This is an action for damages for personal injury by an employee against an employer. The plaintiff fell while descending a staircase. He claims that the fall was caused by his employer's negligence.
I have arrived at the conclusion that the plaintiff's claim fails. He has been unable to establish a breach of his employer's duty of care to him. If I had found in his favour, I would not have found him guilty of any contributory negligence, and I would have assessed his damages at $193,009.26. My reasons for arriving at those conclusions follow.
[2]
The plaintiff is thirty-one years of age. He lives in Canberra with his de facto wife and their two young children.
He grew up in Sydney. He left school soon after he turned fourteen, during year 8. He had done poorly at school. He had always had an interest in cars, which he retains. He found employment with a car detailing firm within a month of leaving school, and he worked there for three years, learning skills on the job. Although he has no formal trade qualifications, he has worked over the years mostly in car detailing and similar work.
He met his de facto wife in 2001, and they have generally lived together since, although the relationship has at times been a volatile one.
The plaintiff moved to Canberra during 2002, at about the time of the birth of his elder child, a daughter. His wife's mother lives in Canberra. Since soon after that time there has been considerable acrimony between the mother and his wife and between the mother and the plaintiff. In earlier years the plaintiff's relationship with his wife was also characterised at times by arguments, general unpleasantness and sometimes physical violence.
There is reason to infer that the plaintiff has always had a vulnerable and fragile personality. His father died when he was quite small. When he was about twenty, he took an overdose of analgesic requiring a hospital admission. It is not entirely clear whether this was a genuine attempt at suicide or an unsuccessful attention-seeking endeavour to retrieve a failing relationship with a girlfriend.
In August 2002 his wife told him that she did not want to see him any more and that he would not be seeing his daughter in the future. Perhaps inconsistently with this, she refused to give him his car keys. He reported the incident to the police, in an endeavour to retrieve his car, and the situation seems to have got completely out of hand. The plaintiff attempted suicide a day or so later by cutting his wrist, and spent a night in hospital.
The following month the plaintiff resigned from his employment in Canberra and returned to Sydney. His relationship continued on and off, with further violent episodes. His wife came to Sydney in an attempt to revive the relationship. They lived for a short time in a caravan behind a friend's house. The plaintiff says that his wife punched him on a number of occasions. On one of the occasions he kicked her to push her away. The police were called and he was charged with assault. The charge was not pressed but an apprehended violence order was made against him. It was a condition of the order that he not see her, but it seems that they agreed mutually to ignore this.
In mid-2003 the plaintiff changed his surname by deed poll to his mother's maiden name. He says that his motivation was to start a new life somewhere else. But things improved. In September 2003 he and his wife and the children found accommodation in a government house in Canberra, as subtenants from the tenant of the house. This was a breach of the lease by the head tenant and, the plaintiff says, had to be kept secret.
Within a month further problems occurred. It seems that the plaintiff's wife's mother reported the family to an ACT Government instrumentality concerned with the welfare of children. The police were also called in relation to this incident, another illustration of the general volatility of the plaintiff's home life at that time. His wife accused him without justification of liaisons with other women, and her mother accused him, equally without justification, of having sexually assaulted his daughter.
The plaintiff's second child, a boy, was born in 2004, and the family moved into accommodation at a caravan park in Canberra. This was a time of stress about money. In June 2004 the plaintiff was caught in an attempt to steal a pram and a tricycle from a department store. He was cautioned by police and no charges were laid. On Christmas Eve 2004 there was a further incident involving the plaintiff's wife's mother, with cross-accusations of violence. A neighbour called the police. The three adults attended the police station. It emerged that there was an outstanding warrant for the plaintiff's wife. She was arrested and spent Christmas Day in custody. ACT Government Family Services staff placed the children in the temporary care of an aunt.
In July 2005 the plaintiff and his family moved to their present address as long-term tenants of a government house in the southern suburbs of Canberra. Later in 2005 the plaintiff was out of work for about two months, following his resignation after an assault by a fellow employee.
During 2005 the plaintiff's driving licence was cancelled by reason of unpaid parking fines. The plaintiff had sold his car but the transfer had not been notified to the authorities and the plaintiff found himself liable in respect of parking infringements by the new owner of the car.
The plaintiff found another job as a car detailer, but left after three months because he thought he was being underpaid. He went on to Centrelink benefits, and found work through Centrelink with the defendant as a storeman and parts runner at its Mitchell warehouse. The defendant trades as a new and used car dealer. The plaintiff's job was to get parts from where they were stored in the warehouse, and take them to the mechanics who had ordered them and needed them for jobs they were working on. The system was that the mechanic would speak to another employee at a computer workstation who would check that the part required was in stock, and note where it was stored. The plaintiff would then be asked to collect it and take it to the mechanic at the workshop.
The plaintiff started work with the defendant at the warehouse on 13 February 2006, after a three-day induction course.
[3]
The accident happened at about 11.00am on Wednesday 22 February 2006, about a week and a half after the plaintiff commenced his employment with the defendant.
The circumstances of the accident are described in the statement of claim in the following terms:
The plaintiff was at all material times employed by the defendant as a storeman. On 22 February 2006 in the course of his employment the plaintiff was engaged in the retrieval of a spare part for a motor vehicle from an elevated storage location which was accessed by stairs.
The plaintiff slipped on the top stair of the stairwell used to access the elevated storage area, fell to his back and proceeded to fall down the remainder of the stairs landing on his buttocks and lower back at the bottom.
[4]
Paragraph 3 of the statement of claim was not admitted and paragraph 4 denied by the defendant in its defence.
The warehouse had a ground floor and an upper level, described by one of the defendant's witnesses as a mezzanine floor. There were six staircases between the two levels. The staircase on which the plaintiff fell was of metal, with hand railings on either side and steps which I find were probably of what is called chequer-plate steel. Beside the staircase was a metal slide for boxes and heavy items.
The evidence is that the plaintiff did not normally use this staircase. He used another one which was closer to where he was based, but on this occasion the parts he was getting were stored closer to the staircase on which he fell.
He had been sent to collect a set of plastic wheel caps designed to cover the nuts in the centre of the four driving wheels of a car. The caps are small and light and were packed in sealed plastic bags each containing two caps. Although one of the defendant's witnesses thought she remembered seeing the plaintiff carrying a box or boxes, I accept the plaintiff's evidence that in fact all he was carrying were the wheel caps.
The plaintiff was provided by the defendant with rubber-soled work boots. Senior counsel for the plaintiff foreshadowed in his opening tendering photographs of the boots but in the event did not do so, no doubt because there was no real issue about this aspect of the matter. One of the defendant's witnesses said, and I accept, that the boots had a heavy tread. Although there was no evidence specifically about this, I would also infer that the boots were virtually brand new, the plaintiff having been in the job for less than two weeks.
The plaintiff's evidence was that he went upstairs and found the parts. He was returning, carrying them in his right hand, with nothing in his left hand. Asked to describe what happened, he said:
[5]
I first walked from the part, walked up to the step, put my left hand out to grab onto the rail, put my right foot, still on the top platform, I then proceeded to put my left foot on the first step. As I did that I - my left foot slipped out from underneath me ... it caused me to go up and back like that, looking at the - I was looking up at the ceiling, and I felt myself hit the stairs and I tried to put my arms down - with my - I had my right hand clenched, it was pretty tight with the parts in the right hand, I had my left hand and I was trying to stop myself with both hands from sliding down like the stairs, I was trying to push on the stairs to stop myself. I then came to a rest on my back down - down to where I landed.
[6]
I asked the plaintiff, by way of clarification, whether he had grasped the railing. He replied, "I had my hand on the rail, yes."
The plaintiff said that he was not exactly sure what part of the step he touched with his left foot, but that he felt his foot go onto that step. He said, "I felt like it just slipped out from underneath me. I went backwards and at that time I didn't actually understand what had happened or realise what had happened."
The plaintiff said that an employee named Bob came to his assistance. He described Bob as the man "in charge of the picking and sorting out the back for the loading of the utes and trucks." It is clear that Bob was Robert Stevens, who later gave evidence in the defendant's case. By the hearing he had retired but at the time of the accident he had been dispatch supervisor at the warehouse, with some responsibilities in relation to the staircase. The plaintiff said that after the accident Bob instructed junior employees to "clean the stairs off, sweep them down and block them off . . .", and this was done. He said that Bob had also said, "The glue had worn - must have worn off. We paint them every two months; it has to be done this weekend". Senior counsel for the defendant objected to the plaintiff's evidence about the latter quotation. After some argument I expressed the provisional view that the evidence was capable of being relevant, although inadmissible for the purpose of proving the truth of what was said. I invited counsel to raise the objection again in final addresses if they wished to do so: neither side did, and any apparent significance of the piece of evidence was probably overtaken by the evidence of Mr Stevens and other witnesses in the defendant's case subsequently.
On the first day of the hearing, before the plaintiff gave his evidence-in-chief about the circumstances of the accident, I had the benefit of a view of the warehouse and the staircase. I shall need to return to this, because after the conclusion of the hearing, and after I had reserved my decision, application was made on behalf of the plaintiff to reopen the hearing. I heard the application and said that I would deal with it in the course of my reasons for decision. By this I did not mean to convey the impression that I had already decided to refuse the application: of course, if persuaded on reflection that the application should be granted I would have done so.
After we resumed the hearing following the view, I invited senior counsel for the plaintiff to describe what had taken place in the course of the view. He did so in the following terms:
[7]
A view was held at 2.30 this afternoon at the defendant's premises at 30 Vicars Street, Mitchell attended by his Honour, Master Harper, and counsel and solicitors for the parties as well as the plaintiff and a Mr Kirkland of the defendant company. The plaintiff, through his counsel, indicated the area where his office space was situated. The Master was then shown the route from that workspace into the storeroom and shown the area where, on the day of the accident, mag wheels were located and the route the plaintiff says he took to take those mag wheels into the workshop area.
[8]
It was then indicated to the Master the route he took and the stairs he used to ascend to the upper level in the storeroom and indicated in that upper area where he said mag wheel caps were located which he was required, also, to take to the workshop area. He then, through his counsel, indicated the route that he would ordinarily take to go from the upstairs part of this showroom back down to the workshop or to his workplace.
[9]
And then indicated the route that he took on this occasion which was not the route he indicated he ordinarily took but downstairs leading to an area of the storeroom - the opposite side to where his workplace was where the storeroom opened to what appeared to be a delivery area where trucks or vans were parked.
[10]
He also indicated the way he approached the stairs and how he alleges he began to descend and slipped on the stairs. Comments were made as to the change of the surface or cover of the stairs, but it was made clear that structurally the stairs were the same as they were at the time of the accident. The plaintiff pointed to the remnants of a red tag on the top left hand side of the stairs where he slipped, indicating where tape had been affixed, sealing off the stairs after his accident. He then demonstrated where his body had finished up on the stairs after the accident with his low back or buttock area on, I think it was the fourth and fifth step up from the bottom.
[11]
Senior counsel for the plaintiff had said in the course of his opening that a view would be of advantage. No formal application was made for an order pursuant to s 53 of the Evidence Act 1995 that a demonstration, experiment or inspection be held. However, senior counsel for the defendant agreed with the proposal. Necessarily, the view was arranged and facilitated by staff of the defendant. Notwithstanding that no formal order was made, there is no question that what took place was governed by the section, which is in the following terms:
[12]
(1) A judge may, on application, order that a demonstration, experiment or inspection be held.
[13]
(2) A judge is not to make an order unless he or she is satisfied that:
[14]
(a) the parties will be given a reasonable opportunity to be present; and
[15]
(b) the judge and, if there is a jury, the jury will be present.
[16]
(3) Without limiting the matters that the judge may take into account in deciding whether to make an order, the judge is to take into account the following:
[17]
(b) whether the demonstration, experiment or inspection will, in the court's opinion, assist the court in resolving issues of fact or understanding the evidence;
[18]
(c) the danger that the demonstration, experiment or inspection might be unfairly prejudicial, might be misleading or confusing or might cause or result in undue waste of time;
[19]
(d) in the case of a demonstration - the extent to which the demonstration will properly reproduce the conduct or event to be demonstrated;
[20]
(e) in the case of an inspection - the extent to which the place or thing to be inspected has materially altered.
[21]
(4) The court (including, if there is a jury, the jury) is not to conduct an experiment in the course of its deliberations.
[22]
(5) This section does not apply in relation to the inspection of an exhibit by the court or, if there is a jury, by the jury.
[23]
The court (including, if there is a jury, the jury) may draw any reasonable inference from what it sees, hears or otherwise notices during a demonstration, experiment or inspection.
[24]
It appears from the headings to the sections that, whilst the word "view" is not defined or indeed used in the body of the Act, it was used by the legislature, or at least by parliamentary counsel, as a general word to encompass demonstrations, experiments and inspections. At common law a view was an inspection and did not encompass a demonstration or experiment.
For my part, I understood that the Court was being invited to inspect the premises where the accident occurred, and in particular the staircase on which the plaintiff fell. I did not understand that I was being invited to view a demonstration by the plaintiff of how he had fallen. I accept that those representing the defendant took the same view at the time as I did, and made no detailed observations or notes of what was later suggested by senior counsel for the plaintiff to have been a demonstration by his client of, in effect, how the accident had happened.
It was put to the plaintiff in cross-examination that he had given an account of his fall to a number of people, including doctors he had seen for the purposes of the case. On some of those occasions he had given a history of putting his right foot onto the top step rather than his left. He denied that he had done so, and said that the doctors must have been mistaken.
A number of medical reports were tendered by both sides, and in some of these the doctors had recorded what the plaintiff had told them about the accident consistently with what was put to the plaintiff by senior counsel for the defendant. None of the doctors was cross-examined. I take the view that it is more probable than not that the doctors accurately recorded what the plaintiff told them, and prefer the roughly contemporaneous reports of the doctors to the plaintiff's recollection at trial.
I am not inclined to place much significance on the question of which foot the plaintiff stepped off with. Since the hearing I have observed that I naturally step down on to the first step of a staircase with my left foot (I am right handed) but this is not something I was consciously aware of previously and I certainly could not have given a reliable answer to a question about it simply from memory. I would find it rather surprising if the plaintiff had a specific recollection of which foot he stepped off with immediately prior to his fall. All I can say on the evidence is that I accept that he probably did his best to remember when asked about it by his solicitors, doctors and others, and that he may have quite innocently given different answers because he had different recollections at different times. Apart from the fact that the plaintiff was reluctant to concede in cross-examination that he may have given different histories at different times about this, I do not see it as reflecting particularly on his credibility, nor do I see it as a factor of any significance in deciding the case.
Senior counsel for the defendant called one eyewitness to the plaintiff's fall, Ms Philla. At the time of the accident she had been working as a warehouse clerk with the defendant. Like the plaintiff, she had been working there for only about two weeks before the accident. She was engaged in similar work to the plaintiff. She did not know the plaintiff but recognised him as a fellow employee. She was working near a computer about five or six metres from the foot of the staircase, side on to it. She turned to her right to see whether her supervisor was in the vicinity. As she did so she saw the plaintiff approaching the top of the stairs. She said that at the top of the staircase he "tripped over his feet, had a bit of a stumble, put - can't remember which foot - out to steady himself, missed the top step, scraped it, landed on his bum on the second or third step down. Threw what he was carrying all over the place and just landed on his bum." She described the plaintiff as holding something in his arms on his chest. Asked a little later about this, she said that he was carrying cartons or boxes. It appeared to her that he had one box sitting on top of another, with his chin up to look over the two boxes.
Ms Philla gave evidence that she used the staircase twenty or thirty times a day in the course of her work. It was not suggested to her that she had ever had any difficulty using the stairs or had found their surface slippery, and I infer that she had not. Ms Philla continued to work at the defendant's warehouse for another two years after the accident.
I am satisfied that Ms Philla was mistaken in her recollection about the boxes, although I am sure she believed her evidence to be truthful. Despite this error, I accept that she saw the plaintiff in the moment before and at the moment of his fall, and that her evidence about that should be accepted.
[25]
The plaintiff's case run at the hearing was not entirely in accordance with the particulars of negligence pleaded in the statement of claim. Those particulars were:
(a) Providing an unsafe system of work
(b) Exposing the plaintiff to unnecessary risk
(c) Failing to give any or adequate advice, warning or training concerning the risks associated with the plaintiff's employment
(d) Failure to paint the steps on which the plaintiff slipped and fell with appropriate adhesive paint as required
(e) Failed to have a system of inspection in place to ensure the step on which the plaintiff slipped was covered with adhesive paint as required
(f) Allowed the plaintiff to walk up and down a staircase on which adhesive paint had not been applied to the chequer plate stairs in circumstances where the defendant knew or ought to have known the stairs were unsafe
(g) Failing to ensure that the step on which the plaintiff was walking were not slippery [sic].
In opening the case, senior counsel for the plaintiff tendered photographs of the staircase, including close-up photographs of the top few steps. These showed, on the top step, a length of yellow tape along the nosing, worn through so that on the edge, the metal tips of the chequer pattern were visibly protruding. The photographs were taken in July 2006, about five months after the accident.
The plaintiff himself took some photographs of the steps in April 2006, about two months after the accident. The tape is visible in the plaintiff's photographs, and there is, less clearly, some protrusion of metal apparent on the edge of the first step. Counsel submitted during the opening that it was these protruding metal tips on the edge of the nosing of the step on which the plaintiff had slipped. He said that the plaintiff's case was that the stairs were dangerous because the adhesive material which was supposed to render them non-slippery had worn away.
Senior counsel for the defendant, after an opportunity to obtain instructions, agreed to the case proceeding on the basis that the defendant's alleged negligence was failure to maintain non-slip tape on the nosing of the steps. Ultimately the plaintiff's case, as I apprehend it, was that the defendant was under an obligation to ensure that the surface of the steps was coated with some anti-slip substance, whether paint or tape, and that the defendant failed to ensure that this was the case, specifically in relation to the metal protrusions on the nosing to the top step.
Evidence was given in the defendant's case by three present or former employees. Mr Kirkland was the parts manager for the defendant, with responsibility for the warehouse. Reporting to him was Mr Boyles, the manager of the warehouse, and under his supervision was Mr Stevens, the dispatch supervisor I have previously mentioned.
Mr Kirkland arranged and facilitated the view of the warehouse. He had been at the warehouse on the day of the accident and remembered it. By then the staircase had been in place for about three years. For the first twelve to eighteen months the staircase was used as it had been installed, without any non-slip treatment. At about that time a decision was taken to apply anti-slip tape. Mr Kirkland said that the tape kept lifting and was unsatisfactory. A lacquer, Suretread, was purchased and applied with a paintbrush to the surface of the steps, and was applied again to any areas which needed it, roughly every three months. The areas needing treatment tended to be mainly on the upper edge of the nosing of the steps.
Mr Kirkland did not personally inspect the staircase after the accident, but some time later he became aware of the availability of a grey paint used on metal staircases in naval vessels, and he arranged to buy that paint and have it applied to the stairs. For that purpose it was necessary to have the stairs taken apart and sandblasted prior to application of the new paint. He thought that this was done about eight months after the accident, to all six metal staircases at the warehouse. Apart from the plaintiff's fall, there had been no other falls to his knowledge on any of the staircases before the plaintiff's accident or since.
Mr Kirkland's evidence was that the Suretread lacquer was applied to any exposed metal on the steps, including any metal protruding through the tape. Shown the photographs in evidence taken within the months after the plaintiff's accident, he said that he could tell that the exposed metal tips were covered by Suretread - "because otherwise it would be a lot shinier".
Mr Boyles had worked at the warehouse since 2004. He estimated that he went up and down the various staircases of the warehouse as often as fifty times a day. His duties included the maintenance of the staircases in a safe working condition. He said that the staircase on which the plaintiff fell was the one he used most frequently. He was at work on the day of the accident and remembered it, although he did not see it happen. He checked the staircase immediately after the accident to see whether there was anything obvious which the plaintiff had slipped or tripped on, but found nothing and formed the view that the staircase was in good working order. He nevertheless taped it off and closed it. His evidence was that the tape on the nosing of the stairs visible in the photographs had been in place at the time of the accident. He said that the staircase in question was the one most used and for that reason was most frequently repainted with Suretread, at least every two to three months. He never found the stairs slippery and was unaware of anyone else having fallen on them.
Mr Boyles agreed that as the tape wore, the steel tips on the nosing of the steps were exposed. He said that the tape peeled off from time to time and had to be replaced. He agreed that the steel protrusions could be seen in the photographs in evidence. He said that Suretread lacquer would be painted over them as necessary, or the tape replaced.
Mr Stevens was responsible for cleaning and painting the staircase when required. They were painted for the first time in about 2003, with three coats of lacquer, and thereafter repainted as required every three months, or more frequently if pressure of other work permitted.
Mr Stevens also used the staircase regularly, he estimated twenty times on a typical working day. He was unaware of any other fall on the staircase, whether before or after the plaintiff's accident. He never found any part of the stairs slippery. He said that the three-monthly repainting was not related to the stairs becoming slippery, but was simply "something that was asked of us by management".
Management had also required the tape to be applied to the nosings of the steps. This happened for the first time in about 2005. The tape was applied over the painted nosing of the steps. Mr Steven's view at the time was that this was unnecessary and that the steps were "perfectly all right as they were."
Mr Stevens always wore his work boots, provided by the defendant, to and from work. They had steel-tipped toes and synthetic soles with a heavy tread, and he always found them entirely satisfactory on the metal staircases.
Mr Stevens also inspected the staircase soon after the plaintiff's fall. He observed nothing out of the ordinary.
Mr Stevens, in cross-examination, gave what I accept as a likely explanation for the wearing of the tape over the front edge of the steps. Employees were supposed to use the slide adjacent to the steps for heavier items and boxes, but did not always do so and sometimes slid them down the staircase.
The words which the plaintiff had said were used by Mr Stevens immediately after his accident were put to him in cross-examination. He denied using those words, but volunteered that he did tell the plaintiff that the steps were due to be repainted. In the event they were repainted on the weekend after the plaintiff's fall, being about three months since they had last been painted.
Mr Stevens said that he never found the staircase slippery at any time.
[26]
The plaintiff's injuries and their consequences
[27]
Immediately after his fall the plaintiff was taken by a fellow employee to the Kingston Family Surgery where he saw Dr McMilken. The practice was not the one usually attended by the plaintiff and his family, but he had been there before for a medical assessment before he commenced his employment with the defendant, only a couple of weeks earlier. Dr McMilken referred the plaintiff for x-rays and physiotherapy. The plaintiff attended the practice a number of times, and was referred to a sports physician, Dr Kellett. The physiotherapist, Mr Wisdom, arranged a hydrotherapy program for the plaintiff, and the defendant's workers' compensation insurer arranged and paid for a rehabilitation program which occupied about three or four weeks. At the end of that time the plaintiff returned to work on light duties, working at the warehouse at Mitchell for three hours a day on alternate week days. This regime commenced on 24 April 2006, about two months after the accident. It was on his second day back, on 26 April, that the plaintiff took his camera to the premises and took photographs of the staircase.
On 11 July 2006 the plaintiff accompanied a Mr Nicholson to the site. I infer that Mr Nicholson took the other photographs which were in evidence on that occasion. Mr Nicholson was qualified by the plaintiff's solicitors as an expert witness, and prepared a report which was served on the solicitors for the defendant. I gather that Mr Nicholson is a professional engineer. Senior counsel for the defendant, during the opening of the plaintiff's case, foreshadowed an objection to his report or evidence and, without going into detail as to the basis of the objection, referred to the judgment of Heydon JA in Makita (Australia) Pty Ltd v Sprowles[2001] NSWCA 305; (2001) 52 NSWLR 705. Ultimately a forensic decision was taken by senior counsel for the plaintiff not to call Mr Nicholson.
Towards the close of the defendant's case, senior counsel for the defendant sought to tender extracts from Mr Nicholson's report. When I expressed reservations as to whether it was permissible to tender selected extracts from a report by an expert witness, but not the whole document, senior counsel for the defendant did not press the tender. Hence there is no evidence before the Court from Mr Nicholson.
Two days later, on 13 July 2006, the plaintiff was moved by the defendant from the warehouse at Mitchell to another warehouse, at Fyshwick. The plaintiff's evidence is that he was required by his superiors at that site to undertake work which was beyond his physical capacity, including bending, lifting and carrying heavier spare parts. The plaintiff's evidence is that he found this painful. He contacted Mr Kirkland and tendered his resignation. He told Mr Kirkland that he was in a lot of pain and felt that he was being pushed to undertake tasks which were beyond him. He did not work for the defendant again after that. His employment was formally terminated by letter, with effect from 18 June 2006.
The workers' compensation insurer treated the resignation as a failure to comply with the conditions of his rehabilitation program, and made no further payments to him or to any health providers on his behalf. The plaintiff seems to have accepted this. At all events, he he made no application for arbitration in the Magistrates Court. He says he was advised not to, presumably by his solicitors. There was no explanation for any such advice.
The plaintiff registered with Centrelink for unemployment benefits, and in mid-August 2006 commenced a rehabilitation program arranged through Centrelink with the Commonwealth Rehabilitation Service.
In October 2006 he volunteered to work at the St Vincent de Paul outlet at Curtin, sorting donated items of clothing. He found that he was unable to perform some of the tasks required, and he overheard other volunteers or staff making comments critical of him. He did not attend again after the first day.
In June 2007 he was found work through the Commonwealth Rehabilitation Service at a service station at Braddon. He worked there for three hours a day, three days a week, for about a month. The tasks required of him included packing soft drinks into a refrigerator, which caused him back pain. He had expected that he would be trained as a console operator, but this did not eventuate. The service tried to find him similar work at other service stations without success.
In February 2008, the service found him a position with the same hours at a key-cutting kiosk. He was able to carry this work out fairly easily after a brief training period, but he found that he was in considerable pain by the end of each three-hour period and gave it up.
By the time of the hearing, the plaintiff said that he was taking non-prescription medication of up to seven Panadeine tablets a day, and up to the same number of Dolocid tablets for back pain. He was also using Voltaren gel applied externally to his back, and was smoking marijuana supplied without cost by a friend about twice a week. He presented as unable to do anything much around the house, relying almost entirely on his wife. He did not go out socially and was generally miserable and depressed most of the time. Friends no longer came to visit him.
Regrettably, the hearing was unable to be completed during the week when it was first listed, and a period of about four months went by before the hearing resumed. The plaintiff gave brief evidence-in-chief that his situation had remained unchanged over that period. His cross-examination then commenced.
He agreed that he had not attended a doctor in relation to his injuries since 2006, and had obtained no prescription medication since then, nor had he been required to provide any certificates by doctors dealing with his working capacity.
The plaintiff conceded that for a number of financial years before his accident, he had lodged tax returns, through a tax agent, in which he had understated his income by omitting to attach all of the group certificates he had received during the year in question. This had occurred during financial years when he had worked for more than one employer. He denied that he had adopted the course intentionally with a view to reducing his tax liability, although it seems plain that this was the effect. That is to say, because of the differential tax rates applying at different income levels, if he had included all of the group certificates, he would have been liable for more tax than had been deducted by the employer involved.
The plaintiff could not really explain how or why this had happened. He is not a commercially or financially sophisticated man, and if it had happened once, I would probably have accepted that it was an oversight. However, I am satisfied from the fact that it happened a number of times over different financial years that the plaintiff intentionally kept back some group certificates from his tax agent and hence from the tax office, and thereby gained a financial benefit. This does not reflect well on his honesty, and the fact that he denied it in the witness box does not help his credibility.
Senior counsel for the defendant tendered records from the ACT Road Transport Authority from which it appeared that the plaintiff's driving licence was suspended in August 2004. The plaintiff conceded that when he had had a collision with a cyclist in April 2006, he had not held a driving licence and that he had been issued with a traffic infringement notice in that regard. He conceded that he had regularly driven the family car, which was registered in his wife's name, although he knew he was unlicensed to do so. She has never held a licence and does not drive. He agreed that in July 2006 he had been stopped by the police and been issued with a further traffic infringement notice for driving while unlicensed, and further infringement notices for driving an unregistered and uninsured motor vehicle. Whilst not directly relevant to the plaintiff's credit, this behaviour is at least illustrative of a preparedness to disobey the law on a regular and extended basis where to comply with the law would cause him inconvenience.
[28]
All of the medical evidence was tendered in documentary form. In the plaintiff's case, radiological reports, a report by Dr Kellett and three reports by Dr Alan Searle were tendered. Dr Searle is a senior and experienced orthopaedic surgeon who assessed the plaintiff at the request of his own solicitors.
The evidence for the defendant included reports of four specialists qualified by the defendant's insurer and solicitors. Senior counsel for the defendant also tendered three reports by a psychologist commissioned by the plaintiff's solicitors, which had been served on the defendant's solicitors but were not tendered in the plaintiff's case.
An x-ray of the plaintiff's thoracolumbar spine the day after the fall revealed some minor pre-existing abnormalities but no recent damage. An MRI scan of the lumbar spine on 13 March 2006 showed minor degenerative change involving the L5-S1 disc with a broad-based bulge greater on the left than the right, but without central canal or neural exit narrowing. An x-ray of the sacrococcygeal spine was performed two days later. The sacroiliac joints and the sacrococcygeal alignment appeared normal, and no fracture or dislocation was identified.
On 27 April 2006 the plaintiff was subjected to a regional bone scan, which revealed no abnormality which might have accounted for the plaintiff's continuing complaints of thoracic pain.
It appears from clinical notes in evidence that the plaintiff saw Dr Kellett for the last time on 22 May 2006. Dr Kellett had the benefit of the radiological reports. Apparently Dr Kellett told the plaintiff that he should resume hydrotherapy and become more active, and that he should return to work. It appears that Dr Kellett gave the plaintiff something of a pep talk, resulting in the plaintiff becoming annoyed and leaving in a huff. The plaintiff seems to have had little if any treatment by any medical practitioner thereafter.
Dr Bruce Stevens, psychologist, saw the plaintiff for the first time on 19 May 2006. On that day the plaintiff was interviewed and completed a number of psychological tests, the process taking some three hours. Dr Stevens diagnosed the plaintiff as suffering from a moderate to severe single-episode major depressive disorder, an acute pain disorder with moderate symptoms and an adjustment disorder with anxiety. He recommended that the plaintiff undertake a pain management program which included psychological counselling and cognitive behaviour therapy.
Dr Searle saw the plaintiff for the purpose of a report to his solicitors on 6 June 2006. Dr Searle's opinion was that the plaintiff's fall had caused a severe compression/contusion effect on the lumbar and low thoracic spine, probably mainly affecting the facet joints. His symptoms were persistent and could become permanent, but there was considerable potential for spontaneous improvement. At that time, in Dr Searle's view, the plaintiff was unfit for work and for any activities requiring prolonged sitting or standing, lifting or repeated bending, twisting movements of the trunk, or regular travel for moderate to long distances. Treatment should be conservative.
Dr Anthony Smith, orthopaedic surgeon, saw the plaintiff on 16 June 2006, the appointment being made by the defendant's insurer, though after the commencement of proceedings (the originating application was filed on 6 April 2006, within six weeks of the plaintiff's fall). Dr Smith practises principally in Sydney but I gather from his letterhead that he travels to a number of other cities, including Canberra, for the purposes of his practice. Dr Smith expressed the opinion that there were degenerative changes to the plaintiff's thoracic and lumbar spine, predating the fall. There was no post-traumatic lesion visible on the radiological films. He said that the plaintiff exhibited a marked restriction in the range of movement of his back which was "unphysiological" and contrasted with his ability to sit up with both legs out straight. Dr Smith thought that the plaintiff was manufacturing physical signs to some extent. He accepted that the plaintiff had suffered some injury during his fall but thought that he had recovered to a much greater extent than he was prepared to admit. He did not think that the plaintiff required much treatment and thought that he was probably fit for his previous work. His opinion was that the effects of the fall had probably ceased within three months. No further treatment was required.
Dr Searle reviewed the plaintiff at the request of his solicitors in December 2006. The plaintiff told him that he felt much improved over the previous six months. He was continuing with physiotherapy and hydrotherapy twice a week, and looking for work. He continued, however, to complain of back pain. Dr Searle thought that his continuing symptoms were by then permanent, and that he continued to be restricted for work.
The defendant's solicitor sent the plaintiff to see Dr Nicholas Burke, occupational physician, in July 2007. Dr Burke conducted a physical examination and took a detailed history. He formed the opinion that the plaintiff had probably suffered a soft tissue injury of the thoracolumbar spine, from which he had made a slow but generally good recovery. His symptoms had probably resolved within three or four months of the fall. His complaints of continuing symptoms and disability were likely to be due to a significant non-organic component. He was, in Dr Burke's view, capable of performing his pre-injury work duties, though with some manageable symptoms. It was probable that psychosocial factors were contributing to his continuing complaints.
Dr Gordon Stuart, neurosurgeon, saw the plaintiff at the request of the defendant's solicitors on 25 July 2007. He accepted that the plaintiff had sustained a soft tissue injury resulting from his fall at work. The injury should have resolved within weeks. The complaints of continuing symptoms were not consistent with the stated cause. Dr Stuart was unable to explain why the symptoms should be still present. He saw no reason why the plaintiff could not resume work. He thought that he should continue with an active exercise and working program, and attempt to lose weight and regain physical fitness. He was capable of performing his pre-injury work duties. He had, in Dr Stuart's opinion, no present incapacity. He had sustained merely a soft tissue injury which should have resolved within weeks.
Dr Stevens, psychologist, reviewed the plaintiff at the request of his own solicitors in February 2008. He found the pain disorder and adjustment disorder with anxiety unchanged, whilst the depressive disorder had improved to the extent that the plaintiff was no longer troubled by suicidal thoughts. The plaintiff had not undertaken the regime of psychological treatment previously recommended by Dr Stevens, who remained of the view that he should undergo a pain management program and psychological counselling, as he had previously suggested.
At about the same time Dr Searle saw the plaintiff again. He thought that the plaintiff had improved somewhat, but he continued to suffer from symptoms causing a moderately severe degree of disability which were by then permanent. As a result he was unfit for work and other physical activities of the kind previously described by Dr Searle. Conservative treatment should continue.
In April 2008 the plaintiff was seen by Dr Selwyn Smith, psychiatrist, for report to the defendant's solicitors. Dr Smith does not appear to have had the benefit of Dr Stevens' reports, although he had much documentation about the plaintiff's physical condition and complaints. Dr Smith took a history and conducted a clinical examination. He was informed of the diagnosis arrived at by Dr Stevens, but given no other background about it.
The opinion of Dr Smith was that the plaintiff did not demonstrate any formal psychiatric disorder consequent on his fall. His purported psychological symptoms were no more than normal variants in response to his altered circumstances. He appeared to Dr Smith to be significantly focused on his pain. Dr Smith was unable to exclude the possibility of embellishment in his presentation. He noted that the plaintiff had had no psychological or psychiatric treatment, or psychiatric medication. Dr Smith found no evidence to support a diagnosis of a major depressive episode and found no evidence of anxiety. He excluded the diagnosis of a pain disorder. On balance he thought that the plaintiff had not suffered any formal psychiatric disorder within the Diagnostic and Statistical Manual of Mental Disorders (4th ed) of the American Psychiatric Association (DSM IV). Dr Smith thought that the plaintiff's prognosis from a psychiatric perspective was good. He would defer to the opinion of an orthopaedic surgeon as to whether or not the plaintiff was able to resume his pre-accident employment. From a psychological perspective, he was capable of working without restriction.
The psychologist who had previously reported to the plaintiff's solicitors, Dr Stevens, saw the plaintiff again on 15 April 2008 for about twenty-five minutes. He assessed the plaintiff as continuing to suffer from acute pain disorder with mild to moderate symptoms; major depressive disorder with moderate symptoms; and adjustment disorder with anxiety. He again expressed the view that psychological counselling and a pain management program might be of assistance to the plaintiff.
Despite the differences of opinions expressed by the medical practitioners and Dr Stevens, none were called for cross-examination. I do not recount this critically of counsel. The differences of opinion are probably largely explained by the degrees of acceptance by the various practitioners of the history they were given by the plaintiff and their assessment of his behaviour on clinical examination. That is to say, the expert opinions they have provided to the Court are not necessarily based on the same assumptions. This is a common experience in actions for damages for personal injury, and is rarely resolved by cross-examination. It has been said that there is little point in calling medical practitioners to give oral evidence and subjecting them to cross-examination merely to put to them assumptions different to those they have relied on, and different opinions expressed by other experts based on those different assumptions: Goldsborough v O'Neill(1996) 131 FLR 104.
In the present case, the opinions expressed by the expert witnesses are entirely dependent on their acceptance or otherwise of the plaintiff as a reliable historian and on his physical presentation when examined.
None of the doctors was given a complete history. The plaintiff did not tell Dr Stevens or Dr Selwyn Smith about his psychological problems before his fall, and in particular about his attempts at suicide. Both of them expressed their opinions on the basis on the assumption that he had had no psychological problems before his accident.
I am satisfied, also, that the plaintiff exaggerated his physical symptoms to all of the doctors who examined him for the purposes of the case.
I prefer the evidence of the defendant's doctors to those called in the plaintiff's case.
[29]
The plaintiff presented in the witness box as a genial and pleasant man, apparently in some pain at times. He seemed to see himself as one of life's victims.
I accept that he had a generally good working record until his injury. He changed jobs many times but was rarely unemployed for any length of time. I am sure that he loves his children and has no higher aim than to be a good father to them.
At the same time, his history demonstrates that he has had no hesitation in deliberately disobeying the law when it would have been inconvenient to comply with it. I am also satisfied that he has intentionally signed and caused to be lodged false income tax returns with the aim of reducing his tax liability. He admitted that there have been times in the past when he has accepted Centrelink benefits whilst in receipt of income from employment. And on one occasion he was caught shoplifting, albeit that he was stealing what most in the community would regard as basic essentials for a family with a baby, and at a time of straitened financial circumstances. He is far from a hardened criminal or a consistently dishonest person, but he is not a man whose honesty or integrity can be assumed. More specifically as to his reliability as a witness of truth, I find that he deliberately omitted from the histories he gave to a number of the medical and other practitioners information which he must have known was relevant but which might have been detrimental to his case. In cross-examination, also, there were occasions when he displayed prevarication and obfuscation.
The plaintiff is a man who has never enjoyed much money in our society. His income has never been particularly high, and he has never accumulated any capital. He has a strong motivation to maximise the amount he recovers by way of damages in this action. In evaluating his evidence, I must take that into account, as well as his lapses of honesty and integrity. This is of particular significance in a case like the present, where of necessity most of the evidence is of its nature incapable of contradiction by other witnesses.
[30]
The plaintiff's fall - factual findings and conclusions
[31]
The case for the plaintiff is that he lost his footing at the top of a metal staircase, slipped and fell on to his back, causing injury. I am satisfied that he indeed lost his footing and fell, and that he suffered a back injury. The question is whether his fall was caused by the negligence of the defendant.
The surface of the steps on the staircase were of chequer-plate steel. This is a case where, if there was a respectable expert view that chequer-plate steel was inherently slippery, one would have expected expert evidence to that effect. As I have explained, I am aware that the plaintiff's solicitors arranged for an expert witness to conduct an inspection of the steps, that the expert witness provided a report to the plaintiff's solicitors, and that the plaintiff's solicitors served a copy of the report on the defendant's solicitors. The unavoidable inference is that, on balance, the evidence of the expert witness would not have assisted the plaintiff's case on liability.
There is hardly a general view in the community that chequer-plate steel steps are inherently slippery and dangerous, such that I could take judicial notice of that state of affairs.
It does not seem to me that the evidence about the practice of the defendant in relation to painting and taping the nosings of the steps can overcome this difficulty for the plaintiff. None of the defendant's witnesses said that the steps were slippery before they were taped and painted, although the evidence is that for a number of months they were in use without paint or tape. On the contrary, the evidence of all the defendant's witnesses was that at no time were they aware of any slipperiness or danger about the steps. A number of the witnesses had used the staircase in question many times a day over a period of years. I accept the evidence that apart from the plaintiff, no-one else had ever fallen on the staircase in question or on any of the other five staircases in the warehouse.
Heydon JA pointed out in Wilkinson v Law Courts Ltd(2001) NSWCA 196 that steps and stairs are inherently but obviously dangerous, and that there are many measures which might be taken to make a particular set of steps or stairs as safe as human skill could possibly make them. Wilkinson was a claim by a member of the public against the occupier of a building, not a claim by an employee against an employer. Nevertheless, Heydon JA pointed out that the occupier's duty was only to take such care as was reasonable under the circumstances. As his Honour pointed out, persons using steps may misjudge their footing and slip or trip, but this is an everyday risk which members of the public avoid by taking care for their own safety.
The duty of an employer to an employee is higher than that of an occupier to a member of the public, but his Honour's observations are nevertheless apposite. In the present case, the defendant provided the plaintiff, and all of its employees, with synthetic-soled work boots with a heavy tread. Other employees who wore those boots gave evidence that the steps were, as far as they were concerned, perfectly safe. The plaintiff had been working with the defendant for only about two weeks and his boots must have been almost new.
There is no suggestion that the dimensions or surface of the steps or of the staircase as a whole failed to comply with any Australian standard.
Having heard the plaintiff's evidence about what happened on the day of his accident, and having attended the view of the premises, I have arrived at the conclusion that, more probably than not, the plaintiff has no specific recollection of precisely what happened immediately before he fell. In the circumstances there is likely to have been some, probably subconscious, reconstruction in his mind as to precisely what happened. He may have kept a marginally less than perfect lookout, and misjudged his footing. Having regard to the evidence of the other employees, I am satisfied that an employee in the plaintiff's position taking reasonable care for his own safety would not have fallen as he did.
It must be accepted, from an employer's perspective, that it cannot be expected that every employee will always take adequate care for his or her own safety. In providing a safe place, and safe system, of work an employer must take this into account. In the circumstances of the present case, the question is what more the employer could or should have done.
The staircase was equipped with handrails on both sides. The only criticism made of the staircase, in the final analysis, by senior counsel for the plaintiff is that there were metal protrusions on the upper edge of the nosing of the top step which were protruding through the tape along the edge of the nosing. There is no evidence from which I could conclude that this was the cause, or a cause, of the plaintiff's fall. Nor is there any evidence from which I could conclude that it would have saved the plaintiff from falling if the tape had been replaced or a coat of Suretread paint applied on the nosing, for example a few days before the incident. To the extent that taping or painting might have made any real difference to the slipperiness of the step, there is no evidence which would cast doubt on the efficacy of the defendant's system of repainting the steps at intervals of no more than three months, and I accept that that system was a reasonable one.
The plaintiff has not made out his case that his fall was caused by any breach of the defendant's duty of care to him. Accordingly his claim must fail.
[32]
On 4 December 2008, the plaintiff's solicitors filed an interlocutory application seeking leave to reopen the plaintiff's case. The application was supported by affidavits sworn by the plaintiff and by his solicitor, Mr Montagnino, on 25 November 2008. These were supplemented by affidavits sworn at the end of March and the beginning of April 2009 by the same deponents. Ms L Quilty, the solicitor having the carriage of the action on behalf of the defendant, affirmed an affidavit in reply on 31 March 2009. The plaintiff's affidavits deposed to his recollection of what he did during the view in May 2008. His solicitor, Mr Montagnino, deposed to a consistent recollection.
Ms Quilty's evidence was that she made no particular observation of the plaintiff's movements during the view, and that she was unaware that the view included a demonstration which was to be evidence in the plaintiff's case.
It was not made clear to me, when the application to reopen was argued on 3 April 2009, whether the plaintiff wished to reopen for the purpose of calling further oral evidence, or whether the purpose of the application was simply to admit into evidence the affidavits of the plaintiff and his solicitor as to their recollections of what had happened in the course of the view.
As I understood the application, the purpose the plaintiff's counsel had in mind was to ensure that there was evidence before the Court as to which foot the plaintiff had stepped forward with at the top of the staircase immediately before his fall. As I have explained earlier in these reasons, I do not regard that issue as determinative of the outcome of the action.
It seems to me that in any event, it can rarely if ever be in the interests of justice to permit evidence, after the event, of what happened in the course of a view before a tribunal of fact. I was there during the view. That was the whole purpose of it. I am tempted to ask what would happen if my recollection of fact during the view was inconsistent with the sworn evidence of others present. To permit such evidence would give rise to the possibility that the judge might become a witness of fact. Is it conceivable that the judge might be asked to reject his own evidence? Simply to articulate such a proposition must lead to its rejection.
I was referred by counsel to a number of authorities on the issue of when leave should be granted to reopen a case after the conclusion of the trial: Murray v Figge(1974) 4 ALR 612 per Muirhead J; Smith v NSW Bar Association[1992] HCA 36; [1992] 176 CLR 256; Hines Exports Pty Ltd v Mediterranean Shipping Company SA[2001] SASC 311; (2001) 80 SASR 268; Inspector-General in Bankruptcy v Bradshaw[2006] FCA 22 per Kenny J; Evans v R(2007) 82 ALJR 250; [2007] HCA 59. Generally these were cases where the Court refused to allow the case to be reopened to introduce fresh evidence but made it clear that the fresh evidence would have made no difference anyway. I have not been taken to an authority where a Court refused to admit fresh evidence which appeared likely to lead to a different outcome at trial. Fortunately I am not required to proceed down that path in the present action. For the reasons I have already explained, the fresh evidence sought to be introduced if I had permitted the hearing to be reopened would have made no difference.
The application by the plaintiff to reopen must accordingly be refused.
[33]
I proceed to a provisional assessment, in case I am found to have been in error on the issue of liability.
Senior counsel for the defendant conceded that the plaintiff had suffered a serious and genuine back injury, but submitted that he had generally made a good recovery and had grossly exaggerated his symptoms to the doctors and in the witness box.
On behalf of the defendant, a submission was made that the evidence warranted an award of general damages within a range of $40,000.00 to $50,000.00 plus interest. Past out-of-pocket expenses were agreed at $9,509.26, paid by the defendant's insurer and hence not attracting interest. Senior counsel for the defendant submitted that a modest award of perhaps $2,000.00 was justified for future treatment expenses.
Senior counsel for the plaintiff submitted that an appropriate award of general damages would be $125,000.00. This, of course, depended upon acceptance of the plaintiff's evidence.
Having regard to my findings as to the plaintiff's credibility, it seems to me that an award of $50,000.00 for general damages would be reasonable. $30,000.00 of this should be apportioned to the past, weighted more heavily towards the six months or so after the accident. The past component attracts interest of $3,000.00.
I allow the agreed treatment expenses of $9,509.26, and a sum of $2,000.00 for treatment expenses for the future.
In respect of past economic loss, I allow $50,000.00. I accept that the plaintiff's capacity to work was impaired quite significantly, but not to anything like the extent he claims. This aspect of the award does not lend itself to a mathematical approach.
For interest on past lost earnings, I allow $10,000.00.
For impairment of earning capacity for the future, a sum even less capable of mathematical calculation, I award $50,000.00.
I apply a 9% rate to the awards for past and future loss of earning capacity and award $9,000.00 for loss of superannuation benefits.
For the commercial value of services provided to the plaintiff by his wife, and services he was unable to provide to his family, I allow $8,000.00 for the past, plus interest of $1,500.00. I am not persuaded that the plaintiff has established the basis for any such award for the future.
[34]
The defendant pleaded contributory negligence. Senior counsel for the defendant did not seriously submit that this had been established. If I had found in favour of the plaintiff, I would not have made a finding of contributory negligence. Accordingly, if I had found in his favour I would have awarded damages of $193,009.26.
[35]
There will be judgment for the defendant with costs.
[36]
I certify that the preceding one-hundred and twenty-nine (129) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master.
[37]
Counsel for the plaintiff: RS McIlwaine SC & ID Bradfield
[38]
Date of hearing: 7 & 8 May, 1, 2, 3 & 4 September 2008, 3 April 2009
Parties
Applicant/Plaintiff:
Hughes
Respondent/Defendant:
Janrule Pty Ltd t/as Gregory's Ford [2010] ACTSC 5