Bailey v Council of the Shire of Sarina [1995] QSC 129

sEq~(,~1 . o3 OS 9S- State Reporting Bur_eau 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 46 of 1991 GREGORY CHARLES BAILEY and THE COUNCIL OF THE SHIRE OF SARINA MACKAY •• DATE 02/05/95 JUDGMENT 1 Plaintiff Defendant -- 1 of 14 -- 020595 Tl-5/RT M/T MKY224/95 (Demack J) HIS HONOUR: Mr Bailey was born on 7 August 1956. He commenced working as a labourer with the defendant in 1982. He alleges that on 25 November 1988 and also on 8 June 1989 he sustained injuries in the course of his employment. He alleges that these injuries were caused by the negligence of the defendant and that he suffered damage as a result of each 10 of those injuries. Turning first to the injury that he says he sustained on 25 November 1988, this incident occurred when he slipped while entering the cabin of a truck that was owned by the defendant. The vehicle in question was a Toyota truck and Mr Bailey had been using that truck and driving it for a number of years. He says that on 25 November 1988 he was working on Beach Road fixing a burst water pipe. He found it necessary to go back to the depot to get more fittings and more pipe. He drove the truck to the shed. He went over and got the fittings from the shed. As he was getting back into the truck he slipped. He says that he was wearing his ordinary boots up until he commenced working on the burst water pipe. He then changed into his gumboots which were supplied by the defendant. He was wearing those gumboots when the incident happened. He says that at the time it had been raining and that there was probably mud on his boots and also on the step. In answers to interrogatories which were tendered as Exhibit 1 the defendant admitted that on 25 November 1988 the day was overcast and wet. This admission was apparently abandoned at the trial, although that is not clear. What was 2 JUDGMENT 20 30 40 50 60 -- 2 of 14 -- d20595 Tl-5/RT M/T MKY224/95 (Demack J) tendered was Exhibit 23 which is a report from the Bureau of Meteorology. It shows rainfall recorded at the recording stations in Mackay and Sarina on days on either side of 25 November as well as on that day itself. It is not clear to me what value there is in Exhibit 23. It is not known how far away from the recording station the incidents occurred, and the amount of rain recorded at the two recording stations over that period of about five days suggests that there were showers about and such showers may or may not fall into the rain gauge at the recording station. Consequently, it seems to me that the admission contained in Exhibit 1 is of far more value in the case than is the report of the Bureau of Meteorology in Exhibit 23. In this case a report has been obtained from an engineer who has prepared a detailed analysis of the forces involved in using the step to climb into the particular Toyota truck. This report is Exhibit 19. That report describes the vehicle in a useful way. The particular step on which Mr Bailey slipped is located in such a way that the front end of the step is situated beneath the front edge of the driver's door jamb. The step is not exactly rectangular. It is some 270 millimetres long at the front and somewhat narrower at the back. Its width is 145 millimetres. The particular step seems to have been a metal one with holes in it and also some tread on it. It is obvious from the measurements of the step that while it will comfortably accommodate the ball of a man's foot and the part of the shoe or boot that is beneath the ball, it is not 3 JUDGMENT 10 20 40 50 60 -- 3 of 14 -- 020595 Tl-5/RT M/T MKY224/95 (Demack J) really designed to accommodate the whole of a boot. It is certainly not designed to accommodate the whole of a gumboot which was said by the engineer to be about 325 millimetres long~ To enter the cabin the driver first of all grips a handgrip with his right hand in front of the door jamb. The right foot is then placed on the access step. The driver places a left hand on the driver's seat and then commences to lift his body and swing into the cabin. The right foot is not directly below the centre of gravity, so that the general movement of swinging into the cabin produces pressures in the right foot that are likely to move it forward. Also, as the driver swings into the cabin the swinging motion causes the right foot to rotate on the step. It was apparently at this point that Mr Bailey's foot slipped and his body swung around so that his lower back struck against the wheel arch on the truck. He immediately felt pain. The presentation of the report by Mr Lewis was criticised as unnecessary because it is said by Mr Mellick that the movement is one which can easily be described by observation from the photographs. However, it seemed to me that the report was particularly helpful, and the photographs seem to me to demonstrate the nature of the problem that confronted Mr Bailey at the time. Photographs are not of maximum use because they depict a person wearing an ordinary shoe, not someone wearing a gumboot. 4 JUDGMENT 10 20 30 40 50 60 -- 4 of 14 -- 020595 Tl-5/RT M/T MKY224/95 (Demack J) The step is the step that Toyota fit to the chassis of the truck at its manufacture. The truck is one that is commonly available. The style of step is similar in design to that used in other light trucks readily available. Consequently, Mr Mellick relied on the decision of the court of Appeal in Jenkin v. Dalrymple Shire Council, Appeal No 261/92, judgment 10 delivered on 23 April 1993. That was a case where a person was injured whilst travelling in a vehicle that was of a standard make with a standard kind of seat. There was no suggestion in that case that any other kind of vehicle was available and it was held that the defendant was not negligent in providing what was a standard kind of vehicle with standard springing and standard seating for the use of the plaintiff. Here it was said that the vehicle with its step is standard; it conforms to the standards of Australian design, and the defendant is therefore not negligent in making it available. Certainly up to a point this is correct, but there is, of course, the obvious difference in this case from the facts in Jenkin v. Dalrymple Shire. Here the problem arises because of the size of boot that Mr Bailey was wearing. The gumboots are supplied by the defendant for the use of Mr Bailey who apparently performs plumbing duties in respect of the council's water supply on a regular basis. However, as he himself said, in the early part of 25 November 1988 he wore his ordinary boots and there was no suggestion that they were other than adequate when he entered or left the cabin of the Toyota truck. However, the gumboot was clearly not an adequate piece of footwear to safely negotiate the step. It 5 JUDGMENT 20 30 40 50 60 -- 5 of 14 -- 020595 Tl-5/RT M/T MKY224/95 (Demack J) is also clear enough that in the ordinary circumstances in which the gumboot was to be worn - namely, in fixing water pipes that have burst or in some other muddy conditions - the boot itself is likely to have mud on it and is likely therefore to have reduced friction between its sole and the step into the vehicle. It seems to me that here there was a foreseeable risk of injury because of the awkward nature of the movements involved in entering the cabin. The downward pressure on the right foot as the body is swung up onto the seat produces a forward movement of the foot and also at the same time a rotating movement. Clearly enough, in those circumstances, there is a foreseeable risk of slipping, and the fact that the right arm at that stage is extended upwards to the grip near the roof means that the body would be exposed to coming back against the truck and injury is likely to result. Here there is no need for any expensive modification. There is simply the obligation on the part of the defendant to require that the gumboots are not worn while entering the vehicle or driving the vehicle. The gumboots are only needed for field work and have no place in driving the vehicle. Because of the obvious risk of injury there was a necessity on the part of the defendant to instruct the plaintiff accordingly. Consequently I am satisfied that negligence in respect of the first incident has been proved. However, contributory negligence is pleaded and it seems to me obvious that contributory negligence has been proved. The 6 JUDGMENT 10 20 30 40 50 60 -- 6 of 14 -- 020595 T1_;5/RT M/T MKY224/95 (Demack J) gumboots in their very nature are awkward things to wear. The risk of slipping was also an obvious one. There was no difficulty in changing the boots and wearing ordinary footwear while driving the vehicle. There is no suggestion of such urgency in the task that that would be been impossible. I am satisfied here that the plaintiff is very significantly to blame for his own injury. I find the defendant 60 per cent to.blame for the first incident. The second incident is alleged to have occurred on 8 June 1989. on this occasion the plaintiff walked backwards into long weeds and grass and fell into an open drain. The open drain was near a pump station, and Mr Bailey said that he had 10 20 been to that pump station plenty of times. 30 He was well aware of the existence of the open drain. On the day in question the drain was concealed by weeds which Mr Bailey and his co-workman, Mr Reed, were required to poison and also in some areas to cut with a whipper-snipper. The method of poisoning 40 involved the use of a hose that was left lying on the back of the truck. The hose, it is said, should have been on a reel so that it could be pulled out without risk of kinking. Because it was simply lying in the back of the truck there was a risk that it would be kinked, and to avoid this Mr Bailey was walking backwards as he pulled the hose off the back of the truck. While walking backwards through the grass and reeds he fell into the drain. The only allegation of negligence that seems to be able to be 7 JUDGMENT 50 60 -- 7 of 14 -- 020595 Tl-5/RT M/T MKY224/95 (Demack J) made in those circumstances is that the defendant should have provided that the hose was on a reel so that Mr Bailey could walk forward. However, Mr Reed, the other man at the scene, says that he, when pulling the hose out, would walk sideways, and indeed, Mr Reed's presence there meant that the taking of the hose off the truck could have been done by the two men so that one watched for the kinks that might develop and the other watched for the drain which was known to be behind the weeds. In the circumstances I am unable to find any negligence on the part of the defendant in respect of this second incident. Mr Bailey was walking backwards towards an open drain which he knew was there but the exact location of which was hidden by the weeds that he had to poison. In those circumstances I am unable to see anything that the defendant could have done to protect Mr Bailey from an obvious dangerous situation of which he was fully aware. So the claim in respect of the second incident is dismissed. Since the second incident Mr Bailey has not worked, except for a very brief period at a service station. He is shown to have a moderate posterior disc herniation at L4/5 impinging on the thecal sack slightly towards the left-hand side. He has been examined by a number of doctors but only one was called in Court to give evidence and the other was examined by phone. Reports from other doctors whose reports are mentioned in the evidence before me were not led. It seems clear that Mr Bailey has a 25 per cent loss of function of the whole body. 8 JUDGMENT 10 20 40 50 60 -- 8 of 14 -- 020595 T1~5/RT M/T MKY224/95 (Demack J) The live issue here is to determine which part of the loss of function is attributable to the first incident. To some extent that depends upon the question whether or not Mr Bailey experienced pain radiating down his left leg after the first incident or only after the second incident. The complaints he made to Dr McClymont, which are set out in the doctor's reports, are to the effect that the radiating pain in the left leg was only noticed after the second incident. I am satisfied that the evidence from Mr Bailey in Court that the pain radiated down his left leg immediately after the first incident ought to be preferred to what he is said to have told Dr McClymont. Mr Bailey did not appear to be particularly bright when he gave his evidence. He was tested by a Mr Fry who describes himself as an educational and vocational consultant. Using tests that were available to Mr Fry, he expressed the opinion in Exhibit 8: "Mr Bailey has a low ability to reason with words and to understand ideas expressed in words. This ability is important in academic courses. It is also important for jobs requiring much written or oral communication and for jobs involving a lot of responsibilities such as supervisory positions." 10 20 40 That expresses what seems to me to come out in Mr Bailey's so evidence. He seemed to me from time to time to have difficulty with questions and to answer quite vaguely. It was most noticeable when he was being cross-examined that he seemed to have great difficulty describing the circumstances in which he was injured. It seems to me that Mr Fry's 9 JUDGMENT 60 -- 9 of 14 -- 020595 Tl-5/RT M/T MKY224/95 (Demack J) description of his having a low ability to reason with words and to understand ideas expressed in words sums up much of the way he appeared in Court. Consequently I do not accept that there is any detriment to his credibility that he did not apparently mention to Dr McClymont that the radiating pain in the left leg appeared after the first incident. In those circumstances, as I accept that the radiating pain did appear after the first incident, I accept the opinion of Dr White that the great bulk of the disability arises from the first incident. Mr Mellick suggested that it might be appropriate to find that 80 per cent of the disability arose from the first incident, and I accept that apportionment. Assessing the quantum then of the plaintiff's injuries, the first thing that needs to be noted is that he was kept under surveillance and a video was produced which shows that he can watch football and that he is otherwise capable of some modest movements such as cooking at a barbecue. It does not seem to me that anything on the video suggested that he had much capacity for employment. The doctors have certainly all agreed that his back disability prevents him from doing heavy work. The only work that he has performed in his adult life has been heavy work. Mr Fry's testing suggests that he has no residual academic skills that will enable him to be re-trained. It seems to me that there is possibly some residual ability to perform odd jobs which might bring him some income-on an irregular and modest level. However, I am 10 JUDGMENT 10 20 40 50 60 -- 10 of 14 -- 020595 Tl~5/RT M/T MKY224/95 (Demack J) satisfied that he is very substantially deprived of his economic capacity. As I am generally assessing things in percentages at the moment in this judgment it seemed to me that it was appropriate to assess his residual capacity as 20 per cent. For his past economic loss I accept the figures that have been calculated by Taits which are based on his earning capacity at the Sarina Shire Council. I accept that he was satisfied with his work there and would probably have remained there on to his retirement age. I accept the basic approach that Mr Mellick took to the question of past economic loss which was to allow the loss in full up to 30 June 1990 and thereafter to allow for the reduced figure which I have taken at 80 per cent. This then means that his past economic loss to 30 June 1990 is $21,912.22, and from then up until the date of trial 80 per cent of the amount in the Taits figures amounts to $83,680.83. The total past economic loss then is $105,593. He has received periodic payments of workers' compensation and has been in receipt of payments from the Department of Social Security. These are not precisely before me, but they amount in all to something of the order of $50,000. So I will allow interest on the sum of $55,000 for the six years and five months since the first incident. I shall allow interest in the sum of $21,250. 11 JUDGMENT 20 50 60 -- 11 of 14 -- 020595 T1-5/RT M/T MKY224/95 (Demack J) For his future economic loss I will allow a period of 20 years to take into account various contingencies. Mr Bailey apparently suffers from some asthma and also has an ulcer. It is not clear to me on the medical evidence whether the ulcer is only the result of the ingestion of excessive numbers of pain killers or whether it was somehow pre-existing. However, it is a medical factor presently existing which does not seem to me can be ignored in looking at the length of his future working life. I do not suggest that an ulcer would stop him working, but it could interfere with his work from time to time. So allowing a period of 20 years with a weekly net income of $396.26 and finding an 80 per cent loss of economic capacity, I assess the future economic loss at $210,000. Special damages were agreed in the sum of $6,173.54. All of that amounts to refunds, so that no interest is payable. In addition Mr Bailey claims that he has spent a great deal of money on medication and that he has also been put to expense travelling to see doctors. This claim is criticised because there is no documentation to support it. However, it seems to me proper to allow an amount for this because it is an obvious expense. For the past I will allow the sum of $2,500 which includes any component of interest, and for the future the sum of $7,500. The doctors say that surgery is advised but Mr Bailey is not interested in surgery. He seems to have settled down to making the most of his life. He certainly can not do things 12 JUDGMENT ' . 10 20 40 50 60 -- 12 of 14 -- 020595 Tl-5/RT M/T MKY224/95 (Demack J) of a sporting kind that he used to do. He now finds enjoyment watching his sons play rugby league. The video showed that he could stand still for quite a long period of time watching them, but he certainly did not display the vigour that parent spectators often show when watching their progeny run around on a football field. His particular interests before the accident were indoor cricket, fishing and darts. He says that he can not keep his stance or balance for darts, and indoor cricket is certainly beyond him. He says he does not go fishing. He says he can not swim, and he has very restless nights. All in all he seems to have settled to the existence of an invalid with a fair amount of constant pain, but with a willingness to tolerate this substantially altered lifestyle. For pain and suffering and loss of amenities I shall allow the sum of $47,000. I shall allow interest on an amount of $12,000, taking into account the permanent partial disability payment by the Workers' Compensation Board. I will allow interest on the pain, suffering and loss of amenities in the amount of $1,550. The total of the assessment then is $401,566.54. I assess 80 per cent of this loss as attributable to the first injury, so that the loss attributable to the first injury is $321,253.23. After the apportionment in respect of which I found the defendant 60 per cent to blame, the judgment figure is $192,751.93. A refund to the Workers' Compensation Board has to be made in the sum of $24,535.80. 13 JUDGMENT 20 ·J ~o 50 60 -- 13 of 14 -- 020595 Tl-5/RT M/T MKY224/95 (Demack J) There will therefore be judgm.ent for the plaintiff against the defendant for $168,216.13. I order that the defendant pay the plaintiff's costs of the action to be taxed on the appropriate District Court scale. HIS HONOUR: There will be no order in respect of the reserved costs. HIS HONOUR: In respect of the matter of costs, I took into account the final figure of the judgment which is clearly within the District Court range. I was also influenced by the fact that it seemed to me the second accident was an extremely bold claim to make and not the kind of claim that should be encouraged. The order will be that the costs be taxed on the appropriate District Court scale. 14 JUDGMENT 10 20 30 40 50 60 -- 14 of 14 --