Campbell v Shaw Industries Pty Ltd [1990] QSC 412

_,,,_., ,,-, '1- 10 20 IN THE SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION BEFORE MR. JUSTICE MACKENZIE BRISBANE, 10 DECEMBER 1990 No. 1183 of 1990 --~ .. _._. .. ,,,...,~,,-~.,..,.,, . ..,.....,~-; ! REVISED COPIES ISSUED : l Court Raportin'.J BL:reau \ Dc1te, // / / / Y/ (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Chief Court Reporter, Cour·t Reporting Bureau.) . BETWEEN: ALLEN CAMPBELL -and- SHAW INDUSTRIES PTY. LTD. trading as TECNO PLASTICS JUDGMENT Plaintiff Defendant HIS HONOUR: In this matter, the action will be 30 dismissed. There will be judgment for the defendant with costs including reserved costs, if any, to be taxed. I publish my reasons. 40 50 60 1 10 20 30 40 50 60 -- 1 of 14 -- IN THE SUPREME COURT OF QUEENSLAND No. 1183 of 1990 Before Mr. Justice Mackenzie BETWEEN: AND: CATCHWORDS: Counsel: Solicitors: ALLEN CAMPBELL SHAW INDUSTRIES PTY. LTD. trading as TECNO PLASTICS JUDGMENT - MACKENZIE J. Delivered the 10th day of December, 1990. Plaintiff Defendant s.M. Kiefel Q.C. & M. Grant-Taylor for plaintiff S.C. Williams Q.C. and W. Campbell for defendant Cooke & Hutchinson for plaintiff Morris Fletcher & Cross for defendant Hearing dates: 12th - 15th November, 1990. -- 2 of 14 -- IN THE SUPREME COURT OF QUEENSLAND BETWEEN: ALLEN CAMPBELL SHAW INDUSTRIES PTY. LTD. trading as TECNO PLASTICS JUDGMENT - MACKENZIE J. No. 1183 of 1990 Plaintiff Defendant Delivered the 10th day of December, 1990. This is an unusual and tragic case. The plaintiff is a man who is now confined to a wheelchair with no feeling below the tops of his thighs. There is no orthopaedic reason for this and thus an important component of the evidence has come from psychiatrists. There is no suggestion of malingering. This was expressly not relied on by the defendant. There is no doubt that the paraplegia that now exists has its origin in an hysterical condition. The psychiatric evidence has explored in detail the issue of development of this condition. However, there is also a threshold question, whether, assuming that the plaintiff has suffered an injury which led to the development of the present condition, such injury was sustained in circumstances for which the defendant was liable in negligence. The incident pleaded was that the plaintiff, in th~ course of his employment, was engaged in loading bags of plastic powder into a PVC machine whilst standing on a step-ladder, and -- 3 of 14 -- 2 that the step-ladder became unsteady and moved, whereupon the plaintiff fell upon his back and was injured. The negligence pleaded was that the defendant, or its servants or agents, were negligent in:- (a) failing to take any or any adequate precautions for the safety of the plaintiff while he was engaged upon his · employment; (b) exposing the plaintiff to a risk of injury which could have been avoided by reasonable care; (c) failing to properly supervise the plaintiff while he was engaged upon his employment; and (d) failing to observe that the plaintiff was in a position of peril in all the circumstances. There is also a further or alternative allegation of negligence by failing to take all reasonable precautions for the safety of the plaintiff while engaged upon his employment and providing safe plant and appliances and/ or a proper and safe place to work and/or a proper and safe system of working. The particulars relied on were that the defendant was negligent in:- (a) providing steps for the plaintiff which were not stable; (b) allowin~g the plaintiff to use steps which were not stable; (c) requiring the plaintiff to carry a heavy load upon steps which were not stable; and (d) requiring the piaintiff to··'work in a confined space. The ·plaintiff's evidence was :that on the evening of J 11th April, 1980 (a Friday) he was engaged in the course of his duties in loading plastic powder from a bag into a PVC -- 4 of 14 -- 3 manufacturing. machine while standing on a step-ladder. This ladder was not attached to the machine or otherwise secured. Because of his short stature, it was necessary for him to put one foot on portion of the machine and one on top of the ladder to pour the powder into the hopper. As he .. did this the ladder moved and he became unsteady. He said that he tried to prevent the bag of powder from falling and spilling on the floor, but. in trying to regain.his and its stability, he fell from the ladder striking his back on part of the machine as he fell. He landed on his bottom on the floor. He said that this happened 10 to 15 minutes before the shift ended. He said he told a workmate named Richard, a New Zealander whose surname he did not know, who, other evidence confirms, was employed at the plant during the relevant time. The man, Richard, was not further identified and was not called to give evidence. The plaintiff finished the shift, but went home with a painful back. and went to bed. The following morning he was in great discomfort. It is at this point that the evidence diverges in several respects. What is not in dispute is that, after an episode of pain that occurred after an unsuccessful return to work, the plaintiff began walking with the aid of two walking sticks. Thereafter his condition did .not improve and then in August 1982 a further incident occurred after which, but not immediately after which, he became wheelchair-bound with the condition of hysterical .. ;parapleg_ia from which he still suffers. The second i~cident was a consequence ,of the plaintiff's unhappy relationship with his then son-in-law. I am satisfied -- 5 of 14 -- th,ft Mr. Campbell had always been a conscientious worker and even before his daught·er' s marriage had formed an adverse opinion of his prospective son-in-law·. The particular i"ncident in which Mr. Campbell suffered a fall was precipitated by the son-in-law resigning ·· from his employment · in circumstances which, in Mr. Campbell's estimation, demonstrated irresponsibility on his part. Words were exchanged and Mr. Campbell's sticks were kicked away from under him with the result that he fell to his knees. Mr. Campbell says he fell on a concrete step. ·Mrs. Campbell says he fell on a carpeted area. Precisely where he fell is not important because I am satisfied that he would have jarred his body in either event. - ram also satisfied that Mr. Campbell suffered considerable humili"ation in the incident because, as he said during his cross-examination which included several fiery exchanges with counsel:- "He came in with my daughter and his two children, big mouth, saying that he couldn't get on with the. foreman at work so he jobbed him. That was his exact words. O~ course I starteq up and said to him, 'Isn't that a bit fool·ish? · You have got responsibilities now. 1 He just went stupid, hit me first and knocked my sticks out. He would never have been able to do that to me if I hadn't been like that." ~ ::"'",:, ,, On p-b9pt t2th October,. 1982 the question of obtaining a wheel9hair for him was raised with the Department of Health and Community Services at Redcliffe and one was subsequently provided for him. It ~s also conveni~nt to mention at this point that the pl~jntif( .un~~rw~nt a ~iscogram and a myelogram in th~ investigation of his comp_laints of pain. There was degeneration at L3-4 and L4-5 typical of a man of his age who had done heavy -- 6 of 14 -- 5 work throughout his working life. The preponderance of evidence is that any injury which caused. the plaintiff to. suffer the discomfort of the~kind. described following the iIJ.itial incident might have involved temporary aggravation of the degenerative condition but.was minor in nature from the orthopaedic point of view and certainly would not, from that point of view, have accounted for the plaintiff's difficulty in walking subsequently. I return now to the divergence in the accounts of the incident and of events in the period following it. I have already indicated that the incident was alleged to have happened ' on Friday, 11th April, 1980. There is no doubt that the. plaintiff's general practitioner, Dr. Millett, came to visit him, apparently on Monday 1 4th April, 1980, because that is what Dr. Millett's records show. However, that introduces a discrepancy with the plaintiff's evidence because he maintained that he had been in such pain that the doctor was called on the i day after the accident, which would have been. Saturday 12th April, 1980. The date of the accident recorded in Mr. Campbell's application for workers' compensation is 11 th April, 198.0.. This was signed by him on 17th April, 1980. The plaintiff said that on the day after the accident he attempted to get out of bed to go to work but could not.· There is no basis for thinking that he had to work at the weekend at that time, so his recollection must be wrong in that regard. The plaintiff also said that the day after Dr. Millett called he tried to go back to work but he only lasted about half an hour because he tried to lift a bag of powder but could not -- 7 of 14 -- 6 raise :i. i: above hls :waist.\ Dnce again, that cannot be reconciled· with Dr. Millett:'s evidence as to the:date of his first visit. The~ evidence from Dr. Millett establishes that he ordered physiotherapy for the plaintiff. ' According to the doctor's records, he saw him on 18th April, 1980 and noted "much better - continue? - compo" arid again on 26th April when he noted "back much better". As a result of the latter examination he certified that -Mr. Campbeil was fit to resume work on 27th April, 1980 (which would have been a Sunday) . From the records of the d~efendant, tne plaintiff was paid for seven days I work, three in the first pay period following 27th April, 1980 and four ih the second pay period. The pay periods ran from the Thursday of each week. In the second pay period the Monday would have been the Labour Day Holiday. On 10th May, 1980 Dr. Millett referred the plaintiff to the Prince Charles Hospital. The evidence that I have just set out above is consistent with a statement taken from the plaintiff for workers' compensation purposes at the Prince Charles Hospital in which"the plalntiff says that he went back to work on 28th April, 1980 and worked until 8th May. In evidence, the plaintiff denied workingJfor this period, at least initially. It is ~lso by no means certain that he conceded the accuracy of that evidence totally at any stage. 6rice again it indicates that his recall was cl~arly faulty. standing alone, and given i:he plaini:iff's cbndit~on and the lapse of time since i:he accident, this kind of confusion might z • not be of particular sfgnificance except i:o demonstrate that the plaintiff is not now an accurate historian of the sequence of -- 8 of 14 -- 7 events at the relevant time. However, there are some further factors that have to be weighed in assessing whether the plaintiff has established, on t.he balance of probabilities, that the<event that triggered his present condition, or at least the precursor of it, was the fall from the ladder. It is that which, on the pleadings and upon the way the case was conductec!-, is alleged to constitute a consequence of an unsafe system of work. On 17th April, 1980 the plaintiff signed an application for workers' compensation (ex. 15). The body of the form was filled in by the plaintiff's wife from information given oral~y to her by him. The description of how the injury occurred is in the. following words:- "Filling hopper with bag of material at top of steps. Bag slipped, tried to grab it before it hit floor and pulled back out." There is no reference to the plaintiff falling from the ladder (which he described as "steps" in his evidence) or of his striking his back on the machine. I note that the "nature of injury" is described as a "strain", although in view of .the categories suggested in the form itself, I do not tre~t that description as having any particular significance. On 30th April, 1980 Dr. Millett, certified, following an examination on 26th Aprtl, 1980, that Mr. Campbell was "suffering from low back pain whic!1 he states is caused by lifting at work". Once again, there is no reference to a fall. This certificate precedes the time whe~ Mr. C~mpbell returned to work for the period of some days at the end of April and early May 1980. Therefore the "ltfting at work" cannot be referrable to the further discomfort that Mr. Campbell felt following his return -- 9 of 14 -- 8 to work and therefore· must be referrable to the description of the original injury. As previously indicated, the plaintiff was admitted to Prince Charles Hospital on 10th May, 1980. Dr. Leslie John Griffiths took a history from him that day. Dr. Griffiths, at the time of giving evidence, had no recollection of the patient but said that the notes that he had recorded at the time of his ex~mination indicated a complaint of moderate to severe pain in the lower lumbar region. The history given was of pain occurring while carrying a sack of powder up a ladder a week earlier. The . patient had reached out suddenly to prevent one of the bags falling and in so doing precipitated an acute episode of back pain. He had physiotherapy for a week but a relapse had occurred ori the Friday prior to his admission to hospital (i.e. the day before his admission) with the re-emergence of symptoms. Once again, there is no mention of a fall. At the time of taking the history, Dr. Griffiths had been qualified for two months but said that if it had been said that the patient had fallen from a ladder"he would, under normal circumstances, have recorded that as part bf the salient features of the history. On ~hejsame day, another medical practitioner, unidentified at·the triai, recorded in the Prince Charles Hospital notes:- "Injured back at Jbrk one week ago lift"ing. Improved with. physJ~. . Acute exacerbation ·yesterday." It is not cl:ear whether this is merely a summary of the history previously i::"ecorde:d or ·a fresh history. However, on 13th May, 1980, Dr. Kufinematin ~e6orded a hi~tory of~~ "Back injury at work 4/ 52 ago lifting bag of cement. Gradual onset of low back pain eased with physic. -- 10 of 14 -- 9 Return to work gave recurrence of low back pain and associated left sciatica." Once again, the injury as described as a lifting injury, there is no suggestion of a fall having occurred. On 5th December, 1980, Dr. Irvine, an employee of the Workers' Compensation Board, examined Mr. Campbell and recorded: - "Two periods of incapacity with back injury after lifting a bag of cement." Dr. Irvine conceded that his note was ambiguous in that it may have been referring to the second incident rather than the first as a lifting .incident. In the circumstances, ~ treat Dr. Irvine's evidence as neutral on the subject. On_ 10th June, 1981, Dr. Millett wrote a note either to the ' Prince Charles Hospital or to Mr. Campbell's solicitors saying that "Mr. Campbell developed low back pain after carrying heavy sacks at work". medical condition. He then went on to describe the plaintiff's Dr. Millett gave e,vidence that the plaintJff had,. in fact, told him right from the outset that he had suffered a fall. He was cross-examined at some _length by Mr. Williams about the apparent discrepancy _between the documents that he had written and his verbal evidence. He maintained however that right from the outset the plaintiff had said that he had fallen from a ladder and that the descriptions that he (Dr~ Millett) had used in the documents must have been the product of inadequate recording by him._ The earlie 9 t documentary reference to a fall seems to be in the evidence of Dr. Tony Blue in a report dated 2nd June, 1981, relating to an examinatiop on 27th May, 1981. -- 11 of 14 -- 10 One other matter which reflects on the credibility of the plaintiff's ~ase is his and his wife's lack of recollection of an occasion in 1976 when. the plaintiff claimed workers' compensation for a back injury after falling from a forklift. The injury was undoubtedly minor, as it necessitated only four days·off work. Nonetheless, Mr. Campbell refused to acknowledge that· he had made the application when it was drawn to his attention. His wife said she could not recall the incident. It was only late in the trial that the need to prove the application strictly became unnecessary because of a concession on behalf of the plaintiff that it was an application signed by him. In my view the preponderance of evidence suggests that initially the plaintiff did not complain of injuring himself in a falr. In the result, I am not satisfied that the plaintiff has discharged the onus of establishing that the event that precipitated his decline into the condition in which he now is was a fall.from a ladder at his place of work. Had I been satisfied that there had been a fall from a 1adder at hi~ place of work, the system of work described by the plaintiff would be, in my view, inherently unsafe and if an injury occu:r-red to an employee as a result of the employee faliing in 'the ·way desdribed by the plaintiff, there would be clear evidence of negiigerice on the part of the employer. However, it was not pleaded, nor was it submitted, that I should find neglig~nce on ~ny· other view of how the plaintiff cam~to suffer the pain from ~hich he was obviously suffering when Dr. Millett first saw'him on 14th"April, 1980. -- 12 of 14 -- 11 The disparity between Mr. Campbell' s evidence as to the causation of the injury and the timing and duration or the treatment and of ~is return to work, which was supported to some extent by his wife although not in a way that indicates convincingly that she has a clear memory of events after 10 years, and the objective evidence as to those events would place great difficulties · in the way of making any positive finding as to whether the plaintiff suffered any injury at the work place involving liability let alone the one pleaded. I should also mention two other matters. The first relates to the reporting of the accident. There is no report in the accident book kept at the employer's premises. The plaintiff said that he reported it to his workmate, Richard, whose absence I have previously noted. On the workers' compensation application it is recorded that the incident was reported to "Ben Erikson". Mr. Eriksson said that he was not aware of the incident until he became aware of the workers' compensation claim. It may be that the plaintiff assumed that the matter had been reported to Mr. Eriksson. I do not draw any inference against him because of this. The second is that when Mr. Eriksson was called at a late stage of the trial evidence was given for the first time that one would have expected a female packer to be at the end of the machine from which the product emerged at all times when the machine was opera ting. Mr. Campbell was not cross-examined about this. In the circumstances, any inference that the plaintiff had the opportunity to call someone who may have witnessed the accident or its aftermath or had the opportunity to report it to -- 13 of 14 -- someone else weakened by 12 in the near vicinity the failure of the is, at the least, defendant to put greatly it to Mr. Campbell and in the circumstances this aspect does not play any part in my decision-making process. One cannot help feeling a great deal of sympathy for the plaintiff. However, the findings that I have made above that he has not discharged the onus of establishing that the event that has led to his present condition was a fall from a ladder at his place of work makes it inevitable that his claim must fail. The action fails purely on findings of fact. In the circumstances of this case, assessment of damages that would have been recoverable had liability been established will serve no useful purpose, so I refrain from doing so. The plaintiff's action is dismissed with costs (including any reserved costs) to be taxed. -- 14 of 14 --