Badcock v Maryborough City Council [1999] QSC 284

Reporting "TRANSCRIPT OF PROCEEDINGS Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau. . \ SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION FRYBERG J No 21 of 1998 -MICHAEL WILLIAM BADCOCK and REVISED COf'fES ISSUED State Reporting Bureau Date3 0 /~ / Plaintiff THE COUNCIL OF THE CITY OF MARYBOROUGH Defendant MARYBOROUGH .. DATE 13/08/99 JUDGMENT 1 1,,"1', Tlae l.alV Courts, Cl'"q':l' Street, Ilrisl':IIlC, Q. -IflfI!) Tclcplalllll': ((7) .12-17 -IJ(.{) F:I'<: (07) J247 55.12 -- 1 of 18 -- 130899 D.3 T32/RC M/T MB0156/99 (Fryberg J) HIS HONOUR: At approximately 10.00 a.m. on 10 October 1995 the plaintiff, in the course of his employment by the defendant, was moving and spreading gravel in Raglan Street, Maryborough. He was using a post hole shovel. An example of the shovel is in evidence. It is a long-handled shovel with a small to medium sized blade. He was holding the shaft of the 10 shovel in both hands with its face towards him, drawing the shovel towards him and behind him, past his right side and thus drawing the gravel to his right side. He did that with a series of repetitive movements. He did it with sufficient force to throw the gravel one to two metres behind him and thus spread the gravel in the area of the drain, which he was . ! in the course of assisting to construct. • I The drain was a 30 millimetre pipe culvert which was being 30 covered with gravel to enable vehicles to pass over it. The plaintiff used sufficient force to throw the gravel one to two metres. The gravel in question was of an average 20 or perhaps 40 millimetre diameter and was described as 2.3 or 2.4. This connoted that it contained fine material and was 40 likely to have a high level of adhesion, not as solid as cement, but such as to make it likely to clog and to coagulate into lumps. The gravel was wet and was therefore heavy. The plaintiff would push the shovel vertically into the gravel, with two pushes usually, and then carry out the movement which 50 I have described. The plaintiff was not aware that he should not use the shovel in this way. He had not been told not to do so; indeed, he had had no training at all in the use of a shovel. Using the 60 2 JUDGMENT -- 2 of 18 -- 130899 D.3 T32/RC M/T MB0156/99 (Fryberg J) shovel in the manner described was not, I find, an obviously stupid thing to do. Indeed when a man is engaged in shovelling, it is quite unsurprising that he should from time to time vary the manner in which he carries out the task. In fact, the method adopted by the plaintiff is attended by risk of injury. Of course all shovelling has some such risk. The 10 risk is greater if the shovel is used incorrectly. I accept the evidence of Mr Neilsen that the risk is greater in using the method adopted by the plaintiff of spreading gravel this way than by the more traditional method of shovelling from a 20 pile in front of the body and throwing in the direction in which one is facing. There is no evidence to suggest that the defendant operated any workplace safety program. Mr Neilsen was a foreman and he 30 gave evidence that he would correct anyone whom he happened to see shovelling this type of gravel in this manner, but it seems that there was nothing systematic in place for safety supervision or training by the defendant, at least nothing which was relevant. On the day in question, Mr Neilsen was 40 not supervising the plaintiff, as someone else had assigned the work which the plaintiff was doing. The task which the plaintiff was performing could, I find, have been done to a considerable extent by machinery without so major expense. The final smoothing would still have had to have been done by hand, but it would not have involved the need to move the heavy wet gravel one to two metres in the way which the plaintiff was doing. The machinery that could have 60 3 JUDGMENT -- 3 of 18 -- .~~-~-... _----.-- .. -.--.-------~-- - --------- 130899 D.3 T32/RC M/T MB0156/99 (Fryberg J) been used would have been a bobcat with a scoop or a frontend loader. In my judgment, the defendant was negligent in that it failed to supply the plaintiff with appropriate plant and equipment to transfer and locate the gravel into the desired position in relation to the trench which was being filled; it failed to provide the plaintiff with any adequate instructions or warnings about the use of shovels in the manner and for the task for which he was using it; and it failed to instruct the plaintiff not to use the shovel with quick repetitive movements to perform that work. I further find that the defendant has not satisfied the onus which lies upon it to show that there was no other practicable way of doing the task which the plaintiff was carrying out. The plaintiff has an alternative claim under section 9 of the Workplace Health and Safety Act 1989, which was in force at the time of the accident and that claim is, I find, made good. As a result of the work which he was doing on that day, the plaintiff sustained a rotator cuff injury of the right shoulder, involving strain or tearing of infrafusal fibres causing superior subluxation of the humeral head. That injury would ordinarily have recovered in six to nine months. It has, in fact, not recovered in the way that one would ordinarily expect. 4 JUDGMENT 10 c 30 c 40 c ;'0 60 -- 4 of 18 -- Ie'" ~\ ! 130899 D.3 T33/PMG M/T MB0156/99 (Fryberg J) The plaintiff says that he has continued to suffer pain, sometimes extreme pain in his shoulder since the time of the injury. He has made some minor attempts to work in that time, but substantially has not worked since the date I have mentioned. This, he claims, is because of continuing severe pain in his shoulder. He says, in more particularity, that a few weeks after the accident he returned to work, carrying out light duties that consisted of working in the Council's parks and gardens department. Even these he could not perform satisfactorily and he did not continue to work for the Council after 13 November 1995. Since then, apart from some casual driving work he has not worked at all. He attended on 22 occasions on a physiotherapist and carried out exercises at home, as prescribed by him. He found that the process was painful and that it did not provide him with lasting relief. He now finds that the use of his right arm is limited to picking light items straight up. He cannot move his arm out to the side without pain, although he has more movement directly out in front of him with the arm bent. He demonstrated the movement which he has, in Court. He was able, by following a path in front of him and then a little to the side, to touch and stroke his hair, but was unable to directly move his arm to that position. 5 JUDGMENT 10 20 30 40 50 60 -- 5 of 18 -- 130899 D.3 T33/PMG M/T MB0156/99 (Fryberg J) He is no longer able to ride a push bike. He is limited in the distances which he can drive without the onset of severe pain. He has, on occasion, driven further than Gympie (he lives in Maryborough), but he has found it uncomfortable. He finds driving less painful than travelling as a passenger, mainly because he can rest his right arm on the arm rest while 10 he is driving. The plaintiff has two young children aged 7 and 4. He cannot play with them as he would wish. He has to be careful when they are around, that they do not bump his arm. He can lift 20~ them, one at a time, provided he is careful in the way he does that. o Prior to his injury he enjoyed fishing and went fishing at 30 least twice a month. He now carries out that activity relatively rarely. He finds himself able to mow his lawn, which he does mainly by the active use of his left hand, with his right resting on the 40 motor mower. He is, however, unable to shovel or dig in the ogarden with his right hand, though he is able to do these things using his left. He needed his wife's assistance for some time after the 50 accident to bathe and dress himself properly, but he now manages these tasks on his own. He is not able to do that with all types of clothing. His wife will rub his shoulder with liniment, which he finds gives him some relief, about three times a day. 60 6 JUDGMENT -- 6 of 18 -- 130899 D.3 T33/PMG M/T MB0156/99 (Fryberg J) He was naturally right-handed and the need to use his left hand as his dominant hand has caused him some difficulty, as for example, in using a fork to eat. He says that his injury and his inability to do work around the house has caused some tension with his wife and children, and has interfered with his sex life at home. He takes pain killers, usually two when he rises in the morning and one or two more during the day. He has disturbed nights and although he does not wake up, he tosses and turns and makes noises, which is distressing, not only for him, but for his wife as well. I accept the plaintiff as an honest witness, who described his condition as best he was able to me. ,j I do think that he does not have complete insight into his condition, and that he probably could have made greater efforts to find work than he has done, but I sympathise with the position in which he has found himself. Precisely what that position is, is the subject of some medical controversy. The major portion of his treatment appears to have been carried out by Dr Blenkin on behalf of the Workers' Compensation Board. The plaintiff was referred to Dr Blenkin in November 1995. At that stage the doctor, who is an orthopaedic surgeon, injected 7 JUDGMENT 10 20 30 40 ;;0 6() -- 7 of 18 -- 110899 D.3 T33/PMG M/T MB0156/99 (Fryberg J) the subacromial bursa with Narcan and Celestone, which I understand to be anaesthetic and cortisone mixtures and it was found that this, in fact, made no difference to the plaintiff's symptomatology. That led Dr Blenkin to believe that the problem was an internal one within the cavity of the shoulder. He thought, at that stage, in a report which he wrote to the Workers' Compensation Board on 5 December 1995 that it was likely to be either a partial thickness under the surface tear of the rotator cuff, or possibly a detachment of the glenoid labrum, most likely superior. On 15 February 1996 Dr Blenkin performed an arthroscopy on the right shoulder. There were relatively few findings. There was a small abrasion of the posterior aspect of the glenoid labrum which was probably not significant in the doctor's view. The remainder of the examination was normal. Dr Blenkin noted that he had a good view. There was a palpable click from the shoulder, but in his oral evidence Dr Blenkin said that he thought that was not significant. He recommended to the Workers' Compensation Board in February 1996 that the plaintiff should have an MRI examination. That duly took place. The MRI report showed some apparent superior subluxation of the humeral head but no other significant abnormalities. Dr Blenkin analysed the shoulder as having a subtle instability. He expressed the view, in March 1996, that the shoulder needed to undergo an intensive rehabilitation program in the form of rotator cuff 8 JUDGMENT 10 o 30 o 40 o 50 60 -- 8 of 18 -- 130899 D.3 T33/PMG M/T MB0156/99 (Fryberg J) strengthening. It was that recommendation which led to the physiotherapy to which I have already referred. At that time Dr Blenkin wrote, "These cases are often difficult. Some do not settle with the strengthening and progress to a more overt instability. Others remain static and a few require surgery in the form of stabilisation. But that is an option that needs to be considered once rehabilitation has been exhausted." By June of that year, after a further examination and review, Dr Blenkin felt that he had come to the end of the road with the plaintiff, in terms of investigation and treatment. He wrote to the Workers' Compensation Board that in his view that plaintiff was genuine and had always been so. He said that he thought the shoulder might gradually right itself but it was difficult to put a finger on how long that was likely to take. He was aware of a series of investigations including a review by Dr Melinda Pascoe. I shall refer to that doctor's evidence later. He thought the plaintiff should be re-trained and pointed toward another job that did not put demands on his shoulder. He expressed the view that the plaintiff was an extremely genuine and motivated young man who would respond well to re-training. Dr Blenkin was asked by the solicitors for the plaintiff to prepare an updated report for the purposes of this litigation, and that he did in April this year. He described the history, 9 JUDGMENT 10 20 30 40 :;0 50 -- 9 of 18 -- 130899 D.3 T34/MH M/T MB0156/99 (Fryberg J) to which I have already referred, and under the heading, "Current situation", described the continued reports of pain by the plaintiff. On examination he found that the plaintiff walked in a way to reduce movement in the right shoulder; that the right shoulder had a slumped position compared to the left; that there was mild wasting of some of the musculature, 10 and that there was some reduction in certain movements. His opinion was that the fact that the rotator cuff injury had not resolved was unusual particularly since there was an inability to find a clear cause for the symptomatology. He thought that the plaintiff had sustained a small tear to the rotator cuff tendon which was of such a nature and size that c=) it was not demonstrable on the MRI scan, the ultrasound scan, or by arthroscopy. 30 He referred to information given to him by the plaintiff of some localised neurological disturbance such as sensation of numbness in the right hand and excessive sweating but did not o think the plaintiff suffered a true reflex sympathetic 40 dystrophy affecting the right shoulder. Nonetheless, he was of the opinion that the plaintiff had developed a regional pain syndrome about the shoulder as a result of the injury. He thought that this pain in the shoulder and the plaintiff's function would improve with the passage of time. 50 In his oral evidence he agreed with counsel for the defence that it would likely be largely recovered in three to five years. He expressed the view that the plaintiff had a permanent partial impairment of the order of 7.5 per cent of 60. 10 JUDGMENT -- 10 of 18 -- '--- '-"'- 130899 D.3 T35/BH M/T MB0156/99 (Fryberg J) the use of the limb. I have referred to Dr Blenkin's evidence at some length because it is his evidence which I prefer to that of other doctors where they conflict. Dr Blenkin's evidence finds some confirmation in the evidence of Dr Pentis in so far as the latter also expresses the view that the eventual prognosis for the plaintiff is good but that the plaintiff may be left with a residual problem after that recovery. Dr Pentis' view that it may be best if the plaintiff does not return to any work that requires shovelling, heavy lifting or repetitive overhead use of the shoulder is a view which I accept. He also assessed the loss of function at 7.5 per cent of the loss of the efficient function of the upper limb. Dr Funch, the plaintiff's general practitioner, observed some of the symptoms of the condition of the pain syndrome to which I have referred as well as some wasting of muscle tone. The areas of disagreement with other medical practitioners fall into two categories. First, there is the disagreement evident between the views which I have described and the views which are implicit or explicit in the evidence of Dr Bendeich and Dr Pascoe. Basically their view is that there is nothing wrong with the plaintiff. They are unable to explain his continued complaint of pain. It seems that Dr Pascoe saw the plaintiff only once and her report is fairly short. She does not seem to have considered in any detail the question of the pain syndrome, although she did not see any evidence of it when she examined the plaintiff. 11 JUDGMENT 10 20 30 40 50 flO -- 11 of 18 -- --~---~~~---- 130899 D.3 T35/BH M/T MB0156/99 (Fryberg J) Dr Bendeich could find no orthopaedic lesion to account for the continuing symptomatology. He gave oral evidence in which observations on examination of the plaintiff which were inconsistent with those which he made were put to him and he was asked to express opinions in relation to the pain syndrome issue on the assumption that others had made those observations. He was however unable to express any view one way or the other on such a hypothetical basis. I found his evidence in this respect unsatisfactory. Where the evidence of Dr Pascoe and Dr Bendeich conflicts with that of Dr Blenkin, I prefer the latter. The second class of conflict of evidence related to the question of what is likely to happen in the future. The plaintiff also called evidence from Dr Winstanley and Dr Watson. They expressed the view that the plaintiff's condition was likely to be permanent, though Dr Watson accepted that there was a possibility that it would recover in the future. I thought Dr Winstanley really failed to take into account material which would suggest the possibility of recovery. And I thought Dr Watson's evidence unsatisfactory for two reasons. The first was that it was, to a considerable degree, speculative. It does not assist in the resolution of cases such as this, in my view, for medical practitioners to express views in terms which baldly assert the existence of a condition when there is inadequate basis for observing the 12 JUDGMENT 10 o 30 c 40 o 50 60 -- 12 of 18 -- 130899 D.3 T36/EW M/T MB0156/99 (Fryberg J) condition and describing in any substantial or recognised way. I appreciate that Dr watson claims increasing support for his views but it was not demonstrated to my satisfaction that to a considerable degree they were not speculative. Second, I thought his reasoning was prone to the error of assuming its own conclusion. He seemed to base his conclusion that there was a permanent, chronic pain syndrome on the premise that the plaintiff was suffering from chronic pain which could not otherwise be explained. I prefer the evidence of Dr Blenkin to the evidence of the last-named doctor where it conflicts. On the basis of that evidence I find that the plaintiff will probably largely have recovered the use of his arm and his function in the next three to five years. He will be left with a situation where it is undesirable that he undertake heavy lifting, labouring or work above shoulder level. That will place him at a disadvantage in the labour market. And he will, in addition, have other difficulties in obtaining work ~.. by reason of the fact that he has been out of work for a considerable period and likely will require retraining in some way. His previous work history was quite good. After leaving school he studied for five months at the Burdekin Agricultural College and then for a year at a college of Technical And Further Education at Grovely. He worked as a stockman and jackaroo at Augustus Downs for two and a half years, was then transferred to Abington Downs Station near Georgetown where he worked for some time. He worked in Cairns doing cane bin hauling and then in Georgetown doing pole fitting for 13 JUDGMENT 10 20 30 40 so 60 -- 13 of 18 -- ~---~~---- --------------. 130899 0.3 T36/EW M/T MB0156/99 (Fryberg J) electricity. After that he worked for the Etheridge Shire Council for somewhat over a year and in September 1993 commenced work for the defendant. He had therefore been working for the defendant for over two years when his injury occurred. There is no reason to think that he would not have continued to work full-time for the defendant if he had not 10 been injured. I turn now to the various heads of damage. For pain and suffering the parties are agreed that on the basis which I have, in fact, found an appropriate amount for an award is the sum of $40,000. I find that of that amount two-thirds should be attributed to pre-trail pain and suffering for the purposes c=) of calculating interest. 30 The amount which the plaintiff would have earned up until the time of trial, had he continued to work for the Council, net is $77,000-odd dollars. c Because I think the plaintiff had some chance, which he has 40 not fully exercised, of getting alternative work, I propose to discount that amount and to award for pre-trial loss of earning capacity in the sum of $65,000. For future loss of earning capacity, the position is more 50 difficult. Were he currently working for the Council, the plaintiff would be earning the sum of $420 net per week. In my view, his future loss of earning capacity should be calculated at that rate over three and a half years. 60 14 JUDGMENT -- 14 of 18 -- 130899 D.3 T37/PMG M/T MB01S6/99 (Fryberg J) I select that time rather than five years for the sake of simplicity, since the finding which I have made is that the plaintiff should substantially be recovered in five years. There would, I expect, be some earning capacity toward the end of that period and the case is best dealt with by allowing future loss of earning capacity, calculated at $420 per week for a period of three and a half years. The same approach should be taken to the calculation of lost superannuation benefits, and I propose to leave the parties to calculate that and to bring in a draft form of order. I will hear argument in Brisbane if there is any matter of detail which cannot be agreed. As for past lost superannuation benefits, the matter should be calculated on the same basis as past loss of earnings, consistently with the findings which I have made. Unless I have mistaken the position, the medical expenses, the hospital expenses and the other expenses all paid by the Workers' Compensation Board, set out in schedule SA, 1 to 3 of Exhibit 6 are admitted. The same is true of item S in that section. The medical expenses, pharmaceutical expenses and travel expenses have not been admitted, but I see no reason why those expenses should be discounted. I think they should be allowed in full. 15 JUDGMENT 10 20 30 40 50 60 -- 15 of 18 -- 130899 D.3 T37/PMG M/T MB0156/99 (Fryberg J) As far as the claim for provision of services is concerned, I think that the plaintiff's claim is exaggerated. Although there is evidence from both the plaintiff and his wife as to the assistance which she has provided, in my view a good deal of what she describes is simply part of the ordinary work which both partners to a marriage would expect to perform in daily life. I accept the submission made by Mr North on behalf of the defendant that there has been some variation of tasks as a result of the plaintiff's injury, whereby he has taken over tasks which previously his wife would perform and vice versa. I do not think provision should be made for the amount claimed by the plaintiff, but in my view, an award for past provision of services of $15,000 is fair and for future provision of services for five years on the basis of seven hours per week ought to be made. Pharmaceutical expenses in the future should be calculated over a period of five years at the rate which is agreed at $3.94 per week. Are there any other headings that I haven't covered? MR WEBB: Superannuation. HIS HONOUR: Thought I covered that. MR WEBB: Interest on special damages paid. HIS HONOUR: Well, you can calculate that, can't you? MR WEBB: Yes. Six per cent. Comes to 380. HIS HONOUR: Six per cent's agreed. 16 JUDGMENT 10 o 30 c 40 50 6() -- 16 of 18 -- 130899 D.3 T37/PMG M/T MB0156/99 (Fryberg J) MR WEBB: Oh no, that's the - the rate for future - Griffiths and Kerkemeyer is the current rate, I take it? MR NORTH: The dollar rate, Your Honour, as per the evidence from Domicare. MR WEBB: Well no, there's a full Court ----- MR NORTH: Is that it? MR WEBB: ----- there's a Court of Appeal decision that says as for the future, you take the rate plus the service charges. My learned friend's aware of that. That's ----- HIS HONOUR: This is a hundred and eighty-nine dollars a week, is it? MR WEBB: It's the Domicare rate. HIS HONOUR: Yes. That is their exhibit. That is their current rate though, is not it? MR WEBB: It's their current rate, but it's not at the - it's at the rate plus administration plus the other, according to HIS HONOUR: Yes, what they charge. The full rate of what they charge? MR WEBB: As to the future, yes. HIS HONOUR: Yes. MR WEBB: That's so. HIS HONOUR: For the period which I have specified. MR WEBB; Seven hours a week for five years. HIS HONOUR: Yes, for five years. MR WEBB: Thank you, Your Honour. HIS HONOUR: I would ask the parties to perform the necessary calculations and bring in to my associate a draft order which if initialled by both parties I will make the order of the Court. I grant liberty to apply in the event that there is any matter of disagreement in working out the order. 17 JUDGMENT 10 20 30 40 50 60 -- 17 of 18 -- 130899 D.3 T37/PMG M/T MB0156/99 (Fryberg J) HIS HONOUR: In my view the defendant should pay the plaintiff's costs of and incidental to the action to be taxed and the costs of the plaintiff in relation to the procurement and calling of evidence from Domicare should be paid on an indemnity basis. 18 JUDGMENT 10 o 30 c 40 c 50 60 -- 18 of 18 --