Benn v Ahden Engineering (Aust) Pty Ltd [1996] QSC 191

. t_ a6L/q1 zqzl36 State 6U ;,}~ AU toPY Reporting 'Jlureau TRANSCRIPT OF PROCEEDINGS Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold ' without the wirtten authority of the Director, State Reporting Bureau. SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION DEMACK J No 68 of 1994 GILLIAN FRANCES BENN and ARDEN ENGINEERING (AUST) PTY LTD MACKAY .. DATE 26/09/96 JUDGMENT 1 AEVJSEO COPIES ISSUED state· Reporting Bureau Date 4 I /o/ 9C, Plaintiff Defendant 4th Floor, The Law Courts, George Stnet, Brisbane, Q. 4000 Telephone: (07) 3227 4360. Facsimlle: (07) 3227 SS32 -- 1 of 16 -- 260996 (Demack J) HIS HONOUR: Mrs Benn was born on the 5 May 1950. She commencing working part-time with the defendant on the 15 September 1989. Later, she became employed full time and became the computer controller. The defendant is an engineering business and does contract work. The office staff is limited to about four people. Mrs Benn, as computer controller, was responsible for the generation of a large number of pages of reports each week. Her husband was the finance and administration manager at the relevant time. Mrs Benn says that she was injured on the 2 December 1992 while lifting a carton of paper into the stand upon which the printer for the computer was placed. There is no doubt that she sustained an injury consistent with the stresses to which the lumbar spine was exposed in such a manoeuvre. However, there are some associated issues, particularly concerning the availability of a trolley, where credibility is important. It became apparent during the trial that there were some tensions among the people who worked in the defendant's office, and it seemed likely that this may have affected the way they approached their evidence. One issue in dispute was who told Mrs Benn that it was her responsibility to put the paper into the stand beneath the printer. She said that she was told to do this by Maureen Callaway, who was also in the front office at the relevant time. Mrs Callaway denied this, and generally it seemed to me unlikely that there was anything in the nature of an instruction by Mrs Callaway to Mrs Benn. 2 JUDGMENT 10 20 30 40 50 60 -- 2 of 16 -- 260996 (Demack J) Mrs Callaway was responsible for the stationery store and it may have been that she told Mrs Benn where the paper was kept, but I am not satisfied that there was any actual instruction to that effect. However, Mrs Benn, once she was involved with the computer would, it seems to me, have assumed that it was her responsibility to make sure there was paper in the printer. As her husband said, she was, "Driven to succeed in the things she wants to do." It seemed to me that she was of a personality type that would assume responsibility, and having assumed it, others would then concede it to her. Certainly Mr Benn, who was, as I have said, finance and administration manager, accepted that his wife was the person largely responsible for placing the paper in the stand beneath the printer. The other issue that was in dispute was whether or not there was a trolley that could have been used. Here, there were a number of witnesses who gave evidence. It seemed to me that the one who was most removed from the conflict that apparently existed in the office was Ms Banks. She was there at the relevant time and has also remained in the employment of the defendant, although others have been dismissed or made redundant through restructuring after takeover. Certainly in cross-examination Ms Banks could not deny that the trolley was there before the 2 December 1992. However, she had, both in evidence-in-chief and in cross-examination up to that point, said that she was "pretty sure" that the trolley did not appear until after the 2 December. 3 JUDGMENT 10 20 30 40 50 60 -- 3 of 16 -- 260996 (Demack J} I am only concerned with proof on the balance of probabilities, and it seemed to me that Ms Bank's evidence, based as it was upon something in respect of which she was "pretty sure" was preferable to evidence that was tarnished by personality clashes between Mrs Benn, Mr Benn, and Mrs Long. So, I am satisfied that following the 2 December 1992, the defendant, by the actions of its finance and administration manager, Mr Benn, recognised there was a need to instruct office staff on proper lifting procedures and at the same time purchased a trolley, which was then made available to staff to move cartons of paper around the office. Up until that time Mr Benn said the lifting training programs that were available in the defendant's premises were oriented towards the workshop situation. However, after the 2 December he realised the need to have office staff also trained in lifting. The carton of paper that was involved weighed about 18 kilograms. It was stored outside the office and brought into the office by a storeman. Each time he brought paper in there were about four cartons and they were stacked one on top of the other between the photocopier and some shelves. On the 2 December 1992, before 7 a.m. Mrs Benn went to take one of the cartons and place it in the stand beneath the copier. She said that the way it was stacked between the photocopier and the shelves meant that she had to lift it up along its length. This obviously distributed the weight further from her body than if she had been able to lift it at its ends. She changed her grip after she had lifted it. 4 JUDGMENT 10 20 30 40 50 60 -- 4 of 16 -- 260996 (Demack J) She moved from that area to where the stand for the printer was situated. This involved some twisting of her body as she negotiated across the office. She then bent down and reached out with the carton of paper to place it on the shelf in the stand. The stand has a protruding shelf near the top. So, that it was necessary to reach out further than if the stand had been designed differently. She felt a very bad tearing pain down her right leg and a sharp wrenching pain across the base of the spine as she bent over and reached out. As I have said, there was no system of instruction on lifting in place. There were no mechanical aids. There was little space, and the stand was awkwardly shaped. I am satisfied all of these were matters that carried with them a foreseeable risk of injury to employees and those risks could have been removed without significant expense, and in the circumstances, the defendant is guilty of negligence. The question of contributory negligence was raised and pressed. The allegation of contributory negligence depends largely upon the assertion that Mrs Benn did not take reasonable care for her own safety because she knew she was having persistent back problems. This was a relatively contentious issue at the trial because Mrs Benn had been seen by a number of doctors, and up until virtually the beginning of the trial she had not disclosed that she had consulted her general practitioner on a number of occasions about back problems from 1989 onwards. She gave an explanation, which I must confess, I did not really understand. 5 JUDGMENT 10 20 30 40 50 60 -- 5 of 16 -- 260996 (Demack J) It seemed to me to be simply playing with words. She said that she did not understand that any of her earlier problems related to her actual spine but thought they were simply strains. Consequently, when she was asked by medical practitioners whether she had had any previous back problems she did not feel they were asking her about strains. As I say, I cannot understand how she could have thought that way. It seems to me to be contrary to common sense, and in her case, she did have some years of training as a nurse back at the end of the 1960's and early seventies. I accept that she was concealing the extent of her back disability from the doctors who asked her about it. She was in conflict between Mrs Long and Mrs Callaway about whether she had ever spoken of having back problems while nursing. It seemed to me that although both of those women may well have some animosity towards Mrs Benn, there is nothing inherently improbable about what they say she said. It is common enough for nurses to have back problems. Clearly, during the time when Mrs Benn was in contact with Mrs Long and Mrs Callaway she was having back problems. Consequently, it would not be surprising if she had mentioned casually that she had had back problems while nursing. However, it would require on their part a detailed knowledge of her background to be able to make up such a story. Mrs Long, I think it was, said that she was most surprised because she had not any understanding that Mrs Benn had any nursing background. 6 JUDGMENT 10 20 30 40 50 60 -- 6 of 16 -- 260996 (Demack J) So, I accept that casually, on one occasion, Mrs Benn told Mrs Long and Mrs Callaway that she had back problems while nursing. I also accept that on one occasion she was seen by Mrs Callaway to be pushing a carton of paper across the floor with her foot and that at that time she said she had back problems. One other area of contention in the evidence concerned a note made by her general practitioner, Dr Parker, to the effect that she told him she had had back traction some time previously. Dr Parker, of course, had no memory of the actual words used and simply had his note. There was some suggestion by Mrs Benn that she had told him about bowel surgery which she had had, which indeed was the case. I find her explanation again unacceptable. She had gone to see Dr Parker with back problems, and it would seem to me to be an extraordinary misunderstanding on his part if, in fact, he wrote down that she had traction and she had told him something about her bowels. I accept then that during the period when Mrs Benn was working for the defendant she was having significant back problems. There was, in fact, a medical certificate issued by Dr Parker in 1989 which referred to back pain and sciatica. In those circumstances, it seems to me she was not taking reasonable care for her back when, quite early in the morning, before other staff had arrived, she set about carrying the 18 kilogram carton of paper through some awkward lifts and putting it into the stand. 7 JUDGMENT 10 20 30 40 50 60 -- 7 of 16 -- 260996 (Demack J) However, the greater responsibility for her disability lies with the defendant. I find her 10 per cent to blame for her own problems. As I said, when she reached out to put the carton on the shelf she felt the tearing pain in her right leg and across her back. She rested for a time on her knees. However, after a time she felt better and was able to feed the paper into the printer. Later, when the other women on the staff arrived, she bent over and felt severe pain. She went to see a doctor at the Ambrose Medical Centre, Nebo Road. She was given painkillers and bed rest. She went back to work in early January, working full time, but was not coping well. She went to see a doctor and was referred to Dr White, who placed her in traction for two weeks. This was painful, but there was no improvement. She was referred by Dr White to Dr Weidmann, and on the 9 March 1993 he performed surgery in her right groin to deal with an entrapped nerve. This reduced the pain in her leg, but she had a great deal of hip pain. Subsequently, she was referred to Dr Ryan, who performed surgery on her spine. She felt better for a time and went into a rehabilitation course in July 1993. After that, she worked for a time for Hodge Industries. This was initially part of her rehabilitation program, but after the 12 weeks of the program she worked there full time. However, the pain in her back and legs was increasing and she was referred back to Dr Ryan in December 1993. 8 JUDGMENT 10 20 30 40 50 60 -- 8 of 16 -- 260996 (Demack J) He said she was not getting enough exercise, so she was put into a program for building up her musculature, in January 1994. At the end of that program she was told by Dr Ryan that the surgery he had performed which involved a bone graft had not been successful and she underwent further surgery. This time she developed a Golden Staph infection. Since that time she has had a considerable amount of pain and discomfort. She has got to the stage now where she uses a stick when walking and feels quite unstable in her legs. She also has incontinence, which seems to be quite unpredictable and a source of social embarrassment. One orthopaedic surgeon, whose report was not tendered, has recommended a further operation involving anterior fixation of lumbar vertebra. She is not at all keen on this surgery. Not only has she had the two spinal operations which have been unsuccessful, but also she has had a number of bowel operations during her life. At present she is significantly disabled. The extent of her disablement from an orthopaedic point of view was assessed by Dr Macfarlane as 40 per cent of the whole patient. However, Mrs Benn, it seems to me, is someone who, as Dr Mulholland said, tries to take on too much. It seems to me that part of her present problems arise from this. It is, no doubt, a very difficult thing for a plaintiff who is required to mitigate damage to adjust to the thought that she may be trying too hard. However, Mrs Benn, seems to me, clearly to fall into that category. 9 JUDGMENT 10 20 30 40 50 60 -- 9 of 16 -- 260996 (Demack J) Her husband was involved in the restructuring of the defendant, and then following that, his services were terminated. He obtained work in Bundaberg and they moved there to live. She ceased her work with Hodge Industries after a period to have surgery and has not been able to find work since then, except for a couple of casual jobs. However, she decided that as she enjoyed involvement with computers she would pursue a Degree of Bachelor of Information Technology with Central Queensland University through its Bundaberg campus. She commenced that course in 1995. Her results in the first year were very uneven, ranging from a high D to a failure. I had wondered about this, but her scholastic record as a teenager suggests she has good intellectual capacity. It seemed most likely that the uneven results are partly due to her pain and discomfort and partly que to her inability to set realistic goals of achievement. At the end of her first year she became involved in the student union, and at the beginning of this year was elected as chairperson of the Bundaberg campus of the ~~ntral Queensland University students' body. This led to her finding life very pressured and she, in fact, had a significant breakdown in May this year. She has now deferred her subjects and is concerned about how she will pursue the course. It seemed to me that even though she has a degree of pain and significant disability, she has a good level of intelligence and an enthusiasm for computer work. 10 JUDGMENT 10 20 30 40 50 60 -- 10 of 16 -- 260996 (Demack J) Computer work would be ideal for her, even on some kind of part-time basis, given her disabilities. The difficulty for her is to be able to adopt a realistic approach to her training and to any work load that she might undertake. Dr Mulholland said she should be discouraged from trying to do a full time student work load. However, with the development of new technologies and the movement of many businesses from the office to the home, it seemed to me that Mrs Benn still ·has realistic prospects of being able to complete her study and to earn some degree of income. The difficulty in assessing how this can be expressed in money terms arises from the rather complex situation in which she found herself. While she was working for the defendant she earned an average of $388 net per week. She says, at the end, she was working up to 60 hours a week to earn that, which seems quite surprising. However I accept that, as I have been saying through the Judgment, she does set rather unrealistic goals for herself, and I have no doubt that she did work those long hours. She had hopes of studying at a TAFE college to gain skills in computer technology and, as I have said, she enrolled after her significant disability for a university course. Up until now her significant computer skills are largely self taught. One of the witnesses called on her behalf, Mr Vial, was someone who spoke well of her computer skills. He also said, ur got the impression she was in some way managing the office." 11 JUDGMENT 10 20 30 40 50 60 -- 11 of 16 -- 260996 (Demack J) This was simply an observation made, perhaps unresponsively to the question, but it again highlights the high standard she set for herself and her capacity to keep on trying. Turning then to the assessment of damages, the accountants who have prepared Exhibit 8 have taken two approaches. One is to take the kind of wage she would earn at Ahden Engineering as indicative of her basic financial capacity. The other is to take a level of income that would be available if she completed a degree and got a job at a TAFE college. At present her income net per week from the defendant would be $462, and from a position at the TAFE college, $542 net per week. For the past, I will accept a rounded off figure taken from Exhibit 8 of $85,000. She has received periodic payments from workers' compensation in the amount of $29,939.20. I will allow an amount of $12,550 as interest on the balance of the past economic loss. For the future the matter is, as I have said, extremely complicated, because I am satisfied that she has a capacity to use computer skills at home now, and also has the capacity to complete study. What is lacking is the ability to set realistic goals. She is, at present, receiving some psychiatric support from a doctor in Bundaberg, and it seems to me realistic to assume that she will be able to set more sensible goals. 12 JUDGMENT 10 20 30 40 50 60 -- 12 of 16 -- 260996 (Demack J) She, in fact, worked very satisfactorily for Hodge Industries for a period of time, which was only brought to an end because of a need for further spinal surgery. Doing the best I can with these mixed facts, for her future loss I will take the sum of $250 per week for 10 years and allow $100,000. Superannuation has to be allowed. The method of calculating this was agreed at six per cent of the net figure for economic loss. In respect of the past, that is $5,100, and interest on that is $1,150. For the future, the figure is $6,000. Special damages were substantially agreed. The only issue on which the defendant made submissions, concerned the cost of a mobile phone. It seemed to me that it was reasonable in these circumstances to allow that. Mrs Benn is significantly disabled and is trying very very hard to mitigate her loss. Consequently the security that is provided by a mobile phone, seems to me, to be quite proper. So, I will allow $60,765.88 for past economic loss with interest in the sum of $1,389.69. I have mentioned previously at some length that Mrs Benn had significant back problems prior to the 2 December 1992. I have taken those into account in picking the period of 10 years for calculating her future loss of economic capacity. It seems to me that that disability also has to be taken into account in looking at some of the items that are claimed by her for future expenses. 13 JUDGMENT 10 20 30 40 50 60 -- 13 of 16 -- 260996 (Demack J) As they have been itemised by Mr Mellick in his schedule, the claim for future surgery, seems to me, to be reasonable. It is not highly likely that she will have that surgery, but it is a possibility and it will be expensive. The sum of $1,500 seems to me, to be reasonable. However, with the various other items, including the Niagara chair, it seems to me that some of these would probably have become necessary at some time in the future in any case. The Niagara chair is certainly expensive, but Mrs Benn suffers a good deal of discomfort and pain and she says she finds it a source of relief, and indeed, it eases her need for the more powerful analgesics. In all, I would allow $30,000 of that cluster of claims which Mr Mellick has brought together, and together with the future surgery, for the whole of that group of future expenses I would allow $31,500. The Griffith and Kerkemeyer damages also present problems, because there is a large claim by Mr Benn, although he appeared as someone who was markedly unenthusiastic about domestic chores. I was left with considerable doubt whether he has done all that he claimed to do, or which is claimed on his behalf to have been done. In the course of his evidence he was asked about what might have happened if things had been different, and he spoke very quickly of getting in domestic help. In fact, domestic assistance is included, both in the special damages and in the future items that I have allowed. 14 JUDGMENT 10 20 30 40 50 60 -- 14 of 16 -- 260996 (Demack J) Consequently, the Griffiths and Kerkemeyer amount is there to cover those kind of personal and helpful things that arise on a day-to-day basis in the domestic relationship, where one of the partners has a disability that is caused by a defendant's negligence. These are things which are extremely difficult to assess in time and blend so easily into the kind of things that are ordinarily done within the domestic relationship. Doing the best I can with these figures, I will allow $13,000 for past loss with interest of $1,000, and for the future, $30,000. The amount of income tax paid by the Workers' Compensation Board in respect of periodic payments of compensation is $6,529.40. The claim for damages for pain, suffering, and loss of amenities is a substantial one in this case. Mrs Benn has constant back and leg pain. She has some instability in her legs, she uses a walking stick, and suffers from some incontinence. She has had two operations to fuse vertebra in her back and these have failed. She may need future surgery. The pain and lack of mobility interferes with sexual intercourse between herself and her husband. Their marriage has apparently not been affected seriously, although obviously there are points of disappointment and stress. She has very little left to her by way of recreation, although 10 20 30 40 50 she recognised herself, that prior to the accident, she had 60 15 JUDGMENT -- 15 of 16 -- 260996 (Demack J) been working such long hours that there was very little recreation in her life. However, physical activities are very restricted. She cannot really even enjoy walking. She apparently used to enjoy, on occasions, amateur theatrical work, but that is also no longer possible. As I have said, there was a significant pre-existing degeneration in the spine. For all of this, I will allow $70,000. The permanent partial disability payment was $21,800, and it seems to me, that that roughly equates to the past component in the pain, suffering, and loss of amenities, so I will not allow any interest. The total then of the assessment is $423,984.97. Taking off the 10 per cent, this produces a sum of $381,586.47. The refund to the Workers' Compensation Board is $100,819.13. So, there will be Judgment for the plaintiff against the defendant for $280,767.34, together with costs to be taxed. 16 JUDGMENT 10 20 30 40 50 60 -- 16 of 16 --