Elms v Council of the Shire of Atherton [1994] QSC 177

. ~al~~,~5 S C 94ft 7 7 ) • State 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 WILLIAMS J No 113 of 1992 RALPH ELWYN ELMS and COUNCIL OF THE SHIRE OF ATHERTON CAIRNS .. DATE 08/06/94 Plaintiff Defendant ) .. JUDGMENT 1 Ill ...___ .;.... .. - -- -- 1 of 13 -- HIS HONOUR: The plaintiff claims damages for personal injuries allegedly sustained in an incident which occurred during the course of his employment with the defendant on 26 August 1991. Both liability and quantum were in issue at the trial. On the date in question the plaintiff was employed as a tractor driver/labourer and worked out of the Tolga depot. ·He was instructed by his foreman to go with the tip-truck to the Tolga depot and there assist in removing a water tank from the tray of the truck. The only other person present during the procedure of moving the tank was the truck driver. An ingenious procedure had been derived for removing the tank. It involved attaching four legs to the tank and then driving the truck away. It is not an easy procedure to explain in words and one can really only appreciate what was physically involved by considering the photographs and diagrams in the report prepared by the witness Smolakovs. My reasons must be read in the light of those photographs and diagrams. I will not endeavour to describe the full procedure in words. The plaintiff had previously been involved in the procedure on a few occasions and had seen it performed by others on some other occasions. On each of all those occasions.only one worker had lifted and attached each leg. It was admitted that each leg weighed about 60 kilograms. I accept the plaintiff's evidence that he was never given any instructions as to how the procedure should be performed and that there were no mechanical lifting devices available to assist in the 2 10 20 30 40 50 60 -- 2 of 13 -- procedure. No evidence to the contrary was led. The evidence does not establish the height above ground of the metal slot attached to the tank into which the holding bar of the leg had to be inserted, but it is clear from the photographs that such point was well above the shoulder height 10 even of a tall man. On the day in question the truck driver attached the rear driver's side leg and the plaintiff the rear passenger Slde leg. That was accomplished without any problem. After the tray was raised as shown in the diagram prepared by Smolakovs, the driver attended to the driver's side frOnt leg whilst the plaintiff proceeded to attach the front passenger leg. The leg in question was lying on the ground eight to 10 feet from the truck. The plaintiff carried it into position and then lifted it so as to place the bar into its receptacle. The plaintiff said that involved lifting the bottom of the leg by some six to eight inches from the ground. That evidence was not seriously challenged and I accept it. The plaintiff indicated that at that time he was holding the leg with one hand on each side of the uprights and with his hands about in front of his chest. As the leg was off the ground he was then supporting the full weight of the leg. The bar was manoeuvred about two inches into its receptacle and then it became stuck. The plaintiff then began "wiggling" the leg to force it fully into the slot. Whilst it is true, as submitted by counsel for the defendant, that part of the 3 20 30 40 50 60 ______________________________________________________) -- 3 of 13 -- weight would be taken by the two inches of the bar in the slot, nevertheless the plaintiff was wiggling a 60 kilogram leg holding it off the ground and trying to force a rod some feet above his head into a slot. In those circumstances, I find it not surprising.that whilst doing so, he felt sharp pain in his back. 10 The evidence of Smol-akovs also establishes that mech..a";"fc~l devices such as hand trolleys could have been readily and cheaply modified to provide the necessary mechanical assistance to make the procedure of fitting the legs safe. 20 If no such device was available then the weight and nature of the lift required at least two persons to be involved in the procedure. The defendant was negligent in a number of respects. It failed to give proper instructions. It failed to provide mechanical assistance and it failed to derise a safe system of work. Though raised on the pleading the issue of contributory negligence was not a major issue at the trial and on evidence there was no contributory negligence on the part of the plaintiff. The plaintiff was born on 2 April 1957 and was thus aged 34 when the incident occurred and was 37 at trial. I accept his work history as detailed in his oral evidence and in his quantum statement. Prior to the accident he had always been in regular employment and he had often been engaged in jobs requiring heavy work 4 30 40 50 60 -- 4 of 13 -- including lifting. I am also satisfied that he had no significant back problems prior to August 1991. It does appear that probably he had some time off work with the Railways in about November, December 1984 and again in October 1985 with some back complaint, but the evidence does not establish the nature of the problem. Certainly it more strongly suggests it was merely a back strain not involving the spine as such. ··J:t is somewhat surprising the plaintiff· could not recall details of those incidents, but in the end I .. do not consider that the events of 1984/'85 have any relevance for present purposes. In his evidence in chief the plaintiff said that at the material time he felt "a clunking horrible sort of pain in my lower back." He was unable to finish the task of attaching the leg, but remained at work for the rest of the day. He worked during the morning the following day, but pain became so bad he went to see Dr Thurling in Yungaburra. It would seem that initially Dr Thurling prescribed rest and anti-inflammatory medication, but referred him to Dr Beecher when the pain did not improve. The plaintiff has seen Dr Thurling on a number of occasions and he notes in his report of 23 April '93 that "there has been very little, if any, improvement in Mr.Elms back pain since the accident up till the present day." In particular the doctor refers t6 pain and stiffness. There is a conflict between the orthopaedic specialists with Doctors Beecher and Low convinced the plaintiff suffered a 5 10 20 30 40 50 60 ,...-------------------------------------- -- 5 of 13 -- - disc lesion which is still causing genuine pain and disability whilst Dr Thomas expresses the view that there is no pathology causing the plaintiff's complaints. Dr Thomas concludes that the principal factor is of a "socio-psychological nature." Doctor Beecher has had the advantage of seeing the plaintiff on a number of occasions over the years. The last being on '· ... . - ~-- 11 October 1993. Dr- Low saw··the plaintiff early in 1993. Dr Thomas examined the plaintiff on 18 October '91 and 11 September '92 and has not seen him since. In the circumstances Dr Beecher has had the opportunity of assessing the plaintiff over a period of time and to a great extent I accept his evidence, and that of Dr Low, in preference to that of Dr Thomas. It should be recorded that the plaintiff, who is a tall man, has a congenital anomaly in his spine in that he has a sixth lumbar vertebrae. It seems that some of the doctors and radiographers may have numbered the discs differently and that must be kept in mind when evaluating the evidence. While such anomaly may have "some slight tendency to increase liability to back trouble" no doctor in the case considered that the anomaly was relevant to the plaintiff's present condition. What is in my view of critical importance is that.a CT scan performed by Cairns Diagnostic Imaging on 1 October '91 showed at "LS-6 there is a central disc prolapse which appears slightly greater to the right of the midline. This is lik~ly to be causing a mild degree of compression upon the right antero-lateral aspect of the thecal sac and upon the right S1 6 10 20 30 40 50 60 -- 6 of 13 -- nerve root." Defence counsel made much of the fact that the prolapse did not show up on an MRI scan dated 11 May '92, but I do not find that to be of real significance. As Dr Beecher said, "Disc protrusions are often unstable and may return whence they came within the disc and then come out again at a later stage." ·,;·.;;:;"it::._ ... ·-==- In all the circumsta-nces I find that the disc prolapse displayed in the CT scan of 1/10/91 some five weeks after the incident was caused on 26 August '91 when the plaintiff-was handling the leg as described above. On or about 11 October '91 Dr Beecher recommended to the Workers' Compensation Board that a laminectomy be performed to fuse LS-6, but undoubtedly because of the opinion expressed by Dr Thomas the Board declined to pay for that procedure. As the plaintiff could not himself afford to pay for the operation he has still not had it though it is strongly recommended by Doctors Beecher and Low. I am satisfied that the plaintiff would have had the operation some time ago if he could have afforded it and I am also satisfied he will have it in the near future in accordance with Dr Low's advice. It should also be noted that Dr Beecher considered that because of the delay in having the operation the. chances of the plaintiff making such· a recovery as to be able to make a successful return to the work force have been lessened. The plaintiff is not responsible for that. Certainly a technically successful operation will result irr significant pain relief. $8,500 should be allowed for the costs 7 10 20 30 40 50 60 -- 7 of 13 -- associated with that operation. There is no doubt that the plaintiff has experienced reasonably severe back pain now for nearly three years. I am satisfied that he has been totally unemployable from the date of the accident to the date of trial. He had been in regular 10 employment all his working life and I have no doubt he would ·,··~;.: __ ----~ have been fully employed during that period but for the accident and notwithstanding he probably would have been made redundant by the defendant. In the circumstances I allow $48,295.18 for past economic loss. Given the periodic 20 payments made by the Workers' Compensation Board up to March 1993, I allow interest on the sum of $20,000 for a period of two years at 4 per cent per annum. That comes to $1,600. Whilst I am satisfied that the plaintiff suffered a disc 30 prolapse which is the main cause of his pain, I am also satisfied that there is a functional overlay present. That may be due to the fact that he has a low pain threshold, or it may be due to a combination of other factors. But the 40 important fact is that it is a direct consequence of the injuries sustained in August 1991. Doctor Rigano could find no purely psychological factors contributing to the plaintiff's present condition. It would appear, as Dr Rigano has stated, that the plaintiff has developed a chronic pain 50 disorder as a consequence of his initial injury in August 1991. In Dr Beecher's opinion the plaintiff appears to have aged 10 to 15 years over the two and a half year period he has been 60 8 -- 8 of 13 -- treating him. Certainly in the witness box he appeared older than his chronological age. He now uses a walking stick. He is depressed because of his overall situation and I accept the evidence in that regard from Walkley. The degree of functional overlay present does, in my opinion, result in the pl~intiff overstating or exaggerating some of his symptoms and giving inappropriate responses to s'o~e- "-- clinical tests. But nevertheless he has suffered a major injury to his back which has occasioned serious disability. His condition is likely to improve after spinal surgery which will reduce pain, but on the other hand will limit back mobility to some extent. The plaintiff will have some pain and disability for the rest of his life. I assess damages for pain and suffering and loss of amenities in the sum of $47,500. I allow interest on part of that award, namely, $22,50~ for 2.75 years at 2 per cent per annum and I allow $1,237.50 for interest. Future economic loss is difficult to assess. Much will depend on how well the plaintiff recovers from the operation previously referred to. It should relieve the pain to a significant extent and hopefully would enable the plaintiff to work provided no heavy exertion was involved. But it is difficult for a country man who has only worked in heavy labouring areas to find such work. 9 10 20 30 40 50 60 -- 9 of 13 -- . . ' -------- I have come to the conclusion that it cannot be said that the plaintiff has no earning capacity so far as the future is concerned. But for the accident his present earning capacity would be in the range $350 to $400 per week. Against that background his loss of future economic capacity should be assessed in the range $175 to $200 per week. Doctor Beecher conceded that with his preaccident back the plaintiff may not have continued doing heavy physical work until age 65. In those circumstances future economic loss should be calculated over a period of approximately 20 years. In the light of those factors, I allow $140,000 for future economic loss. The following items of special damages were not disputed:- Medical expenses Miscellaneous expenses Rehabilitation expenses Commonwealth Rehabilitation Service Income Tax paid by Workers' Compensation Board TOTAL $2,736.59 $2,942.15 $ 883.09 $1,290.00 $1,723.35 $9, 575.18 --------- --------- The plaintiff also claimed $2,860 for pharmaceutical expenses to date of trial, being 143 weeks at $20 per week. Such a 10 20 30 40 claim was not fully established by the evidence. In my view so the evidence would justify no more than $10 per week and I allow that sum. That means an additional item of pharmaceutical expenses totalling $1,430 must be added to the list of special damages. 10 60 . __ / -- 10 of 13 -- The total for special damages, therefore, becomes $11,005.18. No interest was claimed on that figure. The plaintiff claimed future pharmaceutical expenses at the rate of $20 per week for the rest of his life, a total of $17,940. For the reasons given above that cannot be allowed. I assess the cost OL future pharmaceuticals on the b~~l~-that the operation will substantially reduce pain. The loss would be of the order of $5 per week for 25 years. I allow $3,770. Finally the plaintiff claimed for past and future care and services provided by his wife on the Griffiths v. Kerkemeyer principle. It was agreed that anything allowed under this head should be at the rate of $9.50 per hour, inclusive of interest. The past claim was made on the basis of two hours per day at 143 weeks to trial, and I accept that in the past the wife has had to assist the plaintiff with bathing and dressing, with driving to keep doctors appointments and massaging his back. She also has had to do the lawn mowing and gardening. I will allow a total on average of six hours a week to date of trial, that is $8,151. After the operation the plaintiff will have to be provided with substantial care for some months, but thereafter he should be able to do much more for himself. But there will (1 I 1 ~ 10 20 30 40 50 probably always be some things which he could not do and would necessitate the wife performing those tasks. Doing the b~st I can on the evidence, I allow $20,000 for future care. 60 11 -- 11 of 13 -- \' ,.. The award can thereby be summarised as follows:- (i) (ii) (iii) (iv) (v) (vi) (vii) (viii) (ix) (x) Pain and suffering and loss of amenities Interest on past pain and suffering Past economic loss Interest on past economic loss Cost of future surgery Special damages Future economic loss Cost of future pharmaceuticals past Griffiths v. Kerkemeyer Future Griffiths v. Kerkemeyer TOTAL $ 47,500.00 $ 1,237.50 $ 48,295.18 $ 1,600.00 $ 8,500.00 $ 11,005.18 $140,000.00 $ 3,770.00 $ 8,151.00 $ 2 01 0 Of'~: 0-0,_- $290,058.86 =========== From that has to be deducted the amount of $37,070.36 refundable to the Workers' Compensation Board. There will therefore be judgment for the plaintiff for $252,988.50. Finally I have to deal with one question relating to costs. Counsel for the defendant submitted that the plaintiff should . 1 10 20 30 not recover any costs relating to the report and oral evidence of Smolakovs. He relied in part on the reasoning in Taylor v. Harvey (1986) 2 Queensland Reports 137 at 143-145. In my opinion that case is distinguishable. Here there was a complete denial of liability where the lifting procedure involved was quite unusual. No concessions were made at all by the defendant. In those circumstances expert evidence as to the availability of mechanical aids in the circumstances was necessary. This was not a matter a Judge could determine without there being evidence to that effect. Further, it was necessary to have diagrams showing what was involved in attaching the legs so that the nature of the forces being applied to the plaintiff's back could be 12 40 50 60 -- 12 of 13 -- evaluated. To that extent the evidence of Smolakovs was necessary. That is not to say that all costs associated with his report in oral evidence should be allowed. That is a matter for the Taxing Officer to determine. All that I can say is that it was reasonably necessary to obtain the report '''• and call the evidence in so far as it touched upon the matters 10 I have referred to. . . --- ·--- .. ~ ... There will be judgment for the plaintiff for $252,988.50 with costs to be taxed. 20 30 40 50 60 13 -- 13 of 13 --