Testa v Collex P/L [2002] QSC 178

[1]

[1] The plaintiff claims against his former employer for injuries allegedly sustained by him on 2 September 1997 and 20 October 1997 when, dismounting from a toxic waste bin carried on a trailer, he lost his footing, jumped or fell to the ground and suffered lower back injury. The incident on 2 September 1997 allegedly occurred at the toxic waste dump at Gurulmundi near Chinchilla and the latter at the defendant's premises.

[2]

[2] The plaintiff, in the course of his employment as a driver of trucks carrying toxic waste, arrived at the waste dump. There, in accordance with the usual practice, he donned protective clothing which included rubber gumboots. It had been raining at the dump immediately prior to the plaintiff's arrival and the ground was muddy. His vehicle, having driven through rain, was wet. The gumboots had mud adhering to them as a result of the plaintiff's movement to and from the toxic waste station and about his vehicle whilst preparing toxic waste bins for the discharge of their cargo.

[3]

[3] In order to enable the waste in a container carried on the chassis of his truck and another container mounted on a dog trailer towed behind the truck to be emptied, the plaintiff had to climb on top of each container, loosen wing nuts and remove a security tag fixed to one of its lid fasteners or lugs.

[4]

The plaintiff's account of the first incident in evidence in chief

[5]

[4] The plaintiff's account of the first incident in evidence in chief was as follows. In dismounting from the bin on the dog trailer, he had difficulty in obtaining a firm foothold on a ladder attached to the end of the bin because the limited distance between the rungs of the ladder and the bin wall permitted him to put only the front part of his boots on the rungs. It was thus necessary, to obtain greater support, to position the soles of his boots on an angle to the rungs. As he was attempting to place one foot on a rung, his other foot, which was on the top rung, slipped. He thought he was going to fall sideways across the dog trailer's drawbar and attempted to obtain a footing on the drawbar but his foot slipped on it. Trying to land clear of the drawbar, he pulled himself away from it, landed on his feet on the ground, lost his footing and, in trying to stop himself falling to the ground, he "... put (his) hands on the ground as (he) gathered (himself) and stopped ... at the time (he) felt something in (his lower) back go."

[6]

[5] In cross-examination, the plaintiff was unable to remember which of his feet slipped on the ladder and which was the foot which he attempted to position on the drawbar. The area of the drawbar with which he said he attempted to make contact was at or near its pivot point. He was also unable to remember what his hand was holding at the time of the accident.

[7]

The plaintiff's account of the second incident in evidence in chief

[8]

[6] The plaintiff's evidence in chief was that the second accident occurred in the defendant's yard on 20 October 1997 when he was dismounting from the top of a bin on the dog trailer having mounted it to loosen clamps on the bin lid so as to relieve pressure on rubber seals. On that occasion he was wearing his normal steel capped work boots when he again lost his footing on the ladder. He said -

[9]

"... I must've trodden on that particular area (a horizontal steel latch) and just more pressure put on - I sort of laid down. I thought it was on the rung and it wasn't and more or less lost me balance ... I just started to fall again ... I went ... off the side of the drawbar ... I landed on my feet and jarred me back pretty severely."

[10]

He said he felt a very sharp pain in his lower back.

[11]

[7] Mr O'Sullivan, who appears for the defendant, submits that the plaintiff's evidence of slipping on the ladder ought be disbelieved, as it is inconsistent with every recorded version of the incidents given by him prior to the giving of a statement to his solicitor on 14 May 2001. He further submits that if the plaintiff's account of how the accidents happened is rejected the Court is left in a position in which it is unable to determine the cause of the accident, it is unable to make a finding of negligence.

[12]

[8] Mr Hastie, who appears for the plaintiff, submits that there is no "real inconsistency" between the version of events given by the plaintiff at the trial and the "shortened version" recorded by the various medical practitioners or in the claim forms. He points out that it is common to all versions that the plaintiff slipped on the drawbar and submits that the fact that the ladder was not mentioned in the plaintiff's earlier accounts does not necessitate the conclusion that it was not a cause of the accident. He further draws attention to the history provided by the plaintiff to Dr Boys, Dr Tomlinson and Dr Luke in which the emphasis is on avoiding a fall onto the drawbar.

[13]

[9] It is thus desirable to set out the out of court versions of the accident provided by the plaintiff.

[14]

Versions of the accidents given for WorkCover purposes

[15]

[10] In an application for damages certificate form dated 31 March 1999, prepared by his solicitor Mr Holmes, in consultation with him for submission to WorkCover Queensland in respect of the incident on 2 September 1997, it was stated in response to the question "explain what the worker was doing at the time and how the injury happened?" -

[16]

"Climbing down from top of bin when it was raining. Stepped onto draw-bar and slipped and fell from draw-bar."

[17]

A notice of claim for damages form in relation to the same incident, also prepared by Mr Holmes on instructions from the plaintiff and dated 20 August 1999, stated in Schedule B of the form which required the claimant to "Detail the negligence alleged against the worker's employer" -

[18]

"It was raining and I was climbing down from a waste bin onto the drawbar of the trailer upon which the bin was situated.

[19]

As I stepped onto the drawbar with my left foot my foot slipped and I lost balance and fell backwards.

[20]

I suffered a back injury when I fell from the drawbar.

[21]

The said incident and my injuries were caused by the negligence of Collex, particulars of which are as follows:-

[22]

* Failing to provide me with any or any proper structures in the performance of my duties and a safety method of climbing down from the waste bins.

[23]

* Instructing and/or requiring and/or allowing me to climb down from the waste bin when Collex knew or ought to have known that the inadequate footholds and tread of the waste bins and/or drawbar was such that I was exposed to risk of injury which could have been avoided by reasonable care such as ensuring that a proper ladder was provided to gain access to and from the waste bins and by providing a rubber surface for me to step on when climbing down from the waste bin or by providing sufficient manual or mechanical assistance to gain access to the waste bin ...".

[24]

[11] In an application for compensation form made out by the plaintiff himself on 28 October 1997 in relation to the 20 October 1997 incident, in response to the question "Explain what you were doing at the time and how the injury happened", he wrote -

[25]

"Climbing down from top of bin - stepped down on drawbar and lost my footing."

[26]

In response to the question "Were you or was any person or anything responsible for the injury", he wrote - "Mud on boots, no grips on drawbar".

[27]

[12] On 26 October 1998, Mr Holmes, on instructions from the plaintiff, wrote out a notice of claim for damages form in respect of the incident on 20 October 1997 stating -

[28]

"... I was climbing down from a waste bin and onto the drawbar of the trailer upon which the bin was situated on.

[29]

As I stepped onto that drawbar with my left leg, my left foot slipped and I lost balance and fell backwards. As I fell I landed on my foot and fell backwards and grabbed hold of the drawbar at the same time.

[30]

I suffered a back injury when I fell from this drawbar ...".

[31]

[13] Particulars of negligence were then given which are substantially the same as those contained in the 20 August 1999 claim form.

[32]

The plaintiff's instructions to his solicitors on 14 May 2001

[33]

[14] Before 26 October 1999, Mr Holmes had ceased his employment with Maurice Blackburn Cashman, the solicitors first instructed by the plaintiff in relation to the subject incidents, but the form, witnessed by another employee of that firm, had been prepared by Mr Holmes prior to his departure. After he commenced employment with the plaintiff's present solicitors, he was asked by the plaintiff to act for him. On 14 May 2001, with a view to the plaintiff commencing these proceedings, he took a statement from the plaintiff in which the plaintiff instructed him as follows -

[34]

"33. The ladder on the top of the waste bin is at the back end of the toxic waste bin. They consist of round metal bars and the gap between the bar and the bin is approximately 2 inches.

[35]

34. Because of the gumboots that I was required to wear, it was difficult to get any footing onto the bars of the ladder. I could not put my foot in with my toes facing the toxic waste bin, as I could not get any grip. I would have to turn my foot on an angle and use the side of my foot to gain grip, however that was difficult also.

[36]

35. I injured my spine when I was climbing down from the top of the waste bin after undoing the wing nut. I started to lose footing on the ladder and I tried to regain my footing by stepping onto the draw bar of the dog trailer and pushing away. If I had simply fallen from the ladder, I would have fallen with my legs straddling either side of the draw bar. As I lost my footing, I pushed myself outwards as well as stepping on the draw bar in order to avoid it. My foot slipped on the draw bar.

[37]

36. I then fell to the ground by landing on my feet awkwardly with my back over-extended backwards and I then fell onto my backside."

[38]

[15] In the statement he described the second accident as follows -

[39]

"51. As I could not get a proper grip on the ladder, I again lost my footing as I was stepping down from the top of the toxic waste bin. This time I landed on my feet and not my backside, however I again jarred my back quite severely."

[40]

52. I felt a quite sharp pain across my lower back."

[41]

[16] Mr Holmes, who gave evidence in the plaintiff's case, swore that the forms prepared by him were completed in accordance with his instructions. He said that he completed two years of articles and was admitted as a solicitor on 2 February 1998. At the time of seeing the plaintiff he had between about 150 and 200 files to manage and had very little supervision. Due to pressure of work, he took only a brief statement from the plaintiff before completing the forms. He said also that it was difficult to extract information from the plaintiff.

[42]

[17] Mr Holmes believed that, consistent with the practice adopted by him at the time, he would have had the plaintiff read through the application for damages certificate dated 31 March 1999 and the notice of claim for damages dated 26 October 1998 before those documents were signed by the plaintiff.

[43]

Accounts of the incidents given by the plaintiff to medical practitioners

[44]

[18] Professor McPhee, orthopaedic specialist, notes in a report dated 1 February 1999 that he was informed by the plaintiff in a consultation in February 1998 that he injured his back in September 1997 "when his foot slipped on the drill bar" as he was climbing down from a truck. Professor McPhee further records -

[45]

"He fell backwards landing on his feet in a back arched position. At the time he was aware of some back discomfort and continued to work for a further week.

[46]

He was then cleaning out a bin with a shovel and manually removing the rubbish. After about half an hour of this activity his back pain increased. He ceased work early and sought medical advice."

[47]

[19] Professor McPhee's notes make reference to a "drill bar" as do Dr McCartney's. The likely explanation is that the plaintiff used the expression "drawbar" and was misunderstood. It seems that the plaintiff made no reference of the October 1997 incident to Professor McPhee.

[48]

[20] In April 1998, the plaintiff told Dr White, orthopaedic surgeon, that he slipped on the drawbar of a truck on 20 October 1997 "when he was climbing down". Dr White's report records - "He kept working in some discomfort but later the same day while shovelling rubbish out of a truck he became worse."

[49]

[21] Dr Nave, orthopaedic surgeon, records that the plaintiff told him in January 1998 that -

[50]

"... he was on the back of a truck climbing down off a bin when he stepped on to a drawbar and his foot slipped. Apparently his boots were muddy at the time. As he slipped, he tried to jump clear and said he landed awkwardly with his knees buckling beneath him. He said he did not actually strike the ground with his buttocks or his back."

[51]

[22] Heather Luke, psychologist, in a report dated 29 January 1998 records -

[52]

"Mr Testa advised that he had initially experienced pain in his back after losing his footing when climbing down from a bin. Apparently, to avoid falling onto the drawbar, he jumped onto the ground and landed awkwardly. Despite the pain, Mr Testa continued to work until a few days, when his pain increased after cleaning out a construction bin."

[53]

[23] Dr Tomlinson's report of 13 February 1999 contains this passage -

[54]

"Mr Testa said that he had been on top of a toxic bin, undoing nuts with a tyre spanner. He said when he was climbing down from the toxic bin, he slipped. He said it had been raining and there was mud on his boots. He said realising that he was going to fall on an A frame, he tried to throw himself clear and he said he landed heavily feet first on the ground and then he fell backwards and sat on the ground. Immediately he developed severe back pain."

[55]

[24] It is certainly curious that in the four formal notifications of the two accidents for WorkCover purposes no specific mention is made of loss of footing or slipping on the ladder. In the plaintiff's statement of 14 May and in his evidence at trial in relation to the 2 September 1997 incident, the emphasis is on a mishap which commences on the ladder whereas the WorkCover accounts appear to describe an incident initiated by a loss of footing on the drawbar. The latter accounts do not sit comfortably with the former. The versions of the accident given by the plaintiff to Doctors McPhee, White and Nave are consistent with those given in the WorkCover forms whereas those given to Miss Luke and Dr Tomlinson are consistent with both versions of the incident. These observations are generally applicable to the second accident.

[56]

[25] The doubt cast by the WorkCover statements on the reliability of the plaintiff's accounts at trial of the incidents is resolved to a considerable degree when regard is had to the evidence of Mr Holmes. Referring to the notes he took when he first interviewed the plaintiff on 12 March 1998, he said in the course of his evidence -

[57]

"It discusses the description of the ladder, then having to come down after undoing wing nuts. His shoes had mud on them and were slippery. `As he stepped down from the ladder to the draw bar with left leg and slipped and fell and threw himself away from the draw bar and landed on the ground on feet and grabbed hold of the edge of the bin,' and then the next reference is `noticed pain in back'.

[58]

All right. And did he tell you anything more about how the injury happened? - No. Not in any particular detail from my notes."

[59]

[26] On that version of events, the plaintiff had one foot on the ladder and was in the process of positioning the other on the drawbar when the incident occurred. It does not describe a chain of events in which a footing was obtained on the drawbar and then lost. Nor does it state that a foot first slipped on the drawbar. What has been described, consistently, is an incident in which the plaintiff slipped whilst engaged in the process of descending from a container lid.

[60]

[27] The WorkCover forms (with the exception of that dated 28 October 1997) were prepared by Mr Holmes by reference to the file note made by him some months before. It is improbable that at the time he prepared the forms he had a detailed recollection of what the plaintiff had told him beyond the contents of his file note. I also consider it likely that on 12 March 1998 the plaintiff was not particularly forthcoming as to the precise mechanics of the events constituting the accidents and that he was not subjected to any searching or astute questioning by Mr Holmes. Nevertheless, from what he had been told, Mr Holmes was plainly of the understanding at the time of preparing the WorkCover forms that the ladder played a role in the accident. That may be seen from the particulars he gave of the incident.

[61]

[28] The plaintiff's own version of the 20 October 1997 incident in the form completed by him on 28 October 1997 is the least helpful of the descriptions in the four WorkCover forms in the emphasis it places on the drawbar. It records "stepped down on draw bar and lost my footing". However, two days earlier the plaintiff had signed a form in respect of the same incident which, like his initial instructions to Mr Holmes, recorded that the incident occurred before a footing had been obtained on the drawbar.

[62]

[29] It is perhaps odd that the medical records contain no reference to the ladder but the focus of attention of the medical practitioners was not the cause of the accident so much as the force or forces exerted on the plaintiff's spine when he hit the ground. Relevant to their consideration was the distance of the fall and the height and nature of the jump associated with it. Part of the explanation is also likely to be found in the fact that the plaintiff, according to Mr Holmes, was economical in his provision of detail. I accept the validity of that assessment.

[63]

[30] Although I formed a favourable impression of the veracity and general credibility of the plaintiff, I am not satisfied that he now has a detailed recollection of the circumstances of the accident. His recollection provided to Mr Holmes on 14 May 2001 was no doubt better than it is now, but even that account is likely to have involved a deal of reconstruction. It is possible though to make some findings about the way in which the accidents happened.

[64]

[31] The obvious method of dismounting from the top of the bin, and the one which the plaintiff used on the occasions in question was to take hold of a handle welded to the lid of the bin set back 140 millimetres from the side of the bin. Then facing the handle and, in a crouched or semi-crouched position with one foot on the lid or the top edge of the bin, he felt with the other foot for a rung of the ladder. Once one foot was on a rung, the other foot was moved to a rung preparatory to the placement of a foot on the drawbar.

[65]

[32] As the plaintiff was descending on 2 September 1997 from the top of the lid of the waste bin by means of the ladder, he had one foot on a rung of the ladder whilst attempting to obtain a foothold on part of the drawbar. He was wearing gumboots, the soles of which had wet mud on them and were slippery. The foot on the rung of the ladder had a tenuous grip by virtue, principally, of the limited distance between the rung and the wall of the bin but also because of the dampness of the rung, the moisture and mud on the boot and the rung's smooth surface. As the plaintiff attempted to position a foot on part of the drawbar, that foot slipped. The plaintiff was unable to maintain his other foothold on the rung of the ladder and elected to jump. Alternatively, as the plaintiff now thinks was the case, his foot slipped on the rung of the ladder as he was attempting to place his other foot on the drawbar and he jumped clear of the drawbar.

[66]

[33] I find that the accident on 20 October 1997 happened in the same manner, save that on that occasion the plaintiff was wearing his steel capped work boots. He said that he must have stepped on a horizontal steel latch which runs horizontally across part of the ladder but I do not find that established on the balance of probabilities. That version of the accident was not given to Mr Holmes in March 1998 or in May 2001.

[67]

Expert evidence on deficiencies in the means of access to and egress from the top of the toxic waste bins

[68]

[34] A report by Mr Kenneth King a mechanical engineer with expertise in the area of ergonomics and industrial safety was tendered. In the report, Mr King expressed opinions that the "access system ladder" was deficient in that -

[69]

(a) toe clearance behind the rungs of the ladder was inadequate;

[70]

(b) there were insufficient and inappropriately placed grab rails;

[71]

(c) the ladder failed to extend towards the ground to provide an adequate mounting and dismounting position;

[72]

(d) having regard to inadequate toe room on the rungs, provision of better gripping was desirable but that could not completely compensate for the toe room deficiency;

[73]

(e) the ladder was incorrectly positioned for safe dismounting, being in line with the dog trailer wheel.

[74]

[35] In oral evidence, Mr King explained his written comment that the ladder failed "to integrate with proper access" as meaning that the draw bar was not designed to form part of an integrated system which would allow a person to transfer safely from the ladder to the drawbar allowing the user to move his or her line of body weight, initially in line with the ladder, across to and over the drawbar and then down to the ground. In his view, it would have been appropriate for there to be a folding or sliding section on the ladder which would drop down to closer to ground level. He was also of the view that the drawbar should have a platform which provided a more secure foothold.

[75]

[36] The defendant called no expert evidence of its own in this regard. That is probably because most of the complaints made by Mr King appeared to be plainly justified. Indeed, many of them were matters which were likely to have occurred to a layperson making a similar assessment.

[76]

[37] Because of the plaintiff's allegations in the statement of claim that he slipped on the ladder and failed to gain a foothold on the drawbar, Mr King's evidence was largely directed to deficiencies in the ladder and there was very little focus on the construction of the drawbar.

[77]

[38] The means of descent from the lid of the bins were inadequate on any view of the matter. The rungs of the ladder were too close to the side of the bin to provide anything like an adequate foothold for persons wearing gumboots or work boots. It was to be expected that persons such as the plaintiff would wear such boots. Moreover, it was to be expected that there would be a requirement to access the lids of the bins in wet or damp conditions. The ladder was not directly above the part of the drawbar on which the person descending would need to obtain a foothold. He would have his back to the drawbar, attempting to obtain a foothold on it with his left foot whilst maintaining the right foot on the ladder. Whilst that process was in train there was a substantial risk that the tenuous toehold on the ladder would be lost and/or that such person would slip on or from the drawbar. The risks inherent in transferring from the ladder to the drawbar and then to the ground could have been reduced, to a degree, by the placement of appropriate handgrips but there were none at the side of the ladder. Also, such risks could have been reduced slightly by having a surface on the rungs which provided a better grip.

[78]

[39] I find therefore that the defendant was in breach of its common law duty of care to the plaintiff and further that it breached its statutory duty under s 28(1) of the Workplace Health and Safety Act 1995 in failing to ensure the workplace health and safety of the plaintiff.

[79]

Section 312 of the WorkCover Queensland Act 1996

[80]

[40] The defendant relied on s 312(1)(a), (e) and (f) of the above Act, alleging the plaintiff had not proved the matters the subject of those paragraphs. Section 312(1), in the form it was in at relevant times, relevantly provides -

[81]

"In deciding whether a claimant is entitled to recover damages not reduced on account of contributory negligence, or at all, all courts must have regard to whether the claimant has proved such of the following matters as are relevant to the claim -

[82]

(a) that the employer had made no genuine and reasonable attempt to put in place an appropriate system of work to guard the worker against injury arising out of events that were reasonably readily foreseeable;

[83]

(e) that the worker did everything reasonably possible to avoid sustaining the injury;

[84]

(f) that the event giving rise to the worker's injury was not solely as a result of inattention, momentary or otherwise, on the worker's part ...".

[85]

[41] There was evidence that the defendant had in place a system of regular meetings at which representatives of management and employees discussed a range of matters including work practices and safety. That practice, whilst commendable, was no substitute for the defendant itself making an informed assessment of the risks inherent in the use of the toxic waste bins. I find that the plaintiff proved the matters set out in paragraph (a). I find also that the plaintiff did everything reasonably possible to avoid sustaining the injury. It does not seem to me that, having regard to "work place exigencies" the plaintiff was required to dry off the subject surfaces as well as his boots before undertaking the subject work. I am also satisfied that the matters in paragraph (f) are established by inferences to be drawn from the facts. The plaintiff is a solid dependable type of person. There is no reason to suppose that, at the times in question, he would not have gone about the performance of his duties in a careful methodical way. He was conscious of the limitations of the ladder system and I have no reason to suppose that he did not approach its use with care.

[86]

[42] The plaintiff was born on 13 February 1949. He left school after completing year 10 in which he passed all subjects. He then worked on his parents' farm for about three years, after which he ran a transport business in partnership with another person. That business was discontinued after several years. Before commencing employment with the defendant in November 1993, the plaintiff worked as an employed driver or as a driver subcontractor to various transport companies. He acquired and ran fruit shops on three separate occasions and was employed in another. He also worked as a labourer for Boral Steel whilst continuing, out of hours, to carry fruit and vegetables for another person or entity.

[87]

[43] After the second accident, the plaintiff was put on light duties for some time. He understood, from the medical advice he had received, that it was undesirable for him to continue doing the type of work he was doing. He then resigned from his employment with the defendant and took a real estate agent's course. At the conclusion of the course he obtained employment as a real estate agent, but found that he was not suited to the work. He then worked as a courier driver for a truck washing company two nights a week and on weekends. He found driving the trucks within his capabilities. That work finished when his employer ceased its business. His next job was cleaning out a Woolworths butcher shop which involved hosing out and cleaning down bench tops for 15 hours a week.

[88]

[44] The plaintiff left his job at Woolworths to go to Master Cut Meats as a delivery driver. His work there involved loading some 40 boxes of meat weighing, normally, between 10 and 18 kgs from a pallet into a one tonne van and delivering the boxes to some 20 customers every day. Initially he was working between five and six hours a day on a run to the Gold Coast, but the work then increased to 40 to 50 hours a week. Although he experienced little difficulty in managing the shorter hours, he found that his pain level increased with the longer hours. His employment with that company was terminated in December 2001. Were it not for the involuntary termination, I consider it probable that he would have continued in the job for some years. Since that time he has been looking for work as a van driver, hopefully as courier. As a self-employed driver, he is hopeful that he would make a gross income of between $700 and $1000 a week working a five day 40 hour week.

[89]

[45] Professor McPhee expressed the opinion in his February 1999 report that the injury in September 1997 reported to him by the plaintiff had aggravated his "lumbar spondylosis" resulting in "permanent partial disability" which he assessed at "5% of the individual as a whole". He concluded that there was no significant impairment of lumbar spine motion or any neurological deficit and further reported -

[90]

"I think it reasonable to accept that not all of this assessed impairment can be attributed to the injury in September 1997 since there is historical evidence of previous episodes of back pain."

[91]

[46] In his oral evidence, he attributed 1% of the disability to the plaintiff's pre-existing condition. He expressed the opinion that the probability was that "there are many factors that would preclude this man working beyond five years in the job he was in". He instanced the plaintiff's age, the type of manual work that he did, his degenerative back condition and the litigation experience. In his opinion, the plaintiff was capable of doing the lighter work involved in courier driving, was capable of coping with the usual household chores and would not have difficulty driving a motor vehicle, weeding or mowing a lawn.

[92]

[47] Dr White, orthopaedic surgeon, wrote a report dated 15 April 1998 addressed to the plaintiff's former solicitors, after seeing the plaintiff a few days earlier. He gave a subsequent report dated 7 May 1998. In his first report, Dr White expressed the opinion that the plaintiff had suffered a "significant disc protrusion at L4/5 consistent with the history given" and that the injury had been superimposed on a degree of pre-existing degenerative change. He said -

[93]

"I would regard him as permanently unfit for work involving heavy physical labour, prolonged standing, prolonged sitting, lifting or repetitive bending.

[94]

He will, at best, improve to the point where he could undertake light semi-sedentary duties having some degree of freedom to sit, stand or move around as dictated by any discomfort that he may be feeling from time to time."

[95]

[48] In his second report, made after viewing the results of an MRI scan, he noted of the scan -

[96]

"This reported reduced signal of the lower four lumbar discs consisted with disc degeneration in addition to minor central bulging at L4/5 and L5/S1."

[97]

[49] Dr Tomlinson, neurosurgeon, in a report of 13 February 1999, addressed to the plaintiff's former solicitors, expressed the opinions that -

[98]

* The plaintiff sustained an injury to his lumbar spine on 2 September 1997.

[99]

* It was unlikely that the plaintiff would make "a spontaneous recovery" from the injury.

[100]

* The plaintiff should attempt to manage his symptoms with non-surgical therapy and an alteration of his lifestyle which would not include employment as a driver or carrying out manual labour.

[101]

* If the plaintiff had not sustained the injury he would have been able to continue working until age 65.

[102]

* The plaintiff has a 15% whole body permanent partial disability as a result of his lumbar spine injury.

[103]

He confirmed the latter opinion in a letter addressed to the plaintiff's solicitors on 20 October 2001.

[104]

[50] In his first report Dr Tomlinson observed that -

[105]

Following an acute lumbar disc injury, at two years post injury, 50% of people have recovered, 30% of people show some improvement, and 20% of people have recovered, 30% of people show some improvement, and 20% of people stay the same or deteriorate."

[106]

[51] In cross-examination, he expressed no surprise that the plaintiff's condition had stabilised or improved such that he was able to handle the work, earlier described, of delivery driver for a meat supplier.

[107]

[52] Dr Peter Boys, orthopaedic surgeon, in a report dated 23 February 2000, addressed to WorkCover Queensland, diagnosed the plaintiff as suffering from "symptomatic multi-level lumbar discal degeneration". He concluded that the condition was "stable and stationary" and that "a 2% impairment could be quantified ... reflecting the combined effect of the work related back strain sustained on 2 September 1997 and 20 October 1997." In the body of his report, he expressed the opinion that the CT scan done on 18 November 1997 "shows some degenerative bulging at L3/4 and L4/5" but "... no evidence of discal protrusion". Elsewhere in the report, he said -

[108]

"This man is able to perform routine household duties. He does, however, experience strain with stooping activity such as vacuum cleaning. He finds raking in his garden similarly uncomfortable. He states that his children are now doing the mowing but he is able to do this sort of activity with pain. ... Examination shows an obese man ... Mr Testa smokes 20 cigarettes per day ...".

[109]

[53] Dr Boys, in the course of his oral evidence, pointed to the CT scan of 18 November 1997 as showing "a long standing process of degeneration at a number of levels in the back".

[110]

[54] In cross-examination Dr Boys, when asked about the work the plaintiff was doing when delivering for Master Cut Meats, stated that such work was within the plaintiff's capabilities. He also confirmed that if the plaintiff had gone on working and suffered no particular insult to his back his condition nevertheless would have deteriorated to the extent that -

[111]

"... the pain would have been enough to do things like limit his ability to stand comfortably, sit for long periods, obviously bend and lift. ... this man would have had symptoms ... to a degree which would have impaired certain capacities of his domestic life and working life, in any event, within five years."

[112]

[55] He said he could not say positively that he would have had to have given up being a heavy vehicle driver but commented "that may well have been the case". He assessed the plaintiff as having a 2 percent whole of body impairment.

[113]

[56] Dr Nave, orthopaedic surgeon, in a report dated 30 January 1998, addressed to WorkCover Queensland expressed the opinions that -

[114]

1. X-rays on 28 October 1997 revealed minor degenerative change of the lumbar spine with no significant narrowing of disc spaces;

[115]

2. the CT scan on 18 November 1997 showed no significant abnormality at L2/L3 or L3/L4 but a generalised disc bulge at L4/L5;

[116]

3. the plaintiff's injury "could be regarded as an aggravation of pre-existing asymptomatic lower lumbar degenerative change";

[117]

4. the plaintiff's prognosis "should largely be that of the underlying degenerative change". In oral evidence he elaborated that in the future any persistent problems experienced by the plaintiff with his back would be due to the underlying degenerative change rather than the injury, or at least not stemming from the injury alone;

[118]

5. it is "a little early" to assess permanent partial impairment but if there was one stemming from the injury of 20 October 1997, it would not be expected to be more than two and a half percent loss of bodily function.

[119]

[57] Dr McCartney, a general practitioner who had practised for some time in the area of industrial health, gave a report to the plaintiff's solicitors dated 25 May 1998. In the report, he said -

[120]

"He was diagnosed at this practice with mechanical back pain which was most likely due to an aggravation of a pre-existing lumbar spondylosis. ...

[121]

I believe that, as with most cases of degenerative spine and vertebral disease, it is one of deterioration ... as time goes, his back will certainly not improve and may worsen."

[122]

[58] In his oral evidence, Dr McCartney said, in effect, that some persons with back degeneration to the extent of that exhibited by the plaintiff may be able to see their working life out without particular problems but that others with fewer observable degenerative changes may "have all sorts of problems and have three or four episodes of debilitating back pain". He also expressed the opinion that back pain of the nature of that suffered by the plaintiff is very common for persons in the type of employment he had whilst with the defendant and that up to 40% of workers in such employment will have suffered mechanical back pain within the last 12 months.

[123]

Conclusions to be drawn from the medical evidence

[124]

[59] At the time of the September 1997 accident, the plaintiff had a pre-existing back condition which was aggravated by the accident. It was further aggravated by the second accident on 20 October 1997. The injury resulting from the first accident appears to have been substantially more serious than that sustained in the second. I accept the evidence of Professor McPhee that, even in the absence of these accidents, it is probable that within a limited period the plaintiff would not have been able to continue doing heavy work of the nature of that involved in his employment with the defendant. Professor McPhee's opinion in this regard, in my view, receives a degree of support from the evidence of Drs Boys and Nave. The period of five years selected by Professor McPhee and Dr Boys is necessarily imprecise and grounded to a substantial degree in professional experience. I was favourably impressed by their evidence. I formed the view that in expressing his opinions, Dr Tomlinson placed reliance on an appreciation the plaintiff's physical capabilities which has been shown to be significantly wrong. It also seemed to me that Dr Tomlinson gave insufficient weight to the plaintiff's pre-existing degenerative condition. I accept Professor McPhee's assessment of the degree of permanent impairment.

[125]

[60] Having regard to what I perceive to be a relatively high threshold of pain on the part of the plaintiff, coupled with his desire to pursue an active working life, I conclude that the probabilities are that he would not have continued doing the type of work involved in his employment with the defendant after about seven years from the date of the first accident. By that time he would have been in his mid fifties. In reaching that conclusion, I have taken into account the risk that had the subject accidents not have happened the plaintiff may have suffered another injury or other injuries which accelerated the deterioration of his spine. Consequently, in assessing damages, I have made no further discount for such contingencies. The plaintiff struck me as a sensible and pragmatic person and one who, although having a tolerance of pain, would not put up with it indefinitely if it were possible for him to obtain alternative employment more suited to his physical condition, even if a decrease in income was involved. There was evidence to support that finding in the plaintiff's conduct following the two incidents in question.

[126]

[61] At relevant times, s 317 of the WorkCover Queensland Act provided -

[127]

"The Court may award damages for future economic loss or damages for diminution of future earning capacity only if the claimant satisfied the Court that there is at least a 51 per cent likelihood that the claimant will establish the future economic loss or diminution of future earning capacity."

[128]

[62] I am not so satisfied that there is a 51 percent likelihood that the plaintiff would have been able to continue to engage in the type of employment he was in at the time of the subject accidents after the expiration of seven years from 2 September 1997.

[129]

[63] I calculate the plaintiff's damages as follows -

[130]

Past - $110,973.00 less approximately $9,000 travel expenses

[131]

Interest on $102,000 less net weekly compensation ($15,668.00-$4,198.00) $11,470.00 less $1,718.84 Social Security payments x 5% x 4.66 years

[132]

Future loss (to be calculated by reference to the same net loss of income used in the calculation of past economic loss)

[133]

[64] The defendant argued that all of the plaintiff's expenses of travelling to and from work should be deducted as such expenses ceased when the plaintiff ceased employment with the defendant. There is evidence that the plaintiff did travel to and from work after ceasing employment with the defendant. Furthermore, it was necessary for him to maintain a motor vehicle for work purposes and the defendant's submission ignores that. I have made a "jury assessment" of the sum which ought be deducted to accommodate reduction in use.

[134]

[65] The defendant contended that an appropriate figure for pain suffering and loss of amenities was $20,000. It was argued on behalf of the plaintiff that, by reference in particular to Martin v Mackay City Council[1] and Vaughan v Du Zebra Pty Ltd [2] and Riley v Commonwealth of Australia[3] that an appropriate allowance in this regard was $45,000. The injuries, or at least the impact of the injuries on the plaintiffs, in those cases were in my view somewhat greater than those now under consideration and for that reason I have not found them of much assistance. The figure urged on behalf of the defendant though appears to me to be inadequate, even taking into account my other findings concerning the acceleration of the plaintiff's physical condition. Accordingly, I have assessed this head of damage at $30,000.

[135]

[66] The plaintiff's damages, including expenses on pharmaceuticals ($1,496), was calculated on his behalf at $7,160.83. The defendant's complaint, which in my view is justified, is that there was very little evidence to support the amount claimed on account of pharmaceuticals. Mr O'Sullivan argued that an allowance of about $500 for pharmaceuticals was reasonable. It seemed to me that, on the balance of probabilities, a claim to the order of half that asserted was sustainable and, accordingly, I have deducted $750 from the amount of special damages claimed to give a balance of $6,400 in round terms.

[136]

[67] The plaintiff claimed $4,748 as the present value of expenses to be incurred in the future use of products such as Voltaren gel and Panadeine. Having regard to my findings concerning acceleration of the plaintiff's physical condition, that claim cannot be justified. Based on the pharmaceuticals component of the special damages, I allow the sum of $150.

[137]

[68] There will be judgment for the plaintiff in the action. I will invite the parties to agree a damages calculation in accordance with the above findings and I will entertain submission on costs.

[138]

[1] [2001] QSC 433.

[139]

[3] [2002] QSC 24.

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (139 paragraphs)

Parties