Schmidt v Woolworths (Qld) Pty Ltd
[2009] QSC 106
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- Unreported Judgment
- Schmidt v Woolworths (Qld) Pty Ltd[2009] QSC 106
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Schmidt v Woolworths (Qld) Pty Ltd[2009] QSC 106
Schmidt v Woolworths (Qld) Pty Ltd[2009] QSC 106
SUPREME COURT OF QUEENSLAND
PARTIES: | |
FILE NO/S: | |
Trial Division | |
PROCEEDING: | Trial |
ORIGINATING COURT: | |
DELIVERED ON: | 8 May 2009 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 25, 26, 27, March 2009 and 24 April 2009 |
JUDGE: | Dutney J |
ORDER: | 1.I give judgment for the plaintiff against the firstdefendant in the sum of $442,402.46. 2.The claim against the second defendant is dismissed. |
CATCHWORDS: | TORTS- NEGLIGENCE –GENERAL MATTERS- Where the plaintiff was an employee of the first defendant- where the plaintiff was injured at the first defendants distribution centre- where the first defendant found to be liable for negligence of the maintenance mechanic in failing to properly maintain equipment- where the second defendant was the manufacturer of the equipment – where argued the design of the equipment was negligent -where design found not to be flawed Evidence Act 1997 (Qld), s 92 WorkCover Queensland Act 1996, s 315 Workplace Health and Safety Act 1995 (Qld) Wyong Shire Council v Shirt (1980) 146 CLR 40 |
COUNSEL: | J A Griffin QC with him Mr A J Williams for the plaintiff R Morton for the defendants |
SOLICITORS: | GB F e-lawyers for the plaintiff DLA Phillips Fox for the defendants |
[1] The plaintiff, Daniel Charles Schmidt, was injured at the first defendant’s distribution centre at Acacia Ridge on 14 November 2002.
Facts
[2] Mr Schmidt had been employed by Woolworths for approximately two years prior to the accident performing a variety of tasks, including making up orders, stacking pallets, or wrapping pallets. Pallet movers were provided to assist in moving pallets into, out of, or around the centre.
[3] A pallet mover is a machine with tines like a forklift used for picking up the pallets and moving them short distances. The pallet movers provided by Woolworths were electrically operated and designed to be walked beside or stood on. The machines had a narrow platform at the front on which the operator could stand when necessary.
[4] The pallet movers were operated by means of a movable arm; the arm moved up and down. The machine was controlled by means of twist grips on the arm and a number of buttons. The machine moved forwards or backwards depending on the direction in which the twist grip was turned. The machine was steered by rotating the arm left or right in much the same fashion as the rudder on a boat.
[5] Although always relatively slow moving, the pallet movers had two speed ranges. There was a normal speed range which could be increased by pressing what was known as the rabbit button. The rabbit button was so called because it had a picture of a rabbit on it.
[6] The normal and preferred method of stopping the pallet mover was by reversing its direction using the twist grip. This provided an effective braking mechanism. In addition to reversing direction, the machine could be stopped by using a mechanical brake. The mechanical brake was operated by lifting up the arm. Lifting up the arm moved a lever attached to the friction brake shoes causing them to connect with the brake pads, thus stopping the machine. This drum brake was a relatively simple mechanism. The lever attached to the friction brake shoes connected to a sleeve through which a threaded screw passed with the sleeve being fixed in the correct position by two locking nuts, one positioned on either side of it. As the brake linings wore, the effectiveness of the brakes could be maintained by moving the position of the sleeve on the threaded screw. This was done by adjusting the locking nuts.
[7] Mr Schmidt gave evidence that he was standing on the pallet mover moving pallets and travelling at about half walking pace. I estimate half walking pace to be about two or three kilometres per hour. Mr Schmidt said that he was driving the machine towards his supervisor, Mr Sands, who was about five metres away. He wanted to discuss with Mr Sands his duties for the shift which he had just commenced.
[8] As he approached Mr Sands, Mr Schmidt turned the twist grip to reverse to stop the machine. He said that this had no effect on the forward motion of the pallet mover. He then lifted the handle to apply the mechanical brake but that did not work either. The machine kept rolling, hitting the wall and crushing his foot.
[9] Mr Sands was not called to give evidence in the case. A workplace, health and safety investigation was carried out into the accident and a number of forms were completed by Woolworths and by various employees of Woolworths setting out what happened. These reports appear, prima facie, to be hearsay and, I suspect, largely reproduce Mr Schmidt’s version of the accident.
Liability of first defendant
[10] An investigation of the machine after the accident made two significant findings. The first was that the electrical operation of the machine appeared to be satisfactory. The second was that the locking nuts holding the sleeve in place on the threaded screw were loose, effectively preventing the mechanical brake from operating as it should. This evidence comes from a statement of Sebastian Miano who was a maintenance mechanic at the time. Although some effort was made to have Mr Miano attend the court and give evidence, he failed to appear and I admitted his statement pursuant to s 92 of the Evidence Act 1997 (Qld). In any event, the statement had been tendered without objection as part of the workplace health and safety investigation and was already in evidence. In any case, having regard to the expert evidence concerning the operation of the mechanical brake, the only probable cause of the mechanical brake failing was the locking nuts being loose.
[11] Mr Miano, in his statement, says that he observed that one of the locking nuts was loose when he took the cover off the front of the pallet mover. Because of the mechanics both the locking nuts are loose or tight.
[12] In the course of argument, counsel for the defendants conceded that he could not challenge Mr Miano’s conclusion that the locking nuts were loose.[1]
[13] I accept the evidence of Mr Chaseling to the effect that had the locking nuts been correctly tightened, they were unlikely to have worked loose. The inevitable conclusion is that the locking nuts had not been properly tightened after the previous service.
[14] When an attempt is made to apply the mechanical brake by lifting the arm, there is a point shortly prior to the mechanical brake being engaged when the electric motor in the pallet mover effectively goes into neutral. This is to prevent the electric motor working in opposition to the brake. I accept Mr Chaseling’s evidence that this is a desirable design feature and not a flaw in the machine.
[15] I accept the evidence of Dr Gilmore that the effect of friction between the wheels of the pallet mover and the floor of the distribution centre and the weight of the machine would cause the machine to stop in a relatively short distance, even in the absence of any braking device. Dr Gilmore’s evidence was that at the speed indicated by Mr Schmidt it would stop within two or three metres. The higher the speed, the longer the distance the machine would take to stop once the electric motor ceased to operate and in the absence of any braking device. I accept that even at top speed the machine would stop in a relatively short distance if the power was turned off.
[16] Applying these findings, I am satisfied that on the balance of probabilities Mr Schmidt was travelling at a much greater speed on the pallet mover than he is now prepared to indicate. Mr Schmidt may also have been closer to the wall than he now says. In any event, it seems to me most likely that Mr Schmidt suddenly appreciated the danger of a collision, either with the wall or the water cooler standing next to the wall and lifted the arm to apply the mechanical brake at the same time as attempting to reverse the twist grip. Why Mr Schmidt did this is not known. It may have been a panic reaction to the sudden realisation of danger. The reason does not matter. By lifting the mechanical brake the electric motor disengaged, thus preventing the reversal of the twist grip from stopping the pallet mover. Because the locking nuts were loose, the mechanical brake also failed to stop the machine, and the speed and distance were such that there was insufficient time for the machine to come to a halt unassisted. I would be surprised if Mr Schmidt was not aware that there was a position of the arm in which the electric motor was disengaged. He was familiar with the pallet movers. Again, I do not think it is crucial to make any findings in this respect.
[17] While it may be thought that in the scenario I have postulated Mr Schmidt might be considered in some way partially responsible for the accident, no claim has been made for contributory negligence. I am left therefore in the position that, had the mechanical brake operated as it should have, on the balance of probabilities the accident would have been avoided.
[18] Mr Morton for the first defendant conceded during the course of argument that if I came to the conclusion that the locking nuts were loose and accepted Mr Chaseling’s evidence that they are unlikely to have worked loose if correctly tightened in the first instance, Woolworths must be found negligent. Dr Olsen, in his report at page 12, also expressed the view that it is unlikely the locking nuts would come loose of its own accord.
[19] Despite concluding that Woolworths is liable for the negligence of the maintenance mechanic in failing to properly tighten the nuts, I am not satisfied that there has been any breach of Woolworths’ obligation pursuant to the Workplace Health and Safety Act 1995 (Qld). I am satisfied that the system of inspection and maintenance put in place by Woolworths was proper and adequate. No realistic system can prevent the occasional careless lapse by the maintenance mechanic in carrying out the task. The fact that work was carried out by an apprentice does not make the system unsafe if the apprentice is supervised. As far as Woolworths was able, it had in place a system of supervision for the apprentice which I consider appropriate. I accept the evidence of Mr Fainges in this regard.
[20] For the reason I have indicated, however, I am satisfied that Woolworths has been negligent and that negligence is causative of the loss suffered by Mr Schmidt.
Liability of second defendant
[21] Against the second defendant, the manufacturer of the pallet mover, it was argued that the design of the pallet mover was negligent. It was submitted that had a lip been placed around the standing platform on the front of the pallet mover, Mr Schmidt’s foot would not have slipped off the platform on impact and he would not have been injured.
[22] I accept the evidence in paragraph 4 of Mr Chaseling’s report dated 8 August 2007 as follows:
“The addition of side plates to the open platform would, in all probability, have prevented Mr Schmidt’s foot from moving outside the profile of the vehicle, although there is of course no certainty of that. It must be acknowledged that the addition of such side plates could increase the risk of a trip by an operator entering or leaving the platform. However, no item of safety equipment does not introduce its own safety hazards, and, as long as these hazards are small relative to the hazard it overcomes, the overall improvement is acceptable.”
[23] It should be noted that, as appears from Dr Gilmore’s report, pallet movers, universally, appear to have flat platforms without lips. The reason for this appears to me to be obvious. If pallet movers are designed to be walked beside, as well as ridden on, there is a probability that workers will step on and off the platform while the machine is in motion. The presence of a lip in those circumstances seems to me to create a much greater likelihood of tripping and subsequent injury than the risk of the foot slipping off the platform and being crushed against a solid object. Having regard to the size and weight of the pallet movers, the injuries caused by tripping are likely to be severe.
[24] No evidence was called by the plaintiff in an attempt to establish the relevant likelihood of the competing risks. Nor was any attempt made to explain the reason for the current design of the platform and the impact on the operation of the machine that the placing of a lip would have. The only evidence called was that if there was a lip it was unlikely a foot would slip off. This does not satisfy the evidentiary burden on the plaintiff. The plaintiff has not demonstrated to my satisfaction that the obligation to avoid tripping is overshadowed by the conflicting obligation to avoid foot slips.[2]
[25] The fact that the next generation of machines purchased by Woolworths for its distribution facility had lips is irrelevant. They were a different type of machine. They were designed for the operator to sit in. The operator does not appear to get on and off the machine. There is no evidence the later machines were designed to be walked. Of more relevance is the design of the current generation of pallet movers, the brochures for which are appended to Dr Gilmore’s report. None of the current generation of pallet movers has a lip on the platform.
[26] The other allegation pursued against the second defendant was that its design was negligent in allowing for a neutral position prior to the engagement of the mechanical brake. The only evidence on the matter is Mr Chaseling’s opinion that this was a desirable feature of the machine and Dr Olsen’s contrary opinion. Neither Dr Olsen nor Mr Chaseling inspected the machine Mr Schmidt used or another of the same model. Despite his general opinion that the existence of the neutral position was a design flaw, Dr Olsen conceded that without it there was a risk of the electric motor being burnt out (report p 9). Since he did not see the relevant model of the machine or even a brochure relating to it, Dr Olsen’s opinion that the neutral position was too extensive is purely a guess. I reject this opinion as not being based on objective evidence. I am not satisfied the design of the electric braking method was flawed.
[27] The claim against the second defendant is dismissed.
Quantum
Pain, suffering and loss of amenities of life
[28] Mr Schmidt was born on 8 July 1977 and was 25 years old at the time of the injury and 31 years old at trial.
[29] Following the accident Mr Schmidt was taken to the Princess Alexandra Hospital by ambulance. There he was treated for compound fractures to his ankle and a dislocation of the ankle. An operation was performed and open reduction and internal fixation performed. He had muscle skin flaps fashioned and was placed in a half slab.
[30] Mr Schmidt remained in hospital until 10 December 2002 on which day he was discharged in a wheel chair with instructions not to weight bear.
[31] Following his discharge from hospital, Mr Schmidt was attended daily for changing of his dressings between 11 December 2002 and 8 January 2003. He also attended physiotherapy and hydrotherapy at the Princess Alexandra Hospital two or three times a week for approximately three months.
[32] Both the injury and the treatment including the reconstruction of the foot and the taking of skin grafts from Mr Schmidt’s thigh were undoubtedly painful and the recovery prolonged. He has been left with significant scarring to his foot and ankle region which creates problems in wearing certain types of footwear. The foot swells with use making the footwear too tight. A copy of Mr Schmidt’s statement of loss and damage is appended to his further amended statement of claim filed on 5 March 2009. Regarding his residual disabilities, Mr Schmidt says under the heading “Currently” that:
“He still can’t run or jump – he hasn’t tried to. He can’t jog. He is limited to walking a few hundred metres. He has difficulty squatting, kneeling, negotiating stairs and uneven ground. There is still locking, catching, swelling and giving way of the leg. He is comfortable with his shoes. He tends to use his other leg when he bends or squats and he can’t stand for too long on it. He still has to take analgesics quite a lot as it aches a lot.”
[33] On 24 July 2008, Dr John Pentis assessed the plaintiff as having an 8 to 10 per cent whole person impairment.
[34] While I accept that there is residual disability limiting Mr Schmidt’s physical capabilities, I am not satisfied that it is as extensive as he maintains.
[35] The evidence he gave as to the extent of his incapacity was that he was unable to play with his children or mow the lawn for any longer than a certain amount of minutes when he was living in rented accommodation. The lawn had to be mowed by his brother-in-law and father. It was also suggested that he could not do heavier household tasks such as moving furniture. The DVDs were tendered by the defendants showing covert video-taping of Mr Schmidt for periods of time on 24 January and 23 February this year. The film of Mr Schmidt on 24 January 2009 shows him moving freely up and down stairs and carrying equipment for the purpose of cleaning the carpets in the rental house which he was then vacating. Although the equipment was relatively light, he had no obvious difficulty with it. The film on 23 February 2009 shows him mowing a friend’s grass on sloping ground. The grass is very long and obviously thick.
[36] Having regard to the evidence, I accept Dr Saxby’s summary of Mr Schmidt’s prognosis set out in his report of 24 March 2003:
“I believe that the prognosis for this gentlemen is very guarded. He has suffered a very serious injury to his ankle. I believe that this gentlemen will have a permanent impairment long term and it will take him at least 12 months to reach maximum medical improvement. I thought that it was unlikely that he would return to his previous employment. At best he would be fit for sedentary duties or light manual work.”
[37] This opinion was based on an interview with Mr Schmidt on 24 February 2003, a little over three months following the accident.
[38] In his last report dated 27 May 2008 and based upon a consultation on 1 May 2008 Dr Saxby assessed Mr Schmidt’s degree of permanent incapacity at 5 per cent of the whole person.
[39] As early as March 2003, Dr Saxby considered Mr Schmidt to be fit for future employment, but not including heavy manual labour. Dr Saxby considered that the plaintiff would best be suited to sedentary work or work with light duties only, but would be able to continue until retirement age in such a less demanding job. Dr Saxby’s opinion was reinforced rather than challenged after seeing the film of Mr Schmidt’s activities.
[40] Taking into account the matters to which I have referred and in particular the serious nature of the injury and the painful initial recovery, the rate of recovery and the continuing permanent disability, I award damages for pain, suffering and loss of amenities of life in the amount of $65,000.
Past economic loss
[41] For past economic loss Mr Schmidt claims an amount of $185,000. This figure is calculated by taking Mr Schmidt’s finishing salary with Woolworths and applying an annual inflation increase until trial.
[42] According to a report from Mark Thompson from Vincents, Chartered Accountants, the calculation was based upon a finishing salary for the last year worked with Woolworths of $620 per week net and a notional income for the year ended 30 June 2008 of $722 net per week.
[43] Mr Schmidt’s employment with Woolworths was terminated on 4 March 2005. The reason given for termination was that Mr Schmidt was unable to return to his pre-injury work position of order assembler. This is consistent with the report of Dr Saxby’s whose evidence I accept.
[44] Since ceasing employment with Woolworths, Mr Schmidt has not applied for any form of paid employment. The following passage appears from Mr Schmidt’s cross-examination at p 2-45:
“See, given what's on the video, I suggest there are plenty of jobs you would be capable of doing if you wanted to, aren't there?-- I'd like to think so, yes.
But you have never applied for any?-- Not as yet, no.
What's the delay?-- I just don't think I can work 40 hours a week, five days a week.
What about starting off and trying a bit of part-time stuff?-- Yeah, if I can find somebody to employ me.
What have you done about that?-- Nothing as yet.
You haven't tried to find somebody to employ you?-- No, not really.”
[45] Mr Schmidt’s pre-accident experience was limited. He was employed by Woolworths from about the age of 23 years. In the three years prior to his accident, the only job Mr Schmidt had, apart from the job at Woolworths, was as a meat worker.
[46] The impression I was given was that Mr Schmidt is not anxious to return to work. An example of his general attitude is referred to by Dr Powel in her report dated 28 July 2008 which was based upon a consultation on the same day. In relation to work prospects, Dr Powel said:
“Mr Schmidt would not be able to resume his former type of employment due to pain and swelling in the left foot when standing. The type of employment in which he could engage is very limited since he has a poor academic record and no formal skills or training in sedentary occupations. He has limited computer skills despite having done a computer course. He could not work in any position requiring standing for much of the time or any heavy lifting. Occupations such as receptionist, cashier, light process worker would be possible but Mr Schmidt himself states that he prefers his occupation to be exciting outdoors, and without supervision which none of the above would be.”
[47] Having regard to the medical opinions expressed as to Mr Schmidt’s capacity to work and the absence of any application for any position over the last six and a half years, I am not satisfied that this failure to earn an income at all since his employment with Woolworths was terminated is entirely due to his injuries. Undoubtedly his ability to find an appropriate position is restricted as a result of his injuries and the range of occupations open to him more limited than it would otherwise be. Nonetheless, I am not satisfied that he would not have been gainfully employed for at least some of the intervening period had he had any motivation to obtain work.
[48] Doing the best I can with the unsatisfactory state of the evidence concerning Mr Schmidt’s failure to work from the time he left Woolworths until the present, I propose to allow him the amount claimed as set out in Schedule A to Mr Thompson’s report until the end of the 2004/2005 financial year and thereafter allow the amount at 50 per cent thereafter. This assumes that Mr Schmidt was unemployable from the time of the accident for a period of more than two and a half years and thereafter had his earning capacity reduced by half. The amount awarded for past economic loss thus comes to $117,910.50.
Interest on past economic loss
[49] From the explanation to the Schedule at p 9 of Mr Thompson’s report I have proceeded on the assumption that no amounts payable by Workers’ Compensation and refundable are included with his actual earnings in Schedule A.
[50] Interest on past economic loss is allowed at 2.5 per cent for 6.5 years on $38,000 in the sum of $6,175.
Future economic loss
[51] For the future, having regard to limitations on Mr Schmidt’s obtaining gainful employment, I propose to proceed on the assumption that he has a residual earning capacity of 50 per cent of what he would have earned had he remained with Woolworths. Based upon Mr Thompson’s calculations, he has thus suffered a diminution of earning capacity of $361 per week net over a period of 33 years. Using a multiplier of 856 this results in a total amount of $309,016 to which should be applied a discount of 15 per cent to allow for the normal vicissitudes of life the end result is an amount for future economic loss of $262,663.60.
Superannuation – past and future
[52] For the past and the future, superannuation is allowed at 9 per cent, making a total of $34,251.67.
Interest on past superannuation
[53] Interest is allowed on past superannuation at 2.5 per cent for 6.5 years in the amount of $1,724.44.
Future medicals, mediations and other treatments and Special Damages
[54] The amount for future medicals, medications and other treatments claimed in the sum of $15,000 is accepted by the defendants as is the amount of $27,535.07 for special damages.
Cost of pressure garments
[55] In the schedule of damages handed up at the conclusion of the trial, an amount for the cost of pressure garments for 50 years was claimed in the sum of $30,000 or $1,650 per annum.
[56] Mr Schmidt does not presently wear pressure garments, but I accept the evidence that were he to become employed pressure garments would be of assistance to him and improve his prospects of retaining any job he obtained. Ordinarily I would allow the amount for at least the period of Mr Schmidt’s working life. In this case, however, an objection was taken to senior counsel for the plaintiff leading evidence from the plaintiff in relation to pressure garments because the amount was not claimed either in the statement of claim or in the statement of loss and damage. When the objection was taken, senior counsel indicated to the court that he was not asking for future costs but leading the evidence only in relation to gratuitous care.[3] Part of the claim for gratuitous care involved the time spent by Mr Schmidt’s wife helping him to put on the pressure socks.
[57] Having regard to the objection which was taken and to the response to it by senior counsel for the plaintiff I do not think it is now open to the plaintiff to claim the cost of those garments.
[58] A claim has been made for gratuitous care, both for the past and in the future. The future can be quickly dealt with. I do not accept that there is any evidence which supports a claim for future care. Apart from being inconsistent with the evidence shown on the DVDs, such a need is inconsistent with the evidence of Dr Saxby which I have already indicated I accept.
[59] For the past it is clear that for some period he would have required assistance. In the statement of loss and damage Mr Schmidt claims approximately four hours per day assistance for two months followed by three hours per day for six months and half an hour a day to the present.
[60] I propose to allow the amount claimed for the first eight months and half an hour a day until the expiration of two and a half years from the date of the accident. In my view the evidence does not support any need for further assistance beyond that time. This allows the plaintiff 1,110 hours at an agreed rate of $15 per hour making a total of $16,650. In any event, the amount for gratuitous care can be claimed only as against the second defendant. Section 315 of the WorkCover Queensland Act 1996 prohibits recovery against Woolworths.
[61] In the result I award damages as against the first defendant as follows:
SCHEDULE OF DAMAGES
Head of damage | $ |
Pain, suffering and loss of amenities of life | 65,000.00 |
Past economic loss - as per Vincents report until 30 June 2005 and 50% thereafter until 30 June 2008 | 117,910.50 |
Interest on past economic loss at 2.5% for 6.5 years on $38,000 | 6,175.00 |
Future economic loss - $361 per week over 33 years, applying a discount of 10% | 262,663.60 |
Loss of superannuation – past and future @ 9% | 34,251.67 |
Interest on past superannuation at 2.5% for 6.5 years | 1,724.44 |
Future medicals, medications and other treatments | 15,000.00 |
Special damages | 27,535.07 |
TOTAL | $530,260.28 |
Less WorkCover refund | 87,857.82 |
$442,402.46 |
[62] Accordingly, I give judgment for the plaintiff against the first defendant in the sum of $442,402.46.