Burgers v Watt & Anor [1993] QSC 49

0 t ,. . . c2 . J i 9..3 State Report1ng Btireau-" 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 CULLINANE J NoW 275 of 1986 ARTHUR WALTER BURGERS and K WATT and M WATT TOWNSVILLE .. DATE 01/03/93 JUDGMENT Plaintiff Defendants 1 4th F'Tnnr. T1tP [aw Court!:. r.f'or<'e Street. Rri!:l>nnP. 0. 4000 TelPn17ntU?: (07) 227 4.":{fl0. F'nr~imiTP: fn7> 'J'J7 SJ>.q? I -- 1 of 21 -- f ) 10 20 3C 40 50 60 010393 HIS HONOUR: I give judgment for the plaintiff in the sum of $237,121.62 with costs including reserve costs to be taxed, save and except that in respect of the summons of 23 July 1990, I order the plaintiff to pay the defendants' costs of and incidental to that summons to be taxed. <>ovt. Printer, Old. 2 JUDGMENT 10 20 30 40 50 60 -- 2 of 21 -- IN THE SUPREME COURT OF QUEENSLAND TOWNSVILLE BETWEEN: ARTHUR WALTER BURGERS AND: K. WATT and M. WATT W. No. 275 of 1986 Plaintiff Defendants REASONS FOR JUDGMENT - CULLINANE J. DELIVERED THE FIRST DAY OF MARCH, 1993. Se '73/o.;L 9 The Plaintiff has instituted proceedings claiming damages for personal injuries as a result of an incident which occurred in the course of his employment with the Defendants on a banana farm at Mission Beach on the First of September, 1983. Three witnesses only were called before me. These were the Plaintiff, a Mr. Callaghan who was called by the Plaintiff to give evidence as to practices on banana farms and Mr. Rick who was called to give evidence on the same subject matter by the Defendant. The Plaintiff was obviously in considerable pain when giving evidence before me. He alternately sat and stood and I think that at least in relation to some aspects of his evidence may not have done full justice to his position. There will be seen on the record instances where Plaintiff gave evidence to a ce e ec a ta ars o e contradi himsel I assess Plai iff as ass i all)l an honest man as to The lai tiff I am satisfi Has inj when he slipped and -- 3 of 21 -- I d fell upon a green banan ' 1 I I ;111\ near the base of a banr111:• looking at the plant at\ '' 1111 ' 1 1 as a bell, which is the t ' 1 111 11 plant before the bunch '" 111 The Plaintiff had been I' J I I, the day on which he was apparently arranged thn>ll\ 111 1 Service and the Defendant' accepting the Plaintiff 1\ The Plaintiff's estimat b t !I• 11 farm was under ananas, The Plaintiff had on two 1 ' 1 on which he Has injured c 1 1 engaged in on this day, lli 1 return to the details The Plaintiff Has shoHn 1 ! Hho he identified as bei called to give evidence. these on bvo or tb ,,. f I is des l as s r '\I separate exercise. I I \ erials of a cane ife lying on the ground Plaintiff was '""o ic1~ ify what is described ~ to cribe the fruit of the ''ly short time before His , r>loyment was '1 th Employment ce ·in payments for their tely 20 acres of the ~ an ea also of paHpaws. :cc a 1s prior to the day - th which he was 'J dusting. I will tree cl -- 4 of 21 -- 3 In cross-examination it was suggested that there was a ''clear up of rubbish such as fallen leaves" which were placed between the trees and that this was done each six weeks. The Plaintiff said that this was done if there was time to do it and if I understand his answer correctly suggested that it may have been done at shorter intervals than six weeks. Generally it was the Plaintiff's evidence that the farm was untidy and that not sufficient labour was expended in keeping it clean. So far as the operation of cleaning and dusting is concerned, this was a combined operation which involved clearing away the material from the base of trees and also cutting leaves off trees where necessary to clean the trees up. The material to be removed would include both dead leaves and also green leaves in some circumstances. In this respect it would seem that the task which the Pl ntiff was engaged in on that day was the same as or similar to the tasks engaged in when clearing or stripping which was carried out as an exercise on its own. The second part of the exercise namely dusting required the Plaintiff to spray the bells of the trees after having identified where they were. To do s the Plaintiff wore a a operati s l a cane knife ' r li I Plainti f correc l i ne essary to use both h s in the dusting operation, blade of the cane -- 5 of 21 -- 4 knife was cut into the tree and left there. For the purposes of dusting, it was from time to time necessary to move leaves away from the bell and also for this purpose from time to time to cut leaves away. The effect of the Plaintiff's evidence I am satisfied is that as he moved towards the tree he would endeavour to locate the bell on it so that he might then know what part of the tree he had to dust. Having identified the bell he would then look to the ground to see if it was necessary to clear away any material. If he had to clear away such material this would be done first before the dusting. If there was no such material he would immediately commence dusting. He was looking for a bell on a tree when he slipped and fell. It seems that he was having some difficulty locating the bell and was moving around the tree. Although his evidence was a little confused on this subject I am satisfied that he had not cleared anything away from the base of the tree where he slipped and fell. I am satisfied that he was trying to identify a bell and looking into the tree while moving around it for this purpose when he slipped on a green banana leaf. The occurrence s ribed l t f y one i ich a farm labourer to tasks on a banana farm slips and falls on a banana 1 f does its face prov most sing set of circumstances on which to base a cause of action. It cannot be expected that such a ace -- 6 of 21 -- 5 would be entirely free, whatever measures are taken, of fallen leaves or other vegetation. However the Plaintiff called a witness, one Callaghan, who had for many years until about 1980 carried on banana farming operations. He says that he found in these operations that it was necessary to engage two men when dusting operations were performed. He says that this is because the activities involved in the operation were too onerous for one man and exposed him to a risk of injury. According to my understanding of Callaghan's reason a second person was necessary in dusting operations for the following reasons:- a. It was necessary to cut away using a cane knife leaves to get at some of the bells and also to open the bells. Callaghan said that is was not safe for a man to be both using a duster (which required both hands) and also a knife. He said that a person placing the blade of the knife into the plant when using both the hands in dusting operations would have been dismissed by him. the Plaintiff describes what he did. This is how b. Such person could clean away rubbish, fallen trees and other the path man in t.ing, is person's at.tent on being directed clrds s It is i icit in his evidence that a dus i \,Jould no also be required to carry out the work of clearing as described by Plaintiff. Mr. Rick who was led for the -- 7 of 21 -- 6 Defendant agreed with this and said that he had never known of such a practice. In evidence in chief neither Mr. Rick nor Mr. Callaghan's evidence was focused as much as it might have been on the particular circumstances in which the Plaintiff was working and the issues arising in this matter although I think taken overall they expressed opinions from which conclusions can be drawn. One assumes that if the farm was at that stage where it required the clearing or stripping operations which the Plaintiff was also undertaking in conjunction with dusting the risk of there being rubbish, leaves and other material upon the ground would be at least as great as would be the position where these operations were carried out "separately" from dusting operations. Mr. Rick who was called for the Defendant and who is also an experienced banana farmer and who has had considerable experience of the industry generally says that in his experience dusting is a one man operation. He did however state that there were some growers who engage a man to go ahead of the duster and to cut eaves out of the way of the l s is one of the i a re to orrns fv1r. Rick made ear in cross-examina 1 does not believe clearing and stri be ea t at e one time by one person. Rather he suggests t former is -- 8 of 21 -- 7 carried out quite independently of the latter and he says it is not associated with it. Mr. Rick's evidence was that normal farming practices would keep the areas around the base of a banana plant relatively clear but it could not be expected to remain clear because suckers grow and leaves drop. He suggested that in such cases the person engaged in the operation of dusting had to cope as best he could. Callaghan expressed the opinion on a number of occasions that the dusting operation required two persons to enable it to be performed safely, irrespective of the size of the particular farm. There is evidence which would suggest that the Defendants did not keep the farm as tidy as other farms may be kept but the evidence does not suggest that it was stripped or cleared on a less r·egular basis than was the norm. I have assumed that the Plaintiff's task on this day included one of the regular clearing or stripping operations. I would not be prepared to conclude that had the Defendant engaged in more regular stripping or clearing operations that this incident would have been avoided. I do not think that such a conclusion would be open upon the evidence. i t i per clearing ions of tasJ<s i re of I do the ev ence supports a finding was as a result ing overburdened or a need to hasten ile -- 9 of 21 -- 8 performing tasks that rise to the incident. Nor I understand that to be the burden of what is alleged on behalf of the Plaintiff. For the Plaintiff to succeed it seems to me that I have to be satisfied on the following matters:- a. That the Defendants ought in the discharge of their duty to the Plaintiff to have engaged another man whilst the dusting operations in which the Plaintiff was engaged were performed and that this person's duty included the clearing away of materials and rubbish including fallen leaves so that the Plaintiff could carry out dusting in safety. b. That had another person been engaged, it is probable the Plaintiff would not have slipped and fallen. So far as the first aspect of the matter is concerned, I prefer the evidence of Mr. Callaghan to that of Mr. Rick. I accept his opinion that the task of dusting requiring as it does a person to direct his attention to the bell both for the purposes of identifying it and dusting it means that that person is vulnerable to tripping or slipping on any materials around the base of the plant. I think that a reasonable employer would as Mr. Callaghan said he found to be necessary ensure that a person would be oyed who carry out the two a I re earl er. I of the s iate whi is tself is matter. That is I accept the evidence of Call and s ni 1 this -- 10 of 21 -- 9 I should mention that Mr. Rick acknowl that some growers do engage a second employee to perform the first of the matters mentioned by Mr. Callaghan. He was not asked about whether such persons also performed the second but the general thrust of Mr. Rick's evidence was that so far as rubbish or vegetation on the ground was concerned the employee who performed dusting operations had to do the best he could in this regard. In the result I am satisfied on the evidence which I accept that the Defendants were in breach of their duty to the Plaintiff in requiring him to perform the tasks which he was required to perform alone. It will be apparent from what I have held that even if the stripping and cleaning operations which were to be performed on this day were not to be performed and the only operation to be performed was dusting, the Defendants ought to have provided a second employee. I think that in circumstances where the farm was at the stage where it required the regular stripping or cleaning operation to be performed, this conclusion is strengthened as the likelihood of there being significant quantities of materials which might pose a risk of injury to a person performing dusting operations would be greater. I am satisfied that the performance by the Plaintiff of his tasks in the way set out was rea e e e De ts. i s en i ci t en avo I iew at I ha e ld as to laintiff's ions -- 11 of 21 -- 1 0 immediately before the slipping and falling, it is improbable that he cut the branch down. He was at the time approaching the tree for the purposes firstly of identifying a bell and then he would have looked to see whether it required clearing at its base. Since he had not identified the bell there could not have been any cutting of the leaves away from it by him. Mr. Rick's evidence is that it unlikely that a branch would simply fall alone unless it was dry. On the other hand the Plaintiff thought that leaves could fall at any time. If the leaf had been cut then it would seem that it must have been cut on an earlier occasion. If it fell then one would have expected that a person employed to carry out the tasks that I have mentioned would have observed it and removed it even if it fell only moments before the Plaintiff's approach. If it had fallen literally as he approached the tree, one would have expected that would have either seen or heard this. I therefore am prepared to infer that the probabilities are that had a second employee been present the incident would have been avoided. There are allegations of contributory negligence. The De s did not s on is subject but it is necessary cons der i se are a i 5 f the De ence are as fol a f iled ep an or a proper 1 fail clear tra a or t or on the ana plant -- 12 of 21 -- (c) near its failed to t safety. 1 1 e prior to commencing the dusting operation; any or any adequate care for his own So far as (b) is concerned 1 I do not think it reasonable to make a finding against the Plaintiff on this basis given the circumstances in which he was placed and given that he was going about the combined operations in a way which I would regard as not unreasonable. As I have said his procedure was to look to see if he could identify a bell as he approached a tree and then before any dusting operations were required ascertain whether it was necessary to carry out any cleaning or stripping at its base. I think it would be an unrealistic approach to hold that the Plaintiff ought to have done this in some other way or in the reverse order given the position in eh he was placed. It may well the case that the Plaintiff had he directed his attention as he approached the tree to its base or to the ground below the tree would have seen the fallen leaf. However I do not think that it follows from this that he failed to keep a proper look out. He was required to perform t which it was common ground were in excess of what he should been required to do and there is some evidence a he er sc)1ne su:re i t tas In no to concl that Pla tiff of -- 13 of 21 -- 1 2 In the result there will be a finding that the Defendant was negligent in the particulars alleged in paragraph 7(a), (b), (c) and (f) . The Plaintiff was born on the 13th September, 1951 and left school when aged fifteen. The Plaintiff's employment history is set out in exhibit 1. He generally worked in unskilled jobs moving from place toplace with periods of unemployment between jobs. He says that the longest period of unemployment he had was between leaving the position he had at Innisfail Express Parcels delivery and obtaining the position with the Defendants. When he slipped and fell, he fell on his back with his left leg bent under him. I am satisfied from the medical reports which were tendered that the Plaintiff sustained a lower lumbar disc injury at the level L4/5. He also it would appear sustained an injury to the posterior crucial ligament and to the pa lla femoral joint of the left knee. i e l and in i bi s a of I left t limited r a inical aints of pain i make ence ist. -- 14 of 21 -- 1 3 He is anxious and frustrated but does not have any psychiatric condition or disease. He is partially impotent. There is some evidence which I accept which suggests that he did not intend to remain in the position with the Defendants for long as this posed some problems financially to him and was hoping to obtain other employment. The Plaintiff suffered from asthma particularly after he moved to Innisfail. Exhibit 8 which is the report of Dr. R.A. Douglas contains the following expression of opinion: "I would think that were he not limited so far as physical work is concerned by his injuries then he would by now be finding that his obstructive airways disease would limit him to some extent in carrying out heavy, physical work. No doubt, with time, should he continue to smoke tobacco his obstructive airways disease will become progressively worse." The Plaintiff suffers headaches which have fluctuated somewhat in intensit and since accident but which I am sa ill ti e to s ffer i are re e asses e Plai tiff's s at $70,000- In a document. to the Court a t f s head -- 15 of 21 -- 1 4 was contended for. The De ts' counsel not surprisingly was happy to accept the lower figure. However I am satisfi that the Plaintiff would not be adequately compensated by this sum. In his address the Plaintiff's counsel contended for a higher figure. As far as past economic loss is concerned there is before the Court as attachments to exhibit 1, schedules setting out the gross and nett earnings since the date of the accident and until the present of Truck Drivers, Foundry Workers, Building Tradesmen and persons engaged in the fruit and vegetable growing industry. I bear in mind in my assessment of past economic loss that the Plaintiff was in the habit of moving from job to job and that associated with this would be periods of unemployment. I also bear in mind that Dr. R.A. Douglas is of the view that by early 1992 the Plaintiff would have been limited in his capacity for physical work for reasons unassociated with the injuries sustained in this accident. I assess the Plaintiff's past economic loss in the sum of $75,000-00. c s t not unders 0 express e i t the la tif d s t given the Plaintiff was arge sically demanding tasks, the Plaintiff 1 S capacity for -- 16 of 21 -- 1 5 employment at the present would have been, quite apart from the accident, significantly limited. The Plaintiff is currently aged 41. He would, I am satisfied, have been capable of employment in work of a physical nature which was not too demanding but I do not think I can assess damages upon the basis that he would have been in full-time permanent employment until anything like a normal retirement age. I allow the sum of $150-00 per week for fourteen years. The present value of this by reference to the 5% discount totals is $78,770-00. There are claims for care and assistance both past and present. This is based upon the Plaintiff's need for a heat rub each day for his back pain. The Defendants accept that he has probably required this since his accident on the average of one occasion per day lasting approximately ten minutes or a little over an hour a week and if I understand correctly will continue to require this. It was agreed that $7-00 per hour in respect of past care and assistance on an average would be ate that $9-00 per for future care and assistance be appropriate. s s of 3,50 -0 . respe ture care ist I all the of -- 17 of 21 -- 1 6 $7,500-00. I assess special damages in the sum of $8,124-91. There are claims for future medication, future medical expenditure and an allowance for the costs of possible future surgery. So far as future medication is concerned that claim is based upon a sum of $10-00 per week for thirty-three years which would take the Plaintiff towards the end of his life expectancy. Whilst there is no direct evidence on the question of the Plaintiff's continuing need for these medications (the details of which are set out in exhibit 1) I infer that since his condition is permanent he will continue to require them and I allow this sum namely $8,430-00. So far as future medical treatment is concerned there does not appear to be any evidence on this whatsoever. I have in exhibit 1 details of the number of occasions the Plaintiff has attended a medical practitioner since he has been living in Woodberry where he presently resides also the number of occasions that he previously attended medical practitioners. Some of c.laims specia.l i I is :L r: think that I assume need to conti e to a tend upon i iti is even as I have said I am sa s ied Plai -- 18 of 21 -- 1 7 allow any sum in respect of future medical treatment in the light of the evidence as it stands. There is a claim for future surgery based upon a note to exhibit 4(b). The Plaintiff has at different times expressed the view that he does not want to undergo any further surgery nor do I think that Dr. Watson thinks that it is likely that the Plaintiff will have such surgery. Rather he thinks that the position might be reached where he may wish to have such surgery and the procedure which he refers to may offer him some prospect of limited relief. The Plaintiff has indicated that if he was advised that surgery ought to be undertaken and would offer him some prospects of relief he would undertake it. He indicated a general aversion however to surgery. I think that the Plaintiff is entitled to some allowance in respect of pass e future surgery but I am not convinced that he will certainly undergo surgery and should therefore be allowed the present value of the costs of such surgery at some time in the future. I think that an allowance of some $2,000-00 would be appropriate in this regard. The proceedings were instituted on the 14 May, 1986. In my view, when consider interest be li ted in ion and al te s a el since of tri and V of any e for delays. In respect of pas pain, suffering and iti I -- 19 of 21 -- 18 interest to the rate of 2% on $20,000-00 five years. This produces a figure of $2,000 00. In re t of past economic loss, the Plaintiff has received amounts in the nature of income replacement of $38,784-00. I allow interest at the rate of 6% for five years on the sum of $36,216-00 which produces an amount of $10,864-00. So far as past care and assistance is concerned, I allow interest on the sum of $3,500-00 at 6% for five years. This amount is $1,050-00. Interest is claimed in respect of special damages on the sum of $2,707-00 representing monies which the Plaintiff himself has paid. There is no challenge to his evidence in this regard and I allow interest on the sum of $2,707-00 at 6% for five years. This produces an amount of $812-00. The various items assessed are as follows:- (a) General Damages - $ 70,000-00 (b) Past Loss of Income - $ 75,000-00 (c) Future Loss of Income - $ 78,770-00 (d) Past Care and Assistance - $ 3,500-00 (e) Future Care and Assistance - $ 7,500-00 (f) Special Damages - $ 8,124-91 (g) Future ication - $ 8,430-00 ible 2,0 -00 Fr:·orn e ere has r.o be an amount of -- 20 of 21 -- 19 $30,929-29 being the total payments made to the Plaintiff by the Workers' Compensation Board. I give judgment for the Plaintiff against the Defendants in the sum of $237,121-62 with costs to be taxed. -- 21 of 21 --