Bradly v Jenner Engineering [1993] QSC 404

.TRANSCRIPT OF PROCEEDINGS·. (Copyright in this tran~crlpt is vested in the Crown•.Copies thereof must hot be made. or. sold ' without the written authoritY of the Director, State Reporting Bureau.) . . . : .. ~ . SUPREME c·OURT OF. QUEENSLAND CIVIL JURISDICTION ~··· DEMACK J. _- ... · ·.·.• .. :· No 12 of 1990 . ' ·. . .... DONALD WILLIAM BRADLY ·and · > JENNER ENGINEERING. ( MACKAY .. DATE 17/1.1/1993 · JUDGMENT Defendant 1 -- 1 of 14 -- .. . I t .. . . ,. ... l 'I '·. .. -- 2 of 14 -- ,. 171193 M/T MKY431/93 (Demack J) HIS HONOUR: Mr Bradly was born on 5 November 1945. He completed his apprenticeship as a fitter and turner in 1966. He then spent some time in New Zealand and came first to Mackay in about 1967. He was absent from Mackay for a time, working in Mt Isa and elsewhere, but returned approximately 20 years ago. He commenced to work for Jenner Engineering in February 1986. On 1 May 1987 he hurt his back in a lifting incident. He was picking up a V block to use as packing on a milling machine. The fact that this incident occurred is supported by a Mr Burton, who was then also employed by the defendant. Mr Bradly had made the V block in the course of his employment. He had lifted it many times. There is some dispute in the evidence as to its exact weight, but it seems to have been about 20 kilograms. Mr Burton and Mr Bradly say that the floor in the workshop was untidy. That there were often jobs and components of jobs on the floor. Mr Bradly says that to pick up the V block he reached across and when he had raised the block about 6 inches from the ground he felt pain in his lower back. There was no evidence from t~e defendant to contest the evidence of Mr Bradley and Mr Burton about the general untidiness of the workshop. The plaintiff called Mr Ken King, a forensic engineer, to give evidence about the factors that are involved in such a lift as this and I generally accept Mr King's evidence which was not significantly challenged. I am satisfied here that 2 JUDGMENT 10 20 30 40 50 60 -- 3 of 14 -- 171193 M/T MKY431/93 (Demack J). · · ~the.signlJicant 'factor~. in· the. lift were,. the· we·ight of the . ... •. ... - .. .. . 'blo~k 'and 'the cii~tance' that it; was from. the centre point , . - ·.. .. - . between the ankles at the time when the lift began·.: There is also the.possibility.here, which is not cle~rly established,"that ~her~ was. some twisting movement in - • t • - reaching ~cr~ss_ to pick up the_ block. Mr Bradly attempted to demonstrate to Mr King how he had made the lift and, if that d~monstratio~was accur?te, then the block was about 40 centimetres from the centre point between his ankles. On the basis that this was.so and on the basis that the block was a l,i.ttle.under 20 kilograms in_weight, Mr King says that there was a foreseeable risk of injury, although the risk was not a very high one. It was, nonetheless, a real and ~ignificant risk. It is clear that Mr Bradly was given no instruction by the defendant firm in respect of the technique of lifting. The general line. taken by Mr Stenson who appeared for the defendant, was that here was a man with 25 years experience as .P. fitter ~nd turner and he _really did not need any instruction ... This suggestion was put to Mr King, at page 58, and I will read two ques~ions and h1s answers; ~·- "Yes,_ he'd had 25_years experience as a fitter and 10 20 30 40 .. ·turner, apparently he'd seen films about lifting and the so like in all his training over the years. One would expect with that degree of t'rafning the man would know how to pick up an object like that?-- It is not necessarily the case, on my experience, that certainly 25 years experience of lifting, it may be 25 years experience of lifting in the wrong manner or lifting with lit_tle margin for safety. __, Xes?-- When you lift there is not going to be an injury on every occasion that you exce-ed these things and the 60 3 JUDGMENT -- 4 of 14 -- 171193 M/T MKY431/93 (Demack J) • •. • r ' l,tteratur_e mak~s that clear ... Wha~ _we are talki~g about is a relatively significant increase in•risk so~at you ~ay w~ll ~ift :.100 t~es in this.~mann.er ~nd the +01~t may catch you out, or it may well be the first,·we can't p~ediqt that" • _ . _ . _ . _: _ . . . It is not good enough- simply· to.. say, ."Do~'t · iift anyth'i~g too heavY·". · It is not good enough to make the assUmption that the empioyee has received prop~r tra1ning ·i~ the·· ~-~i-lier part of- hi~: work-' history. ' -. •: •• • "', '• ... ~• ... .J - ":' - • • .. ~ • I ' t ' " This is particularly the case when an employee-has • 4 - ; • • • • • • ; ..._ : r. ~ t t ' ': • l • : commenced work at a tLme before there was a consc1ousness within the.workplace of the serious consequences-of bad '-, lifting techniques~ -. 10 20 I am satisfied that in the circumstances-of a busy, untidy 30 workshop, it was important to instruct the plaintiff on the proper techniques for -lifting. · Mr B-radly. ·was -questioned· about the need to· get.help and he himself recognised that he would need to get help if the object being lifted were in . . excess of 20 kilograms in weight. - However,· it is ·very· · 40 . . difficult to picture how two men could sensibly:lift this relatively small -block which has·a-~eight ·that is unl"ikely to create any 'risk t~ an ave~ag·~ 'pe~sciii if' -p~oper li.ftin~ techniques are used. The critical issues are the distance from the feet' and the positio~-- o.f· the ;feet at· the time of the 50 .- . . '• ' . . . lift, as well as of .course, 'the· coi-re~:t. postur'e _of_ the back. . . In those circumstances I.· ani s.at.isfied that· the· failure to instruct the plaintiff- ·in- pi-oper llft.{rig -te~hniqu.es constitutes negi~gen=ce· 'which w~~ ~the .cause of his ~njury. 60 4 JUDGMENT -- 5 of 14 -- 171193 M/T MKY431/93 (Demack.J)'' · .. \ ~ ... ; . Mr Stens6ri strongly-·urged that there·be a ·substantial finding -of ~ontri.butory. ne·gligence·:- The. difficulty with that submission is that 'the·defendant,-at no stage, ascertained . . ·whether br not the plai~tiff had any-understanding of correct lifting techniques. • • 1 - The defendant left the plaintiff to his-own devices and left, in those untutored circumstances, the plaintiff injured himself. It seems to me that to make a finding of contributory negligence-in the circumstances here is, in - effect to shift the respon~ibility·for the maintenance of a safe workshop, on the people who are working there. I am -not satisfied that there is any evidence-that the plaintiff failed· to take reasonable· care for his own safety. ;:. . :• :.lt · .•.. 5 JUDGMENT 10 20 30 40 50 60 -- 6 of 14 -- 171193 M/T MKY431/93 (Dema~~'~ ) . ~.. t .• Mr BradJ_y .felt low }?ack._pain_ and leg_ pain as well. ~~-~ re:sted for some-six days.and then_attended the Mac~ay Base Hospttal • - • • I - > I • on·7 May 198?•7· E~hi.pit_3 gives some Accoun~ ~~his hospitalisation but does-not state the date of his discharge. - - • ~ • • • ... ~ &. • - • He was kept in traction for part of the t~e-that he was in • • ~ ' • -- ,I ... - - -· t hospital and was also treated with various medication. Prior to going into .hospital ~e had had phy~~otherapy ' .. but ~h~s had not produced a~y. bene_fit. He was on Workers' ,C<?mpensatic:m until 31. July 19~7 ~·-. _ ~e w~nt back.to work and was~told to_9et:help with lifting~ ,~his, of course, is aft~r ~he event of 1 May 1987, but i~ again reinforces th~. finding I _have. made that \:_he defend_ant was unwilling _to accept his re~ponsibilitie~.to .~nstruct its workmen in correct lifting techniques. One would have expected that as there had been an incident on 1 May 1987, time would have been taken to check the lifting techniques that Mr Bradly used, to see if they were correct; this was not done. Mr Bradly kept working until 24 February 1988. There was then another incident and he ceased work. His evidence in these proceedings is that this incid~nt involved, again, lifting of a piece of steel. However, when he went to see his general practitioner, Dr Bartrurn, the doctor recorded that Mr Bradly said that he had sneezed and the pain had come on. He gave a similar account to the Mackay Base Hospital. In 1990, when seen by Dr Cook, he said that this incident involved bending over to pick up a piece of steel, but subsequently in 1991 he told Dr Gavin Douglas that the 6 JUDGMENT 10 20 30 40 50 60 -- 7 of 14 -- 171193 M/T MKY431/93 (Demack ·J. r· iri'cident 'involved·· sneezing. ·_, · . ~ ' - - .. . -· This is a very un·satisfactory" -history and there are other aspects to'Mr Bradly~s evidence which raise doubts·about the reliability of things ·that he- says. _At: ·one point he obtained work under:a false name and that; in itself, involves some deceit. · There i·s ·some· confusion about the circumstances in which he filled in the Form 4- that related .to·the first incident. When he was first questioned about this, at page .31,-he .said 'that·it was filled-out in his printing~ Later, at page 48, he said that at the time it was filled in he was ·in traction, which seems not-readily to·be understood as consistent with the idea that he had filled in ·the form. At page 9, in the course of his evidence in chief, he was asked in respect of lifting~ "Would you lift alone while you -were working-with Jenners?~ And he answered, "Anything over roughly·20 kilo I would seek-assistance, normally." When he was reminded of this at page 36 he said, "No, I don't remember saying it,·" and, it had been said only a relatively ·short time· earlier.· ' . It seemed to me that, for whatever reason, .there was some unreliability about aspects of Mr Bradly's evidence. In the circumstances, I~am not-satisfied that. the· second incident involved lifting.~ Rather~:on·the balance.of probabilities, it se·ems to me to have been caused: by··a sneeze~ Three experienced orthopaedic· surgeons were called to give evidence; Dr Cook, Dr Doug'1as·and Dr White. Dr Douglas was ,. 4, .... ~-. 7 JUDGMENT 10 20 30 40 50 60 -- 8 of 14 -- 171193 M/T MKY431/93 (Demack J. ) . ·. ·'· . , . the first in the witness box and at pag~s.: 26 and, ~7 _he ·_gS:."'r_e some useful description of what was involved. Following the second incident·,_ Mr Brad_ly ;went to ::the _Ma~~?Y _Bp.se _Hos_pi~~l and was then transf~rre~:to-the Royal.Br~sb~ne Hospital on 9 March 1988.- A-·lumbar: myelogram and CT _Sc?n. was p~~fo~~d._ which demonstrated a. l~rge _compressing mass _maximal ~t t~e mid-L3 ·level ·which was thought _to most -likely rep:r::esen.t a large sequestrated dis.c fragment. · ·, .. I • I - .. ' On 11 March ·1988 Mr ·Bradly was ,taken to the operati~g t_heatre where a hard fibroti~ e~truded L3~4 -disc was found and ·- excised. Post:-operatively _there.was -conside:z;~ble. impz::ovement in Mr Bradly' s symptoms and signs·. He remained well and when. - . mobilising freely was discharged home on 21 March 1988 • . :...; . There·is evidence ·of-previous back injur~es and all of the doctors agree that tb,ere was evid~nce. o~ d~g~nerat~_on of .this disc prior to the incident:on. 1 May 1987. Dr Douglas, _at page 26, says that when the disc -degenerates the nu~leus ... dehydrates. It is a slow process tha~ takes many_year~ ~pd by the time it has reached the hard fibrotic.stage, _th~t is, the disc is sort of nut-like in it's consistency, it is almost completely. dehydrated •. _. He explained·:: that there are: t~ree.- teP:9s used ~n ~~se. i~j~EY. The first is. herniation, w.hich means ·the annulus of the disc .. . - . .. - . .. .. , - •• -.> is weakened so that the-nucleus .herniates but the-annulus. is - ~ . -. .. .. . . - still intact. Then there is a prolapse which means that the annulus. is ruptured -and~ the.: nucleus: pro.l.ap§~S :through this-. rupture~of:the ann~lus,. but ia-sti~l inta~tl tho~gh st~ll . - ,t. - 8 JUDGMENT· 10 20 30 40 50 60 -- 9 of 14 -- 171193 M/T MKY431/93 (Demack· 'J) ., • .. ' .... \. ~ '.: •. ~ • .~! • ~ ~ •• part _of the s'pinal mechan~sm. · F~nally; the· nucleus may be ext.ru'd~d- ·thro~gli the hole; ·so· th'at it i~ 'comp:tetely free in the spinal canal·. 'Dr D'ougla~ ·says th'is. third stage is fairly ' . unusual~ bu·t it is the ertd stage of a process·. ' Dr White was inciined to be •'reluctant to s·ee them· as steps·, but did agree ~hat'thes~ ~ere three, as··{t were, phasei in th~ possible disruption of a disc . . . . Whai ·is si~nificarit in Dr· Do~glas' evid~nce:is that he held fhe;view:th~t in ·1987; the·d{sd pr~bably ~relapsed because on that occasion~ Mr Bradly~suffered leg pain, which meant that he· was getting nerve irritation. I did not understand .. Dr. White to hold ·any different view from this. Dr Cook's evidence is somewhat complicated by the fact that he produced ·a report at the trial, which neither of·the other doctors had seen. He gave his evidence later than Dr Douglas and consequently what was there was not, as I understand it, seen ·by Dr :Dougl'as .· ·Dr Cook has very recently had the plaintiff X-rayed and he finas the disc space, L2/3 to be significantly reduced, indicating: quite' s~rious degen~ration. He expresses the view ·that part of that disc may·have been' removed at the Royal 'Brisbane Hospital.· It seems to ·me that the··passage that I have referred to in Exhibit 2, which is the report of the Royal Brisbane Hospital, specifically says that a hard f'ibrotic ·extruded 'L3f4 ·disc was found ·and excised. - It seems to me unl.ikely .. that any other disc space was ·touched in that surgery. This means that in·the iast few years, the space above L3/4 is also· the subject of·sl.gnificant degeneration. ~· :,. . ' 9 JUDGMENT 10 20 30 40 50 60 -- 10 of 14 -- 171193 M/T MKY431/93 (Demack J) .. . ... ' . ~ . I am .satisfied, then. thc;tt -prio~. to __ 1_M_C:\Y .1.987 ,__ ti?:e L3/4 disc . . . , - .. . . . was· degenera,t~d .. and. was U,ke.ly. to s_uf~~r. a her_ni_ation and . . . .. . . . ,. - _. - ~ prolapse and subseque.nt. e~tr1,1~io.n. of t.he disc.. .~hether it .. - • . ~ ' . . . ... _ • • . ~ ~ t. was herniated prior to that .. incident does not seem to me to - ' : ' -· - . ~ - . . .. . . ~; be ascertained in ~he. medic_a.l evidenc_e ._ l:Iowever,. _it i~ clear in Dr Doug:)..as ~- -opinion that that injury produced. a .pr<;>lap!')e. In view of the degree of degeneration in the disc, it was foreseeable.that.any.slight injury thereafter would result in . . . • . ! • J •• .• that prolapsed d,isc..herniat.;ing,_. so I~ s~tisfied th~t_the physical c~nsequence of t~e.~ne~z~ng incident_ is a_ consequence of the-injury !3~st~i~ed on 1 ~ay 1987. This means that the consequences of that sneezing incident ara compensable_in these proceedings. I am satisfied, on Dr. . . .... . . :_.. . .._ ·. Cook's evi_dence, that. fusio~ is_ a. rea~_ pro~pect at some time in the.future. : 'v: The point of disagreement between Dr Douglas and the other two doctors is the effect of the incident on 1 May 1987 in respect of ~r Bradly.' s present conditio_n. All a_gr_e~ thqt there was a pre~existing degeneration in the lumbar ~pine. - . . .... Dr Cook's _view was that. this degenera"!:ion _was_ so advanc~d as at· 1 May- 19.87 that it would be unli}{ely :that Mr Bradly would • • • I be able .to continue working in }?.is trade more tha_n 5 tq ,10 years. ... ··.· '•. ... !" He did stt;"etch tnat .outr. if .~r .~radly co~ld,_o~ta~~ lig~ter work, however. in view of the )3eye:t;"ity o_f _the qpns_equences of •' ., . .. I ~ • I , • , ~ : , \ ,. • • a relativel_y ligh~: lif~ing: _inqide;nt ~;nd i.p y~e.w o:e_..the_ rapid deterioration. in-the disc_ above. ;the one :that. waf:! inj_ure~, it 10 JUDGMENT 10 20 30 40 50 60 -- 11 of 14 -- 171193 M/T MKY431/93 (Demack~j)- s~e~~ .to me unlikely that ·even .if.MrLBradly had been able to 'fi~d • ~O~e: light~:t .. WOrk. as'·a fitter 'and turner 1 that he WOUld have beeri aole to- contlm.ie in'that'work.until 65. It seems . . . ~ .. . . ~ . . to me'that·he must have reached his present level of di~ability· withiri·'the· framework that ·nr Cook' initially . - - suggested, namely 5 ·to 10 years. 10 Particularly in view of the deterioration in L2/3, I am satisfied that seven years is the likely duration of his capacity to engage in work as a fitter . -. 'and turner' after 1 May "1987. There has been some complication for·Mr Bradly, because in 19.91 he was diagnosed as· suffering ·from leukemia. He was treated, and r'e-ceived a ~one ma-rrow transplant and has bee,n said now to have a relatively normal life expectation. exp-erts' opinion is· that there is some reduction- in life expectat'ion but not of a 'kind that would intrude in any into the span ~f his wor~ing year~: Consequently, that illness may be ignored for the purposes of assessing his .. The way economic loss. However, part of his time off work in the last COUple Of ye·arS haS been beCaUSe Of that illneSS 1 and 'codseqriently, the·loss·over that period is not part of his damages. Turning then'to'-tii.e.assessrnent -of ·damages, the ·past economic "loss has been calcu±ated 'qu{te-precisely.by an- accountant and is ··set out in Exhibit 21. It appears from Mr Bradly' s . - . evidence that'at least during part of that time, for a fairly non~specific .. period~ h~ ·did actually ·work; I shall allow $30,000 to-cover past· economic loss. .~ . 11 JUDGMENT 30 40 50 60 -- 12 of 14 -- ' ,. 171193 M/T MKY431/93 (Demack J) He rec~i ved- a net weekly- sum from. ~he .Wor~ers_' Compensat~on Board of ·$16,-655.32,.so._ I ~ill al~ow ip.t~rest,on. $13,3_4_4,.68. I will al~ow interest .at.6 per ce~t qv~r ~.5 yea~s: T~~. interest should accrue from:the date of_t~~ injury a~d indeed, the 6-per cent ~s f~lly justifie~ b~~ause,the lo~s ceaseq. quite- some years ago. I wil.l allow interest in the 10 amount of $5,204. As I have indicated,_ I ac~ept ~r-Cook's opinion abo~t ~he limited working life as a fitter and turner. I accept Mr Stenson's submissions that this should be assessed in a 20 global sum rather than make any attempt at preci~ion, anq I will allow $30,000 for future economic loss. For pain, suffering, and loss of amenities~ clearly Mr Bradly has had considerable amount of pain. _This was bprne o~t by the evidence of Mr Burton who noticed him in tears at the time of the initial injury. He does have regular pain. He will look forward to further surgery with the possibility of a fusion ·of two of the disc spaces in his lumbar spine. That 30 will carry with it, all of the associated discomfort from the 40 donor site .. Counsel were -not greatly apart in their e~tima~es in th~ amount that should be awarded for p~in, ~uffering, and loss ofamenities. Mr Stens~n_suggested a_f~gure.of t?etween 35 and $40,000, .and.Mr_Aberdeen, -$45,000.- I am sattsfied here that $40,:QOO is-·a _proper _sum to allow._ There has been a . . . payment of $19,547 by ~ay of permanent partial_disability from the Workers' Compensation Board. 12 JUDGMENT 50 60 -- 13 of 14 -- ~ ' ' . 171193 M/T MKY431/93 (Demack J) Taking that into account, I will not allow interest in respect of the component pain, suffering, and loss or-- amenities. There is a small claim for services gratuitously rendered, which I will allow in the sum of $510 with interest in the amount of $198. All of the special damages together, including the amount deducted by way of income tax on the periodic payments of Workers' Compensation, am~~nt of $5,115.90. I will allow $176 interest on the part of that, that the plaintiff has 10 paid himself. I accept the figure of $5,500 for future 20 medical and chemist expenses. The total of the award then is $116,703.90. The Workers' Compensation refund is $40,867.22. There will be judgment for the plaintiff against the defendant for $75,836.68 with costs on the District Court's scale. 13 JUDGMENT 30 40 50 -- 14 of 14 --