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[2008] QSC 171
General information, not legal advice.
Supreme Court of Queensland
2008-08-21
McMeekin J
Original judgment source is linked above.
[1] McMEEKIN J: In this action Mr Wilkinson seeks damages for personal injuries suffered when he slipped at the defendant's fuel terminal on 18 November 2004. Both liability and quantum are in issue.
[2] At the relevant time the plaintiff was employed as a fuel tanker driver by Latters Transport. He was required to attend at the defendant's fuel terminal in the course of his employment in order to fill two trailers with distillate fuel. The time was about 4.00 am.
[3] It was necessary for the plaintiff to enter a part of the fuel terminal called the bay loader. That required him to step up from a concrete apron onto the entry to the bay loader. The height of the riser was not proved but appears from the photographs to be about 75 centimetres.[1]
On the edge of the step was a metal strip. The plaintiff estimated the width of that strip at 75 millimetres.[2] Unless one made an effort to avoid the strip it was located in the natural place to put one's foot on mounting the step.
Mr Wilkinson said that as he entered the bay loader he stepped up on to the step with his right foot, that his foot slipped out from under him going backwards and that he fell, hurting his right knee. He said that he placed his foot on the metal strip which he described as 'glassy, smooth steel'.[3]
(a) Whether the provisions of the Civil Liability Act 2003 ("CLA"), as amended, are applicable to this action;
(b) Whether ss 30(1)(a) and (c) of the Workplace Health & Safety Act 1995 provide the plaintiff with a private right of action;
(c) Whether the metal strip on the edge of the step into the bay loader of the fuel depot presented a risk of injury against which the defendant should have guarded;
(d) Whether the metal strip, assuming that it did represent a risk of injury, was in fact causative of the plaintiff's fall;
(e) Whether the plaintiff's continuing problems with his right knee were due to a degenerative condition that pre-dated the subject accident or due to the injury sustained in the subject accident;
(f) The prospects of the plaintiff obtaining work on a mine site as a fitter or plant operator.
Does the Civil Liability Act 2003 apply?
[7] The provisions of the CLA can have a considerable impact on the principles applicable to a proceeding subject to it. However the CLA does not apply to all actions for damages for personal injury. The exclusions are set out in s. 5. Section 5 was amended on 20 March 2007 by the Criminal Code and Civil Liability Amendment Act 2007. Counsel are agreed that:
(a) Consistently with the construction placed on s 5 by the Court of Appeal in Newberry v Suncorp Metway Insurance Ltd[4] if s 5 as it was immediately prior to the amendment applies then the CLA is not excluded and would apply to this litigation;
(b) Section 5 as it was after the amendment, if it applies, would result in this litigation being excluded from the operation of the CLA.
[8] The difficulty lies in the construction of the transitional provisions introduced by s. 9 of the amending Act and now contained in s 83 CLA. Those provisions are as follows:
'83. Personal injury to which the amended s 5 extends as a result of the amendment
(1) It is declared that s 5, to the extent it is amended by the amending Act, has effect to disapply this Act to a decision in relation to personal injury only if the personal injury, or any part of it, is or was caused on or after 6 November 2006.
(2) However, s 5, to the extent it is amended by the amending Act, does not have effect to disapply this Act to a decision in relation to personal injury if, before the date of assent of the amending Act -
(a) the parties have entered into an agreement to pay damages for the personal injury; or
(b) the trial in relation to the personal injury has started but final relief has not been granted by the Court; or
(c) the final relief in relation to the personal injury has been granted by a Court.
(3) Section 5, as in force before 6 November 2006 continues to apply in relation to a decision mentioned in subsection (2).'
[9] Prima facie, subsection (1) has the effect that s 5 in its pre-amendment form continues to apply to personal injuries suffered prior to 6 November 2006, as this one was. Mr Crow, for the plaintiff, however submitted that such a construction was inconsistent with subsections (2) and (3).
[10] I do not think that is right. Subsection (2) means that if prior to the date of assent (20 March 2007) the parties resolve the case by agreement, commence the trial or obtain final relief then s 5 in its pre-amendment form continues to apply, even though the injury may have been suffered prior to 6 November 2006. That is made abundantly clear by subsection (3).
[11] Mr Crow's primary submission centred on the word 'decision'. He pointed out that the provisions do not 'disapply this Act' to claims made in relation to personal injury but rather to decisions made in relation to personal injury. He submitted that the pre-amendment form of the exclusionary provisions applied only to those claims in which a decision had been made before the date of assent (20 March 2007) in respect of an injury suffered before 6 November 2006. For an injury suffered before 6 November 2006 where no decision on a claim had been made then the post amendment form of exclusion was relevant unless one of the three paragraphs of subsection (2) applied.
[12] In his submission the phrase 'a decision in relation to personal injury' should be taken to mean a decision in relation to a claim for an award of damages for personal injury by which that claim is determined (the Act by s 4(1) applying to 'any civil claim for damages for harm') presumably by obtaining final relief or by settlement.
[13] I agree that the use of the word 'decision' is an odd one. There is no definition of the word either within s 83 or in the definitions in the schedule. My attention was not drawn to any provision in the Act to which the term would seem to relate.
[14] However despite that oddity in my view there is a significant difficulty with this submission - if "decision" is to mean what Mr Crow submits it should, why did the legislature bother mentioning 6 November 2006 at all? If Mr Crow's submission is right then all claims for damages for injuries, suffered both before and after 6 November 2007, are subject to the extended exclusion introduced by the amending Act save those mentioned in subsection (2). On this submission subsection (1) has no work to do. The general principle, of course, is that some meaning and effect should be given to each provision.[5]
In my view this action, arising as it did out of an injury suffered prior to 6 November 2006, is to be determined on the basis that s 5, as in force prior to its amendment, continued to apply to it. That means, as the parties agreed, that the decision in Newberry requires that the exclusion provided by s 5 is not applicable and thus the provisions of the CLA do apply.
[16] Section 28(3) of the Workplace Health and Safety Act 1995 ('the 1995 Act") provides:
(3) An employer has an obligation to ensure other persons are not exposed to risks to their health and safety arising out of the conduct of the employer's business or undertaking.'
[17] The defendant concedes that it is an 'employer' within the meaning of that section.
[18] Section 30 of the 1995 Act provides, so far as is material, as follows:
'(1) A person in control of a workplace has the following obligations -
(a) to ensure the risk of injury or illness from a workplace is minimised for persons coming onto the workplace to work;
(c) to ensure there is appropriate, safe access to and from the workplace for persons other than the person's workers.'
[19] The defendant conceded that it was a person in control of a workplace and that the injury occurred at a workplace within the meaning of the section.
[20] By his pleading the plaintiff alleges that the defendant breached each of these provisions. The defendant denies that there was any breach but further denies that the provisions provide the plaintiff with a private right of action.
[21] The question whether the provisions of the 1995 Act and its predecessor, the Workplace Health and Safety Act 1989 ("the 1989 Act"), give rise to a private right of action has been considered in a number of cases but with no clear consensus emerging.
[22] The authorities up to February 2000 were extensively analysed by a five bench Court of Appeal in Schiliro v Peppercorn Childcare Centres Pty Ltd (No 2).[6] The Court held that s 28(1) of the 1995 Act did provide a private right of action to an employee against an employer. It is evident however that legislation directed towards employee safety is in a special category. So much is clear from the reasoning that led to the conclusion that s 9 of the 1989 Act (the comparable provision to s 28 of the 1995 Act) did create a civil cause of action[7] as well as the conclusion in relation to s 28 of the 1995 Act.[8]
Since then Philippides J in O'Brien v TF Woollem & Son Pty Ltd[9] decided that subsection 30(1)(a) and 31 of the 1995 Act did not afford a civil right of action; the Court of Appeal held in Percy v Central Control Financial Services Pty Ltd[10] that s 23 of the 1989 Act did not confer a private right of action; and Ambrose J concluded in Townsend v BBC Hardware[11] that s 30(1) of the Act did gave a civil cause of action. In Percy in obiter dicta, Davies JA affirmed an earlier decision of the Court of Appeal in Heil v Suncoast Fitness[12] that s 10 and s 11 of the 1989 Act did not confer a right of action. Subsection 10(1) of the 1989 Act was the predecessor to subsection 28(3) of the 1995 Act. Subsection 11(1) of the 1989 Act was the predecessor to subsection 30(1) of the 1995 Act, but with some differences. Section 23 of the 1989 Act imposed duties on a principal contractor which included ensuring the safety of members of the public "on or near the workplace"[13] which is akin to, but not the same as, the obligations imposed by s. 30 of the 1995 Act. Finally I was referred to a decision of Dutney J in Henderson v Dalrymple Bay Coal Terminal[14] where his Honour discussed the cases and, whilst he declined to decide the point, said that the view that s. 30 of the 1995 Act did not give a private right of action did not sit comfortably with the decision in Schiliro.
For my part the considerations that compelled the conclusion in Heil v Suncoast Fitness that s 10 of the 1989 Act did not give rise to a civil cause of action compel the same conclusion here in relation to s 28(3) of the 1995 Act. The relevant considerations seem to me to be:
(a) The lack of any prescription of a specific precaution;
(b) That the obligation on the employer is in favour of all other persons and not to a particular class of persons such as employees;
(c) That the offence mentioned in the provision depends upon proof of mere exposure to risk;
(d) That the obligation is not confined to a workplace but applies to 'the employer's business or undertaking'.[15]
[25] The obligations imposed in s 30 of the 1995 Act present greater difficulty. There the obligation is more confined - it is limited to persons who come on to the workplace. The offence is not created by proof of mere exposure to risk. It is true that the obligation does not impose a duty to do any particular thing and that is against the imposition of a private right of action. However if s 28(1) does give rise to a private right of action, as the decision in Schiliro requires, then it is difficult to see what different considerations apply which would compel a different result in relation to s.30.
[26] The factors are finely balanced as Philippides J's decision in O'Brien demonstrates. It is difficult to reconcile the approaches taken in Percy and Heil on the one hand and Schiliro on the other_._ Given my conclusions which follow it is not necessary that I decide the point. In those circumstances I agree with Dutney J that it is preferable to leave a decision on the question to another day. Nonetheless, in case it be relevant, I will make findings in relation to the breach of statutory duty case.
[27] The plaintiff bases his claim on both negligence and, as mentioned, breach of statutory duty.
[28] To succeed in relation to the cause of action in negligence the plaintiff must establish firstly that there was a foreseeable risk of injury, secondly that the respondent could have taken steps to remove that risk, and thirdly that a failure to take such steps was unreasonable. The measure of the discharge of the defendant's duty of care to the plaintiff is what a reasonable person would in all the circumstances to by way of response to the foreseeable risk: Australian Safeway Stores Pty Ltd v Zaluzna.[16] The factors that bear on what response might be reasonable include the magnitude of the risk, the degree of probability of its occurrence and the expense, difficulty and inconvenience of minimising or alleviating the risk and any other conflicting responsibilities which a defendant may have: Wyong Shire Council v Shirt.[17] It is plain that in weighing up its response the defendant was entitled to take into account the obviousness of the risk and the likelihood that persons coming on to the property would fail to observe and avoid it: Thompson v Woolworths (Qld) Pty Ltd.[18]
The breach of statutory duty case involves different considerations. The plaintiff must show that the risk of injury complained of is not a trivial risk: Calvert v Mayne Nickless Ltd (No 1).[19] Then the plaintiff must show that the injury he complains of has been caused by exposure to that risk of injury: Schiliro at pp 532-533: Heggarty v Queensland Ambulance Service.[20] The onus then passes to the defendant to show the matters of defence referred to in s 26, s 27 and s 37 of the Workplace Health and Safety Act.[21]
[30] Mr Wilkinson's complaint was that the metal strip on the edge of the step constituted a significant slipping hazard. Mr Morton, who appeared for the defendant, submitted that there was no evidence to support that complaint.
[31] The only relevant evidence led was from Mr Wilkinson himself. His account was as follows:
'On numerous occasions I have walked back in there and slipped but I've never injured myself, and probably to the point where it was pretty much a conscious act to make sure I wasn't stepping on it, I'd step clearly over it onto the actual concrete area instead of the steel itself. On that particular day and that hour of the day, it slipped my mind and I got on it and that's when the incident occurred.'[22]
[32] Mr Wilkinson agreed that he had attended at the fuel terminal on every working day for approximately 10 years prior to the subject incident. He had stepped on to the step from the apron on probably thousands of occasions and was intimately familiar with the whole area and the step.[23]
Mr Wilkinson had gone through an induction procedure on many occasions. Part of that procedure dealt with hazard awareness and reporting. The procedure required that if a worker became aware of any hazard or defect in the premises it was the worker's responsibility to put in a report about it.[24] Mr Wilkinson agreed that despite inductions and instructions to report hazards and defects in the plant he had not reported this defect.
Mr Morton's submission was that the combination of the following circumstances - the plaintiff failing to file any hazard or defect report prior to the subject incident, the absence of any evidence from any other driver that the metal strip presented a slipping hazard, and the absence of any of the usual sort of evidence that one would expect in a case such as this, such as testing of the co-efficient of friction of the metal strip - amount to a compelling case for a finding that the plaintiff has failed to establish that there was any significant risk of slipping.
In my view there are a number of answers to that submission. One is that Mr Wilkinson's attitude to reporting hazards or defects was coloured very much by his perception of when that responsibility arose.[25] It was clear from his evidence that he thought the responsibility was triggered if he was hurt. He considered that to be the attitude of others in the workforce.[26] Thus the fact that he did not file a report does not mean that his evidence about prior incidents of slipping is not truthful.
Secondly the absence of evidence other than that from Mr Wilkinson cuts both ways. Mr Morton's point was that if the metal strip was a hazard then there would be dozens if not hundreds of truck drivers who had come to the premises over the years who would have become aware of it. Not one was called to support the plaintiff. But equally, not one was called by the defendant to deny the plaintiff's allegation.
Even more significantly the defendant led no evidence of its own as to tests of the co-efficient of friction on the metal tread. If anything, the defendant had available to it far more resources than a mere truck driver. The claim that a shiny metal surface is slippery is hardly inherently improbable. The absence of evidence from the defendant's side of this type speaks, to my mind, very strongly against the defendant.
A further matter that is relevant to the issue is Mr Wilkinson's account of what happened after he slipped. He did file a hazard/defect report.[27] The defect he reported was 'slippery steel edge of step up'. The action that he suggested be taken to eliminate or control the defect was 'apply non-slip coating to surface'. Subsequently the defendant's supervisor, Mr Wayne Johnson, who was the terminal manager, recorded on that hazard/defect report that the action that he had taken was 'fitted anti-slip tape to step' by which he said the hazard had been eliminated.[28]
Mr Wilkinson confirmed that non-slip tape had in fact been placed on the metal strip subsequent to his accident and that the tape was effective.[29]
It is quite evident that Mr Johnson, the terminal manager, whom one would expect would have an intimate familiarity with the terminal himself, accepted the criticism in the defect report supplied by the plaintiff as legitimate and thought it appropriate to take action.
[41] I record that Mr Wilkinson gave his evidence in a very forthright manner. There was not the slightest reason to think, from his manner or responses, that he was doing other than his best to tell the truth, as he saw it.
[42] In the end result the only evidence I have is that of Mr Wilkinson. The only point made against his credit was his failure to file a hazard or defect report. To my mind his failure to do so is perfectly explicable.
[43] I am satisfied to the requisite degree that the metal strip constituted a slipping hazard. The risk was more than trivial. It was foreseeable.
[44] Whilst it might be said that the presence of the metal strip was obvious, and to an informed person such as Mr Wilkinson the risk of slipping evident if he placed his foot upon it, this is not a case, in my view, where an occupier could simply ignore the risk.
[45] The categories of persons who could be expected to come to the fuel terminal included workers who were charged with the duty of filling their trucks and getting on their way. One could readily anticipate that they could be preoccupied with duties associated with their work and, from time to time, be distracted or rushed. It was a work place and a busy one.
[46] Further, by reason of their work, it was necessary and likely for them to come to the fuel terminal at all hours of the day and night. It is common human experience that attention to detail, such as ensuring one foots lands a few inches further onto a step, can be forgotten when one is tired. Further, the concrete apron from which the tanker drivers were required to step on to the metal strip (or beyond it if they adopted Mr Wilkinson's usual practice) was very likely to have contaminants upon it including diesel which is notoriously slippery. There was good reason to eliminate slipping hazards.
[47] The risk may have been evident only to those who had prior experience of the metal strip. Those persons knew that they had to take a reasonably high degree of care. It was necessary for the tanker drivers to remind themselves that to avoid the risk they had to step further on to the step than would be usual so as to avoid the metal strip. It is plain from Mr Wilkinson's evidence in describing his usual habit that he was describing a step that was not the usual simple step up.
[48] The consequences of a slip can range from no injury at all through bruising to significant injury. In this case the complaint is that there was a tearing of the meniscus of one knee. To my mind that level of injury was entirely foreseeable, and indeed, worse injuries could well be foreseen.
[49] Given Mr Wilkinson's evidence as to slipping on numerous occasions previously and given the inherent dangers involved in the step, it seems to me that it was highly likely that sooner or later there would be a slip and fall involving reasonably significant injury.
[50] As to the expense, difficulty and inconvenience of minimising the risk, Mr Wilkinson gave evidence that he purchased a roll of non-stick tape for $64 from a local BOC dealer. He gave evidence that he had seen similar tape in other industrial work places frequently over the last 15 to 20 years.[30]
The fact that Mr Jamieson did in fact purchase non-slip tape and affix it to the metal tread is some evidence, and in my view, good evidence, of the practicability of the precautionary measures available.[31]
Again Mr Wilkinson's uncontested evidence is that the provision of the anti-slip tape was effective in meeting the risk.[32]
In my view there is no doubt that a reasonable occupier in the position of the defendant should have taken this step to eliminate the hazard.
[54] Mr Morton's primary submission was that the plaintiff could not establish that the metal tread caused Mr Wilkinson's foot to slip. He pointed to the evidence that Mr Wilkinson gave under cross-examination that he did not know exactly where his foot was on the steel. The evidence was as follows:
"You - the first you realised that you hadn't followed your usual practice of stepping over it was when you hit the deck? - Yes.
Okay. You stepped onto the edge of it, you say? - Onto the edge, yes.
But you don't really remember where your foot was; do you? - It was on the steel, I know that.
You don't remember; do you? - I clearly remember because after I fell, I thought, "You so and so idiot".
You can't tell me where, or how much of your foot, you put onto the step; can you? - No."[33]
[55] Mr Wilkinson that that he would 'imagine' that it was the ball of his foot that was put on to the step, accepts that he did not know and then said in relation to the following question, 'So you may have just put your toes on it, misjudged it, and fallen off ....; do you agree with me? - I can't disagree.'[34]
It is plainly difficult for any plaintiff three and a half years after an event to try and recall precisely where his foot landed as he took a step and suddenly fell.
What impressed me in the factual matrix is that Mr Wilkinson had no doubt on the morning of the incident that the cause of his fall was the metal plate. He immediately filed a hazard/defect report. He plainly believed that a non-slip coating was required to the surface of the steel tread. Thus his appreciation of the experience that he had just had was not of him missing his step or of his toes merely grazing the step but of his foot slipping off the metal tread. It is hardly credible - and Mr Morton did not suggest it - that Mr Wilkinson filed the report for the possible purpose of mounting a later and spurious claim. Mr Wilkinson worked on for months with his disability. He in fact earned more than the comparable employee Mr Harris in 2006-07. Those are not the hall marks of a spurious claim.
When one combines with that the fact that it was Mr Wilkinson's usual practice to endeavour to step over the tread so as to avoid it entirely, and that the usual place to put one's foot would be on the metal tread, then the likelihood of him having placed so little of his foot on to the step as to make a slip inevitable, whatever the surface, seems to me to be remote.
To my mind the probabilities favour a finding that the metal plate was causative in Mr Wilkinson's slip.
[60] Whether one considers the case in negligence or in breach of statutory duty, the plaintiff has established his case. If the breach of statutory duty case be relevant then I observe that no attempt was made by the defendant to suggest that the defences under s 26, s 27 or s 37 of the 1995 Act were established. Contributory negligence was not pleaded.
[61] As I have held, the assessment is governed by the provisions of the Civil Liability Act 2003 (CLA) and the Civil Liability Regulation 2003 ("the Regulation").
[62] So far as general damages are concerned the effect of those provisions is to require a court to assess an injury scale value ("ISV") for the injury suffered from the range of injury scale values stated in schedule 4 of the Regulation in accordance with the rules laid down in s 6 of the Regulation. [35] Section 51 of the CLA defines "general damages" as damages for
[63] Section 62 of the CLA provides for the calculation of general damages according to the assessment of the ISV and the formulae set out in s 62.
The court is required to have regard to the guidance provided by the provisions in Schedule 4 concerning its use in so far as they are relevant to the particular case but is not necessarily limited to those factors: Sch 3 s. 8.
In assessing an ISV, a court may have regard to other matters to the extent they are relevant in a particular case, schedule 3 s 9. The examples provided of other matters are the injured person's age, degree of insight, life expectancy, pain, suffering and loss of amenities of life.
The extent of whole person impairment is an important consideration "but not the only consideration affecting the assessment of an ISV": Sch 3 s 10. The dictionary defines "whole person impairment" in relation to an injury as an estimate
"... expressed as a percentage, of the impact of a permanent impairment caused by the injury on the injured person's overall ability to perform activities of daily living other than employment."
[68] The defendant's principal submission in relation to the assessment of damages was that Mr Wilkinson's continuing problems were not due to the damage caused by the fall but rather by reason of a degenerative condition that pre-dated the fall. The defendant relied on the opinion of Dr Steadman, an orthopaedic surgeon.
[69] Dr Steadman's views are set out in two notes of telephone conversations that he had with Mr Morton on the eve of trial.[38] In Dr Steadman's view Mr Wilkinson's knee was 'in a generalised state of demise with longer term arthritis from gout, age, obesity and background degenerative changes likely to be causing the main clinical trouble now'. He thought that the meniscal tear might have made a 'small contribution' to the present day condition of the knee. He expressed the view that had the subject incident not occurred then Mr Wilkinson would have had similar knee troubles within three years (exhibit 27) or three to five years (exhibit 28).
The plaintiff called Dr Iain Macfarlane, an experienced orthopaedic surgeon, who disagreed with Dr Steadman's views. He accepted that there was some degeneration in the plaintiff's knee but did not accept that the plaintiff would have had anything like the same level of difficulties had the subject incident not occurred.
In my view the defendant has not discharged this onus. My principal reasons for rejecting the defendant's submission are:
(a) If the extent of the degeneration and its inevitable and inexorable future effects on Mr Wilkinson was so evident it is difficult to understand why Dr Steadman made no mention of these matters in his report provided in January 2006.[42] Dr Steadman had all the evidence available to him then yet said nothing along these lines, and he could not but have appreciated the importance of such an opinion to the lawyers preparing the case. His explanation that he wasn't asked that precise question by the solicitors[43] is unconvincing on a number of levels. It is hardly for the lawyers to know that they ought to be asking about degeneration without first being told that it exists. Further Dr Steadman did offer the opinion that Mr Wilkinson was "playing up to the problem"[44] without being asked his opinion on whether that was so. It was at least as relevant, if not significantly more so, to mention degeneration in relation to that same question - Mr Wilkinson's "future incapacity in light of his injuries". Finally he certified to the court, as r 428(3) UCPR requires, that he had "referred to all matters which I consider significant in preparing this report".[45] Dr Steadman did not say - and he could not - that this matter was not significant. That certification is not meant to be an empty platitude to be cut and pasted into every report without regard for its veracity.
There is an inherent improbability in a man with an asymptomatic right knee having the level of problems that Mr Wilkinson complains of within so short a time period as 3 years simply through the process of a degenerative condition advancing. It might well be that some appearances on arthroscopy would be sufficient to enable an orthopaedic surgeon to express the views that Dr Steadman has expressed here. But the fact that neither Dr Foote, Dr Macfarlane, nor Dr Steadman in his initial report, made any such observation causes me to doubt considerably whether the appearances are indeed as compelling as Dr Steadman would now have it;[47]
The claimed basis for the opinion - experience, but without statement as to what experience - is hardly persuasive. Orthopaedic surgeons, so far as I am aware, do not arthroscope asymptomatic knees as a matter of course, and then follow up a few years later to see how the patients progressed. Given that orthopaedic surgeons are likely to see only that percentage of the population who are prone to develop symptoms and complain of them I would need precise evidence of the claimed experience to be persuaded that such Delphic utterings have a basis.
[73] In my view the common ground between Dr Macfarlane and Dr Steadman was that there was some degeneration in the right knee and that would cause some limitation on the plaintiff's activities as the years went by.[48] There is no reason to think that Mr Wilkinson would have been in as anything like a serious position as he finds himself but for the fall.
[74] Where proof as to the pre-existing condition and its likely future effects is necessarily unobtainable, the Court must assess the degree of probability that an event would have occurred or might occur and adjust damages accordingly to reflect that degree of probability.[49]
[75] In my view the evidence concerning degeneration means that there must be some moderation of the award but the moderation will be fairly modest.
[76] Mr Wilkinson was born on 17 March 1951 and is presently aged 57 years.
[77] It is not in issue that the plaintiff suffered a tear of the medial meniscus of the right knee. He has continued to have significant problems.
[78] Dr McFarlane provided two reports. In the earlier report he set out his views as to the extent of the permanent impairment. He used the American Medical Association Guide's 5th edition as the Regulation prefers. He found a 13 per cent impairment of the right leg which converts to a 4 per cent impairment of the whole person to which he added a further 1 per cent for pain. He considered that to be permanent. He said the arthroscopy excluded arthritis. Dr Steadman assessed a 10 per cent impairment of the right leg and a 4 per cent impairment of the whole person. Whilst this opinion must be read in the light of Dr Steadman's qualifications introduced on the day prior to the trial to the effect that his impairment rating was not intended to be an assessment of the effects of the injury but of the condition of the knee overall, the contribution made by pre-existing factors is, in my view, small.[50]
In addition to the whole person impairment I am entitled to have regard to other relevant matters in assessing an appropriate ISV: Schedule 3 Section 9 Regulation. Those relevant matters include that the plaintiff is aged 57 years, has a life expectancy of about 28 years, has continuing pain, has suffered the disruption to his work which he enjoyed, walks with a limp[51], has difficulty with uneven surfaces or stairs, suffers from swelling, locking and giving way of the knee and no longer can enjoy his activities of bush walking, scuba diving or playing golf or bowls.[52] He and his partner have moved to a new home primarily because of the difficulties that he has experienced with his knee. His previous home was on a sloping block and had a large yard. His new home does not have those features.
In my view the injury falls within item 139 (moderate knee injury). Whilst I would not consider the instability, wasting and weakness that Mr Wilkinson complains of as 'minor', the description used in Item 139, I think that the adjective must be read in the light of the comment about the appropriate level of ISV: 'an ISV at or near the top of the range will be appropriate if there is whole person impairment for the injury of 8 per cent.' The impairment here is in the order of 4 per cent to 5 per cent. I assess an ISV of 8.
Applying s 62(b) of the CLA I arrive at an amount of general damages of $8,600.
Fundamental to this assessment is the finding that had the incident not occurred Mr Wilkinson would probably have continued on much as he had prior to the subject accident but with the passage of the years he probably would have had some restrictions from the degeneration pre-existent in his right knee. Both orthopaedic surgeons seem agreed that the gout played no part in the assessment. Even if it had gout is readily controlled by diet and medication.
In case I am wrong in my determination that the assessment is governed by the provisions of the CLA I assess general damages at common law in the sum of $35,000.
[84] The injury has impacted on Mr Wilkinson's earning capacity and he has suffered a loss of earnings.
[85] At the time of the accident Mr Wilkinson was working for Latters Transport as a tanker driver. He maintained his employment albeit with increasing difficulty. He eventually underwent arthroscopic surgery on 12 April 2005 at which the tear in the meniscus was discovered. He then had some three weeks off work, returning to work in the week commencing 11 May 2005. His duties and hours were then restricted. He has difficulty with long distance travelling and work that requires him to tie up loads or chain loads, common features of a truck driver's life. He says that since April 2007 he has been doing shorter shifts at work with consequent financial loss.[53] He has applied for work with his current employer, Cement Australia, as a driver/trainer assessor but has not yet heard whether he will be appointed to the position.
Mr Wilkinson has taken days off work because of his knee and has applied both annual leave and sick leave to at least some of those days. He has cut back his working hours. Prior to the accident he used to work 12 hour days, six days per week. He now works 7.6 hour days, five days per week.
Mr Steven Harris was called to provide evidence of comparable earnings as a truck driver. Mr Harris was employed by Cement Australia Pty Ltd, the same company that the plaintiff joined after Latters Transport lost its contract. A comparison of Mr Harris' earnings[54] to those of the plaintiff[55] indicates that in the period from 1 July 2005 to the date of trial Mr Harris has earned approximately $48,600 more than the plaintiff. There was no suggestion that any factor other than the plaintiff's injury and his consequent disabilities adversely affected the plaintiff's earnings.
[88] However Mr Wilkinson does not seek to be compensated solely on the basis that he would have continued as a truck driver. Prior to the subject accident Mr Wilkinson applied for work as a shot firer with Orica on a mine site.[56] The position would have based Mr Wilkinson at Blackwater. He underwent a Coal Board medical performed by Dr Beryl Turner[57], was advised that he had passed that medical, was telephoned and told that he had the position but that offer was subsequently withdrawn.[58]
Mr Wilkinson's hope was to obtain the well paid work available on the mine sites. He was hoping for work either as a fitter or more likely as a plant operator. He is in fact a qualified fitter and turner but has not worked as such since 1984.
Mr Wilkinson details in his statement other offers of work that he says have been made to him.[59] His experience with Orica indicates that it was by no means certain that he would achieve a position merely because he received a phone call or text message indicating that a position needed to be filled and he was medically fit for it. There is no doubt that Mr Wilkinson was motivated by the excellent pay that is available to those who work in the mines. However, whether he would have been successful in his applications for a position or, if successful, whether he would have wished to maintain the employment are both problematical.
No evidence was called from the prospective employers to indicate how likely it was that Mr Wilkinson would have in fact have been appointed to the positions he mentions. His chances would have depended on how many applicants there were for the positions in question and how he compared to them especially given his long period of time away from fitting work or the limited experience he had as a plant operator. All that can be said about this aspect of the evidence is that he had a chance of a position with many discounting factors to be brought into account.
Those discounting factors include those against the prospect of maintaining such employment having obtained it. The positions are usually in more remote areas and workers are expected to spend periods of time away from their home base. Mr Wilkinson was in his mid-50's when injured. As Mr Morton pointed out it had been a quarter of a century since Mr Wilkinson had last worked as a fitter. I apprehend that the work of a fitter on a mine site is somewhat more demanding than the work of a truck driver.
If Mr Wilkinson had obtained a position then Ms Findlay's evidence suggests that the rate of pay would have been between $25 and $28 per hour if the position was in Gladstone and up to $50 per hour if the work was in the mines.[60] Mr Wilkinson says that the offers of work that he received indicated that he could earn in excess of $2,000 net per week at the mines.
[94] I will take the comparison with Mr Harris' earnings as a guide as to the loss that the plaintiff has suffered. To that sum ($48,600) must be added some amount for the chance that the plaintiff may have obtained the much better paid work at the mines. Mr Harris was earning approximately $1,250 net per week in the 2007-2008 year. Mr Wilkinson could probably have earned in excess of $2,000 net per week had he obtained a position at the mines. There is no mathematical way of determining Mr Wilkinson's prospects of either being offered a position and he persisting with the work. I will allow a sum of $15,000 for this loss of a chance.[61]
[96] I will allow interest on the full amount of the past economic loss at 3.14 per cent for three years.[62] I will allow interest in the sum of $5,990.
[97] Many of the considerations applicable to the assessment of past economic loss are relevant here. There are, however, some differences.
[98] Firstly, it seems to me that Mr Wilkinson's prospects of obtaining and maintaining employment on a mine site would become even less with age. Whilst Mr Wilkinson stressed that he would be more interested in plant operating work than working as a fitter and turner, the absence of any evidence from an employer to the effect that someone of his age would be likely to be employed, and indeed the absence of any evidence from Ms Findlay that persons of his age had been employed in these positions, weaken Mr Wilkinson's case considerably.
[99] Secondly, I think it evident that Mr Wilkinson's continued employment as a truck driver is in doubt. Essentially his evidence was that he was just hanging on. He has applied for a position as a driver/trainer assessor with Cement Australia and if he can obtain that work then his working life will be extended.
[100] There is evidence to support Mr Wilkinson's contentions that he is having increasing difficulty with his truck driving - there has been a precipitous fall in his income. In the 2006-2007 year he earned nearly $57,000 net. In the 2007-2008 year he earned $37,500 net. I accept his claim that he is restricting his hours of work per day and his days of work per week. Mr Harris confirmed that there was ample work available, that he would regularly work in excess of 60 hours per week and that that was typical.[63]
The average net weekly difference between Mr Wilkinson's earnings and Mr Harris' earnings for 2007-2008 was $523 on my calculations. Obviously if Mr Wilkinson had been successful in obtaining work in the mines then the difference would have been greater.
An assessment of a loss of $523 per week presupposes that Mr Wilkinson can continue earning at his present rate. That is doubtful. He himself states that he cannot continue on.[64] If he fails in his bid to obtain the position of driver/trainer assessor then, whilst he will not be unemployable, he will have serious difficulties in convincing an employer to take him on. His lack of experience in clerical roles will count strongly against him as would his age.
Discounting factors include the degeneration that Dr McFarlane spoke of and Mr Wilkinson's increasing age both of which had the potential to increasingly and adversely affect his capacity to maintain his earnings, even as a truck driver.
I will allow the sum of $180,000 for future economic loss, basing that roughly on the loss of $520 per week over eight years (x 346) but without the usual discounting for contingencies (noting that the period in question is relatively short compared to many cases) in order to make some allowance for the chance of an early end to his working life as well as the lost chance of better pay at the mines.
[105] The CLA requires that 9 per cent of the past and future economic loss assessments be allowed for the loss of superannuation benefits.[65] I allow $5,724 for past loss of superannuation benefits and $16,200 for future loss of superannuation benefits.
[106] Mr Wilkinson is spending $41.19 per week on average in obtaining medications and Voltaren gel to treat his knee.[66] The most significant reason why that would fall is if Mr Wilkinson gave up his employment. The fundamental assumption underlying the future economic loss component is that Mr Wilkinson will endeavour to maintain his employment. He will do so only by enduring a significant degree of pain and discomfort. I would expect, however, with his retirement at about age 65 there would be significant lessening of the need for the treatment he is presently obtaining.
No submission was made that there was any other reason to discount the full amount of the present average cost. I will allow that for the next eight years and thereafter allow about half that - say $20 per week - for the balance of the 24 years that Mr Crow has suggested should be allowed for this item.
There needs to be some discounting of that to allow for the prospect that Mr Wilkinson may have had a need for some level of medication due to the degeneration that he had.
I will allow the sum of $20,000 under this head of loss.
[110] Mr Crow submitted that there ought to be an allowance for future surgical costs. The only evidence to support a need for future surgery I believe is contained in Dr Steadman's evidence in which he expressed the view that Mr Wilkinson would have had similar knee troubles had the accident not occurred within three years and then went on: 'This man's next operation will be a knee replacement that reflects from his arthritis, not his injury.'[67] That analysis, however, reflects Dr Steadman's lately expressed views that the arthroscopic photographs demonstrated significant degenerative change.[68] I have rejected that as accurate and prefer Dr McFarlane's views. He did not speak of any need for future surgery. I will not allow this head of loss.
[111] The plaintiff claims to have expended $5,911.40. There was no attack on this claim and I will allow it in full.
[112] I will allow interest on $4,907.40 of the special damages[69] at 3.14 per cent for 3.5 years - a total of $540.
[113] In summary I assess the damages as follows:
[114] There will be judgment for the plaintiff in the sum of $306,565.40
Wilkinson
BP Australia Pty Ltd
(1987) 162 CLR 479
(1980) 146 CLR 40
(1960) 108 CLR 158
(1965) 114 CLR 164
(1990) 169 CLR 638