Dewar v R E & D M Pierce P/L [2000] QSC 364

SUPREME COURT OF QUEENSLAND CITATION: Dewar v RE & DM Pierce P/L [2000] QSC 364 PARTIES: JOHN ALBERT DEWAR (plaintiff) v RE & DM PIERCE PTY LTD ACN 009 767 515 (defendant) FILE NO: S625 of 1996 DIVISION: Trial Division DELIVERED ON: 13th October 2000 DELIVERED AT: Brisbane HEARING DATE: 06th, 07th, 08th, 15th September 2000 JUDGE: Holmes J ORDER: Judgement for the plaintiff against the defendant in the amount of $209,576.54 CATCHWORDS: TORTS – NEGLIGENCE – DUTY OF CARE – Employer and Employee – Unsafe system of work DAMAGES – Breach of Duty of Care – Breach of Implied Term of Employment Contract – Loss of Earnings – Pain and Suffering – Opportunity to Mitigate Loss COUNSEL: M. M. Stewart for the Plaintiff M. T. O’Sullivan for the Defendant SOLICITORS: Paul Everingham & Co for the Plaintiff Bain Gasteen for the Defendant -- 1 of 17 -- 2 The pleadings [1] The plaintiff in this action seeks damages in respect of a lower back injury said to have been sustained while he was working as a concreter for the defendant company. In his statement of claim he pleads breach of contract, negligence, and breach of statutory duty. [2] His claim, as particularised, turns around two incidents. The first is said to have occurred in August 1994, when he was required to remove pins designed to secure steel boxing, which was used to hold concrete as it was poured. The second incident is alleged to have occurred on or about 16 March 1995 when the plaintiff was required to lift a length of 2.5 metre steel boxing; it is said that he suffered the injury while bending and lifting the boxing. [3] In respect of the first incident it is pleaded that the defendant breached its obligations under the contract of employment and its duty of care to the plaintiff. As to the second incident, breach of contract, negligence and breach of the Work Place Health and Safety Act 1989 are pleaded. [4] By an amended defence and counter claim, the defendant denies the allegations of breach of its various obligations to the plaintiff and pleads, both by way of contributory negligence and counterclaim, that the plaintiff caused or contributed to any injury. In relation to the second incident, one of the particulars of the plaintiff’s negligence is a failure to advise the defendant of his earlier injury. In respect of both incidents it is said that the procedure involved was not one which would expose a worker within the normal range of health and strength to injury. It is also pleaded, in relation to the breach of statutory duty allegation in respect of the second incident, that the defendant took all practicable precautions open to it. Finally, it is pleaded that the plaintiff has failed to mitigate his loss by failing to take all reasonable steps to find employment and by moving to a remote location. [5] In his reply and answer, the plaintiff denies the allegations of negligence on his part and says, for reasons particularised, that it was not feasible to take the measures which the defendant has pleaded that he should have adopted. He says also that he was unaware of any pre-existing back problem before the first incident; but he informed senior employees of his difficulties with his back after August 1994. He pleads also that the task of removing the pins and of carrying the boxing was such as to pose a risk to a worker of normal health and strength. He denies the defendant’s assertion that it had taken all practicable precautions. The plaintiff’s work history [6] The plaintiff was born on the 18 September 1963, making him now 37. He left school after grade 10 (it was not clear whether he had completed the year) and worked for Coles as a trolley boy. He rose to the position of “night fill” manager -- 2 of 17 -- 3 but left after a couple of years, and began working as a concreter, with the odd interval in which he worked in a saw mill and as a brickie’s labourer. He began working for the defendant company in about 1991. Generally he worked as one of a crew of four, consisting of Mr Russell Pierce, then a director of the defendant company, his son Ian Pierce, another employee, Phillip Hartwig, and himself. The plaintiff’s work on slabs [7] In the ordinary course of events, the Pierces would set up the concreting job, putting the boxing in place, while the plaintiff and Mr Hartwig would prepare for the slab base. When the plaintiff commenced working for the defendant, the type of slab used involved a footing being excavated by backhoe. Steel was put into the footing and concrete poured into it; then steel pins dipped in grease were inserted to hold boxing in place. Those pins were round, with a ground-off end which was greased before it was placed into wet concrete. The area for the slab was thereafter prepared with sand, plastic and mesh or reinforcing steel. The concrete would be levelled (“screeded”) and later machined and finished. The whole process required about three days. Under that system, the plaintiff placed the steel in the footing, tied the corners and put the pins into the concrete, as well as performing the other functions of screening sand and placing plastic and mesh. [8] However a new type of slab was introduced in July 1994, which did not have any such footing. The floating slab was used on clay sites. The ground was first compacted by machine. Steel fabricated frames rather than wooden boxing were used. The frames were secured by pins driven into the ground. Initially, smooth pins were used, but later, what were described as “deformed” bars (corrugated or ribbed pins) were supplied. [9] Samples of both types of pin were tendered in evidence. Both are crucifix shaped, and they are of different lengths. It emerged from the evidence of Mr Russell Pierce that the pins were made from left over steel, and the corrugated pins were produced simply because there was no smooth steel available. Preference was given to using the smooth pins on site, because they were easier to remove. [10] The pins, whether corrugated or smooth, were inserted into the steel boxing, firstly through an oval shaped hole in a bracket, and then through another oval hole in the boxing itself. Each pin was thus restrained by the boxing at two points along its length. The pins were hammered into the ground with a sledge hammer, usually by Mr Ian Pierce. The plaintiff estimated that the cross bar of the pin was usually left protruding from the ground after that process by between 200 and 300 millimetres, while Mr Russell Pierce made an estimate of 300 millimetres above the ground, although it is not clear whether he was referring to the top of the pin or the cross bar. (On one of the pins tendered as an exhibit, the cross bar was about 80 millimetres from the top of the pin, while on the other it was approximately 120 millimetres). [11] Mr Dewar said that whereas he had been accustomed to using a hammer to dislodge the pins used under the old slab system, that was not feasible with the crucifix pins, -- 3 of 17 -- 4 because the holes by which they were passed through the boxing did not allow sufficient movement. To hit the pins hard with a hammer would have risked damaging the bracket and boxing, which had to be re-used. His practice was to bend over, take the pin by the cross bar and wriggle it until he was able to pull it up. That required considerable force, particularly in the case of the deformed bars. [12] Mr Hartwig, by contrast, said that he “just used to give them (the pins) a hit with a hammer and pull them out”. He said he did not find any difficulty in that chore. Mr Hartwig could not remember using bolt cutters on any of the floating slab pins. Mr Russell Pierce said that he would adopt a similar method of removal to the plaintiff’s; that is, he would manoeuvre the two ends of the cross bar until the pin could be worked up out of the soil. If the pin were too difficult to remove in that fashion, he would use bolt cutters to lift the pin, holding the section of it above the cross-piece. He agreed that the pins used on the earlier conventional slabs were a lot easier to remove. The first incident [13] The plaintiff said that he sustained an injury to his back (pleaded as a disc protrusion at the level of the fifth lumbar vertebrae and first sacral vertebrae) on 25 August 1994, when he had been left alone on a site to machine the concrete slab and remove the boxing and pins from it. The other members of the crew had gone on to another job. He said that while bending over and manoeuvring a deformed pin in an attempt to pull it out, he experienced pain in his back which increased over the course of the afternoon. Under cross-examination he retreated a little by saying that it was a deformed bar pin as far as he could remember. He could not recall whether he had hit it with a hammer. [14] Mr O’Sullivan submitted that there were inconsistencies within the plaintiff’s evidence, and as compared with accounts given at other times. The plaintiff had said at one point in his evidence that he had to remove the pins by hand, but at other times he had referred to trying on occasions to hit them with a hammer. Moreover, Mr Roger Kahler, an engineer called by the plaintiff, when asked if he had been told by Mr Dewar whether it was his practice to use a hammer and bolt cutters, answered “Yes, and he could in extremes use an oxy torch to cut them off”. [15] In context, I do not think there is any marked inconsistency in the plaintiff’s versions. In the first statement referred to, he was describing the way in which he went about removing the pins. He did not exclude use of a hammer, but later explained the difficulty in creating any significant movement in the pin with a hammer. The statement made by Mr Kahler as to the plaintiff having told him of the practice of using hammer and bolt cutters was not put to the plaintiff, plainly enough because that evidence was not given until the plaintiff had concluded his evidence. However, an examination of Mr Kahler’s report, which was tendered, does not demonstrate a history in quite such terms. If one assumes that Mr Kahler’s account of how the pins could be dealt with emanated from the plaintiff, there was reference to the possibility of striking the cross pin with a hammer, which would not appear at odds with the plaintiff’s statement that a hammer was occasionally used. Bolt cutters were referred to as being needed when the cross piece of the peg -- 4 of 17 -- 5 was only 50 millimetres long, with a further comment that using bolt cutters to rotate the deformed bars was “generally much less successful” (in context, than with the pins used in the conventional slabs). The report does not suggest a regular practice of either hammer or bolt cutter use; instead it indicates an occasional use of hammers and an explanation of the deficiencies of using bolt cutters. [16] Mr Kahler had asked the plaintiff to rate the task of removing pins from a floating slab on a scale of perceived exertion which ranged from “nothing at all” (0) to “very, very strong” (10). He had given the task a rating of “very strong” (7). Mr Kahler observed that in his experience, workers’ subjective assessments of force required had a better than 95 per cent reliability when the task itself was actually measured. On the basis of the plaintiff’s rating, he concluded that the force involved in removing the pins entailed three times the recommended weight limit. I ruled that Mr Kahler’s opinion as to the reliability of the plaintiff’s estimate based on other experience was inadmissible, because it could not be assumed that it could readily be extrapolated from the industrial to the litigation context. The difficulty, however, was that Mr Kahler’s opinion as to the exceeding of the recommended weight limit depended entirely on the accuracy of the plaintiff’s estimate. I did not, therefore, consider that Mr Kahler’s evidence, in this respect, advanced matters greatly; it remained a matter of assessment of the plaintiff’s own evidence as to the difficulty of the task. [17] Mr Kahler said that bolt cutters were an inappropriate tool to use in attempting to remove the pins. They were not designed for the task, and did not allow sufficient purchase on the pin to ensure a safe grip, with an associated risk of over-balancing by the user. He proposed as an alternative a device he had designed, which worked on a lever principle. The object was produced to the court, and photographs of it were tendered in evidence. It comprised a handle consisting of a bent rod of tubular steel with, at one end, two prongs designed to create a slot into which the pin to be removed fitted. Mr Kahler said that the device gave a mechanical advantage of about twelve to one, while the benefit of the long prongs was that the pin could be moved along the slot created by them so as to adjust for its height above ground. The concept was a simple one. Mr Kahler said that it was not difficult to devise such an item of equipment by consultation with an engineering works. [18] Dr Gillett, an orthopaedic surgeon called to give evidence for the plaintiff, described the practice of bending over the crucifix pin and attempting to loosen it in an endeavour to pull it from the ground as posing a high risk of injury to the lumbar spine. Dr Boys, an orthopaedic surgeon called for the defendant, accepted that the practice was “potentially unsafe”, while expressing some reservations in giving evidence without the opportunity to examine the bar in the ground, and to assess the forces involved. Dr Morgan, also called for the defendant, was more neutral in his evidence. Although he accepted that the task could pose a risk of injury to a thirty- one year old concreter without an extensively degenerative spine, he also pointed out that workers without pristine spines undertook such activity on a daily basis without serious injury. [19] The impression that I am left with from the evidence both of the plaintiff and of Mr Russell Pierce (who seemed a frank, forthcoming witness) is that the extraction of -- 5 of 17 -- 6 the corrugated pins from the ground was an excessively difficult task even for a worker of ordinary soundness. The ribbed pins were not designed for ease of extraction; instead they were a poor alternative to straight pins necessitated by shortage of material. In the compacted ground which was common to the floating slab sites it is plain from Mr Pierce’s evidence that, despite what Mr Hartwig had to say, they often could not be removed by the application of ordinary force. The fact that resort had to be had to bolt cutters demonstrates that. [20] Having heard the task described in detail by the plaintiff and Mr Pierce, I accept that the process was one such as to pose a risk of injury to a worker of ordinary soundness, and that that risk could have been avoided by use of a lever device. The acquisition of such a device was a means “reasonably open to (the employer) in all the circumstances, which would have protected the plaintiff from the dangers of his task without unduly impeding its accomplishment”: Vozza v Tooth & Co (1964) 112 C.L.R. 316 at 319. [21] The question remains, however, as to whether the plaintiff’s undoubted lumbo- sacral injury was caused by the work practice. Mr O’Sullivan submitted that there were a number of reasons for concluding that the plaintiff had a symptomatic back condition before August 1994; that there was no specific incident occurring as a result of his pulling out a pin; and that the protrusion could have occurred in any way. In the course of the trial, suggestions were made that the plaintiff’s injury might have happened as the result of rugby league training; or that the plaintiff might have sustained his injury while carrying out concreting for a contractor for whom he occasionally worked on a casual basis. [22] As to the plaintiff’s pre-existing back condition, both Dr Gillett and Dr Morgan considered that x-rays from September 1994 showed pre-existing degenerative change in the lumbar spine. Dr Boys had not seen the relevant radiologist’s report, but, on being told the findings in it, considered that they implied that the plaintiff may have had degenerative disease at L5/S1. The moot question, however, was whether and to what any pre-existing degenerative change was symptomatic. [23] Mr O’Sullivan tendered patient history cards and called as witnesses two general practitioners, Dr Baynham and Dr Driscoll, from the former’s Kallangur practice, where the plaintiff had been a regular patient. [24] There were a number of entries in the patient medical history of particular note. The first was made by Dr Driscoll on 26 February 1993. She noted low back and leg pain on the left; straight leg raising was limited to 70 degrees bilaterally with pain; reflexes and power in the limbs were normal. Her diagnosis was sciatica, and she prescribed rest, Indocid, and review the following week. It does not appear that the plaintiff in fact re-attended for such a review. On 3 February 1994, the plaintiff was seen by Dr Baynham, complaining of a painful left hip. He had a full range of movement and no sciatica. Dr Baynham had no recall of what had produced that condition. -- 6 of 17 -- 7 [25] The next entry of note was made by Dr Baynham on the 25 August 1994, the day on which the plaintiff is said to have been injured. It is useful to turn at this point to the plaintiff’s own account of events on that day and following days. After injuring himself on the 25 August, he was driven home by Phillip Hartwig. He then went to the surgery of his general practitioner, Dr Baynham, who prescribed an anti- inflammatory. He worked on the following day, which was a Friday. He also gave an account of working during the following week. However, it was established through evidence adduced by the defence that in fact, although he had worked the following day, he had spent the next week, between 28 August and 4 September, on a pre-arranged house boat cruise. The plaintiff said that he had been absent from work on the 5, 6, 7 and 8 September when he had been occupied attending Dr Baynham, having a CT scan taken, and attending a consultation with Dr Boys. He said that he had told Mr Ian Pierce of his injury; but Mr Pierce denied having being informed. Mr Hartwig who had driven the plaintiff home on 25 August did not recall his making any complaint of having hurt himself. [26] Dr Baynham’s note records that the plaintiff attended on 25 August complaining of lumbar disc pain, and was prescribed Anaprox. That entry has written above it the note “lifting at work”, which, Dr Baynham conceded, could have been made during that consultation or at any time up to a year later. On 5 September 1994, another note was recorded by Dr Baynham, indicating that the plaintiff was now suffering from weakness in the right leg and right sciatica. He ordered a CT scan. The plaintiff returned on the following day, when Dr Baynham recorded the following: “Leg ‘went’ on boat. Thinks he slipped”. The CT scan showed some S1 nerve root compression. Thereafter, there are a number of records of attendances for lumbar spine pain, including one recorded on 16 March 1995, the day after that on which the plaintiff alleges he experienced a second work accident. [27] Mr O’Sullivan argued that the attendances in February 1993 and February 1994 demonstrated the existence of a symptomatic back condition. There was a good deal of cross-examination of the specialists as to the significance of the symptoms described on those occasions. Dr Gillett considered the February 1993 symptoms capable of indicating a spectrum of complaints from muscle strain to disc derangement. There was, however, nothing to suggest nerve damage or nerve compression; nor was the history that of a disc protrusion. If the bilateral leg pain amounted to sciatica, it could indicate a central disc protrusion; however, the 1994 CT scan indicated that the disc protrusion causing the plaintiff’s symptoms at that time was right sided. As to the 1994 presentation, the complaint of left hip pain was a “very unreliable presenting symptom” because of the vagueness inherent in the reference to the hip; those symptoms could have been the result of a “myriad of pathologies”. [28] Dr Boys’ evidence was similar to that of Dr Gillett. The finding of bilateral pain might be consistent with a central disc protrusion; the 1994 complaint of a painful left hip was entirely non-specific. Similarly, Dr Morgan thought that the February 1994 complaint added little to the picture. The February 1993 complaint was consistent with his view of the lumbar spine as already abnormal, but did not involve the right leg. -- 7 of 17 -- 8 [29] The entry of the 6 September 1994 to the effect that the plaintiff’s leg “went” on a boat was the subject of considerable discussion. Essentially, its significance depended on the interpretation given the note; that is, whether there was a slip occasioning trauma which caused the loss of power in the leg, and was thus consistent with the disc protrusion being caused at that time; or whether, alternatively, there was a loss of power in the leg consistent with an earlier protrusion, causing the plaintiff to slip. Dr Baynham, who had made the note, could not recall the details surrounding that entry. He did not think that he had received an account of the plaintiff falling and re-injuring himself; but he could not recall what was said. [30] Mr O’Sullivan pointed to Dr Boys’ report in relation to the plaintiff’s first attendance on him on 8 September 1994 (taken directly from his handwritten notes), which records a history of pain in the lower back “for a few months”, as indicating symptoms pre-dating the 25 August incident. He relied also on the suggestion that the plaintiff had made complaints to the rest of the work crew of back pain and had, for a considerable time, worn a blue thermoskin around his waist while at work. Mr Russell Pierce said that he had seen the plaintiff wearing the thermoskin; he “couldn’t say exactly when, but it was early in his employment.” Ian Pierce recalled his wearing it “on and off … . it could have been more than a year, it could have been two years.” The plaintiff said that he had begun working the thermoskin a couple of months before August 1994, not because he was experiencing pain, but in order to protect his back during the harder activities involved with work on the floating slabs. [31] It was put to the plaintiff that he had complained from about 1991 onwards of having a sore back as a result of work. The evidence of Russell and Ian Pierce and Phillip Hartwig did not in fact support any significant complaint. Mr Russell Pierce said that roughly once a fortnight the plaintiff would say words to the effect “my back is playing up today”. However, in cross-examination he agreed that the complaints were consistent with the ordinary sorts of complaints of soreness and stiffness made by concreters after a hard day’s work. Ian Pierce said that he could not remember the plaintiff ever saying anything about a back problem or soreness prior to August 1994, while Mr Hartwig said that the plaintiff had not complained to him of a sore back. [32] Mr Nicholas Laws, the sports trainer for the Samford Rugby League Club for which the plaintiff had played regularly, gave evidence. As sports trainer, he was responsible for applying first aid and strapping any injured limbs pre-game. He was not aware of the plaintiff having any other difficulty than a knee injury, and had not seen him wearing the thermoskin. Mrs Linda Dewar, who was not then married to the plaintiff, but had a close relationship with him and lived nearby, said that she was not aware of any back problem prior to the August 1994 incident. [33] So far as the plaintiff’s pre-existing back condition is concerned, I conclude that while there are certainly radiological signs of degeneration, he was suffering no significant symptoms. I do not consider that the February 1993 incident was of consequence, particularly given that there were no need for any follow up treatment or suggestion of any further symptoms of lower back or leg pain prior to August -- 8 of 17 -- 9 1994. The February 1994 complaints were, as the orthopaedic specialists concurred, so unspecific as to make it impossible to draw any conclusion from them. The evidence of the plaintiff’s co-workers taken at its highest does not suggest any more than complaints of discomfort of the sort one might experience after a hard day’s work. In those circumstances there is no real basis to reject the plaintiff’s account of wearing the thermoskin as protection of his back during arduous work rather than as indicating pre-existing symptomatology. [34] The second basis on which Mr O’Sullivan submitted that the court should not accept that the work practice in relation to the pins caused the plaintiff’s back injury, was the absence of complaint of such an injury by the plaintiff. As has already been mentioned, Dr Baynham was uncertain as to when he had made the notation “lifting at work” in relation to 25 August attendance. Neither Mr Hartwig nor Mr Pierce was made aware of the accident; I accept their evidence in that respect. If the plaintiff did make any complaint to them it clearly was not in strong terms, specific as to symptoms, or referable to any particular incident. He did not make any claim for workers’ compensation. He said that he did not want to jeopardise his job and that Ian Pierce had been in the habit of saying “there is no workers’comp here”. (Ian Pierce was not cross-examined on that point). [35] Dr Boys’ first report, in relation to the plaintiff’s first attendance on him on 8 September 1994, contains the sentence “I note that he has had low back pain for a few months and cannot recall any specific injury to this spine”. However, Dr Boys accepted as reasonable the proposition that in saying that he could not remember a specific injury to his spine, the plaintiff was speaking of an injury that could explain his neurological problems; specifically, the onset of numbness and weakness in his right leg, that being the condition for which he had been referred by his general practitioner. [36] Mr O’Sullivan pointed out that the plaintiff’s account of events in the weeks following the alleged work accident had been demonstrated to be wrong. Whereas he claimed to have taken a week off after he had been directed to rest by Dr Boys, and to have told Russell Pierce that he would not be attending work because of his back injury, it was plain that he had in fact been on the pre-arranged trip on the houseboat. It was, Mr O’Sullivan said, quite possible that the plaintiff’s disc protrusion had in fact been caused when he slipped on the houseboat. [37] On the whole, however, I consider that the evidence tends to support the plaintiff’s account as to when and how he was injured. Apart from his own evidence, his attendance at Dr Baynham’s surgery on 25 August 1994 was at the end of the working day, and there is nothing to suggest that he had been engaging in any other activity. His wife, Linda Dewar, said that she had taken him to Dr Baynham and that he had been at work immediately before. He had not shown previously any sign of a bad back. There seems no reason to suppose that the plaintiff’s attendance on Dr Baynham was connected with anything other than, as he says, what he had been doing at work that day. Although, as I have already said, I do not accept that he made any clear complaint to anyone at the workplace in relation to the incident, a reluctance to do so is unsurprising in circumstances where the work clearly required robust able-bodied workers not susceptible to injury. It is not possible to -- 9 of 17 -- 10 make a finding as to what was said to Dr Baynham; and the failure to give a specific account to Dr Boys is in that doctor’s own view explicable in the circumstances. I am prepared to conclude, therefore, on the balance of probabilities, that the plaintiff did sustain a lower back injury as a result of removing a pin at the workplace on 25 August 1994. [38] The possibility of a subsequent injury causing the disc protrusion from which the plaintiff clearly suffered by the time he attended Dr Boys is raised by Dr Baynham’s note of 6 September. The plaintiff’s own account was that his leg was already numb, and he stumbled and slipped. Mrs Dewar, who was also on the boat, had no recall of his slipping. I do not think that Dr Baynham’s note (as to which he himself could give no assistance) is of sufficient weight to justify rejection of the plaintiff’s evidence in this regard. Accordingly, I find that the onset of neurological symptoms associated with the disc protrusion was the result of the workplace injury sustained by the plaintiff on 25 August 1994. [39] I find that the defendant breached its duty of care to the plaintiff in that it failed to provide suitable equipment to the plaintiff; and, on the same ground, that it breached an implied term of the contract of employment. [40] Although it was not pressed strongly by Mr O’Sullivan in submissions, the defence and counterclaim both pleaded contributory negligence and alleged a breach by the plaintiff of his contract of employment in failing to:- take care for his own safety, seek assistance from fellow workers, advise the defendant of a pre-existing back problem, loosen the pins by striking them with a hammer or another pin, and use bolt-cutters to assist in their removal. I should say, in the first instance, that I doubt that any of those allegations can be made out as causing or contributing to the plaintiff’s injuries. The task of removing the pins was not one in which it was practicable to seek help from other workers; nor is there anything to suggest that to do so would have met with an affirmative response. I accept the evidence of the plaintiff that it was not feasible to dislodge the pins by striking them with a hammer (or, it follows, another pin), and the evidence of both the plaintiff and Mr Kahler that the use of bolt-cutters was neither feasible nor advisable. I have found, of course, that although the plaintiff had pre-existing degeneration in his spine, that fact was not manifest in symptoms, so that there was no basis on which the plaintiff prior to 25 August should have advised the defendants of a problem. Contributory negligence, even if found, would not afford the defendant any defence to the claim for breach of contract. Even were the matters to which I have alluded made out, they would not in my view break the causal connection between the defendant’s breach of contract and the damage suffered by the plaintiff. Accordingly, there is no basis for any finding of contributory negligence and the defendant’s counterclaim is dismissed so far as the first incident is concerned. The second incident [41] After seeing Dr Boys on 8 September 1994, the plaintiff returned to work until 16 March 1995. He says that he told Russell Pierce that he had had problems, that his leg was still numb, and that Dr Boys had advised him to “take things easy”. Mr Pierce, however, said that he was unaware of any complaints by the plaintiff of -- 10 of 17 -- 11 a spine problem beyond the ordinary complaints of soreness induced by hard work in the period between August and March 1995. I accept his evidence in that regard. However, the plaintiff was, plainly enough, experiencing problems during that period although they were not communicated at the workplace. Dr Baynham’s notes show that on two occasions in February 1995 the plaintiff attended complaining of lower back pain. [42] On 15 March 1995, the plaintiff said, he was required to pick up a length of steel boxing weighing approximately 30 kilograms. He was being assisted by Phillip Hartwig. As he went to throw the boxing onto a stack, he felt excruciating pain in his back and lower leg. On the following morning he returned to Dr Baynham’s surgery. Dr Baynham has recorded a note of the plaintiff suffering from lumbar back pain and sciatica. The pain was such that he administered Pethidine and was later called out to attend the plaintiff on the same day and to provide a further injection of Pethidine, as he did on three subsequent occasions over the next six weeks. The plaintiff did not return to work after 16 March. On this occasion, he applied for workers’ compensation. An employer’s report was signed by Russell Pierce, who seems to have had no doubt as to the genuineness of the injury and the circumstances in which it had been sustained. [43] In respect of this incident, the plaintiff pleads that he should not have been required to lift the boxing when the employer knew that to do so would aggravate his earlier injury. There are also complaints that he was not warned of the possibility of injury, or instructed or supervised in safe methods of lifting, and that he was not provided with mechanical or other assistance to lift the boxing. In respect of this incident, Mr Kahler noted that the weight of the boxing which he estimated at 25 kilograms was close to the recommended weight limit. He did not suggest any alternative means of lifting it. [44] I do not consider that the plaintiff has made out any of the particulars of negligence, breach of contract or breach of statutory duty pleaded by him in respect of this incident. The task of lifting the boxing was unremarkable. It was not of such weight that it required mechanical assistance, and he had, as he said himself, the help of Mr Hartwig. It was not suggested that there was anything inappropriate about the method by which the plaintiff lifted the boxing. He had in fact seen a video film which instructed him as to correct lifting techniques. There was in my view nothing about the lifting or carrying of the boxing which would have created a risk to a worker of ordinary soundness. The defendant had no reason to suppose that the plaintiff was anything other than that. Accordingly, the plaintiff’s claim fails so far as the incident of March 1995 is concerned. [45] I should say in any event I do not regard that incident as having played any significant role in the plaintiff’s lumbo-sacral condition. It is clear that the state of his spine was already such prior to March 1995 that any minor incident was likely to produce symptoms, as the lifting incident in fact did. Although the defendant might reasonably say in respect of this incident that the plaintiff contributed to his own injury by failing to inform his employer of the vulnerability of his spine, it could not be said that that failure was causative in any significant sense of the -- 11 of 17 -- 12 overall damage flowing from the August injury. Accordingly, the counterclaim must be dismissed. Quantum [46] On 2 May 1995, Dr Boys performed a right-side L5 laminectomy and L5/S1 discectomy on Mr Dewar. In late 1995 he took part in a work assessment scheme at the South Brisbane Rehabilitation Centre. He said that as part of the work assessment process he undertook concreting work with Mr Mackenzie, the concreter who had previously employed him on a casual basis, starting at two hours a day and building up to four hours per day. He found, however that the move to a four hour per day workload caused him back symptoms and Dr Baynham, he said, advised him to give up that work. In December 1995 Dr Boys provided a report to Workers’ Compensation Board in which he advised that the plaintiff should be directed away from heavy labouring work. [47] The plaintiff said that after that, he rested his back for a time, but subsequently made some attempts to find work. He undertook three days of landscaping but was told by his employer that he was “useless” because of his back problems. He applied unsuccessfully for a job at the Maroochydore Lifesavers Club. [48] While working for the defendant, the plaintiff was living at Kallangur. It is of some significance that the plaintiff has a history of disqualification from holding a driver’s licence. He said, however, that he had managed without a licence while at Kallangur by getting lifts to work, and by using a bicycle. He hoped in the future to appeal against his disqualification. In May 1995, he and his wife signed a contract to purchase land at Delaney’s Creek near D’Aguilar. It was apparent from Mrs Dewar’s evidence that the decision to move to a rural area was part of a long term plan to improve the couple’s lifestyle, as they saw it, by acquiring some land for, in effect, a hobby farm. The property consisted of 7½ acres, on which the plaintiff said he ran a couple of cows to keep the grass down and had planted some 40 mandarin trees with the help of his step-sons. His tax returns from this point describe his business activity as “beef cattle farming” (1996) and “citrus fruit growing” (1997 and 1998). Neither activity seems, from the returns, to have been extensive. [49] In 1997 the plaintiff was offered a small concreting job at the D’Aguilar Hotel. He said that he organised the work, arranging for a bobcat to excavate and another concreter to undertake the pour. He gave some minor assistance in the concreting. In cross-examination, evidence was tendered to show that a cheque of $3000 was deposited into the plaintiff’s account on 2 September 1996, which, he accepted, related to the hotel work. He said that from those moneys he paid the other contractors involved and the suppliers of materials. He claimed to have received about $50 for himself. Mrs Dewar thought the amount retained might have been between $200 and $250. [50] That plaintiff said that in mid 1999 he had also assisted with the organisation of a slab on a nearby property belonging to Mr Jack Kyle. He gave some very light -- 12 of 17 -- 13 assistance on the job. He was not paid for it, but Mr Kyle did, approximately a month later, give him an agricultural bike which he no longer used and which required repair. Since that time, he had given Mr Kyle assistance on his property performing general farmhand work, working Mondays, Wednesdays and Fridays for three or four hours. His tasks included replacement of fence wire, using a ride-on mower, slashing with a tractor and checking on the cattle. He said that he had not been paid wages, but on one occasion had been given an old saddle by Mr Kyle and on another some timber seconds from Mr Kyle’s timber yard. Mr Kyle had also assisted him by paying approximately $2000 worth of bills when the plaintiff and his wife were in difficulties because of the latter’s loss of her job. [51] The plaintiff also said that within the last twelve months he had been to Mr Kyle’s timber yard at Narangba on approximately twenty occasions. While there he had cleaned machines, operated a machine that made palings, and driven a forklift. His services had particularly been needed when Mr Kyle’s employees had been occupied with the introduction of the systems required in connection with the Goods and Services Tax. He hoped that when Mr Kyle commenced a proposed landscaping business he would be employed in it. [52] In cross-examination it emerged that the plaintiff had concreted the slab for a small shed at the timber yard. He had done the boxing, poured the concrete with assistance, shovelled and screeded the cement. He helped in constructing the shed itself to the extent of driving the forklift and lifting heavy objects with it. Through Mr Kyle’s evidence it emerged that there was an even earlier occasion in about 1998 when the plaintiff constructed a slab for the waste bin at the yard. Mr Kyle said that he had measured up, put the boxing in and then with two other workers poured the concrete. Mr Kyle estimated that he had paid somewhere between $700 and $1000 for that job. Apart from that work, the plaintiff admitted to having constructed a retaining wall of some 20 metres out of sleepers. [53] As to his present condition, the plaintiff said that he had continued to have low back pain since the operation performed by Dr Boys. He did not take painkillers because he had a stomach ulcer. He also suffered from leg spasms for which he had recently been prescribed Rivotril as an anti-spasmodic. For about twelve months during around 1997 he had suffered from depression and had taken Zoloft. He considered himself to be more aggressive since his injury, and that had had some impact on his relationship with his wife. Prior to his injury he had played vigorous football but was not capable any longer of doing so. He was less able to play with his step-children. He said that he undertook the work at Mr Kyle’s property as an outlet for his boredom and frustration and also because of his hopes of later employment by Mr Kyle. [54] The orthopaedic evidence was relatively uniform as to the plaintiff’s condition. Dr Gillett considered him to suffer from a 12.5 % impairment of bodily function. He estimated that in the absence of the 1994 injury the plaintiff would have developed symptoms in the spine within 7 to 10 years from the date of that injury. Had there been no specific event, the plaintiff would have developed back pain, but not necessarily leg pain; and it did not follow that he would require surgery. At best, he might have had 9 to 12 years as a concreter from the date of injury. -- 13 of 17 -- 14 However, in a June 2000 report Dr Gillett suggested that the period for which the plaintiff would have continued to work was between 7 and 10 years. In cross-examination he conceded that if the plaintiff had been symptomatic before August 1994 he would reduce that period; but as I have found otherwise, it is not necessary to consider his evidence in this regard. He considered that the plaintiff would be able to undertake farm work if he were able to do it at his own pace. He was likely to have problems in any employment that involved standing for long periods, and he should not undertake shovelling or other heavy work. [55] Dr Boys gave an estimate of a 10 % impairment of bodily function, 7.5 % of which was attributable to the disc derangement. That, however, was on the premise that the plaintiff’s spinal degeneration pre-accident was symptomatic. On the same basis he had expressed a view that the plaintiff would have had to change his employment within three to five years of 1994 in any event. Cross-examined about the situation if the plaintiff were asymptomatic prior to August 1994, he said that the plaintiff might or might not have been able to work for a further ten years as a concreter. If the plaintiff had been having minor symptoms of musculo-ligamentous strain (consistent with complaints after a hard day’s work) he would have been well advised to undertake work that did not involve low level repetitious bending such perhaps as courier driving. [56] Dr Morgan had given a report assessing a 12.5 % impairment of bodily function. Of that, in view of the radiological finding of narrowing at L5/S1 he estimated that 5 % loss of function pre-dated the accident. In a later report of August 1997, he agreed with Dr Boys’ estimate of the plaintiff’s capacity to continue work as a concreter for some 3 to 5 years after 1994. That conclusion, however, was premised on the plaintiff having experienced low back pain prior to August 1994. In cross-examination, he said that the degree to which the plaintiff had been symptomatic pre-accident would influence the extent to which it could be said that the disc degeneration contributed to his current circumstances. Pains suffering and loss of amenities [57] I accept that the plaintiff suffered a severe and disabling back injury and that he continues to suffer from residual symptoms which limit his capacity for physical exertion. Although it is likely, given the degenerative condition of his spine, that he would have suffered back symptoms within a decade in any event, he may never, in the absence of the work accident, have suffered a disc protrusion nor required surgery. In all the circumstances I consider an award for pain, suffering and loss of amenities of $35,000.00 is appropriate. Interest on half that amount less the Workers’ Compensation Board disability settlement of $7,405.00, for 6.1 years at 2 % gives a further $1,231.59. Past economic loss [58] As to economic loss, I conclude as follows. It is reasonable to suppose that the plaintiff was unable to return to work after 16 March 1995 for the balance of that year. Thereafter he had a capacity to work at least to the extent reflected by his -- 14 of 17 -- 15 more recent activities with Mr Kyle; that is, he could undertake lighter work with an employer willing to make allowances for his need to work at his own pace. Mr Kyle estimated that were he paying the plaintiff a wage he would be worth $60 a day; in fact Mr Kyle said that he had offered the plaintiff a wage but he had rejected it. Insofar as the plaintiff may have experienced difficulty in seeking or finding employment within his capacities because he lives in a rural area, I consider that a factor not caused by any action of the defendant but rather the result of a decision made by him independently of the work injury, although acted upon by him after it occurred. I consider the plaintiff’s decision to forego income when it was offered to him by Mr Kyle is also indicative of an ability to earn not exercised by the plaintiff’s own choice. He is properly to be compensated for, not the entirety of income not earned by him from the end of 1995 to the present, but the extent to which his earning capacity has been impaired by his physical limitations. [59] The plaintiff’s nett income declined from an average of $507.00 per week in the 1992/93 income year to $433.00 per week in the period immediately prior to his cessation of work in March 1995. Averaging his nett income over that period, one arrives at a figure of $468.00 per week nett. Mr Stewart, however, contended that a higher rate should be adopted, on the basis of Mr Ian Pierce’s evidence that he now paid his employed concreters $1,000.00 for five days, equating, Mr Stewart said, to $700.00 after tax. That assumes, firstly, that the defendant’s workers could always be sure of a five day week. It does not appear from the plaintiff’s evidence as to contacting Mr Mackenzie for work when the defendant did not have work for him that that was always the case. Secondly, it assumes that the workers did not have their own work-related expenses to be met from their gross pay. From his income tax returns, even the plaintiff appears to have incurred, in addition to other expenses, yearly motor vehicle expenses of some thousands of dollars while working for the defendant. One assumes workers who actually held driver’s licences might have very substantial outgoings indeed. Without more information, I do not consider I can accept the figure of $1000.00 gross as a useful indicator of after tax income. [60] I consider it reasonable to allow the plaintiff his past economic loss in full to the end of 1995 at the weekly rate of $468.00 per week, giving a figure of $19,188.00 for 42 weeks. Thereafter I consider the appropriate rate is the difference between what I have found to be his capacity to earn, in a gross amount of $300.00 per week equating to approximately $250.00 nett per week, and that figure of $468.00 nett per week ie $218.00 per week. On the basis that the plaintiff has lost a capacity to earn income from the end of 1995 to date in an amount of $218.00 nett per week, I allow another $54,282.00 as economic loss to date, giving a total for the past of $73,470.00. It is the case that the plaintiff served about six weeks of a two month sentence imposed in 1998 for disqualified driving; but since it is conceivable that had he been in employment he may have been able to use leave to cover that period, I do not think it necessary to make any deduction. [61] Superannuation allowed at 6% on past loss would amount to $4408.20. From his tax returns, Mr Dewar has received Social Security Benefits of $5155.00, and he has been paid weekly workers compensation benefit in a nett amount of $24,374.43. Interest on the balance of past economic loss after deduction of those sums amounts, at 5% for 5.6 years since his cessation of work, gives another $12,083.65. There is, in addition, a Fox v Wood component in the amount of $7,006.05. -- 15 of 17 -- 16 Future economic loss [62] For the future, I accept that the plaintiff could have expected to continue work as a concreter until age 40 (approximately nine years from the date of accident, and three years from the present). The same rate of loss ($218.00 nett per week) over three years discounted at 5 per cent would give $31,828.00. The plaintiff has the prospect of work with Mr Kyle in the proposed landscaping part of his business, but I proceed on the assumption that his earnings may well not exceed the $300 per week on which I have based my calculations. Thereafter, I accept that the plaintiff is likely to continue to suffer a diminution in his earning capacity to an extent which would not have occurred had his condition been merely one of gradual deterioration, rather than sudden trauma resulting in a protrusion requiring surgery. It is difficult to quantify the extent of that loss, but I consider that a global award for the future of $100,000.00 meets the case. That figure incorporates the already calculated loss of $31,828.00 together with a prospective loss at about $100.00 nett per week from a date three years into the future to age 60, and some allowance for lost superannuation. Special damages [63] The plaintiff’s special damages consist of the amounts paid by the Workers’ Compensation Board totalling $8,130.50, travelling expenses in an amount of $1,260.00 and other out-of-pocket expenses totalling $6,529.00. Of those, none was contentious except the amount of $4,990.00 contained in the last item, representing the cost of a therapeutic spa. The evidence did not support the need for such a spa, and I do not propose to allow the cost of it as part of the plaintiff’s damages. Special damages, then, will be awarded in the amount of $15,919.50. The plaintiff seems to have received Medicare benefits in respect of the entirety of his medical attendances, leaving interest to be awarded on his pharmaceutical and travelling expenses, together with the cost of a pillow and underlay. Interest at 5 % on those amounts (which total $1,837.80) for the 6.1 years since his accident gives an amount of $560.53. Griffiths v Kerkemeyer damages [64] The plaintiff claimed past Griffiths v Kerkemeyer care in an amount of $4,820.00 on the basis that up to June 1995 he required 216 hours’ assistance (which is accepted by the defendant) and thereafter a further 266 hours, representing one hour per week spent to date by his wife in massaging his back. The agreed rate is $10.00 per hour. For the future, the plaintiff claims one hour per week assistance, in the form of a massage, for 20 years at $12.00 per week. In my view, however, given the plaintiff’s pre-existing degenerative spinal condition, his symptoms were likely to have reached a point by at least 2003 (the time at which I have found he would probably have had to leave concreting) which would have independently warranted massaging. Accordingly, I allow the past claim in the amount of $4,820.00, and a further three years at one hour per week, which discounted at 5 % gives an amount of $1,752.00. Interest on the past claim at 5% for 6.1 years gives $241.00. -- 16 of 17 -- 17 [65] The following is a summary of my assessment of the components of the award : Pain, suffering and loss of amenities $35,000.00 Interest on $10,095 for 6.1 years at 2 per cent 1,231.59 Past economic loss 73,470.00 Interest 12,083.65 Past superannuation 4,408.20 Future economic loss 100,000.00 Past Griffith v Kerkemeyer damages 4,820.00 Interest 241.00 Future Griffith v Kerkemeyer damages 1,752.00 Special damages 15,919.50 Interest 560.53 Fox v Wood component 7,006.05 Sub Total: $256,492.52 Less refund to WorkCover 46,915.98 TOTAL: $209,576.54 [66] I give judgment for the plaintiff against the defendant in the amount of $209,576.54. -- 17 of 17 --