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[2006] NSWDC 199
District Court of NSW
2006-10-26
Original judgment source is linked above.
Introduction
It was alleged that the rolls of material were tipped off the stillage onto Mr White by a forklift located at the rear of the semi-trailer, operated by Mr Armstrong Sinni, a fellow employee, when suddenly and without warning, he engaged the stillage with the tynes of the forklift, raising the outer side of the stillage.
Mr White alleged that his injuries were caused by the negligence of Mr Sinni, for which his employer, McPhee Transport, is liable (either vicariously as employer, or as statutory principal and owner of the forklift); and by the direct negligence of the employer, in failing to provide safe equipment, a safe place, and a safe system of work. The employer denied liability and alleged contributory negligence by Mr White.
The issues for determination as to liability are: · Was Mr Sinni negligent? · Was the employer, McPhee Transport, negligent? · Was Mr White guilty of contributory negligence, and if so, to what extent?
The employer also alleged that Mr White's injuries were not a result of and caused during the driving of its forklift, an unregistered motor vehicle, as required by the Motor Accidents Compensation Act 1999, so that any award of damages is not governed by that Act, but by the Workers Compensation Act 1987: s 122(1) of the Motor Accidents Compensation Act 1999.
In the event that the award of damages is governed by the Workers Compensation Act 1987, and not the Motor Accidents Compensation Act 1999, the damages are limited to past economic loss due to loss of earnings and future economic loss due to the deprivation or impairment of earning capacity, and there can be no recovery in respect of out-of-pocket expenses or gratuitous domestic care: s 151G of the Workers Compensation Act 1987.
No damages may be awarded for non-economic loss, under either statutory regime: in the case of the Workers Compensation Act 1987, because they are not recoverable at all: s 151G; and in the case of the Motor Accidents Compensation Act 1999, because the relevant threshold was not reached: s 131.
The issues for determination as to any damages are, therefore: · The extent of any earnings lost by Mr White. · The extent of any loss of future earning capacity suffered. · The extent of any loss of occupational superannuation. · The amount of the Fox v Wood component. · Whether the injuries of Mr White were caused as a result of and during the driving of the forklift. · If so, the extent of (a) Mr White's past and future out of-pocket-expenses, and (b) any need for past care and future care.
The accident on 6 August 2002 9. At the time of his accident, Mr White was the supervisor at the loading dock of the McPhee Transport depot at Homebush Bay, a position he had held for some 5 years. On the evening in question the loading dock was busy and crowded with various semi-trailers that were being loaded with freight for transport overnight to several destinations: see Exhibit C.
Mr White then discussed the situation with Mr Sinni who said, "Yeah, no worries, we'll have to get it off, boss": (1st day T24.51-53).
The forklift that Mr Sinni was using was a motorised Komatsu diesel vehicle, with four wheels and a steering wheel. It had dual operations involving a different set of controls: one for driving and transporting and the other for lifting or lowering the mast and tynes: (1st day T45.3-39). The tynes were some 4 feet long and were attached to the mast, which is moved up or down to lift or lower loads.
The loading of the stillage had required the tynes of the forklift to be inserted into the tyne stirrups under the stillage, then raised, using the mast of the forklift, to the height of the floor of the semi-trailer. The forklift was then driven to the rear of the semi-trailer where it stopped, and the stillage lowered onto the floor, using the forklift mast. The forklift was reversed to remove the tynes from the stirrups and the tynes were lowered a few inches. Next, the forklift was driven forward till the ends of the tynes rested against the base of the stillage. It then drove further forward and, using the tynes, pushed the stillage further into the rear of the semi-trailer, a distance of about 4 feet: (1st day T20.27). The forklift then reversed away.
The back of the semi-trailer was just over 8 feet wide and stillage had been placed into it lengthwise, a "snug fit". Mr Sinni was unable to unload the stillage from that position using the tynes as it had been pushed back some 4 feet beyond the length of the tynes: (1st day T21.55). The two men discussed the situation and it was decided to lever the stillage back towards the rear of the semi-trailer far enough for the tynes of the forklift to get some purchase, maybe a foot, lift the stillage a few inches, and then pull it back: (2nd day T29.13-39). Mr White considered this the safest and quickest option: (2nd day T26.14-27).
Mr White then climbed up into the rear of the semi-trailer to assess the situation: (1st day T21.58). There was a space of about 3½ feet behind the stillage between the other freight: (1st day T23.18). He asked Mr Sinni to pass in a pogo bar. Mr Sinni alighted from the forklift to get a pogo bar which he then passed through to Mr White. A pogo bar is an 8-foot long rod of steel, akin to a crow bar.
Mr White then proceeded to inch the stillage back using the pogo bar as a lever, standing in the space between the loaded stillage and the other freight. He worked at both ends of the stillage, moving from one end to the other as he inched it back.
In the course of this process he asked Mr Sinni several times, "Can you reach it yet?" to which Mr Sinni replied, on each occasion, "No", whereupon he continued the inching process: (1st day T23.37-42). He had managed to move it back about a foot: (2nd day T 26.14-27) and had moved to the left side, which he was levering when he noticed it started getting dark. He described the subsequent events thus:
" I noticed it started getting dark, like dark inside the trailer, which made me look up and I saw that the other side of the trailer - or that the bin looked higher, closer to the roof than what it should have been, so it was actually blocking the light that was coming off the dock…It kept on going up, I screamed out. At that time it just sort of slid out of - quite quickly and I ended up having to sort of lift my arms up to sort of block the rolls that were hitting - some of them hitting me in the face, the ones on the top layer of the bin, and I basically took the weight of these rolls falling on me…in a spearing fashion." (1st day T23.42ff)
What in fact happened is that the outside of the stillage was raised suddenly and without warning causing the heavy rolls of material to slide off, crushing the plaintiff. The only available inference is that this occurred by reason of Mr Sinni having engaged the stillage with the tynes of the forklift and raising them suddenly, thus lifting the stillage and tipping off the rolls.
Was Mr Sinni negligent? 22. The defendant employer submitted there was no evidence of negligence on the part of Mr Sinni. The last time Mr White saw him was when he passed the pogo stick in. There is no evidence of what then occurred, as Mr Sinni was not called to give evidence. Further, Mr White was in control of the operation. He assessed the situation and selected the solution. What in fact occurred was precisely what Mr White anticipated, that Mr Sinni would try and engage the stillage and lift it. The spillage of rolls was consistent with the stillage having been lifted 'mere inches', given the frictionless nature of the rolls. Mr White was the sole author of his own misfortune. Mr Sinni was only doing what he had been told to do.
Was McPhee Transport negligent? 26. Strictly, I do not need to decide whether the employer was directly negligent. However, against the event that I am wrong in finding Mr Sinni was negligent, I provide the following further reasons.
Counsel for the Mr White submitted that the equipment was unsafe, the area was unsafe, the system of work was unsafe, and that a number of practicable alternatives were available which would have obviated the injuries sustained by Mr White.
Mr White was responsible for making the decision as to the system to be adopted to resolve the particular problem that arose at the defendant's dock on the day of his accident. He was the senior person present, representing the employer. He assessed the situation and decided what the quickest and safest way to proceed was.
Accordingly, I could not be satisfied that the employer was negligent in failing to provide some other safer system of work for the task in question. In this regard I reject the proposition that tyne slippers or tyne extensions should have been used. I also find that it would not have been practicable to use chains to drag the stillage to the rear of the semi-trailer. Nor was there room for the semi-trailer to be moved to facilitate either of these alternatives. I am also satisfied that a case has not been made out that taut liners should have been utilised, or that the whole dock area required to be redesigned: Smith v BHP 97 CLR 337 at 342; O'Connor v Commissioner for Government Transport 100 CLR 225. The solution chosen by Mr White was appropriate and adequate for the particular task and if it had been safely carried out, there was no risk of injury: Foufoulas v F G Strang Pty Ltd 123 CLR 168 at 172.
I accept that it may have been practicable, and reasonable, for the employer to have provided stillages fitted with longer tyne channels, rather than the stillage involved in the accident, which was fitted with the short tyne stirrups. The provision of stillages with such tyne channels traversing their base would have been safer, but there is no evidence to establish that tyne channels would have prevented the accident that occurred. It is simply not possible to conclude how far Mr Sinni inserted the tynes into the stillage stirrups, such that if they were channels there might have been sufficient purchase available to keep the stillage level as it was lifted.
It has not been established that the employer was negligent, either in the system that was used, or for any failure to provide a safe place of work, or for not providing safe equipment.
I find that the employer did not fail to provide a safe system of work, a safe place of work or safe equipment, and that it was not guilty of direct negligence.
Was Mr White guilty of contributory negligence? 33. The employer contended that Mr White was guilty of contributory negligence. As the senior person present he was responsible for ensuring that the operation was carried out without risk. He should have directed Mr Sinni more clearly and told him what to do. He should have expressly directed him not to lift until he was told it was safe to do so.
Were the injuries a result of and caused during the driving of a motor vehicle? 36. It was Mr White's case that his injuries were caused as a result of and during the driving of a motor vehicle so that the operation of the Motor Accidents Compensation Act 1999 is enlivened: s 3 definition of 'injury'.
The forklift, an unregistered motor vehicle, was driven to the rear of the semi-trailer, with the engine running, and the load was lifted. It was contended that the inference is available that in the act of lifting, the forklift was simultaneously reversed, and was therefore being driven at the relevant time. Alternatively, even if the forklift was stationary at the relevant moment, this was part of a continuous act of driving that was uninterrupted by such a temporary pause in the motion of the vehicle's wheels, as the mast was operated. The proper approach to an analysis of what occurred is to 'characterise' the total activity having regard to what occurred immediately before and immediately after the temporary cessation of movement of the forklift. The appropriate characterisation of the entire activity was one of driving the forklift.
There is no evidence, however, that the forklift was being reversed, or advanced, at the same moment as the stillage was lifted and I am unable to infer that was the case. Indeed it seems inherently unlikely. This was a fact the plaintiff might have sought to prove by calling Mr Sinni, but did not. The failure to do so indicates that his evidence on this question would not have assisted. I find, therefore, that the forklift was stationary at the precise moment of lifting the stillage, which was the act that caused the injuries to Mr White.
More importantly, it is not sufficient that the injury occurred during the act of driving a motor vehicle. It must also have been a result of the act of driving.
In this case the injuries were not a result of the driving of the forklift as a motor vehicle, rather they were the result of operating the forklift as a lifting device.
I find, therefore, that Mr White's injuries were not a result of and caused during the driving of a motor vehicle, as required by the relevant provisions of the Motor Accidents Compensation Act 1999.
Damages 42. Mr White was born on 13 August 1968 and is now 38. He is married, with one daughter. His wife did not give evidence. He completed the Higher School Certificate in 1986. Following a year at university he worked in various jobs until he started with the defendant in 1993. He started as a casual dockhand and worked his way up over the years to the senior supervisory position he held when injured.
He was involved in a motor vehicle accident in 1987 but recovered from the injuries then received, and at the time of his accident on 6 August 2002 he was fit and well. In particular he had no back problems and was active socially and in sports, particularly in the martial arts.
Following his accident on 6 August 2002, he felt no immediate effects of a significant nature, and drove home. The next morning, however, he ached all over and was initially unable to get out of bed. He consulted a general practitioner, Dr Sivarajah who prescribed analgesics and ordered x-rays, which he described as 'not helpful'. He sent Mr White back to work on light duties a few days later.
Mr White continued to experience increasing back pain radiating into his left buttock and leg and he was then referred to an orthopaedic surgeon, Dr Rosenberg, who saw him on 23 September 2002. He ordered a CT scan. This revealed a large central lumbosacral protrusion to the left. The L4-5 level of the spine was also prominent. Conservative treatment was determined to be the best treatment for the time being. However, by December Dr Rosenberg was sufficiently concerned to order an MRI scan, which confirmed the disc prolapse at L5/S1 affecting the S1 nerve root, and a disc bulge at L4/5. Although Mr White was reluctant to undergo surgery, Dr Rosenberg considered he was 'delaying the inevitable'.
Accordingly, Mr White came under the care of Dr Pell, a Neurosurgeon, who on 7 March 2003 performed surgery on Mr White's back consisting of a lumbar sacral discectomy without fusion. A large fragment of disc was removed. Following this operation the left leg pain improved, but his back pain persisted. Dr Pell continued to review him post-operatively, and ordered further tests including another MRI in July 2003. Further surgery was not indicated, and he therefore recommended bilateral L5/S1 facet joint injections. These, however, provided no relief.
Because Mr White continued to experience back pain, sometimes radiating through the buttock and left calf, as well as right foot pain, Dr Pell turned in September 2003 to lumbar epidural injections; but these only provided minimal relief, of the right leg pain. Apparently at a loss what to do next, Dr Pell referred Mr White to Dr Faux, a Rehabilitation Specialist at St Vincent's Hospital. This resulted in a lumbar myelogram and a post myelogram CT scan in December 2003. But nothing was revealed from these tests that indicated further surgery, and Dr Pell then expressed the view that Mr White had a chronic pain syndrome. He and Dr Faux agreed that the only active treatment was cortisone injections to see if that eased the pain, but otherwise pain management and counselling were the only remaining options. Dr Pell last saw him on 10 February 2004.
Since Dr Pell bowed out, Mr White has been seen by numerous other doctors, for assessment.
Dr M Ryan, a Clinical Associate Professor of Surgery, Orthopaedics & Spinal Surgery, saw him on 28 April 2004, at the request of Ebsworth and Ebsworth, for workers compensation purposes. He concluded that Mr White had a permanent impairment attributable to the lumbar disc protrusion with signs and symptoms of radiculopathy, resulting in continuing low back and leg pain and restriction to daily activities. Specifically, he observed Mr White to walk with a mild, left antalgic gait, and that all his movements were slow and measured. He was limited in many postures of physical activity, sitting and standing, walking and travelling. He was uncomfortable in bed, and was required to frequently change posture.
Dr W Stening, a Consultant Neurosurgeon, saw Mr White on 23 May 2005. His diagnosis was of an extruded fragment of nucleus pulposis on the left side at the L5/S1 level which produced compression of the left S1 nerve root, only partially relieved by operation, with residual radicular symptoms and loss of sensation in the S1 distribution. He had muscle guarding and spasm in the lumbar spine. The left ankle jerk was absent. Dr Stening raised the possibility of a lumbar fusion.
Dr Matalani, a Consultant Occupational Physician, examined him on 14 July 2005. He diagnosed a lumbosacral disc lesion with radiculopathy, with persisting symptoms despite the laminectomy. Treatment indicated was conservative management with intermittent physiotherapy, counselling and intensive rehabilitation.
Dr R Wallace, an Orthopaedic Surgeon, saw him on 2 June 2005. In his opinion Mr White suffered a significant left-sided lumbosacral disc protrusion with back and lower limb symptoms that will persist despite conservative treatment. Short-term symptomatic relief was possible from physiotherapy, hydrotherapy, massage and medication. His disability interfered significantly with his daily activities, his sleep, and the performance of normal household tasks. He was unfit to be gainfully employed in any capacity.
Dr R Smith, a Consultant Surgeon, saw him for the defendant's solicitors on 2 September 2005. In his conclusion he stated that Mr White's condition was 'somewhat uncertain' and 'more information is required'. There are no further reports from this doctor. Indeed, his is the only report tendered by the defendant employer, apart from that of the MAS Medical Assessor, Dr D Crocker.
Dr M Stuckey, a Medico-Legal Orthopaedic Surgeon, saw Mr White on 14 March 2006. In his opinion the history and findings were consistent with a severe back injury involving an acute herniation or protrusion of the lumbo-sacral disc on the left side. Despite appropriate surgical and other treatments he has remained significantly disabled with persisting pain affecting his back, left leg and to a lesser extent his right leg. There are no further specific treatment measures likely to result in significant improvement. He is unfit to return to any work situation requiring strenuous exertion or that requires prolonged periods of sitting, standing, walking or travelling. His pain is severe. Only regular exercise, swimming and medications will relieve the situation.
Finally, the MAS Medical Assessor, Dr D Crocker, a specialist in Occupational Medicine, saw him on 26 June 2006. It is to be noted that as part of his assessment, Dr Crocker reviewed much of the documentary medical evidence, including the reports referred to above. He concluded that Mr White has chronic pain referable to the low back with accompanying features to the lower limbs, in particular the left side, namely somatic referred pain and residual features of radiculopathy. The injury on 6 August 2002 has been predominantly the basis for his medical condition, which has now reached maximal medical improvement, and as such has stabilised.
On the basis of this medical evidence I readily conclude that Mr White's medical condition was caused by the accident on 6 August 2002.
The preponderance of medical opinion is to the effect that Mr White is and will remain significantly impaired and disabled by reason of his condition, and that his capacity for meaningful gainful employment is severely limited.
Past economic loss 58. Following the accident, before his operation on 7 March 2003, Mr White did work from time to time, but on selected light duties. He has not, however, worked since that operation. Significant attempts to rehabilitate him have been unsuccessful. The employer has been critical of his efforts in this regard, suggesting a lack of cooperation and exaggeration of his complaints.
I formed the view that Mr White could and should have made a greater effort to respond to the attempts to rehabilitate him, and been more cooperative. Nevertheless, at the end of the day, the probability is that such attempts were inevitably doomed to fail, having regard to his medical condition and its consequences.
I am satisfied, at least as to the past, that Mr White has been unable to work. It follows that he is to be compensated for lost earnings to date.
The starting point for the calculation of past wage loss is the determination of his net average weekly earnings as at the time of the accident. There is a dispute as to the correct figure. It is contended, for Mr White, that his weekly earnings were $734.38. However, this calculation was made having regard to a short period prior to the accident. In my view it is appropriate to calculate those earnings having regard to the 12 months preceding the accident, which produces a figure of $706.01 per week.
The starting figure having been established, it was agreed that his lost wages are to be calculated at that rate for 21 weeks, to the end of 2002. That produces a figure of $14,826.21.
From January 2003, his nett average weekly earnings would have increased to $755.75. There were, however, no increases in 2004 (Exhibit O) and no evidence of any increases after that. It was also submitted that but for his accident, Mr White would have been promoted to a more senior position carrying a higher wage. There was evidence, for example, that he had been told he was being considered for promotion. On the other hand there was also evidence that he had not applied for promotion when particular positions became available. Other more junior men had in fact been promoted over him into more senior positions. In the absence of any corroboration I am not satisfied that Mr White would have been further promoted.
It is agreed that the balance of the period for calculating past economic loss was a further 198.57 weeks. That produces a figure of $150,069.27.
Total wages lost were, therefore, in an amount of $164,895.49. To this must be added lost occupational superannuation at 9% ($14,840.59) and the Fox v Wood component ($8,826.34), giving a sum of $188,562.42 for past economic loss.
Loss of future earning capacity 66. It is claimed on behalf of Mr White that, effectively, he has no capacity for any remunerative work. The employer says he has a significant residual earning capacity, albeit in some restricted capacity.
Unrecoverable damages 74. I turn to make some findings in respect of other heads of damage claimed, which I have held are unrecoverable, against the event that I am wrong in determining that the damages are not to be assessed under the Motor Accidents Compensation Act 1999. These include out-of-pocket expenses, past and future, and any need for domestic care, past and future.
Past out-of-pocket expenses were agreed at $49,527.43.
A claim was made for future out-of-pocket expenses in an amount of $44,958.00. This was based on allowances for the cost of GP consultations, medication, car washing and swimming, plus a cushion of $15,000.00 for other potential needs, including future scans, specialist consultations, physiotherapy and hydrotherapy.
Having regard to all the evidence, particularly the medical evidence, Mr White's past use of medication, and the need for future exercising in the form of physiotherapy and swimming, I am satisfied that this claim is reasonable. I therefore find future out-of-pocket expenses in an amount of $44,958.00.
I make no award of damages for past or future out-of-pocket expenses because of my finding that such damages are not to be awarded in respect of claims for work injury damages under the Workers Compensation Act 1987.
I turn to the claim for domestic care. The evidence led to support this claim was in my view unsatisfactory. The medical evidence does not support the entirety of the claim. Nor was the claim corroborated, Mr White's wife not having been called to give evidence.
It was clear from the evidence that Mr White did perform various household duties prior to his accident, some of which he has subsequently been incapable of doing. Some of this activity was simply part of the give and take of marriage. Furthermore, a significant part of it was generated not by need, but by reason of some incapacity on the part of his wife. As I said, the evidence on this question was imprecise, and not clarified by any evidence from her. It was also the case, in my view, that Mr White exaggerated his claim: in respect of the need and the time involved, and in respect of the extent of his inability to perform relatively simple domestic tasks after the accident. I refer in this regard to his evidence as to such things as his inability to cook, to lift even a jar of sugar out of the back of the car, or wash the dishes.
It is also to be noted that Mr White has moved from a house with a garden, and lawns, into a unit, with the result that the need for cleaning is somewhat less. He also gave evidence that none of these needs are constant because his pain fluctuates. He has good days and bad days and on good days he is able to do most of these tasks.
I have reached the view that Mr White could try a little harder. This lack of effort at home is mirrored in his lack of cooperation during the attempts at rehabilitation, during which there were occasions when he simply didn't bother. The result was that if he didn't even try, it is not clear what he can and can't do.
I am not satisfied that any need for domestic care, in respect of which services have or will be provided by other persons, exceeds six hours a week. The threshold for any award of compensation has not, therefore, been satisfied: s 128(3) of the Motor Accidents Compensation Act 1999.
Accordingly, I would not have awarded damages to Mr White under this head of damages in any event.
Summary 85. Mr Sinni was negligent. The defendant is therefore liable to Mr White for modified damages in respect of his injuries and their consequences.
Disposition 90. For these reasons I enter a verdict for the plaintiff for $662,090.37. Judgment accordingly.
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
White
McPhee Transport Pty Ltd
CITATION: White v McPhee Transport Pty Ltd [2006] NSWDC 199