JUDGMENT
1 HIS HONOUR: The plaintiff claims damages for the consequences of a serious back injury sustained on 30 January 1998 during his employment in the defendant's factory upon the maintenance of a number of machines, including a large press. He was then a young man, not quite twenty-two years of age, who had left school after sitting for his School Certificate and had completed an apprenticeship as a fitter and turner at the end of 1995, having in the meantime obtained a certificate in respect of a trade course relating to the same trade from an institution of TAFE at Brookvale. At the time of his injury, the plaintiff had been working in the defendant's factory for some five months.
2 Over the period of his employment by the defendant, it had been the plaintiff's duty to attend to the maintenance of the machines in the factory in accordance with a general requirement, but not pursuant to any comprehensive procedure, or under any regular engineering supervision. The evidence suggests he was expected to look, as his superior, to a much older man, a Mr Sheahan, who was an administrator and financial controller. The managing director was an engineer, but he was not generally involved in the day-to-day direction of the plaintiff. The plaintiff was, in practical terms, left to attend to the maintenance of the machines without any particular system of work being devised by his employer, or the observance of any particular system being insisted upon. Of particular relevance to the manner in which the plaintiff sustained his injury is the fact, of which I am satisfied on the evidence, that during the previous five months he had regularly climbed upon machines in order to carry out greasing and maintenance operations, sometimes in the presence of Mr Sheahan, without ever being required to adopt a safer means of access to the points where work had to be done. The defendant's Quality Assurance Manager, Mr Kulkarni, confirmed that this "was the usual system of work when work had to be done on a machine".
3 On the occasion in question, the plaintiff was attempting to rectify the operation of the large press which has been mentioned. It was not working properly, and Mr Sheahan told the plaintiff it needed fixing as soon as possible. Production in the factory was being held up, or delays were threatened, and the plaintiff was placed under some pressure to resolve the problem. The machine was at least fifty years old, a thirty tons capacity press apparently of Indian manufacture, and the plaintiff was unfamiliar with the dog clutch assembly which seemed to be the source of the difficulty. He was endeavouring to take off a cover to get at this assembly, for which it was necessary to remove a stubborn nut. The nut was at about the height of the plaintiff's shoulder, and photographs and an expert's description suggest it was in a somewhat awkward position to be undone, so that it is perhaps not surprising the plaintiff encountered problems trying to remove it with a shifting spanner. Mr Paul Best, an engineer and industrial safety consultant, considered the nut's location made it "impossible to use the spanner at a right angle to the bolt, the normal orientation, because of obstruction by the housing [of part of the machine]". He concluded that the use of the spanner would have involved an angle of some twenty degrees, an angle he described as "not good practice". The correct practice, in his opinion, would have been "to use an offset ring spanner or a socket spanner to avoid the obstruction of the housing", but the uncontradicted evidence of the plaintiff is that the best spanner to fit this nut that was available to him was the shifting spanner which he used, necessarily at an angle.
4 The plaintiff's difficulties did not end with the spanner. Because of the height of the nut, he needed to work from a position above the floor of the factory, and he followed the unfortunate system which has already been mentioned of clambering upon the machine itself. Part of the machine constituted a base plate (rather like a table) with a smooth surface which, however, was angled at about ten to fifteen degrees from the horizontal. This base plate was about a metre high, and it projected some 400 millimetres from the body of the press. It extended along the body of the press, from a point just below the nut, a distance of 800 millimetres. Standing on this, the plaintiff was able to lean over towards the nut and exert downwards pressure on the handle of the shifting spanner. What happened next is variously described, in reports of the accident, as the result of the nut suddenly coming loose, or as the result of the spanner slipping off the nut. I think it is probable that the nut came loose and the spanner then slipped off it as a natural consequence of a change in the position relative to the nut of the jaws of the spanner. At any rate, the plaintiff lost his balance or footing and fell in a twisting movement towards the floor. As he fell, his back came in contact with the edge of a metal trolley which was nearby, but I am satisfied on the medical evidence that his injury had been already caused by his twisting fall before he came into contact with the trolley. The significant injury which he sustained was to the disc between the fourth and fifth lumbar vertebrae.
5 To establish liability in these circumstances, the plaintiff relied on the propositions that the defendant had plainly failed to institute and maintain a safe system of work, where it was necessary to work upon machines at some height above floor level, and that the defendant had failed to provide proper equipment for the work it required the plaintiff to do upon its machines in its factory. So far as the provision of an appropriate socket or ring spanner was concerned, the defendant sought to rely on a WorkCover investigation report dated some eighteen months after the accident, on 12 August 1999. The inspector who signed that report apparently visited the factory on 26 July 1999 and made a note:
"Mr Pelloni commented that the spanner he was using was the correct one for the job at hand."
6 In evidence before me the plaintiff said, not that the spanner was the correct one, but that it was the best he had. I am far from satisfied that the inspector, who was not called to give evidence, accurately summarised a statement by Mr Pelloni to the contrary, but in any case the expert evidence of Mr Best satisfied me that any such statement would have been simply incorrect. If it was made, it would confirm the inadequacy of a system of work that left to so inexperienced a workman the unsupervised performance of the maintenance of an old Indian machine with which he was not familiar, and that without the provision of all the appropriate tools needed for this particular machine.
7 In answer to the plaintiff's reliance on the lack of a suitable system for carrying out work on the machines at a height, the defendant called evidence from Mr Sheahan that an appropriate ladder was available. But Mr Sheahan's expertise was in accounting and administration; and in the absence of other reason to reject the plaintiff's assertion that the ladder was not suitable for this task, I accept it. In any case, no system other than that involving climbing upon the machines was prescribed or enforced.
8 The Court had the benefit of evidence from an occupational physician, Dr Michael Gliksman, who had, at one stage in his career, occupied the position of Deputy Director of Occupational Health and Safety at the Broken Hill Proprietary Company. Dr Gliksman expressed the opinion that the performance of work requiring the undoing of bolts by climbing onto machines would not be "in accord with work safe requirements, is undesirable and should be avoided". He described a practice of climbing onto the machines to perform maintenance and repair work as "inherently unsafe". He said that if, in a BHP factory, he had "seen people carrying out maintenance work while actually standing on the machines" he believed he would have "said something to somebody about it".
9 It has been held that "an employer has a personal, non-delegable duty, to take all reasonable care to institute a safe system of work and to ensure that it is carried out, so that his employees will not be exposed to unnecessary risk": Wilsons & Clyde Coal Co Ltd v. English [1938] AC 57; Kondis v. State Transport Authority (1984) 154 CLR 672 at 689. In Kondis v. State Transport Authority at 687-688, Mason J said:
"The employer has the exclusive responsibility for the safety of the appliances, the premises and the system of work to which he subjects his employee and the employee has no choice but to accept and rely on the employer's provision and judgment in relation to these matters. The consequence is that in these relevant respects the employee's safety is in the hands of the employer; it is his responsibility."
10 That an employer may be liable, not merely for failing to institute a safe system of work, but also for failing to enforce such a system, is confirmed by the judgment of Mason, Wilson and Dawson JJ in Bankstown Foundry Proprietary Limited v. Braistina (1986) 160 CLR 301 at 304. It was also expressly stated in McLean v. Tedman (1984) 155 CLR 306 at 313:
"The employer's obligation is not merely to provide a safe system of work; it is an obligation to establish, maintain and enforce such a system. ... And in deciding whether an employer has discharged his common law obligation to his employees the Court must take account of the power of the employer to prescribe, warn, command and enforce obedience to his commands."
11 In my opinion, an application of these principles to the facts as I have found them establishes that the plaintiff's injury was a consequence of the defendant's breach of the duty of care it owed him in respect of the provision and enforcement of a safe system of work and, as well, the provision of suitable and safe tools, appliances and equipment with which to carry out the work. Van Der Sluice v. Display Craft Pty Ltd [2002] NSWCA 204, on which the defendant relied, is plainly distinguishable by reason of the special expertise of the plaintiff in that case and the considerations referred to in the judgment of Heydon JA at [85].
12 The defendant pleaded contributory negligence. Upon that issue, it has been held to be relevant to have regard to the situation created by the defendant's breach of his duty of care, and the authorities have drawn a distinction between a plaintiff's own negligence in such a situation and conduct that "amounted to mere inadvertence, inattention or misjudgment": Podrebersek v. Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492 at 493. In McLean v Tedman at 315 Mason, Wilson, Brennan and Dawson JJ said:
"The issue of contributory negligence has now to be approached on the footing that [the defendant] failed to discharge its obligation to provide a safe system, that is, to take appropriate precautions against the risk of injury arising from the motorist's negligence and the employee's failure to observe an oncoming vehicle as he carried out his allotted task. The question is whether that failure should be characterized as mere inattention or inadvertence or whether it amounts to negligence, there being a well recognized distinction between the two. It is accepted that in considering whether there was contributory negligence by an employee in a case in which the employer has failed to provide a safe system of work, the circumstances and conditions in which he had to do his work must be taken into account. And the issue of contributory negligence is essentially a question of fact.
As Windeyer J observed in Sungravure (1964) 110 CLR at p.37, when an employee in a factory sustains injury, the jury in considering contributory negligence may have regard to 'inattention bred of familiarity and repetition, the urgency of the task, the man's preoccupation with the matter in hand, and other prevailing conditions'. It is then for the tribunal of fact to determine whether any of these things caused some temporary inadvertence, some inattention or some taking of a risk, 'excusable in the circumstances because not incompatible with the conduct of a prudent and reasonable man'."
13 Similarly, in Bankstown Foundry Pty Ltd v. Braistina at 310, Mason, Wilson and Dawson JJ said the plaintiff's conduct "must be judged in the context of a finding that the employer had failed to use reasonable care to provide a safe system of work, thereby exposing him to unnecessary risks". Their Honours continued:
"The question will be whether, in the circumstances and under the conditions in which he was required to work, the conduct of the worker amounted to mere inadvertence, inattention or misjudgment, or to negligence rendering him responsible in part for the damage."
14 In my opinion, an application of these principles leads to the conclusion that it is not appropriate, on the facts as I have found them, to conclude that the defendant has shown the plaintiff to have been guilty of contributory negligence.
15 In order to examine the issue of damages, it is necessary to complete the story of what happened to the plaintiff following his injury. At the time, the plaintiff kept working, but he said he noticed pain in his back and, within a day or two, in his left leg and buttock. On 5 February 1998, he saw a general practitioner, and shortly afterwards he stopped work. Some treatment ensued, and on 8 April 1998 he had a CT scan, followed by injections and physiotherapy. At some stage, he was on Workers Compensation. In April 1998, he attempted to resume work for a few days, but this attempt was not a success. He has not worked since.
16 On 23 August 1998, the plaintiff was riding a motor-cycle which collided with the side of a car. The collision occurred on a roundabout at what the plaintiff described as "fairly low speeds". He suffered chipped teeth, a whiplash injury to the neck, and bruising in the groin region when he slipped forward on the bike upon impact. The plaintiff's low back condition was aggravated for a short time.
17 On 1 October 1998, the plaintiff saw an orthopaedic surgeon, Dr Hudson, who referred him for an MRI scan on 9 October 1998. Dr Hudson advised surgery which, after some delay, was performed on 4 December 1998. The MRI scan had revealed a herniated disc at the L4/L5 level. Mr Pelloni's condition also presented a special feature, in that the L5 vertebra was at least partly sacralized, and there was a pars-interarticularis defect at the level of the sacralized L5. At operation, it was confirmed that there was disc pathology, which Dr Hudson described as "the main disc pathology", at the L4/sacralized L5 level. Dr Hudson decompressed that level and, because he detected residual movement at the sacralized L5/S1 level, he performed fixing and grafting in respect of both levels, that is, L4/sacralized L5 and sacralized L5/S1. Dr Hudson's report indicates that he diagnosed a pre-existing condition of "pars defects of sacralized L5" and an injury being an "L4/sacralized L5 disc prolapse". He considered it "likely that there will be some permanent disability" and that "it is more probable than not that the condition of the disc prolapse was caused by a work accident on 30/01/98". He was not told about the motor vehicle accident on 23 August 1998. He thought the condition of pars defects had been "aggravated" by the disc prolapse, but he considered the plaintiff "should be fit to carry out light work some six months after the operation".
18 The plaintiff did not return to light work, or any work, after six months. Over a period up to October 2000, he saw a psychiatrist, Dr Peter Anderson, to whom he had been referred by his general practitioner. Dr Anderson describes a variety of complaints, including pain, anxiety and stress. Prior to his injury, the plaintiff had lived with a Miss Regina Mann for some years, and he was also very much involved in the riding of motor-cycles as a sport. He still lives with Miss Mann, but he complains of loss of libido and, although he still rides a motor-cycle, he says that he does so only in a very limited way. Dr Anderson diagnosed depression "of moderately severe severity", and prescribed anti-depressant medication. Elsewhere in his evidence, Dr Anderson referred to "a major depressive disorder" which he thought was caused by the injury. At the time of his report of 19 November 1999, however, he envisaged "psychiatric treatment for a period of perhaps 12 months", with anti-depressant medication, ending up with the plaintiff in a condition "with minor features of depression as a result of his injuries and disabilities, but [in which he] would not require specialist treatment in the longer term".
19 Nevertheless, a report of 29 May 2000 made by Dr Anderson indicates that "progress under treatment has been moderate at best". The psychiatrist continued:
I feel the prognosis is for a continuation of depression in significant degree and that ongoing psychiatric consultation and antidepressant medication is likely to be required. With respect to work fitness, orthopaedic opinion should be gained. My understanding is that his physical fitness would be grossly compromised. The presence of a depressive reaction further affects his work fitness in as much as his fitness would be globally affected by the effects of poor concentration, depressed mood, poor sleep, fatigue, some affects of antidepressant medication required, irritability and poor stress tolerance. Vocational retraining would represent a challenge and I am unclear at this stage as to what work he might be fit for.