Plaintiff v First Defendant

Plaintiff v First Defendant - [2006] VSC 412 - VSC 2006 case summary — Zoe

[7]

16 The plaintiff asserted that the protrusion was the remnant of one end of diagonal angle iron criss-cross bracing which had been removed between the end columns ("cross-bracing").

17 The incident occurred before morning smoko, and at smoko the plaintiff inspected his back in a mirror to ensure he had not pierced the skin of his back. He observed a red mark where he had struck it and kept on working.

18 Although he had a sore back the plaintiff did not report the incident to his employer on the day of its occurrence, because he says it did not cause him to bleed and he did not think he was badly hurt. Over the next few days he did, however, mention to workmates that he had hit or hurt his back.

19 He also spoke to his wife about the injury on the night after it occurred and she made observations of it.

20 Over the next few weeks the plaintiff's condition progressively worsened. On 16 May 2001 he advised his employer that he had injured his back at work and was going to see the doctor. The plaintiff did not believe he was badly injured.

21 In the event, medical investigation showed that the plaintiff had a pre-existing spondylolisthesis at the junction of the lumbar and sacral spines, causing the lower end of the lumbar spine to sit forward some 1.5 centimetres upon the vertebra below.

22 The impact rendered this condition symptomatic, and the plaintiff has since suffered recurrent pain and limitation of activity. He has also suffered consequent depression and psychological upset. In the first instance the plaintiff's back pain continued to deteriorate after he ceased work and he suffered some episodes of muscle spasm.

23 The defendants deny first that the plaintiff was injured in the manner alleged, and secondly that if he was so injured such injury was caused by any breach of duty on their respective parts. In the alternative, they allege contributory negligence by the plaintiff, although this allegation was not pursued at trial by KP. They seek contribution from each other in the event of judgment against either of them.[1] They further dispute the extent and consequences of the plaintiff's injury and the appropriate quantum of damages if liability is established.

24 I shall seek to resolve these issues by reference to the following questions:

[12]

26 A number of the above matters are capable of explanation. The plaintiff's workmates would not have had clear vision of him at the time of the alleged incident and were wearing protective ear muffs limiting their ability to hear him. The extent of background noise is unknown.

27 The evidence of both the plaintiff and other workers is that bumps were commonly experienced on the job when work was undertaken of the general type in issue. The fact that the plaintiff regarded a cut as requiring reporting but a bump as not necessarily requiring reporting is not inherently surprising, even given a history of a reported bump in October 2000. One of the plaintiff's former supervisors gave evidence that it would be impracticable to report every bump given the nature of the job. The failure to report the injury speedily or to seek speedy medical attention is explained by the plaintiff on the basis that his condition did not initially seem serious but progressively worsened following the accident. The same explanation is given for the fact that he acted as a goal umpire during this period.

28 Insofar as the plaintiff's failure to subsequently report the danger of the protrusion, the plaintiff says it did not cross his mind. It should have but it did not.

29 Ultimately it seems to me that none of the individual matters relating to the plaintiff's post-accident behaviour noted above can be said to materially detract from the credibility of his evidence in themselves. Likewise, the attack on the plaintiff's credibility based on his account of the origin of the protrusion (which I shall address further below) does not lead me to the conclusion the plaintiff was necessarily untruthful or unreliable in asserting his back was injured. The ultimate task confronting the Court is to assess whether his account of injury is more probable than not having regard to the evidence as a whole.

30 I am satisfied that the plaintiff did injure his back while working on the No. 2 caster on 26 April 2001 for the following reasons:

[13]

• There is no dispute by KP that the plaintiff was required to undertake the task he describes.

• The plaintiff's account of backing backwards and striking his back is circumstantial. His evidence was consistent and believable as to the manner in which he undertook this manoeuvre.

• The plaintiff told his wife that he had "whacked his back that day" and that it was "very sore". She observed that there was a red mark located on it and that it was painful when she sought to massage it. Thereafter she observed bruising emerged after about one week. She also observed that the plaintiff's condition appeared to worsen.

• In the days after the alleged incident the plaintiff told several workmates that he had hit or hurt his back.

• The plaintiff had worked for KP for some 18 years as a rigger prior to the incident and his work record was good.

• KP investigated the plaintiff's claim of injury and spoke directly to workmates to confirm the fact of complaint by him. It also discussed the injury with the plaintiff itself.

• The plaintiff's site supervisor one Horst Bates visited the plaintiff at his home shortly after he made a claim in order to assess the plaintiff's situation. Bates was not called as a witness.

• KP accepted the plaintiff's workcover claim. This may be regarded as an admission by KP that a compensable injury occurred[2] but not of course as an admission by PA.

• The medical evidence demonstrates a credible mechanism for the cause of the alleged injury namely a blow to that portion of the spine subject to the pre-existing spondylolisthesis.

• A series of witnesses comprising both treating doctors and medico-legal witnesses recorded acceptance of the genuineness of the plaintiff's history.

• For completeness I note the following with respect to the precise date of injury. Although the PA records show that the relevant work was originally scheduled for 25 April, there are a number of explanations as to why it may in fact have occurred on 26 April as claimed by the plaintiff. These include that put forward by one of PA's witnesses namely that on occasions the operations of PA delayed the implementation of maintenance work.

[14]

How was the Plaintiff Injured?

31 For like reasons to those set out above I accept that it is more likely than not that the plaintiff struck his back while moving backwards in the course of manoeuvring the ram from the centering device.

32 Further, I accept that it was reasonable for the plaintiff to move backwards because he could not proceed forward. In order to reach the centering device he was required to enter a caged area through a gate adjacent to the ingot stacker. He then had to move alongside the layer conveyer and in under it. At the point he took receipt of the ram he was standing in a semi-crouched position with head room estimated at some 4'6". He was immediately upstream[3] of a single steel column supporting the layer conveyer. Beyond and adjacent to that were a series of cables and pipes complicating the exit from the layer conveyer area.

33 Conversely, there was space for him to back into, being the doorway area leading into the cooling cabinet. The base of the cooling cabinet extended out just beyond the point at which he was standing outside this doorway. The base contained a shallow stainless steel bath used to collect deluge water sprayed onto the conveyer above. The bath was ordinarily drained during shutdown. Two wing walls protruded out from the cooling cabinet on each side of the conveyer and within them were two columns framing the doorway below the conveyer, usually closed with the rubber curtain. The curtain was customarily removed prior to maintenance operations. Beyond the doorway was the frame of the cooling cabinet itself, ending in two vertical steel columns with a box cross-section of 600 millimetres (i.e. the end columns). As originally designed these columns were fixed to the base frame of the cabinet by welding and joined at the top by a cross-member of the same cross-section. In addition, a piece of channel iron was welded between the two end columns forming a cross-member at a height some 1.25 metres above the floor of the deluge bath, and sitting below the cooling conveyer itself, which rose above it at an angle towards the layer conveyer ("the cross-member"). The cabinet was originally prefabricated with a steel frame and had been lifted into place by crane when it was installed.

34 The lower portion of the walls of each of the three box sections forming the cooling cabinet (and accommodating the ascending conveyer), was originally lined with steel panels. Above the panelling there were a series of open sections containing rubber curtains situated above the level of the conveyer as it rose within the housing of the cabinet. The panel walls were fixed to the cabinet sides within the line of the insides of the end columns described above.

35 The protrusion which the plaintiff describes as located upon one of the end columns, was not part of the original design of the cooling cabinet as depicted in design drawings tendered to the Court.

36 Further, the cooling cabinet was demolished and replaced in 2002, and no direct photographs exist of the internal area in issue.

37 The plaintiff gave evidence that the protrusion was a remnant left when diagonal cross-bracing was removed from between the end columns.

38 The weight of the evidence does not favour this scenario. No other witness gave evidence of such cross-bracing. Further, the design drawings do not depict such cross-bracing, but the plaintiff maintained it was present from the time of installation of the cabinet.

39 Witnesses called by PA gave evidence that no such bracing was ever observed by them, despite having worked on the machine over many years.

40 It follows that the plaintiff's assertions as to the prior existence of such bracing should not be accepted and do not assist his credit. As Mr Rose emphasised, the plaintiff during the course of his cross-examination repeatedly affirmed the prior existence of cross bracing. In my view it is this aspect of the matter which casts the greatest doubt upon the reliability of the plaintiff's account of a protrusion.

41 Nevertheless, the plaintiff's evidence in this regard was evidence as to what was not there at the time of the alleged incident, rather than evidence as to what was there.[4] It was evidence purportedly explanatory of the protrusion he observed, given by a man who did not return to the scene again after the date of injury, until it was materially altered. The critical question with respect to causation is simply whether there was in fact any such protrusion.

42 The rejection of the plaintiff's belief as to the origin of the protrusion raises a very serious question as to the reliability of his evidence as to the fact of a protrusion, but it does not necessarily mean that his account of the protrusion itself should be rejected when weighed against the evidence as a whole. Nor does such rejection lead to the necessary inference that his asserted belief as to the prior existence of bracing, was dishonest as distinct from inaccurate.

43 The defendants submitted:

[19]

• The plans tendered by PA did not depict the machine in the condition in which it was in 2001.

• There was evidence of ongoing modification to the cooling conveyer cabinet.

• Such evidence included replacement of wall panels because of corrosion.

• Such evidence included patching of steel work generally on cooling cabinets because of corrosion.

• The photographs demonstrate substantial corrosion on the exterior of the end columns in the vicinity of the cross-beam.

• Such corrosion may have been significantly worse at the time of the alleged incident, which it appears occurred some six years after the taking of the photographs.

• The meeting of the cross-beam and an end column would be a point of corrosion.

• The cross-beam may itself have been removed and not replaced. In this regard I note the engineering witness called by PA said it would be unnecessary to replace the cross-beam if it were removed.[5] Whether replaced or not its removal may have resulted in consequential cutting and welding.

• The original design provided for a soft steel bath lining the base of the cabinet, but this was replaced with a stainless steel bath, to better accommodate corrosion on the inside of the cabinet.

• The cabinet was scrapped within one year of the incident for a range of reasons including maintenance problems.[6]

• The external photographs of the cabinet demonstrate an object possibly in the nature of a pipe or lever, not shown on the design drawings of the cabinet, and located at or about the level of the cross-beam, apparently penetrating the wall of the cabinet adjacent to an end column.

• The oral evidence called by PA did not satisfactorily exclude the possibility of a protrusion on one of the end columns at the time of the incident.

• No evidence was called from workers accustomed to working under the cabinet regularly, because of problems associated with fallen ingots. The evidence was there were some 40 long term workers potentially in this category.

• No evidence was called from Charlotte Scell the ingot mill manager at the relevant time.

[28]

55 The fact that the plaintiff gave evidence as to a belief as to the origin of the protrusion, which I do not accept as probable, does not lead me to reject the fact of the protrusion.

56 Likewise, although at some points the plaintiff's evidence may have over-emphasised (or alternatively been unclear as to) the jaggedness of the protrusion, I am not satisfied this should lead to rejection of his fundamental complaint of a protrusion which jutted out some 80 to 100 millimetres from an end column at the level of his lower back.

Breach of Duty of Care

57 Once it is accepted that the plaintiff backed into a protrusion upon an end column while undertaking a reasonably foreseeable manoeuvre in the course of removing the ram from the layer conveyer, then it follows that he was not provided with a safe system of work by KP in accordance with its non-delegable duty. In particular he was not warned or otherwise protected against the risk of injury. The facts that he was experienced and had undergone a confined space induction, were not sufficient to discharge this duty.

58 The position of PA requires more complex analysis. Mr Tobin contended that PA was in breach of its duty to provide a safe place of work for the plaintiff. Mr Curtain submitted that responsibility for the hazard constituted by the protrusion was principally that of PA. Mr Rose contended that PA was not in breach of any duty to the plaintiff.

59 I am satisfied that the probability is that the protrusion was caused by PA's servants or agents in the course of carrying out work on the cooling cabinet. It is plain that the ingot mill was strictly controlled by PA and that work on the plant within it was done either by or on behalf of PA.

60 I am not able to be satisfied, however, when the protrusion was so caused. In particular, I am not able to be satisfied whether it was present on any prior occasion upon which KP carried out work in the vicinity of it.

61 It is further apparent that in the ordinary course of ingot mill operations, KP did not have access to the conveyer cabinet.

62 Access was, however, available to PA ingot mill employees, to PA supervising staff, and potentially to a series of contractors employed by PA to undertake maintenance and repair work involving different trades.

63 In addition PA had in place a system of hot work permits which would have required it to authorise oxyacetylene welding upon the cooling cabinet frame.[9]

64 I am satisfied PA by its servants and agents knew or ought reasonably to have known of the protrusion prior to the plaintiff's injury:

[57]

87 In terms of the principles stated by Brennan and Dawson JJ in Papatonakis above, this is a case where the defect in the premises went beyond the kind, which the plaintiff and other employees of KP were accustomed to meet and safeguard against. It was a case where the plaintiff was left in ignorance of the defect by PA in circumstances where he, using reasonable care, might not discover it. The case is not one where the defect was readily visible to the plaintiff[16] or which was a usual incident of the job.[17] It was rather akin to cases such as A.V. Jennings Ltd v Thomas[18] in which holes in steps were not visible until the worker stood directly over them. As in that case, this was a case in my view where it was obviously reasonably foreseeable that the defect in the premises created a risk of injury to entrants, and it would not be reasonable for the occupier to decide that the foreseeable risk to contractor entrants was adequately dealt with by leaving it to the contractors to solve the problem for themselves.

88 Further, the relationship between PA and KP was one ultimately controlled by PA to an extent that rendered the plaintiff vulnerable to injury by reason of defects not obvious at the place of work provided by PA.[19] The plaintiff was required to conform to a system of work established by the occupier within premises controlled by the occupier.

89 For the above reasons I reject the submission that in the circumstances of this case PA was entitled to discharge its obligations to the plaintiff simply by contracting KP upon the terms and in the manner in which it did.

90 It is not necessary for me to further address the arguments which were put to me on behalf of the plaintiff and the Victoria Workcover Authority by reference to the principles stated in Burnie Port Authority v General Jones Pty Ltd[20], and other authority.

Contribution Between Defendants

91 The better view is that the principal cause of the plaintiff's injury was the breach by PA of its duty towards the plaintiff. Accordingly, as between defendants, I find PA 80% liable and KP 20% liable for the plaintiff's injury pursuant to ss.23B and 24(2) of the Wrongs Act 1958.

Contributory Negligence

92 In my view, having regard to the facts as I have found them, no contributory negligence has been established on the part of the plaintiff.

General Damages - Pain and Suffering

93 The plaintiff was born on 6 April 1960 and has lived almost all his life in Portland. He attended the local Catholic primary school and then attended the local technical school up to year 10. He then had a series of labouring jobs until April 1983 when he commenced work for KP.

94 Thereafter he has had stable employment and a stable personal history. He has lived with his de facto wife for 22 years and has two children.[21]

95 The plaintiff was initially employed in the construction of the Portland Aluminium Smelter as a crane maintenance rigger and then, after an eight month break following the completion of the construction, returned as a maintenance rigger. During the course of his employment he obtained a range of certificates from the Department of Labour and Industry, as a rigger (six certificates), mobile crane operator, dogman, forklift licence and articulated vehicle licence.

96 The plaintiff's work was approximately 95% at the Portland Smelter, but over the years he also worked on a series of construction sites for KP.

97 Save for some recurrent gout, his health was good and he suffered no significant injury, save that in 1995 he fell and fractured a rib which required him to take six weeks off work.

98 Prior to the accident he was well able to undertake heavy physical work on an ongoing basis. One of his supervisors, Mr Hastie, and other witnesses endorsed his physical capabilities and exemplified the very heavy work which he did from time to time. It is clear from the evidence as a whole that the plaintiff had a good reputation as a worker.

99 Following the accident in April 2001 the plaintiff sought to continue working because he was accustomed to some aches and pains as a result of heavy work and did not believe the bump to his back had caused him serious injury. He sought to relieve his soreness initially by requesting his wife to massage his back but this proved to be painfully tender. His condition continued to worsen over the period of the next three weeks. He saw a local general practitioner on 17 May 2001 who put him off work and arranged for an x-ray of his lumbar spine. The x-ray recorded that at L5/S1 there was a significant forward displacement of L5 on S1 greater than 1 centimetre and appeared to be long standing spondylolisthesis.[22] In addition the disc at the L5/S1 level was very narrow and there was some sclerosis in the opposing end plates.

100 On 19 May 2001 the plaintiff returned to see Mr Das, who practised at the same local clinic as the general practitioner who first saw him. Mr Das has qualifications as a surgeon in addition to qualifications as a general practitioner. Mr Das obtained a CT lumbar spine scan on 21 May 2001 which confirmed spondylolisthesis at L5/S1.

101 The plaintiff was advised as to his condition, prescribed Voltaren and referred to physiotherapy with a local physiotherapist. He was then referred to Mr Kierce, an orthopaedic surgeon. Mr Kierce first saw the plaintiff on 12 July 2001 and found a palpable step in the spine. After reviewing the x-rays taken at the Portland Hospital which showed a grade 2 spondylolisthesis, Mr Kierce formed the opinion that the plaintiff was no longer fit for any occupation which involved prolonged or frequent bending, the lifting of weights greater than 15 kilograms, the use of heavy jarring implements such as picks, shovels and crow bars, and the driving of machinery which gave rise to vibrations.

102 Mr Kierce encouraged the plaintiff to walk, swim and ride a bicycle in order to get fit and believed that he would be helped by a lumbar brace if he was doing anything that would put stress on his back. He certified the plaintiff as unfit for work at that point in time. Mr Kierce saw the plaintiff again in August and September 2001. By September 2001 Mr Kierce noted the plaintiff had improved significantly. The plaintiff still had some significant spasm in the left lower back muscles and the left buttock. Mr Kierce felt, however, that the plaintiff's condition was good enough to return to half time duties at work and in addition to the restrictions he had previously recommended, advised that the plaintiff should not be involved in sweeping. In October 2001 Mr Kierce felt that the plaintiff had responded to treatment and discharged him and referred him back to Mr Das. Mr Kierce felt the plaintiff should still have access to physiotherapy as required and that the work restrictions he had previously stipulated were permanent.

103 Following return to his care Mr Das has certified the plaintiff fit for alternative duties, save for a period when the plaintiff was totally incapacitated by depression. Mr Das agrees with Mr Kierce as to the relevant restrictions on the plaintiff's capacity to work. In answer to cross-examination, Mr Das said the plaintiff could commence on part time duties for, say, 20 hours a week and that there were a number of occupations he could undertake physically.

104 The plaintiff was also referred to Mr Maling, a general surgeon, for medico-legal purposes in August 2001. He obtained a further CT scan carried out in September 2001 which showed spondylolisthesis at L5/S1 with approximately 12 millimetres forward slipping of L5 on S1. The associated disc showed quite marked degenerative change with loss of disc height and signal intensity. There was some bulging of the disc posteriorly but no disc herniation was seen. There appeared to be some compression of both exiting L5 nerve routes within the neural foramina.

105 Mr Maling's opinion was that the only satisfactory treatment would be fusion at the lumbosacral level, but because of the degeneration in the discs above this may not be thought possible. In his view this represented the only hope of the plaintiff returning to light manual labour.

106 In August 2001 the plaintiff attempted to return to KP for work in accordance with a work plan which attempted to address his condition. He was given work in a store but he and his wife say he was only able to work for several days. KP's wage records record him as having worked some hours over a period between a Thursday and the next Thursday. There is dispute as to the extent to which the plaintiff experienced actual as distinct from apprehended difficulty as a result of his ongoing disability, but I accept that whatever period he worked for in August 2001, he ceased work as a result of the effects of his injuries. In particular I accept that he experienced difficulties with sweeping as specifically noted by Mr Kierce.

107 After having been told by Mr Kierce that he would not be able to return to his former employment, the plaintiff developed increasingly severe depression. In evidence he described his condition 12 months after the accident:

[59]

108 He sought to meet this situation in part by using marijuana. Although the plaintiff expressed a general preference for smoking joints (ie cigarettes containing a mixture of tobacco and marijuana) over a period while depressed he was smoking 6 "cones" of marijuana per day. I do not accept the suggestion made on behalf of KP that such drug use was demonstrably excessive. I prefer the evidence of the psychologist and the plaintiff that it was not. I also do not accept it was a material factor affecting his capacity to work.

109 He was referred to Noni Kirkby, a psychologist practising at Mount Gambier. She treated him over the next six months and it seems that ultimately he achieved a less depressed state of mind. Nevertheless she gave forceful evidence confirming a diagnosis of depression and expressed the view that his prognosis remained guarded at the time he ceased to see her in 2002. She recommended ongoing medication. The plaintiff remains on medication for back pain and for depression, Tramal and Zoloft which he takes as necessary on a regular basis.

110 Over the 12 months following the accident the plaintiff also lost a significant amount of weight. His current condition is one of markedly changed appearance from that prior to his injury. His evidence is that he has lost some 20 kilograms in weight and has gone from being a heavily muscled and bulky man to a much reduced physique. Those of his workmates who gave evidence confirmed a dramatic change in his appearance: "He's like a little old man now."

111 The plaintiff has attempted to control and cope with his symptoms by undertaking physiotherapy, exercise, and counselling in conjunction with taking prescribed medication. He is currently undertaking Bowen therapy at the suggestion of his treating doctor Mr Das.

112 The plaintiff saw Mr Brownbill, a neurosurgeon, for medico-legal purposes first in February 2004 and thereafter in March 2005 and July 2006. Mr Brownbill's opinion is that the injury suffered by the plaintiff at work resulted in soft tissue damage to structures about the lumbar spine with aggravation of spondylolisthesis and contribution to the demonstrated spondylolisthesis. In his view, ongoing pain may be anticipated to occur in a fluctuating manner indefinitely. The only effective treatment available for such spondylolisthesis is spinal fusion, however such a procedure is precluded by the widespread degenerative changes of the plaintiff's lumbar spine. The plaintiff will need to avoid activities involving lifting, twisting, bending or prolonged standing or sitting. He will not be capable of manual labour in the future. The probability is he will not be capable of suitable employment.

113 The plaintiff was also seen by Mr O'Brien, an orthopaedic surgeon, for medico-legal purposes in March 2005 and July 2006. In his view the plaintiff continues to experience symptomatic lumbar spondylolisthesis at the L5/S1 motion segment. His condition is stabilised. The pathology has not responded to conservative treatment and ongoing management has been directed towards pain control. The prognosis is poor, as there is no doubt the plaintiff will continue to experience incapacitating pain. There are no indications for surgical intervention. The plaintiff suffers from a continuing marked restriction of physical activity. There is no possibility he could return to his pre-injury occupation. In Mr O'Brien's view the plaintiff would find it extremely difficult to obtain suitable employment and would not cope with full time duties. He regards the plaintiff as in truth unemployable on a permanent basis.

114 Mr Brierley, an orthopaedic surgeon, saw the plaintiff for medico-legal purposes on 8 March 2005 and 5 July 2006. He is likewise of the view that long standing spondylolisthesis of L5 on S1, which was previously asymptomatic, was rendered symptomatic by the injury to the plaintiff's back in April 2001. In his view the plaintiff is unfit to undertake manual labour but could do some suitably selected light work whereby he could avoid lifting beyond five kilograms and repeated lifting and also much bending and stooping. He will need to avoid prolonged sitting, standing and walking.

115 Mr Dooley, an orthopaedic surgeon, who saw the plaintiff for medico-legal purposes on behalf of the first defendant in February 2005 and June 2006 formed the view that the plaintiff suffers from an underlying structural defect of the lumbar spine. He has a grade 2 spondylolisthesis at the lumbosacral level. He believes that the episode of April 26, 2001 aggravated the plaintiff's underlying condition and rendered lumbosacral disc degeneration symptomatic. He states symptomatic lumbosacral disc degeneration is associated with lumbar, buttock and thigh pain. In general treatment of it includes a low impact exercise and fitness program and sensible modification of activity. Given the widespread natural occurring lumbar disc degeneration noted on MRI scanning, surgical intervention would not be appropriate.

116 In Mr Dooley's view the plaintiff is capable of performing light physical work and clerical duties as long as repetitive bending and occupying the one posture for a prolonged period of time are avoided. It is probable the plaintiff will continue to note either constant low back pain or regular intermittent low back pain. In association with this there will be some pain in the buttocks and thighs. Mr Dooley specifically recorded that the plaintiff presented as a sensible and genuine historian.

117 The plaintiff was also seen by Mr Elsner, an orthopaedic surgeon, for medico-legal purposes on behalf of the first defendant. Mr Elsner takes a more optimistic view of the plaintiff's condition. He considers that the injury described to him would have caused no more than some temporary deep bruising over the lower lumbar region, and he is unable to explain on a physiological basis, the plaintiff's alleged ongoing symptoms in the back and thighs more than five years after the incident.

118 In my view Mr Elsner's opinion should be rejected. It is against the weight of the medical evidence and I accept the evidence advanced on behalf of the plaintiff that it is probable the injury to his back rendered symptomatic a previously asymptomatic condition associated with spondylolisthesis at L5/S1. Mr Kierce said and I accept:

[72]

135 In respect of future economic loss he claims on the basis that he would, but for the injury, have worked to 65 and applying a multiplier of 580 to a weekly wage of $941 discounted by 15% for vicissitudes, claims $463,913.

136 He further claims in respect of future superannuation on the basis of 9% of gross income applying the same multiplier, and discounted for vicissitudes to a figure of $116 per week resulting in a claim of $57,188.

137 In my view the claim for past economic loss should be discounted for vicissitudes by 10%. The plaintiff's risk with respect to injury both at and away from work was higher than usual because of his pre-existing spinal condition.

138 In summary the plaintiff should receive Fox v Wood damages, past loss of earnings and superannuation now totalling approximately $295,000 which should be discounted to $265,500.

139 The plaintiff claims for future loss on the basis that he will be totally unable to work. I do not accept this. The evidence of his treating doctors is that he is and will be fit for light work subject to restrictions. That view is supported by the weight of the medical evidence which I have summarised above and I accept it.

140 It seems to me, moreover, that the resolution of this proceeding will materially enhance his ability to obtain income in a self-employed capacity and/or to move from Portland if he so desires and obtain light work.

141 In all the circumstances I accept Mr Curtain's submission that the plaintiff's future economic loss should be calculated on the basis that it is probable he will suffer a further year of total loss of earnings and thereafter a 50% loss of earning capacity.

142 I accept Mr. Tobin's submission that the damages should be calculated on the basis that the plaintiff would have worked to 65 but for his injury. He gave evidence to this effect and his intention was not challenged in cross-examination. There was no other evidence as to the usual age of retirement of riggers in KP's employment.

143 As against this, it seems to me that the evidence as to the plaintiff's pre-existing degenerative condition must be regarded as rendering him more susceptible in future to the vicissitudes of life by reason of the ongoing risk of injuries to his back both at and away from work. In my view the appropriate discount is 20%.

144 Moreover, I do not accept that the evidence demonstrates a satisfactory basis for finding that the plaintiff has a retained earning capacity to the age of 60 years only as the plaintiff's counsel have submitted.

145 Accepting that the plaintiff's earning capacity but for the incident in which he was injured was approximately $520,000, I would allow in excess of $200,000 for future economic loss. But I will give the parties the opportunity to submit revised calculations giving effect to the findings I have made above.

146 Accordingly I answer the questions identified at [24] above, as follows:

[75]

[1] A claim by PA for contractual indemnity was not pursued at the hearing.

[2] Ansett Australia Ltd & Anor v Taylor [2006] VSCA 171.

[3] In terms of the direction of the conveyer.

[4] As the plaintiff said: "Well, the brace was gone, there was no brace in there, this was the only one piece of the brace left ..."

[5] "The bracing there is to hold those - or to stabilise those columns when the lids are removed and the cooling conveyer itself is removed, but without that brace, the unit would probably stand up quite safely on its own ... Q. If in fact you saw corrosion there which looked to be affecting the integrity when would you replace it? A. If I wasn't removing the cooling conveyer, I probably wouldn't worry about it."

[6] Mr Watt, one of PA's witnesses, said: "... Caster 2 was going to be done at an earlier date but for whatever reason it got delayed, so there wasn't a great deal of preservation work done in that area."

[7] Mr Cowie, the equipment manager mechanical in 2001 said: "If there was any welding to be done, it would be potentially oxywelding to remove mounting bolts, to remove potentially the frame, or repair work."

[8] I leave to one side Mr Rose's assertions in final address as to the plaintiff's waist height, made by reference to a tape measure. If such assertions were to be relied on they should have been put to the plaintiff in cross-examination.

[9] A so-called "A" type hot work permit issued by PA would be required for work on structural steel in this location.

[10] At another point Hastie said: "If it's that low, we might just crouch down and have a look and see if we can see anything there that's going to cause a problem or use the people's experience."

Mr Rowe, a site supervisor with KP since 1996, who heard Mr Hastie's evidence, subsequently said as to Mr Hastie's evidence concerning hazard assessment: "... He was pretty well right."

[11] The extent of enclosure is illustrated, inter alia, by an overhead photograph of caster 4 taken from above and one side of the relevant section of plant in the 1980's.

[12] Mr Hastie also gave evidence the KP worker would take in his own lighting if it were required.

[13] Mr Cowie a PA supervisor said it would be "dim".

[14] [1980] HCA 12; (1980) 146 CLR 40 at 47-48 (with whom Stephen and Aickin JJ agreed).

[15] [1985] HCA 3; (1985) 156 CLR 7 at 30.

[16] cf Felk Industries Pty Ltd v Mallet [2005] NSWCA 111.

[17] cf Davis v Nolras Pty Ltd [2005] NSWCA 379.

[18] [2004] NSWCA 309.

[19] cf Thompson v Woolworths (Queensland) Pty Ltd [2005] HCA 19 and Rockdale Beef Pty Ltd v Carey [2003] NSWCA 132.

[20] [1994] HCA 13; (1994) 179 CLR 520.

[21] I found the evidence of the Plaintiff's wife generally to be credible and to corroborate and amplify the plaintiff's own evidence.

[22] Mr Kierce stated spondylolisthesis refers to slipping forwards of one vertebra on another and in this man's case the fifth lumbar vertebra has slipped forwards on the first sacral vertebra due to pre-existing stress fractures in his fifth lumbar vertebra, whereby probably while he was growing, the supportive structures at the back of the fifth lumbar vertebra, which normally prevent forward slipping, there was a fracture through those on each side to allow this bone to slip forward. About 4% of the population has this stress fracture, many people go through life being completely asymptomatic, but people with this disorder are more vulnerable to injuring their back.

[23] [1981] HCA 41; (1981) 148 CLR 438 at 441-2 per Gibbs CJ with whom Aickin and Wilson JJ agreed

At a glance

Court

Decision date

Before

Source

Judgment (75 paragraphs)

Parties

Cases Cited (4)