Erickson v Medo Pty Ltd & Queensland Nickel Pty Ltd [1996] QSC 153

. .. , -.S'1c y~//53.. ·,4~ /' ·--'~• ~tate Reporting Bureau TRANSCRIPT OF PROCEEDINGS (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau.) SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION CULLINANE J No 251 of 1995 DAVID WILLIAM ERICKSON and MEDO PTY LTD and QUEENSLAND NICKEL PTY LTD TOWNSVILLE .. DATE 16/07 /96 .. JUDGMENT This oniy. the purpose Lsed for permission. ----·REVISED COPlES ISSUEO Stata Reμorfo,g Bureau Date/ r I r t1h Plaintiff First Defendant Second Defendant study without dth 1?l1111r ThP T.RW r1111rl<: r... nrop _{,/,-,.pi Rrkh,inp_ ()_ dnnn TPlenhnne: (07) 227 4360. Facsimile: (07) 227 5532 -- 1 of 17 -- 160796 HIS HONOUR: In this matter the plaintiff claims damages for personal injuries sustained by him on 16 August 1993 in the course of his employment with the first detendant at the second defendant's nickel refinery at Yabulu near Townsville. The plaintiff had shortly before the date upon which he alleges he sustained his injuries been employed by the first defendant as a waterblaster. It appears that the first defendant engaged to provide certain industrial cleaning services to the second defendant. It was conceded for the purpose of the case that no distinction should be drawn between the duty of the first defendant and the second defendant to the plaintiff and that the conduct of each was to be judged by reference to the duly of caLe of an employer. Both defendants were represented by the same counsel and had had the same legal representation throughout. The same statutory policy of insurance, I was told, is applicable to both. The plaintiff was given some general instructions in relation to his duties by a superior at the first defendant. On the day he was injured, he was engaged in cleaning by means of waterblasting a structure variously described as a tailings tank or a tailings still. The nature of the stLuclure and its dimensions appear in the report of an engineer, Mr McDonald, who was.called to give evidence. JUDGMENT 2 10 20 30 40 50 60 -- 2 of 17 -- 160796 It is plain from the dimensions of it, that the performance of the tasks which the plaintiff was required to perform had to be carried out in an area which was very limited by lhe various component parts of the structure. The plaintiff entered the tank through the entry point at the top and side of the tank. The area within had no lighting, but the plaintiff had been provided with a small hand held light. The plaintiff carried out the cleaning operations by means of an instrument which has been described as a water gun. It is described in some detail by the plaintiff in his evidence. When the plaintiff first entered the tank, he complained to a co-employee, who it appears was his superior on that day, of the poor lighting within and at a later time he again complained. On each occasion he says, and I accept, he was told to get on with the work with what he had. The water which is used for the purpose of cleaning the tank is, obviously enough, ejected under great pressure, sufficient, I was told, to be able to cut steel, although not aluminium. The plaintiff, during the time he was 1n the tank carrying out the work, did so standing on what are described as baffles which cross the tank. These are separated by i'ntervals of three feet vertically and 10 inches horizontally. They are 10 inches in width, or at least are at the levels that I am concerned with. JUDGMENT 3 10 20 30 40 50 60 -- 3 of 17 -- 160796 Baffles at one level are not set directly below those of the level above, but correspond with the spaces between the baffles at the levels above. The plaintiff says that visibility was poor and it. was not possible} l.o see t.o cJny significant degree exactly what was happening with the water directed by him on to various parts of the structure to be cleaned. Whilst there is a complaint about the absence of adequate lighting and whilst it seems to me that this is justifiable, I think at the outset it is appropriate to say that the absence of adequate lighting could not be said to have been causally related to what the plaintiff says occurred, that is I do not think that the evidence would permit a conclusion to be reached that had adequate lighting been provided, the incident which the plaintiff says occurred would not have occurred. The Plaintiff's account is that whilst he was standing on one set of baffles cleaning, if I understand it correctly, the upper part of his body protruded through between the baffles at a higher level, that he had moved one of his feet from a baffle upon which he had been standing with both of his feet to the baffle running parallel with it. He says that he felt his left foot commence to slip. He attempted to correct himself and then his foot slipped. He says the consequence of this was that both of his feet fell between ·the baffles at the level upon which he was standing, JUDGMENT 4 10 20 30 40 50 60 -- 4 of 17 -- 160796 that the upper part of his body fell through the baffles throu~h which it was then protruding and that the whole of his body fell to the level of the baffles below those upon which he was standing. He says that as he fell his body struck the baffles at the level at which he was standing. The plaintiff had been wearing some rubber shoes provided by his employer, the first defendant. He said that the baffles upon which he stood had a build up of material on them, and it is obvious that with the exercise that was being carried on, there must have been a very substantial amount of water around, and consequent moisture of the area he was standing on. There was a substantial dispute as to his account as to the way in which he fell. It was said that having regard to the limited distance between the baffles through which the upper part of his body protruded, it would not have been possible, given what is said to be his account of the way in which he was standing and the direction in which he was facing, for his body to have passed through this area. My understanding of the plaintiff's accounl is that the hand holding the gun was directed down on to the baffles upon which he was standing for the purpose of cleaning them. For the defendant, it was said that the plaintiff's account should be understood as involving him standing facing one side of the tank and in a way, which it was suggested on the JUDGMENT 5 10 20 30 40 50 60 -- 5 of 17 -- 160796 evidence, it would have been impossible for him to have passed through the baffles in the way in which he described. I should mention that the plaintiff initially had the baffles through which his body was protruding at a somewhat higher level of his body than the evidence satisfies me is the case. Indeed, the plaintiff conceded ultimately that the baffles were somewhere around his hips. Mr McDonald said that when he inspected the tank, the baffles at the level above those upon which he was standing reached the top of his legs. Under cross-examination, Mr McDonald had put to him that it was not possible for somebody to fall in the way in which the plaintiff described in the area that we are concerned with. Mr McDonald acknowledged that it may not be probable that that would occur, but was of the view that it was certainly possible. I accept that it is possible for somebody to fall between the baffles, notwithstanding the limited area and that it is possible to fall in the way in which the plaintiff described, namely with part of his body falling through one set of baffles and the whole of his body falling through another set, although, as I have said, it may be that the probabilities are that when a person standing in that position loses his footing, this will not occur. There was some evidence that this work is carried out sitting down. This came from a witness for the defendant, Mr Radel~ JUDGMENT 6 10 20 30 40 50 60 -- 6 of 17 -- 160796 This was not suggested to the plaintiff and there is no evidence that the plaintiff was ever told this. Mr Radel rather emphatically stated that the work could not be carried out in any other way and that this is the way in which he was shown to carry it out and, if I understand his evidence correctly, this is the way that he shows others to carry it out. This evidence came at a very late stage and well after the plaintiff's case was concluded. It appeared to come as something of a surprise to the defendants' counsel as it had not been raised with the plaintiff or any of his witnesses. Indeed, it has been suggested to the plaintiff that he may have sustained his injury to the leg whilst carrying out the waterblasting seated, something which it was clearly implied he should not have been doing and which, I should add, he rejected. I am not prepared to find that this is how the work should have been carried out or that the plaintiff should have been instructed to do the work in this way as the plaintiff alleged by an amendment allowed after the evidence was given. The plaintiff then, at the time he says he was injured, was, I am satisfied, exposed to, firstly, a risk that he would lose his footing by slipping and falling from a baffle and, secondly, exposed to the risk that in the event that he was struck by the water ejected from the hose under the pressure I have described, he might sustain a very serious injury, indeed. It is said in this case that both of those risks realised themselves. The plaintiff, it would seem, clearly was struck JUDGMENT 7 10 20 30 40 50 60 -- 7 of 17 -- 160796 by a jet of water and sustained a fairly serious injury to his right leg. The plaintiff's case was that there were means reasonably open to avoid these risks. The primary case advanced was lhal it was open to the defendants lo provide tor some torm ot a platform which could be lowered into the tank and then lowered from one level to another to provide a safe and secure footing for somebody to work on whilst carrying out this work. Two of these would be required to enable the person to stand on one whilst moving the other from one level to the other. Mr McDonald said that platforms which work upon this principle are in common use, and he has seen them in a number of different areas. He acknowledged that he had not previously had any experience with a structure of this kind, but said that the P,latfor111s, in his view, could readily be used, although it would be necessary for some care to be taken in their design and for some pains to be taken in instructing people as to their use. He acknowledged that this might require some additional time to be taken with the performance of the tasks and pointed to the fact that scaffolding, which is in frequent use, requires similar painstaking measures. He also described as an alternative or an additional measure the provision of a safety harness which might be used in the way described by him and which would prevent, in the event of somebody losing Lheir JLJDGMEN'l' 8 10 20 30 40 50 60 -- 8 of 17 -- 160796 footing, that person from falling more than a couple ot inches. It was, as I have said, strongly contended that the plaintiff's case should fail because on his account of how he 10 was standing, as the defendant said the evidence should be understood, it would have been impossible, having regard to other evidence, for him to have fallen in the way in which he did. I do not think the evidence requires such a conclusion to be reached. I did not form a bad impression of the plaintiff's credibility and generally accept his account of what he says occurred. It is apparent he sustained a serious injury to his leg and that this was sustained, as he said, from the water jet. I should add in relation to this that the evidence was that once a person take ones hand off the trigger, the jet ceases. The obvious inference in this case is that the plaintiff retained his hold upon the trigger or that, as he suggested, for a short period after it is released water is ejected under pressure. In the result, I am prepared to accept the plaintiff's evidence that he fell in the way in which he did. This involves obviously the conclusion that he must not have been standing in the way in which the defendants suggest the evidence ought to compel the Court tocconclude he was standing. JUDGMENT 9 20 30 40 50 60 -- 9 of 17 -- 160796 Indeed, when one looks at the evidence, I do not think it is possible to conclude that he was describing himself as standing straight on, as suggested. His position is described variously, but I am satisfied that he was standing in a position which enabled his body to pass in the way I have already described through the areas between the baffles when, as I am satisfied is the case, his foot slipped. So far as the measures Mr McDonald suggested are concerned, this was the subject of some substantial challenge. The second defendant has attempted, of relatively recent times, to implement these suggestions. I had evidence from Mr Owens, a senior officer of the second defendant, about this. I have no reason to doubt that the attempts that have been made have been made with a view to the safety of the second defendant's employees and for that matter the first defendant's employees and not with an eye to this litigation. Mr Owens made it clear that whilst at present the measures that have been taken have not produced what he regards as a practicable solution, that they will continue. He has also suggested other means which might be taken, such as re-arranging the interior of the structure, and he has also foreshadowed the possibility that an entirely different design structure might be in future adopted. No substantial objectiort, so far as I am concerned, to the principle Mr McDonald advanced in respect of the platforms was advanced in opposition to it. Rather, the evidence suggested JUDGMENT 1 0 10 20 30 40 50 60 -- 10 of 17 -- 160796 that the attempts to implement it in a practical sense have not been at this stage successful. I accept the evidence of Mr McDonald that there are practicable means of the kind which he described, and particularly the provision of the platform that he described, which would have obviated the risk of 10 injury to the plaintiff, which occurred here. As I have said, there are two risks involved. For the defendant it was suggested that a relatively long history of performing the work in this way without any injury ought to lead the Court to conclude that the risk was riot one which it was necessary for steps to be taken to guard against. However, I accept that such risks as I have already described were foreseeable, and I am satisfied that steps ought to have been taken to guard against them. The possible consequences of somebody coming to grief as a result of being struck by the jet of water, given its power, hardly needs to be dwelt upon. The importance of guarding against the risk of a person losing his footing in the circumstances in which the plaintiff was required to .work is in my view obvious. The result then will be that there is a finding that the defendants were in breach of their duty to him by failing to take appropriate steps to obviate the risks of the plaintiff slipping and falling and/or injuring him~elf as a result of coming in contact with the jet of water from the gun and, as I have indicated, the appropriate steps which were, in my view, JUDGMENT 1 1 20 30 40 50 60 -- 11 of 17 -- 160796 open to be taken were those described in the evidence of Mr McDonald, particularly that relating to the provision of a platform. The plaintiff also advanced a case based upon a breach of statutory duty. This was in turn based upon the provisions of s 9 of the Workplace Health and Safety Act of 1989 as amended. This section is in quite general terms and provides for an offence in the circumstances predicated by it. It is not, in view of the finding I have made, necessary to make any finding in relation to this, and particularly any finding in relation to whether the section does upon proof of breach give rise to a cause of action. The matter has been before the Court of Appeal and the members of the Court left the question open. So far as damages are concerned, the plaintiff sustained an injury to his leg, as I have described. This has resulted in a 10 per cent loss of function of that leg primarily as a result of weakness and wasting of the muscles of the rtght thigh. He sustained serious lacerations in this area. I am also satisfied that he sustained an injury to the lower back. The evidence does not convince me that he sustained any injury to the disc, as was suggested. However, I am satisfied that he sustained a soft tissue injury and that he has some residuaI sympEoms associated with this. JUDGMENT 1 2 10 20 30 40 50 60 -- 12 of 17 -- 160796 However, the plaintiff's problems are now, I accept, having heard the evidence of Mr Dr Richards, primarily psychiatrically determined. According to Dr Richards, the plaintiff now suffers a somatoform pain disorder which was initiated by his injuries and augmented and elaborated by high 10 dependency needs and hypochondriacal and hysteroid attitudes. He describes the condition as chronic and intractable and thinks that it is likely to persist and to prove refractory to all therapy. The condition has been exacerbated by the fact that the plaintiff has, to use Dr Richards' language, lost his family and a great measure of his self esteem. These matters, Dr Richards thinks, are associated with the injuries the plaintiff sustained and are some of the consequences of them, and I accept that this is the case. On my assessment of things, the plaintiff is not currently capable of employment and this state of affairs is permanent. The plaintiff was born on 26 February 1966. His work history appears in Exhibit 1, which is his statement. He has had a number of positions and has moved around to some extent. As I have said, he had been in employment with the first defendant for a very brief time prior to the accident. Before that he had been in Mount Isa working as a truck.driver for a few months.· He had spent 18 months working for the second defendant as a sandblaster, commencing in July 1991. JUDGMENT 1 3 20 30 40 50 60 -- 13 of 17 -- -·-......dtA 160796 The plainiiff's evidence was that he would have sought employment on a permanent basis as a truck driver because of the higher wages that would have permitted him to obtain. He had, however, a young family at this time and it is, I think, doubtful that he would have persisted in employment which would have kept him away from his family for extended periods. The plaintiff must, on Dr Richards' evidence, be regarded as having a personality vulnerable to the development of the problems which he has developed as a result of his injuries and appropriate discounts have to be applied when heads of damage are assessed for this vulnerability. The plaintiff makes many complaints, the nature of which are described in his statement and in Dr Richards' report. Many of these, obviously enough, do not have any organic basis and are only explicable by reference to the disorder that Dr Richards speaks of. I accept that there is some organic basis for some of his complaints, but that these are largely overshadowed by the many complaints which do not have an organic basis. I assess the plaintiff's general damages in the sum of $60,000. I allow interest on $25,000. I ascribe the sum of $25,000 to the past. The plaintiff has received a disability settleme~t of $1,362.75 from the Workers' Compensation Board. l allow interest at the rate of 2 per cent per annum on the JUDGMENT 1 4 10 20 30 40 50 60 -- 14 of 17 -- ·--~ 160796 difference, namely $23,637.25 for 2.9 years, producing a figure of $1,370. So far as past economic loss is concerned, there is a claim based upon calculations placed before the Court in the form of a report from a firm of accountants in the sum of $67,881. In addition, the plaintiff would have lost some superannuation benefits. However, I think that it is appropriate to apply a discount to this. Firstly, this is as a result of the vulnerability to which I have referred, although the time involved has been relatively short~ Secondly, the plaintiff was not in permanent employment in the few years prior to the accident and there were periods when he moved around and was, for at least a part of this time, out of work. I allow in respect of past economic loss, including loss of superannuation entitlement, the sum of $62,500. The plaintiff has received, it was common ground, $36,000 by way of income substitution in the form of payments from the Worker's Compensation Board and a disability pension which he now receives. I allow interest on the difference between these two sums, namely $26,500 at 5 per cent per annum for 2.9 years, producing a figure of $3,842. I should also mention that the claim is based upon a rate which is taken from awards and is somewhat higher than the actual rate which the plaintiff earned during this time. JUDGMENT 1 5 10 20 30 40 50 60 -- 15 of 17 -- 160796 So far as future economic loss is concerned, this claim is based upon award rates and is calculated in the accountant's reports to various ages. Again, there are discounts of the kind already canvassed to be applied. Doing the best I can on the material that I have, I allow for future economic loss, including loss of superannuation entitlement, the sum of $300,000. I allow in respect of past care and assistance the sum contended for as this was not the subject of any dispute. This is the sum of $8,400. I allow interest on that sum at 2 per cent per annum for 2.9 years, producing a figure of $487. Similarly, there was no dispute about future care and assistance in the sum of $24,660, nor about the amounts claimed for future medical expenses representing medication and consultations with medical practitioners. These total $6,566. Special damages were agreed upon in the sum of $10,188.57 with interest in the sum of $750. The Fox and Wood component is $2,527.45. There will be added to the various amounts which go to make up the judgment an amount of $718.66 by way of rehabilitation expenses. That gives a total figure of $482,009.68. From this sum has to be deducted the sum of $24,024.46, producing an amount of $457,985.22. JUDGMENT 1 6 10 30 40 50 60 -- 16 of 17 -- 160796 There will be judgment for the plaintiff against the defendants in the sum of $457,985.22 with costs to be taxed, including reserve costs. JUDGMENT 1 7 10 20 30 40 50 60 -- 17 of 17 --