McCallion v UR Machinery Sales Pty Ltd [1999] VSC 543

11. Mr. Shane Gillies was and is a supervisor employed by the defendant. In April and May 1996 he had particular responsibility for the area of the defendant's premises in which assembly work was carried out. Because space was limited, it was to this area that Mr. McCallion had been assigned, although he was a fabricator. At all events, Mr. Gillies was the supervisor physically closest to Mr. McCallion at the time of the incident which caused the onset of Mr. McCallion's acute back pain; and it was to Mr. Gillies that Mr. McCallion reported immediately afterwards.

14. If the evidence of the plaintiff on the point is correct, however, Mr. Gillies was not the only person in authority who was informed of Mr. McCallion's unfortunate experience with the cone and the conveyor pan. The defendant maintained a book in which the occurrence of accidents was recorded. Assisted by Mr. Gillies, and (as Mr. McCallion recalls it) also by Mr. Sergio Gobbo, Mr. McCallion made an entry, noting the incident, in the book. Mr. Gobbo was then the defendant's factory manager. It was he who interviewed Mr. McCallion when, early in 1996, the plaintiff applied for the job. It was Mr. Gobbo who gave the initial instruction (probably to Mr. Gillies) to fabricate the cone and the pan. The chain of command passed from him to Mr. Gillies and so to Mr. McCallion. In the course of giving evidence at the trial, Mr. Gobbo acknowledged that the incident in which the plaintiff hurt his back was reported to him; as he recalled it, the information came from Mr. Gillies. It is clear, and I find, that the knowledge of both Gobbo and Gillies was, so far as is presently relevant, the knowledge of the defendant. I also find that the defendant knew, immediately after it happened, about the injury to Mr. McCallion's back. The defendant also then knew enough to make an informed assessment of the danger to which someone in the plaintiff's position was exposed when adopting Mr. McCallion's method of welding the cone to the pan.

17. The plaintiff, still sore as a result of the incident in question, consulted his doctor. He was told to rest for a few days. He did so. He then returned to work, although some residual discomfort remained. He was provided with additional assistance, in the form of an employee whose temporary duty was to provide Mr. McCallion with an extra pair of hands. When, soon afterwards, this assistance was withdrawn, Mr. McCallion resumed his normal tasks. I find that no-one suggested any modification to the method adopted by the plaintiff to weld a nose cone to a conveyer pan.

20. This continued to be a task which Mr. McCallion performed as required. He devised his own means of reducing the strain which this imposed on his back. He placed a flat sheet of steel under the pan, ensuring in doing so that the sheet jutted forward to form a platform upon which the cone could rest during the welding process. The effect was to lessen, but not eliminate, the weight which Mr. McCallion had to bear while engaged in the spot-welding operation. It did not affect the extent to which he was required to twist, and at the same time stretch across, his body. Nor did it ease the load represented by the weight of the welding equipment.

23. On 10 September 1996, Mr. McCallion was once again required to weld a nose cone to a conveyer pan. This was perhaps the fourth or fifth occasion on which he had attempted this job. The steel sheet was in position. The first spot-weld was completed. Mr. McCallion then twisted his body in reaching across to his left to attempt the second weld. Again, he experienced a very sharp pain which brought him to his knees. He nevertheless continued to work. According to him, this was because he did not have any sick leave available to him. Despite feeling very sore that night, he returned to work the next day. He was required to manually move a quantity of mesh designed to serve as the base of a catwalk on the top of the harvesters. As he attempted to do so, he twisted his body. This resulted in severe pain in the lower back. By lunchtime, he could barely walk. He informed Mr. Gillies that he needed to see a doctor. He left work for that purpose. He has never returned.

26. The medical evidence is unanimously to the effect that, because he strained his back at work, Mr. McCallion aggravated a long-standing, previously asymptomatic, spondylolisthesis with degenerative change in the lumbar sacral disc and forward displacement of L5/S1. He has not since the incident on 10 September 1996 been fit to return to the kind of work for which he was employed by the defendant. Heavy manual labour will remain for the future a thing of the past. Indeed, the preponderance of the evidence is that he is most unlikely ever to find work of any kind again.

29. It is against this background that the present proceeding is brought. By a statement of claim issued with the writ on 4 November 1998, Mr. McCallion claims that each of the two welding incidents to which I have referred resulted either from the negligence of the defendant, or from its breach of the Occupational Health and Safety (Manual Handling) Regulations 1988, or both. The two principal particulars of negligence are those of failing to provide a safe place of work, and failing to implement a safe system of work.

32. The regulations upon which reliance is particularly placed begin by defining the expression "manual handling". It means "any activity requiring the use of force exerted by a person to lift, push, pull, carry or otherwise move or restrain any animate or inanimate": regulation 4. The regulations then require employers to take all practical steps to make sure that (among other things) "the work practices carried out in the work place involving manual handling are designed to be as far as practicable safe and without risk to health and safety": regulation 5. Then, by regulation 6, it is provided that employers must ensure that manual handling likely to be a risk to health and safety is examined and assessed in consultation with the employees concerned and with any health and safety representative of those employees. If (it would seem, whether or not an assessment under the regulations has been carried out) manual handling has in fact been assessed as a risk, employers must, if practicable, redesign the manual handling to remove the risk. If that is not practicable, the employer must, if practicable, redesign the manual handling in order to reduce substantially the factors contributing to the risk: regulation 8. If such redesigning is not practicable, then employers must provide and maintain, as far as practicable, mechanical aids to assist the employee carrying out that manual handling; and employees must be trained in the use of such aids: regulation 9.

35. Having alleged a duty of care, and a breach of statutory duty, the statement of claim proceeds to assert that these breaches resulted in each of the two incidents in question, which in turn caused the medical problems of which Mr. McCallion presently complains. They are briefly described in paragraph [9], above. According to the statement of claim (paragraph 13) "the plaintiff suffered a serious injury within the meaning of s.135A of the Accident Compensation Act 1985 (as amended)". It is then alleged, by paragraph 14, that this injury "arose out of or in the course of or was due to the nature of his employment by the defendant, and such employment was a significant contributing factor to [its] ... occurrence".

38. By its defence, U.R. Machinery Sales (Vic.) Pty. Ltd. admits its incorporation, its occupation of the premises at which Mr. McCallion was employed, that those premises were a work place as defined by the relevant regulations, and that the plaintiff was, when the incidents occurred, one of its employees. It also admits the allegations made in paragraphs 13 and 14 of the statement of claim. No other admissions are made; and there is an allegation of contributory negligence. The particulars of this negligence allege, in effect, a failure to use common sense or pay attention to what the plaintiff was doing, a failure to exercise adequate care for the plaintiff's own safety and a failure to seek appropriate assistance. During the course of the trial, I gave leave to add a further particular:

"Failing to carry out [the plaintiff's] duties in accordance with his instructions in particular not attaching metal brackets to the lower conveyer pan to support the nose cone when welding."

42. The application to add the further particular was earnestly pressed. Despite this, the evidence adduced on behalf of the defendant came nowhere near making the allegation good.

45. Only one witness was called by the defendant. This was Mr. Gobbo. He said that he sometimes performed the task on which Mr. McCallion was engaged when he hurt his back. On the occasions on which Mr. Gobbo did the work, he began by tack welding two pieces of metal (to which he referred as "brackets") to the underside of the pan. These were then used to carry the weight of the cone. In other words, they did much the same job as the sheet of metal later employed by Mr. McCallion.

48. In his evidence in chief, Mr. Gobbo said that, to the best of his knowledge, he instructed Mr. McCallion on the use of the brackets. Mr. McCallion denied this. I accept the evidence of Mr. McCallion, and reject that of Mr. Gobbo. The latter was an unimpressive witness. He gave his evidence on this and on other points without conviction at best and evasively at worst. By contrast, I formed the opinion that Mr. McCallion attempted throughout his evidence to tell the truth. He succeeded, at least in general.

51. Mr. McCallion was asked whether he was ever given anything in writing describing how he ought not to carry out "the various jobs". The transcript then records the following passage:

"Answer: No Question: Were you ever orally told how you should safely carry out the particular jobs you had to perform? Answer: No. To my memory, No."

55. A little later, Mr. McCallion was asked how he came to perform the "particular task" on which he was engaged when he first hurt his back. The transcript records the following:

"Question: Were you told by someone to do it? Answer: No, I was shown a finished one outside. I was told that's what they looked like and they handed me a sheet of drawings and that was it. Question: Do you recall by whom you were shown? Answer: I don't know. Question: You were handed a sheet of drawings showing a nose cone and were told, in effect, 'do the job'? Answer: Yes. Question: Was anything said to you or given to you as to how you were to carry out the job safely? Answer: No, not at all, at any time, no."

59. This version of events fits evidence not challenged by the defendant. First (as I have already noted) Mr. McCallion subsequently fitted other nose cones. By this time, Mr. McCallion had reported the first incident. The defendant knew about its consequences. If, contrary to instructions, Mr. McCallion's first attempt had failed to incorporate brackets, then why were they not insisted upon thereafter, given the back problem which the first fitting exposed? Secondly, Mr. Gobbo could not "specifically remember" telling the plaintiff how the task should be carried out. Indeed, when it was put to Mr. Gobbo that he simply had no recollection whatsoever of speaking to Mr. McCallion about this job, Mr. Gobbo replied: "That's correct". Thirdly, he conceded that Mr. McCallion's work was not closely supervised, and that the defendant had never conducted an audit of the safety of the shop floor. In short, the evidence of Mr. Gobbo starkly exposed the inadequacy of the defendant's attention to issues of this kind.

62. In my opinion, the evidence demonstrates both a clear failure by the defendant to provide a safe place of work, and a like failure to implement a safe system of work. Those of the defendant's employees who, like Mr. McCallion, were charged with the responsibility of welding the nose cone of the harvester to the conveyer pan were entitled to greater consideration than that accorded to him.

65. Even if Mr. Gobbo's system of brackets had been rigorously enforced, deficiencies would have remained. Because the shape of the cone precluded it sitting flat on those brackets, a person performing the welding operation was still required to bear some part of its weight while welding at the same time. This, at least, was the evidence of Mr. Mark Dohrmann, an engineer and an expert in work place safety. His evidence preceded that of Mr. Gobbo. The latter, however, made no attempt to refute it on this issue. On the contrary, on two occasions Mr. Gobbo described the function of the bracket as "helping" to support the nose cone: the clear inference in this regard being that the bracket assisted, but did not take over the role of, the worker. In his evidence in chief, Mr. Gobbo added that, because the bottom of the cone is tapered towards the front, it had "to be held up against the lower pan because it wouldn't just sit there, it would fall forward".

68. The result was not only that the worker was still required to bear some part of the weight of the cone, but was also required to twist the body across the cone so as to effect the second spot weld. As with his first injury, it was when carrying out this procedure that Mr. McCallion suffered the second injury to his back. I am satisfied that both injuries would have occurred whether or not Mr. Gobbo's system of brackets had been adopted by the plaintiff.

71. Something more than a system of brackets was needed. According to Mr. Dohrmann, the provision of a jig - that is, a framework to hold the nose cone in position while the welding operation proceeded - "would have avoided exposing [the plaintiff] to risk".

74. I accept Mr. Dohrmann's evidence. It was in my opinion practicable for the defendant to make such provision. I find, therefore, that the work practices carried out in the defendant's work place involving manual handling were not designed to be as far as practicable safe and without risk to health and safety. It follows that the defendant is in breach of regulation 5 of the Occupational Health and Safety (Manual Handling) Regulations. I find, in addition, that by its nature the manual handling which Mr. McCallion was required to do in joining the nose cone to the conveyer pan was likely to put his health and safety at risk. Accordingly, regulation 6 of the Regulations required the defendant to ensure that the work in question was examined and assessed. In breach of that regulation, this was not done.

77. It is settled law that, in the absence of a contrary legislative intention, a duty imposed by statute (including a statutory rule) to take measures for the safety of others involves a correlative private right. The effect of such a provision is to define specifically what must be done in furtherance of the general duty to protect the safety of those affected by the operations carried on: Connor v. S.P. Bray Ltd. [1937] HCA 18; (1937) 56 C.L.R. 464 at 478 per Dixon, J. The Occupational Health and Safety (Manual Handling) Regulations imposed a duty to take measures for the safety of persons in the position of Mr. McCallion. He therefore has a private right to damages for injuries suffered by him as a result of the breach of the Regulations.

80. In my opinion, the defendant is also in breach of its undoubted duty to provide the plaintiff with a safe place of work and to implement a safe system of work. The duty is established by the employer-employee relationship. The breach is constituted by the defendant's failure to take reasonable steps to fulfil its duty. Given the risk, and given that practical means were available to avoid it, the defendant's failure to take the appropriate steps amounted to a breach of its duty of care.

83. The fact that Mr. McCallion has a serious injury to his back is admitted by the defendant, and not doubted by any of the medical practitioners whose evidence was given at the trial. Nor was Mr. McCallion challenged in his account of the means by which he received that injury; on the contrary, the defendant has admitted the allegation in paragraph 14 of the statement of claim that the injury "arose out of or in the course of or was due to the nature of his employment by the defendant, and such employment was a significant contributing factor to [its] ... occurrence". This admission is entirely consistent with the medical evidence. I find, therefore, a duty, its breach, and resultant damage.

86. The remaining issues concern the amount to which Mr. McCallion is entitled by way of damages. This, of course, will depend whether upon or not any responsibility for his injuries ought be attributed to Mr. McCallion himself. Since he received no relevant instructions, there can be no basis for the defendant's allegation that he failed to carry them out. The defendant also claims, however, that the plaintiff failed to use his common sense, failed to pay attention to what he was doing, failed to exercise adequate care for his own safety, and failed to ask for assistance.

89. When an employee is injured at work, the tribunal of fact may, in considering contributory negligence, have regard to the prevailing conditions: Sungravure Pty. Ltd. v. Meani [1964] HCA 16; (1964) 110 C.L.R. 24 at 37, per Windeyer, J. In this case, Mr. McCallion was, when the first incident occurred, probably performing the task for the first time. I accept his evidence as given in the following passage:

"Question: When did you first start welding the nose cones, do you remember how long before you first - the first accident in April? Answer: That was the first time I believe - that was the first time I believe I had actually done it. Question: The very first time? Answer: I think so, yes."

93. I find on the basis of this evidence that Mr. McCallion initially strained his back when performing the cone-welding exercise for the first, or at the most the second, time. I am satisfied that such experience as he then had of the individual risks of this job was not sufficient to place him in a position fully to evaluate those risks. The defendant did not assist in this regard. Moreover, Mr. McCallion was, as I find, under pressure to finish the work as quickly as possible, and requested assistance. This request went unheeded. Mr. McCallion cannot, therefore, be responsible for any portion of the resultant harm, even though he did not at that time use brackets or a supporting sheet of metal.

96. The latter form of support was used on 10 September, when Mr. McCallion suffered his second incident of back strain. By this time, McCallion had come to adopt in the cone-welding exercise a practice (the use of the metal sheet) which was analogous to that which Mr. Gobbo himself used and recommended: the brackets. In following this practice, Mr. McCallion was not guilty of contributory negligence because, even supposing Mr. Gobbo's advice had been conveyed to him, Mr. McCallion was not acting in any relevant way which was contrary to it. He merely adapted it while accepting its central rationale. And the participation of an employee in a practice sanctioned by the employer cannot of itself and without more amount to contributory negligence. To hold otherwise would be to shift to the employee the employer's responsibility of securing a safe system of work: Davies v. Adelaide Chemical and Fertiliser Co. Ltd. [1946] HCA 47; (1946) 74 C.L.R. 541 per Dixon, J. at 551-553.

99. Mr. McCallion did not materially depart from, or do anything which might be thought to go beyond, the system of work adopted by the defendant. Even if he took some risk which that system did not itself inherently involve (for example, persisting with the task after it became plain that the assistance of a fellow employee would not be made available) nevertheless that risk was, I find (to quote again from the judgment of Windeyer, J. in Sungravure at 37) "excusable in the circumstances because not incompatible with the conduct of a prudent and reasonable man".

102. In my opinion, the defendant has in this case failed to make out a case of contributory negligence.

105. The damages to which, in the circumstances outlined above, the plaintiff is entitled, are for past and future loss of earnings, and pain and suffering. The defendant accepts that Mr. McCallion has been totally incapacitated since 10 September 1996. The defendant also accepts (a) that between that day and the date of the fourth day of hearing of the trial (25 November 1999) the plaintiff's loss of earnings amounted after making an appropriate allowance for tax to $78,102, and (b) that to this sum must be added a component of damages in accordance with the principles enunciated by the High Court in Fox v. Wood [1981] HCA 41; (1981) 55 A.L.J.R. 562. The amount of this component has been agreed between the parties at $9,000. Accordingly, the sum to which the plaintiff is entitled as compensation for past loss of earnings amounts to $87,102. This may, as the plaintiff's counsel suggested, be rounded off to $87,000.

108. In my opinion, Mr. McCallion's back condition will prevent him from returning to paid employment. His skill and training is in industry, and includes welding, plumbing, plant and equipment maintenance, boilermaking, material sorting and handling, cutting and shaping steel, and the like. But the heavy manual work involved in employment of this kind is, for the future, completely out of the question. It is true that Mr. McCallion has the skill to read drawings, to operate forklifts and cranes, and to work in the buying section of an organisation. These attributes, however, will not necessarily (or even probably) be marketable when inseparably connected with a back which does not allow Mr. McCallion to sit comfortably for long in the best possible circumstances, or at all in many others. Moreover, any employer who wished to delegate decision-making roles to Mr. McCallion would have to take into account the difficulty of thinking clearly when in pain; and acute back pain often afflicts Mr. McCallion following body movements which in those without an injured back would be painless.

111. My assessment of Mr. McCallion's career prospects is based not only on the medical evidence, but also on his experience since his back became symptomatic. The medical evidence is that he will, at best, be fit for light duties at some time in the future. The prospect of such improvement as would allow him to offer himself for work which involves no manual handling is, however, to be assessed in the light of the medical evidence, which I accept, that in essence his condition has stabilised. Moreover, he has found it impossible in the past to complete training courses which have involved periods of sitting comparable to those which most light employment would necessarily require.

114. Evidence was called on behalf of the plaintiff from Mr. Patrick Smith, who is the managing director of a staffing and recruitment business in Mildura and Swan Hill. According to him, the Mildura district is presently experiencing a general shortage of persons with trade skills such as those of Mr. McCallion. In these circumstances, it was Mr. Smith's opinion that Mr. McCallion's prospects of employment in the areas in which he was experienced would have been "reasonably secure" although the "greater emphasis on performance and multi-skilling" would have required Mr. McCallion to undergo continuing further training.

117. In Mr. Smith's opinion, Mr. McCallion's chance of finding work in the Sunraysia area were, given his disability, remote. No comparable witness was called by the defendant.

120. The subject of McCallion's future impairment of earning capacity was addressed by Mr. Richard Cumpston, a consultant actuary called by the plaintiff. According to Mr. Cumpston, the sum of $456,361 represents Mr. McCallion's loss for the period 25 November 1999 to 1 February 2025, Mr. McCallion's 65th birthday. This sum was calculated on the assumption that Mr. McCallion will, as Mr. Cumpston put it, "have probabilities of death as for males in the Australian Life Tables 1995-97", that future losses are to be discounted to present values using the discount rate (3% per annum) specified by s.135A(14) of the Accident Compensation Act 1985, and that in the financial years beginning 1 July 1998 and ending 30 June 2000, Mr. McCallion would have earned $645.69 per week, gross. In making his calculations, Mr. Cumpston took into account the new tax regime which is expected to come into effect on 1 July next year.

123. I accept Mr. Cumpton's calculations. I also accept, there being no challenge to it, that an appropriate allowance for contingencies is 15%. This produces a figure of $387,906, which the plaintiff was content to round off at $385,000.

126. I considered whether, given the plaintiff's pre-existing spondylolisthesis, a discount greater than 15% should be incorporated into the relevant calculation. There being no medical evidence before me to suggest that Mr. McCallion was more likely than the average person to suffer from the symptoms of this condition, I am not disposed to increase the relevant percentage.

129. I also considered whether I should accept the plaintiff's submission that, without his injury, he would have continued to work until he reached his 65th birthday. He presented in Court as a person who liked to be occupied, and who derived as much satisfaction as most from his employment; and he has never been out of work. Accordingly, I am prepared to accept the plaintiff's submissions in this regard.

132. Mr. McCallion will, as a result of his injured back, suffer loss of superannuation benefits. Mr. Cumpston valued these at $71,857. I accept his evidence. That sum should, however, be reduced by 20%, producing a figure of $57,485. This may, again at the suggestion of counsel for the plaintiff, be rounded off to $57,000.

135. The final head of damage involves compensation for pain and suffering and loss of enjoyment of life. In my opinion, the appropriate sum is $125,000. Mr. McCallion has a severe and debilitating back injury which has severely and adversely affected his personal life as well as his employment. He suffers constant pain, which is exacerbated from time to time by movements or activities which in the normal course would be harmless. He now finds it difficult to maintain the previous close relationship he had with his de facto wife, and often suffers from a depressed mood. He will need constant medical attention, as well as constant physiotherapy. Many of the activities which he previously enjoyed, such as indoor bowling and gardening, are no longer open to him. He must take, on a regular basis, a wide range of analgesics and like medicines. There is a regular need for rest in bed, yet he has great difficulty in sleeping. For a man not yet 40 years of age, the future is much bleaker than he might have reasonably expected. In these circumstances, the sum of $125,000 as compensation for pain and suffering seems to me to be reasonable.

138. The total amount which in my opinion Mr. McCallion should receive as damages is therefore $654,000, made up as follows: