Christopher Howarth v Spotless Group Limited and Ors - [2012] NSWDC 25 - NSWDC 2012 case summary — Zoe

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Christopher Howarth v Spotless Group Limited and Ors

[2012] NSWDC 25

District Court of NSW|2012-02-06|Before: Mr P, Ms J

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Source facts

Court

District Court of NSW

Decision date

2012-02-06

Before

Mr P, Ms J

Source

Original judgment source is linked above.

Judgment (20 paragraphs)

[1]

Judgment 1Mr Christopher Howarth claimed that he injured his left shoulder and elbow on 23 October 2006 when he fell in the course of his employment as a cleaner at the abattoir operated by Peel Valley Exporters Pty Limited, the second defendant. 2At the time of his injury the plaintiff was employed by a labour hire company, Fast Track Pty Limited. This company was not a party to the proceedings. Fast Track hired the plaintiff's services to Berkeley Challenge Pty Limited, the first defendant, trading at Spotless at the second defendant's abattoir. Spotless held the contract to clean the second defendant's abattoir. 3The plaintiff was employed as a full time casual cleaner. He claimed that his injury occurred when he slipped on the floor of the boning room of the abattoir as he was walking backwards into the room pulling a heavy hot water hose. 4He claimed against the defendants on a joint and several basis, alleging that both the system of work and the facilities made available were unsafe for the task that he was required to perform. 5The defendants denied liability and claimed that there was contributory negligence on the part of the plaintiff. 6Each defendant cross claimed against the other. I was informed at the commencement of the hearing that the defendants had resolved their differences and they requested that I order that the cross claims be dismissed with each party paying its own costs. Taking account of the resolution of these actions and of the fact that the defendants were represented at the hearing by one counsel, I considered it unnecessary to apportion liability between them. 7Since they were not argued, I disregarded those parts of the defences that claimed that the second defendant owed no duty of care to the plaintiff and relied on s 50C of the Limitation Act 1969. I proceeded on the basis that the first defendant owed the plaintiff a duty of care as host employer and that the second defendant owed him a duty of care as occupier of the premises in which he worked at the time of his injury. 8Each defendant relied on s 151Z of the Workers Compensation Act 1987 in relation to the conduct of Fast Track. 9A memorandum of consent to the exercise of extended jurisdiction was filed at the commencement of the proceedings. 10The issues for determination were: 1The circumstances in which the plaintiff was injured; 2Whether those circumstances established a breach of duty by the defendants; 3The extent, if any, of the plaintiff's contributory negligence; 4Whether those circumstances established a breach of duty by Fast Track; 5The extent to which any breach of duty was causative of the plaintiff's injury; 6The compensation, if any, to be awarded to the plaintiff for non-economic loss, loss of income earning capacity, medical expenses and domestic care services.

[2]

THE CIRCUMSTANCES OF THE PLAINTIFF'S INJURY 11The plaintiff said that on 23 October 2006 he was assigned to work in the boning room of the second defendant's abattoir. Exhibit 8 was a diagram representing the floor plan of the boning room. It indicated that the room was approximately 27 metres square. The plaintiff and another cleaner, Mr Morris, each cleaned one half of the room, dividing it roughly centrally. 12The boning room was fitted with benches, tools and machinery used to bone lambs in the course of processing their meat for human consumption. Considerations of hygiene were therefore paramount. 13The boning room was cleaned at the end of each day after the meat processors completed their shifts and left the room. The cleaners were required to clean floors, walls, tools and machinery. This was done by the use of hot water hosing and chemical foam, the process being that hot water was hosed over the surfaces to remove blood, fat and meat scraps and grease from the surfaces. The foam chemical was then applied and hot water was hosed onto the surfaces once more to rinse away the foam. 14The parties agreed that the build up of the detritus of the day left the floor greasy and slippery and littered with fat and meat scraps. The cleaners were provided with gum boots with a sturdy heel. 15The plaintiff said his practice on arrival at the abattoir was to change into the protective clothing that was waiting for him in the laundry and then to proceed to the boning room. For reasons of hygiene, the hot water hose that he was required to use was stored outside the boning room. 16The hose was stored on a skillion roof over an enclosure that housed the compressor for the boning room refrigeration. In order to collect the hose it was necessary to walk the length of the boning room to a fire door in the northern wall of the room. On 23 October 2006 this was a one-way door, that is, it could be opened from inside the boning room only. It provided no external access to the boning room. 17The fire door opened onto the metal grated landing of a fire stair. On each side of the landing was a two level railing. One rail was at about waist height. The other was at about knee height. 18The plaintiff said the hot water hose was stored in a position on the skillion roof such that, in order to retrieve it, he was required to stand on the lower railing, lean to the left and take hold of the hose with his left hand. He was then required to lift and slide the hose until he could reach it with his right hand. At that point he placed one hand under the coiled hose and the other over the top of the coil and lifted it onto the landing at the same time as stepping off the rail. The bottom end of the coil dropped onto the landing as he turned, stepped backwards and dragged the hose into the boning room. 19The plaintiff said that at the same time as undertaking the task of lifting the hose from the skillion roof he was required to extend his right leg behind him to guard against the closing of the fire door. This was because, if it closed, he would have to walk to the other side of the abattoir to regain entry to the boning room. 20The plaintiff said that he carried out this procedure for about four weeks without incident. On 23 October 2006, as he stepped down and backwards from the railing, his right foot slipped and he fell and struck his shoulder against the door jamb. Immediately after this he struck his left elbow on the concrete floor of the boning room. 21The plaintiff said that his foot slipped at the edge of the door jamb. I assumed that by this he meant that it was at the junction between the landing and the concrete floor of the boning room. 22The defendants challenged the plaintiff's evidence concerning: 1The instruction and supervision provided to the plaintiff during the period that he worked at the abattoir; 2the point on the roof where the hose was stored; 3the extent to which the fire door stayed open; 4the length and weight of the hose, the connection points for the use of the hose and the requirement for an extended length; 5the plaintiff's credit generally and the alleged inconsistencies in the plaintiff's reports of the circumstances of his injury.

[3]

Instruction and supervision 23After successfully applying for work at the abattoir, the plaintiff was directed to go to the abattoir and meet Mr Peter Hickey, the manager for Spotless. 24He met Mr Hickey who showed him where to change into his white cleaner's uniform, gum boots and plastic apron. He was provided with a pair of thermal gloves to protect his hands from the hot water he was required to use. 25Mr Hickey took him to various areas within the abattoir, showing him the areas to be cleaned and how to clean them. He took him to the boning room and to another area that was required to be cleaned very well. In the boning room the walls, floors and machines had to be cleaned of blood and fat particularly well. Machines were required to be dismantled and cleaned. Mr Hickey pointed to places on the machinery where extra care was required and to areas that were difficult to clean. 26The plaintiff said that Mr Hickey showed him where the hot water hose was stored on the skillion roof of the structure outside the fire door. Buckets were stored on the roof with the hose. Mr Hickey showed how to retrieve the hose by stepping up onto the railing, dragging the hose off the roof and dragging it into the boning room. He showed the plaintiff the connection point near the fire door to which the hose was to be attached. 27The plaintiff said this was the extent of his instruction on how to undertake the work of cleaning the boning room. He worked for the first week in the boning room. He then cleaned other areas for two weeks. He returned to the boning room for a further three weeks prior to the date of his injury. 28Mr Hickey said he had never met the plaintiff. He said that in November 2005 he was transferred from the second defendant's abattoir to the Cargill abattoir where he worked full time as cleaning supervisor. The Cargill abattoir was located on the opposite side of the road. 29Mr Hickey accepted that he had an ongoing role at the lamb abattoir, part of which was to meet new Fast Track employees there. He said when he met the new cleaners he provided them with clothing and a locker, showed them the changing room, toilets, first aid room and various processing rooms, including the boning room. He denied that he showed them the location of the hoses for cleaning the boning room. He denied that he ever demonstrated how the cleaning work was to be done. He denied ever having seen the hot water hose on the roof outside the fire door. 30Mr Hickey said Mr Jobson was responsible for showing new employees how to do their jobs. 31Mr Jobson was the second defendant's quality assurance officer at the time of the incident. His role included the supervision of the cleaners. In respect of his involvement with the plaintiff his evidence was: Q.Were you Mr Howarth's direct supervisor? A.I - I think we was in the transition period the, there was another person being trained but I daresay I would have taken responsibility for him yes. Q.Were you the person who trained him in how to conduct the cleaning in the boning room? A.I would be responsible yes. HER HONOUR Q.Did you train him directly; when you say you were responsible, does that mean you trained him directly or you were responsible for the person who trained him? A.He was verbally trained yes. Q.By whom? A.By me. (Transcript 230.34) 32The quality of Mr Jobson's evidence did not improve. He said the hose that the plaintiff used was: A.Probably sitting on top of the roof outside the exit door. (Transcript 232.1) 33He said he did not show the plaintiff how to retrieve the hose. His evidence was: Q.Did you show Chris Howarth, the plaintiff, how to get the hose down? A.No I never. I probably walked out and said "There's the hose, there's your" because it was probably that height, you just pulled it out and that was the - and he's the same height as I am so I had no problem taking it down and I couldn't see any reason why. Q.Did you say you did pull the hose down in front of him? A.I showed him where it was yes and this is -- Q. And pulled it down or not? A.I never pulled it down, no. ... Q.Did you provide some other training for Mr Howarth? A.Mainly just beware of hot water and chemicals, that was about all we had, there was chemical awareness and dangerous chemicals and be aware of boiling water, make sure you had safety gear on. (Transcript 232.38) 34There was the totality of the evidence dealing with the instruction and supervision provided to the plaintiff on the matter of retrieval of the hot water hose. 35On the plaintiff's version, he was following instructions when he retrieved the hose in the manner described. On the defendants' version, he was given no instruction on how the hose was to be retrieved and he was never supervised to check that he was performing any part of his work to acceptable standards of safety. On either version there was a manifest breach by the defendants of their duty of care to the plaintiff. 36In deciding between the two versions, I concluded that the defendants' version was improbable. Mr Hickey confirmed that his responsibilities included meeting new cleaners and showing them over the abattoir. I did not consider it credible that the first defendant, having responsibility for the cleaning of the abattoir, in the particular, the boning room to a very high standard, provided no instruction to its cleaners on how the work was to be done. I considered that it was even less credible that the second defendant would tolerate such a situation. 37I also considered it improbable that the plaintiff was mistaken and that Mr Jobson, rather than Mr Hickey instructed him on the performance of his work. Mr Hickey was the person charged with the responsibility for dealing with new cleaners. I accepted the plaintiff's evidence that it was Mr Hickey who showed him how to retrieve the hose.

[4]

Storage of the hose 38The defendants did not dispute that the hose was stored on the skillion roof. They claimed that it was stored in a position where it could be retrieved by a person of the plaintiff's height of 188 cm without the need to stand on the railing. 39There were a number of photographs that provided graphic evidence of the structure on which the hose was stored, the fire door and the fire stair. 40The plaintiff agreed that in the period between 2006 and the hearing he forgot a number of the physical features of the area where he fell. He did not remember, when speaking with the expert engineer, Mr Dohrmann, the vertical support post that could be seen in the photographs. He was reminded of its presence when he visited the abattoir for the first time after his accident shortly before the hearing. 41The plaintiff said it was his practice when returning the hose to storage at the end of his shift to throw it to the left of the vertical post and underneath the diagonal beam that braced the structure to the left of the vertical post. 42He threw it into the area indicated by the red arrow on the photograph in Mr Dohrmann's report (page 8 of Exhibit A). 43The plaintiff denied that the hose was stored in the area to the right of the vertical post. 44In this evidence the plaintiff was supported by Mr Greer, an electrician and refrigeration mechanic who was employed at the abattoir for nine years by the second defendant as its maintenance supervisor. Mr Greer said that he regularly used the hose in the course of his employment and that he retrieved it from the skillion roof when cleaning after completing weekend maintenance. He described a procedure similar to that adopted by the plaintiff of standing on the lower rail, leaning to left and using his left hand to drag the hose onto the staircase and then stepping down and dragging the hose into the boning room. He said the hose he used was always lying flat on the skillion roof. 45He said he had never seen the hose stored in an upright position in the compartment to the right of the vertical post. Mr Greer said he did not think it would fit and that it would be difficult to place the hose into this area. 46Mr Barber worked as a cleaner at the abattoir from early 2005 to mid 2006. He cleaned the boning room for more than six months of that period. He said he left the hose on the skillion roof in the area indicated by the red arrow in Mr Dohrmann's report. He retrieved it from there at the start of the next shift by using the vertical post for support and standing on the low railing to reach across and take hold of it. His evidence concerning this process was: Q.How did you actually achieve the purpose of getting the hose from there into the boning room where you had to do the cleaning? A.Well I'd come out, I'd step up onto the rail, use - with the left foot and then I - I'd keep most of the weight on the left foot while I lent across to drag the hose, reach through with the left arm, drag it over till I could get both hands on the hose and then I would step - step backwards onto the - onto the grate, onto the -- Q.And do what then? A.And then well I'd normally walk backwards into the boning room. (Transcript 205.10) 47Mr Barber denied that the hose was stored to the right of the vertical post. 48Mr Thompson was the second defendant's plant manager, a position he held for nine years at the time of the hearing. He said the hose was kept to the right of the vertical post in a coil. He had never seen it stored to the left. He agreed that he had never been required to retrieve or replace the hose and that he had not used it. He said the hose was lying in a coil. He declined to estimate the diameter of the coiled hose. 49Mr Jobson said the hose was Probably sitting on top of the roof outside the exit door (Transcript 232.1). He said it was stored to the right of the vertical post. He had never seen it to the left of the post. He said it would be impossible to put the hose there and to retrieve it from that position safely. He denied that the only way to retrieve the hose was to stand on the rail and pull it. 50He thought it was inconceivable and illogical that the hose be stored to the left of the vertical post. He agreed that the hose when coiled was about one metre in diameter but he was unable to estimate the space available to the right of the vertical post. He said that when the hose pipe was hot it took on a oval shape that allowed it to fit into the space. He had never seen anyone place the hose in the space to the left of the vertical post and had never done it himself. 51Mr Morris was employed by the first defendant as the cleaner of the other half of the boning room, a position he held for a long period. He said the hose was stored to the right of the vertical post. He said he used the fire door for various purposes on occasion but not every night. 52He said he had never seen the hose to the left of the post. He was unable to state that the hose fitted in the space to the right of the vertical post, only that he saw it there. He agreed that the diameter of the coil was less than one metre if it was neatly coiled but that it was never neat. He agreed that he did not take particular note of where the hose was. The hose that he was required to use was stored on a hook in a carton room on the opposite side of the boning room. 53Mr Hickey said he had never seen the hot water hose on the roof outside the fire door. His evidence therefore added little. 54The plaintiff, Mr Greer and Mr Barber provided clear evidence that the house was stored and retrieved in the manner described by the plaintiff. I found no reason to reject the evidence of Mr Greer or Mr Barber. Since no evidence on the topic was taken from Mr Thompson, I disregarded the suggestions, denied by Mr Greer, that his evidence was motivated by problems in his relationship with Mr Thompson, his immediate supervisor. 55The evidence of the defendants' witnesses was unsatisfactory. None of them retrieved the hose from any part of the skillion roof. 56Mr Hickey denied any knowledge of the hose, notwithstanding that it was the property of the first defendant. 57Mr Jobson's evidence overall was unsatisfactory. He was only able to state where the hose was probably stored. 58None of the defendants' witnesses were able to explain how a hose of the size provided to the plaintiff could be fitted into the area to the right of the vertical post or how, without support, it remained upright.

[5]

The extent to which the fire door stayed open 59The plaintiff said that the fire door always closed unless he held it open with his right foot. He said there was no latch or other means of securing it in an open position. He therefore used his leg to ensure that it remained fully open before stepping down from the rail. 60He agreed that he believed that the door was fitted with an automatic closer and that this was what he told Mr Dohrmann. He said he formed this belief because it always closed. He was unaware of his mistake until he revisited the abattoir shortly prior to the hearing. 61He said the length of time that the door stayed open depended on the night. It was affected by windy conditions. It closed very slowly. 62The plaintiff said exhaust fans operated into the boning room from the start of the cleaning shift. The purpose of the fans was to extract steam produced by the hot water in the hoses. 63Mr Greer said he installed the extractor fans in the northern wall of the boning room to remove the steam and dry the room overnight. They were not turned on during the day. He said the door closed itself when the fans were operating. He said the door stayed open on the days when he retrieved the hose. On those days he used cold water for washing the floors. 64Mr Barber also said that the door did not remain open. He maintained that it was necessary to use his foot to hold the door open. He said the door closed at times when he was working in the boning room and as a result he was required to walk around to the other side of the building. 65Mr Thompson said the door closed if it was opened to one quarter of its span and the fans were operating. If it was fully opened, he said, it stayed open even if the fans were switched on. 66Mr Jobson and Mr Morris said the door closed if it was half way open but not if it was fully opened. They were not asked whether this situation changed when the fans were operating. 67I concluded that the probability was that the extraction fans operating at night in the proximity of the fire door caused the door to close slowly.

[6]

The dimensions of the hose 68There was much cross examination on the size and weight of the hose, although in the result this was not in issue because all of the witnesses, with the exception of Mr Jobson, were in substantial agreement. 69The plaintiff described the hose as yellow in colour, about 30 - 40 metres long and 30 - 35 kgs in weight. It was made up of two hoses joined together. When coiled it measured about one metre in diameter. 70There were two hose connection points in the half of the boning room cleaned by the plaintiff. It was put to him that the length of the hose was such that it was necessary to move from one connection point to the other. The plaintiff said the hose was sufficiently long to clean the whole room without moving it from the connection point that was closest to the fire door. 71The plaintiff said the weight of the hose varied, depending upon the extent to which it retained water at the end of the shift. He denied he exaggerated its weight and that it in fact weighed about 12 kg. He denied that a hose of 16 metres was sufficient to allow him to clean his half of the room. 72Mr Greer made up the hoses. He said regulations stipulated that they be not longer than 20 metres. They were, however, fitted with an adaptable joiner at each end and he had seen two hoses joined. He estimated the weight of two hoses to be 25 - 30 kgs. 73Mr Barber estimated the length of the two hoses joined together to be 30 metres. He said it weighed between 30 - 40 kgs depending upon the amount of water retained in it. He rejected the proposition that a hose of 20 metres in length was sufficient. He said the hose was heavier than 9 - 12 kgs. 74Mr Thompson agreed that the hose was 25 - 30 metres in length. He did not know what it weighed. 75Mr Jobson said the hose was 25 - 30 metres long and that it weighed about 500 grams per metre, more when it contained water. He agreed that he had seen hoses that were clipped together. 76Mr Morris said his main hose was 30 metres long and that it was extended with a second hose about 3 metres long. He said nothing about the weight of the hose. 77Mr Dohrmann was provided with a 16.8 metre hose that he weighed at 9.2 kgs. This was clearly not the hose used by the plaintiff and he was subsequently supplied with a hose 29.7 metres in length. He said the weight of the hose varied according to the quantity of retained water. 78Most of the witnesses estimated that the hose was 25 - 30 metres long. Mr Dohrmann reported that the weight of the 16.8 metre hose was 9.2 kg. It was therefore probable that the hose used by the plaintiff weighed about 20 kg when empty.

[8]

Inconsistencies 82The defendants alleged that the plaintiff's recounting of the detail of his accident to Mr Dohrmann and to medical practitioners was flawed to the point where I should not accept his version of events. 83Mr Dohrmann reported that the plaintiff told him that the fire door was self closing. I have already noted that the plaintiff said that he assumed that the door was equipped with a closer because of the simple fact that it closed unless he held it opened. He did not appreciate that a door closer had never been fitted until he returned to the abattoir in 2012, more than five years after the incident in 2006. 84The same response was provided to the questions put to the plaintiff concerning the presence of the vertical post. The plaintiff said he had forgotten about the presence of the post. 85The defendants claimed that the plaintiff said nothing until he gave evidence to the Court of the requirement to lean to his left when retrieving the hose. I noted that the plaintiff did not volunteer this information. He responded to questions put in cross examination as follows: Q.The whole procedure is you standing up in the middle of the bottom rail? A,That's right. Q.Is that right, with both feet? A.Yes. Q.You're leaning over to your left? A.Yes. Q.You're reaching underneath the diagonal member? A.That's right. (Transcript 88.43) ... Q.Do you agree that your body, while you're standing on the rail and first trying to retrieve the hose, you would be leaning to the left? A.You would lean to the left, yes. (Transcript 89.15) 86It was then put to the plaintiff that he invented the detail that he leaned to the left in the course of providing this evidence. 87It was correct to state that Mr Dohrmann did not record that the plaintiff explicitly referred to the need to the left. Mr Dohrmann was not called for cross examination on the question of whether the plaintiff told him that he leaned to the left, either in words or by demonstration. The defendants retained no experts who might have questioned the plaintiff in detail as to how the incident occurred. I was left therefore to speculate about the significance of the absence of record by Mr Dohrmann that the plaintiff leaned to the left in the determination of the extent to which the defendants failed to care for the plaintiff's safety. I concluded that it was of no significance. 88I accepted that the plaintiff was mistaken when providing information to Mr Dohrmann and that the mistakes were the result of faulty recollection after the elapsing of a considerable period of time since he was last on the second defendant's premises. 89The medical practitioners who treated the plaintiff after the accident made no reference in their records to the way in which the plaintiff claimed that he was required to retrieve the hose. His general practitioner, Dr Montanari, whom he consulted on 24 October 2006, recorded (Exhibit D3) that the plaintiff slipped on grease - landed on shoulder/elbow. The plaintiff insisted that he informed Dr Montana of the full circumstances of his fall. I heard no evidence from Dr Montana to counter this evidence. 90On 25 October 2006 the plaintiff attended at Tamworth Base Hospital where the clinical notes recorded slipped on mutton fat at work 2 days ago and slipped and fell at work. 91Other medical practitioners recorded histories, the details of which varied in extent and content, including Dr Dalton who wrote that the plaintiff stepped off scaffolding. 92This court is often left to speculate about what a doctor was told and what that doctor chose to record. Treating medical practitioners are concerned to understand the mechanism of injury only for the purpose of assessing the nature of the injury and the treatment that will be appropriate. They are busy professionals, unconcerned with the need to make records that would provide proofs of evidence. I was not concerned that the early records of the plaintiff's treating professionals failed to record in detail the circumstances that preceded his slipping on fat on the surface of the floor of the boning room.

[15]

Non-economic loss 115The plaintiff was aged 43 at the time of the incident. He is now 48 years old. His activities prior to the incident included participation in sports such as rugby league, Oztag, golf and horse riding. As a result of these activities he suffered a number of pre-incident injuries. He claimed that none of those injuries resulted in long term disability or affected his income earning capacity. No medical practitioner suggested that they did. 116After the injury he attended Tamworth Base Hospital complaining of pain in his left elbow and left shoulder. His arm was placed in a sling and he was advised to consult his general practitioner. 117After obtaining x-rays, Dr Montanari referred the plaintiff to Dr Doig for specialist treatment. An arthroscopy of the elbow was performed on 26 March 2007 but after some physiotherapy this treatment failed to produce acceptable results. The plaintiff was referred to Dr Hughes who performed further surgery at the Royal North Shore Hospital on 16 April 2008. Again, the surgery did not produce expected results and Dr Hughes and Dr Tonkin jointly operated on the plaintiff's elbow in June 2010. 118During this period the plaintiff was also treated by physiotherapists and received some psychological counselling. 119At the time of the hearing the condition of the plaintiff's left shoulder had settled but the symptoms it produced were not entirely resolved. The plaintiff complained of ongoing pain, particularly if his left arm was elevated. He said that at times the shoulder became inflamed and he needed to take pain killing medication. 120The plaintiff's main concern was his left elbow. He said that, in spite of the multiple surgical interventions, he continued to suffer symptoms. He said that the elbow locked from time to time causing him increased pain, there was nerve involvement that caused tingling and numbness in his fingers and the range of movement of his arm was reduced. The elbow was painful and the pain was worse after repetitive movement or use of equipment that vibrated, such as power tools or a lawn mower. 121The plaintiff said he used pain killing medication sparingly and he was recently prescribed cortisone injections to relieve pain. 122The plaintiff agreed that he continued to play and referee Oztag when he felt sufficiently fit. He said he played about five or six times since his suffered his injury. He could no longer play golf 123He purchased a house with his partner with the intention of renovating it. He discontinued work on the house because it aggravated his condition and the house was sold. 124In 2011 the plaintiff suffered lacerations to his left arm in an incident involving a glass door. He was hospitalised for one week. He said he recovered from this injury with no ongoing disability. 125A heart condition was diagnosed in 2011. The condition was treated and was not expected to cause further difficulty. 126In summary, the plaintiff at the time of the hearing suffered from moderate to severe pain, restrictions on the range of movement of his left elbow and sleep disturbance. He relied on pain killing medication and cortisone injections and physiotherapy at six weekly intervals. Some medical experts suggests that elbow replacement surgery might be required in future. The plaintiff did not at this stage intend to submit to further surgery. 127The medical evidence generally supported the plaintiff's complaints of symptoms. Dr Doig reported on 17 September 2010 (Exhibit F3) following surgery by Dr Hughes and Dr Tonkin: Despite these multiple procedures he has had no benefit from the surgery, with no improvement in his movement, ongoing dysaesthesia in his wrist and hand, stiffness in his wrist and ongoing stiffness in his shoulder. He has been left with poor strength to the left upper limb and a significant reduction in range of movement to the arm. 128In the same report Dr Doig diagnosed: 1Acromioclavicular joint dislocation at the left shoulder. 2Permanent and significant aggravation of pre-existing osteoarthritis at the left elbow resulting in multiple operative procedures including one by myself. 3Dysaethesia and neuropraxia affecting the sensory branch of the radial nerve below the elbow as a result of his surgical intervention. 129Dr Doig said the plaintiff's condition was likely to deteriorate and that his prognosis was poor. He raised the prospect that the plaintiff might require elbow replacement surgery at some point in the future. 130Dr Hughes provided a series of reports documenting the plaintiff's symptoms and the treatment provided to deal with them. His report of 24 June 2010 (Exhibit G3) to the plaintiff's general practitioner detailed the surgery he performed jointly with Dr Tonkin for neurolysis of the radial nerve and the Outerbridge-Kashiwagi (OK) procedure to relieve contracture at the elbow, improve the range of movement and relieve pain. 131Dr Herald reported to the plaintiff's general practitioner that the plaintiff had symptoms of pain, weakness and clicking in his left elbow and continued stiffness in the arm. He diagnosed end stage arthritis and suggested a trial of cortisone injections to relieve the pain. He said the plaintiff was too young to consider elbow replacement at this stage. 132Dr Oates reproted pre-existing asymptomatic degenerative changes in the plaintiff's elbow that were aggravated by the fall and rendered symptomatic. He reported significant restriction of active range of movement, weakness and wasting in the plaintiff's left arm resulting from the condition of his elbow. He said his condition would deteriorate with time and that the injury had accelerated the rate at which the degenerative changes in the elbow would occur. He also noted that there were disfiguring scars around the plaintiff's elbow as a consequence of the surgery performed in that area. 133The defendants tendered the general practitioner's clinical notes (Exhibit 4) that were said to record no complaints of pain in the elbow. This was not correct. On my perusal of those notes complaints of pain in the plaintiff's left elbow were recorded in 2008, 2009 and 2011. 134The defendants also referred to a letter dated 12 January 2010 written by a general practitioner (Exhibit 5) in which he stated that the plaintiff was mentally fit to carry out voluntary work. The plaintiff explained that this letter was written for the purposes of a court appearance and in support of a submission that a penalty other than a term of imprisonment would be appropriate. I noted that the letter also stated that the plaintiff was waiting for surgery for his left elbow. 135Dr Dalton examined the plaintiff in April 2011. He accepted that the degenerative condition of the plaintiff's left elbow was asymptomatic before the incident and that as a consequence of the fall there was aggravation that produced symptoms and additional osteochondral injury. He agreed that the plaintiff's condition would deteriorate and that, potentially, he would require elbow replacement. 136Dr Schutz also examined the plaintiff in April 2011. He differed from the other medical experts in his opinion that the plaintiff's condition was unrelated to his fall with the exception of some symptoms in his right (sic) shoulder. He attributed the left elbow symptoms to pre-existing arthritis and the presence of loose bodies. It appeared that Dr Schutz was not fully informed of the plaintiff's medical history after the incident. He appeared to understand that pain in the plaintiff's elbow developed some time after the fall and progressed from minor pain to become progressively worse. 137This understanding did not accord with the records of the general practitioner or the experts who treated the plaintiff. Dr Schutz referred to a record of Tamworth Base Hospital that there was nil tenderness in the left elbow. He apparently did not see the note of Dr Montanari of 24 October 2006 where he recorded that the plaintiff's left elbow was painful and stiff and that it could not be fully flexed or extended. 138The plaintiff's evidence, supported by medical findings, established that he suffered a moderate injury to his left shoulder with continuing minor symptoms. He suffered a moderately severe injury to his left elbow that aggravated and rendered symptomatic the pre-existing degenerative condition of the elbow. 139The assessments provided by the occupational therapists confirmed that the plaintiff continued to suffer from a significant level of disability. 140I assessed his non-economic loss at 33% of a most extreme case and awarded him $171,500.

[16]

Loss of income earning capacity 141The plaintiff had a chequered work history prior to the incident. His education was very limited and all of his work involved unskilled, manual labour. Not unexpectedly, he had some periods of unemployment. He was self employed for a short period of time when he trained horses with little remunerative return. 142After separation from his wife he became the sole carer for his three sons and a foster son. During this period he earned little, if any, income. 143I accepted therefore that it was likely that he did not file tax returns between 2001 and 2005 because his income was at a level where no return was required. 144In contrast, at the time of the incident the plaintiff had two jobs. He had been working in a chicken processing establishment for four days a week, with a break on Wednesdays, for about 18 months. He was employed by Fast Track five nights a week cleaning the second defendant's abattoir. He claimed that his income from these two sources amounted to $1,023 per week net. In both cases he was employed on a casual basis. 145The plaintiff has not had employment of significance since the incident. He worked for two weeks at the honey farm but said that he could not continue with the work. He returned to the second defendant's premises where he cleaned windows for a short period before the aggravation of his symptoms was such that he could not continue. 146All medical practitioners considered that the plaintiff was fit only for light non-repetitive work. A number of them reported that he was motivated to return to work and the plaintiff himself expressed his frustration at being out of the work force. 147I considered the claim for past loss of income to be reasonable. It was based on the plaintiff's income at the time of his injury. The figure arrived at was reduced by $1,400 being the sum earned at the honey farm and an amount to reflect 26 weeks of income to allow for the term of imprisonment and a period thereafter in which to regain employment. 148I allowed the sum claimed of $258,352 and superannuation of $28,418. 149Vocational assessments were undertaken by the Commonwealth Rehabilitation Services and the occupational therapist, Ms Zeman to determine the employment opportunities that might be available to the plaintiff in the future. 150Ms Ross of the CRS suggested that the plaintiff was able to work as a bar attendant, heavy truck driver, store person or sales assistant. By December 2010 it was apparent to Ms Bell of the CRS that the plaintiff required training into a sedentary position with the objective of returning to work initially on a part time basis and with increasing hours. 151Ms Zeman in September 2011 put forward prospects for employment as a light machine operator, truck driver to transport bulky goods, excavator operator or tipper driver, sales assistant, handyperson, labourer, bar attendant, process work or poultry worker. None of these occupations appeared to be of the sedentary nature that Ms Bell considered was necessary. Some were clearly inappropriate because they required the use of machinery, motor vehicles or power tools that created the vibration that the plaintiff could not tolerate. Others required further investigation as to the extent to which part of the work involved heavy lifting or loading. 152I did accept, however, as did the plaintiff, that he retained some residual income earning capacity. Realising that capacity presented problems. The plaintiff accepted that retraining was required. The limited level to which he was educated would disadvantage him in this respect. Once retrained, the plaintiff would need to find employment at the age of 48 years and with a disability that most likely would limit him to part time work. 153He claimed that, since his income at the time of his injury was close to the figure for average weekly earnings, his future loss of income should based on the current figure. I noted that his income at the time of his injury was the result of a working week of more than 70 hours. 154I did not think that this reflected the plaintiff's most likely future prospects but for the injury. I considered that an assessment based on $600 per week net was more realistic taking into account that: 1He was advancing in years and, with the diminution in his responsibilities to his family when his youngest son became independent, his capacity to work such hours and his financial needs would be reduced. 2There is some prospect, although limited, that he will realise some of his residual income earning capacity. 3His past employment history was somewhat chequered. 155I allowed $298,503 after applying the standard 15% for vicissitudes. I allowed $32,835 for superannuation at 11%. 156The Fox v Wood component was allowed in the sum of $14,886.64.

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Domestic Care 157The plaintiff made no claim for reimbursement of voluntary care services provided to the date of the hearing. He claimed for the cost of providing care on a commercial basis for the future. 158The plaintiff said he managed to perform most of his housework. He had difficulty with overhead work such as cleaning windows and hanging out washing. He agreed that he could carry loads within limits and that his son carried heavy shopping bags. He continued to mow his lawn but taking longer to do it and suffering pain as a result. 159Two occupational therapists assessed the plaintiff's needs. 160Ms Wolfgang (Exhibit R) assessed the plaintiff in June 2011. She noted the extent and manner in which the plaintiff modified his activities to manage most of his activities of daily living. She recommended that he be provided with paid assistance with lawn mowing and yard and house maintenance. She recommended that he receive assistance with heavy house work and laundry. Ms Wolfgang noted that in arriving at her assessment she had regard to the plaintiff's physical capacity, the opinions of Dr Doig and Dr Oates and the prognosis for deterioration in the plaintiff's condition. She referred to the need to guard against over use of the plaintiff's right arm. 161Her recommendation was that the plaintiff have 5.5 hours of assistance per week at rates amounting to approximately $195 per week. 162Ms Zeman (Exhibit 9) assessed the plaintiff in September 2011. Her conclusions were similar to those of Ms Wolfgang, although she assessed the plaintiff's needs at a lower level. She agreed that assistance with housework and heavy household and yard maintenance. She allowed for 2.87 hours per week. 163I did not consider that three hours per week was sufficient to deal with the plaintiff's needs. Ms Zeman noted the plaintiff's reliance on his dominant right arm to compensate for the weakness and disability in the left but did not, as did Ms Wolfgang, consider the need to protect against over use of the right arm. 164I accepted the factors identified by Ms Wolfgang, in particular the probability that the plaintiff's needs will increase as his condition deteriorates. To this I added the consideration that the plaintiff will not always be in a position to rely on the assistance currently provided by his youngest son. 165On this basis I accepted the claim for domestic care of 5.5 hours per week and allowed the sum claimed of $172,536.