Aiello v Holts Corrosion Control Pty Ltd [1995] QSC 135

State sc_ i~/135 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.) . t_:. _r:-:-- SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION DEMACK J No 53 of 1992 GIUSEPPE AIELLO i:illU HOLT'S CORROSION CONTROL PTY LTD ROCKHAMPTON .. DATE 24/05/95 JUDGMENT Plaintiff Defendant 4th Floor, The Law Courts, George Street, Brisbane. Q. 4000 Telephone: (07) 227 4360. Facsimile: (07) 227 5532 -- 1 of 15 -- I 240595, (Demack J) HIS HONOUR: Giuseppe Aiello was born on 22 October 1931 in Sorrento. He was injured in the course of his employmeri1:with the defendant on 18 December 1989. At that time he was employed as a sand blaster. He had followed that occupation for a number of years and was experienced in the trade. On 18 December-1989 he was working on the roof of the Carbon -tAnode Storage Building at the Boyne Smelter. The task that had been given to him that day was whip blasting the roof walkway and ventilators. In the course of that work hefell from the roof and was seriously injured. The defendant has accepted liability, but contested the issue of contributory negligence. A significant number of allegations of contributory negligence were made, but after all of the evidence had been led Mr Britton did not press a number of the matters that had been pleaded. Consequently, it is not necessary £or me to refer t:.o many of t:.hc matters contained in the amended defence. The ones that remain are B, D, F and N. To deal with the matters r~ised in the pleading of contributory negligence it is Decessary to note a number of matters. First of all, Mr Aiello was wearing a protective helmet, and this considerably restricted his visibility. Because sand blasting is a noisy occupation he was wearin~ ear. plugs. This ob~ously seriously restricted any communication to him. The roof on which he was working had rows of roofing screws in it. The heads of these screws protruded above the level of the metal and the blasting hose would catch in those JUDGMENT 2 10 20 30 40 50 60 -- 2 of 15 -- 240595 (Demack J) screws from time to time. --- Mr Aiello has no memory of the events leading up to his fall. Evidence came, essentially, from the defendant's witnesses Mr Marsh and Mr Rose. I accept both of these witnesses as men who wer~ endeavouring to give reliable accounts of what happened. -Mr Marsh says that on the morning of 18 December he ~-t9ok Mr- Aiello around the roof, pointing out the things that had to be blasted. He chose Mr Aiello because he was capable of doing that particular type of work. He said that there were two crews working on the building that day, one of them was .sand blasting the staircase that went up the side of the building to reach the roof walkway that Mr Aiello was to sand blast. He says that he instructed Mr Aiello to start on the eastern edge and work his way towards the centre and then work backwards towards the edge. He says that Mr Aiell9 was aware that the second gang of sand blasters was working up the staircct.se a11d that he had to watch out for them as they come up the st~ircase, that he did not shoot their way. Mr Rose was the man working with Mr Aiello, and he was acting as cockatoo also positioned on the roof. His responsibilities included watching over the blasting hose and the air hose, so that they did not get caught, and communicating any signals for Mr Aiello from the person in charge of the hopper. Mr Rose described what he saw and he said at page 167:, "Just before he fell I saw him pulling the hose to give himself some slack on the hose, so he could carry on working. He was walking - pulling the hose, walking backwards towards the edge of the building-." JUDGMENT 3 10 20 30 40 50 60 -- 3 of 15 -- 2405,95 (Demack J) Mr Rose said that when Mr Aiello got about two metresfrom the edge he was concerned and started running towards him shouting. However Mr Aiello was apparently sand blasting at that time and went backwards off the edge of the roof. The 10 allegation th~t walking backwards towards the edge of the roof constituted contributory negligence was added rather late in ~--1he proceedings, but nonetheless it seems to me to be the relevant one here. - Mr McMeekin, who appears for Mr Aiello, has submitted very strongly that there is no basis for finding that Mr Aiello deliberately walked off the roof and that, rather, it appears as a matter where he has been inadvertent. There is certainly no doubt that in many occasions in the workplace inadvertence brought about by the repetitious nature of work has been held not to constitute a want of care by a worker for that worker's safety. However, describing somelhing as inadverte11t .i.s really trying to plead the issue in the light of those authorities rather than saying anything clearly about what was actually happening. Here it is clear enough that .Mr Aiello had been taken over the roof by Mr Marsh before he began work. The roof was· some 30 to 40 feet above the concrete surrounds of the building, and consequently its unprotected edge represented a fixed hazard of considerable seriousness. There were no barriers and no warning signs and this, no doubt, is why the defendant has recognised its liability for JUDGMENT 4 20 30 40 50 60 -- 4 of 15 -- 240595 (Demack J) the ~laintiff's damages. However, the edge of the roof constituted such a sharp delineation of a grave risk tnat any worker on the roof taking reasonable care for his own safety would remain conscious of that roof edge. It appe~rs fro~ the material that was contained in the engineer's~report that prior to falling Mr Aiello was blasting t _-somewhere around a ventilator which was 5. 5 metres from the roof edge. Having walked over the roof he would be conscious then of his proximity to the edge of the roof as he pulled the 10 hoses back. It seems to me that ~t has to be said that to ~ walk backwards in such proximity to the edge of the roof does show a want of care for one's own safety. Consequently, I am satisfied that on the facts here the defendant has shown that the plaintiff was guilty of contributory negligence. However, his contribution to his own damages is relatively slight. 'l'he defendanl !?UL him at grave risk b:l requiring him to 1,10,k on the roof without any barricades around its edge and without any clear indicators as to how far he was from the edge. is particularly the case because of the limitations on Mr Aiello's visibility and his limited capacity to receive This instructions in the course of work because of noise and ear plugs. So, I apportion liability 15 per cent against Mr Aiello.and 85 per cent against the defendant. Mr Aiello was seriously injured, and the injuries led to a very protracted period of treatment in which Mr Aiello ff) /uffered virtually every kind of misadventure that can occur ~ whilst in hospital. The number of medical reports that were JUDGMENT 5 30 40 50 60 -- 5 of 15 -- 240595 at/ss (Demack J) tendered is very large, and the catalogue of·problems is.very long. I do not think it does any disservice to the pltr'tntiff if I simply take pages five and six of his statement as a summary of the medical treatment that he has had. He was ~dmitt~d to the Gladstone Hospital on the day of the 10 accident. -~he injuries he had were fractures to the right :. _,tj:bia. and fibula, fractures to bones in his right foot, fracture to the pelvis on the right side, a large laceration to the forehead and a fracture in the left foot. On 19 December 1989 in the Gladstone Hospital he developed respiratory failure and required intermittent pressure ventilation. He also showed signs of insufficiency and jaundice. On 9 January 1990 he underwent a tracheotomy. The next day he was transferred to the Intensi_ve Care Unit of the Rockhampton Hospital for a CT scan and further medical investigalion and management. His renal function and he?atic function deteriorated. He suffered acute pulmonary failure, septicemia, acute acalculus, post traumatic cholecystitis. also developed pressure necrosis underlying the sacrum. On 15 January 1990 a cholecysteystectomy was performed. On 20 January 1990 renal dialysis was performed and repeated on 24 January. The next day a gastroscopy was performed and repeated 12 days later. He was transferred to the Plastic Surgical Department of the Princess Alexandra Hospital on He 28 February 1990. I should say that my reading of the medical reports leaves me uncertain about the orthopaedic treatment he ~received there, but it seems that on 24 April 1990 he JUDGMENT 6 20 30 40 50 -- 6 of 15 -- ---., 240595 _ (Demack J) Jr underwent open reduction and internal fixation and bone grafting of the tibial fracture which had failed to un:t1:e. Up until that time it seems that his medical condition had been too serious to even contemplate that kind of basic orthopaedic surgery. On 27 Apr~~ he underwent a surgical procedure to achieve skin {. _e_losure of that wound. He was discharged from the Princess Alexandra Hospital on 15 May 1990. He has had subsequent hospitalisation on two occasions in St John's Hospital~ Rockhampton, the first was for surgery on his nose, and he was in hospital for four days, and the second was when surgery on his left ankle was performed when he was in hospital for about three days. He has also been hospitalised in St Andrews Hospital, Rockhampton, for the removal of a pin in the right leg and in the Wesley Hospital, Brisbane, for treatment of scar revision on his forehead. He also subsequently realised he was impotent and was hospitalised in the Princess Alexandra Hospital in 1993 for the implantation of a penile prosthesis. Infection develop~d following that surgery, and he was in the Gladstone Base Hospital for ten days for treatment for infection. He has undergone extensive physiotherapy. He has also undergone extensive chiropractic treatment. He is left with severe orthopaedic disabilities. Dr Blue examined him for the Workers' Compensation Board and assessed a 35 per cent loss of function of the left lower limb, a 45 per cent loss of JUDGMENT 7 10 20 30 40 50 60 -- 7 of 15 -- 240595 (Demack J) function of the right lower limb, and a 10 per cent loss of body function due to the fracture of the pelvis. Dr MacFarlane's more recent estimates are in different percentages because the doctor has worked on whole body loss, but he ~nds up with the figure of 40 per cent loss of whole body funct~on. In that assessment he adds some 10 per cent ~-loss of body function because of injury to the lumbar spine. This is probably an aggravation of a deterioration that had pre-existed the fall. It is clear from these orthopaedic assessments alone that Mr Aiello,· who is now aged 63, has no capacity to work and, indeed, has had none since he fell on 18 December 1989. The matters that were in contest in the medical evidence were, first of all, the impact of Mr Aiello's diabetes. This was raised initially in respect of contributory negligence, but could nul ue sus ta.i.ned. !Iov;eve:r, it remains an issue because of its impact on his life expectation. Two physicians, Dr Myers and Dr Lowrey, gave evidence about this matter and seemed to be in general agreement that at Mr Aiello's age his diabetes will reduce his life expectancy by about five to ten years. The doctors were not in ·agreement about the extent to which he has a serious heart condition. Dr Myers seemed to take the view that there was a serious problem, but Dr Lowrey did not take that view. ~owever, independently of the diabetes and possible heart condition Mr Aiello had had surgery for a carpal tunnel JUDGMENT 8 10 20 30 40 50 60 -- 8 of 15 -- 240595 (Demack J) syndrome prior to the accident. This had kept him away from work for some time. There was debate as to whether th.fswas a response to the kind of work he was doing, sand blasting, or whether there was some other explanation for it. In addition, Dr MacFarlane found him to have some degeneration in his back. All of ~hese things together have to be considered in determining-what his expected working life was at the time of {, _the accident. u Dr Lowrey thought that taking his diabetes and possibl; heart condition into account he should be able to work to 65. This kind of approach was also enthusiastically embraced by Mr Aiello's GP Dr McGree. However, it seems to me that the orthopaedic matters also impinge on this, and taking all these matters into account I am satisfied that Mr Aiello would have been able to keep working up to about the present, but that it was unlikely that he would keep working right up to 65. He i1ad ::;ucli ct cluster of problems thu t it seems to me there should be some limitation on the period for which he could reasonably be expected to keep working. As I have mention~d, he was also found to be impotent quite some time after the accident. Prior to the accident Mr Aiello had had a relationship with a woman who had left Glad·stone. It had been a relationship that continued over a period of time. It included a sexual component which satisfied both of them. However, after the accident for some time Mr Aiello obviously had no interest in sexual matters. The woman returned to Gladstone after he had been out of hospital for a -time. When they tried to resume a sexual relationship he JUDGMENT 9 10 20 30 40 50 60 -- 9 of 15 -- 240595 (Demack J) found he was impotent. ---- He was treated by Dr Cartmill and the prosthesis was inserted. However, Dr Cartmill did not do the exhaustive testing to establish whether or not the impotence was caused by diabetes or by t0e injuries to the cauda equina, which Mr Aiello suffered in. his fall. Evidence of damage to the cauda equina _,i:5-_not precise, but there does seem to be no doubt that such an injury occurred. Dr Hough notes in one of his reports that there were problems with the sphincter muscle, so that'"7:1\e general area served by the nerves· at the end of the spine were certainly affected by the fall. On the other hand, diabetes may cause impotence. The medical opinion is that in that case the onset is slow over a period of time. Here, Mr Aiello's awareness of his impotence was quite abrupt, but there had been a long period between the last time he had had sexual relations with the woman and when he tried to resume it. Consequently, there is debate at the Bar table as to whether the plaintiff has shown that his impotence is a consequence of the accident. It seems to me on the state of the evidence what can be said is that prior to the accident Mr Aiello suffered from diabetes which could, in itself, produce impotence. Following the accident in which he sustained trauma to the part of the spine which provides the nerves that serve the genitalia, he has definitely developed impotence. Whether there is a direct medical link or not, there is certainly a temporal link that has occurred in someone who had some predisposition to the development of y;ence. JUDGMENT 1 0 10 20 30 40 50 60 -- 10 of 15 -- 240595 (Demack J) ---- Consequently, for the purposes of proof in this case, I am satisfied that there is the necessary connection between the fall and the onset of.impotence. The significance of this, of course, lies in the award of damages for pain, suffering and loss of.amenities, and in respect of some of the special damages wM.ch relate to Dr Cartmill' s treatment. Turning then to the assessment of damages, the evidence about economic loss was not as precise as it sometimes is. There was a suggestion that there were reductions in the defendant's workforce, and the suggestion was that Mr Aiello may have lost his employment, also in the years prior to the accident his income had been somewhat up and down and he had had the period off work when he had surgery for the carpal tunnel syndrome. Doing the best I can with the figures that Mr McMeekin has put before me in his submissions, I will allow past economic loss in the arnour1l:. of $100,000. I do not intend to allow anything for future economic loss because it seems to me, for the reasons I have said, Mr Aiello's economic capacity would have come to an end about this time. So far as interest is concerned, there has been periodic payments from the Workers' Compensation Board in the amount of $33,635 and payments from the Department of Social Security for $21,310. I will allow interest on the amount of $45,000 over five (j)___;14,580. years and five months, an amount which I assess at JUDGMENT 11 10 20 30 40 50 60 -- 11 of 15 -- -·. 240595 . " .. (Demack J) The nature of Mr Aiello's injuries and the grave medica:T conditions that he developed were such that he needed considerable assistance at home after he came out of hospital. Indeed, his daughter-in-law attended at the Princess Alexandra Hospit~+ to learn something of what was expected of her once he came home. She gave up her job so that she could provide a i_cpnst~nt presence for a long time after he came home. However, she also continued to care for her own husband and children. This makes it extremely difficult to assess what should be allowed for that very substantial claim that is made for services gratuitously rendered. In all, the claim which is itemised in Exhibit 59 amounts to $57,000. However, the bulk of that relates to the activities of Sophia Aiello, the plaintiff's daughter-in-law. These are claimed to have extended over a period of virtually 12 months and Lhere is certciinly no doubt that that was so, and that the work she did was quite extensive and intense. There was also work done by Mr Aiello's son Anthony and this involved a great deal of work around the house of painting and other things that Mr Aiello cou_ld not do. As I said, the difficult part is to assess what should be ~lowed for Sophia Aiello. The claim there is for $100 a day over the period of almost 12 months. It seems to me that all that can be done is to recognise there has been a substantial need caused by the injuries which, certainly, in their consequences are quite out of the ordinary. I shall allow the sum of $50,000 for services gratuitously rendered in the past JUDGMENT 1 2 10 20 30 40 50 60 -- 12 of 15 -- -c-,, 24059 5 (Demack J) and I shall allow the amount of $5,800 interest on that amount. There is no doubt that Mr Aiello will continue to need help in the future, and it seems to me that Mr McMeekin's approach on this is,quite reasonable, and I will allow $20,000 for future gratuitous-services. There is no doubt that the house that Mr Aiello lived in at the time of his accident is not really suitable in every respect for his· present conditions. Mr Deshon, the architect who specialises in this kind of modification suggests that it would cost some $37,000 to carry out the suitable modifications. Mr Aiello really would prefer to shift to another site. The house he lives in is on a corner block with a significant slope in the natural level of the ground that has been built up to accommodate the house. This means that there is difficulty for Mr Aiello moving around. It seems to me that w~erever he lives he will need to spend money on the house that he would not have otherwise spent, and that this money will not be reflected fully in the value that is added to the house. In view of the uncertainty, I do not propose to allow the full amount that Mr Deshon suggests, but will allow the sum of $18,500. So far as special damages are concerned, these were agreed finally at $38,306.49, which amount includes the expenses in respect of the prosthesis. Interest is payable in respect of $18,484.89, and I will allow interest in the amount of $6,000. -·has suggested costs of future medication at JUDGMENT 1 3 10 20 30 40 50 60 -- 13 of 15 -- (Demack J) $5,000, which I shall allow. Mrs Coles suggested that wheel chairs would be helpful, but Mr Aiello does not seem "l:o"show much interest in that, so there is no claim in that respect. The assessment of pain, suffering and loss of amenities of life i~ very difficult in this case because the period of hospitalisation was extremely protracted and obviously life ,:.. _;_,,.-!=,11reatening for a long time. I did not mention in the long recitation that even after his discharge from hospital Mr Aiello had an indwelling catheter, so that for some of the time that Sophia was looking after him the removal of urine bottles was part of her task. This simply indicates the length of the complex recovery. However, on the other hand Mr Aiello is now aged 63 and suffers from diabetes and has had other problems of a physical nature, as well. Photos were tendered to show him as a cheerful man in his late 50's prior to his injury and 1 of course, his appearance now is of an elderly frail man. Mrs Fowler, who was the lady with whom he had the relationship over a number of years also spoke of him as someone who was full ,of life and vitality and she found him, after the accident, to be merely a sheLl of his former self. One matter, too, which is significant for Mr Aiello is that having come from Sorrento he very much enjoyed singing prior to his injury. The tracheotomy and the long period of ventilation under which he went has robbed him of his voice, and he can no longer enjoy singing. In every respect his life has been dramatically changed by his injuries. He used to JUDGMENT 1 4 10 20 30 40 50 60 -- 14 of 15 -- 240595 · (Demack J) enjoy some social sports, such as bocce, but of course nothing like that is now open to him. For all these matterS"""t'- shall allow the sum of $75,000. The bulk of this award relates to the past because of the multiple operations and attendances at hospital and the grave complications that arose during treatmeryt. So~ I will allow interest on the sum of $55,000. He has recei v_ed .a lump sum payment from the Workers' ~~~__compensation Board of $31,249, so I will allow interest on $24,000, which I assess at $2,592. The total of the-=-- assessment then is $335,778.49. After the apportionment that produces a judgment of $285,411.71. The refund to the Workers' Compensation Board is $83,714.61. Judgment will be entered for the plaintiff against the defendant for $201,697.10 together with costs to be taxed. JUDGMENT 1 5 10 30 40 50 60 -- 15 of 15 --