PELLONI-OLIVA v BOWIN MANUFACTURING P/L

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

20700/00 GIOVANNI PELLONI-OLIVA (aka John Pelloni) (Plaintiff) and

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.

This is plainly a gloomier picture than that suggested by the earlier report. 20 The plaintiff moved to Queensland in July 2000, and he last saw Dr Anderson for treatment in October 2000. At that time, the plaintiff's depressive illness was understood to be continuing. However, in his oral evidence, Dr Anderson said the depressive disorder was "reactive to the pain and the disability he suffered as a result of the injury to his back" and it followed, he agreed, "that if there is an improvement in the symptomatology of his pain and a reduction in his disability, you would expect a lifting or comparable improvement in his depressive disorder". The doctor said that, during the period he was treating the plaintiff, he was "proceeding on the basis that it would be appropriate to accept everything [the plaintiff] told [him] at face value". The doctor could not recall the plaintiff giving a history of taking marijuana. In fact, there is evidence that the plaintiff did take marijuana for some time, and Dr Anderson agreed, when asked about it, that for some people the taking of marijuana "can cause depression". He also said that marijuana was 'thought to be a possible contributory factor for virtually the whole range of psychiatric disorder". 21 The plaintiff's complaints about his pain and depression were uncritically confirmed by his mother and Miss Mann. However, many of his complaints were simply unacceptable for reasons which will become apparent, and that fact raises a question about the reliability of their evidence. 22 The plaintiff was sent by his solicitors on 11 August 2000 to a consultant physician in rehabilitation medicine, Dr Stephen Buckley. Looking at the X-rays, Dr Buckley thought the operation performed by Dr Hudson was "technically successful", but having regard to the plaintiff's subsequent history and his own examination, he concluded that there had probably been "fibrosis at the S1 nerve root", which was continuing to cause the plaintiff pain and disability. He expressed the view that the plaintiff's "injury will prevent him from carrying out normal fitness exercises of running, jogging, walking or bicycle riding", and that he was not fit for work. However, the doctor did concede that "[i]f it were possible to reduce his levels of anxiety and depression so as to enable him to better manage his physical pain, [the doctor] would be hopeful that he could gradually increase his work capacity". In cross-examination, Dr Buckley agreed that he "accepted what [the plaintiff] told [him]" and "took [it], as doctors often do, that he was an honest witness reporting to [him]". He acknowledged that he had "no way of verifying other than what he told me", although the doctor thought a patient would have difficulty deceiving him in respect of one test, the "nerve root traction test". As I understood him, Dr Buckley was prepared frankly to accept that if a video, which was taken by an inquiry agent, showed the plaintiff riding a bicycle and apparently walking normally, rather than hobbling in the manner he had described during the consultation, some of the doctor's conclusions about his condition would require modification. 23 Following the plaintiff's move to Queensland, he was observed by an inquiry agent and videos were taken showing him riding a bicycle, walking, standing at a public telephone for quite a long time, bending, squatting freely to carry out tasks at ground level, using his arms freely including at above shoulder level, and riding a 900cc motor-bike. I accept evidence that the videos showed these things. I also accept the agent's evidence that the plaintiff was able to ride the motor-bike quite fast. In cross-examination, the plaintiff conceded that the video showed him "accelerate off to such an extent that the front of the bike lifts off [the roadway]". He accepted the cross-examiner's description of what he had done as "a wheely". 24 The videos may be contrasted with the plaintiff's evidence of what he could do. He said that his back and leg pain was aggravated by "really anything that is too constant, whether it be sitting, standing, walking, all of them". He said that although he moved to Brisbane partly so that the warmer climate could assist his symptoms, he had actually "deteriorated". He claimed that he "can't go shopping and [his] girlfriend does almost everything for [him]". He said he was "unable to vacuum and that even washing up dishes aggravated [his] back pain". He said he "had difficulty eating a meal from a table, such was [his] back disability". He said that when he drove to Brisbane he "had to stop every forty-five minutes". He said washing dishes is "a huge problem". He "can't stand over a sink … hunched over". He "certainly could not" hand-wash the plates after Miss Mann had cooked dinner. He said that this he had "actually attempted"; and when he did so, "it really hurt", so that he "laid down for hours afterwards". He claimed it would be "impossible" for him to hang out clothes, referring to the difficulty of lifting his arms above his head. He said he "always" had difficulty getting on and off his motor cycle; indeed he claimed this caused him "extreme difficulties". 25 Having listened to the plaintiff cross-examined at some length and observed his reaction to the videos, I formed an unfavourable view of his credibility. I am not persuaded that he suffers any significant level of pain, or any significant disability except that his physical condition involves a vulnerability which limits him to tasks that are not too heavy or strenuous and do not involve much bending or lifting. I see no reason to doubt that he made the degree of recovery following surgery that Dr Hudson anticipated. 26 For the defendant, the plaintiff was examined by an orthopaedic surgeon who has specialised in back problems, Dr Machart. That doctor considered there was "no longer evidence of ongoing painful pathology" and that there was "no physical explanation for the ongoing severity of his pain". With regard to the prognosis, Dr Machart reported that he "would expect Mr Pelloni-Oliva to be generally symptom free, except when exposed to strenuous activity". He thought him fit for quite a wide range of jobs, but not for regular physical labouring or strenuous work. 27 When seen by Dr Machart on 25 June 2001, the plaintiff "walked slowly with a distinct limp". He was holding his back and appeared stooped. Subsequently, the doctor was shown the videos, and he described the appearance of the plaintiff in them as "[r]emarkably different". He commented that "frankly … there was no indication that this gentleman has any back problems". He withdrew a previous recommendation of some treatment for non-physical symptoms, saying "I couldn't recommend pain management or seeing a psychiatrist for someone who doesn't appear to be disabled, and is able to conduct the activities seen on the video". 28 The plaintiff was also examined by Dr Michael Gliksman, an occupational physician to whom reference has already been made in these reasons. Dr Gliksman saw him on 14 February 2002. He formed the view that the surgery to the lumbar and lumbo-sacral region of the spine had been "completely successful in abolishing any and all clinical signs of any physical condition that may have been capable of explaining the nature, extent or duration of Mr Pelloni's presenting problems". Subsequently, Dr Gliksman saw the videos. He expressed the conclusion: At no stage in any of the video tapes seen, could any evidence of impairment be observed. 29 There was a considerable amount of further evidence as to the plaintiff's claims, but it is unnecessary to recapitulate it. The medical views to which I have referred were those on which the submissions of the parties concentrated. On all the evidence, I am satisfied the plaintiff suffered the back injury diagnosed by Dr Hudson. It was a serious injury, but it was treated by successful surgery, although the plaintiff has been left with an inevitably vulnerable back. I do not accept the plaintiff's complaints of ongoing severe pain and disability, although he may from time to time experience some not incapacitating pain, the extent of which, the onus being on the plaintiff, cannot be determined as more than minimal since I cannot rely on the evidence called by him on that subject. I do not accept the opinions of Dr Buckley and Dr Anderson, which were based to a significant extent on a deliberately misleading account of the plaintiff's condition. As to the plaintiff's present state, I accept generally the views of Dr Machart. 30 In argument, counsel for the defendant submitted a series of calculations based on the supposition that I might come to the conclusions I have expressed. I do not accept all of the figures suggested, but given those conclusions, a number of them do not appear to be in dispute; the parties debated rather the broad issues concerning the nature and extent of the plaintiff's injuries, disabilities and remaining economic capacity. The items conveniently referred to under the rubrics of "Non-Economic Loss" and "Future Economic Loss" do, of course, involve an application of my conclusions to a task of assessment, estimation and evaluation which is at the heart of the determination of an award of damages. The parties are agreed that the non-economic loss must be calculated as a percentage of a maximum allowance which, in this case, is $226,650. I accept the defendant's submission that the appropriate percentage is 35%, yielding a figure of $79,327.50. But, as to future economic loss, although I have accepted Dr Machart's approach to the evaluation of the plaintiff's fitness, I do not accept the submission that it follows a sufficient reflection of the situation in monetary terms would be made by an award of $75,000 under this head. Undoubtedly, a broad approach is necessary, since there can be no certainty about the effects on the plaintiff's earning capacity in the future of the vulnerability of his spine and the reduction of his physical powers. The Court must evaluate the prospects and assess a sum as "a fair and reasonable compensation": Arthur Robinson (Grafton) Pty Limited v. Carter (1968) 122 CLR 649 at 656, per Barwick CJ; and see Ahmedi v. Ahmedi (1991) 23 NSWLR 288 at 302-303; State of NSW v. Moss [2000] NSWCA 133 at [71]; Malec v. JC Hutton Pty Ltd (1990) 169 CLR 638 at 640, per Brennan and Dawson JJ; Zeppelin v. Commonwealth of Australia [2002] NSWSC 228 at [28]. I have concluded that under this head, the plaintiff would be fairly and reasonably compensated by the allowance of a sum of $100,000. 31 By reference to this sum of $100,000, a further sum should be calculated to represent future superannuation loss. At 9% of $100,000, I calculate $9,000 under this head. 32 Past out-of-pocket expenses have been calculated at $57,828.35, and I allow this sum, together with a further sum of $5,000 for future out-of-pocket expenses. 33 Past economic loss should, on my findings, be calculated at $397 per week for the period from the date of the injury to 30 June 1999 (78 weeks - this involves some rounding in the plaintiff's favour since he did continue to work for a short time after the injury) together with an allowance for the reduction of his capacity, when he was capable of resuming work, to lighter forms of work, this reduction being probably greater at first and then gradually diminishing. For that, I allow a rounded 3 years at an estimated average of $150 per week net. The total for past economic loss, so calculated, comes to $54,360, to which must be added a sum for past superannuation loss which I assess at $5,220. 34 The plaintiff should have an allowance for domestic assistance during the period from 30 January 1998 to 30 June 1999, but I allow nothing beyond that. On the basis of an average over the period of 2 hours per week at $16 per hour, this allowance comes to $2,490. 35 A further sum should be allowed upon the principle of Fox v. Wood (1981) 148 CLR 438, amounting to $7,726.07. 36 The figures I have arrived at total $320,951.92, but the plaintiff is also entitled to interest and, as requested by counsel, I shall give them the opportunity to suggest an appropriate calculation of this item before entering judgment. After adding a suitable sum of interest, I shall give judgment for the plaintiff in the amount that results, with costs.

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