to normal duties was “not good at all” as he “wasn’t capable of doing anything [he] could [usually] do.” Upon returning to work at CD, Mr Meechan was tasked with light duties consisting of pegging and helping the pegger run the string.
- [81]In August 2014, Mr Meechan said he was laid off. In his evidence in chief, he said that the reason given for the termination of his employment was lack of work.
- [82]On 27 January 2015, Mr Meechan commenced working for Ezi Roll Doors Australia Pty Ltd, where he completed what he described in his evidence as “factory work”. Mr Meechan said that he would mostly work on a self-feeding press and sweep. There was also an overhead crane that could be used for any heavy lifting. Mr Meechan said that, while he “could manage” to perform the work, his employment at Ezi Roll Doors was “a bit depressing”.
- [83]Mr Meechan ceased in this employment in approximately late July 2015 and attempted to gain employment within the construction industry as a bricklayer. While Mr Meechan did commence as a bricklayer with “BSK Blocklaying”, he only lasted a week in this employment, saying that “…my shoulder just couldn’t handle the work and my arm [would] give out on me.”
- [84]Since that time, Mr Meechan has been employed intermittently by a construction company, Kez Insulation.
Medical Reports
Plaintiff’s Export Reports
Dr Robinson
- [85]Dr Robinson examined Mr Meechan on two occasions and had provided two reports, dated 13 July 2015 and 20 November 2018.
- [86]In the course of his first examination of Mr Meechan, Dr Robinson observed a slight reduction in range of elbow motion, measuring 15-140 degrees, and that he had limited forearm rotation. Dr Robinson observed a mild reduction in range in his right shoulder motion and a mild reduction in power when strength testing against resistance in all directions, which was accompanied by expressions of pain.
- [87]In giving his diagnosis of Mr Meechan’s injury in his first report, Dr Robinson found that Mr Meechan suffered:
- A closed, comminuted, intraarticular and mildly displaced fracture of the right radial head;
- Post traumatic stiffness of the right elbow;
- Right supraspinatus tendonitis/subacromial bursitis; and
- Mild post traumatic stiffness of the right shoulder.
- [88]Diagnoses one to three above were replicated in Dr Robinson’s second report, however diagnosis four was omitted. In his second report, Dr Robinson observed that Mr Meechan “continues to report symptoms in the right shoulder but examination and investigations reveal an essentially normal shoulder joint.”
- [89]Regarding Mr Meechan’s risk of future degeneration, Dr Robinson found that:
“Grayson is at slightly higher risk of developing post-traumatic arthritis of the elbow joint or other degenerative changes effecting his elbow. I would place this risk at 15-20%. He is at no higher risk of osteoarthritis or other degenerative changes affecting his right shoulder.”
- [90]Referencing the Fifth Edition of the AMA Guides of the Evaluation of Permanent Impairment, Dr Robinson in his first report made the following assessment of Mr Meechan’s upper extremity injury:
- (a)6% impairment of the upper extremity function due to restricted range of motion of his elbow;
- (b)10% impairment of function of the elbow due to post traumatic synovitis of the joint, secondary to an incongruent radio-capitellar joint; and
- (c)4% impairment of the upper extremity function due to slight restriction in range of motion in the right shoulder, secondary to the tendonitis/subacrominal bursitis.
- (a)
- [91]Combining the above assessments, Dr Robinson found that Mr Meechan has a 7% impairment of whole person function as a result of the injuries sustained to his right elbow and right shoulder.
- [92]In his second report, Dr Robinson reached a lesser assessment of impairment. In his second assessment he found:
- (a)4% impairment of the upper extremity function of the elbow due to restricted range of motion in the elbow; and
- (b)1% impairment of the upper extremity function due to slight restriction in range of motion in the right shoulder.
- (a)
- [93]Combining the above assessments, Dr Robinson found that Mr Meechan has a 5% impairment of whole person function as a result of the fracture to his right radial head and mild stiffness of his right shoulder.
- [94]Although Dr Robinson considered that there were consistent signs of loss of elbow extension, he stated in his second report and in giving evidence that there were inconsistencies in the clinical examination of elbow rotation.
- [95]In his first report, Dr Robinson stated that the injury to Mr Meechan’s elbow would have an effect on employment flexibility, job security and long term earning capacity. In his second report, Dr Robinson stated that the injury to his elbow is having an effect on employment flexibility and job security, but concluded by stating, “He describes limitations in his capacity to return to work as a labourer” and that he concurred with the opinion expressed by Ms Vincent. In cross-examination, he said that an occupational therapist does a more thorough assessment and he had not formally tested Mr Meechan’s capacity to work as a labourer in all aspects of the job description. Dr Robinson said he did not have a firm opinion on the matter; though he later stated that Mr Meechan would have trouble heavy lifting because he could not get his arm straight.
Ms Vincent
- [96]Ms Vincent, the occupational therapist who examined Mr Meechan on 28 August 2015, provided a report dated 30 November 2015. At the beginning of her report, Ms Vincent is careful to say that she is reliant “upon the self-report of the claimant”, her examination and the information taken from her brief. Given the date of the report, this information included the first, but not the second, report of Dr Robinson and did not include the report of Dr Duke.
- [97]Ms Vincent in her report stated that:
“[e]xamining the right shoulder reveals painful and restricted range of motion. There is a painful arc of movement from 90 degrees of both right shoulder flexion and abduction. He reports pain with end range right elbow flexion.
…
Strength of the right shoulder is reduced compared with the left. Grip strength of the right (dominant) hand is reduced compared with the left”
- [98]Further, regarding Mr Meechan’s right elbow, Ms Vincent notes that he reported pain with end of range right elbow flexion and tenderness over the lateral aspect of the right elbow, extending over the anterior forearm.
- [99]Ms Vincent observed that he had “reduced tolerance for sustained overhead reach and forward reach activities” and overhead activities were deemed to be “significantly restricted”. Lifting activities were said to have been adversely affected, with Mr Meechan demonstrating a “significantly reduced tolerance for unilateral lifting using the right upper limb.” Overhead lifting and lifting away from the body were also deemed particularly problematic.
- [100]In her report and in cross examination, Ms Vincent confirmed that, after her assessment of Mr Meechan in August 2015, she had ultimately found that he was no longer suited to working in a heavy labouring role due to his injuries and that he was at risk of further degeneration of the right elbow. Ms Vincent found that a labouring role would require “simply too much lifting; forceful and repetitive use of the right upper limb” which Mr Meechan would not be able to sustain.
- [101]Further, Ms Vincent considered that Mr Meechan would have physical restrictions including experienced difficulties with repetitive use of his dominant arm, particularly where he would be required to undertake work above chest height, lifting overhead and unilateral lifting with the right upper limb. Ms Vincent considered Mr Meechan’s physical restrictions to be ongoing, saying that while he would not be incapable of performing such tasks, he could certainly struggle to undertake them.
- [102]Ms Vincent recommended that Mr Meechan avoid tasks which would cause additional wear and tear on his right elbow joint so as to reduce the likely degeneration of that joint.
- [103]Going forward, Ms Vincent opined that Mr Meechan would require retraining to participate in lighter employment[8] and, given his limited experience in lighter work, she considered that he could expect to work for the Award wage only in such occupations. She considered that there was a reasonable prospect that Mr Meechan’s “chronic occupational restrictions will be causative of labour market disadvantage” and as such he was a “disadvantaged job seeker.”
Defendant’s Expert Reports
- [104]Dr Duke examined Mr Meechan on 14 March 2018 and prepared a report that same day. In the summary section of his report, Dr Duke stated:
“This gentleman has no evidence of a shoulder injury. He had no pain at the time and noted the pain when he came out of the sling. No one has ever been able to find anything conclusive on examination and most surgeons that have seen him have expressed concern about the amount of vocalisations and other abnormal pain behaviours that accompany the examination of this gentleman. Clinically the Right shoulder is normal today.
The elbow has had a fractured radial head and as is often the case there is slight loss of extension which is minimal and unlikely to ever given any problem.”
- [105]Dr Duke was posed several specific questions, one of which being whether there was any discrepancy between the symptoms or injuries as reported by Mr Meechan and the clinical findings. Both in his report and during evidence in chief, Dr Duke said that Mr Meechan during the examination has reported a large amount of pain and extreme tenderness when pressure was placed on the back of the joint, which did not fit with the clinical or radiographic findings which reported no recognisable problem.
- [106]Dr Duke, in his report and in evidence at the hearing, opined that Mr Meechan’s injury could not be said to be a physical disability and would have no impact on his ability to perform daily living activities. In relation to Mr Meechan’s future work capabilities after the incident, Dr Duke reported that he would have:
“…no loss of ability to obtain and maintain employment [from] the injury. He is suited to ongoing employment in any sphere that he is suited to by training skills or experience.”
- [107]Further, in cross examination Dr Duke said that, as he could not find any significant evidence of problems in Mr Meechan’s elbow, other than slight loss of extension, he would not be precluded from work in the manual sphere.
Resolution of Medical Evidence
- [108]The inconsistencies in behaviour on examination noted by the doctors are matters of concern. Although related to the shoulder and elbow rotation, they affect any conclusion that can be drawn in relation to elbow extension; as do the vocalisations of pain by Mr Meechan which do not seem to be normal.
- [109]It is possible that Dr Duke is unduly hard in his view of the extent to which the elbow injury would affect the ability of Mr Meechan to work as a labourer. Nevertheless, there are a number of matters which lead me to the view that Mr Meechan’s evidence as to his capacity to work as a labourer should not be accepted. I have already concluded, in relation to liability, that Mr Meechan could not be relied upon to tell the truth. His varying versions of the incident show that he was evidently prepared to say anything that he perceived to be to his advantage.
General Damages
- [110]The result is that damages for pain and suffering and loss of amenities are to be assessed on the basis that Mr Meechan suffered the fractures stated resulting in a slight loss of rotation in his elbow.
- [111]Mr Meechan says that the injuries have prevented him from playing rugby league, rugby union and boxing, but he also said he stopped doing these activities when his son was born in February 2013. He said he tried playing cricket, but had to quit.
- [112]Mr Meechan said he gets pain in both his elbow and shoulder, but it is hard to rely on that complaint; for the credibility reasons already stated.
- [113]I assess the loss as $10,000.
Past Economic Loss
- [114]Mr Meechan has an unenviable documented work record. He has, as his counsel submits, probably never done a tax return. A schedule was tendered which shows that he was on Centrelink in the period from 1 July 2010 to 27 August 2013; albeit with two periods during which he also earnt income as a labourer. The schedule shows that between 15 February 2013 to 30 June 2013, Mr Meechan earned a gross amount of $2,341 working for Northside Door Centre. The agreed schedule also shows that he earned a gross income working for CD (through its related entity Nanray Pty Ltd) in the financial year ended 30 June 2014 of $18,902.
- [115]Mr Meechan received Centrelink in the following four years interspersed with his employment with CD until 21 August 2014 and later as a production worker for Ezi Roll Doors and labourer either on his own account or for Kez Insulation.
- [116]It was admitted by Mr Meechan in his evidence and submitted by Savco that the schedule does not show the full extent of Mr Meechan’s earnings. Savco, for its part, contends that an inference should be drawn against Mr Meechan for failing to disclose to Centrelink and the Australian Tax Office his full earnings. Mr Lynch submitted in his closing address that there was in fact no default by Mr Meechan; apart from a failure to submit tax returns at all.
- [117]Mr Meechan says he did not return to CD until approximately three months after the incident. He says he was on light duties and ultimately was laid off by CD saying they did not have enough work. Mr Meechan said, however, others were kept employed. He says he could manage at Ezi Roll Doors, but he found it a bit depressing because he had only ever worked in construction. He said he tried working as a bricklayer, but says he could not handle the work and his arm gave out on him. Mr Meechan said he was able to work for Kez Insulation as it was a sympathetic employer.
- [118]While off work, Mr Meechan received weekly WorkCover benefits at the rate of $734 per week. Counsel for Mr Meechan says that, based on those earnings, a weekly average rate of $750 net per week is an appropriate putative weekly income for Mr Meechan.
- [119]In its defence, Savco allege that the only loss suffered by Mr Meechan was the $16,000 weekly benefits paid to him by WorkCover. That figure was repeated in Savco’s written submissions. In oral submissions, it was said his past economic loss “ought to be capped at approximately six months wages.” It was said, though, that it had not been established that Mr Meechan was earning in excess of $700 a week at the time of the accident.
- [120]The WorkCover history report shows weekly benefits were paid from 22 January 2014 until 2 July 2014; approximately 23 weeks. In that time presumably WorkCover and its medical advisers considered Mr Meechan incapacitated for work as a consequence of the injury.
- [121]It is unnecessary to resolve the full extent of Mr Meechan’s income or his default with the taxation or social welfare authorities.
- [122]For present purposes it is sufficient to find, as I do, that the evidence does not sufficiently demonstrate that any loss after the time he was paid by WorkCover was caused by the injury. The employment history of Mr Meechan after that time is little different from that before it. His cessation of employment with Ezi Roll Doors reinforces the view that Mr Meechan was not very interested in obtaining employment.
- [123]Adopting the weekly income figure calculated by Mr Lynch and allowing a period of 23weeks, I assess the past economic loss as $17,250.
- [124]Compensation for loss of superannuation entitlements at the rate of 9.5% on the total allowed for past economic loss is $1,638.75.
- [125]Given the amount of the past economic loss is the same amount paid by WorkCover, there is no basis for an award of interest for past economic loss.
Future Economic Loss
- [126]There is no basis for an award for future economic loss.
Summary
- [127]If I had found for Mr Meechan, his damages would be calculated as follows:
Head of Damage | Amount |
General Damages | $10,000.00 |
WorkCover Special Damages (as agreed) | $6,298.94 |
‘Out-of-pocket’ Expenses (as agreed) | $1,000.00 |
Past Economic Loss | $17,250.00 |
Past Loss of Superannuation | $1,638.75 |
Fox v Wood Damages (as agreed) | $2,857.00 |
Net Assessment | $39,044.69 |
Orders
- [128]For these reasons, I make the following orders:
- The claim by the plaintiff is dismissed.
- If the parties are able to reach agreement as to costs, a consent order signed by the parties be filed by 4:00pm, Friday, 19 February 2021.
- If the parties cannot reach agreement as to costs:
- (i)the plaintiff file submissions, of no more than 4 pages in length, excluding any attachments by 4:00pm, Friday, 26 February, 2021;
- (ii)the defendant file submissions, of no more than 4 pages in length, excluding any attachments by 4:00pm, Friday, 5 March, 2021; and
- (iii)the plaintiff file any submissions in reply, of no more than 2 pages in length, by 4:00pm, Wednesday, 10 March, 2021.
- (i)
Footnotes
[1]Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 (Stevens) cited in Vella’s Plant Hire Pty Ltd v Mistranch Pty Ltd & Ors [2012] QSC 77, 9 [29].
[2](2009) 240 CLR 1, 11 [21] (Leighton).
[3]Leighton, 11 [20].
[4]Sutherland Shire Council v Heyman (1985) 157 CLR 424, 479.
[5]Stevens, 47.
[6]March v E & MH Stramare Pty Ltd (1991) 171 CLR 506, 515, adopting the language referred to in Fitzgerald v Penn (1954) 91 CLR 268.
[7] (1992) 176 CLR 408, 420-421.
[8]At paragraphs 35 and 36 of Ms Vincent’s report she referenced a ten day program provided at the cost of $5,101. She also considered that involvement by an experienced occupational rehabilitation consultant would be required, for an estimated 15 hours at a cost of $165 per hour.