Baker v Cairns Pipeline Contractors Pty Ltd [1995] QSC 316

-:;{ 95-13(6 State Reporting Bureau Sc 45 /;s. \fc, 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 WILLIAMS J No 56 of 1995 WILLIAM LESLIE JOHN BAKER and CAIRNS PIPELINE CONTRACTORS PTY LTD CAIRNS .. DATE 01 /12/95 JUDGMENT REVISED COPIES ISSUED State Reporting Bureau Date I l)?_ I 9~ Plaintiff Defendant 4th Floor, The Law Courts, George Street, Brisbane, Q. 400() Telephone: (07) 227 4360. Facsimile: (07) 227 5532 -- 1 of 8 -- 911295 HIS HONOUR: The plaintiff sues for damages alleging he sustained an injury to his back in the course of his employment with the defendant in October 1989. The defendant denies liability partly because it does not admit there was any specific incident at about that time which caused an injury to the plaintiff. The plaintiff's principal task was stripping steel formwork shutters from manholes. The shutters were about 25 kilograms in weight and were about three foot by four foot in a semi-circular shape. When a machine such as an excavator or end loader was available, it was used to lift off the shutters and place them on the ground, but more often than not, around October 1989, no such machine was available. In those circumstances each shutter had to be lifted manually and thrown either to the bottom of the trench or onto the ground. I find that the plaintiff was obliged to manually strip these shutters regularly in the weeks leading up to the specific incident and I am also satisfied that over that period he experienced some back soreness. On the day in question I accept that the plaintiff was standing on a concrete rim of the manhole which gave him a platform of about 30 centimetres wide. He had to bend down to foot level, take hold of the shutter, lift it so that he was in a standing position and then throw it onto the ground. I accept his evidence that as he straightened up, he turned and lost his footing. He fell with the shutter to the bottom of the trench, a distance of about three metres. It is true that JUDGMENT 2 -- 2 of 8 -- 01.1295 in a number of statements made about the time there is no mention of a fall, though there is a lot about getting a bad back as a result of his work. In my view that is explicable, given the plaintiff's personality and lack of verbal skills. In his report of 9 April 1983 Doctor Beecher said of the plaintiff: "It should be noted that Mr Baker was very nervous and had difficulty in expressing himself while talking to me. Much of his history had to be extracted from him by direct question". That was exactly how he presented in Court. Clearly he has limitations reading and writing and he was not capable himself of writing a detailed account of any incident such as his fall. I am satisfied that any apparent inconsistencies in his account of what happened are generally explicable by his poor communication capacity and are not due to any deliberate attempt to mislead or concoct evidence. I am satisfied he fell as he claimed in evidence. Clearly the defendant was negligent in requiring the plaintiff to remove the shutters as he· was required to. Some better platform to work from was at least called for. Further, a machine should have been used as a general rule. Therefore I find the plaintiff sustained an injury as a result of the defendant's negligence. The plaintiff was born on 2 November 1969 which means he was aged about 20 when injured and now 26. He was educated only to about Grade 9 standard and, as indicated above, he is not of high intelligence. That significantly restricts his JUDGMENT 3 -- 3 of 8 -- 0t1295 employment capabilities but he has recently undertaken a number of courses and I have no doubt he would find suitable employment after a period of retraining. As already noted, the plaintiff was complaining of low back pain prior to his fall and I am satisfied he then had something in the nature of a lumbar strain. It is not clearly established by the medical evidence what precise injury he sustained irr the fall. An x-ray on 30 October 1989 indicated all lumbar disc spaces were normal. It is perhaps of some interest to note that some narrowing of the T9/10 disc space was then noted. The complaint to Dr Keogh on 26 October 1989 was of pain in the neck and shoulder area. He was then treated by a chiropractor for low back and neck pain. His diagnosis was of cervical and lumbar strain. So far as is revealed by the evidence there was no further medical assessment of the plaintiff's back until he was seen by Doctor Beecher on 7 April 1993. The plaintiff then complained of persistent low back pain, worse on lifting. The examination revealed tenderness from L4 to S1. An x-ray taken then revealed the L4/5 disc space was marginally decreased. Scoliosis at L4 and LS convex to the left was also noted. Doctor Beecher concluded: "The clinical examination and the x-ray changes that have taken place over a period of three and a half years suggest a probable degeneration of the L4/5 disc following an injury some years ago. My interpretation of the history, as obtained by me, is that Mr Baker was suffering, at least, a low grade back strain due to his work at the time of the fall that he described. Such a fall could certainly have caused damage to a disc in the presence of weakened back muscles without necessarily producing evidence of a disc protrusion. A damaged disc could then lead JUDGMENT 4 -- 4 of 8 -- 01.1 29 5 to disc degeneration which would otherwise be very unlikely to occur in a man of his age. On the history that I have obtained from Mr Baker, I therefore consider that his present low back problem is probably due to work-related injury in 1989". Doctor Watson saw the plaintiff in August 1994 and, in the course of his report, he said: "I believe your client is suffering a very significant low back-pain related handicap as a direct consequence of the 1989 fall at work, almost certainly predisposed to by the chronic low grade strain entailed in the prior repeated heavy lifting of steel formwork". Having regard to those opinions and the other evidence to which I have already referred I am satisfied on the balance of probability that prior to the fall the plaintiff was suffering from lumbar back strain. Further, in the fall he suffered a soft tissue injury to his lumbar region which, given the pre existing strain, probably exposed the L4/5 disc to some trauma. The fall did not cause any specific identifiable injury to the L4/5 disc. Between October 1989 and November 1994 the plaintiff's body had been subjected to a number of stresses: around Christmas 1989 he was assaulted and needed medical treatment. In early 1992 he fractured his clavicle during a martial arts session. In September 1993 he was involved in a motor cycle accident. It should be noted that a careful medical examination after the latter incident uncovered no specific tenderness. He also worked for a period on a mining site operating excavators and other heavy equipment. Further, for at least some period, he was involved in martial arts and kickboxing. It is not clear what effect, if any, all or any of those JUDGMENT 5 -- 5 of 8 -- 01J295 matters had on his lumbar spine but an MRI on 25 November 1994 showed narrowing of the L5/S1 disc space. The L4/5 disc space reported as marginally decreased in the April 1993 x-ray was reported to be within normal limits. Small osteophytes were noted at the L3/4 and L4/5 disc spaces. In all the circumstances I accept on the balance of probability the opinion of Doctor Thomas that the October 1989 fall did not and has not caused any significant disc damage. There are signs of degeneration in the region L4 to S1 and the probability is that the fall was one of a number of factors which have contributed to the present condition. The plaintiff is still a young man and it must be of concern that signs of degeneration are already present. The medical evidence does not indicate that he would benefit from surgery. Damages for pain and suffering and loss of amenities must therefore be assessed on the basis that the fall caused a soft tissue injury which is one of a number of factors which have contributed to the present condition of his lumbar spine. In all the circumstances, I assess damages for pain and suffering and loss of amenities in the sum of $25,000. I allow interest thereon in the sum of $1,500. Special damages, including the Fox and Wood factor, amounting to $1,446.05 were not disputed. The plaintiff also claimed $3,214 under the Griffiths v Kerkemeyer head and that was not seriously challenged and should be allowed. JUDGMENT 6 -- 6 of 8 -- 011295 That leaves the question of economic loss. The plaintiff continued working for the defendant for some weeks after the fall and was then retrenched because of lack of work. In September/October 1990 he obtained work on a mine site but was retrenched when production ceased. In late 1991 he worked for Ken Frost Pty Ltd for a few weeks but again was retrenched. In the latter two jobs he earned a total of $3,235. He has h~d no other remunerative employment. It is the fact he has ·not lost work because of his back condition. On all occasions, he has been retrenched for other reasons. In the circumstances, I do not consider it appropriate to assess a figure for past economic loss. Rather, in my view, it is preferable to quantify his lost earning capacity from the date of the fall through to the end of his working life. In the light of the findings I have made, he has not lost all of his earning capacity and it is only to the extent that the fall and its consequences have contributed to his diminution of earning capacity that he is entitled to damages. Further, all the usual discounting factors have to be brought into account. In the circumstances, I assess his diminution in earning capacity as a result of the fall to be in the order of $150 per week for 30 years. I allow $125,000. My assessment can therefore be summarised as follows: 1. Pain and suffering and loss of amenities, $25,000; 2. Interest thereon, $1,500; JUDGMENT 7 -- 7 of 8 -- 01 1 29 5 3. Special damages, $1,446.05; 4. Griffiths v. Kerkemeyer damages, $3,214; 5. Economic loss, $125,000, a total of $156,160.05. From that has to be deducted $4,248.91 repayable to the Workers' Compensation Board. There will therefore be judgment for the plaintiff for $151,911.14. HIS HONOUR: There will be judgment for the plaintiff for $151,911.14 with costs to be taxed on the appropriate District Court scale. JUDGMENT 8 -- 8 of 8 --