Jenkins v Sydney Markets Limited

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

20154 of 2002 Bradley William Jenkins (Plaintiff)

JUDGMENT 1 Shaw J: On 9 December 2003 I published a judgment in this matter in which it was held that damages were payable in respect of injuries occasioned to the plaintiff as a result of three incidents while the plaintiff was driving a forklift truck at the markets at Flemington operated by the first defendant: Jenkins v Sydney Markets Limited [2003] NSWSC 1162. 2 As a result of that judgment I determined liability in favour of the plaintiff as against the first defendant, entered verdict for the plaintiff, and made an order for costs. The matter was then adjourned to allocate a hearing date on the question of damages. That matter came before the court on 3 March 2004 and, after hearing argument on the question of quantum of damages, I made findings in the following terms (slightly edited for the purpose of this judgment):

(a) on 9 December 2003 I delivered judgment in this case in which I held that the plaintiff was partially disabled as a result of a number of incidents which occurred at the markets at Flemington in Sydney. The plaintiff was employed by Bill Patton's Pty Limited (cross defendant). However the claim in relation to the cross defendant has been settled, although the court has not been informed of the terms of that settlement. The question was whether Sydney Markets Limited owed a duty of care to the plaintiff to prevent the injuries suffered and whether this duty has been breached causing the injuries.

(b) I held that the plaintiff had 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 he has suffered by reason of his slipping on vegetable matter on the floors of the markets and driving a forklift truck over potholes on the asphalt area of the markets. 3 It will be relevant to the ultimate disposition of this matter to consider s 151Z(2) of the Workers Compensation Act 1987 (NSW) which is concerned with the calculation of damages where an injured worker is entitled to take common law proceedings against both the employer and a non-employer. However, it appears clear that an occupier's duty of care is not abrogated by the independent, non-delegable employer's duty to the employee: Lapcevic v Collier [2002] NSWCA 300; TNT Australia Pty Limited v Christie [2003] NSWCA 47. 4 The three incidents relied upon by the plaintiff are specified in my earlier judgment of 9 December 2003: 10 June 1998, March - May 1999 and on or about 17 February 1999. I refer to and adopt my earlier remarks in that respect. 5 The first issue which arises is the extent of the employer's liability as distinct from the liability of the occupier. As I have indicated, the settlement between the defendants has not been disclosed to the court. However, I adhere to my earlier observation to the effect 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 including training and supervision: see for example Kondis v State Transport (1984) 154 CLR 672. 6 Thus, it seems to me that both the employer and the occupier did have a substantial obligation to protect the occupational health and safety of the employees driving forklift trucks in the busy environment of Sydney Markets at Flemington. Accordingly, and for further reasons, which I may give, I would assess the employer's liability in the respect of the injuries which occurred to the plaintiff as 50%. This assessment differs from the submission put by the first defendant to the effect that the employer should bear the greater responsibility for any acts of negligence, and on the other hand, differs from the submission of the plaintiff that 90% of the responsibility should be visited upon the markets. In my view, it is a fair compromise between 2 entities which both bore a responsibility for creating a safe working environment for employees. I note that the defendant was not pressing a 100% contribution from the employer to any compensation that should be awarded. 7 The next general issue is whether there was any contributory negligence by the plaintiff. It is said by the first defendant that the plaintiff was going about his work in a way which was unsafe and which deprived himself of the right to look ahead, particularly by driving backwards, and by driving (it is alleged, unnecessarily) on the asphalt area of the markets (which contained potholes) whereas the concrete area did not. However, I regard the obligation of both the occupier and the employer as a significant one to provide an appropriate safe working environment for employees and, although there are injuries which are not reasonably foreseeable, nevertheless proof that a danger could possibly occasion some harm is sufficient to impose an obligation on an employer/occupier to take sufficient care with regard to obvious risks: see Roads & Traffic Authority of NSW v McGuinness [2002] NSWCA 210. In my opinion, a more thorough cleaning program and the rectification of potholes would have minimised the risk to a forklift driver such as the plaintiff. It is only in relation to the third incident where, it is conceded by counsel for the plaintiff, there is some scope for an argument about contributory negligence. I would propose to deduct from any award of damages in respect of the third accident 30% on the basis of contributory negligence. 8 The first defendant has argued that the videos shown to the court detract from the credibility of the plaintiff as to the extent of his injuries. I am unconvinced that the video material negatives in any fundamental way the assertions made by the plaintiff in the witness box. They do show a certain level of physical ability. However, the effect of injuries such as these disclosed in the current case can be variable on their effects on different days and I generally regard the plaintiff as a reliable and credible witness in his assertions of the adverse effects that he has suffered as a result of this work. On balance, and as I summarised in my earlier judgment, the medical evidence supports the proposition that the plaintiff has suffered some real adverse disabilities. 9 In relation to the first accident, the plaintiff was away from work for 4 weeks, was paid workers compensation and alleges an element of pain and suffering. It seems to me that some relatively modest amount of damages should be paid in respect of that accident. 10 In relation to the second accident I find the requisite level of the worst case scenario has been established and that he should be paid an amount with respect to non-economic loss. As I have earlier indicated, I do not find that there is any contributory negligence in this respect. 11 I have already referred to the third accident where I think there is an element of contributory negligence but I think that the threshold has been reached and that the plaintiff is entitled to a level of compensation for damages. 12 I find it troubling that the plaintiff has not sought, and therefore not obtained, any form of employment following the third accident. It is difficult to accept that he could not work in any capacity, even considering what his counsel has said about psychological overlay as a result of his physical difficulties. It seems to me that there should be some element of reduction of any award of damages as a result of the failure of the plaintiff to mitigate his damages in this respect. 13 As to past economic loss, I would adopt, generally speaking, the submissions of the plaintiff to the effect that he has been certified by a general practitioner and by a psychologist as having an incapacity for work, and that this makes understandable evidence that he has not been seeking work. Seeing the plaintiff in the witness box confirms his general incapacity and I do not believe that the video material satisfactorily negates this incapacity, as I stated earlier, which has been played to the court. I also bear in mind the work history of the plaintiff over about 20 years, which has not been the subject of any criticism and can justly be described in the terms used by counsel for the plaintiff as "unblemished". The plaintiff is about 44 years of age, and his working life has been spent at the markets. His cognitive performance is of low average ability, he has low average reading skills and below average mathematical skills. To be more specific a psychologist, Ms Bourne, has given the opinion that:

Unlikely given his current mental state he would be psychologically fit to seek alternative employment.

On the other hand, Dr Adler proffered an opinion dated 14 July 2003 that the plaintiff was: fit for customer service work or sedentary employment, however, no transferable skills to sedentary employment such as in respect of clerical/administrative work.

The doctor did suggest that there would be a fitness for car park attendant/petrol consol operator up to 5 hours per day; tollgate collector - 4 hours per day. Dr Strum in his report of 11 September 2002 said that the plaintiff had a chronic adjustment disorder with anxiety and depressed mood and accordingly the prognosis was poor. Dr Khan certified him "fit for sedentary or semi-sedentary work." Dr Anderson thought that: if he can control his pain a bit better it may be possible for him to do a fairly light office work-based occupation.

The doctor then suggested he might be a swimming instructor. All in all, and whilst having regard to the diversity of these medical opinions in various respects, I accept the submission of the plaintiff that, having regard to the age, skills and medical condition of the plaintiff, he is unlikely to return to the workforce. However, there is some residual earning capacity. I adopt the submission of the plaintiff that he should be allowed a loss of $250 net per week. 14 After I had made the findings, which I have recounted, counsel raised the need for some further findings. One issue identified was residual retained capacity and I have endeavoured to indicate that I think there is some but to a modest degree. Whilst the plaintiff alleges no retained capacity, I adopt the plaintiff's alternative submission that any such capacity is small and I have quantified the amount which should be paid having regard to that residual capacity. 15 Then counsel urged upon me that I should specify the general damages and the percentage of the most extreme case that I should allow for each particular incident. 16 Understandably enough, the defendant has not felt able to, itself, put forward a positive figure or percentage in relation to these accidents because it argues, "that the evidence doesn't support a finding of diminished capacity" (T p 365.33). The extent of the defendant's submission is therefore that the findings about general damages, having regard to the fact that I have found diminished capacity, should be as low as counsel for the defendant can persuade the court and that Mr Dooley, counsel for the plaintiff would urge the highest possible figures.

17 I make orders in respect of the following heads of damage:

(i) The "Pothole case", being damages for medical and other expenses incurred by the plaintiff for the amount of $22,834.00. (ii) The "Third accident", being the incident of 17 February 1999, for past medical and other associated expenses for the amount of $17,497.00.

(iii) Income taxation instalments deducted by the plaintiff's employer in respect of workers' compensation payments (commonly known as Fox v Wood) - $38,512.00: Fox v Wood (1981) 148 CLR 438.

(iv) Damages in respect of the three accidents to be calculated as follows: (a) Calculation as to 10 June 1998 incident - Common law Workers Compensation/ General damages $10,000.00 NEL 5% Nil Interest 1,400.00 Nil Past economic loss 2,200.00 Nil Total $13,600.00 Nil

Apply s151Z(2) $13,600.00 ÷ 2 plus Nil = $6,800.00

Verdict for the plaintiff in respect of the incident of 10 June 1998 for the amount of $6,800.00.

(b) Calculation as to second accident (pothole case)

Common law - Workers Compensation - General damages $70,000.00 30% worst case $70,935.00 Interest on general damages - Past medical $50,000.00 x 2% x 6 years 6,000.00 expenses 22,834.00 Past medical expenses 22,834.00 $98,834.00 $93,769.00 Common Law & Workers' Compensation $192,603.00 Total

Verdict for the plaintiff in respect of the second accident for the amount of $96,301.50.

(c) Calculation as to third accident - 17 February 1999

Common Law WCC Act General damages $80,000.00 $81,340.00 Interest on above $6,000.00 Nil Past economic loss - $61,750.00 $61,750.00 $250 x 4.75 years Future economic loss - $250 x 22 years @ 3% less 15% $179,350.00 $149,550.00 $250 x 22 years @ 5% less 15% Loss of past compulsory employer superannuation contributions - $6,669.00 $6,669.00 $300 x 4.75 years x 9% Loss of future compulsory employer superannuation contributions - $300 x 22 years @ 3% less 15% x 9% $19,370.00 $16,152.00 $300 x 22 years @ 5% less 15% x 9% Fox v Wood $38,512.00 $38,512.00 Past out-of-pocket expenses $17,497.00 $17,497.00 Future out-of-pocket expenses $63,900.00 $50,770.00 Total $473,048.00 $422,240.00

Common Law $473,048.00 WCC Act $422,240.00 Total $895,288.00 S.151Z(2) calculation - 50% employer $447,644.00 50% occupier $895,288.00 ÷ 2 Less 30% contributory negligence 30% $134,293.20 (deduct $134,293.20) Verdict for the Plaintiff in the sum of $313,350.80

18 Verdict for the plaintiff in respect of third accident for the amount $313,350.80.

Final Orders 19 In accordance with Judgment of 19 December 2003 and 21 April 2004 (as amended), judgment for the plaintiff in the sum of $416,452.30. 20 Defendant to pay the plaintiff's costs of these proceedings.

Last Modified: 07/26/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.