Benson v Liwood Pty Ltd [1995] QSC 191

\ \ •• ·• -!'!'• • .• State Reporting Bureau sc °!S-/1cr1I 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 DEMACK J No 50 of 1993 CHRISTOPHER EDWIN BENSON and LIWOOD PTY LTD MACKAY •• DATE 20/07/95 JUDGMENT Plaintiff Defendant 1 4th Floor, The Law Courts, George Street, Brisbane, Q. 4000 Telephone: (07) 227 4360. Facsimile: (07) 227 5532 ···-- ··-·.. ····.•·1-· ·~------------------ ·-··-·------··-·-·---- -------- --·---····-·· ........ . -- 1 of 21 -- ~- ) 200795 (Demack J)/ HIS HONOUR: Mr Benson was born on 10 April 1973. on 16 November 1986 he injured his neck when he was hit with a surfboard. His neck became stiff and he was hospitalised overnight. He was fitted with a soft collar when he left hospital. His symptoms ceased after about two months. In January 1990 he commenced work with the defendant, which is the company that operates the business Blakey Engineering. For the rest of the judgment I will refer to that company simply as Blakey Engineering. Mr Benson commenced an apprenticeship as a fitter and turner. On 8 March 1991 he was injured when a fork-lift fell on him. In the 12 months or so prior to March 1991 Blakey Engineering had conducted its business in Nebo Road, Mackay. Over that 12 month period there were five businesses in close proximity which, in the ordinary course of things, had the need to use fork-lifts. In the period it seems that the most useful of the fork-lifts was one that was owned by the Boomerang Hotel and 10 20 (~/ 30 subsequently purchased by Agnews Pumping. That fork-lift was C) fully motorised and could be driven by a licensed driver. Another business, Hardy Spicer, owned a fork-lift which is also described as a pallet stacker. It could only be moved around on the floor of the premises manually. The only motor with which it was fitted was designed to raise the forks. Hence it seems to be more accurately described as a pallet stacker. It was equipped with small wheels and so could be moved around, but had to be pushed. Another firm called Hydramatics, which carried on its business in conjunction with Blakeys Engineering, owned a 2 JUDGMENT 40 50 60 -- 2 of 21 -- 200795 (Demack J} fork-lift which was similar to that owned by Hardy Spicer except that it was equipped with an electric motor that could be operated by someone walking behind the fork-lift. The motor drove wheels which enabled the machine to be moved around by virtue of its own power. There seems to be no doubt that all of the businesses much preferred to use the motorised fork-lift that was owned by the Boomerang Hotel and then subsequently purchased by Agnews Pumping. However, with such heavy demand that was not always available because of the exigencies of the particular day. i ,r \ It seems that the fork-lift owned by Hardy Spicer was oneI \ . which was, for almost all of its time, used only within the Hardy Spicer shed. The reason for this was that at the back of the Hardy Spicer shed and at the back of Blakeys Engineering shed there was a concrete apron. However, this apron was some 40 to 45 millimetres below the level of the floor of the shed. Consequently, at the back door of each shed there was a lip about 40 to 45 millimetres high. Because fo the size of the wheels on the Hardy Spicer fork- lift, and indeed on the Blakeys Engineering fork-lift, this small lip was very difficult to negotiate. Mr Christopher Blakey had bevelled the lip at the back of the Blakey Engineering shed but the lip at the back of the Hardy Spicer shed remained as an obstacle. There was a general practice among the five businesses to borrow equipment. Clearly the motorised fork-lift was popularly borrowed, and other items of equipment seem also to 3 JUDGMENT 10 20 30 40 50 60 -- 3 of 21 -- ·: 200795 (Demack J) have been borrowed by the workmen. There is no written arrangement and no precision as to how these borrowings occurred. It is clear enough however that such borrowing did happen. On 8 March 1991 Mr Benson was working at a lathe in the Blakeys Engineering shed. A utility owned by a client drove to the back door and had on it a pallet with items that were needed for the work he was doing. It had been impressed on him by both Mr John Blakey and Mr Chris Blakey that when customers came to the back door in vehicles those vehicles had to be unloaded promptly. This was not only because it 10 20 c\ was necessary to maintain good relations with customers but ( also because there was a confined area at the back of the shed that was used also by Hardy Spicer and apparently by Agnews Pumping. Thus, it could not be cluttered up by having vehicles parked in it for an undue length of time. The practice at Blakeys Engineering was that vehicles that came 30 there were to be unloaded either by Mr Benson or by Mr Coupe () who was a trades assistant employed by Blakey Engineering. Mr Benson stopped the work he was doing and went to see if he could get the Blakeys Engineering fork-lift to remove the pallet from the back of the utility. He found that Mr Coupe was working with some cylinders which he had prepared for painting. These were on work horses and Mr Coupe was in the process of beginning painting. The fork-lift was placed behind those objects so that it could only be taken to the back door if those objects were moved. There was a conversation, which does not seem to be remembered with great 4 JUDGMENT 40 50 60 -- 4 of 21 -- 200795 (Demack J) precision, between Mr Benson and Mr Coupe in which it became clear to Mr Benson that it would be some time, up to 20 minutes, before Mr Coupe had finished his work so that the passage could be cleared to take the fork-lift out. Because he believed the task was urgent, he said to Mr Coupe that he would borrow the fork-lift from Hardy Spicer. He says that he had previously seen another more senior employee of Blakeys Engineering use the Hardy Spicer fork-lift. This is supported by the manager of Hardy Spicer, Mr Hunt. Mr Hunt says that although he can not recall specific instances when I Blakey Engineering employees used the Hardy Spicer fork-lift, he is very definite in his memory that this did happen. 5 JUDGMENT 10 20 30 40 50 60 -- 5 of 21 -- -~ 200795 (Demack J) / It seemed to me that Mr Hunt was an honest man who, although he had had no opportunity to sit down and try to prepare details of such incidents, he was recalling what actually happened. His evidence is not inconsistent with that of Mr Chris Blakey who was absent from the shed from time to time and simply had no experience of this happening. It is clear enough that it was not a frequent occurrence because the Hardy Spicer fork-lift was the least preferred of the three fork-lifts in active use at that time. Mr Benson says that he went into the Hardy Spicer shed and told one of the employees that he wanted to borrow the.fr fork-lift. This employee, whom he named as Mr Caruana, helped him push the fork-lift to the door. Mr Benson understood that the practice commonly used by the employees at Hardy Spicer was to have the forks raised on the fork-lift to about waist height. They would then quite often push on those forks as a means of getting the machine moving. is what happened on that occasion. This Mr Benson took hold of the handle at the back of the fork-lift and pulled on it towards the door. Mr Caruana pushed on the forks; the machine developed some momentum; Mr Caruana let go; Mr Benson backed out of the doorway. As the machine came over the· lip it teetered and fell on top of him. Mr Kahler has done the exercises that are required to explain how this could happen. It is clear from his exercises that the principal factor that operated causing the machine to 6 JUDGMENT 10 20 C 30 50 60 -------------- -------·--- ----- -·--- --- -- ----- ---- --- -- 6 of 21 -- 200795 (Demack J) tumble over was the velocity that had been developed; the fact that the forks were raised did raise the centre of gravity and, although this was a contributing fact, it was not the principal fact, in Mr Kahler's opinion. I accept his opinion about that. The question that has to be decided in the circumstances is whether the defendant had some duty to the plaintiff in respect of this incident. I accept that the plaintiff had been instructed to ensure that vehicles coming to the rear of the premises would be !( unloaded promptly. It was accepted by Mr Chris Blakey that he would expect that the plaintiff would unload the vehicle without seeking specific instructions from him. I accept that at the time the Blakey Engineering fork-lift was not readily available and could not have~been made available within the time constraints that Mr Benson had come to ~ understand were expected of him. It is clear that Mr John Blakey expected things to be done promptly and this was the way in which Mr Benson went about his work. It seems from other evidence that this was fairly natural to Mr Benson. His mother, in Exhibit 30, describes how, even as a child of four·and five, he used to go with his father, who is an electrician, to act as a kind of offsider. He maintained that kind of enthusiasm in his work. This is well demonstrated by Mr Dennis who employed him for a time earlier this year. 7 JUDGMENT 10 2C 30 40 50 60 -- 7 of 21 -- / 200795 (Demack J) Mr Dennis, at page 125, was asked questions about Mr Benson and he said, "I find him quite a goer", then it said, "A bit of a worker" which, at the time when he said it, had more enthusiasm in it than the actual words record. He then went on to use the usual sort of words that Australians seem to use of one another, "He's not too bad. Pretty good, really. Better than most." That crescendo of praise seemed to me to allow Mr Dennis to get over the frustration he feels with the Workers Compensation Board and the legal system. He obviously wanted to employ Mr Benson if he possibly could, but because of Mr Benson's disability and because of the 10 incident that occurred in May this year, Mr Dennis found (-', himself in serious disagreement with the Workers Compensation Board. He dealt with this at some length in his evidence, but clearly enough, his personal assessment of Mr Benson was of an enthusiastic young man who was keen to get on with his job. There would seem to be no doubt that this was the expectation Mr Blakey had of him and he was keen to live up to that expectation. There was no suggestion that the Agnews' fork-lift was readily available. Indeed that required a licence and Mr Benson had no licence to drive it. Consequently, to perform the· task that was expected of him he used his 17 year old initiative and went and got the fork-lift which clearly was one that needed to be handled with great care in taking it outside of the Hardy Spicer shed. 8 JUDGMENT 30 50 60 -- 8 of 21 -- ( ' (\ ' l 200795 (Demack J) Mr Benson had never been told of the degree of care that was required. Mr Kahler has explained that each of the fork-lifts required a different method of handling because of their different structures and, clearly enough, the way in which Mr Benson used the Hardy Spicer fork-lift was one that should not have been applied. However he was in his second year apprenticeship; he was 17; he was enthusiastic and keen to get on with the task. In those circumstances his employer had a clear duty properly to instruct him in the way in which fork-lifts were to be used. As I have said, it was known that fork-lifts, other than that owned by the defendant, were used by the defendant's employees. Indeed, it appears, that Mr Chris Blakey had on occasions instructed Mr Benson to use the Agnews Pumping or Boomerang Hotel fork-lift, even though he was not licensed to use it. 9 JUDGMENT 10 20 30 40 50 60 -- 9 of 21 -- ': 200795 (Demack J) In the circumstances it seems to me there was a foreseeable risk of serious injury if the Hardy Spicer fork-lift was chosen by Mr Benson and taken by him from the Hardy Spicer shed. It was the duty of the defendant to guard against that risk by indicating how the fork-lift was to be used and by ensuring, with some supervision over a period of time, that 10 those procedures were followed. It seems to me that with a number of small businesses there was a level of co-operation in the use of equipment, which is quite natural and commendable, but it carries with it an obligation on the employer to ensure that when there is- this free exchange of equipment that proper instruction is given to ensure that all of the equipment is used safely. Here that simply did not happen. I am satisfied then that the plaintiff has proved negligence on the part of the defendant. As to contributory negligence, two matters were relied on particularly. These were the ones that were added in the amendment to the defence that was permitted at the beginning of the trial. They were allegations that the plaintiff failed to lower the forks of the fork-lift so as to increase its stability and that he failed to push the fork-lift forks first over the lip at the rear of the shed. The factual situation does not really lend much support to that contention on the part of the defendant. As I have said, Mr Benson indicated to the employees of Hardy Spicer that he wished to borrow the fork-lift. He was assisted in that process by one of the employees of Hardy Spicer who 1 0 JUDGMENT 20 C) 30 40 c,1 50 60 -- 10 of 21 -- . \ ( \ ( 200795 (Demack J) seems to have been, at least by inference, someone older than himself - he himself was only 17 so one may draw that inference - and the way in which that employee, who might be assumed by a 17 year old to be more familiar with the idiosyncrasies of the particular fork-lift, moved it exposed Mr Benson to the danger of which he was unaware. It does not seem to me that he has failed to take reasonable care for his own safety. Rather, in his eagerness to perform the task expected of him by his employer he has exposed himself to the risk of which the employer should have been aware and in respect of which proper instruction should have been given. It does not seem to me that any contributory negligence has been proved. Mr Benson was taken to the Mackay Base Hospital. The fork- lift had fallen on him and forced a forward flexion to the lumbar spine and entrapment of the left lower limb. This description is contained in the Mackay Hospital report, Exhibit 5. On examination at the hospital Mr Benson had pain in the lower back. An X-ray showed a crushed fracture of T12 and L3. The fractures were stable so that he was treated with bed rest, analgesia, muscle relaxants and physiotherapy. He was in hospital only for a couple of weeks and then had bed rest at home. He was reviewed at outpatients on 8 May 1991 at which time he had no tenderness over the fracture site. The situation with his back is described by Dr White in Exhibit 12. The doctor notes as follows, "X-rays dated 8/3/91 taken at the Mackay Base Hospital reveal fractures of 1 1 JUDGMENT 10 2r 30 40 50 60 -- 11 of 21 -- 200795 (Demack J) L3 and T12. The lumbar vertebral fracture involves approximately 30 degrees of anterior wedging and there is a detached anterior superior fragment. Those of the thoracic vertebra show an anterior crush of approximately 25 per cent. X-rays taken on 21/8/91 show that the L3 fracture has united with some irregularity of the superior surface. The anterior fragment has become reattached. Those of the thoracic vertebra taken on the same day show that the crush fracture has healed with apparently intact surfaces at the disc space above and below. Up to date X-rays, 25/5/95, show that the T12 fracture has healed with approximately 25 per cent loss of anterior height. The disc spaces above and below are well preserved. The L3 fracture has undergone some remodelling anteriorly. A 30 per cent loss of height remains, however, and there is narrowing of the L2/3 disc space with anterior inferior osteophytic lipping in evidence at the body of L2. 11 Other doctors have examined Mr Benson and there seems to be ge~eral agreement that because of the actual bony damage and its restriction on his ability to bend there is a 10 per cent loss of function of the whole body. There is also continuing residual pain which will persist which is said to amount to five per cent loss of function of the whole body. Dr White and Dr Doughty have also expressed the view that because of the very serious effect that this back injury has on Mr Benson's ability to work the full assessment of his percentage disability is 25 per cent of the whole body. As Dr Doughty pointed out, this kind of injury may well be something that a person trained in an administrative and sedentary occupation can cope with without anything more than 1 2 JUDGMENT 10 30 C 50 60 -- 12 of 21 -- 200795 (Demack J) some pain. It is a very inhibiting disability for someone trained as a fitter and turner. Mr Benson's work history is that he completed his apprenticeship with the defendant on 2 January 1994. He left that firm on 3 February 1994 having arranged work with Ausminco. He worked with Ausminco for most of 1994. He was involved in a motor vehicle accident in June and hospitalised for a time. That accident seemed to cause him some difficulty in his neck which resolved. It also caused an acute flare up of his thoracic and lumbar spinal problems but after a time these returned to the condition they had been ( ~ before that particular motor vehicle accident. '• However, by November 1994 he found that he was suffering too much pain on a daily basis and left Ausminco to obtain work with Chubb Fire. He remained there until 10 March 1995. The work that he was doing was on a contract .basis and the ( contract terminated. He then worked for Cooper Fluids for about two weeks. He had some disagreement with management and left. He obtained work with D and T Hydraulics in April of 1995. On 8 May 1995 he was working at Dalrymple Bay at an installation there. He carried a tool box weighing about 20 kilograms up some ladders and in some awkward positions and he felt acute pain and stopped work and he has not been at work since. D and T Hydraulics is the company owned by Mr Dennis whom I have mentioned earlier. 1 3 JUDGMENT 10 2(' 30 40 50 60 -- 13 of 21 -- 200795 (Demack J) All of this indicates that, in spite of a serious disability, Mr Benson has been eager to obtain work and up until May this year was successfully obtaining jobs. However, since the incident on 8 May, which is clearly an aggravation of the serious disability that follows upon the incident in 1991, he is unlikely to obtain work as a fitter and turner in Mackay. Mr Benson says, and his mother confirms, that it was always his hope that ha would obtain work in the mining industry. Evidence has come from a number of sources which indicates that people who desire to obtain ~ork_ in the mining in?-ustry follow the practice of seeking work in the companies that do 10 work associated with the mining industry. This was what Mr (; Benson did; Ausminco, Chubb Fire, and Cooper Fluids all have contacts with the mining industry. The idea is to gain some contact with the management at the mine, to demonstrate skills and competence and enthusiasm and then when jobs become available to join the long list of people who apply for them. Mining work is so sought after that apparently, on occasions, there are as many as 200 applicants for one particular job. This certainly is not something which is now open to Mr Benson. It seems that, from all of the medical evidence, and from Mr Benson's own experience, the best work that is available for him now is some kind of sales work that does not involve any lifting of heavy items or persistent bending. This is not work that has much appeal to Mr Benson because his dream had always been .to be a fitter and turner and to equip himself to 14 JUDGMENT 30 50 60 -- 14 of 21 -- ( : ( 200795 (Demack J) be able to obtain work in the mining industry. However, he is still a young man. He has shown great determination so far in seeking work and it would seem more likely than not that with proper guidance he will be able to retrain in a less satisfying job and certainly in one that is much less well paid. The only item in the assessment of his damages which taxed counsel's ability to propose matters was the question of future economic loss. Mr Harrison, who appeared for the defendant, suggested that obtaining work at the mine was only a very distant possibility and that one had to look more at the kind of work that would have been available in the Mackay area. There are many small engineering businesses in Mackay that service the mines and service other industries, particularly the sugar industry. There is, therefore, plenty of work available in workshops here in Mackay and that was a much more certain course for Mr Benson. Such men would earn something of the order of $520 per week net; this is in contrast to the $1,000 a week net and more, that is available at the mines. It seemed to me that Mr Benson was much more determined than that and had his sights set on the mining industry and that there has to be some attempt to assess the possible path that he might have followed. Mr McMeekin has proposed such an approach in his assessment of future economic loss, and of the two I prefer the approach that Mr McMeekin suggests. Broadly, this means that for the next five years, if he had not been injured, Mr Benson would have sought work with 1 5 JUDGMENT 10 2C 30 40 50 60 -- 15 of 21 -- 200795 (Demack J) companies such as Ausminco and D and T Hydraulics and others to develop his contact with the mining industry. He would then, it seems to me, to have been likely to have obtained work for about 20 years or so in the mining industry. It seemed to me then likely that he would have returned to the Mackay district where his home was to return more to the kind of bench work that is apparently readily available here. So that is the pattern that seems to me to have been likely for him and I will assess his future economic loss in accordance with that pattern. So far as his residual capacity is concerned, the evidence is that shop assistants earn an amount 0£ $333 net per week. For the next five years, it seems to me, that is too high a figure for his residual capacity. He has to retrain and he has to find work and win the confidence of employers. So I would assess his residual capacity for the next five years at $300 per week. The income that he would otherwise have earned working in Mackay in engineering firms is conservatively $520 net per week. I therefore assess his loss over the next five years at $220 per week which, over five years, amounts to $51,040. For the next 20 years after that, that is between the ages of 27 and 47, as I have said, I would accept Mr McMeekin's approach. His potential then was $1,000 a week at the mines. It would seem to me that by then he should have established himself in some place where he can work in sales and I would assess his residual capacity in those years at $350 per week. There is, therefore, potentially a weekly loss of $650. Over 1 6 JUDGMENT 10 20 (', 30 ( -- - ~/ 40 G 50 60 -- 16 of 21 -- ( ' ( I \ 200795 (Demack J) that 20 year period this represents a sum of $339,300. Mr McMeekin proposed the reduction of this by 25 per cent to allow for the contingency that Mr Benson would not have obtained work at the mine. This seems to me to be too high in view of the highly competitive nature of obtaining work at the mine. It seems to me a more realistic figure is 60 pe~ cent. So on that basis the loss over that period is $203,580. 1 7 JUDGMENT ,o 2C 30 40 50 60 -- 17 of 21 -- 200795 (Demack J) For the remaining years, from 47 to 60, I have accepted the return to the Mackay area with a potential of $520 per week. It seems to me also to be correct that by that time, the residual capacity Mr Benson has will be significantly reduced. Dr White and the other doctors all say that his condition could well deteriorate by the time he is in his forties to the point where it is twice as serious as it presently is. 10 Over that period then, I would treat his residual capacity at 20 c~) $200 a week. The loss then over the period from 47 ~o 60 would be $320 per week, a sum of $47,360. The total of all these calculations is $301,980. However, it all involves a degree of uncertainty, and it seems to me that to find it in those precise figures is to give an appearance of certainty that does not really exist, so I assess future economic loss at $300,000. The items that are otherwise claimed, apart from general damages for pain and suffering and loss of amenities, are not significantly in dispute. The special damages that the Board has paid appear to be agreed at $1,298.34. There is also a claim by Mr Benson for physiotherapy expenses of $210 and medication $20, a total of $230. I will allow interest in the sum of $60 on that claim. The periodic deductions of income tax paid by the Workers' Compensation Board amount to $1,320.35. There is an agreement that the past loss of income was $8,802.05. 18 JUDGMENT 30 50 60 -- 18 of 21 -- i ( 200795 (Demack J) The letter from the defendant indicates that the defendant paid the difference between the wages and the workers' compensation payment. I am not aware of any claim for interest in respect of that. There are some small items of gratuitous services rendered by Mrs Benson which amount of $250. I shall allow $21 interest on that amount. There is a need to provide for future recurring pharmaceutical and medical expenses. It seems to me that Mr McMeekin's suggestion of $5 per week for the balance of Mr Benson's life is reasonable, which is rhe sum of $5,000. There is a claim made for the chance of obtaining cheap housing during the period that Mr Benson may have worked for a mining company. It seems to me that this is one of the attractions that people find in working for the mines, and consequently something that may reasonably be allowed. That would be in respect of the period from age 27 to age 47, and it seems to me that a figure of $20,000 is reasonable to cover that. So far as loss of superannuation benefits are concerned, I will allow the sum of $10,000. The question of pain, suffering, and loss of amenities, is difficult here, because as I have indicated, Mr Benson's whole life really, up to the time of the accident, had been filled with the hope that he would not only qualify as a fitter and turner, but also obtain work in the mines. 19 JUDGMENT 10 20 30 40 50 60 -- 19 of 21 -- 200795 (Demack J) He can no longer pursue his trade and also has obviously no hope of obtaining the lucrative work that is available in the mining industry. He will need to re-train and adjust his attitude mentally to a different lifestyle. He is a man who has demonstrated his capacity to apply himself, and I have no doubt that he will be able to do this. However, the lifestyle that is ahead of him is one that is very different from the one he chose from early in his life. The pain that he has is constant and it will get worse. There are now signs on the X-rays of arthritic changes, so that his future will be one of considerable discomfort. He has had his lifestyle curtailed, and his only recreational activity at present seems to be fishing. 20. JUDGMENT 10 c~I 30 40 C) 50 60 -- 20 of 21 -- ( f ( ( 200795 (Demack J) He has had the period in hospital with associated pain and discomfort. There was no suggestion that surgery will be needed but there is an absolute guarantee of continuing pain and discomfort. In those circumstances it seems to me that the figure of $65,000 is appropriate for this head of damage. I'll allow interest on $20,000 as the amount referable to the pre-trial period. That amounts to a sum of $1,720. The total award then is $413,701.74. The refund due to the Workers' Compensation Board is $9,817.94. There will be judgment for the plaintiff against the defendant for $403,883.80, the defendant to pay the plaintiff's costs of the action to be taxed on solicitor and client basis. 21 JUDGMENT 10 30 4C 50 60 -- 21 of 21 --