Cameron v Giltony Enterprises Pty Ltd [1992] QSC 150

(/ ( TRANSCRIPT OF PROCEEDINGS ' . / ' \ . ,J. l \; (7.) .. 1 State Repornng ~~u. · ,/ · -'"'-,. ·. '"'- ·· 4th floor, The Law Courts, George Street, BRISBANE. 0. 400Q Tel. (07) 2Z7 .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.) SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION DEMACK J No 27 of 1989 JAMES KENNEDY CAMERON and GILTONY ENTERPRISES PTY LTD MACKAY REVISED COPi:::S ISSUED Cour"i t=;eporting Bureau Date 1 I 4 I 'f::t. Plaintiff Defendant ~- • I DATE 3/4/92 JUDGMENT 1 -- 1 of 14 -- 10 20 30 '40 50 030492 JUDGMENT HIS HONOUR: Mr Cameron was born on 26 June 1953. He alleges that he sustained an injury during the course of his employment by the defendant on ·9 April 1986. He says that on that day he was asked to assist in moving a large piano down a set of stairs in the hotel. 'This was pleaded in paragraph 4 of his statement of claim. The statement of claim is, in fact, a very full assertion of the relevant facts, one of which was the assertion about the size of the piano. Evidence for the plaintiff was called from a number of witnesses including Dr Low. Dr Low has qualifications in occupational medicine and is a specialist in occupational medicine. Specifically he is a member of the American College of Occupational Medicine. This means that his training and perspective is not exactly the same as that of witnesses that might otherwise be called in respect of back injuries. Howeve:r, that does not mean that his opinions are in any way diminished. Rather, in some respects it seems to me that is ·opinions were enhanced by th~s different perspective in training. Two aspects of his evidence were contentious: first of all, his evidence about the nature of the lift to which the plaintiff says he was exposed, and to the consequent . stresses upon his spine; a. second aspect of his opin~on which was contentious was the opinion.as to the nature and effect of st~esses on the spine. Dealing first of all with his. evidence about the particular (· 10 20 CJ 0 30 0 40 50 ----~6~0-4--------------~----------------------~~--------------~----------~ 60 Govt. Printer, Old. 2 -- 2 of 14 -- 1030492 JUDGMENT ( 1.ift, he _gave an opin~on to the solicitors for the plaintiff ,, 10 20 on 11 February 1987 which is Exhibit 4. In that he refers to various matters including some material from the National Institute for Occupational Safety and Health in the United States. He concluded his letter by asking for information about (a) the weight of the piano, and (b) the distance between the mid-point between the ankles and the handle at the origin of the lift. The reply is not in evidence.but his subsequent letter of 15 Ap:ril 1987_ is Exhibit _5. In that letter he estimates the action limit on certain bases. Also he indicates that he understood the piano weighed in all 250 kilograms. He was asked questions about these matters but it was not suggested to him that the piano was ( much lighter than that or of a shape other than the general 30 c 40 configuration of upright pianos. IThe cross-examination about this is on page. 40. ;In the absence of cross-examination to suggest that the~e was some other style of piano being lifted of a far less weight or a much ·easier weight distribution than is commonly .found in pianos, it seems to me there is sufficien~ evidence before ( me to hold that the piano in question was of a weight of about 250 kilograms. All evidence must be weighed in the 50 60 light of the capacity of the parties to adduce evidence. The piano in question was in the possession of the defendant at the relevant time, and consequently·, if there were some other weight that could be put before ,me.~ it could have come conveniently from the defendant. However, i~ the circumstances where there is clear d~awing-of attention to the issue of the piano in the pleadings and where this Govt. Printer. Qld. 3 10 20 30 40 50 60 -- 3 of 14 -- 10 20 030492 JUDGMENT material 'is piaced before me,· I do not see anything inconsistent or inherently improbable about the evidence and I accept it. Mr Cameron says that four people were involved in lifting the piano down a set of stairs and across a floor and onto a truck. He says that he was one of two people, in effect, at the rear of the piano as it was carried along. He says there was a rope around the piano which had in it a twist that gave the effect of a handle. He took hold of the loop handle in the· rope with his right hand and steadied himself with his left hand on the banister of the stairs. He says he was bent at the waist, an angle of probably 45 degrees or more. 30 Dr Low says that when four people applying themselves equally to the lifting of the piano lifted it, they will each lift ·62~5 kilograms which is not subjec~ to any criticism. ·However, once the people started moving the piano down the stairs other factors came into play. Dr Low 40 was cross-examined at some length upon the thesis ·that the·. 50 people at th~ lower end of the piano were carrying a much - greater weight and Dr Low accepted that premise. However, he was not prepared to say that the stress on the spine of those at·the back was any less. It seems to me clear enough that the posture the plaintiff adopted put considerab.le additional stress upon his spine once hestarted to move down the stairs. He was taking all of the weight in one . . hand so that the weight distribution through his body was not symmetrical. At page 36 Dr Low was asked: I·--···. 10 0 30 0 40 0 50 ~--~6~0~---------------------------------------·~---------------------------~ 60 Govt. Printer, Old. 4 -~--·· ----··----- --- ·-----·· .. ·-------- -- 4 of 14 -- ( (' \ 10 20 030492 JUDGMENT "What effect on the annulus do you say the lift had?-- Well, one purports it had a certain effect. Now, to quantify that clearly, nobody can do that despite what anyone says. One can look at the maximum permissible limit and see if it's over that, and then if, as well as that, the lift isn't symmetrical, then one can say that it was a· significant occurrence and, therefore, it would cause a significant amount of damage to the disc. But how much relative to the other stresses that the person's had throughout their lifetime is really scientifically, despite .what's said, a matter of conjecture. " ·· So the doctor clearly recognised the important impact of the asymmetical lift. Also_he drew attention to material which indicates that when joint lifting is undertaken the weight is never shared equally for a whole.host of factors. I am satisfied that according to Dr Low's evidence the lift in question exceeded the maximum permissible limit which he C estimated to be 50.46 kilograms in the circumstances which are mentioned in Exhibit 5. However, those circumstances c 30 never remain static. There must have been occasions as 40 50 60 Mr Cameron went down the steps that his arm was more extended and consequently the distance from the mid-point to the ankles to the_handle would change. Also the angle of his spine would not stay constant as he wen~ down the steps. I am therefore satisfied on the basis of Dr Low's evidence that he was exposed to a foreseeable risk of injury-in assisting in carrying the piano down the stairs~ I particularly accept Dr Low's evidence in cross-examination on pages 40, 41 and 42. Particularly at page 42 he makes the observation which must be commonplace that pianos "are very difficult objects to move, not.only because of the stresses on the. people but you have ·to ;try· to· preserve their integrity while you are doing.it." Govt. Printer. Old. 5 10 20 30 40 so 60 -- 5 of 14 -- ) \ 10 20 030492 JUDGMENT I am satisfied then that in instructing the plaintiff to assist in the removal of the piano the defendant, by its ' I· manager, was exposing the plaintiff to a foreseeable risk of injury. There is no suggestion that removing pianos was a commonplace activity at Prince of Wales Hotel. consequently, it may not be thought necessary that the owners of the hotel have available a trolley. However, the evidence in Exhibit 22 is that professional removalists would have removed the piano from the hotel to wherever its destination might have been for abo~t $150 to $200. This is quite a modest sum and would have removed the risk of injury to the plaintiff~ The second matter of some difficulty in this case is the 30 circumstance that the plaintiff says he performed this lift 40 50 60 on 9 April but reported no significant pain until about the 20th, or 18 April at the earliest. This matter took up a considerable part.of the time for trial and doctors were asked to express their opinion about how usual or unusual this was. It seemed to me that here Dr Low's experience was quite useful. He was asked in cross-examination: "This delay of riine days in the·onset of symptoms is really inexplicable, isn't it?-- It's probably inexplicable in the Australian context of workers' compensation. If you go overseas to a different type of compensation system you will be far more likely to find that sort of history simply because it is a no-fault type of system. So in the Australian context where the workers' compensation authorities like an immediate activity to induce the pain, then you typically ... don' .t get this type of history. Overseas you would be more likely to." · It is refreshing to hear a doctor acknowledge the impact ."!'' Govt. Printer, Old. 6 10 20 n~ \....../ 0 30 () 50 60 ~I -- 6 of 14 -- ( I' 10 20 ( 30 ( 40 I 030492 JUDGMENT that our legal system has on the aetiology of complaint. It seemed to me that that comment by the doctor was one that had substantial appeal to a trial Judge who listens to the kind of performance we go on with month by month from various specialists. His comment was also borne out by the contents of Exhibit 28 which is a statement by a Mr Staley. Mr. Staley employed the plaintiff in an honorary ~ashion to mow grass for two days around about 14 and 15 April. He is now deceased and his statement was tendered.. He said in it: "I was requestedby the Workers' Compensation Board to go in and make a statement. It was suggested to me that Mr Jim Cameron was required to lift heavy rocks while he was working for me. I denied this and I said that there was no such work involved. I have got no idea how the Workers' Compensation Board of Queensland would. get any idea that Jim Cameron had to lift rocks while working for me." I Also Dr Low's theory about the development of back pain and the influence of trauma on the spine seems to me to have much to commend it. While Dr Curtis wanted to steer away from it on the basis that he was involved in treating spines that were injuredrather than theorising about th~ mechanism of injury. it seemed to me to be quite consistent with the view that is often expressed about a degenerative spipe. In ( other words, what Dr Low is saying is that when pressure is applied to the spine there may well be microfractures of the · cartilage endpla t'es. This alters the metabolism and necessary fluid transfer to the discs. The doctor 10 20 30 40 50 50 60 acknowledges that this is only a theory but it is clear enough that there are many aspects of medicine which remain only theories upon which doctors are ':Prepared to act on the ·'-'::.:~ basis that the theory is a reasonable hypothesis. Consequently it seems to me that there is medical reason· for Govt. Printer, Qld. 7 60 -- 7 of 14 -- ·~-· 030492 JUDGMENT taking the view that although damage is done to a disc in a (.: particular incident, symptoms of that damage do not need to appear immediately. As I understood Dr Low's evidence in that passage I have quoted, it is not an uncommon experience overseas to find the onset of symptoms some days after the 10· 10 traumatic event. Dr curtis was asked about this and he said 20 30 --40 50 at page 46: "If such a force did occur and did-have some- effect on the disc, it is really inconsistent to have no painful symptoms especially for nine days?-- It is certainly unusual ·for there to be .such a delay but, on the other hand, it is not unheard of." The other orthopaedic specialists who gave evidence spoke of their experience going up to .five or six days, but Dr White, who was called by the defep.dant simply to give evidence about the probability of such an event, said that he certainly couldn't say it was impossible, rather that it was unusual. It would seem fairly obvious that it is only the unusual cases that end up requiring determination by the court, so that perhaps one's s_ense of what is unusual is rather deadened by sitting in trial Courts. It would seem to me that on the evidence of Dr Low I am •.. . satisfied that :the excessive lifting event caused so~e damage to the endplates of some of Mr Cameron's -lumbar discs; I am satisfied that the symptoms of this developed some days later at about 18 and 19 April. In addition to relying on Dr Low, I-aiso take the rather commonsense view that was taken by Dr Ander.son .. Dr.Anderson was the first doctor to whom Mr Cameron went. He attended ,0 30 CJ 40 0 50 60 60 Govt. Printer. Old. 8 ____ ___,j __ _ -----~----- -- 8 of 14 -- (\ i' 10 20 030492 JUDGMENT Dr Anderson on 21 April 1~86._ In-Exhibit ?_the doctor says: "When seen he was unable to walk due to severe lumbar back pain radiating to both groins; he gives a history of lift~ng a piano at work one to two weeks previously: he doesn't remember doing anything else strenuous that may have caused his back condition. " - If one prefers the other theory that Dr Low acknowledged existed, namely that back injury is caused by trauma, then the only trauma that occurred out of the ordinary to Mr cameron was the lifting of the piano. After he lifted the piano he certainly spent. the d·ay working· in the bottle shop but there he was dealing with objects that he was used to (' lifting. It is clear enough that he was experienced in lifting and used to doing strenuous work. What he was not ( 30 used to was lifting pianos and lifting them in .the awkward style that he adopted on the particular occasion. It would not be part of the ordinary course of his work in the bottle shop to try to lift heavy objects with one hand while holding onto a railing with the other. C' Consequently, I am not satisfied that there was any other 40 50 trauma that could have caused the injury to his spine and in this I rely also on the evidence of Mr Staley to which I have previously referred. - I am satis.fied then that on 9 April 1986 Mr Cameron was exposed to the risk.of injury when asked to lift a piano, and that in lifting that piano he did in fact injure his lumbar spine. It is clear from D~ .White's evidence that when Dr White saw Mr Cameron the symptoms he complained Of were. those of someone who had injured his spine. Dr White saw Mr Cameron Govt. Printer, Old. 10 20 30 40 50 -- 9 of 14 -- 030492 JUDGMENT I on 22 May 1986. 'The course of the plaintiff's disabili t_y since 21 April is well documented. He shows quite classically the symptoms of injury to the lumbar discs. He has had some periods in traction. He was in traction first of all in the Pioneer Valley-Hospital for two weeks at the 10 end of April, beginning of May 1986, and then again from 30 June 1986 to 14 July 1986. He was again in traction for two weeks in March 1989. In April 1989 he commenced working at Wormalds and remained20 there until September 1991. One of the very significant documents in the trial is a reference from Mr Stocker who is .a director of. the company·Ramford Pty Ltd which trades at wormalds Security Mackay. He says that Mr Cameron was employed as a security officer in the field and on security 30 sales. "I found Jim to be a very hard worker. However he had many days off work because of a back injury and was eventually retrenched because it was found he could not cope with the constant lifting of ·bags of coin,. etc. Should you require any further information, please contact me." That reference was given on 15 January 1992. That clearly 40 50 60 indicates that Mr Cameron is someone who has a strong desire to work but nas a serious back injury·which caused h~m constant time off.work and eventually cost him his job. Mr cameron was seen by Dr Cook in June 1990 and at that time a discogram was perfo~ed. Mr C~eron found the discogram a very painful experience and Dr Cook notes that after the discogram on 30 June 1990 the result·s wer:e. expl~ined to Mr Cameron. When Dr Cook came back to see him on Govt. Printer. Old. 10 10 0 30 0 40 0 50 60 -- 10 of 14 -- ·- ., ( ' '., . /. \ 'J 10 20 30 40 50 030492 JUDGMENT 2 July 1990 it was found that he had been.discharged by his general practitioner without any further contact. The interesting thing about the discogram is that Dr Anderson referred it to Mr Rossato in Townsville and Mr Rossato says that it should be taken with a grain of salt because he expressed the view that it may not have been properly administered. It is not in evidence whether Mr Cameron was lever informed of this sc~pticism because Mr Cameron certainly said that he regarded the pain he suffered in undergoing the discogram the.worst pain he experienced. It certainly would do nothing to reassure him if he knew that that was inflicted, in the opinion of one specialist, in a .way that told him nothing. ! •What appears now is that before 9 April 1986 Mr Cameron had .a degenerate spine. He would have begun to experience !symptoms from that some time in his .earl~ 40's, and possibly lin his. early SO's the situation would have developed to !something akin to what it is. now. These estimates are of 1 1 course only estimates and no-one can be certain of what will jhappen. However, clearly at present Mr Cameron has a !significant disability. He also is significantly overweight land that does not assist him in trying to work. so far as his damages are concerned it has been calculated in Exhibit 26 that if he had continued working as an attendant at the bottle shop his net.earnings since April 1986 would be $87,703. His earnings at Wormalds were $24,621 net. There are difficulties.about simply accepting ...:" the calculated figure. The first difficulty is that the 10 20 30 40 50 w ~ Govt. Printer, Qld. 11 -- 11 of 14 -- --------) .. 030492 JUDGMENT 1 defendant had terminated the plaintiff's employment on l9 April because the bottle shop was not trading profitably. Consequently he became unemployed on the day of the ~ . accident. It therefore is not possible simply without anything else to project his income'from that time on his 10 pre-accident job. On the other hand, the calculation is based simply on award rates. It appears from Exhibit 25 that during the. time Mr Cameron worked for the defendant he was paid considerably 20 in excess of the award rate, probably as high as over 70 per cent per week.'' He was experienced in the liquor . . .··· . . trade and might reasonably have been expected to find other work. Even though there may have been periods of unemployment, his proven capacity to earn well in excess of 30 award rates does, on the balance, justify a figure approximating to that calculated. So I will. ·allow the sum of $60,000 for past economic loss. He has r~ceived some :benefits from the ·Department of Social Security which need to be taken into account in assessing interest. I will 40 allow interest on the sum of $54;000 and assess interest in Jthe amoun·t of $19, 4SO. The total then .for past economic ~ loss, including interest, is $79,450: For the future it seems to me that, doing the best one can 10 0 30 0 40 50 50 ·With the evidence, I will allow him a further 10 yea~s' loss and allow that at the rate of $150. a week< ·· In addition, there must·be some slight amount added~to that to sort of cover the transition period beyond\ 10._ years: If he had not · been injured the onset of his disability would have been 60 60 Govt. Printer, Old. 12 -~~- ---- -- 12 of 14 -- ' (-·)'·. U,jU~:&~..c; u U.U~l•l.c.l" .L J, more gradual and would have allowed him the opportunity of 1: ·: adjusting to it. His injury has thrust him immediately into this significant disability. Without wanting to be precise on the calculation, I will allow the sum of $65,000 in all for future loss of economic capacity. 10 10 Special damages are set out in a schedule. The total amount of these is $12,451.59. Some $884 of this bears interest which I will allow in the sum of $300. The total then for special damages and interest is $12,751.59. 20 20 ( It was submitted by Mr Aberdeen that because of the high level of medical expenses in the past, there should be a ( very substantial allowance for medical and pharmaceutical costs in the future. It seems to me.that this cannot be 30 pressed to its conclusion because one has to allow for the 30 fact that in the future his pre-existing condition in theory · is catching up on his present disability and one cannot simply extrapolate the past into the future. I will ( therefore simply allow a lump sum without pretending to 40 justify it mathematically. For future medical and 40 pharmaceutical expenses I will allow the .sum of $8,000. ( In the past there has been a period when Mrs Cameron had to do things well over and above the ordinary currency of 50 domestic life. I will allow 60 hours of this at the rate of 50 $7 an hour. In addition there has been an expense in having someone mow the yard; The suggested-figure for this is $1,730 and I will allow the combined amount of _$2,150. I will allow interest on that item in the sum of $775, making 60 60 Govt. Printer, Old. 13 -- 13 of 14 -- ~)- 10 20 30 40 50 60 030492 JUDGMENT a total c;>f 2, 925 for that part of· ·the award. Clearly the : need for help with mowing will continue and I will allow the sum of approximately $10 a week for 10 years which produces " " a figure of $4,000. For pain, suffering and loss of amenities, clearly Mr Cameron has had a great deal of pain in recent years. This has seriously affected his family life and caused him great distress at ho:qte. He wi_ll contl,nue to have _some sort of problem but, as I have indicated, over the next 10 years or so the pre-existing condition will be in theory catching •. up with his present disability. For pain, suffering and . . . loss of amenities I will allow the sum of $48~000, $20,000 ·. 10 20 () of which will bear interest which I assess in the amount of c=) $4,800. The total then for pain, suffering and loss of amenities, including interest, is $52,800. The summary then is past economic loss including interest $79,450; future ec;:onomic loss $65,000; future medical $8,000; past Griffith and Kerkemeyer and mowing $2,925; future mowin~ $4,000; pain, suffering and.loss of amenitie$. including in·ferest, $52, 800; specials, including interest, $12,751.59. There will be judgment for the plaintiff against the defendant for $224,376.39, together with costs to be taxed. Govt. Printer, Old. 14~ 30 0 40 () 50 60 -- 14 of 14 --