Lockyer v Marshall [2004] WADC 243

Lockyer v Marshall [2004] WADC 243 - WADC 2004 case summary — Zoe

[84]

11 The plaintiff was born on 2 May 1939. He left school at age 14 years. He was brought up on a farm in Western Australia and worked in farm based activities for a number of years after completing his schooling. He travelled to the United Kingdom where he studied at a Bible School and married. Upon his return to Australia he went back to farming and then for about three years was engaged in the tyre industry. On leaving that he became a life and general insurance salesman for several years and rose to the position of a broker. He found that to be a most stressful occupation and suffered a breakdown. In the summer of 1987 the plaintiff was engaged by the defendant as a tractor driver on race days at Ascot Racecourse. In the summer of 1988 the plaintiff again went to the United Kingdom and upon his return at end 1988 he continued his employment with the defendant. Initially he drove for four hours per day and later that increased to 6-8 hours and then up to 10-12 hours per day in 1991. The procedure adopted was that the plaintiff would keep a record of his hours worked and at the end of each month submit that to the defendant for payment. The job involved harrowing rolling and watering of tracks at the Ascot Racecourse.

12 Insofar as the incident is concerned the plaintiff was engaged in watering the training track. To undertake this duty the plaintiff used a Chamberlain tractor with an attached water tanker. The water tanker was attached by a goose neck arrangement centrally to the rear of the tractor and behind the driver's seat. Photographs tendered at trial (exhibit 1) best illustrate the arrangement. It might be described as follows. At the rear of the water tanker is a swinging gate water valve that allows water to pass from the tank to a distribution bar/spray manifold at the very rear of the tanker. When operating, a strip approximately two metres wide will be sprayed behind the tanker with water discharging through the spray bar. The water valve has a lever located over the top of the valve and when raised the lever opens a gate to allow water to pass through the valve. The gate is a tapered circular disc that engages with a corresponding slot in the body of the valve to control the flow of water. The gate valve is opened by the operator of the tractor by means of a bell crank lever and cable. The bell crank lever is located on the left side of the goose neck (as one looks at it standing directly in front of the tanker) and behind the driver. Effectively the lever is located in line with, but above the tractor driver's head height and is operated by the driver leaning and reaching backwards and pulling down on the lever. To open the valve the hand lever is pulled downward and then rearward until the cable attachment point passes below the pivot centre. The valve remains in the open position until the driver lifts the hand lever a short distance to release it above the pivot centre and the valve is closed by gravity assisted by a weight on the valve actuation arm. The bell crank lever is connected to the valve by means of a steel wire cable which passes along the top of the tank and down to the lever on the valve.

13 It was the plaintiff's practice to reach back behind him with his right arm to pull the hand lever down to open the gate valve and similarly when he closed the valve. On the occasion complained of he said that he leaned back to turn the water on. The lever jammed. He kept pulling down on the lever to free it up but to no avail. In the course of doing that he felt excruciating pain in his elbow. Despite that he got off the tractor and went to the rear of the tanker and released the lever. He noticed that a metal counter weight was up on the pipe and the lever was jammed. He fixed the problem, got back on the tractor and continued to work for the remainder of the day.

14 The plaintiff said that he mentioned the incident to the defendant later that day. The defendant was at the time working on the starting barrier as it was a race day. The plaintiff said that the main discussion had been about getting the valve cleaned up to avoid it sticking again.

[85]

15 The plaintiff's evidence was that he had always used his right arm and hand when operating the lever. He also said that when he had seen the defendant using this machinery that the defendant had also used his right arm and hand to operate the lever. The defendant denied that to be the case and said that it was his practice to use his left arm and hand to operate the lever.

16 It was the plaintiff's evidence that from time to time there were problems with the lever and this would be caused by a build up of dirt in the valve which would cause the release gate to jam. It depended on how dirty the gateway was but it generally jammed when the lever was being pulled down to open the gate valve. The plaintiff complained about this to the defendant. He said that two or three times each summer the valve would be disassembled and maintenance undertaken to clean the valve.

17 Paul Anthony Lockyer assisted his father at Ascot from late 1992 until July 1995. He mainly assisted driving a Massey Ferguson tractor doing harrowing and rolling but occasionally he drove the water tanker. In 1994/95 he spent about three hours per week on the water tanker. He too, would use his right arm to pull the lever down to open the gate valve to commence watering. He said that it was usually a small action but occasionally the lever would jam and he would have to give it a sharp/quick tug to open the valve properly. In cross-examination he said that he naturally used his right arm to operate the lever as it was easier to reach from the seated driving position and that gave more manoeuvrability to operate the lever. He said it was important to align the tractor and tanker with the fence and drive straight.

18 Another of the plaintiff's sons, Christopher John Catchlove Lockyer also assisted his father at Ascot. He mainly drove the water cart. It was his evidence that both his father and the defendant had demonstrated to him the operation of the lever by using the right hand. Further, by using the right arm enabled him to look back to see that the water sprayer was operating. If he were to have used his left arm he would not have been able to do so. He also said that on one or two occasions the lever had jammed and on each occasion he had given it a sharp or hard pull down to open the valve.

19 On the other hand it was the defendant's evidence that he instructed the plaintiff in operating the water tanker. In the first instance he took the tanker out with the plaintiff sitting along side him to observe its operation. On the next occasion he went out with the plaintiff operating the equipment. The defendant said that he demonstrated the operation of the lever using his left arm to pull the lever down. He said that he had always used his left arm. Whilst he observed the plaintiff using the equipment he was not able to say that the plaintiff did it differently. He said that the machinery would be inches away from the rail and the driver would be focused on going forward and that the lever could be pulled down without looking back. He also said that the gate valve operation was simple and easy, that on the odd occasion it could be a bit stiff but no excessive force was needed. He denied that the plaintiff had ever reported to him any difficulties in operating the lever and nor had he been involved with the plaintiff in cleaning sediment from the valve. In fact he said that there was no rust or sediment build up in the valve and that it might go two years or so before needing to clean out the gate bar/spray pipe.

20 John Ellis Ransom had worked for the defendant back in 1982/1983. He drove the water cart full-time at Ascot and Belmont to maintain the training track. It was his evidence that he would pull the lever with his left arm and that he had never experienced any difficulty with the operation of the lever. He conceded in cross-examination that the right arm could be used although it would be difficult and he suggested that the driver might not have control of the tractor.

21 It was said by Mr Martin Simms a consulting engineer called by the defendant, that operation of the valve control lever was most naturally accomplished using the left hand which required the operator to raise the left arm such that the humorous was at approximately 45 degrees above horizontal. His report describes the action as being not dissimilar to reaching behind the left shoulder to grasp a passenger safety belt tongue. On the other hand when he attempted to operate the lever with his right hand he found that action to be awkward, requiring high body and neck rotation and the adoption of an unnatural pose. He also found on a number of occasions when he was testing the equipment that the valve did stick which required additional force to be used to open the valve.

22 By my observation of the photographic evidence and from hearing the witnesses I am satisfied that the lever could be operated with either the left or the right hand. Either way it required some rotation of the torso and the arm being raised and reaching back and above head height to pull the lever down. By using the right arm I accept that it would make it possible to look back along the side of the tanker to ensure its alignment with the side fence and to see that water was flowing as it sprayed out from the back of the tanker.

23 Despite evidence to the contrary I have no reason not to accept the plaintiff's evidence to the effect that it was his practice to use his right arm to operate the lever in the manner which he described. His evidence was corroborated by that of his sons who similarly used the right arm.

[100]

35 Accepting the plaintiff's evidence as to the valve sticking I also have no reason not to accept his evidence that he did from time to time complain to the defendant that the valve was sticking. The fact of the valve sticking combined with the awkward upper bodily movement required to pull the lever on (whether that be with the right or left hand) suggests to me that the system employed was not in all the circumstances safe. The combination of twisting, reaching back above head height and pulling down on the lever and the fact that when the gate valve jammed, a short hard pull was required, in my view exposed the plaintiff to the risk of injury. It was not a simple straightforward and easily undertaken task. Whilst it was not repetitive the high impact of the occasion when force was required was such that there was a real likelihood that injury could be sustained. It was not without risk and, in my view that risk was foreseeable.

36 That risk could have been avoided. The sticking of the valve could have been avoided by regular scheduled maintenance to ensure that it did not stick or jam. The plaintiff called Mr W J Apgar, a qualified engineer/scientist with extensive experience in engineering, industrial research and development, consulting, design and forensic engineering. He said that to avoid the awkward motion required to operate the lever a lever and Bowden cable system could have been installed which placed the operating lever in a position that could be comfortably operated by the operator while facing forward. Optionally, a power valve operating system using a dash mounted switch or valve could have been readily implemented.

37 The fact that other mechanisms might have been used does not, of course, evidence negligence. It is accepted that comparison of alternatives only becomes relevant where the system in question carries a foreseeable risk of injury: Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40. I am satisfied to the requisite standard, ie on the balance of probabilities, that inherent in the method of operation was a foreseeable risk of injury.

38 I reject the defendant's evidence that he was not aware of the problem of the sticking valve. On the plaintiff's evidence maintenance was undertaken two or three times during the summer months and in winter. The problem presented itself when the defendant's engineer Mr Simms attended to inspect the equipment. The plaintiff's sons both spoke of occasions when the gate valve jammed. It was not an isolated incident. Nor was it something that had not happened previously. It was likely to happen again unless appropriate steps were taken.

39 In all the circumstances I am satisfied that the defendant was negligent in failing to maintain the equipment, that the system of work was not safe, and that he was in breach of his duty of care to the employee.

[101]

40 In his statement of claim the plaintiff contends that he suffered injury "on or about 25 January 1995...". His evidence was that it was a race day at Ascot and that the defendant was working on the starting barrier. He claims that he told the defendant that he had hurt his elbow on the day. Most of the discussion then concerned the fact that the gate valve was sticking. The plaintiff continued work for the remainder of the day. He subsequently spoke with Dr George O'Neil at his church who referred him to Mr Peter Connaughton whom he saw on 20 February 1995. In the meantime he took painkillers to alleviate the pain. He complained to Mr Connaughton of a sore right elbow and forearm symptoms and having experienced a viral illness. He described the onset of symptoms as being towards the end of January. He was concerned that the symptoms had appeared about one week after spraying herbicide at Ascot. The plaintiff gave no history of any acute event or incident. On examination he reported right shoulder symptoms while the right arm was being put through a variety of movements. He was diagnosed as having a viral illness, right lateral epicondylitis and anxiety relating to various issues at work.

41 The plaintiff again attended on Mr Connaughton on 22 March 1995 when a first medical certificate (exhibit 27A) issued. The date and place of disability is stated as January 1995. The workers' description of how the disability occurred is stated as: "pulls a lever on a water tanker with R arm whilst driving a tractor." The worker's description of the injury is described as "painful right elbow and forearm". Mr Connaughton's diagnosis was "right lateral epicondylitis." Mr Connaughton considered the plaintiff to be "fit" but required further treatment. The plaintiff was referred to orthopaedic surgeon Mr Alan Prosser whom he saw in March 1995. Injection of local anaesthetic and steroid to the lateral epicondyl in March gave relief of the pain.

42 It was the defendant's evidence that there was no mention to him by the plaintiff of having suffered any injury in the early part of 1995. An employer's report form to SGIO Insurance (exhibit 35) under the hand of the defendant records day and date of occurrence as "advised of problem some time in March 1995". The form asks the question "Do you agree with the details of the occurrence as provided on the worker's claim for compensation form?" which is answered with a tick in the Yes box and the words "it is possible". That form was signed by the defendant and is dated 4 July 1995.

43 The defendant's wife Aino Marshall who apparently does all the paperwork for her husband's business gave evidence that it was in May 1995 that the plaintiff reported to her that he had an arm condition. She said that both Mr and Mrs Lockyer came to her gate and she assumed that they were there to discuss a letter which she had earlier caused to be sent to the plaintiff. She said that the plaintiff asked "a favour" of her to pay a doctor's bill. Upon enquiry she was told by the plaintiff that he had torn a tendon in his arm and he indicated to his left elbow. Upon the plaintiff's enquiry about worker's compensation he reportedly said: "Just say it aggravates when I'm driving the tractor, its no problem and I will continue working." Mrs Marshall paid the account but put it through for workers' compensation after 1 July. She continued to see the plaintiff and said that she heard no further mention of the elbow condition.

44 I attach no weight to Mrs Marshall's evidence. As contentious as those matters are they were not put to the plaintiff in cross-examination. The rule in Browne v Dunn (1983) 6 R 67 was not observed. The plaintiff had no opportunity to respond to Mrs Marshall's assertions. Fairness dictates that I should not have regard to that evidence.

45 Two issues arise. First, as to when the plaintiff allegedly suffered the injury and secondly, as to whether or not the injury was caused in the manner alleged by him. As to the first of those questions I have no reason not to accept the plaintiff's evidence. Whilst the first medical certificate gives 20 January and the statement of claim states 25 January as the date of the incident, the plaintiff recalled it as having happened on a Saturday race day at Ascot. Upon checking the racing calendar some time later he identified 21 January as being the race date. I accept his evidence on that.

46 As to the second question the plaintiff's description as to how the injury occurred has been consistent insofar as giving a history to medical practitioners and to the workers' compensation insurer. Furthermore, the defendant agreed so far as the details of the occurrence are concerned that "it is possible". Also, the plaintiff had no prior history of injury or pain in the right elbow. It was not the sort of injury which required immediate medical attention. Simple analgesics were used to abate pain. When the pain persisted the plaintiff sought medical attention. That would not be an unusual pattern in responding to this type of injury.

47 Having regard to the evidence and accepting as I do the plaintiff's evidence and I have no reason not to accept his evidence on these matters I am satisfied on the balance of probabilities that he did sustain injury in the manner claimed and consequently I find that the defendant's breach of duty of care was causative of the plaintiff's injury to the elbow.

[146]

88 At some later time the plaintiff's mother went through a terminal illness and again that would have to have been stressful for him.

89 More recently, it is apparent that the plaintiff was resentful about a number of issues and particularly the medico-legal process. This coincided with the lead-up to proceedings in the Conciliation and Review Directorate to which reference has earlier been made.

90 Consultant psychiatrist, Dr Geoffrey Dixon, examined the plaintiff on 26 October and 14 November 2000. On presentment the plaintiff expressed concern about his lack of prospects in the work market and his anxiety about his financial situation as he was then receiving no wages, he had a very restricted lifestyle and he would never lose the pain or go back to work. Dr Dixon found the plaintiff "...was suffering from a major depressive disorder which was reactive to the injury he sustained to his right arm..." There is no question in Dr Dixon's mind that the plaintiff's psychiatric disorder was secondary to the accident. Dr Dixon considered that the psychiatric problems were causally related. He said in his evidence that "...if he hadn't had the accident he wouldn't be depressed." By reason of the depressive disorder he regarded the plaintiff as being totally unfit for work. He prescribed the anti-depressant Efexor.

91 The defendant referred the plaintiff to Dr Zelko Mustac, also a consultant psychiatrist. He saw Dr Mustac on 3 April 2000 who diagnosed him as having a major depressive illness which appeared to have become worse over the preceding 6-12 months. It appeared to Dr Mustac that the plaintiff's depressive illness had arisen out of consequences of his work accident including his conviction that he had limited opportunities for future employment.

92 When last reviewed by Dr Mustac on 7 January 2003 he reported that the plaintiff's depressive illness was ongoing but that he regarded it as of mild severity and at that time appeared to be largely in remission. Nevertheless, the symptoms were still there.

93 Whilst the plaintiff was vulnerable to depressive illness and there were a number of unrelated factors in his life which were no doubt stressful I am nevertheless satisfied that as a consequence of his injured state there was legitimate cause for stress, anxiety and depression. It is not possible to disentangle the unrelated factors. Anxiety about his financial situation, dealing with the pain, frequent attendances on doctors and specialists, proceedings and appeals in relation to the workers' compensation proceedings and financial insecurity and emotional issues were, and I accept, matters which affected the plaintiff's health and wellbeing.

[152]

100 Insofar as the circumstances of sustaining injury are concerned I have found the plaintiff's evidence to be credible and that there was no reason not to so find.

101 The defendant suggests that the plaintiff has exaggerated his symptoms in that there are manifest inconsistencies on examination and overstatement of his disability. I do not accept that submission. Whilst there is some evidence, eg Mr Prosser and Dr Gee, noting inconsistencies between complaints of disability and clinical observations, or "disease conviction" as described by Dr Bell, they are of a relatively minor nature when regard is had to the overall clinical findings. Furthermore, the "discrepancies" are contradictory of each other. Dr Gee wanted to compare voluntary movements with unassisted movements whereas Dr Bell advised that he encouraged patients to assist their own movements. Likewise, measurement of arm "wasting" can be misleading if muscle tone is not taken into account. Dr Bell thought that examining wear on the palm of the hands was a more important criterion than wasting. With respect to those views no absolute conclusion can be drawn suggesting unrestricted use of the arm.

102 The plaintiff presented in the witness box as a person of mild disposition who related his circumstances in a measured and straightforward way. He was controlled in response to what was an extensive and aggressive cross-examination. The defendant called Mr R J G Old, an employee of WATC. Mr Old described the plaintiff as a firm friend of some 35 years and described him as being a Christian spiritual man of good character.

103 The plaintiff's wife, Daphne Joan Lockyer works as a patient care assistant at King Edward Memorial Hospital. She has observed the effect which the injury and subsequent legal, emotional and social aspects have had on the plaintiff. She physically assisted the plaintiff post his operations and continues to do so. She described the plaintiff as being frustrated in not being able to do things which he had been able to do and of his suffering pain either in the arm or shoulder after attempting certain activities. Whilst I should not attach great weight to her evidence it is nevertheless consistent with the plaintiff's account of his circumstances to the various medical practitioners.

104 In all of the circumstances I find the plaintiff to have been a credible witness, one who has suffered his disability with frustration to the extent of depression and without exaggeration. I am not of opinion that he has overstated his disability.

[153]

105 The review officer made no finding on this issue considering it to be beyond his jurisdiction and a matter to be dealt with by this Court. (Par 119).

106 The plaintiff did pursue a vocational rehabilitation programme (exhibits 30 and 38).

107 In 1996 in an attempt at rehabilitation he undertook a work trial in the office of the Church of Christ at Midland. That lasted for approximately 12 weeks. He undertook general office duties which included answering telephone calls and overseeing a yard cleaner. He is a naturally right handed person. By reason of the pain and difficulty with his right arm he was not able to write or use a keyboard.

108 In 1997 he assisted two friends who were pest exterminators by minding their office, opening mail and answering telephone calls. That lasted for about 16 weeks working five to six hours per day. Again he had disability with pain and swelling at and below the right elbow and his right shoulder movements were moderately restricted. He was not able to manage work at the computer.

109 Further, it was the plaintiff's evidence that it was his belief that by reason of his disability and age his opportunities for gainful employment were minimal if at all. Not being able to use both hands would preclude him from undertaking shop assistant, storeman or service station attendant work. He does not have the skills or qualifications to undertake general clerical or travel agent's work. His mental state would preclude him from undertaking telemarketing or telephone sales work.

110 Mr Connaughton in considering the plaintiff's ability to retrain said that "...age and work experience indicates that he would not readily obtain employment."

111 The plaintiff intended to work to age 65 which age he has now reached. It would not be unreasonable in the circumstances to conclude that the plaintiff was not in any event motivated to engage in any further gainful employment.

112 The weight of medical evidence confirms the unlikelihood of the plaintiff undertaking gainful employment since his employment was terminated in September 1995.

113 On the balance of probability and having regard to the evidence I conclude that the plaintiff by reason of his disability was not capable of being gainfully employed in any occupation. It is my finding that he had no retained earning capacity to work in gainful employment. It is my finding that he has not failed to mitigate his loss by utilising and/or exploiting any retained earning capacity by attempting to obtain and/or engaging in remunerative employment.

[166]

119 In those circumstances the maximum amount of damages, both pecuniary and non-pecuniary, that can be awarded for the most extreme case of that disability is an amount equivalent to the prescribed amount calculated in accordance with s 93F(1)(a) of the Act.

120 The parties are agreed that the s 93F "cap" is an amount of $284,615.

121 The defendant contends that the plaintiff has not suffered the "most extreme case" of the disability for which he has obtained a not less than 16 per cent determination of his relevant degree of disability and accordingly is not entitled to the maximum amount of damages prescribed by s 93F(1)(b) of the Act.

122 Furthermore, pursuant to s 93F(1)(a) the amount of damages to be awarded is to be a proportion, determined according to the severity of the alleged disability, of the maximum amount of damages that can be awarded.

123 Section 93F(1)(a) uses the expression "severity of the disability", whereas s 93D and s 93E speak of "degree of disability". I accept the defendant's submission that it would therefore seem that the proportional severity is not determinable according to the percentage degree of disability. Otherwise there would be no reason to assess quantum, every case being determined according to a percentage of the maximum amount according to the percentage degree of disability agreed or determined.

124 Nor is it possible to discern what Parliament intended by the use of the words "may be awarded only in the most extreme case of a disability of less than 30 per cent in degree".

125 Nevertheless, the section suggests that amount A constitutes a damages cap which creates a scale within which all damages, economic and non-economic must be proportioned. The closest analogy is found with reference to s 3C of the Motor Vehicle (Third Party Insurance) Act 1943 which caps damages for non-pecuniary loss in similar terms.

126 The question as to the method to be adopted in the awarding of damages, bearing in mind the "cap" contained in s 93F was discussed by Viol DCJ in Guest v NRMA Insurance Ltd [2002] WADC 115 pars 77-89. His Honour concluded (par 87) that by reason of the particular wording used it was suggestive that a discretionary assessment was necessary rather than a mathematical calculation. For the reasons which his Honour expressed I accept that is the appropriate interpretation. I adopt also the view of his Honour that the wording of s 93F "...suggests some consideration of the overall economic and non-economic consequences to the plaintiff as a result of the accident."

[168]

127 Section 93F(3) of the Act provides that no entitlement to damages is created by sub-section (1) and that the sub-section is subject to any other law that prevents or limits the awarding of damages. What I would understand by that is that it is nevertheless incumbent on the plaintiff to prove loss. Necessarily, that task must be undertaken in determining the overall economic and non-economic consequences to the plaintiff.

128 It is clear that the plaintiff suffered an injury of moderate severity to his right elbow in the incident. He underwent a series of investigations and operations. Thereafter the shoulder complaint caused the plaintiff trouble and continues to do so. I accept also that his depressive condition can also be attributed at least in part to the consequences of the incident. Whilst I accept that the plaintiff may have had a vulnerability to a depressive illness it is undoubted that the consequence of this incident has if not caused, then contributed to, his bouts of depressive illness since. It is not possible to disentangle the extent to which such condition may be attributed to the incident or to other issues.

129 It is reasonable to conclude that the plaintiff has suffered many, if not the majority of symptoms and sequelae pleaded in par 13 and par 24 of the statement of claim.

130 Having regard to these matters and the evidence generally, an appropriate award of damages for loss of amenities would be in the region of $60,000.

131 I accept that the plaintiff was unable to work in his pre-accident occupation or alternative employment and has been so incapacitated since 12 September 1995. He is an individual who is unskilled, past middle age, who has suffered a work injury. Given the findings as to his physical condition and his depressive illness I have concluded that he had no retained earning capacity. Adopting the method of calculation set out in the plaintiff's schedule of damages his past loss of income to trial is in the order of $250,000. On the same basis his future loss of earning capacity to age 65 taking into account contingencies would be in the order of $40,000.

132 It is my finding also that having regard to the evidence the plaintiff would be entitled to superannuation contributions on both past and future earning capacity, a modest allowance for travelling expenses and also a reasonable allowance for past and future gratuitous services. The schedule of damages also details a claim for past medical treatment expenses in the order of $1,591.10, past medication expenses in the sum of $9,782.40 and future surgery in the approximate sum of $6,000. As to the latter item the evidence of Mr Wang and Mr Prosser clearly indicates that such surgery may be beneficial to the plaintiff. Those items would be allowed. Allowance would also be made for future medication expenses (claimed at $11,232.20), future specialist attendance expenses ($852), future general practitioner attendance expenses $1,232, future psychiatrist attendance expenses ($1,227) and future hydrotherapy and physiotherapy (approximately $7,000).

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Judgment (169 paragraphs)

Lockyer v Marshall [2004] WADC 243 (3 December 2004)

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Cases Cited (17)