Paterson v Burford Reinforced Plastics

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION MICHAEL GROVE J

20060/01 - BRETT WILLIAM PATERSON v KINCORA ENTERPRISES PTY LIMITED trading as BURFORD REINFORCED PLASTICS

1 HIS HONOUR: The plaintiff claims that he suffered injury on Friday 22 March 1996 whilst in the employ of the defendant. There is no doubt that an incident occurred shortly before knock-off time which I am satisfied was, on a Friday scheduled for 2 pm. The plaintiff's recollection of 4 pm is faulty but nothing turns on the precise time. What occurred has been referred to at trial as skylarking and it is convenient to continue so to do. 2 The business of the defendant involved the manufacture of surf boards. The plaintiff's evidence was that he was talking to another employee Lee Jessop about some work which he wished to complete on a board of his own when he "felt this arm wrapping around my throat, cut my wind off and just ripped me backwards and then I fell to the ground". At the time he felt pain down his throat and in his back. The assailant was Scott King who ran away but later returned. In response to enquiry he told Jessop that he thought he had seriously injured his back. He told King the same thing. King treated the incident as a joke. Jessop had made a comment to the effect that the plaintiff had injured his back and the plaintiff acknowledged that he had. 3 It was common ground between counsel that I should approach the question of liability in accordance with that taken by Streatfield J in Hudson v Ridge Manufacturing Company Limited 1957 2 All ER 229. Principles to be applied include the recognition of a duty on an employer to remove a source of danger to fellow employees where one employee, by habitual conduct, is likely to prove such a source of danger. Where skylarking takes place an employer is negligent if he fails to maintain discipline and take proper steps to put an end to it. The liability derives from a failure to respond to foreseeable risk and not from isolated incident, nor from reasonable response by way of reprimand or otherwise to a limited number of incidents thus, as Streatfield J observed, the extreme course of dismissal would not be required if suitable instruction is given and it is obeyed. In Hudson, over something like four years there was repeated horseplay by a particular employee who was repeatedly reprimanded without effect and there was an express observation that if it was not put an end to someone would be injured as eventually Mr Hudson was. 4 The plaintiff was employed by the defendant in January 1996 and, subject to what might be derived from cross examination of certain of the witnesses called for the defendant, the entirety of the plaintiff's case concerning undisciplined skylarking at the factory was dependent upon his own testimony. His evidence in chief was: "Q. When you arrived at Burford Reinforced Plastics, did you notice any skylarking going on in the factory? A. A lot of tomfoolery going around in that factory. Q. Would you just give us an idea of what sort of tomfoolery was going on? A. Lot of skylarking, such thing they designed, it was a resin ball and they used to peg it around the factory at newcomers and, you know, anyone that was in the factory area bore a resin ball or they just were not part of it. Q. Any other physical sort of skylarking? A. Some wrestles in the stringer room, can't really see in the stringer room because it is just boxed off. Q. Well, did anybody by way of foreman or the boss ever say anything about that prior to the day of your accident? A. Mike used to tell us on occasions to stop tomfooling around but nobody really paid much attention to Mike because he didn't really care much. He wanted production to get put out. Q. Who was the foreman in the factory? A. It was Mike Jessop. Q. Was he the one who used to say 'cut it out' from time to time? A. Yes. Q. Did he say anything more than just say 'cut it out'? A. Not necessarily, no. Q. Ever threaten everyone with the sack? A. He threatened everybody kind of with the sack but he didn't go through with it. " 5 The plaintiff's credibility on all issues was the subject of intense challenge but before turning to matters relevant to that and to testimony contradictory of the plaintiff I should deal with the threshold bar to action which was pleaded by the defendant. 6 Section 182D of the Workers Compensation Act 1990 (Queensland) (the Act) provides: "(1) A worker who has not received an offer of lump sum compensation under section 132 may seek damages at law for an injury suffered after the commencement only if the Board gives to the worker a certificate under this section." 7 The defendant has pleaded that the plaintiff has "failed to comply" with that provision. 8 Apparently in proof of compliance, the plaintiff tendered a document (Exhibit A) headed "Notice of Assessment". It notes a determination of a degree of permanent impairment of five percent and invites election by the worker (the plaintiff) to accept, reject or defer a coordinate offer of lump sum compensation. It would seem from the content that the plaintiff is not a worker who has not received an offer of lump sum compensation. Somewhat cryptically however, the centre of the document is endorsed with the line "this is a non certificate injury". The document appears to be signed by a person described as "Claims Liability Officer", is dated 7 January 1998 and, as I have said, offers a lump sum. There is no express statement that the document is issued on behalf of the board pursuant to any resolution or delegation. There is no completion on the document suggesting an election by the plaintiff, however the print attached to available "tick boxes" for rejection or deferral includes cautions that rejection entitles seeking damages at law and that if deferral is selected, negotiation for or commencement of action for damages at law will trigger withdrawal of the lump sum offer. 9 There is no reference to s182D on the form but submissions by counsel on both sides assumed that the document was such a certificate. As I have pointed out it does not on its face purport to emanate from or be issued on behalf of the Board and it does in fact offer a lump sum presumably pursuant to s132. I do not have convenient access to any regulation and, in the circumstances, will act upon counsel's common assumption for the purpose of ruling on this aspect of defence even though I have difficulty identifying Exhibit A as a certificate such as appears to be contemplated by s182D. Perhaps it represents an effort by the relevant bureaucracy to administer the statutory requirement. 10 The argument advanced by the defendant was limited to contending that the "certificate" was vitiated by fraud. 11 It is an agreed fact that on 28 May 1999 the plaintiff was convicted before an Industrial Magistrate in Queensland of an offence charged in terms that "between 21st November 1996 and 15th March 1997 at Palm Beach he defrauded the Workers Compensation Board of Queensland". Further agreed is the circumstance that this conviction followed a retrial on a slightly amended charge, there having been an earlier finding that the plaintiff had no case to answer which finding was overturned on an appeal by the prosecutor. 12 It was not suggested that any proceedings had been taken in any jurisdiction seeking to set aside or otherwise invalidate the Notice of Assessment. Nevertheless it was contended on behalf of the defendant that I should hold that the conviction prevented the certificate from being efficacious in enabling the plaintiff to fulfil the condition precedent to commencement of action. 13 I reject that submission. Further assuming (in the absence of evidence to connect them) that the conviction relates to the same subject matter as the "certificate" the latter would operate to fulfil the condition precedent enshrined in s182D until it ceased to be such a certificate. I note that what is required is no more than that the Board "gives to the worker a certificate under this section". While it exists, the worker may, in terms of the provision, seek damages at law. There are, as I have pointed out, problems about the "certificate" and s182D but on the issue as chosen by the parties the defendant must fail. I would be concerned about dealing with the matter on this basis if it were central or even critical to the outcome of the litigation but having regard to my conclusion on other matters it is not. 14 I return to the primary question of the liability of the defendant for alleged skylarking by King. The occurrence of the incident is not in dispute although some of the detail is. Some attention was directed to whether the crook of King's arm grasped the plaintiff at the level of the throat or the chest and whether the pair fell all the way to the floor or made a deep backwards plunge, reminiscent on one demonstration of the more acrobatic displays of tango dancers. The question is whether the physical act perpetrated by King resulted in injury to the plaintiff. 15 As the evidence extracted above reveals, the principal activities which might be classified as skylarking relied upon by the plaintiff were throwing of resin balls and wrestling in the stringer room together with a lot of undefined "tomfoolery". 16 Mr Burford the factory owner denied that he had ever observed wrestling, in the stringer room in particular, nor had resin balls been thrown in the factory. In cross examination he acknowledged that disposable cotton gloves used by workers were "balled" and wrapped in masking tape but said these were used for cricket at lunch time. He acknowledged a letter dated 4 April 1996 to the Workers Compensation Board signed by him which included the statement "Yes, there had been some skylarking on Monday 22nd March" but he said he defined skylarking as merriment. His son, Darren Burford worked at the factory but was not asked questions on this issue. 17 Michael Jessop was the factory manager. As a witness he impressed as being balanced and truthful and I accept his testimony. He denied any knowledge of wrestling and pointed out that the stringer room contained a bandsaw which operated virtually continuously and that there were limited personnel who had occasion to be in that room. He denied that skylarking took place in the glue up room (where the incident occurred on 22nd March) but said there was certainly an amount of jocularity among the predominantly young staff. No resin balls had ever been thrown but he had reprimanded people for throwing the "balled" gloves. These were made of rubber with cotton liners. Following his reprimand he observed the practice to cease. 18 Andrew Brown was a worker and has since become a supervisor. He denied that physical "mucking around" took place at the factory but agreed that people joked with each other. He had been an employee for about a month before the plaintiff's incident and on a couple of occasions had seen the disposable gloves "balled" and thrown. He said that if you got seen doing it you were "told off". In cross examination he denied that King had a reputation as a bit of a larrikin in the sense of coming up and shoving people in the back. 19 King was the assailant. A letter (4th April 1996) and a statement (2nd May 1996) to the Workers Compensation Board are in evidence. In the former he stated that he had walked up behind the plaintiff, "put my left arm around his neck in a friendly manner, but to my surprise Brett fell into my arms quicker than I thought" and in the latter "I saw him talking to Lee Jessop and I was walking by so I decided to joke with him by grabbing him around the neck. Whilst doing this I said 'get back to work' jokingly." 20 Save obviously this incident he said that there was no physical mucking around at the factory but cotton gloves which were destined for a bin were thrown around sometimes with a bit of tape around them. He denied that he even knew what a resin ball was. 21 Lee Jessop (the son of the factory manager) was employed as a surfboard maker. In response to cross examination about mucking around in the factory before the accident he said that "things were pretty tight". He had seen the "balled" gloves thrown a few times but it was "stomped on" by his father. He did not see this occur thereafter. He disputed a proposition that King had a reputation as "a bit of a clown". He was not asked about resin balls. 22 It had been suggested in cross examination that the Burford family had developed something of an obsession about this claim which was believed to have potential to affect the amount of workers compensation insurance premium. A woman, identified as Mrs Burford, was in court for a time apparently taking notes and there was evidence that she had attended the prosecution hearings involving the charge against the plaintiff abovementioned. It was suggested to Mr Jessop Snr that she had said to him when he was returning to the courtroom on one occasion "Don't forget what I told you about the resin" which exchange Mr Jessop emphatically denied. There was suggested to be a curious coincidence in a number of witnesses estimating the occasions of the cotton gloves being thrown at twice, however no submission was ultimately advanced that I should find that there had been any conspiracy to present falsehoods or that there had been subornation of witnesses. The behaviour and reported interest of Mr and Mrs Burford is perhaps unusual and even if, as suggested, it is to be categorised as obsessive it provides no sound basis for rejection of evidence of the witnesses who happened to be their employees. The submission was that I should prefer the plaintiff as a more credible witness. 23 I reject the plaintiff's contention that resin balls were thrown in the factory as I also reject his assertion that there had been at any time wrestling in the stringer room which is, as I have observed, the location of an operating bandsaw. Insofar as the plaintiff seeks to make a case out of the evidence emerging from witnesses that there were occasions upon which "balled" gloves were thrown, I accept the evidence that the practice was the subject of admonition and that it ceased. 24 I am satisfied that the action of King in grasping the plaintiff was an isolated physical act for which I find the defendant is not vicariously liable. 25 That finding will result in judgment for the defendant and there is strictly no need to analyse other evidence, but having regard to the extensive canvass in the course of hearing, I should make some references to other matters. 26 The plaintiff has a spondylolisthesis at the lumbo-sacral level. Whether this is literally congenital or derives from something in early childhood does not matter. The condition probably rendered his back vulnerable. Radiology has suggested slippage of lumbar disc 5 upon sacral disc 1 which, if one were to accept the plaintiff's history of onset and continuation of symptoms, may have been precipitated by the incident. From time to time the plaintiff has been seen to manifest spasm in the paraspinal area during medical examinations. I accept that he did make a complaint of pain at the time of the incident on 22nd March.

27 However, if the plaintiff is suffering symptoms in the back to any significant degree, I am unable to determine that they are consequent upon the particular incident. There is very powerful evidence that on the very next day, he carried a child on his hip for an extended period of time and then transported the child and a 22 kilogram drum of resin from a sales area to his utility. I do not accept that the plaintiff at that time was suffering any symptoms worthy of note.

28 Thereafter, in contradiction of any radiological or clinical opinion, there has been accumulated and presented a considerable volume of evidence concerning the absence of any apparent inhibition upon any activity in which the plaintiff chooses to engage. I see no reason not to accept the evidence that the plaintiff was seen surfing post accident at Currumbin but more destructive to the credibility of his claims of serious pain and disability is the product of covert observation manifest in video recordings.

29 Nowhere on any of the film of the plaintiff taken over a wide span of time does he appear to show any sign of disability or guarding against provocation of pain. Amongst other things the plaintiff is seen leaping from the back of his utility, fetching and carrying, squatting to check tyre pressures, entering and exiting vehicles, turning, bending, and lifting. The quantity of film is substantial and was taken on a variety of occasions. The longer it is viewed, the more convincing is the defendant's proposition that the plaintiff is fit and indeed athletic.

30 Despite the potential of the radiologically detected underlying condition, I am unpersuaded that the plaintiff is afflicted by pain which is in any way significantly disabling. I believe that the plaintiff is on occasions conscious of some back irregularity and I accept the evidence of Michael Jessop that when applying with employment with the defendant the plaintiff explained that he wished to give up concreting for that reason.

31 Nevertheless the plaintiff has, post accident, sought and obtained work as a concreter. Miss Druitt and Mr Adams were entirely independent witnesses in the sense that it could not even be suggested that they owed any employee loyalty to the defendant. I accept their evidence. The evidence of Miss Druitt concerning the plaintiff's manipulation and installation of railway sleepers was convincing evidence that the plaintiff is fit and strong.

32 The totality of this evidence is so contradictory of the plaintiff's claims of disability that I am unable to give credence to them. I do not accept the plaintiff's explanation that he was in effect suffering in silence. The plaintiff's lack of credibility on issues of damage fortifies me in preferring the evidence of other witnesses on the issue of liability.

33 Pursuant to s183(1) of the Act the legal liability of the defendant is reduced by the amount of compensation paid to the plaintiff. It was agreed that the relevant amount was $31,188.59 and that it should be treated as a defence of payment as pleaded and not as a pro tanto satisfaction of any judgment. Assuming that the plaintiff did experience some immediate symptom as he complained at the time of incident it was in my view no more than transient and had passed by the following day when he carried the child and a large can of resin. There is no medical evidence to suggest that that ability (appearing uninhibited to observers) could be explained by some delay in the onset of symptoms. Provisional assessment of damages would not exceed the amount available as a defence.

34 I direct entry of judgment for the defendant. The plaintiff is ordered to pay the defendant's costs of action.

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