Davis v Joinlow Pty Ltd [1999] QSC 37

- ' . ---�-:..�� --:, - SUPREME COURT OF QUEgNSLAND CIVIL JURISDICTION CHESTERMAN J No 1713 of 1992 EDWARD GARLAND DAVIS and JOINLOW PTY LTD TRADING AS OLD NORTHERN ROAD BUILDING, LANDSCAPE AND TIMBER SUPPLIES BRISBANE .. DATE 05/03/99 JUDGMENT 1 REVISED COPIES ISSUED State Reporting Bureau DateJ.il I 3 ! Plaintiff Defendant Iii 1"11111r, Thl' L:m Courts, Gt·111·ge Street, B.-isli:ine, (). -tllllO Tclcphom·: 1117) J.!47 4J<ill Fax: 107) 32-17 ;:;::_12 [1999] QSC 37 -- 1 of 30 -- 050399 LMS (Chesterman J) HIS HONOUR: In this matter I give judgment for the plaintiff in the sum of $398,139.20. I publish my reasons. HIS HONOUR: I order the plaintiff's costs be taxed as between party and party up to 11 November 1998 and between 10 solicitor and client from that date to the present and paid by the defendant. 20 30 40 50 JUDGMENT 60 2 ( ( ( -- 2 of 30 -- SL~9 /037 IN THE SUPREME COURT OF QUEENSLAND No. 1713 of 1992 Brisbane BETWEEN: EDWARD GARLAND DAVIS Plaintiff AND: JOINLOW PTY LTD trading as OLD NORTHERN ROAD BUILDING, LANDSCAPE AND TIMBER SUPPLIES Defendant REASONS FOR JUDGMENT - CHESTERMAN J Judgment delivered 5 March 1999 CATCHWORDS: NEGLIGENCE - personal injuries - safe system of work - quantum - plaintiff (truck driver and operator) injured while servicing a forklift - employer failed to provide a safe system of work - breach of statutory duty - whether plaintiff was contributory negligent as he deliberately engaged in conduct - not mere ".inattention" or inadvertence - prior consistent statement inadmissible as it was not sufficiently contemporaneous and was equivocal - quantum of damages discussed. Counsel: Mr D Fraser QC, with him Mr D Boddice for the plaintiff Mr M O'Sullivan for the defendant Solicitors: Gilshenan & Luton for the plaintiff Bain Gasteen for the defendant Hearing Dates: 22 - 24 February 1999 -- 3 of 30 -- ( IN THE SUPREME COURT OF QUEENSLAND Brisbane BETWEEN: AND: No. 1713 of 1992 EDWARD GARLAND DAVIS Plaintiff JOINLOW PTY LTD trading as OLD NORTHERN ROAD BUILDING, LANDSCAPE AND TIMBER SUPPLIES Defendant REASONS FOR JUDGMENT - CHESTERMAN J Judgment delivered 5 March 1999 On 13 January, 1990 the plaintiff was injured at work where he was employed as a truck driver and plant operator by the defendant. It carried on business as a hardware retailer and bulk supplier of landscaping materials at premises bordering Old Northern Road in Everton Hills. There was a yard along one side of which were a number of bins containing sand and gravel for sale to the public. The opposite side was formed by the wall of a large building which housed the retail hardware store. In between were piles of timber and pallets on which were stacked various goods available for sale in connection with the defendant's business. The surface of the yard was finished in concrete. 2 The defendant owned a number of trucks which it used for the delivery of sand and gravel and two end-loader backhoes to load the trucks. Each day an employee would be assigned the duties of yardman. His job was to operate the loader and a forklift as well as general labouring. 3 The plaintiff was born on 6 July, 1943 .. He was forty-six when injured and is now fifty-five. He commenced working when he was thirteen as an apprentice carpenter. He -- 4 of 30 -- 2 relinquished his apprenticeship after two years and has worked continuously as a truck driver, plant operator or farm hand until his injury, with the exception of two periods which I shall mention when discussing damages. He had been working as the manager of another landscape supplier's yard when he met Mr Stephen Jones who owned, and with his parents, ran the defendant's business. Mr Jones became aware that the plaintiff was dissatisfied with his employment and offered him a position. The plaintiff accepted and commenced work in about February 1988. The plaintiff quickly became what another employee, Mr Randall, called Mr Jones' "right-hand man". I accept this depiction. The plaintiff was a conscientious and industrious worker. He was very experienced in driving and operating trucks and other machinery and in their maintenance. He was a valued employee. 4 In about October 1988, the defendant purchased a second-hand Case 870C loader- backhoe for use in the yard. 5 13 January, 1990 was a Saturday. The plaintiff frequently worked on Saturdays and, occasionally, on Sundays as well. Despite the time of year I am satisfied that the day was busy. That day the plaintiff was the designated yardman. Accordingly, for part of the day, he operated the Case loader. He also drove a forklift, apparently to move and stack railway sleepers. For some time prior to the accident Mr Jones was operating the loader. At about 3 :00 p.m. he was called to the office which was located in the hardware store. He left the loader with its engine running in the yard near a timber stack. He applied the handbrake and lowered the front bucket until it rested on the concrete. 6 Machines such as the Case loader required frequent servicing, which consisted of greasing joints and pivot points in the front axle assembly, and at the ends of the hydraulic rams which controlled the elevation and inclination of the bucket. During the course of a day -- ------- --- o C) C) o -- 5 of 30 -- 3 of constant operation grease would be exuded and have to be replaced to prevent wear and also to prevent the entry of fine particles which spilt from the bucket. 7 The responsibility for carrying out these services lay with the operator. Although on the day in question the Case loader was used by both the plaintiff and Mr Jones it was not part of the latter's role to service machinery. On 13 January, 1990 that task was the plaintiffs. He saw the opportunity when Mr Jones left the loader to go to the office. He fetched a grease gun from a shed where consumable stores utilised in the maintenance of equipment were kept. Some of the grease points could be reached by standing adjacent but outside the front wheels. To lubricate the centre pivot of the front axle it was necessary to adopt a near supine position between the bucket and those wheels. In this position most of the plaintiffs body was beneath the machine and between, though forward of, the front wheels. Only his lower legs protruded beyond the outer perimeter of the right front tyre. 8 While the plaintiff was engaged in greasing that centre pivot point Mr Jones returned, mounted the operator's seat from the rear left-hand side of the machine, and drove off. The plaintiff suffered deep abrasions to his right leg and severe crush fractures to his lumbar vertebrae. He has not returned to work. 9 The plaintiff s suit for damages has as its principal allegation that the defendant failed to devise or implement a safe system for the maintenance of its plant. 10 The plaintiff would start work between 5:30 and 6:00 in the morning. Although he normally drove a particular truck it was his habit to check the fuel, oil and water levels in all the defendant's vehicles and items of plant and to start their engines to ensure they were operable for the day's work. These duties were not assigned to the plaintiff. He took them on himself but was known by Mr Jones to perform them. When the Case loader was acquired and added to the defendant's fleet the plaintiff attended to it, too. -- 6 of 30 -- 4 11 The afternoon servicing was different. It was only the loaders which required it and the responsibility for perfonning that service was the operator's who was assigned to work that machine on the particular day. 12 The plaintiffs evidence was that he was given no instructions as to the manner, place or time at which the afternoon service should occur. It should be said immediately that no valid point can be taken in relation to the time at which the service should occur. That time depended upon the amount of work done on the day by the loader. If it were continuously in use it might need to be serviced twice in the course of the day. If the work were intennittent it would require only one service. The operator would not ordinarily be expected to interrupt ajob to service the machine. He would wait for a lull in activity. The defendant could not reasonably preordain a time at which the machine had to be serviced. 13 The plaintiff urges other points with more enthusiasm. He argues that had he been instructed to perfonn the lubrication service on the vehicles only at a designated place and to follow a designated safety procedure he would have done so. He was not challenged on this aspect of his evidence and I accept it. No reason emerges from the evidence why the plaintiff would not have done as he was told. He was a responsible and conscientious worker who took a pride in what he did and sought, though the perfonnance of his daily tasks, to advance o his employer's business. 14 The essential features of a system of maintenance are that the vehicle being serviced should be immobilised during the service and attention should be drawn to the fact that it is undergoing a service. These ends can be readily achieved at no appreciable cost. The operator's manual for the Case loader contains several pages of recommended safety rules. One of these is that: -- 7 of 30 -- 5 "Before you do service under the machine, put the machine on a level surface, engage the parking brake and stop the engine. Put blocks at the front and rear of the tyres. Failure to follow these instructions can cause injury." Another is: "Service Tag Put a 'Do Not Operate' tag on the instrument panel or steering wheel of this machine when you do service. This tag, Case part number 321-4614 can be purchased from your Case dealer." 15 Mr Jones never obtained a copy of the operator's manual and remained ignorant of this ( advice. 16 The warning card and the chocks could have been kept in the shed where the tools and ( lubricating supplies were stored. If the defendant's workforce had been instructed to carry out services on the vehicles in a specified area near the shed and to follow the safety directions contained in the manual a satisfactory system would have existed. The presence of chocks would have immobilised the vehicle and at once have told an intending driver the vehicle was being attended to. The card would have the same effect without immobilising the loader. ( Such a system would have been easy to enforce. 17 No evidence was led as to the cost of providing chocks or the card though Mr Jones admitted that his own business could have easily produced the card. The provision of chocks cannot have been a difficulty for the defendant which sold hardware and timber. 18 Had this system been enforced the plaintiff s accident could not have happened. The servicing would not have occurred where it did. Mr Davis would have driven the vehicle to the vicinity of the shed, or wherever else the defendant designated as the maintenance area. Somewhere near the shed would have been the most convenient place. Upon returning to the vehicle from the office Mr Jones would have noticed that it had been moved and to the area where servicing was carried out. He would have expected someone to be working on it. Had -- 8 of 30 -- 6 the card been placed on the control console or steering wheel he would have known at once that it was being serviced. He admitted as much. The same applies had the wheels been chocked. He would have realised that they had been placed there by the serviceman and that they would not be removed until the service was complete. 19 The defendant gave evidence, that although it did not have a system such as the one I have described, it did give instructions to its employees, and the plaintiff in particular, as to how servicing should be carried out. The instructions, according to Mr Jones, were given just before or just after the plaintiff commenced working for the defendant. He was told: "That maintenance would be conducted morning and afternoon; that we would do it near the shed where the necessary consumables for conducting maintenance was [sic] kept; and that at all times the machine would be stopped, handbrake on, bucket on the ground, and key out of the ignition, and key kept in the possession of the operator." 20 This evidence conflicts with that of the plaintiff. I cannot accept it for two reasons. The first is that in its amended defence of 5 November, 1993 the defendant pleaded that the plaintiff failed to follow instructions given by the defendant in regard to the time at which and circumstances in which maintenance work was to be carried out on the defendant's plant and equipment. This allegation was the subject of a request for particulars. When provided the allegation became expanded to an instruction given at a time the defendant could not specify that the plant and equipment was to be maintained in the morning and the afternoon at a place adjacent to the shed. There is no mention of the other particular features which appear in Mr Jones' evidence, that the machine should be stopped, the bucket should be on the ground, the key taken from the ignition and kept by the operator. It is also noteworthy that Mr Jones could remember when these instructions were given, contrary to the assertion in the particulars. o c o o -- 9 of 30 -- ( ( \ 7 21 This remarkable discrepancy in the accounts of what instructions were given to the plaintiff makes me reluctant to accept Mr Jones' evidence. 22 The second point is that when Mr Jones claims to have given those instructions they cannot have applied to the Case loader. The defendant did not own it until about October 1988. Mr Jones does not claim to have given instructions about the method of effecting maintenance except on the one occasion. Those instructions were inapposite to the maintenance of the Case loader. It, as appeared late in Mr Jones' evidence, had an unreliable starter motor so that the practice of all who operated it was to leave the engine running except when it was not to be used for a substantial interval of time. This is what Mr Jones himself did when he left it to go to the office. In the circumstance it is not credible that Mr Jones would have instructed the plaintiff to turn the engine off when effecting a service that would take no more than a few minutes. 23 I accept the plaintiff s evidence that no instructions were given even as to the location for the maintenance of the loaders. I would be reluctant to find that Mr Jones deliberately sought to deceive the court. He appeared to have been very upset that he was the agency which inflicted injury on the plaintiff. I suspect that his desire not to hold himself responsible has led to his conviction that if only the plaintiff had done what he was told there would have been no injury. 24 There is some evidence from Mr Randall that after the plaintiff s accident Mr Jones instructed his operators that when they were maintaining the loader they were to lower its rear legs onto the ground and to take the key out of the ignition. The rear legs are utilised to provide a more stable base when the machine is operating as a backhoe. The legs are lowered hydraulically and lift the rear wheels off the ground. The effect of doing this during maintenance is to immobilise the machine. Removing the key, of course, has the same effect. -- 10 of 30 -- 8 Mr Randall noted that the second instruction caused inconvenience because it is necessary during a service to move the bucket to gain access to the different grease points. If the engine is left running the manoeuvre is easily performed by standing beside the controls and moving the appropriate lever. The task is less easily done if the operator has to mount the machine, insert the key, start the motor and then move the lever. I gained the impression from Mr Randall's evidence that the second instruction was disregarded, at least sometimes. Mr Randall said that after the accident they were told to maintain the vehicles near the shed. 25 Mr Jones, surprisingly, denied that he had given these instructions after the plaintiff's C) accident. He said that the men had become more cautious of their own accord and he noticed that often they lowered the rear legs while servicing. He was content that they should do so but did not command it. 26 Although Mr Randall was unreliable in some aspects of his evidence I would have thought it likely that the defendant did give instructions to ensure that maintenance was effected safely after the accident. Nothing much turns on the point. Lowering the rear legs is but another means of immobilising the machine during a service. The fact that it was done C) after, indicates another cheap and convenient means by which it could have been done before. Mr Randall confirmed the plaintiff's evidence that no instructions were given prior to the o accident as to place and mode of maintenance. He resiled from this in cross-examination but would not accept that he had been instructed to remove the key from the ignition while servIcmg. 27 This review of the evidence leads me to conclude that without difficulty or appreciable expense the defendant could have provided its employees with a system according to which the loaders could have been given their periodic services in such a way that there was no -- 11 of 30 -- ( ( ( 9 danger of the machine being put in motion while the operator was carrying out the service. The system would have been: (a) to have the machines serviced at a particular identified part of the yard; (b) to immobilise them during service by means of wheel chocks or the lowering of the rear legs; and (c) to place a sign on the steering wheel indicating that service was in progress. Had such a system been in force on 13 January, 1990 the plaintiff would not have been injured. 28 An employer has an obligation not merely to provide a safe system of work but to 29 establish, maintain and enforce it. "Accident prevention is unquestionably one of the modem responsibilities of an employer." Per Mason, Wilson, Brennan and Dawson JJ in McLean v. Tedman (1984) 155 CLR 306 at 313. In this case no difficulty confronts the plaintiff in his task of proving that the defendant's failure to provide and implement a safe system of maintaining the loader caused his injuries. I have already found that had an appropriate system been in place it would not have been possible for Mr Jones to return to the vehicle and put it in motion before the service was complete. Moreover, he would have known that the plaintiff was engaged in that task. The plaintiff has discharged the onus described in Vozza v. Tooth & Co Ltd (1964) 112 CLR 316 at 319 and Duyvelshaffv. Cathcart and Ritchie Ltd (1973) 47 ALJR 410 at 416-17, 419. 30 The plaintiffs case can be put more fundamentally. The risk that the plaintiff might attempt to service the loader when Mr Jones left it to attend to other business was foreseeable and not far-fetched or fanciful. I say this for the following reasons. Although Mr Jones had been operating the loader for some time prior to the accident, the plaintiff had been appointed -- 12 of 30 -- 31 10 as its operator for the day. Mr Jones occasionally might service a vehicle but he would not ordinarily do so. That was the task of others. The yard was busy. The loader had been used for some time and was due for a service. The practice was for the operator to conduct the service as and when an occasion for doing so arose. The diversion which took Mr Jones from the role of machine operator to manager gave at least half an appearance of such an opportunity. It was the plaintiff s duty to service the machine. He was known by the defendant to be a conscientious employee. The analysis undertaken by Mason J in Wyong Shire Council v. Shirt (1980) 146 CLR 40 at 47-8 indicates that, there being a non-fanciful, foreseeable risk, one must decide what response would have been made to it by a reasonable person. This is done by balancing the magnitude of the risk and the degree of probability of its occurrence against the expense, difficulty and inconvenience of taking alleviating action, and any other conflicting responsibilities which may exist. The degree of probability of the occurrence of the risk that the plaintiff might attempt to grease the machine during Mr Jones' absence might be low but the magnitude of risk of harm should it occur, was high. The expense, difficulty and inconvenience in effecting the system of maintenance I have described was small. There was no difficulty or inconvenience and very little expense. "Where it is possible to guard against a foreseeable risk which, although perhaps not great, nevertheless cannot be called remote or fanciful, by adopting a means which involves little difficulty or expense, the failure to adopt such means will in general be negligent." Per Gibbs CJ in Turner v. South Australia (1982) 56 ALJR 839 at 840. 32 In my view the defendant was negligent in failing to provide a safe system for the maintenance of its loaders. (--;'-_~ __ J o -- 13 of 30 -- ( 11 33 The same conclusion is reached when one considers the plaintiff s case advanced on the basis of breach of statutory duty. Section 9 of the Workplace Health and Safety Act 1989 imposes an absolute duty upon an employer to make sure that employees are kept safe at work. The only exception allowed is that the duty is not imposed where it is not practicable for the employer to ensure that result. See Rogers v. Brambles Australia Ltd [1998] 1 Qd R 212; St Vincent's Hospital Toowoomba v. Hardy (CA No. 7477 of 1997, unreported, 6 May 1998). It was clearly practicable for the defendant to ensure the plaintiff s safety at work. The implementation of the system I have described would have achieved that end. 34 Both parties relied in support of their respective cases on statements made at the Royal Brisbane Hospital to which the plaintiff was taken for treatment. The plaintiff called evidence, from his wife and daughter, that Mr Jones, who had accompanied the plaintiff in the ambulance spoke to them outside the casualty room and said, in effect, that he was sorry for what had happened, that it was his fault, that the pace at which they all worked was to blame and that he would take care of the plaintiff. Mr Jones denies making those statements though he accepted he may have said that he was sorry. 35 For its part the defendant asserts that while lying injured on the concrete yard the plaintiff said to Mr Jones that he had been under the machine, he did not think that Mr Jones would return so quickly and he had decided to give the loader a "quick grease". In the ambulance he expanded on this theme. He repeated that he could not believe that Mr Jones had been so quick and added that he could not believe he had been so stupid as to do what he did. He added further that he would have kicked a younger employee for doing something similar. Mr Arnold, Mr Jones' brother-in-law, confirms that the plaintiff said something similar when he visited the plaintiff late in the afternoon of his admission. -- 14 of 30 -- 12 36 In my view none of these statements, if any was made, assists in the determination of the issues before the court. I did not think that any of the witnesses were inventing this aspect of their evidence, but the conversations occurred at a time when all of the participants in the conversations (save Mr Arnold) were over-wrought and emotional. 37 I have no doubt Mr Jones said he was sorry. Equally I have no doubt he was, but I do not take that to be an admission of liability. I think he is a decent man who was greatly upset at having caused injury to a fellow human being. If the plaintiff did not say what is attributed to him I am sure that he has thought it, perhaps every day since the accident. 38 I do not think statements of obvious conclusion made with the benefit of hindsight are of much evidentiary value. Although each side now seeks to fmd proof of legal responsibility in what it believes the other said I note that when both employee and employer completed the form to claim workers' compensation neither was prepared to attribute fault to anyone. Contributory negligence 39 The defendant contends that should it fail, as it has, on the issue of liability, damages should be reduced because of the plaintiff s contributory negligence. This, of course, is the plaintiffs failure to meet the standard of care to which he is required to conform for his own protection and which is a legally contributing cause, together with the defendant's default, in bringing about the injury. Per Kirby P in Po/ycarpou v. Australian Wire Industries Pty Ltd (1995) 36 NSWLR 49 at 68 approving Fleming, The Law o/Torts, 8th edition at p. 268. 40 The defendant points to the plaintiff s experience in operating and working with earthmoving equipment and the obvious danger of servicing such a machine when the task involved gaining access to a point beneath the frame and so hidden from the driver's sight, particularly without ascertaining the duration for which the machine would be left unattended by the operator. Mr Jones left the machine not in the main thoroughfare along which C) o o -- 15 of 30 -- ( 13 customers' cars would travel but not far from it. It had not obviously been put away, so to speak. The engine was left running which would indicate that the driver intended to return although, because of the practice adopted with respect to that particular machine, not necessarily immediately. Importantly it had been left in a state indicating that the operator intended to return. Certainly the plaintiff, the other operator, had not been told that he should take over its operation. The plaintiff had no means of knowing how long Mr Jones might be away. He did not inquire but instead fetched the lubricating implements and commenced the service. When Mr Jones returned he had no reason to think that the machine was not as he had left it. He mounted from the left rear when the plaintiff was positioned under the front towards the right. 41 Two other matters of detail were litigated. The defendant submitted that it was a further particular of contributory negligence that the plaintiff should undertake the service with the engine running, the point apparently being that this state of affairs encouraged ( Mr Jones in the belief that the loader was as he had left it and there was no reason why he should not drive off immediately. As I understand the evidence there is no additional suggestion that it was in some way dangerous to service the machine with the engine running. Even if it were, that danger played no part in this accident. 42 In my view this criticism does not add substance to the defence. It was, I am satisfied from the evidence of the plaintiff, Mr McKenna and Mr Randall, common for operators when servicing the machine to leave the engine running. Quite apart from the idiosyncrasy of starting manifested by this particular loader it was more convenient generally to have hydraulic power to the machine when effecting a service. This necessitated that the engine be idling. The reason is that the bucket had to be differently positioned by means of the hydraulic rams in order to properly grease all the points. Because it was common to service -- 16 of 30 -- 14 the machine with the engine running the fact that the plaintiff left it on did not indicate that the machine was not being serviced. 43 The second matter arises from the plaintiff s evidence that a little before he was injured he had "crowded" the bucket by tilting it forwards and downwards so that the front, bottom edge was on the. concrete and the front wheels were, as a result of that downward pressure from the bucket, lifted a few millimetres from the concrete. This is not how Mr Jones left it. He had parked the machine with the bucket resting flat on the ground and all four wheels on the ground. Mr Jones denies when he returned the bucket had been "crowded" forward so that he had to lift it, allowing the front wheels to fall in the process. 44 The point is that if the plaintiffs evidence is correct Mr Jones might have observed that the bucket had been put in a position adopted by those who are servicing the moving parts. 45 I am inclined to accept the plaintiff s evidence. His practice of carrying out a service included putting the bucket in the position described. I have no doubt that is what he normally did. Mr McKenna who owns a business which hires out earthmoving equipment and is experienced in the service and operation of machines such as the Case loader describes a similar manoeuvre as being part of the service process. Indeed he thought it essential to "crowd" the bucket and raise the front wheels in order properly to grease the kingpins located just inside each front wheel. The plaintiffs description of his habit was that he would grease the centre pivot point (which he was doing when he was injured) and then the kingpins. Raising the front wheels before he applied grease to any of those three points would make his task easier as well as the job more effective. 46 Mr Jones probably should have noticed the changed position of the bucket. Had he done so he would probably have realised that it was a manoeuvre performed when servicing o C) C) -- 17 of 30 -- 15 the vehicle. The reasonable man foresees what many others realise only afterwards. It was, probably, negligent for Mr Jones not to entertain the possibility that someone had attempted to service the vehicle in his absence and thus to drive off without inquiry. On this aspect of the case a far greater share of responsibility for the plaintiff s damage rests on Mr Davis who put himself where he could not be seen but where he could be run over. 47 The plaintiff argues that his incaution should be categorised as inattention or ( inadvertence rather than contributory negligence. The dichotomy is accepted in McLean at \ 315. If an employee's lapse from the standard of care required for his own protection comes from "inattention bred of familiarity and repetition, the urgency of the task, the man's preoccupation with the matter in hand" it may not be fair to categorise it as contributory negligence. The passage is from Sungravure Pty Ltd v. Meani (1964) 110 CLR 24 at 37-38. The present is not such a case. Mr Davis was not engaged in a tedious and repetitious task during the performance of which his mind wandered. Within limits the plaintiff could choose /1 when and where and in what sequence to perform his allotted tasks. He was engaged in something other than servicing the machine when he saw it idle and thought the moment I ' appropriate to effect the service. He had to walk some twenty yards to obtain the necessary equipment. He was not concentrating on a task in hand which distracted him from considering his own safety. He consciously chose to perform the service at that time and place. There was no reason why he could not have turned his mind to whether it was truly appropriate to do so without first ascertaining how long Mr Jones would be away and without making it obvious that the machine was being serviced should he return. His conduct cannot be described as momentary inadvertence. It was conduct deliberately engaged in without consideration of the apparent risk. It was contributory negligence. -- 18 of 30 -- 'I 16 48 Damages are to be reduced to such extent as the court thinks just and equitable having regard to the plaintiff's share in the responsibility for his damage. There is no science in this assessment and little art. One can only make broad comparisons between the conduct of plaintiff and defendant measured against the standard the law requires for each. 49 The defendant's departure from that standard was to fail to provide a safe system of work. Its failure was quite abject. Mr Jones never turned his mind to the point at all. He never equipped himself with the operating manual for the loader, a brief perusal of which (! would have shown several ways of averting this accident. Had the system been in place there would have been no injury. The defendant had the legal and financial means to implement (~) the system and to ensure that its employees complied with it. The authorities show that an employer has a responsibility to take reasonable measures to avoid accidents. As well there is the point that there was some indication that Mr Jones should have realised he was there. These factors lead me to conclude that a larger share of the responsibility should rest on the defendant. C) 50 Putting aside the question of a safe system for maintenance the plaintiff s failure to take care for his own safety is so obvious that it is not necessary to adorn a description of his , C) conduct with adjectives. Against that, it must be said that he was anxious for his employer's interests and not his own. He hurried to effect a service to a machine that was in need of it. He endeavoured to make use of the time when the machine was idle rather than stop it working productively later. 51 The plaintiffs damages should be reduced by 25 per cent. Prior consistent statement 52 It was put to the plaintiff in cross-examination that he had invented his evidence of "crowding" the bucket in an endeavour to strengthen his case against Mr Jones. In re- --- ~--- -- 19 of 30 -- 17 examination Mr Fraser QC, sought to tender a proof of evidence taken by the plaintiffs solicitors which, it was said, would rebut the suggestion. I admitted the statement provisionally as exhibit 19 and reserved for later decision the question of its admissibility. "If the credit of a witness is impugned as to some material fact to which he deposes upon the ground that his account is a late invention or has been lately devised or reconstructed ... that makes admissible a statement to the same effect as the account he gave as a witness if it was made by the witness contemporaneously with the event or at a time sufficiently early to be inconsistent with the suggestion that his account is a late invention or reconstruction. " Per Dixon CJ in Nominal Defendant v. Clements (1960) 104 CLR 476 at 479. 53 The proof of evidence was taken in August 1991 at a time when the plaintiff was seeking advice about his prospects of success in a suit against the defendant or was giving instructions for the institution of that suit. The statement was not made contemporaneously with the relevant event and, in the circumstance just mentioned, it was not made at a time sufficiently early to be inconsistent with the suggestion that his account was invented. Moreover, the statement put forward to rebut the suggestion is, at best, equivocal. There is no mention of "crowding" the bucket. There is a reference only to Mr Davis' practice of greasing the loader with its engine running because the bucket had to be put into various positions during the service. 54 For these reasons I would rule that the statement is inadmissible. However, it was relied upon by Mr O'Sullivan during his address for a different point, which may imply that he has withdrawn his objection to its tender. 55 I indicate that the contents of exhibit 19 appear to be of no assistance to the resolution of the issues in the action. My assessment is that the plaintiff s evidence was honest and for the most part reliable. He was sometimes truculent and often argumentative but I attributed -- 20 of 30 -- 18 those traits to his injuries and their psychological sequel. His evidence about "crowding" the bucket was corroborated by Mr McKenna and, to some extent, by Mr Randall. Damages 56 The plaintiff suffered a crush fracture of the 4th lumbar vertebrae and fractures of the transverse processes of the 1st and 2nd lumbar vertebrae. He had deep abrasions to his left hip and left calf. He was admitted to the orthopaedic ward of the Royal Brisbane Hospital and immobilised in a rotor bed. He was initially in severe pain. When it eased he was fitted with a fibreglass brace fitted around his torso. While in hospital he developed ulnar neuritis in his right arm. He was mobilised and discharged after a stay of twenty-eight days. Despite an early hopeful prognosis the nerve disruption did not resolve. The plaintiff was referred to Dr Cameron, a neurologist, for examination in October 1990. Subsequently Dr Sampson, an orthopaedic surgeon who has treated the plaintiff and supplied a number of reports, operated to reposition the damaged nerve. The operation on 13 November, 1990 effected some relief but the plaintiff continued to suffer paraesthesia and pain in his forearm and into the ring and little fingers of his right hand. He remained tender around the right epicondyle and in an area near the elbow. There was some reduction in strength in his little finger. Mr Davis continued to complain of symptoms in his right arm. He underwent a second operation in January 1992 at which there was seen to be dense scarring around the nerve. That operation reduced these symptoms to some extent but according to Dr Sampson significant residual symptoms persist. There is numbness in the little and ring fingers which cramp. At night he experiences pain in those fingers and in his forearm. He complained of clumsiness and decreased strength. There was decreased sensation in the two affected fingers and tenderness around all of the medial aspect of the right elbow. --------- -- 21 of 30 -- 19 57 The plaintiff also noticed that his right knee was sore and that any pressure caused excruciating pain. He underwent an arthroscopy in March 1991 following which the discomfort abated. The plaintiff reported to Dr Boys, who examined him for the defendant on 23 April, 1997, that his knee ached occasionally but did not swell nor give way. It did not restrict his movement. 58 The plaintiffs major physical disability remains his back. It is stiff and painful and restricts most of his activities. He cannot sit for any length oftime or undertake any strenuous ! ( activity. Bending is difficult and lifting brings on pain. Dr Sampson assessed the plaintiff as having lost 25 per cent of the effective use of his lumbar spine and 10 per cent of the effective ( " use of his right arm. He is and will remain unfit to return to his former employment. 59 Dr Boys reports that the plaintiff complained of right sciatic pain extending to his toes with bilateral numbness in both calves. On examination he was tender over the 2nd, 3rd and 4th lumbar spine. He had a range of extension about one-third of normal. There was muscle ) wasting in the right calf and loss of sensation in that leg. Dr Boys assessed the plaintiff as having lost 20 per cent of "bodily function referrable to the back" of which he thought 10 per I !I cent was attributable to the accident, the balance being related to pre-existing degenerative change. 60 Although at first disposed to think Mr Davis could return to work as a plant operator, Dr Boys in oral evidence agreed with Dr Sampson that the plaintiff was precluded, by virtue of his orthopaedic injuries, from performing the activities that are ancillary to operating earth moving equipment. He would, in Dr Boys' opinion, have difficulty with activities involving bending and lifting and protracted sitting. He could not move with sufficient ease and absence of pain to clamber around or under vehicles to service them. -- 22 of 30 -- 20 61 The other difference between Dr Boys and Dr Sampson also disappeared at the trial. The plaintiff had hurt his back lifting at work in 1976. He had some time offwork, the exact duration of which was uncertain. He returned to work and remained continuously in employment for thirteen years until 13 January, 1990. In that time, the plaintiff experienced pain but continued at work. Dr Boys thought that, but for the January 1990 accident, the plaintiff would have continued working to normal retiring age. 62 It was quite fairly conceded by counsel for the defendant that the plaintiff has no worthwhile residue earning capacity. He left school at thirteen and has no real education or occupational training. He has always been a truck driver and plant operator engaged in heavy work. He is now unfit for such employment and quite unsuitable for any other. 63 In addition to his physical injuries, the plaintiff has become severely depressed. He was referred in February 1991 to Dr Majumdar, a psychiatrist who reports that the plaintiff complained of depression, tearfulness, tension and tremors in his hands. These were particularly evident when talking about his accident. He was forgetful, had decreased powers of concentration, was irritable and experienced difficulty in sleeping. His sex drive was decreased and he felt anxious in driving a car and in crowded places. There is no family history of psychiatric disturbance and apart from two work injuries, one of which I have mentioned and the other which was minor, the plaintiff has always been healthy. Prior to his accident he described himself as hard working, energetic, friendly and outgoing. Dr Majumdar thought that the plaintiff had a depressive disorder associated with anxiety. He prescribed anti-depressant medications. His diagnosis was that the condition was precipitated by his accident which impaired the plaintiff s physical function and deprived him of self- esteem. c; '\( I ~/ -- 23 of 30 -- ( I 21 64 Dr Lawrence, to whom the plaintiff was referred by the defendant's solicitors for a 65 66 psychiatric assessment, reported on 9 March 1994, that: "At the time of the initial injuries, [the plaintiff] believed that he would receive treatment, recover fully and return to work. It was only in the months following discharge from hospital when he continued to be disabled because of his brace and physical limitations, that he gradually realised that he was unlikely to be able to return to the work that he had done life long. He became increasingly anxious, particularly about their financial situation. The reality of their finances led ultimately to the need for his wife to return to work at the age of 47, for the first time since her marriage and pregnancy at the age of 19. This was a very significant blow to his self-esteem and the concept of himself as a husband and family provider .... He acknowledges becoming increasingly depressed and anxious with morbid and self-negating cognitions. He left lonely and isolated and a failure. His sexual performance deteriorated and he could only hold an erection for a short time. This served to further undermine his self-confidence as a man and as a husband." Dr Lawrence's opinion was that the plaintiff: " ... was a hard working man strongly committed to traditional family values and self-concept of the man as a husband who could provide for his family financially and be a good role model and satisfy the needs of his wife in every way including sexually. . .. He then suffered a frightening and physically disabling illness ... He not only suffered physical losses but was unable to return to his former level of working and in the process his wife was forced to assume a provider role, alien to both of them. This further affected his self- esteem so that he appears to have developed either a major depression or an adjustment disorder with depressed mood. ... His psychiatric condition is entirely the result of the accident and its physical effects upon him. I do not believe that there is any conscious exaggeration or distortion of either physical or psychological disturbances by this man. His condition is stable and he is clearly significantly disabled and would not be able to return to his previous level of physical activity." Dr Apel who examined the plaintiff at the request of the Workers' Compensation Board thought the plaintiff had suffered a post-traumatic stress disorder which had subsided leaving him with an adjustment disorder with depressed mood. His symptoms were a fear of working with machinery, a lack of confidence while driving and intrusive thoughts of his -- 24 of 30 -- 22 accident. These symptoms themselves precluded his ability to work as a plant operator or even a truck driver. His mood is labile and he very easily becomes irritable, angry and frustrated. His condition is stable and will require treatment by anti-depressant drugs for the foreseeable future. Early in 1993, the plaintiff had become so upset that he attempted to take his own life by consuming an overdose of his prescribed medications. He has not repeated the attempt. His medication had been adjusted so that his depression is not so severe. Dr Apel recommended the plaintiff undergo behavioural therapy as a day patient in a psychiatric hospital. This would involve two attendances a week over one month then one ( ) attendance per week for the next six months. The daily cost is $205.00. 67 The plaintiff has had, as his counsel puts it, a hard time of it. He is a man whose only real interests in life were his work and his family. He is unable to take part in the former and feels he has let down the latter. He is obliged to lead what he regards as an idle and unsatisfying existence. He is unable to drive because of his apprehensions and is nervous when travelling as a passenger. He must take frequent medication and experiences pain and discomfort in daily activities. He can garden from which he appears to obtain some pleasure as he does from the company of his grandchildren. He has endured nine years of pain, discomfort, disability and depression. He has many years ahead of him. I assess general damages in the sum of $65,000.00 of which I attribute $30,000.00 for the period between injury and now. The plaintiff received a disability settlement of $27, 157.50. Interest on the difference at 2 per cent for nine years is (rounded off) $500.00. 68 I am satisfied that the plaintiff would have worked to normal retiring age at sixty-five but for his accident. The defendant submits that an allowance should be made for the possibility that the plaintiff would have been unable to work for all of that period by reason of ill-health or injury. He suffers high blood pressure which is unrelated to the accident but (j' (). -- 25 of 30 -- 23 it is readily controlled by drugs. He was engaged in heavy work and was getting older so that the possibility of another injury necessitating time off work was increasing. At the time of the accident, the plaintiff had worked for over thirty years with only two injuries, neither of which appears to have cost him much time off work or prevented his return to work. There is, as I have noted, some uncertainty about the length of the plaintiff's convalescence from his first back injury. 69 The plaintiff was the paradigm of a "workaholic". He worked more days and longer ( hours than he was obliged to. His life was his work. The plaintiff in his evidence contemplated that he might have worked beyond normal retiring age and given his \ ) background, this is not implausible. I propose to allow the plaintiff damages for his lost earning capacity up to age sixty-five on the basis this will balance the chance that he might have lost time before then, against the chance that he would have worked beyond. 70 I approach the assessment of damages for economic loss against the background of evidence which portrays the plaintiff as an industrious and energetic worker who sought responsibility rather than shirked it. In the defendant's employment he performed a number I of tasks that were not strictly his but which added to the productivity of the defendant's , enterprise. He was the de facto foreman. Prior to working for the defendant he had been the manager of a gravel yard. The plaintiff is not to be regarded as a mere truck driver. He had organisational abilities that were valuable to an employer. 71 The defendant's business has expanded very considerably since 1990. Had the plaintiff not been injured Mr Jones thought it likely that he would still be employed. Whether or not the plaintiff would have seen out his working days with the defendant I am satisfied that he would have been in regular employment in some capacity akin to leading hand/plant operator. -- 26 of 30 -- 24 72 When I come to assess the value of the plaintiff s lost earning capacity there must be moderation in the selection of the probable lost wage to take account of the ordinary vicissitudes of working life - short periods of unemployment between jobs; illness andlor injury. The assessment is predicated upon the plaintiff working continuously from the date of his accident to his sixty-fifth birthday. The moderation I have mentioned will make allowance for optimism in the predication. 73 The defendant submits that the appropriate weekly amount for the computation of the value of the plaintiffs lost earning capacity, is $300.00 for both past and future loss. The (' ) plaintiff submits $472.00 per week is appropriate for the past and $510.00 per week for the future. Precision is impossible. There is a dispute as to the plaintiffs level of remuneration when employed by the defendant. He and his wife claimed that he received $350.00 net per week initially, increasing to $400.00 and then $450.00 per week net. The defendant's records suggest that the plaintiff earned for the week commencing 11 March, 1988, $317.00 net and for the week ending 26 January, 1990, $333.00 net. The defendant could not produce any (/ figures for the interim period. Its records did not include amounts of cash paid to the plaintiff. ,,--' Mr Jones thought only about six payments were made in the two years of the plaintiffs employment. The plaintiff and his wife thought the payments were much more frequent, almost weekly. I think it more likely that the plaintiffs recollection is accurate. Mr and Mrs Davis had more interest in and reason to remember what he was paid than Mr Jones who was running a business employing many people, and earning and expending sums not a fraction of which he could hope to remember. It was the plaintiff s invariable habit to give his pay packet to his wife who kept the contents, gave a little back and applied the rest in the discharge of household expenditure. She was adamant about the amounts and even allowing -- 27 of 30 -- 25 for the propensity of memory to assert itself in support of self interest, I accept that the payments were more frequent than the defendant believed. 74 The defendant produced records of payments made to an employee who was said to have been engaged in comparable work at comparable rates to that which the plaintiff would have been doing had he remained with the defendant. A schedule prepared from these records indicates that for the fourth quarter of 1996, that employee received a little over $500.00 net per week. Confusingly, the same employee earned less in the first weeks of 1999, about $450.00 net per week, though for one week he earned over $700.00 net. I propose to allow $450.00 per week for the period to trial and $475.00 for the future. The amounts are therefore: Past economic loss Future economic loss 474 weeks by $450.00 ($475.00 per week for 912 years discounted at 5%) $213,300.00 $187,150.00 75 The plaintiff received payments from the Department of Society Security and the \ " Workers' Compensation Board totalling $74,692.000. Interest on past economic loss is therefore $62,374.00 (5 per cent for nine years of ($213,300.00 minus $74,692.00)). I 76 Special damages are agreed save for two items, the first of which is travelling expenses claimed in the sum of $825.84. This is at an agreed amount of $0.36 per kilometre for transporting the plaintiff to and from medical appointments. I think this amount is justified. The second item amount is the cost of the plaintiff s wife and daughter visiting him in hospital. No evidence was led that this was of recuperative value to the plaintiff. No doubt he was pleased to see his family but a mature man is in a different position to an infant who is likely to suffer in the absence of parents. I disallow this amount. Special damages are -- 28 of 30 -- 26 therefore $8,869.32. Interest is claimed on out of pocket expenses (on $2,000.00 at 5 per cent for nine years). I allow this claim in the sum of $900.00. 77 The plaintiff claims $3,990.05 for the cost of purchasing medications fifteen years into the future. This amount is reasonable in view of the defendant's figure for this claim and I allow it. The plaintiff also claims $5,330.00 as the cost of undergoing the course of psychiatric treatment recommended by Dr Apel. I think this claim too is reasonable and I allow it. The plaintiff next claims for the cost of visiting his general practitioner for fifteen years but, on the evidence, Dr Parry claims only the Medicare rebate from the Commonwealth government and charges the plaintiff nothing. I disallow this claim. The evidence does not allow a monetary value to be put on the chance that in the future the plaintiff may have to pay () for visits to his general practitioner. The amount under this head is therefore $9,249.05. 78 The only other head of claim in controversy is that for past care. The defendant concedes just under $7,000.00; the plaintiff claims $32,800.00. 79 Exhibits 21 and 22 are schedules of the hours spent by Mr Davis, Mrs Rivett and Mr Rivett providing care and assistance to the plaintiff during his convalescence and since his discharge from treatment, during which he has been unable to perform many personal and household tasks. There is no doubt that the plaintiff has been severely disabled and in need of much assistan~e. His wife was obliged to go to work to support herself and the plaintiff. Mrs Rivett had to assist in looking after the plaintiff while Mrs Davis was away at work. 80 I was impressed by both Mrs Davis and Mrs Rivett. I thought they were genuinely caring women who set about the task of providing for the plaintiff s needs, occasioned by his physical disabilities and depression. I did not think their evidence was tainted by rapacity. I am satisfied that the schedules set out their best estimate of the time they devoted to the plaintiffs care. The value of their time is agreed at $10.00 per hour. The schedules are, and -- 29 of 30 -- ."> 27 can only be, approximations but the amounts claimed do not appear excessive. I allow the plaintiff under this head $32,800.00 and interest on that amount at 2 per cent for nine years, namely $5,904.00. The defendant effectively concedes that the amount claimed for future care, $2,752.00, is reasonable. 81 The Fox v Wood component is agreed at $2,664.10 as is the calculation of the superannuation benefits the plaintiff will have lost. The amount is to be 6 per cent of the assessed past and future economic loss. i / 82 The plaintiffs damages are thus: a) General damages $ 65,000.00 l, b) Interest on past general damages $ 500.00 c) Past economic loss $213,300.00 d) Interest on past economic loss $ 62,374.00 e) Future economic loss $187,150.00 f) Loss of superannuation benefits $ 24,027.00 g) Past care $ 32,800.00 h) Interest thereon $ 5,904.00 i) Future care $ 2,752.00 j) Fox v Wood component $ 2,664.10 k) Special damages $ 8,869.32 1) Interest on out of pocket expenses $ 900.00 m) Cost of future medical and pharmaceutical services and supplies $ 9.249.05 TOTAL $615,489.47 83 Damages are to be reduced by 25 per cent because of the plaintiffs contributory negligence. From the reduced amount of$461,617.08, the plaintiff is to refund $63,477.88. 84 There will be judgment for the plaintiff in the sum of$398,139.20. -- 30 of 30 --