Jenkins v Sydney Markets Limited

CATCHWORDS : Tort - personal injury - injury sustained in course of employment - claim in negligence against operator of Sydney Markets - alleged failure to maintain road surfaces or maintain adequate cleaning system - determination of liability Australian Safeway Stores Pty Limited v Zaluzna (1987) 162 CLR 479; Brady v Girvan Bros Pty Limited (1986) 7 NSWLR 241 Dovuro Pty Limited v Wilkins (2003) 77 ALJR 1706; CASES CITED : Hackshaw v Shaw (1984) 155 CLR 614; Roads and Traffic Authority of NSW v Johnson [2003] NSWCA 40; Roads and Traffic Authority of NSW v McGuiness [2002] NSWCA 210; Shoeys Pty Limited v Allan (1991) Aust Torts Reports 18-104; Bradley William Jenkins - Plaintiff PARTIES : Sydney Markets Limited - Defendant Bill Patton Pty Limited - Cross defendant FILE NUMBER(S) : SC 20154/02 COUNSEL : B Dooley - Plaintiff R McIlwaine, SC - Defendant SOLICITORS : Owen Hodge Lawyers - Plaintiff Wotton & Kearney - Defendant

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

20154 of 2002 Bradley William Jenkins (Plaintiff)

JUDGMENT 1 Shaw J: The plaintiff claims damages for injuries said to arise as a result of work performed at markets in Flemington, operated by the defendant, in the course of his employment by the cross defendant. The cross claim has been the subject of settlement between the defendant and the cross defendant. The issue that remains for determination by this Court is whether the defendant owed a duty of care to the plaintiff to prevent the injuries suffered, and whether this duty has been breached, causing those injuries. 2 There are said to be three separate injuries suffered by the plaintiff. The first is that on or about 10 June 1998 the plaintiff was wheeling produce on a pallet jack down a ramp when he slipped on vegetable matter and fell. The second is that on and after March 1998 until May 1999 the plaintiff drove a forklift over large numbers of potholes and roadways in a poor state of repair and that this was a cause of some injury. The third allegation is that on or about 17 February 1999 the plaintiff inadvertently tripped over a ramp edge of approximately 5 metres height and was thereby injured. 3 The plaintiff alleges that it was a failure of Sydney Markets Limited, the controlling body over the internal workings of the markets, to institute, maintain and supervise a proper system of cleaning, or of warning workers in the markets of the dangers of deposited vegetable matter, that caused the first injury. 4 The particulars of negligence in relation to the second injury are that the defendant failed to warn of the danger pot holes represented; failed to repair the roadways or adequately mark and identify the pot holes; failed to heed complaints about pot holes; and failed to 'introduce a safe system of traversing the roadway area in the market to avoid the risk of injury to persons including the Plaintiff'. 5 The particulars of negligence in relation to the third injury alleged are a failure to have a safety rail on the ramp; a failure to ensure the ramp was constructed so that persons were unlikely to fall; and a failure to warn the plaintiff of the 'construction and design' of the ramp. During the trial the plaintiff sought to add a further particular relating to the installation of a separate pedestrian walkway and I granted leave for the plaintiff to amend the statement of claim in this respect. 6 In general, the plaintiff claims that he suffers from pain, soft tissue injury, damage to the legs, anxiety, depression, an injury to the left arm and elbow, as well as damage to the back, neck and pelvis. 7 The plaintiff was formerly an employee of the cross defendant working at the markets in Flemington. Before these injuries, and his operations and complaints about ill health, the plaintiff was a fit and active man. He played rugby league, and was involved in surf life saving, including being a club captain and boat captain of Burning Palms Surf Life Saving Club. He says that he can no longer participate in these activities due to his injuries. 8 A video shown to the Court demonstrates that the plaintiff, even after these accidents, remains capable of some physical activity, although I did not see any particularly strenuous activity in the material tendered. It is not entirely clear whether his alleged incapacity is a result of a physical problem, an emotional disability, or a combination of both. 9 The plaintiff presents as a reasonably articulate and intelligent man. In evidence, the plaintiff appeared as a credible witness in most respects. Over three days in cross examination he admitted that he had not sought work since May 1998 on the basis that he had no medical advice that he should return to work. It is of some concern that since the third of the incidents referred to, he has taken no steps to obtain alternative employment, either with the characteristics of light duties or of a sedentary nature. This factor may go more to the quantum of damages rather than the central question which presently faces the Court as to whether the defendant is liable in negligence. 10 It has been agreed between the parties that the Court should determine the question of liability as a prior matter and then hear subsequent submissions, if there is liability, about the amount of any damages that should be awarded.

11 The plaintiff was clear and insistent that he fell on vegetable matter on the date of the first injury, and, though subject to some criticism by the defendant for failing to have a corroborative account of this incident, the Court is satisfied that this is what occurred. Similarly, there is no reason to dispute the plaintiff's account of the circumstances said to give rise to the third injury. On the balance of probabilities, I accept the plaintiff's evidence that the second alleged fall occurred. 12 However, the defendant disputes the circumstances giving rise to the injuries as well as causation and the extent of the plaintiff's injuries.

Defendant's medical evidence relating to the plaintiff 13 The defendant's medical evidence casts light upon the plaintiff's claims. 14 Dr B J Ireland, a consultant orthopaedic surgeon in his opinion of 3 October 2001, said that the plaintiff was a: remarkably fit, powerfully built, well muscled man with a musculature such that one associates with body builders. 15 Dr Ireland said that the plaintiff showed no evidence of discomfort, at least in relation to his neck, as he sat and conversed with the doctor. The doctor took the view that if there was some discomfort in relation to the neck it was not inhibiting, in any way, the use of the neck in a 'significant' fashion. Dr Ireland could find no evidence of impairment of function in relation to the shoulders; doubted any major degree of weakness in the left elbow on the plaintiff's version of how the injury arose; and discerned only 'small radiological abnormalities' in the lower back. He saw no evidence of a rupture of the right leg, although he could find a 15% impairment of function of the left leg, with half of that impairment being a consequence of the injury at aged seventeen, and the remaining half the consequence of further incidents in 1998 and 1999. In short, Dr Ireland found evidence of 'discomfort' in various areas of the plaintiff's body and some 'limited ability to be doing heavy work' but that: he should be able to do most forms of moderate work, other than those that require him to be getting a squatted situation or doing repeated work on stairs. 16 In a further opinion, dated 13 March 2002, Dr Ireland is sceptical of the need for occupational rehabilitation, continued weekly medical attendances, or consultation with pain management psychologists. The reason for this doubt is, as Dr Ireland opines (though perhaps outside the realm of his expertise): …[the plaintiff] has to accept that he has certain continuing symptoms and he must learn to live with them and he must get on with his life… 17 The defendant tendered an opinion of Dr Sikander Khan dated 10 July 2003, which proffers the view that it should not be believed that because the plaintiff drove over potholes, this act 'would have lead to this injury'. Rather, it was Dr Khan's opinion that any injury more likely resulted from an 'abnormal posture' adopted by the plaintiff whilst driving. This view was shared by Dr Ireland. The logical consequence of this opinion is an inference that driving over potholes caused some injury but the extent of that injury was, perhaps, exacerbated by the plaintiff's posture while driving. 18 Dr Kim Edwards, surgeon, in an opinion of 31 January 2000, suggests that the plaintiff 'seemed to be engrossed in his symptoms'. The doctor also points to a suggestion of 'exaggeration or fabrication' of the plaintiff's condition in that he was not convinced that some of the range of movement demonstrated by the plaintiff on examination was genuine. 19 Dr Edwards considered the plaintiff fit: for light work which does not require him to squat or kneel, climb, or to walk long distances if his complaints are genuine. 20 Reference to exaggeration or fabrication of the plaintiff's condition is also made in the opinion of Dr Edwards of 30 October 2002. The doctor states: There is evidence of exaggeration or fabrication noted on examination, as is indicated by his ability to sit erect on the couch with his legs extended without complaining of pain despite the limitation of forward flexion and straight leg raising. 21 Dr Tim Anderson, in an opinion of 1 February 2001, noted an exaggeration of the plaintiff's restriction on movement regarding his back. Dr Anderson does not find the driving posture of the plaintiff abnormal but states: [t]his unfortunately was the only way he was able to drive the forklift'. 22 Dr Anderson did not find 'a great deal wrong with his neck or back' though did associate the condition complained of to the fall in February 1999. Dr Anderson also noted: I believe, however, that he could do considerably more in terms of physical activity if he chose to try. 23 This was reinforced in an opinion of 1 November 2002 in which the doctor deposes: Although he continued to have genuine findings and dysfunction it was most unfortunate that there were non-organic features becoming more prevalent in his overall situation. The best part of two years have past since I last saw him although there has been relatively little change of his views on his condition and similarly he does not seem to have made any effort at trying to improve himself or get back into the workforce. 24 Dr Anderson also noted improvements, in November 2002, to the forward flexion of the back despite complaint that the distribution of pain and tenderness 'was exactly the same as before'. There was also improvement to the cervical spine. Dr Anderson noted that there was 'grossly reduced' function of the left upper arm but was 'not convinced that he was voluntarily demonstrating maximum effort'. Similarly, the doctor noticed 'grossly reduced' movement of the lumbar spine to less than half the normal range but thought that this was a 'manufactured' restriction. Dr Anderson did note a 'minor partial rupture of part of the quadriceps femoris complex'. He said that: It is still most important that Mr Jenkins should be maximally active. This is just not happening at present. I would suggest that his major contribution to improving his circumstances would be in the water. He does a limited amount of this but nothing like enough. 25 Dr Grant Walker, consultant neurologist, in his opinion of 2 July 2003, expresses the view that the fact that the plaintiff has developed further muscular skeletal problems in the absence of any work is further suggestion that his original complaints 'had little to do with the designated "injuries" that he reported'. He did find, in an opinion dated 12 October 2001, that the plaintiff had a 6.4 per cent loss of function of the upper left arm that equated to 4 per cent 'whole person loss'. Dr Walker also noted that the plaintiff did not 'give maximal effort at times'. 26 An assessment by Trevor Hawkins, Vocational Psychologist with the Vocational Capacity Centre, dated 24 May 2002, accepts that the plaintiff impressed as having 'mild depression' but presented with a more considerable focus on his physical condition. That is: His potential to engage in some form of gainful employment, a more immediate issue, is thus being put off for consideration until he has resolved all of his physical problems. This approach is likely to see him unemployed for a considerably longer period of time. 27 The opinion goes on to assert: His previous careers have been unskilled in nature and as a result he has developed a restricted range of transferable skills. His jobs in the past have involved customer service skills; driving; sales and routine administrative and clerical skills….There are certainly no major problems of a cognitive nature that would stand in the way of his entry into many alternate vocational options in the labour market… 28 Dr Wendy Roberts, a clinical psychologist, said in her opinion of 28 November 2002, that she was yet to be convinced that the plaintiff 'is clinically anxious, depressed or irritable now' about his injuries. Dr Roberts opined: It is not at all clear to me that he meets diagnostic criteria for any psychological disorder, but I could not assess this accurately because his performance on paper and pencil testing was suggestive of exaggeration. I also note that with two of the accidents he continued working, did nothing about the repetitive arm injury until after February 1999 and then continued working after February 1999 until May when he went off work. I would like to see his employer's file and any statements. In terms of my area of expertise, I doubt that there are psychological barriers preventing him from returning to work of the sort which he did before, nor should they be problematic in the future. He is cognitively quite capable of doing further study to refrain if medical opinion were to be that he is medically unfit for work of the sort he did at the markets. 29 Magri MacMaster, Director of a Rehabilitation and Medico-Legal Consultancy, deposes in an opinion of 13 February 2002 that the plaintiff has 'demonstrated self-limiting movement and what appears to be exaggerated pain behaviour'. It is also said: He appears to have some functional overlay and he is very preoccupied with his injuries. He said he spends some time reading at the library about them. There was no evidence of physical discomfort or distress during any activities requested [of him]. 30 Mr MacMaster did not think that the plaintiff required assistance with personal care or domestic tasks. This opinion was shared by Dr Roberts.

Other aspects of the defendant's medical evidence 31 There are some aspects of the defendant's medical evidence relating to the plaintiff that give some support to the plaintiff's claims. These include: (a) The recorded history of operations, which medical practitioners presumably thought were required, as well as a requirement for physiotherapy and hydrotherapy. There are continued references to evidence of the regular use of pain relief tablets and the plaintiff's abandonment of previous sporting and other activities as a result of the injuries suffered at work; (c) Dr Khan in his opinion of 10 July 2003, said that the plaintiff is ' unfit to perform his pre-injury work duties '. The focus of that opinion is on an impaired ability to work because of the incident on 17 February 1999 and ' the repetitive chronic trauma to the left elbow …'. With the qualification that the Doctor took the view that the plaintiff could do sedentary work, the opinion is proffered that: ' he is unfit to carry out his pre-injury activities of a handyman or maintenance worker and would have difficulty in doing any lawn mowing or heavy work in the garden '. (d) Dr Edwards deposed that the plaintiff presented on that examination day with a limitation to the right knew that would mean he had ' difficulty driving a forklift '. (e) Other opinions speak of a functional (psychological) overlay associated with the plaintiff's physical symptoms. For example, Dr Anderson in his opinion of 1 February 2001 talks of ' quite a lot of associated dysfunction '. The doctor deposes to a ' fairly powerful non-organic feature creeping in to the perpetuation of his current condition. It also looks as though he is now suffering from a chronic pain condition. This unfortunately does not bode well for the future '. In the same report, proffers the opinion that the current condition of the plaintiff's left arm ' could have followed from the repeated banging up and down of the forklift, which does not have a decent suspension '. Furthermore Dr Anderson does not regard the plaintiff as fit to return to his previous occupation and says that: " it is wide constellation of dysfunction I cannot think of any specific occupation he would be able to follow at this stage. Nevertheless, in time, if he can control his current pain condition a bit better, it may be possible for him to do some fairly lightweight office-based occupation '. But what is unequivocal in this opinion is that the plaintiff ' is not fit for his previous occupation… '. (e) Dr Walker says that ' apart from being unable to work, he is unable to perform any heavy work around the house, such as lawn mowing and gardening '.

Plaintiff's medical evidence 32 The plaintiff's medical evidence does lend support to a link between his injuries and disabilities and his job as a forklift driver at the markets. 33 Dr Raymond Schwartz, a specialist physician, said in his report of 13 April 2001: Mr Jenkins' problems occurred on a background of apparent repeated trauma with Mr Jenkins as a forklift driver needing to keep his arm over the seat thereby exposing his ulnar nerve on that side to trauma. Mr Jenkins had a history of neck trauma as well and had suffered a fall earlier in 1999 which he sustained several soft tissue injuries including exacerbation of his neck injury. 34 In his report of 26 June 2001, Dr Kwok, a neurosurgeon, concluded that: Mr Jenkins has suffered ulnar entrapment neuropathy as a result of the nature of his job having to rest his left elbow on the back of the seat causing constant compression on that area. This was further aggravated by the fall that he suffered. 35 In his opinion of 9 July 2001, Dr Beer, an orthopaedic surgeon, concluded that the plaintiff sustained the following injuries 'at work': · Internal derangement of the left knee - damaged lateral meniscus left knew joint with cystic degeneration as a result of the injuries; · An aggravation of degree of degeneration of his left knee joint twice resulting in significant disability that he has with his knee at the moment; · Soft tissue injury to his cervical spine and lumbar spine and aggravation of degenerative changes in both areas; · A muscle injury to his right thigh and partial rupture of his Rectus femoris muscle - one of the muscle bellies or structures constituting the Quadriceps Femeris on the anterior aspect of the thigh; · Soft tissue injury resulting in some superficial nerve injury to his adductor region of his thigh consistent with such a fall at work; · An injury to his ulnar nerve of the left arm resulting in surgery; · Residual disability with his left arm due to his forklift driving work. 36 The plaintiff has baldly summarised some of the medical assessments as to the degree of that disability in the following terms: · Dr Kahn - 30 per cent left arm impairment; · Dr Anderson - 20 per cent left arm impairment; · Dr Adler - 30 per cent loss of efficient use of left arm; · Dr Brimage - 30 per cent loss of efficient use of left arm; · Dr Beer - 15 per cent loss of efficient use of left arm. 37 In addition there is evidence of psychological disability suffered by the plaintiff. A clinical psychologist, Ms Susan Bourne, in her opinion of 14 August 2002, has recounted a history, asserted by the plaintiff, of mood fluctuations, depression, worry about the future, anxiety and a lack of motivation. In a qualified opinion, based on the plaintiff's account, Ms Bourne concluded that: His prognosis is uncertain and dependent upon his physical recovery. Given the complexity of his physical injuries and continuing pain it is my opinion that it is unlikely that Brad will be pain free. It is also my opinion that despite his efforts to manage his pain he will continue to experience fluctuating psychological symptoms for some time and will require ongoing psychological support. 38 Dr Strum, consultant psychiatrist, in his opinion of 2 May 2001, proffered the view that the majority of the plaintiff's disability is due to his physical injuries; but as far as his psychiatric disabilities are concerned, Dr Strum opined that the plaintiff's overall disability was 10 per cent.

Issues for determination 39 In my view, there can be no real doubt that the plaintiff is at least partially disabled. The real question in the case is whether there was a causal link between work injuries suffered in his employment and the control over the markets exercised by the defendant. Control 40 There is no dispute that the defendant would owe a duty of care to prevent foreseeable injury to the plaintiff, as an occupier of the markets, over elements of the markets in which the defendant had exercised control or had the power to exercise control over its operations. The test for a duty of care is based upon control in all the circumstances as described in Hackshaw v Shaw (1984) 155 CLR 614 at 662-663 approved in Australian Safeway Stores Pty Limited v Zaluzna (1987) 162 CLR 479. Further: The touchstone of its existence is that there be reasonable foreseeability of a real risk of injury to the visitor or to the class of person of which the visitor is a member. The measure of the discharge of the duty is what a reasonable man would, in the circumstances, do by way of response to the foreseeable risk. 41 The duty is to take reasonable care to prevent a foreseeable risk of injury, however 'the occupier is not an insurer': Shoeys Pty Limited v Allan (1991) Aust Torts Reports ¶18-104 at 68,942 per Handley JA. 42 I accept the submission that it is the employer that has a high, non-delegable, duty of care over its employees, and further, a duty to direct and control the day-to-day activities of the employees by training and supervision but it may be that the same duty is not imposed upon an occupier. However, the defendant, as the occupier of the markets, thereby undertook a duty to take reasonable care (by carrying out appropriate steps) to prevent reasonably foreseeable injury to persons present upon those premises: Australian Safeway Stores Pty Ltd v Zaluzna (1986) 162 CLR 479. 43 However, I accept that such a duty cannot extend to injuries that so are far fetched and fanciful so as not to be reasonably foreseeable, nor is there liability for injuries caused to a plaintiff that has a sufficient knowledge of the likelihood of injury to know the dangers involved: see Roads and Traffic Authority of NSW v Johnson [2003] NSWCA 40. 44 Further, I accept that proof that a danger could possibly occasion some harm is not a sufficient discharge of the plaintiff's onus and a defendant is not liable to a plaintiff that does not take sufficient care with regard to obvious risks: see Roads and Traffic Authority of NSW v McGuiness [2002] NSWCA 210.

State of the surface at the markets 45 Three specific incidents of breach are alleged by the plaintiff, and all relate, in some minor or major respects, to the state of the surface of the area occupied by the defendant at Flemington. 46 For slip accidents that involve an allegation of an inappropriate cleaning system, it is important to bear in mind what was said by McHugh JA in Brady v Girvan Bros Pty Limited (1986) 7 NSWLR 241 at 256: The critical question…is…whether the evidence gives rise to an inference that the cleaning system would have avoided the plaintiff's injury. For it is no comfort to show that the defendant did not have a proper system unless she can show that the existence of a proper system would have avoided her injury… 47 In this respect, I am not satisfied that a warning, by sign or otherwise, would have prevented the plaintiff from falling on either 10 June 1998 or 17 February 1999. The plaintiff gave no evidence that such a sign would have altered the manner in which he performed his work tasks and I cannot see how a sign would have that effect. Further, the lack of such a sign has, in my view, no necessary or logical connection to the injuries that are said to have occurred. 48 With regard to the cleaning system I am bound by the decision of Shoeys Pty Ltd v Allan in which it was said (by Handley JA, Priestley JA concurring) that a 'problem' in causation arises: …where an appropriate inspection and cleaning system would not have secured the prompt removal of dropped or spoiled material from the floor of the premises. 49 This problem is manifest in these proceedings in that the defendant had in place a regular system of cleaning at the markets. To that extent, they had fulfilled, at least in part, their duty to avoid foreseeable risk of injury from people falling on dropped vegetable matter. However, the question of the reasonableness of this system remains a live issue between the parties. 50 The plaintiff relies on the fact that the cleaning system seemed to be in operation when the markets were not, and so the real risks of injury from falling vegetable matter was not, and could not be, prevented by the cleaning system in place at the material times. 51 The defendant relies on the evidence it has tendered to the effect that the cleaning system was multi-staged and dedicated to the precise problem: fallen vegetable matter that could cause injury. 52 An important question for the Court is whether the system was inadequate to its purpose or whether, on balance, some other system would have been more appropriate to prevent injury from waste vegetable matter. In my opinion while the cleaning system adopted was directed to the problem that gave rise to the plaintiff's injuries it was not appropriately or sufficiently adapted to preventing those reasonably foreseeable injuries that would result from a person slipping on fallen vegetable matter. This was because the cleaning system was not in operation at the times when injuries to the workers at the markets, as opposed to the general public, were most likely to occur.

53 A similar issue arises with respect to the state of the roads and surfaces at the markets. 54 The plaintiff asserts that the surfaces of the markets were inadequate to prevent the real risk of injury that arose out of those poor conditions. 55 The defendant relies on the fact that the markets were regularly checked for deficiencies and occasionally re-surfaced. In my view, it is relevant that this re-surfacing was always done with asphalt rather than concrete or some other, more stable (though more expensive) material. 56 The Court has had the benefit of a view in these proceedings at a prime time of the market's operations (at or about 7.30 am). There are over 700 forklifts working at the location. Despite the existence of speed limits, and an absence of evidence that those limits are regularly exceeded, the work of the markets operates at a significant velocity. The forklift drivers are responsible for the transport of produce from the stalls to drivers. It is a very busy location. The forklift drivers often drive the vehicles in reverse. They work on ramps, across asphalt areas to delivery trucks, and do so under pressures of congestion. 57 Common practise does not equal the absence of negligence, but the plaintiff must show that the defendant was not acting reasonably in taking some alternative course: Dovuro Pty Limited v Wilkins (2003) 77 ALJR 1706. In my opinion, the plaintiff has shown real, tangible defects in the system at work at the markets at the material times including the insufficiency of the cleaning and the lack of adequate surfacing over which the forklift drivers had to travel. 58 The plaintiff has established, on the balance of probabilities, a causal link between the working environment supervised by, and under the control of, the first defendant and the injuries and incapacity which, I find, he has undoubtedly incurred.

Orders 59 Accordingly, I would order:

1. Enter verdict for the plaintiff; 2) The defendant to pay the costs of the plaintiff on the proceedings to date; 3) Refer the matter to the list judge for allocation of a hearing date on the question of damages. *****

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