Dennien v Silva Earthmoving Contractors Pty Ltd [1999] QSC 158

) ) ) ~I IN THE SUPREME COURT OF QUEENSLAND No. 8845 of 1998 Brisbane Before Mr Justice Ambrose [Dennien v Silva] BETWEEN: AND: BARRY JAMES DENNIEN Plaintiff Sn.VA EARTHMOVING CONTRACTORS PTY LTD ACN 010459757 Defendant REASONS FOR JUDGMENT - B.W. AMBROSEJ. Delivered the 27th day of July 1999 CATCHWORDS: NEGLIGENCE - Personal injuries - PI grader driver claimed damages for back injuries from defective grader-seat and defective grader clutch/transmission - wh def breached common law duty of care to pi - wh def breached statutory duty owed to pi Counsel: Solicitors: Hearing Date: Mr P Mylne for the plaintiff Mr R Morton for the defendant Ferguson Cannon for the plaintiff COITS Chambers Westgarth for the defendant 19,20,21 July 1999 -- 1 of 24 -- IN THE SUPREME COURT OF QUEENSLAND Brisbane Before Mr Justice Ambrose [Dennien v Silva1 BETWEEN: --~~ -----~-- -~------- BARRY JAMES DENNIEN AND: No. 8845 of 1998 Plaintiff SILVA EARTHMOVING CONTRACTORS PTY LTD ACN 010 459 757 Defendant REASONS FOR JUDGMENT - B.W. AMBROSE J. ~ Delivered the 27th day of July 1999 At the time of injuries allegedly suffered on 5 July 1993 and 4 August 1993, the plaintiff was employed by the defendant to drive a grader performing earthwork construction necessary '~( to develop a residential estate in an area at Albany Creek. 2 He was then 52 years of age. He had qualifications to drive various types of earthmoving ~ equipment which he had done over many years. It is his case that he suffered injuries to his back on each specified occasion due to the negligence and/or breach of statutory duty on the part of the defendant in failing to provide a safe grader for him to drive and in failing to properly maintain and service it and to repair defects in its transmission and upon the seating upon which the driver had to sit to operate the machine and to exercise proper supervision over and give adequate warnings of danger etc. involved in operating the defective machine. He said that he had specifically drawn those defects to the attention of relevant persons in the employment of the defendant but nothing had been done to remedy them. 3 Proceedings were commenced in the District Court of Queensland on 28 June 1996 - only days before the limitation period expired with respect of the negligence alleged on 5 July 1993 and c c c -- 2 of 24 -- 2 a little over a month before that period expired with respect to the negligence alleged on 4 August 1993. 4 The action was transferred from the District Court to this Court on 26 August 1998. 5 On 29 September 1998 the action was referred to ADR but the defendant objected to this reference on the basis that there was no prospect of settlement. As the evidence unfolded the reason for the defendant's objection became clear. The plaintiff had been driving heavy earthmoving equipment of various types for nearly 30 years prior to obtaining employment with the defendant in September 1992 to work on the construction of a residential subdivision at Raby Bay. He was then employed to drive a grader ) which was described for accounting and other purposes as "Unit 303". He operated that grader at Raby Bay for two or three months. 7 In early March 1993 he was sent to drive the grader on a development site at Morayfield. He did work there on a residential subdivision for the defendant driving that grader until mid April 1993. ) 8 Generally speaking the plaintiff worked about a ten hour day, six days a week. He worked ) at Morayfield from 26 March to mid April 1993 and then worked at a site at Albany Creek for a couple of weeks. He then worked at Cashmere from 19 May 1993 to 23 June 1993 and then worked at Albany Creek again from 24 June 1993 to 4 August 1993 when he ceased work with back trouble. On all those occasions he drove the Unit 303 grader for the purpose of grading road sites established by bulldozers. He spread gravel road base on those sites, and prepared the edges of the sites for the.construction on them of kerb and channelling. He then spread a second layer of road base or gravel between the constructed kerb and channelling preparatory for the application of bitumen. 9 Much of the most demanding work done by the plaintiff involved "trimming" a bottom -- 3 of 24 -- 3 course of gravel to a level indicated by surveyors' pegs for the purpose of laying on the trimmed surface the concrete kerbing and channelling. 10 The perfonnance of this work required that the grader operate in first or second gear. The maintenance of the correct level was critical to this part of the road construction process and the "trimming" involved the grader constantly stopping and starting. Generally speaking, the trimming exercise involved the road base level being checked every few metres. 11 When laying the second course of gravel between the constructed kerb and channel either side of the road, it was again important to achieve the right level- within a tolerance of-perhaps c 5-10 millimetres - and the grader would level the second course of gravel by moving forward for no longer than perhaps a minute to a minute and a half at a time before coming to a halt before c moving forward again. 12 According to the plaintiff's evidence, he first noticed problems in the operation of the grader when he was working at Raby Bay. He said the transmission was "pretty jerky". He said that when letting the "clutch" out to put the grader in a forward movement "instead of taking off nice and smoothly it would sort of grab you and throw you back into the seat". He said that at c Raby Bay it did not perfonn that way as noticeably as it did later; nevertheless he noticed it from that time onwards. c 13 He explained that the gear system worked through a "pre select box". The driver selected the gear and the transmission was so designed as to make it unnecessary to change gears from a starting position in order to finally engage the preselected gear. Within the range of gears leading to the preselected gear the transmission would work automatically. The plaintiff said he was familiar with this type of transmission system but that o~ the particular grader he was driving, Unit 303, there was some defect in its system and he found it necessary to start in neutral and simply change up from gear to gear to whatever gear was ultimately required. He said if he selected the -- 4 of 24 -- 4 third gear for example and then tried to put the grader into operation it would just "sit there and shudder and wouldn't move". He said that when he was driving the equipment, in any event, he just "took the gears through their ranges". 14 He said he received no instructions about how to drive this particular grader but as I understood his evidence, with his vast experience in handling equipment of this sort, he did not need it. He said that each time he engaged a gear there was a jerking motion in the grader as it moved forward and this had the effect of throwing him backwards. 15 His second complaint - although it was not made in the pleadings as a particularised defect J - was that there was a defect in the isolated hydraulic seating system on the grader. According to .the plaintiff the system was designed so that if the grader worked over bumpy land or ran into something, the seat upon which the driver was sitting would rise gently cushioning the impact and then descend gently after reaching its maximum height; however, on this particular grader the seat would rise gently and then drop suddenly through a distance of from four inches to six inches. As J well as that the back of the seat could not be positioned at the correct level to give him safe and effective support for his back when he was thrown backwards each time the grader was put into ) forward motion. 16 According to the plaintiff he normally used only first gear or second gear in performing his work. He said that the diesel engine of the grader was a powerful one. He said that he constantly used the "clutch" when he was using the grader. He said that when he was preparing a base for the kerb and channelling it was necessary for him to stop after travelling for about five metres; each time he started to more forward again the grader jerked as he described it "like a whiplashing effect sort of because the seat was in the position it was". He complained that he was unable to adjust the seat to avoid impact between the lower part of his back and the back support on the seat because the part that permitted such adjustment was rusted and inoperative. He said -- 5 of 24 -- ------------ 5 that he and others apparently, _had attempted unsuccessfully to adjust the back of the seat so that it would be more comfortable - presumably so that he would not be whiplashed back onto it in .:., ... ~..'- the vicinity of the lower part of his spine. He said that he told "the field mechanic" about it but the mechanic said "you will just have to work it that way". He said that in fact he and others employed by the defendant (not identified) did try unsuccessfully to shift it on a number of occasions. 17 The plaintiff said that it would have been a relatively simple job to free the "rusted up" adjustment screw. He said that with fairly simple equipment he could have done it himself - but c he did not have that equipment. It is clear however on the material that the field mechanic did have the very equipment that the plaintiff said could easily have corrected this defect in the c adjusting screw for the seat back. 18 The plaintiff gave evidence that over a period of some months, in effect due to the deficiency in the transmission of the grader, whenever he started off in a forward motion using the clutch he was "whipped forward and then thrown back" so that his "torso would go over that back rest". He said that the longest period that he would have continuously "trimmed out" for c kerbing and channelling at Albany Creek would have been three to four days - presumably working ten hours per day. c 19 He said that he first noticed pain in his back on 5 July 1993. At that time he said he was doing "boxing work" which involved trimming and levelling the road site roughly cut out by bulldozers. He said on the afternoon of 5 July 1993 pain "went right across the lower part of my back and down into my left leg --- and right down into my big toe". He said the pain increased in severity and was significant. He said that the pain got worse until he took some time off on 28, 29 and 30 July when he consulted Dr Skinner. He said he returned to work on 2 August 1993 but the pain had not lessened after his three days sick leave. -- 6 of 24 -- 6 20 The plaintiff gave evidence that he had complained about the "condition of the grader" to two foremen - one of them being Eric Smith. He said that he told each foreman of the "whiplash feeling" each time the clutch was let out and that it was "just about throwing my head off". One might expect that this would have been quite visible to any foreman on the site supervising the performance of work generally and indeed to all persons anywhere in the vicinity of the grader if it performed in that fashion every time it was put into forward motion. 21 ) The plaintiff said that on one occasion at Cashmere he had been away from work or at least not driving the grader and Eric Smith had apparently used it. He said that he was present J when Eric Smith told the field mechanic - "Warren you are going to have to do something with 'that grader because one of these days it is going to snap somebody's head off". He said that he particularly remembered this statement by Eric Smith because it was the first time that he had ever heard anybody (apart from himself) say anything about that particular deficiency in the performance of the grader. He said that the people he told about this aspect of the grader's ) performance "just so~o> of palmed me off" and suggested that he get the mechanic to do something. He said that when he returned to work on 2 August 1993 after seeing Dr Skinner for the third time on 30 July 1993. He performed some light duties and on 4 August 1993 he was again trimming the lower course of gravel for kerb and channelling. He said he had worked a 10 hour day and had to stop about every five metres to have the level checked. He said that day the grader was operating "the same as it always did, It was jerking and whip lashing my body around". He said that he worked "until smoko". I presume he was referring to a morning break. He said that his back was so sore that he could not get off the grader without assistance. However he did get back on to the grader after his break and in the course of an operation which involved apparently simply reducing the height of heaps of gravel that had been dropped there by trucks on the road -- 7 of 24 -- 23 -------- ------------------------- 7 site and then spreading it to design level he decided to get off the grader and check some levels. It was then that he found that he had no control over his left leg and collapsed. He was assisted to his car and went off to see a doctor at the Caboolture Medical Centre on 4 August. He then saw a Dr East rather than his "regular general practitioner" Dr Skinner. He received some pain killing medicine and saw Dr Skinner again on 10 August 1993. He was referred to an orthopaedic surgeon Dr Bolton and had a laminectomy performed on 3 September 1993. Although some time was spent in the course of the plaintiff's case confirming the deficiency in the seating arrangement he was required to use when driving the grader and the attention of doctors was drawn to the likely effect of this deficiency as a cause of his back problems, no reference was made to this alleged deficiency in the plaint. Indeed it is not until one reads the engineering report ofMr Chaseling given in June 1998 nearly five years after his alleged injury that the first reference seems to have been made to the defective grader seat. Mr Chaseling was apparently given a statement of the plaintiff taken in 1994 - or at least that is suggested in his report. If such a statement did contain any reference to a defective seat that had any relevance to the plaintiff's case it is surprising that the matter was not pleaded in the plaint initiating the proceedings on 28 June 1996. It was put to the plaintiff that this was a matter of recent invention. It was his case that it was really suggested by a solicitor that he might consider taking action against the defendant when he attended that solicitor for other purposes using a walking stick. He gave the name of the solicitor and it seems to me in the light of the cross examination, had the statement he initially gave to the solicitor who initiated proceedings on his behalf contained any reference to defective seating arrangements on the grader it would have been open to the plaintiff to put that statement in evidence to rebut the suggestion of recent invention. Although almost invited to tender such statement it was not in fact tendered for this or indeed for any other purpose. Mr Chaseling whose report was tendered said that the transmission problem described c c c -- 8 of 24 -- 24 J ) ) 25 8 by the plctintiff might be explicable on the basis of the stretching or wearing of a "Bowden cable" which links the clutch pedal in the driver's cabin with the clutch-transmission part of the grader about two metres away. Mr Chaseling did not take any opportunity which may have existed to inspect the grader which the defendant had sold in May 1995 - nearly two years after the plaintiff's alleged injury on it and more than a year before any claim was made by the plaintiff that its defective condition was responsible for his injury. There was no evidence as to any efforts made to locate it to do so. A computer printout of the cost of servicing and ~aintaining Unit 303 between 2 pecember 1989 and 23 May 1995 indicates that according to the company records in any event, a great deal of money was spent over this period in maintaining and repairing and servicing the equipment. The unit was sold to Chesterfields for $40,000 on 23 May 1995. Indeed the supplier of parts for this grader - Chesterfields - provided parts from January to September 1993. Many parts were prc,vided and much labour was expended on repairing and refurbishing Unit 303. Invoices from Chesterfield for that period (Ex. 13) indicate that nothing was purchased that would have the remotest connection with the clutch or transmission of the grader or indeed for that matter as far as one can tell with its driver's seat. Indeed, Mr Chaseling called by the plaintiff relies upon the absence of any record of anything being purchased in connection with the clutch or transmission of the grader during this period to support the plaintiff's contention that there was a failure to repair something which could have been repaired relatively easily and inexpensively. Against the background of evidence called for the plaintiff, I now turn to direct evidence called for the defendant. The foreman, Mr Smith denied having any knowledge of any deficiency in the grader of the sort described by the plaintiff. Moreover he said he had no recollection of any conversation of the sort sworn to by the plaintiff concerning the problems he was having with the grader over so many months. Similarly the field mechanic, Mr Kindt denied having any knowledge -- 9 of 24 -- ..(. --------------- 9 of the deficiencies to which the plaintiff referred and denied having any conversation with the plaintiff along the lines sworn to by the plaintiff. He said that there was never any problem in getting the authority of the defendant to put into good working order any part of its earth moving machinery used to perform its contract work. He said that the only explanation he could think of for behaviour of the machine of a kind which the plaintiff described was a defective Bowden cable of the sort to which Mr Chaseling referred. He said he had never in all his years of experience in servicing and maintaining equipment of this sort ever come across such a defect. He denied ever saying to the plaintiff that it was an old grader and that the defendant would not be prepared to spend $20,000 repairing it. He said he had no idea that the machine ever behaved in the manner which the plaintiff described and in any event even if it did, that problem could be remedied by simply replacing any defective Bowden cable which could probably explain such unusual performance. 26 Mr Eaton, who later became foreman with the defendant, in fact drove the grader for two 27 hours the day after the plaintiff left work with his bad back on 4 August. He said he continued to drive it from time to time for a few days when it was needed. At that time in the absence of the plaintiff he drove both a bulldozer for the sort of work that required its use and also the grader when it was necessary to do the sort of work that the plaintiff was employed to do. He said he noticed no deficiency of any kind with the grader. Later on he was transferred to do work at Kallangur where he worked with the machine for about three weeks doing precisely the sort of work that the plaintiff had been doing. He said he found no problem either with the clutch! transmission of the grader or with its seat. One matter which I should observe is that some of the work required of the grader was fine work. It required the production of levels of gravel within a 5 -1 0 millimetre accuracy; much of the work involved stopping and starting the grader every minute or minute and a half I have c c c c -- 10 of 24 -- 10 difficulty accepting that if the grader was performing the way the plaintiff said it was - constantly jerking forward and "whiplashing" the driver it would not have been abundantly apparent to everybody on site - particularly the foreman and the man working with the plaintiff close to the grader to ensure that the placement of gravel achieved the required design levels. Of all people working on site where the plaintiff worked over a period exceeding ten months only the plaintiff gave evidence of such an unusual and noticeable performance. 28 According to Mr Cortes who has had 30 years experience in the earthmoving industry and J is familiar with the sort of equipment used by the defendant, he has never in that time come across a clutch or transmission that needed attention from time to time to keep it operational. ~9 The plaintiff did say that on 4 August 1993 as a result of the defective clutch he got a "good old sudden jarring" shortly before his back pain led him to again seek medical attention. 30 Dr Skinner (called by the plaintiff) said that the plaintiff first consulted him on 28 July 1993 - that is about three weeks or so after the alleged injury on 5 July 1993. On that occasion he complained of a sore back and informed Dr Skinner that he had already seen Dr Hewson who had arranged to have x-rays of his back taken together with blood tests. The plaintiff told him ~) that he had had a "manipulation" of his spine. He told Dr Skinner that he had had back pain and pain across the top of his hips for a period of three weeks. He made no mention to Dr Skinner of any "acute trauma" which had produced that pain. Dr Skinner asked him if he had had a recent injury and the plaintiff did not suggest that he had. Looking generally at the evidence of Dr Skinner I infer that on the plaintiff's first visit on 28 July he made no reference to any 'jarring" of his spine while working on the grader. I think it likely that it was at a later time that Dr Skinner made a note to that effect (which does not appear in chronological order on the medical notes). Dr Skinner indeed said that it was not until the plaintiff's third visit to see him on 30)uly 1993 that he made any complaint about the part that the grader may have played in his back problems. -- 11 of 24 -- 31 32 33 34 11 It was on this third visit that the plaintiff first raised the question whether he should be on workers' compensation. According to Dr Skinner when the plaintiff first consulted him on 28 July 1993 he then had a pain:fullumbar spine and difficulty with bi-Iateral straight leg raising. He agreed that these signs were "classical" signs of a disc protrusion. Indeed Dr Skinner thought the first CT Scan obtained of the lumbar spine was inconsistent with his clinical diagnosis and he sent for a second one. A later CT Scan on 16 August 1993 recorded a prolapse of the L4/5 disc. According to Dr Nave the degenerative condition of the plaintiff's lumbar sacral area put him at risk when engaging in activities where he had to bend awkwardly and particularly when lifting things. Lifting heavy things or even light things awkwardly could cause a prolapse of the disc. He concluded, looking at a piece of disc material broken off in the vicinity of the rupture that the spinal area must have been "reasonably degenerate" for such a fracture to occur. The defendant called Dr Hewson - the doctor who examined the plaintiff on 6 July 1993 when he visited a medical clinic in Caboolture which to that time was the one he normally attended. In fact his medical records from that clinic show that over a period of three years he had attended it on 14 occasions for treatment of various health problems. On 6 July 1993 it was Dr Hewson,. one of a number of doctors practising at the clinic, whom the plaintiff consulted. Dr Hewson took a history from the plaintiff which he wrote down on his medical record card. Later on 9 July 1993 he again saw the plaintiff and made a further note. When the plaintiff consulted Dr Hewson on 6 July 1993 he complained of lower back pain and a soreness. He said he had never had back trouble before but that after lifting a fish tank two days earlier (i.e. on Sunday, 4 July 1993), and then vacuuming, his back became sore. Dr Hewson examined the plaintiff and on straight leg raising found that the left leg could be raised only c c c c -- 12 of 24 -- 12 through a 45 degree angle. Normally a patient can raise his leg through a 90 degree angle. He said that when the plaintiff on 6 July 1993 raised his leg to a 45 degree angle he suffered such pain that he did not continue to raise it further. 35 When pressed as to whether he may have been mistaken in recording that the plaintiff told him he had been lifting a fish tank two days earlier which led to the onset of pain he observed that he always took notes from a patient as to his history and he asked what reason he would have for writing such a thing down if the plaintiff had not told him. More importantly he said that· the ) plaintiff made no complaint whatever to him about driving a grader which caused a jarring to his back. He said that had the plaintiff said that he would certainly have made a note of it because it ) would have been relevant to ascertaining the cause of the back pain. It is clear on the material that Dr Hewson relied upon the notes that he took at the time of his consultation with the plaintiff and it was not suggested that he had any independent recollection of the history the plaintiff gave apart from those notes. He did say he obtained an x-ray report from Mr Oxenham which demonstrated ) 36 a degree of osteoporosis and also markedosteo arthritic changes in the spine. Dr Hewson said that when the plaintiff next consulted him on 9 July 1993 he was still complaining about his lower back pain and he gave him a back manipulation for this pain. That was the last occasion that Dr Hewson saw the plaintiff. 37 Eric Smith (employed by the defendant (as foreman) from late 1990 to about June 1995) was called by the defendant. It is clear that he had ceased employment with the defendant about twelve months prior to the plaintiff instituting proceedings against the defendant. After looking at a "site diary" that he was required to fill out each day while working for the defendant, he observed that on 6 July 1993 which was a Tuesday, the plaintiff was absent because he was "sick". He said that if the plaintiff were not available to drive the grader he was the only one of the men on site who would drive it if it were needed. The site diary indicates that on the day that -- 13 of 24 -- 38 39 --------- - -------- ---------- 13 the plaintiff was absent the grader was driven for two hours. He said that he could recall no problem on that day or any other day for that matter with the clutch on the grader. He said he could not remember any problem with the seat of a kind about which the plaintiff gave evidence. He said that at all material times in 1993 if any problem developed with any of the earthworking machinery he would make a note of it in the site diary and steps would be taken to have a field engineer come out and repair the equipment on site if possible or alternatively to have the equipment taken back to the defendant's premises where other diesel fitters would do the necessary repair work. Mr Smith said it was imperative that defects emerging in earthmoving equipment be fixed promptly so that the plant would work as well as possible. It was his practice c to have any noticed defect given attention as soon as possible because it was cheaper to fix most C defects earlier than it would be to fix them later. He said that after the plaintiff finished work on 4 August 1993 he had another employee, Mr Eaton drive the grader Unit No. 303. The site diary for 5 August 1993 records that on that day Unit 303 started work at 3 p.m. and finished at 5 p.m. - making a total of two hours work. Mr Smith confirmed that as foreman it was his obligation to obtain a "mobile mechanic" to fix any defect in earthmoving equipment to which his attention was drawn. At the time the mobile mechanic was Mr Kindt. Mr Smith denied that the plaintiff had ever made any complaints to him concerning either a defective clutch or any defective seating on the grader. He said that had such a complaint ever been made he would have noted it in the site diary and then made contact with the workshop to have it remedied. Mr Smith said that if something needed repair urgently fitters would come out after work had finished in the workshop for the day and do that work. Alternatively if the defect was so bad as to require immediate attention, the machine would stop operating for an hour or two so that the defect could be repaired. The defendant had a mobile workshop which carried all C c -- 14 of 24 -- 14 the equipment necessary to do the sort of repairs that the plaintiff really suggested ought to have been performed on the grader. 40 Mr Kindt a diesel fitter for about 24 years was employed by the defendant as such in mid- ) ) 41 1993. He had then been working for that firm all told for a period of four years. It was his job as employee of the defendant to do the field repair, maintenance etc of the defendant's earthmoving equipment. He said that he would attempt to do any repair work on site. If it was not possible to do repair work on site then the equipment would be taken back to the defendant's workshop where it would be repaired. There were three diesel fitters all told on fulltime employment to service, maintain and repair the defendant's earthmoving equipment. They worked six days per week. When he attended on site, he would receive any complaints as to anything wrong with any of the earthmoving equipment. He would inspect that equipment, repair it immediately on site if possible and if not, arrange to have it taken back to the workshop for repair. He said that in his experience with the defendant there had never been any delay in repairing machines that needed repairing. He said he had no recollection of ever having had a conversation with the plaintiff concerning its defective transmission system. He denied having any recollection of ever having said that it would cost over $20,000 to get the defective clutch repaired or that he could not see the defendant being willing to spend that amount of money on the old grader. He said that he had no recollection of ever telling anybody employed by the defendant that defects were not going to be remedied or repairs effected because of what it would cost. He said that the particular grader in issue did not really have a clutch. It had what he described as an inching pedal "which disconnects the transmission through dropping hydraulic pressure". He said if that equipment was "slipping" then the grader simply would not work. If depression of the clutch pedal was not disconnecting the transmission correctly then the grader would not stop but would keep on travelling. -- 15 of 24 -- 42 43 44 15 Mr Kindt said that he had no recollection of ever having received a complaint from the plaintiff or anybody else about the state of the clutch of the grader in issue but that if something like that had happened, he would probably have tested the grader for himself because it would be important to ensure that the transmission mechanism was operating properly. If it was not working properly it might cause significant problems within the transmission system which would lead to even more expense being incurred ultimately in repairing it. Mr Eaton· who has known the plaintiff since the mid-1980's commenced work with the defendant in March 1992 as a bulldozer operator. He worked there for six and a half years - until late 1998. After the plaintiff commenced work with the defendant towards the end of 1992 he c worked on the same jobs with him from time to time. He said that he drove the grader that the C plaintiff drove - Unit 303 after the plaintiff left on 4 August 1993. He said at that time he remembers they were working at Albany Creek. He heard that the plaintiff had left work and he was asked to drive the grader from time to time as required. When it was necessary to drive the grader after the plaintiff left, he was the one who drove it. He said that he had no problem whatever with "the clutch" of the grader. He said he could recall no trouble at all adjusting the seat on the grader. He said that he used the grader at Albany Creek to spread topsoil. He said that he could not recall ever having had any trouble with any of the machines he controlled while employed by the defendant. In 1994 he was promoted to the position of foreman with the defendant. He said that during the whole of the time that he was foreman he had never had any complaints from any of the defendant's employees about any problems experienced in driving grader No. 303. He said that initially he spent a couple of days driving the grader as required for half an hour or an hour at a time. When he was not driving the grader he was driving his "own" bulldozer. A couple of days after the plaintiff ceased employment with the defendant on 4 August c c -- 16 of 24 -- 16 1993, Mr Eaton was shifted to work on another residential subdivision site at Kallangur. At that site it was his duty to drive only the grader. He drove the grader daily for a couple of weeks at Kallangur and said that he had no trouble whatever either with the "clutch" of the grader or with its driver's seat. He never experienced any jerking or "leaping forward" of the grader as "the clutch" was operated to put the grader into motion. 45 Mr Gesch, a project engineer/costs estimator/contract administrator with the defendant between 1991 and 1997 gave evidence of the keeping of a computer printout for repair, ) maintenance etc. work done on each of the defendant's earth working machines including the grader in issue. That computer printout recorded the value of parts, repair work, servicing etc. ) peiformed on that grader between 2 December 1989 and 23 May 1995. The value oflabour and material applied to service, repair and maintain that grader over that period oftime was $154,405. Interestingly over the years, various amounts of approximately $2,000, $3,000 and $4,000 were spent on maintenance, repair etc. In May 1992, $11,500 was spent on parts for one repair job. In ) December 1992, nearly $17,000 was spent at Chesterfields on materials for repairs etc. 46 At the end of the day if the plaintiff s evidence be accepted at face value there was an obvious and serious defect in both the transmission and seating arrangements on the grader over a period well in excess of six months. Defects would have been obvious to any person over those months if they led to the unusual peiformance characteristics of which the plaintiff swore. Repair or maintenance to obviate the deficiencies would obviously have been required. On the plaintiff s evidence and indeed on the evidence ofMr Chaseling and Mr Kindt such repairs could probably have been effected relatively quickly and without much expense. 47 It is clear that the defendant regularly spent many thousands of dollars on materials to keep the grader in operational order and much labour was also expended to achieve this result. 48 The evidence given by the plaintiff as to the behaviour of the dozer as well as his evidence -- 17 of 24 -- -- ----- ---- - -------- --- ------------- 17 as to the complaints that he made to the defendant's employees and as to the acknowledgement by his foreman Mr Smith that there was a problem with the dozer's transmission system must be viewed against categorical denials of that evidence on the part of other employees of the defendant and to the extent that there was not a categorical denial, the fact that such complaints should, according to the system in place, have been noted by the foreman and steps ought to have been taken to have the deficiencies remedied. 49 A great deal of work seems to have been done on the equipment before and after July/August 1993 and there are many invoices demonstrating the nature of the parts purchased c to remedy defects. There is no evidence that any parts were purchased for the purpose of . . correcting any deficiency in the transmission system of the sort to which the plaintiff swore. It is c probable in my view that in the course of performance of the repair work recorded immediately before and after August 1993, such a deficiency would have become obvious to diesel fitters doing that work when checking its effect. 50 Moreover, the plaintiffs evidence must be viewed in the light ofthe evidence ofMr Eaton who drove the grader within a day or so of 4 August for a few days and then for three weeks or c so at Kallangur that he did not observe any of the problems in driving it about which the plaintiff complains., r 51 Moreover the plaintiff's evidence must be viewed in the light of the evidence given by Dr Hewson. According to the plaintiff he went to see Dr Hewson because of the back pain he then believed resulted from deficiencies in the transmission and seating provision on the defendant's grader. I accept however the evidence of Dr Hewson that the plaintiff on examination exhibited clinical symptoms ofa prolapse of the L4/5lumbar vertebra and the only event which the plaintiff suggested may have been at all connected with the development of that pain in his back was the fact that it occurred after he had lifted a "fish tank" on the previous Sunday and had done some -- 18 of 24 -- 18 vacuummg. 52 At the time of the onset of this pain, the plairitiff lived at Caboolture and was a keen fisheIman. He had a motor boat and used regularly to go fishing. The history that he gave to Dr Hewson was that the onset of pain had occurred on the previous Sunday when he lifted a fish tank. The plaintiff denied ever having said anything of the sort to Dr Hewson. The plaintiff's sister who was called to give evidence on matters quite unconnected with any fish tank was asked by counsel for the plaintiff whether he had ever "kept fish" such as goldfish or fish as pets. She ) replied "Not that I know of, there was no fish tank when I went to his house". 53 It is quite clear that when giving evidence the plaintiff was aware of the history taken down by Dr Hewson and I assume had given consideration to it. He gave evidence when pressed in cross examination that he did not have any fish tank in the house. He was not asked whether he kept one on or off his motor boat which was used in connection with his fishing ventures. 54 It would be unprofitable for me to embark upon a detailed consideration of the demeanour J of the various witnesses (including the plaintiff) with a view to determining whether any and who of them were obviously attempting to mislead the Court or were merely reconstructing events ) without any clear recollection of them. The personal interest which Mr Smith, Mr Kindt and Mr Eaton may arguably have to favour the defendant would in my judgment be no stronger than the interest the plaintiff undoubtedly has to recover damages against the defendant on the basis of its negligence and breach of statutory duty. It will suffice I think if I look broadly at the evidence given by all witnesses to determine whether the plaintiff has established on the balance of probabilities the facts on which he relies to prove negligence and breach of statutory duty against the defendant. I observe merely that I saw nothing in particular in the demeanour of any of the witnesses or the way in which they gave their evidence in the witness box on facts touching on liability which ofitselfwould lead me to prefer one or more of them as more reliable than others -- 19 of 24 -- 55 19 of them. Upon consideration of the whole of the evidence, the following facts seem to militate against the plaintiff's case :- (1) Any behaviour of the grader when being put into motion as described by the plaintiff must have been plain to ~ybody that was looking at it and indeed so unusual as to attract attention. The attention of all persons working anywhere in the vicinity of that equipment over the period of months during whicl). iUs alleged to have performed in this fashiol) must have been drawn to it. Moreover it must have impeded the fine and careful operation required of the grader in the course of doing much of the work. Had the grader c been performing like that over a period of months on a number of different jobs, one C (2) would expect the foreman and/or the field mechanic to observe and become aware of it and for steps to be taken to remedy that defect. The uncontradicted evidence - including the evidence called for the plaintiff himself - is that it would probably have been a relatively inexpensive, quick exercise to repair both any transmission defects likely to cause the problems to which the plaintiff swore and as well the problems with the seating adjustment. Other employees of the defendant who actually drove the grader about the time that the plaintiff said that it was behaving in this unusual fashion said that it did not so behave when they were driving it. (3) When the plaintiff first sought medical attention from Dr Hewson for his painful back on 6 July 1993, clinical examination revealed that he probably then had a prolapsed disc. He certainly had it prior to finishing work on 4 August 1993. When he first saw Dr Hewson however it would seem that he said that he attributed the pain to an event on 4 July 1993 which involved him lifting a fish tank and using a vacuum cleaner. He made no mention C c -- 20 of 24 -- 20 to Dr Hewson of any problem with the grader. Indeed, the first mention of the performance of the grader having any relationship to his sore back was when he informed Dr Skinner to this effect on 30 July 1993 when he first raised the question of his entitlement to Workers' Compensation - only a few days before his back deteriorated to such an extent that he had to cease work. 56 It seems to me quite improbable that the expenditure of the little time and money probably required to replace a Bowden cable upon the grader would lead the defendant's employees to ) refrain from remedying a defect which on the plaintiff s evidence was so obvious and which must unnecessarily have impeded the proper performance of the grader. ~7 I am unpersuaded on the whole of the evidence that on either 5 July or 4 August 1993 there was any· defect of the sort described by the plaintiff either in the transmission of the defendant's grader or upon the seat-back adjustment on that grader which had any causal connection with the back problem in respect of which he sought medical assistance from both Dr ) Hewson and Dr Skinner and which led ultimately to the laminectomy he had performed on his back in September 1993. I am unpersuaded that the grader did in fact at any material time when '\ the plaintiff operated it exhibit such defects or that the plaintiff complained of any· such defects I to any employee of the defendant. No submissions were made suggesting that any facts other than those to which I have adverted had particular relevance to the issue of breach of statutory duty. On the issues of negligence and breach of statutory duty pleaded by the plaintiff against the defendant I give judgment for the defendant. 58 The quantum of the plaintiff s claim was not a matter seriously in issue between the parties. The defendant contends that on the evidence damages should be assessed at $183,900.0l. He arrives at this figure by the following calculations:- -- 21 of 24 -- --- ---------- 21 Pain and Suffering and Loss of Amenity Interest on $20,000 x 2% x 6 Past Economic Loss $384.00 x 6 yrs x 70% Interest $83,800.00 - [{22,248.04 - $4158.05} + $10,902.00} + $145.00 x 5 Yrs Future Economic Loss $384.00 x 7 yrs x 50% Superannuation Loss (6% of Past and Future Economic Loss) Board Expenses (ex 7) Fox v Wood Out of Pockets (Ex 8 less travel to Dr Skinner) Interest thereon (5% x 6 yrs) Past Care and Assistance The first 12 months (until August 1994 when WCBQ benefits ceased - see ex 7.) was paid for and included in' out of pockets; thereafter based on Mrs Hansell's evidence an allowance of 1 hour aweekfor 5 years at $9.00 per hour = $2,340.00. Interest thereon (2% x 5 years) Future care and Assistance $9.00 per week (I hour) for 10 years on 3% tables discounted by 50% Future medication Sub,.; total Less Work Cover refund (Ex. 7) TOTAL $45,000.00 $2,400.00 $83,000.00 $5,130.00 $60,000.00 C $8,628.00 $15,719.23 C $4,158.05 $2,200.00 $660.00 $2,340.00 C $234.00 $2,000.00 $500.00 . $232.769.28 $48,869.27 $183,900.01 -- 22 of 24 -- 22 Counsel for the plaintiff on the other hand contends that past economic loss should be discounted by 20 per cent instead of30 per cent (adopted by the defendant) and that consequently interest should be assessed at $10,495 rather than $5,130. 59 Similarly he contends that future economic loss ought be discounted by 30 per cent (against the defendant's 50 per cent) and should therefore be assessed at $81,900. Again while the defendant argues for damages for past and future loss of Superannuation in the sum of $8628, the plaintiff contends for $12,302 for such loss. ~) ~60 The matters really in dispute involve the extent of the discount of the various sums assessed having regard to the condition of the plaintiffs degenerate spine at the time of his alleged J injury in July and August 1993 and other deteriorating health conditions which the evidence shows he suffered at that time and which have developed since that time. Even if the driving of the grader with the defects about which the plaintiff complained had been a cause of his disc prolapse requiring a laminectomy within about a month, in my judgment his back must at that time J have been in such a poor state that it is likely that some other everyday event which would have produced no symptoms in a normal vertebra may have precipitated the very disc protrusion for which the plaintiff was required to have a laminectomy. In my view a discount of30 per cent for past loss would be more realistic than a discount of 20 per cent as suggested by the plaintiff. 61 With respect to future impairment of earning capacity it seems to me on the medical evidence that the plaintiff's degenerate back condition had left his lumbar vertebra in a relatively fragile state in July-August 1993. In my view in these circumstances a discount of 50 per cent suggested by the defendant is more appropriate than that of 3 0 per cent suggested by the plaintiff. The approach of the plaintiff in increasing the discount from 20 per cent for past loss to 30 per cent for future loss would give insignificant weight to the greater future risk of a prolapse which the plaintiff would run after expiration of a further six years from July/August 1993 and the effect -- 23 of 24 -- ,0' 23 on his earning capacity of other developing health problems. 62 I therefore assess the plaintiffs damages in the sum of $183,900.01 by adopting the figures submitted by counsel for the defendant against which the plaintiff did not argue except to the extent of appropriate discounting for past and future economic loss. 63 I give judgment for the defendant against the plaintiff. 64 Were the plaintiff to succeed on the issue of liability I would assess damages in the sum of$183,901.01 and therefore I assess in any event the plaintiffs damages in that sum. 65 I will hear argument on the question of Costs. r .0. , c c c c -- 24 of 24 --