Cardakliya v Mount Isa Mines Ltd [1992] QSC 349

;_;-,..:['~~:.0 ~'A' ,m~ 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 HELMAN, AJ No' 6 of 1989 FIJ ... DO CARDAKLIYA Plaintiff and MOUNT ISA MINES LIMITED Defendant BRISBANE .. DATE 01/10/92 JUDGMENT 1 -- 1 of 14 -- 011092 JUDGMENT HIS HONOUR: I have reduced my reasons to writing; gentlemen, and I will ask my Associate to give you copies of them. HIS HONOUR: An offer to settle was made in this case on 11 November 1991 in the sum of $200,000. The plaintiff seeks to invoke 0 26 r 9(1) to obtain an order that the defendant pay his costs fixed on a solicitor and client basis from the beginning of the action. In my view the defendant has shown that another order for costs is proper in the circumstances in that the offer was made on 11 November 1991, only one week after the documents filed pursuant to 0 39 r 30 (A)(1) had been served upon the defendant. In those circumstances I conclude that the appropriate order for costs would be to allow the plaintiff his costs of the action, but fixed on a solicitor and client basis only on and after 26 November 1991. Mr North on behalf of the plaintiff has urged me to certify for two counsel in this action. Mr Williams has submitted thatnunless I have come to a clear view of the matter, that 10 20 30 40 50 question should be left to the taxing officer. I have in fact come to a clear view of the matter, and I refuse to certify for two counsel for the plaintiff. The order as to costs will be: I order that the defendant pay 60 2 JUDGMENT -- 2 of 14 -- 011092 to the plaintiff his costs of and incidental to the action to be taxed, such costs to be fixed on a solicitor and client basis in relation to costs incurred on and after 26 November 1991. There will be judgment for the plaintiff for $359,036.49. 3 JUDGMENT 10 20 30 40 50 60 -- 3 of 14 -- IN THE SUPREME COURT OF QUEENSLAND MOUNT ISA DISTRICT REGISTRY Writ No. 6 of 1989 BETWEEN: AND: CATCHWORDS: Counsel: Solicitors: FILDO CARDAKLIYA Plaintiff MOUNT ISA MINES LIMITED Defendant REASONS FOR JUDGMENT - HELMAN A.J. Delivered the first day of October, 1992 Master and servant - personal injuries - damages for negligence J.J. Clifford Q.C. with him T.D.O.J. North, for the plaintiff S.C. Williams Q.C. for the defendant Conroy and Conroy for the plaintiff Bowdens for the defendant Hearing dates: August 10, 11, and 12, 1992 -- 4 of 14 -- IN THE SUPREME COURT OF QUEENSLAND MOUNT ISA DISTRICT REGISTRY BETWEEN: Writ No. 6 of 1989 FILDO CARDAKLIYA Plaintiff AND: MOUNT ISA MINES LIMITED Defendant REASONS FOR JUDGMENT - HELMAN A.J. Delivered the first day of October, 1992 This action arises out of an incident which occurred on December 22, 1988 when the plaintiff was working at the defendant's mine at Mount Isa, Queensland. It is common ground between the parties that on that day the plaintiff was employed by the defendant as a pipe fitter, that in carrying on the defendant's business at the mine it stored and fitted wet-fill pipes, and that the defendant carried on that operation at the store on level 13 of the mine. It is not in dispute that on the day I have mentioned the plaintiff was engaged in lifting wet-fill pipes at the store on level 13. The plaintiff claims that as a result of the negligence of the defendant he was injured lifting a pipe and suffered injury. He claims damages for negligence. The defendant denies that it was negligent, and says that if it was negligent the plaintiff was guilty of contributory negligence. The plaintiff, who had been a pipe fitter at the mine for over eight years on the day of the incident, was working on the 4.00 p.m. to midnight shift. The incident happened after crib, -- 5 of 14 -- 2 which was about 8.00 p.m., when he was in a two-man crew with a man called Wally Conza. They were instructed to go to level 1 3, pick up some new pipe fittings and take them to level 6. They had the use of a four-wheel drive Toyota motor vehicle modified for carrying pipes, drawings of which may be seen in exhibit 48. They went to level 13 where, among other pipes on the ground, was a pipe with a 135 degree bend and flanges at both ends. It weighed thirty-seven kilograms. The plaintiff, who was wearing gloves, loaded some pipes other than the one I have just mentioned. He then walked to it, stood close to it, bent his knees, grasped it with one hand on each flange, and, keeping his back straight, began to lift it. He intended lifting it about three feet up to the level of the tray on the Toyota. As he began to lift the pipe he felt a sharp pain in his lower back, both legs, and his right shoulder. A pipe fitter's job, which was to install wet-fill pipes and to strip down old ones, entailed a good deal of lifting. The defendant had shown a video tape about lifting techniques to the plaintiff and he had been given general instructions about lifting. He was told he should bend his knees, keep the object lifted as close to his body as possible, and keep his back straight. He was also told that if he thought an object was too heavy to lift he should seek help, but no instructions were given to him on how to tell whether an object was too heavy to lift. Although it had been the practice of the pipe fitters for two men or more to lift some other types of pipe, no instructions had been given to the defendant about the pipe in question. The -- 6 of 14 -- 3 practice had been for one man to lift the pipes with the 135 degree bend. The plaintiff was severely disabled by the injury suffered on December 22, 1988. He had had one previous incident which caused back trouble, but that was in 1980 and there is no evidence that the plaintiff's back was particularly sensitive before the 1988 incident. He had lifted similar pipes many times before in the course of his duties. On the evidence before me I conclude that the defendant failed to exercise reasonable care to establish and maintain a safe system of work for the plaintiff as a pipe fitter in that it failed to ensure that the pipe fitters were instructed to have two men lift the pipe in question. A pipe of thirty-seven kilograms was I conclude too much for one person to lift safely: it was reasonably foreseeable that an injury would sooner or later be suffered by a pipe fitter in trying to lift such a pipe by himself either because of some, possibly minor, inadvertent departure from proper lifting technique, or because the load was just too heavy for the employee's back. On the latter point it must be borne in mind that in general human backs suffer from some degeneration after the age of about twenty years. The risk of such an injury was, I conclude, substantial and not remote or fanciful. The means of avoiding it were not difficult or expensive and should have been adopted in my view. I accept the opinion of Mr. King, who has had considerable experience in the field of assessing manual handling tasks, to the effect that requiring a worker to lift an object weighing more than twenty-five kilograms brings with it a substantial risk -- 7 of 14 -- 4 of injury. His opinion appears to me to be consistent with published studies by such bodies as the National Institute for Occupational Safety and Health, an agency of the United States government. Those studies were well known in 1988 to what Mr. King referred to as the "safety community". The risk in lifting an object weighing thirty-seven kilograms is substantial even though the person lifting it may be strong enough in the arms and legs, as appears to have been the case with the plaintiff. That is because the danger is in the compression of the lower back. There is no way known of observing the condition of a person's back satisfactorily so that the effects of a load can be predicted. My conclusion is that, had the precaution of instructing the pipe fitters to have two men lift the pipe in question been taken, the injuries suffered by the plaintiff would have been averted. I am not satisfied that the plaintiff was guilty of any contributory negligence, in particular as the plaintiff has followed the instructions he has been given as to safe lifting techniques, no instructions had been given as to how to tell whether an object was too heavy to lift, and it had been the practice to have one man lift pipes with the 135 degree bend. The plaintiff received treatment at the mine ambulance station following his injury. Ice packs were put on his back and he was given pain-killing tablets. He returned to work a full shift on the following day, December 23, when he was assigned to the task of driving the Toyota. -- 8 of 14 -- 5 The plaintiff was absent from work at the mine from December 27, 1988 to January 17, 1989 when he received worker's compensation. He then returned to work on light duties from January 18, 1989 to March 5, 1989. He was absent again receiving worker's compensation from March 6, 1989 to March 16, 1990 when he was paid a lump sum. From April 3, 1990 he has received an invalid pension. His employment with the defendant was formally terminated on July 26, 1991. He received about $91,000.00 as a superannuation payment on retirement. Before the incident the plaintiff had no wish or intention to retire early, although he may have wished to go onto lighter work as he advanced in years. In about December, 1990 the plaintiff and his family, his wife and children, moved from Mount Isa to Townsville so he could receive treatment from Dr. Richard Watson, a specialist in rehabilitation medicine. The plaintiff has been totally crippled functionally, to a adopt a phrase used by Dr. Watson, by pain caused chiefly by an injury to his lumbar spine. His L5-S1 disk was revealed on July 24, 1992 by a three-level discogram to have a circular tear to the inner annular fibres. He also has cervical pain and stiffness with headaches. Both of those injuries were caused, I conclude, by the lifting incident. The pain and discomfort in the head and neck is relieved every six weeks by manipulation by Dr. Watson. The head and neck symptoms are, however, minor compared with the pain and discomfort arising from the injury to his lower back. The plaintiff's lower back pain is severe and disabling although from time to time it subsides in intensity. It is -- 9 of 14 -- 6 accompanied by pain in the legs which is worse in the right leg than in the left. He has pins and needles on the soles of his feet. The pain is, generally speaking, aggravated by activity. He is able to potter around his garden, water his grass, and walk to the shops. He requires regular rest. He is able to watch television for thirty minutes to one hour, but then must get up and move around. He is able to swim and drive a car, but sometimes has difficulty dressing and bathing. The plaintiff is now unable to referee soccer games, as he did before he was injured. All ranges of lumbar movement are markedly restricted. He will never be able to return to work of the sort he has done for most of his life, except that there is some possibility of his being able to undertake light sedentary work. Dr. Watson gave the opinion that lumbar fusion surgery could reduce the intensity of his low back pain, and, in view of the confidence the plaintiff has in Dr. Watson and in spite of some reluctance following the pain caused by the discography, I think it likely that he will agree to that procedure. The result will not be to restore his earning capacity, however, but to reduce the level of pain and discomfort he suffers. He will require cervical manipulation for the rest of his life at six-week intervals. I assess his damages for pain and suffering and loss of amenities at $60, 000.00: $25, 000. 00 for the past, and $35, 000. 00 for the future. The plaintiff's earning capacity has been greatly impaired by his injury. He had little formal education and has no trade qualifications. He was born in what was Yugoslavia on January -- 10 of 14 -- 7 7, 1940 and educated to grade 6 level in that country. He left school when he was about fifteen years old. That was his only formal education. After leaving school he worked on a farm. He came to Australia in 1960 where he first worked as a labourer on the Western Australian railways. He later worked on a sheep station, as a machine operator in a dye-casting factory, and as a chain man for the Sydney Water Board. The plaintiff was first employed by the defendant from November 3, 1966, beginning as a labourer. He later worked for the defendant as a warehouseman, trucker, trades assistant, nipper, labourer again, beltman, chainman, and pipe fitter which was his job from March 5, 1980 to the day of incident. There were gaps in the plaintiff's employment with the defendant: he worked as a truck driver for the Sydney Water Board from February 1 to June 30, 1967; he left the defendant between August 5, 1968 and March 7, 1969 to go overseas; and he carried on business as a cafe proprietor in Mount Isa from July 12, 1973 to November 1, 1976. In 1988 he had about five months long service leave, returning to work early in December of that year. The parties agree that figure arrived at by deducting from the sum the plaintiff could have earned from December 22, 1988 had he not been injured the amount of his actual earnings in that period is $106,115.94, after the deduction of income tax. Allowing for contingencies I assess his damages for past impairment of earning capacity at $95,000.00. The parties agree that the plaintiff's present weekly loss after the deduction of income tax is $695.93. Taking into -- 11 of 14 -- 8 account his age I think it appropriate to allow another seven years in employment at the mine. Applying the five per cent. tables to a weekly loss of $695.93 for seven years I arrive at the sum $215,042.37. Discounting that sum for contingencies and also the fact that the plaintiff has some residual but minor working capacity, in that he could undertake work such as that of a cafe proprietor or some other light sedentary job, I arrive at the sum of $180, 000. 00 for future impairment of earning capacity. It is likely, as I have said, that at some time in the future the plaintiff will agree to have and will undergo a fusion operation. The total cost of that operation would be $5,513.75 made up of hospital expenses of $2,450.00 (ten days at $245.00 per day), $1,315.00 for the surgeon, $328.75 for the surgeon's assistant, $350.00 for the anaesthetist, $320.00 for the theatre fee, $600.00 for "fixation" devices, and $150.00 for physiotherapy. Since that operation will not take place immediately the figure of $5,513.75 must be discounted. I assess that the appropriate sum under this heading as $4,000.00. At present the plaintiff's yearly pharmaceutical requirements are twenty-six prescriptions for paracetamol, thirty-six for panadeine forte, and twelve for endone. Each script costs $15.90 so the total is $1,176.60 a year, but once $309. 00 has been spent (i.e., twenty scripts) the plaintiff receives scripts for $2.60 each, so his total expenditure every year will be $449.40, which is arrived at by adding $309.00 for the twenty scripts to $140.40 for the remaining fifty-four scripts. That comes to $8.64 per week, which I round off to -- 12 of 14 -- 9 $8.00. Applying the five per cent. tables to $8.00 per week for seventeen years, which appears to me to be the appropriate term, I arrive at $4,824.00 for future pharmaceutical expenses. That sum should also be reduced because the fusion operation is likely to reduce the number of pain-killing tablets required by the plaintiff. I therefore arrive at the sum of $3,500.00 under that head. The plaintiff claims damages for help, past and future, on the principles explained in Griffiths v. Kerkemeyer (1977) 139 C.L.R. 161. The parties have agreed that $6.00 per hour is the appropriate rate to allow for past help, but have not agreed on the number of hours per week. It must be said that the evidence on this subject is somewhat confused. The plaintiff has had help from his wife in such things as dressing and bathing and also from friends who have done gardening for him. I think on the evidence it is appropriate to allow three hours per week for the past, which comes to $936.00 per annum. Allowing $936.00 per annum for 3.75 years I arrive at the figure of $3,510.00. Allowing for contingencies I think the appropriate sum to allow under this head is $3,250.00. For help in the future the parties have agreed on $7.50 per hour. The plaintiff asks that one hour per week be allowed. On the evidence I conclude that that is appropriate, subject to a substantial discount because the fusion operation is likely to reduce the plaintiff's need for help. Applying the five per cent tables to $7.50 per week for seventeen years I arrive at $4,522.50, which I discount to $2,500.00. -- 13 of 14 -- 10 The plaintiff at present undergoes manipulation every six weeks to relieve his cervical pain and stiffness. That treatment will be required whether or not he has the fusion operation. It costs $35.00 every six weeks, or $5.83 per week. Allowing that sum over the seventeen year period and applying the five per cent. tables I arrive at the sum of $3,515.49, which allowing for contingencies I round off to $3,000.00. The parties have agreed on the sum of $9,054.52 for special damages. That includes the sum of $2,471.64 allowable on the principles explained in Fox v. Wood (1981) 148 C.L.R. 438. -- 14 of 14 --