Castrignano v Cattle Creek Co-operative Sugar Milling Association Ltd [1990] QSC 174

) IN THE SUPREME COURT OF QUEENSLAND MACKAY DISTRICT REGISTRY BETWEEN: ANTONIO CASTRIGNANO AND: No. 118 of 1987 Plaintiff THE CATTLE CREEK CO-OPERATIVE SUGAR MILLING ASSOCIATION LIMITED Defendant JUDGMENT - DEMACK J. DELIVERED the Twenty-eighth day of May 1990. Mr Castrignano was born on 10th March, 1933. He migrated to Australia in 1952, and over the next thirty years engaged in labouring work. In 1982 he injured his back and was off work for ten months. Sometime after he returned to work he injured his back again and was off work '.,) for seven months. In July, 1984, he obtained work for the defendant as a platform operator. This was light work, mainly involving the reading of gauges. However, once a week he was involved in doing cleaning and maintenance work. While doing such work in November, 1984 he slipped on stairs, injured his back, shoulder and knee. He worked for a while but has not worked since late 1984. The action was contested both as to liability and as to the assessment of damages. In respect of negligence there -- 1 of 5 -- n (_) 2 is little to say. The stairs had appropriate treads, but there was no reasonable system for keeping them clean. It had been seven days since they had been cleaned, and in that time cane juice, trash and even cane billets fell on the stairs. This was all a very obvious part of the crushing of sugar cane, and it does not seem to me that the defendant discharged its duty to the plaintiff by having such an infrequent cleaning of the stairs. It was obvious that some one was likely to slip, and the means of reducing the risk was equally obvious. I am satisfied that the defendant was negligent in permitting the stairs to become contaminated with sugar thereby increasing the likelihood of the plaintiff slipping. Contributory negligence was argued. Mr Castrignano had a three metre length of hose over his left shoulder and he held that with his left arm. His right arm was free, but he This seems to me to did not use the hand railing provided. show little regard for his own safety. He was engaged in so obviously the premises had needed cleaning up. In those cleaning and about them maintenance, things that circumstances it seems to me that a reasonable response would be to use the handrail. I am satisfied that in failing to do this the plaintiff was guilty of contributory negligence. I am satisfied that the defendant should bear the greater burden of responsibility. It Castrignano to risk. In my opinion bear 80 per cent of the blame. needlessly exposed Mr the defendant should I have already referred briefly to Mr Castrignano's -- 2 of 5 -- (-)\ 3 pre-accident work history. This indicates he had significant back problems. He had seen Dr. Cook in 1982 and subsequently. Dr. Cook gave the following evidence, at p. 21 : - "Now, you need to look at what his condition was like before the incident in November of 1984 and what his future might have been had he notsuffered that injury in 1984. Would you just describe what your opinion is about that, please?- To the best of my knowledge, he was working in a job that I would say was much lighter than the work that he was involved in in the early 1980's and this, I felt, would enable him to have kept onworking for a considerable number of years. Hewas advised to try to get out of heavy manual typeof work into light duties, and the work that he did find, I felt, was reasonably consistent with that. I felt that he should have been able to go on carrying work of a light nature, well, for a fair number of years, perhaps up to age - I think I thought somewhere probably around about aged 55, but I can't be terribly accurate about that. That's only a rough indication only." This is consistent with his report, ex. 7. Dr. Bruce Martin also examined Mr Castrignano. He expressed the opinion that, based on Dr. Cook's report, ex. 6, Mr Castrignano's working life in 1984 was much less certain than that. He says this, because Dr. Cook was '\) considering surgery in 1982 (ex. 6). This was not put to Dr. Cook. I do not think that Dr. Martin's interpretation of Dr. Cook's report gives me reason to reject Dr. Cook's opinion that I have quoted. Dr. Cook was seeing the plaintiff during the relevant period. In ex. 6 he reports seeing the plaintiff on 20th June, 1984 when he had no back symptoms and minimal symptoms in relation to the right leg. Dr. Cook agreed to his return to work on 2nd July, 1984, (ex. 6). I accept Dr. Cook's opinion that as at November, 1984, -- 3 of 5 -- 4 Mr Castrignano had a capacity to continue in light work till about age 55. For convenience I shall treat that as 30th June, 1988. Using the various tables in ex. 9, I shall allow pre-trial economic loss in the sum of $50,000.00. I shall allow interest on the amount of $6,500.00, which I fix at $2,000.00. No further allowance for loss of economic capacity can be made. Mr Castrignano has had both a laminectomy and a spinal fusion. I accept that both of these were consequential upon (-) the further damage he did to his spine in the fall upon the stairs. They were a foreseeable consequence of that fall, (J given the nature of the degeneration of his spine. He may have come to them anyway, but the fall turned the chance into reality. I reject Dr. Martin's opinion that the fusion is unrelated to the fall. I have indicated that Mr Castrignano injured his right knee when he fell. His leg was caught under him. This caused swelling of his knee, and that swelling has recurred. There is a possibility that he will need an arthroscopic examination of his knee and repair of a cartilage. This is not certain so I shall simply include a sum in the award for pain suffering and loss of amenities which covers the disability and its possible treatment. After his release from hospital Mr Castrignano received help from two male friends. There is some care among all this assistance which is compensable, but not much. Mr Delconte, who is retired, seems to have been in need of companionship, almost as much as Mr Castrignano was in need -- 4 of 5 -- (J 5 of .assistance. . I shall allow $750.00 for services gratuitously rendered. Special damages were in terms of the Workers Compensation Board letter (ex. 10). $13,909.18, no part of which bears interest. They amount to So far as pain, suffering and loss of amenities are concerned, I have described the essential matters. Mr ' Castrignano has had two operations. He may have needed them sooner or later. The extent of deterioration in his spine, quite apart from the injury sustained in the accident, is demonstrated by the fact that there is spontaneous fusion at L2/3. Also the prolapse at L4/5 which was treated by the laminectomy was long standing and pre-dated 1984. I have referred to his right knee. For pain, suffering and loss of amenities I shall allow $21,000.00, $15,000.00 of which shall bear interest, which I fix at $4,800.00. t12 1 4 > .?..,,;_ I i' . The total of the assessment is $91,70~.18. Allowing . Cj'o7 for contributory negligence this is reduced to $73,~.34. There is a refund due to the Workers' Compensation :_ / Board of $57,438.69 so there will •/b7-_ )u/;,d_gment for the ~ lo .) ,,1..o", • '> I plaintiff against the defendant for $1--5-,9-Z-g ....... 6.S with costs to be taxed. This action was one that should clearly have been remitted to the District Court, so that costs incurred since the proclamation of the change of jurisdiction of the District Courts shall be taxed on the District Court Scale. -- 5 of 5 --