Doktor v Hawkins & Anor [1992] QSC 137

( \__ TRANSCRI:l:'T OF PROCEEDINGS State Reporting Bureau, 4th F1ocr.; -To?-e-..Law Courts . George . Street, BRJSBANE. 0. 40QQ "Tet (07) 227.4360 , (Copyright in this tra.JL~ript is vested i...."l. the CroWTI. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau.) SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION de JERSEY J No 160 of 1985 ISTVAN DOKTOR ·' r Plaintif.f / and \. CHARLES HAWKINS 1st Defendant and VERA HAWKINS 2nd Defendant _CAIRNS .. . . DATE 3/2/1992 JUDGMENT 1 -- 1 of 8 -- 030292 D.2 ---.:1~: . 'I :1 •. , HIS HONOUR: The plaintiff's. case i.s that .he Has injured on. ! I 6-September 1982 while employed as a labourer by the defendants. The plaintiff and_the first defendant were engaged in moving bags of borax out of the shed-depicted in Exhibit 2 for dumping in a nearby gully. Each bag we1ghed 10 10 20· II I I I I I I I I 30 I i I I I iI III I I I 40 I II . ! -I I! L 50 I 60 about SO_kilograms. There were about a. dozen of thEm .in the shed in various states of h~rdening through exposure to weather. Mr Hawkins, the first defendant, would drag a bag from the shed"onto the landing shown in Exh~bit 2. The plaintiff used a wheelbarrow to cart the bags to the gully. Mr Hawk.ins would push the bag off the landing into the wheelbarrow below. The plaintiff had the wheelbarrow positioned so _that about-one quarter of it was under the edge 9f the landing. It seems tobe corrunon ground that, as one bag fell into the barrow, the force of the bag tipped ~ one side of the barrow up so that a handle of the barrow hit the plaintiff in his thigh. The plaintiff says that that knocked him to the ground and that he thereby injured his -- back. The major-point of difference between the accounts of what happened concerns whether-they were moving the bags one at a time. The_ plaintiff says that he had two bags in the barroH and was lifting-the_ legs of the barrow preparatory to moving it off when a third bag fell unexpectedly from the landing. On the other hand, Mr Ha~kins said that, to his recollection, as he put it, they.were moving only one bag at a time. Mr Hawkins said that the plaintiff was there with the empty barrow waiting while he, Mr Hawkin.>, slid the bag from the landing into the barrow. It was not, therefore, a -Govt. Printer, Old. 2 20 30 c· )! 40 (__ \ ' 50 60 -- 2 of 8 -- ~- .. 10 2.0 \, ___ / :030292 D.2 case of the bag failing accidentally over the ·edge. Mr Hawkins also said that the plaintiff did not fall to the ground during the incident and that, after saying that he was all right, immediately resumed work. 10 I have decided that I should resolve these issues of fact against the plaintiff. The. presence of two bags in the barrow-already was a very important feature of the plaintiff's account, yet significantly, to ~Y mind, there was no mention of it in the plaintiff's own written 20 statement, Exhibit 32, made only a ~onth or so after the incident occurred. Neither ii there any mention in that statement of the plaintiff's claim to have fallen to the ground. I concede that that was perhaps a less significant omission, but nevertheless it should ordinarily, one might 30 30 ~ have thought, have been there. The statement, Exhibit 32, written out by the plaintiff in his own hand, is in my consideration a significant document and it does asswne '· great weight in a case like this, ·heard almost 10 years after the relevant incident. I should say that I considered -lO 40 Mr Hawkins was a careful and therefore reliable witness: .. ! 1 There was some other ground for doubting the plaintiff that i ·.1 I arises from my acceptance of the evidence of Mr Parker, to 50 l the effect that before this incident the plaintiff had spoken of getting workers' compensation out of rJir Hawkins-. 50 The plaintiff denied saying that, but I did not accept his denial. Mr Parker qave his evidence on the point in~a halting fashion but _ 4id find him a credible witness when he said those things. 60 ~___;____.:.__~ 60 -Govt. Printer, Old. 3 -- 3 of 8 -- I ··1 o3o292D.2 1 10 20 I find, therefore, th~t the iricident happened as described by Mr Ha0kins, The dropping of the single bag into the waiting wheelbarrow was deliberate, not accidental, and the plaintiff was below, as it were, wa_iting for that to occur. I find that the.plaintiff"did not have the legs of the wheelbarrow lifted at the time; there would hav;e been no need for him to do that. He probably had his hands on the handles to steady the wheelbarrow but its legs were probably on the ground. · Mr White, who appeared-for the defendants, submitted that because these findings would not support the plaintiff's case as pleaded- se~ especially paras 3(d) (ii), 3(f) (i) and 3(f) (ii) of the amended statement of claim- that is the end 1 of the matter. 30 1 Certainly the plaintiff's case hung very II II I I I ! I ~0 \ II I l i ~ firmly on the accidental addition of one bag to a barrow already containing two others and the evidence of the plaintiff's expert-witness, Mr McDonald, was at least ' largely directed to that ~ituation: but I nevertheless consider that, if ·the plaintiff's particulars of negligence are sustainable with reference to the facts, as I have found them, then the plaintiff should succeed. The question, therefore, is whether in these factual circumstances the plaintiff has shown the defendants to have 10 20 1 3o 40 50 50 breached their duty·of care. The formulation of that duty . and the discussion 6f when it \'>~ill be found to have been breached appear in cases iriclU:ding Wyong Shire Council v Shirt 146 CLR 47, Vozza v Tooth & Co Limited 112 CLR 318-9 - and Neill v New South Wales Fresh Food and Ice Pty Limited 60 60 -Govt. Printer, Old. 4 c/ Cj· -- 4 of 8 -- ,.... / 0-.30292 D.2 108 CLR 369~70, those being the passages to which I was referred, helpfully, .by counsel. I am not satisfied that there was a foreseeable ~isk of 10 injury to the plaintiff in the-first defendant's sliding the 10 50 kilogram bag over the edgeof.the two metre high landing into the waiting barrow, with wheels on the ground, notwithstanding that the plaintiff was then holding the handles of the barrow to steady it. But evep if that operation did involve what others might regard as a 20 20 foreseeable risk of injury, then in my view a reasonable man would not have refrained from participating in that operation or setting it up or have adopted an alternative approach. That is because in my view the risk was too small. and there was no reasonably practicable way of minimising or 30 30 -lO i ~ eliminating that risk. Requiring a mechanical lifting device for such an operation - see para (e) of the particulars - would have been unreasonable and that '· suggestion was not pursued in the ~vidence. The other alternatives discussed by Mr McDonald in his evidence and in his reports all involve Borne risk, including two men lifting each bag from the landing down into the barrow, which was to • 1 my mind the most attractive of those alternatives. In the I j end, and having carefully considered the evidence, I am not I i- satisfied that there was any alternative method available 50 which would have minimised or eliminated any small risk of injury which was involved in dropping ·the bag into the barrow with the plaintiff there steadying it with the handles and the legs on the ground. , 60 -Govt. Printer, Qld. 5 1 40 Ii I 50 60 -- 5 of 8 -- 030292 D.2 l I therefore ~ind against t~e pla~ntiff in relation to liability. The plaintiff was born on 26 August 1936, so- that he was 46 10 years old when injured and is 55 now. He suffered an injury 10 to the lower lumbar inter,...,vertebral disc. After some reluctance he did undergo a decompression of a nerve root in May 1983. He is now permanently incapable of any heavy physical work~ He-cannot practicably be retrained into clerical work. There.was,. however, degeneration in his back 20 20 I 30 ,0 I I I I -~ already, such as might itself have disabled him in time, and that, together with another circumstance, raises the quest~on whether his_ current disabilities are referable to the ac;eident. That other complication from the plaintiff's side is the circumstance that by late 1983 the disabilities clearly referable to the accident had largely subsided. The symptoms from which the plaintiff presently suffers are, on some of the medical evidence, largely at leas~ referable to the degenerative change w~ich was.~here before this - incident. .T-here is the possibility that the incident precipitated or accelerated those symptoms, but I do not think that that is a .. probability because of the substantial break in symptoms ir:l late 1983 on the evidence, for example, of Doctor Clark: I do not1 ·however, exclude. the probability ~~that some of: ~is present~ symptoms are. referable to the 50 60 accident. I take. ·the vi_ev-r- that. his current problems are the result both of the ac~ident and the degeneration, although to a large extent referable to degeneration.- I take that view notwithstanding the break at the end of 1983 to which I have referred and I rely on evidence such as that given by -Govt. Printer, Qld. 6 ::o I I I I I III I I 40 50 60 c~) c -- 6 of 8 -- / "· .. I 030292 D.2 Doctor Beecher andJ~tatements such as those to be found in Doctor Douglas' report, Exhibit 21. It is ext~emely difficult to be any more pre~ise-in this case about the causal relationship between his present 10 symptoms and the accident and in assessing the extent to which the present sympto~s are referable to the accident. For pain, suffering and loss of amenities, I would have awarded $25,000 and I would hav~ attributed two-thirds of that to the past allowing interest at 4 per cent per annum 20 1 for nine and a half years, which would amount to $6,335. ' iI i i II 30 I i I I i II I I I I40 ! II I The plaintiff should recover his net lost wages to the end of 1983, which would amount to approximately $17,000- see Exhibit 25 - assuming full-time work. His work history disclosed at p 4 of Exhibit 3G would however warrant discounting that further to approximately $12,000, in my view. From 1983 to now and hereafter damages for reduced earning capacity should have- been assessed as a lump sum. Any more precise assessment would be unduly artific~al. Allowing for the indefinite extent to which his present symptoms are referable to the accident, the prospect of t natural degeneration having led of itself to inability to work, the doubt about the availability of full-time work and -other ordinary contingencies, I would have set that 50 I I component at $30,000. I again say that I appreciate that that sort of assessment -is necessarily vague but it is the best I can do and I do consider it justified on the I I -I 10 20 I 30 ! I I I I I 40 50 evidence. I -~6~0---l·--------------------------'-"'------------'·· 60 ' -Govt. Printer, Old. 7 -- 7 of 8 -- ....... -·. 030292 D.2 "' l ' ' Special damages are agreed at $15,353.29; no interest was claimed on that sum. For future pharmaceutical expenses there was a claim of $2,500 but there would have to be a discount in respect of that amount to reflect-the limited 10 relationship between his current disabilities and the 10 accident, and I would have allowed $500 on that account. There was a Griffiths v Kerkemeyer claim. I have found there was some exaggeration in Mrs Doktor's evidence and the evidence from the plaintiff as to the extent to which she 20 20 had necessarily and reasonably to assist the plaintiff in alleviating his condition. Again, the assessment must be very broadly based. I would have allowed $12,000 and attribute seven-eighths of that to the past, allowing interest at 6 per cent per annum for nine and a half years, 30 30 ' ! which would amount to $5,985. I I My total assessment would therefore have amounted to '·· $107,173.29 of which $37,830.06 would be repayable, leading to a net amount for judgment of $69,343.23. c40 There will be judgment for the defendants against the . I l -plaintiff, with costs to be taxed. . so 50 60 60 -Govt. Printer, Old. ·. 8 -- 8 of 8 --