Evans v Agouri Pty Ltd [1990] QSC 287

10 30 l,-.RE~1s'mco~is "jSSUED j _Court Reporting Bureau j Date, ,ib 1 f / 9.e:J IN THE SUPREME COURT OF QUEENSLAND - • • •-n • -•..,llr~w CIVIL JURISDICTION No. 1284 of 1987 BEFORE MR. JUSTICE KELLY S.P.J. BRISBANE, 4 SEPTEMBER 1990 (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,Court Reporting Bureau.) BETWEEN: TERRY MICHAEL EVANS -and- AGOURI PTY. LTD. trading as "Safeway Tree Service" JUDGMENT Plaintiff Defendant HIS HONOUR: I give judgment for the plaintiff for $248,279.20 with costs, including reserved costs if any, to be taxed. I publish my reasons. ~ ' ll~/ .S<-- iro/.:287 10 20 30 /,_''40 40 . 50 50 --~60=---+----------------------------------~ 60 - -Govt. Printer, Old. 1 -- 1 of 17 -- IN THE SUPREME COURT OF QUEENSLAND Before Mr. Justice Kelly S.P.J. BETWEEN: AND: Delivered the CATCHWORDS: TERRY MICHAEL EVANS AGOURI PTY. LTD. trading as "Safeway Tree Service" day of No. 1284 of 1987 Plaintiff Defendant 1990. Counsel: M.W.D. White Q.C. with G.K. Sowden for plaintiff S.C. Williams Q.C. with A.J. Williams for defendant Solicitors: Andrew P. Abaza for plaintiff Dillons for defendant Hearing dates: 18, 19 and 20 April, 1990. -- 2 of 17 -- IN THE SUPREME COURT OF QUEENSLAND BETWEEN: AND: Delivered the TERRY MICHAEL EVANS AGOURI PTY. LTD. trading as "Safeway Tree Service" JUDGMENT - KELLY S.P.J. day of No. 1284 of 1987 Plaintiff Defendant 1990. The plaintiff was injured on 14th April, 1986 whilst employed by the defendant as a labourer/hoist operator and tree pruner. It was whilst he was working in the latter capacity that he was injured when he fell from a tree. The plaintiff was working with Murray Mccrae, who was the defendant's foreman, in cutting branches from trees which were fouling power lines or interfering with street lighting in the Runcorn area. They were equipped with what is referred to as an E.P.V., but which is more commonly known as a cherry picker, with a 75 foot tower. However, this item had previously malfunctioned on a number of occasions and it was not functioning properly on the day in question. In Carca Street the plaintiff was instructed by Mr. Mccrae to clear portion of a gum tree which was covering a street light attached to a post on the footpath. The estimated height of t~e light above ground level was about 15 feet. The instruction given to the plaintiff was to climb the tree and clear the light. -- 3 of 17 -- 2 After the plaintiff had climbed into what he described as "the small part of the tree" Mr. Mccrae handed a chain saw up to him and he hooked it to his belt and climbed the rest of the way up. The plaintiff's description of what then occurred is as follows:- "I got up on the first branch and he passed me the chain saw up. He got back into the truck. I climbed up and got a good footing and leaned up against another branch, started the chain saw. It was just a fairly small chain saw, and one with a handle and leaned out across towards the street light and just cleared the ones off around the light so it was, to make it visible and then I sort of just turned around to get ready to come down and I just fell." The plaintiff also said:- "I had the chain saw in one hand and I was hanging on to a branch with me other hand and I had my back on the branch. I just turned around to get a better footing, then I would have switched the saw off, then I just fell before I-----" The plaintiff said he could have slipped but that he is "pretty certain" that the branch broke. Evidence as to the height above ground of the plaintiff himself at the time he fell is somewhat imprecise. In his evidence in chief he said that he had to reach up to the light post so that he would say that he was 10 or 12 feet above the ground. In cross-examination he said that he was probably not even above head height with the light as he remembered reaching up and just trimming branches away from it, that he did not have to climb far up the tree, that the distance he climbed felt about 10 or 12 feet and that if his head was 2 feet below the street light his feet would have been about 7 feet from the ground. There was no ladder immediately available for use by the plaintiff and there was no belt available which was suitable for tree climbing. There were belts in the cherry picker, but these -- 4 of 17 -- 3 were of a different type being safety belts used to prevent the occupants of the bucket of the cherry picker from falling out. There was a ladder and an operational cherry picker with another crew which was operating elsewhere in the area. The plaintiff said that it did not enter his head that there was any danger involved, that he never thought about falling before he started climbing and that he was just doing what he was told. Mr. Mccrae said in evidence that if they came across a tree which was not difficult to climb it was not uncommon for someone to climb and cut limbs down and that he did not regard that particular tree as difficult or dangerous. He said that if an employee thought there was any possibility that there might be problems he (Mr. Mccrae) would do the job himself. In August 1987 Mr. Mccrae made a statement to an investigator from the Workers' Compensation Board in which he expressed the opinion that the plaintiff had slipped because it was wet and, although he agreed in evidence that he had signed the statement after reading it, he said that this was someone else's interpretation of what he was saying. Evidence was given by Trevor Love, a health and safety consultant, that in his opinion there was a requirement that by whatever the tree pruner was supported it should be independent of or away from the tree. Mr. Love also said that in a general sense if such a person can fall less than 8 feet as a safety consultant he would not have required hand rails to be provided or safety harness to be worn. William Foster, a tree overseer with the Brisbane City Council, said that if one were looking to cut a limb that might be 15 feet from the ground one would climb -- 5 of 17 -- ., 4 but would probably have a step ladder to get into the tree. He also said that even if you are 6 or 7 feet above the ground you $ must still have something there, whether you be using one hand or a rope, to ensure that you are not going to fall. On the whole of the evidence relating to the circumstances of the plaintiff's fall I find that prior to falling it is more probable than not that his feet were about 7 feet from the ground and that he was standing on one branch and leaning against another and that he was leaning outwards and upwards with a chain saw in one hand and holding on to a branch with the other. I also find that it is more probable than not that the branch on which the plaintiff was standing broke. In my view there was a need for the plaintiff to have some form of support and this is in accordance with the opinions expressed by Mr. Love and by Mr. Foster. A relevant circumstance was that the plaintiff had a chain saw in one hand. It was submitted by counsel for the defendant that, even if the manner in which the work was performed was considered to be a defective system of work, nevertheless the plaintiff had other options of which he was well aware, one of which was to indicate to Mr. Mccrae that he did not wish to do the work in that way in which event Mr. Mccrae would have done it, and the other was to summon the ladder and/or the other cherry picker to perform the work in a different way. I am unabl~ to see that the fact that these options may have been available to him would operate to prevent the system of work used by the plaintiff on the instructions of his foreman from being unsafe if this were otherwise the case. -- 6 of 17 -- 5 The system of work used in the performance of the work was that devised by the defendant through its foreman Mr. Mccrae and in my opinion it was not a safe system. I would not consider that a system of work which involved a workman without any form of support standing on one branch of _a tree some 7 feet from the ground and leaning against another branch and leaning outwards and upwards to cut a branch or branches of the tree with a chain saw in one hand and holding on to a branch with the other could properly be regarded as a safe system. Accordingly I find that the defendant failed to provide a safe system of work and also that it failed to take proper precautions for the safety of the plaintiff. I therefore find that the defendant is liable to the plaintiff in damages for the injuries which he sustained by reason of its default. Contributory negligence is pleaded. The plaintiff was simply doing what he was told, that is, to climb the tree and clear the light. There was not on hand any means of carrying out the task which he had been given other than that which he adopted. In Munkman, Employer's Liability at Common Law, 9th ed., at p. 568, it is said that it is not negligent for a workman to follow the method of work accepted by the employer, even if it involves some obvious risk. In Machray v. Stewarts and Lloyds Ltd. (1965) 1 W.L.R. 602, which was a case of an experienced rigger who was injured in the course of placing in position a heavy section of pipe, McNair J. found that the cause of the accident was the failure to provide proper tackle the use of which would have prevented the acciden·t happening. The learned judge saidj· at p. 610:- -- 7 of 17 -- 6 ". . . . . when I find a workman, an employed man, adopting a course of conduct not for the sake of saving himself trouble but in order to get on with his employer's business, and when I find that he has beenprevented from doing the work in the way in which he would have preferred to do it by the employer's breach in not providing him with the proper tackle, I myself am very slow to put any blame upon him, and I do not, myself, feel that, although the dangers of what I have called the make-shift arrangement become very apparent when the problems have been unfolded in this court, I do not feel they were or ought to have been soapparent to the skilled rigger at the time as ofnecessity that I should visit him with any responsibility for the accident." Likewise in the present case where the plaintiff was doing no more than carrying out the instructions of his foreman I would be very slow to put any blame on him and I would not be prepared to place any responsibility for the accident upon him. I do not think that it could be said that in the circumstances he failed to take proper care for his own safety. Accordingly I do not find that contributory negligence has been established. Th~ principal injury suffered by the plaintiff was a subtalar dislocation of the left ankle. After a series of operations between the date of the injury and November 1988 which proved unsuccessful in that the plaintiff experienced difficulty in putting weight on the ankle which was continually swollen and throbbirig and caused constant pain, finally in November 1988 he had a below knee amputation of the left leg about six inches below tlie knee cap. In March 1990 he underwent a further operation in which the stump was trimmed to provide a better shape for a prosthesis with which he had had some problems. Whilst at the -date of trial, which was some six weeks after the final operation, the plaintiff still had some difficulties with his prosthesis these were decreasing and he was able to walk for two or three hours at a time before he had to remove it. The -- 8 of 17 -- 7 amputation has relieved the pain although he still suffers some pain in the stump, the left knee and the lower back and sweating causes sores on the stump. I accept the plaintiff's evidence on these matters. The plaintiff was 30 years of age at the date on which he was injured and he was aged 34 at the date of trial. His injury and its consequences have adversely affected his domestic and social life and have also curtailed his sporting activities, although he has not tried to play any sports since he was fitted with the prosthesis. He says that there is not a lot that he can do in relation to physical activity and whilst he can do some walking he is unable to lift anything heavy. plaintiff's evidence on these matters also. I accept the Dr. Morris, an orthopaedic surgeon, expects that the present discomfort which the plaintiff experiences with the stump will diminish. He considers that it is possible that the plaintiff might get back pain with such an amputation but that such pain is likely to improve and to be there just from time to time. Dr. Morris said that there was no evidence of any instability in the knee. He assesses the plaintiff's permanent disability to the leg as 85 per cent. Another orthopaedic surgeon, Dr. Dickinson, said in a. report that X-rays of the lumbar spine showed degenerative changes at the mid-lumbar level and that to him there was no evidence that any of the plaintiff's discomforts in his back are related to his injury or its sequelae. In his oral evidence Dr. Dickinson said that the degenerative change in the back was quite advanced for a man of the plaintiff's age. He said that it could be that part of the reason for the plaintiff);~ack pain is related to the amputation, although jf -- 9 of 17 -- 8 the leg had not been amputated it was likely that degenerative changes would have caused the plaintiff some symptoms by now in any event. Dr. Dickinson al though said in his report that although the plaintiff did have some wasting around the left knee there was no evidence that he was likely to suffer any long term disability in· the leg itself. He assessed the plaintiff's disability as a result of his injury at 50 per cent of the left lower limb fun.ction. In cross-examination he was prepared to increase that figure slightly, although not as far as even 70 per cent. For the purpose of assessing damages for pain, suffering and loss of amenities I would not consider that anything ultimately turns on the difference of opinion between the specialists as to the percentage disability to the leg which the plaintiff had suffered as these are after all only approximations and not intended to be mathematically precise. I accept that the plaintiff had degenerative changes in the lumbar spine and I consider that it is more probable than not that the back pain which he suffers cari be related only in part to the amputation and also that it is likely to improve to a stage where it is only spasmodic. I include in general damages under this head the sum of $75,000.00 and I apportion $25,000.00 of that sum to the period up to trial. A schedule which was handed up shows that the plaintiff's net income in the period from the date on which he was injured up to the date of trial would have been $67,260. 70 had he remained throughorif•th~t period in employment of the same nature as that in which he was engaged at the date of the injury. Some discounting of that figure is necessary to take account of the -- 10 of 17 -- 9 possibility that for various reasons the plaintiff may not have remained in such employment throughout the period. I include in general damages for economic loss up to trial the sum of $60,000.00. At the date of trial the net weekly wage which the plaintiff would have received from his pre-injury employment was $352.45. In that employment the plaintiff was not entitled to either sick leave or holiday pay. He had experience in tree lopping and as a plant operator and truck driver. Dr. Morris did not consider that it would be advisable for the plaintiff to return to his previous occupation and he considered that any work that involved working outside on rough ground or heavy lifting might be difficult for him. He considered that the plaintiff was capable of doing a full day's light work or sedentary or semi-sedentary work. Dr. Dickinson said that looking at the amputation alone he would not have thought that the plaintiff was excluded from manual work although degenerative changes in his back would predispose him to being not able to perform heavy work. He said that the plaintiff's leg and back would come against him if he were to be in a position of repetitive heavy lifting and that his competitiveness in the work-force would consequently be weakened. On the medical evidence as a whole_I am satisfied that the plaintiff is no longer capable of heavy work but that he is capable of light work, althqugh with his disability he is at a disadvantage in the labour market and his earning capacity has been significantly impaired. A matter of some difficulty is the part which the plaintiff's back condition plays in the_limitati6n which exists as to the type of work which he is now able to perform and is likely to be able to perform in the future, having -- 11 of 17 -- 10 regard to the finding which I have previously made that the back pain which he suffers can be related only in part to the amputation. I ~onsider that ~ven if the plaintiff had not had the amputation his back condition may have caused him some problems in the future, although to what extent is a matter of speculation. I have already referred to Dr. Dickinson' s evidence that if the plaintiff's leg had not been amputated it was likely that those degenerative changes in the back would have caused him some symptoms by now in any event, but the extent of the disability which would have resulted is not made clear. Having regard to watts v. Rake (1960) 108 C.L.R. 158 and Purkess v. Crittenden (1965) 114 C.L.R. 164 it appears to me to be proper to proceed on the basis that as the evidence does not establish with any reasonable degree of precision what the future effects of the plaintiff's pre-existing back condition, apart from the result of the defendant's breach of duty, are likely to be, I should deal with the matter on the basis that that breach was the caus~ of the plaintiff's permanent disability and the impairment of his earning capacity which has resulted. The plaintiff's employment plans for the future are very vague and include the possibility of assisting his father in building trailers, but without any indication of the income which he might earn from this. I must say that I have some doubts as to the extent to which the plaintiff is motivated to engage in work which is within his capacity. It is somewhat difficult to measure the extent of the plaintiff's loss rif earning capacity and consequently to assess pis future economic loss. The submission made on behalf of the plaintiff is that his loss is one-half of his earning capacity, 'I -- 12 of 17 -- ' l 1 1 whereas that made on behalf of the defendant is that the loss can be quantified at $50.00 per week. In my view the former is too high and the latter is too low. I would think that, whilst no precise measure of the loss is possible, it is of the order of one-third and, after taking into account those contingencies for which allowance is normally made, I would assess the plaintiff's future economic loss at $80,000.00. I do not consider that in this case the loss can properly be calculated mathematically, although the making of such a calculation would to my mind indicate that the figure at which I have arrived is a reasonable one. Accordingly I include in general damages for future economic loss the sum of $80,000.00. A head of damage as to which there was a vast difference between the amounts proposed by counsel was the Griffiths v. Kerkemeyer claim in respect of services performed by the plaintiff's wife. Those services involved attending to the plaintiff for periods after each of the operations following his discharge from hospital and in addition throughout the period since the plaintiff was injured mowing the lawn and wh,ipper snipping, gardening and cleaning the pool. Mrs. Evans still performs these outside tasks and also massages the plaintiff's back, stump and leg. She has calculated the total number of hours for which she performed these various services in the period up to trial as approximately 6,500 and a claim is made at the rate of $8. 00 per hour which is accepted as being the reasonable market cost of the services. She says she now spends an average of probably up to 15 hours per week performing services for the plaintiff. -- 13 of 17 -- 12 It is not every it~m of assistance or support rendered by one member of a family to another which ought reasonably to be regarded as sounding in damages ( Carrick v. Commonwealth of Australia (1983) 2 Qd.R. 365, at p. 368; Kovac v. Kovac (1982) 1 N . S . W. L . R . 6 5 6 , at pp . 6 6 8 , 6 7 8 ) . In my view many of the services which Mrs. Evans rendered for the plaintiff, particularly those which were not associated with post-operative periods, are of a kind which might reasonably be expected to be performed by a wife for an incapacitated husband and should not reasonably be the subject of damages. This would not apply to services rendered in the post-operative periods which to a large extent might fairly be regarded as not coming within the category to which I have referred and some allowance must be made for services performed by Mrs. Evans for the plaintiff in those periods. As far as those tasks which Mrs. Evans has performed and still performs outside the house, I can see no reason for regarding gardening (as distinct from mowing and pool cleaning) as being the sole responsibility of the male partner to a marriage with the consequence that damages under this head ensue if those tasks have to be performed by the other partner. Mowing the lawn and possibly cleaning the pool may perhaps be considered to be in a somewhat different category, but I think it would be unreal to proceed on the basis indicated by the evidence that Mrs. Evans spends three hours every week of the year in mowing; there is no evidence as to the area involved and the frequency of mowing required would obviously depend on seasonal considerations. I would consider this to be a case for a rather broad approach and I would assess damages under this head for the period up to trial at $10,000.00, made up of $5,000.00 for services performed for the plaintiff after each of the various . ' • I • ' l -- 14 of 17 -- 13 operations and $5,000.00 for mowing. For the future there are so many imponderables that damages are very difficult to assess and I include in general damages a further sum of $10,000.00 under this head. In assessing a sum for ±he future costs of prostheses I proceed on the basis that it is reasonable that the plaintiff should for, say, the next 30 years have one of each of the two types of limb available, namely, SA and 6A, and at the end of that period, when he is no longer likely to be in the work-force, one limb only with replacement of each limb about every two years. On the material in evidence an appropriate sum to allow for this, including associated items, over the 40 year period which is to be adopted would be $35,000.00. This is not a figure which can be calculated with mathematical precision and the amount which I have assessed is a round sum. In addi t.ion I would allow $1,000.00 for the additional cost involved of having tailored trousers with a wide leg to fit over the prosthesis. The plaintiff is now unable to operate a manual car but he can drive an automatic vehicle which involves an additional cost of approximately $500.00. The plaintiff said that he normally keeps a vehicle for approximately four years or so, but I consider it would be reasonable to proceed on the basis of a change of vehicle about every five years. This involves an additional cost of approximately $2. 00 per week and for the 40 year period involved I would assess a figure of $1,800.00 under this head. It may be expected that the plaintiff will incur expenses for medical attention but the frequency with which such attention will be required could not really be predicted at this stage and it could not be assumed that over a period of 40 years it would -- 15 of 17 -- 14 be required in relation to matters attributable to the plaintiff's injury as frequently as once each month, which is the basis on which the plaintiff's case proceeds. Some amount is to be allowed under this head and bearing in mind the imponderables involved I allow the sum of $2,000.00. For future pharmaceutical expenses which can be related to the plaintiff's injury I consider that $10. 00 per week is an appropriate figure and accordingly I allow the sum of $9,000.00 for this. In summary, general damages are as follows:- (a) Pain, suffering and loss of amenities ( b) Past economic loss ( C) Future economic loss ( d) Past Griffiths v. Kerkemeyer ( e) Future Griffiths v. Kerkemeyer (f) Future costs of prostheses ( g) Additional cost of tailored trousers ( h) Additional cost of automatic cars ( i ) Future medical expenses ( j ) Future pharmaceutical expenses I allow special damages as follows:- (a) Travelling expenses (b) Telephone expenses (c) Pharmaceutical expenses (d) Extra cost of one automatic car (e) Hospital, medical and other expenses paid by Workers' Compensation Board (f) QEII Hospital expenses (g) Fox v. Wood component $ 75,000.00 $ 60,000.00 $ 80,000.00 $ 10,000.00 $ 10,000.00 $ 35,000.00 $ 1,000.00 $ 1,800.00 $ 2,000.00 $ 9,000.00 $283,800.00 $ 1,422.76 $ 20.37 $ 636.45 $ 500.00 $20 I 778. 9.3 $ 696.00 $ 6,133.62 $30,188.13 -- 16 of 17 -- 15 Total damages are accordingly assessed at $313,988.13. From that amount workers' compensation payments of $76,628.93 are to be deducted so that the sum for which judgment is to be given, apart from interest, is $237,359.20. The sum on which interest is to be allowed is $45,500.00 made up of $25,000.00 for pain, suffering and loss of amenities, $8,000.00 for net economic loss after taking into account periodical payments of workers' compensation received, $10,000.00 for the past Griffiths v. Kerkemeyer component and $2,500.00 for special damages the amount of which was not paid by the Workers' Compensation Board. I allow interest on $45,500.00 at the rate of 6 per cent per annum for a period of four years, being the amount of $10,920.00. I give judgment for the plaintiff for $248,279.20 with costs, including reserved costs if any, to be taxed. -- 17 of 17 --