Blyth v Ampol Petroleum (Queensland) Pty Ltd [1992] QSC 173

Se '?;:)./t-r 3 TRANSCRIPT OF PROCEEDINGS State Reporting Bureau, 4th Floor, The Law Courts, George Street, BRISBANE. 0. 4000 Tel. (07) 227.4360 (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.) (Issued subject to correction upon revision.) SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION KNEIPP J No 180 of 1986 WARREN GEORGE BLYTH and AMPOL PETROLEUM (QUEENSLAND) PTY LTD TOWNSVILLE .. DATE 14/4/92 - 1 Plaintiff Defendant -- 1 of 13 -- HIS HONOUR: The question of liability can be dealt with briefly. I am satisfied that there were bolts protruding from the floor of the defendant's workplace. This fact was known to the plaintiff's superiors, namely his wife, who was the Manager, and the Area Supervisor, Mr Millican. It was 10 plainly foreseeable that an employee might trip on the bolts and injure himself as a was what happened ~ to result. I am satisfied that this the plaintiff. I find that the defendant was in breach of its duties as his employer in not removing the bolts, and that this resulted in his falling 20 and sustaining an injury to his spine. So far as contributory negligence is concerned, it was argued that the plaintiff should have dealt with the situation himself by placing something over or against the 30 bolts to act as a warning of their presence. This, to begin with, would involve substituting one obstacle for another, but more fundamentally it would involve casting on to the plaintiff the defendant's duties in relation to establishing a safe system of work. The failure of the plaintiff to do 40 anything about it should not be regarded, in my· view, as contributory negligence. It was also submitted that he was negligent in failing to keep a proper look-out. Of course he knew that the bolts were there, but that a workman intent on his work would trip over them without noticing them or forgetting that they were there was plainly foreseeable and was the very thing that the defendant should have taken steps to avoid. I do not think that the plaintiff's failure to notice the bolts and to avoid tripping over them should ha ~eg~~ded as anything more than inadvertence, and I .. '~ ... ~ ... --- 2 50 60 -- 2 of 13 -- 1 therefore find against the allegations of contributory negligence. The plaintiff's case is that as a result of the incident he suffers from a serious and disabling condition in the lower 10 spine, with familiar consequences. There are two matters in issue, however. The first is that of causation: that is, whether the incident which I have described did in fact cause the plaintiff's problems. The other matter is what are the actual physical consequences of the incident, and a 20 matter that I will have to deal with it at some length. I should mention first that there was considerable discussion during the course of the trial as to what was the date of the accident. Both the plaintiff and his wife have given different dates at different times, and this was said to 30 bear on their credibility on other matters. The plaintiff said, and I accept it, that although he had lower spinal problems from time to time after his accident he always expected them to improve, and it was not until he saw Dr Watson in 1985 that he realised that his problems with his 40 spine were the result of the accident some years before. In fact he made a successful application to extend the time for bringing an action under the Limitations of Actions Act. It was only then that it became necessary for him to attempt to fix dates. Later, when doctors' reports were obtained, it 50 became obvious that the dates had not been fixed accurately: hence the later changes. I place no significance on this matter. That confusion should have arisen in relation to the exact date is not unusual or unexpected. 60 - 3 -- 3 of 13 -- I return to the two main matters in issue. The first is that of causation. There is a report from Dr Horn, who was the plaintiff's general practitioner and whom he consulted soon after the episode, in which her account of what he told her (as recorded in her notes and expanded in the report, 1o dated 27 September 1985) is as follows: "He told me that he had slipped on an oil slick at work (garage) on the previous Friday. He had noproblems after that. However, on the following day he bent over the sink and developed sudden severe lower back pains which gradually got worse." That account would differ from that of the plaintiff in a 20 number of respects. First, it suggests that he slipped on oil whereas, in fact, I am satisfied that he stumbled on some bolts and fell on to what might have been an oily or slippery surface. Second, the report suggests he did not have any immediate problems and, third, the plaintiff did 30 not, at any rate initially, attribute any of his problems to any incident which might have occurred while he was bending over a sink. However, in a later document, a letter from Dr Horn to Dr Gavin Douglas, an orthopaedic surgeon, she said that in 1982 he had "lumbo/sacral acute back ache after 40 slipping at work." There is again no mention of ·stumbling over bolts, but, of course, that account is consistent with what the plaintiff said, which is that he felt acute pain immediately after the incident. In later interviews with Dr Watson and Dr Lewis he gave accounts which are consistent 50 with his account before me. The evidence of his wife, to whom he immediately recounted the incident, was also consistent with what he said. Of course one is only too familiar with the opportunities for error in the reporting o.t ;pl~_ntiffs by doctors. In the result I find that the 60 4 -- 4 of 13 -- accident occurred in the manner recounted by the plaintiff, notwithstanding what he is alleged to have said on other occasions. The plaintiff agreed that there were two episodes, one 10 involving his tripping over the bolts and one involving his bending over a sink. It was submitted that it was not possible to hold that it is more probable than not that the tripping and consequential fall were the basic cause of the plaintiff's injury, rather than the bending over the sink o 20 As to this, I find that after tripping the plaintiff fell heavily on to his lower left side, and I agree with Dr Watson that it is more probable than not that this was the cause of his injury. 30 I come to the second of the main matters in issue. On this it is appropriate to begin with an account of the plaintiff's history. The plaintiff was born on 14 December 1948, and he left school at the age of 15 years. For some four or five years he was in a variety of unskilled jobs o 40 By 1 9 6 7 he was engaged in long-haul trucking, and he was engaged in trucking work of one sort or another to a considerable extent during the years which followed. By 1975 he was Manager of the Townsville branch of a trucking firm. He remained in that for some time. He had married by 50 the time he finished in that job, and he and his wife entered into partnership as local carriers providing a courier service. This business expanded and was successful. They then 60 -·· ..· ::-·· 5 -- 5 of 13 -- purchased a Golden Fleece service station in Bowen ·Road in Townsville. This was expanded to a 24-hour site and was a success, there being at one time 17 employees. They sold or had sold the carrying business. In conjunction with their carrying on of the service station, they opened a small boat 10 hire trailer business. Later still they embarked on another line altogether, purchasing a seafood restaurant and running that for some time, with some vicissitudes after they attempted to sell it. They sold the service station, not being able to continue it because of the family situation. ~ They continued 'with the restaurant and also developed a towing business. Around 1981, after selling the restaurant, they had considerable financial problems, three different purchasers failing in the business, with the result that the plaintiffs had to fulfil their original obligations to 30 lessors of the premises. up. This business was finally wound By the time of the accident the plaintiff's wife was managing the defendant's Ampol service station in North Ward A and the plaintiff was working at it part.:..time. They kept on with the towing business, but eventually had to give it up because, as will be seen later, the plaintiff was having problems with his back and could not do all the work involved. In 1985 they took a trip around Australia, the plaintiff being out of work during this period, although, he attempted to obtain work in various places. In 1986 they purchased land at Nome and attempted a share farming business which failed. A piggery also- was established but tpis. also failed. In November 1988 the plaintiff commenced 50 60 6 -- 6 of 13 -- taxi driving part-time. He gave this up in September or October 1991 and has been unemployed since. He lives at Nome and the case put for him is that because of spinal problems he is unemployable. 10 For some time after the 1982 accident the plaintiff, while suffering some problems with his spine, always thought that they would eventually settle down. He did not have any idea that he might have sustained an injury which would produce permanent significant results and indeed, as I understand 20 it, this was the basis for his obtaining an extension of time in which to bring his action. His decline physically over the years and its impact upon his various ventures is dealt with in detail, in his statement in paras 33 through to 60. This, in general, gives a picture of a slow onset of ~ serious problems, and these gradually worsening until he reached his present situation, is all too familiar to people who have to deal with this sort of case. However, having regarc to what I will be saying later, I cannot accept that th,~ impact of the plaintiff' s· problems was as great as he st .-;gested in his statement and in his evidence. I need not anvass the medical reports. Having regard to their con nts and to the evidence of the plaintiff and his wif( I find it more probable than not that he had pre-exisli• g problems in the lower spine, that this put him at risk the effect of trauma, that in the absence of any relevan' trauma there was also a substantial risk that his active 1 0rking life would be curtailed by na.t1:1=:..~. degeneration, b~: c that the trauma to his spine ~ 7 40 50 60 -- 7 of 13 -- involved in the fall at work was basically the cause of his present problems. The next matter is what those problems are. As I have said, his evidence, and it was supported by the medical evidence 10 available at the commencement of the trial, would suggest that because of his disabilities, he is for all practical purposes unemployable. One of his problems, as he described it, is in relation to flexion at the lower spine and, in particular, his evidence would suggest that he had 20 practically no forward flexion at that level. In relation to this, I set out the following passage from his evidence: - "Bending over?-- Yeah, bending over is a problem. You must occasionally dropped something on the floor at home that you've got to pick up. How do you go about that?-- You would be amazed how careful you 30become ----- Just tell me how you do it. How do you pick up an i tern from the floor?-- How do I pick things up? I don't, I don't. You know what the term 'forward flexion' means?-- No, I don't. Well, it means bending from the waist?-- Yeah. Do you remember Doctor Douglas, Gavin Douglas~-- Yeah. When you saw him - which I will give you a date - in July of 1990, you were extremely restricted in your ability to forward flex, that is to bend forward?-- Bend forward, yeah. You would agree with that?-- Yeah. And your restriction was caused by pain?-- Yeah. So, if you were picking items up from the floor at that time would you find it easier to squat, less painful to squat down and pick something up?-- Well, I don't know because I really didn't think along the lines of checking which would be the best way to do things. 8 50 60 -- 8 of 13 -- I) JUDGMENT Why not?-~ Well, the thought didn't cross my mind sofar as that's concerned. I just don't do things like that. I mean, forward bending, you get to a stage where it's painful so you try very, very hard, whatever you do, not to go past that angle." The medical witnesses, Drs Lewis and Douglas, who are orthopaedic surgeons, and Dr Watson, who is a specialist in rehabilitative medicine, all accepted this complaint and reproduced it in their reports. However, during the course of the trial a video film was shown relating to events which occurred at the plaintiff's home on 12 April 1991. This involved the placing of rocks along each side of a path-way leading to his home. The video shows the plaintiff and his wife engaged in this work, most of the work being done by Mrs Blyth. However, the film plainly shows the plaintiff bending over and picking up rocks, some of significant size, and I would think weight, carrying them for short distances, and dropping them. The film also shows him bending over and arranging rocks on the ground, with his hands just above ground level and his waist apparently fully forward flexed. The film occupied some hours and the total of the periods during which the plaintiff was doing these things was comparatively short, but I have to say that what I saw in the film was totally inconsistent with the picture put before me and the medical practitioners. The plaintiff said, and I accept it, that it grieved him to see his wife doing work which she should not have been doing if she had an able-bodied husband to do it for her, and his wife candidly admitted that there was some pressure on him from her in relation to this matter. He said, and I accept it, that he suffered a great deal of pain 9 10 20 30 40 50 60 -- 9 of 13 -- ~;l and distress after the episode. Notwithstanding that, I repeat that what was seen on the video was quite inconsistent with the plaintiff's evidence and his previous complaints to doctors. Each of the doctors during the course of the trial was shown the film and each said that 10 the plaintiff's abilities in relation to flexion were far greater than he had been led to believe. In the result, I cannot accept the case put forward as to the extent of the plaintiff's disabilities. I think that he is capable of light work, and I so find, either in self-employment or as 20 an employee, and that he will continue to have that capability for some time in the future. Damages will be assessed on that basis, after allowing also for the contingencies associated with his pre-accident condition. As to what the plaintiff might do, there is one suggestion, 30 and that is that he could return to taxi driving. Two of the medical men were asked about this. Dr Douglas said that he thought the plaintiff could return to taxi driving, but the only apparent problem drawn to his attention was that of lifting luggage, which the doctor thought the plaintiff 40 could manage this. Whilst the plaintiff might be able to manage it, one would think that it would involve serious risks of further injury. When the matter was discussed with Dr Watson, however, he pointed out that one of the plaintiff's problems, and I accept that he has this problem, 50 is that he cannot sit with comfort for any length of time, and in these circumstances taxi driving or driving of other vehicles for any significant periods would, I think, be beyond him. - 10 60 -- 10 of 13 -- I turn to the economic aspects of the matter. The submissions of both counsel were to the effect that the plaintiff's history shows entrepreneurial talents of a high order,· the submission on the part of counsel for the plaintiff, of course, being directed to the extent of the 10 plaintiff's ~osses and that of counsel for the defendant being directed to the extent to which he could be expected to avoid any loss. For myself, having heard the evidence and considered the plaintiff's history, I think that he certainly has the capacity to see good opportunities for 20 investment or the acquisition of businesses and so forth, but a capacity to exploit the situation on a long term basis is a very different matter. The plaintiff was engaged in a variety of different enterprises with various degrees of success, although I take account of the fact that there was 30 no doubt that he did have steadily increasing disabilities. In assessing his loss one must take into account the fact that he was in partnership with his wife in the various ventures. There is authority to the effect that where the profits of a partnership business are basically the results 40 of the efforts of one person, the other partner usually being a partner only for fiscal purposes, the whole of the loss of the partnership can be attributed to the active partner if he is a plaintiff in an action and it is alleged that as a result of his being injured the profits of the 50 partnership have been diminished. However, it seems·that in the case of the plaintiff and his wife she was in all the enterprises a partner in the true sense, taking her share in the work, and in these circumstances the loss which the plaintiff might recover is his own loss only .. ---...... 1 1 60 -- 11 of 13 -- I have had a mass of material put before me both in oral. evidence and in documentary form, in relation to the assessments of past and future loss, but both at the end of the trial and after going through the material again I do not think that it would be a useful enterprise to try to get 10 down to any specific calculations. It seems to me that so far as loss up until the present time is concerned I can only fix on what I think is a sui table lump sum having regard to what I have found about the extent of the plaintiff's disabilities and to the contingencies to which I 20 have referred. For losses to the present, including losses of opportunity and including interest, I allow $50,000. So far as the future is concerned, I take 10 years at $220 per week net bringing up $90,000. $220 net is little over half of what I was told was the mean net income of income earners 30 in Australia, and I fix on that bearing in mind that the plaintiff is capable only of light work; that inevitably, one would think, he would have periods of unemployment if he engages in employment or that he will have to obtain at least part-time assistance to do work which he would 40 otherwise have done himself in his own businesses; . and that his capabilities will diminish as he gets older. For general damages, including the possibility of future surgery I allow $45,000. For specials I allow $2,500. For future medication, I considerably discounted again for the contingencies I have mentioned, I allow $2, 500. So far as interest is concerned I allow interest on $15,000 being part of the $45,000 in the sum of $2,000. Interest over 10 years would be about $3,000, but I think that that is far too long a-p~ri~~, and for that reason I have discounted to $2,000. _, . ... 12 50 60 -- 12 of 13 -- . .. JUDGMENT The total of the sums which I have mentioned I calculate to be $192,000. I give judgment for the plaintiff against the defendant for the sum of $192,000 with costs to be taxed. - .. 13 10 20 30 40 50 60 -- 13 of 13 --