Bennett v Central Queensland Meat Export Company Pty Ltd [1990] QSC 119

-···:-; -- :· . .. 5..~-ff!i/ t j I IN THE SUPREME COURT OF QUEENSLAND f;fa<J'.',;_ CIVIL JURISDICTION ~> \:,: dk_l. 4 i. _ '90 ~ .. ····••W• J No. 2 of 1989 '\ 10 2C BEFORE MR. JUSTICE DEMACK ROCKHAMPTON, 20 APRIL 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: \ j ROBERT HENRY BENNETT -and- THE CENTRAL QUEENSLAND MEAT EXPORT COMPANY PTY. LTD. JUDGMENT Plaintiff Defendant HIS HONOUR: . Robert Henry. Bennett was -born on -26 30 February 1950. He commenced employment with the defendant in 1981. In his statement of claim he alleges that he sustained personal injuries as a result of two incidents at work on 12 and 13 March 1986. As the case was presented the allegation of negligence 40 was confined to the first of the two incidents and it is not necessary to consider any questions of negligence in respect of the second incident as it was pleaded. so 60 On 12 March 1986 Mr. Bennett says that he slipped on a set of stairs and injured his back. The issues in respect of liability are whether this fall was caused by the negligence of the defendant and, secondly, whether the plaintiff contributed to his own damage by failing to take reasonable care for his own safety. At that time Mr. Bennett was working as a tallyman -Govt. Printer, Qld. 1 10 20 30 40 50 60 -- 1 of 9 -- _/ 10 2C 30 40 removing hides from a vat in which they were soaking in brine. The vat and its surrounding area was constructed-in such a way that there was decking surrounding the vat. The hides were placed in the vat in the brine solution and were agitated with mechanical paddles. Depending on the'number of hides in the vat and the level of the brine there was splashing of the brine and of what are called flesh.ings from the vat onto the surrounding decking. The brine solution also contained fat which was apparently in more minute particles than pould be described as fleshings. The steps in question consisted of four wooden treads which led from the decking down to the floor in the relevant part of the building. These were simply four wooden steps with no hand rail and,'. at the relevant time, without any metal or other strip on them that might reduce the risk of slipping. AppareBtly the brine:and the fleshings would also not only go.onto the decking but onto the steps. Mr. Bennett was aware of the fact that this splashing of brine and of fleshings occurred and he says he endeavoured to take care. However,· as he went to descend the steps his feet went from under him and he fell down the steps on his buttocks. Subsequently a metal strip was fitted to the nosing of the steps. This is very clear evidence of something that could have been done to improve the footing of people using the steps and to reduce the risk of slipping. It also seems to D 10 20 30 40 50 50 me to be clear that a hand rail could have been fitted'to the· steps. This, also would have reduced the risk of injury. It certainly ought to have meant if a person did lose footing at the top of the steps he would not descend the whole distance down thE? steps. There is, according to the 60 60 -Govt. Printer, Qld. 2 ( \ ' '"- / _I -- 2 of 9 -- 10 ~, photographic evidence, a rail above the stai~s across. the decking .~nd" it would seem to be a rel,atively inexpensive matter to __ prov:ide a hand rail down the stairs. 10 ) 20 I am satisfied that in the nature of this particular part of the defendant's premises it was foreseeable that the person using the steps would lose footing because of the mixture of brine, fat and fleshings that were in .that general vicinity. I am satisfied that the provision of some metal strip and the provision of a hand rail were obvious ways of reducing that risk and that the· failure to provide those constitutes negligence on the part of the defendant. 20 / 30 So far as contributory negligence is concerned, the essential question here is really one of credibility. Mr. Stafford who was the plaintiff's supervisor on that day says that it was part of the plaintiff's job specification that he was. to clea~.:11P the-area as he worked in it during the day. Mr. Bennett says that when he commenced working at this particular part of the defendant's works he was told by his then supervisor Mr. Varley to clean up at the end of the shift. He says that other employees of the defendant who 30 40 40 work on the day shift cleaned up the area from time to time. Mr. Stafford did not check to see whether the plaintiff was complying with what Mr. Stafford understood to be his job specification. I am satisfied that the Plaintiff was working as he had .50 50 60 been instructed to work by Mr. Varley. There is support for the plaintiff in relation to this in the evidence of another employee Mr. Logan. I am satisfied that in the circumstances the plaintiff tried to perform his task having reasonable regard for his own safety and in accordance with -Govt. Printer, Old. 3 60 -- 3 of 9 -- 10 the instrticti6ns of ·the·work that he ha~·been given. There is bbv'fously' a risk to whi•ch he was exposed and it see:i:ns to me that he did all he could in view of the limited provision for his safety that the defendant had made. So I am not satisfied that the defendant has established any contributory negligence. 10 f I 2C Mr. Bennett says that he suffered immediate p·ain in his lower back, that he rested for a time and he continued working that day. He returned to work the following day, but after removing some hides from the vat he was unable to continue work. He has not ~orked since that time. 20 \ /-' 30 He went to see a general practitioner who, in April, referred ·him to Doctor Champion. Mr. Champion's report, Exhibit 4, says that "He had lower lumbar pain in a . . . ~ classical left sciatica which was aggravated by the use of his bladder and bowels'." He says that a CT Scan showed a large central' bulge at L4/5. Conservative treatment involving heat, drugs and rest was used and not much progress was obtained. Doctor Champion recommended that he might benefit from chemonucleolysis. Approval for this was 30 40 40 obtained from the Workers' Compensation Board and he was sent to Brisbane to see a Doctor Parker. However, by the time Mr.· Bennett finally saw Doctor Parker in November 1986 he felt he was getting better and that treatment was deferred. Mr. Bennett went to North Queensland and there 50 50 suffered a recurrence of the lower back pain. He was referred to Doctor Muscio ail. orthopaedic surgeon in Cairns. A further CT Scart ·showed that the L4/5 protrusion had increased in size. Mr. Bennett was treated in hospital to a course of epidural steroids. This produced little benefit 60 60 -Govt. Printer, Qld. 4 - -----------~~ \ \. ) -- 4 of 9 -- 10 30 50 60 and on 29 May 1987 he was admitted to hospital and underwent a chymopapia injection.in the L4/5 disc space. The doctor seems to have felt that produced some benefit, but as I understand Mr. Bennett he felt that it was detrimental. Mr. Bennett and h.is family come from Orbost in Victoria and following this episode in Cairns he decided to return home. He was referred to an orthopaedic surgeon, Mr. Nall, ,at Traralgon and Mr. Nall has prepared two reports which are not particularly helpful because he seems to have been unable to obtain a clear history from Mr. Bennett. Mr. Bennett has also seen two other specialists in south eastern Victoria and for the purposes of the trial has been examined by Doctor Johnson-Nurse. I .accept Doctor Johnson-Nurse's opinion that, in effect, in the injury sustained in falling down the steps Mr. Bennett damaged his L.4/5 ,disc so that with the further activity the. protrusion occurred. Consequently I am satisfied that the defendant's negligence has produced the present disability that Mr. Bennett has. Doctor Johnson-Nurse does not recommend any surgery, but says that time is the critical factor here. There is also evidence of degeneration in Mr. Bennett's spine that does not appear to be directly related to the incident on 12 March 1986. Doctor Johnson-Nurse says that the degeneration will result in the stiffening of that part of Mr. Bennett's spine and this will reduce the pain that he suffers. However, he expresses the opinion that Mr. Bennett should not engage in work that involves protracted bending and lifting. Consequently he says he should not return to any form of labouring work. However, he says that within two or three years Mr. Bennett should be able to perform sedentary -Govt. Printer, Old. 5 10 20 30 40 50 60 -- 5 of 9 -- 10 2C 30 · 40 work. Dealing.then with the specific items of the plaintiff's claim, I accept that he has not been able to engage in gainful employment since 13 March. A schedule of the earnings that he would'have been able to receive if he continued working for the defendant has been prepared. I accept the amount established there as the amount ·of his pre-trial loss. That calculation does not take into account overtime that he might have earned nor does it take into account bonuses that he might have received. It would seem to me that these matters offset any time that he may have lost from work for various reasons. He had been working for th~·defe~dant for some five years and would seem to have been secure in that employment. So I will allow the pre-trial economic loss at $59,284.88; Taking into account the Workers I Compensation .. payments and. the social security payment·, 1 will allow interest on the sum of $4,000 which I fix at $960. For the future I accept Doctor Johnson-Nurse's opinion that over the next two or three years Mr. Bennett's condition· will settle down to the point where he will be able to engage in sedentary work. However, at present he·is not fit for that work. For the next three years I shall allow him the full loss of· his economic capacity which at present is $340. That is based on the net earnings of a 10 20 30 40 50 50 person performing the work that he was doing in 1986. 60 60 -Govt. Printer. Qld. 6 - - -----~---- ) -- 6 of 9 -- J ~) 10 Over a three year period this produces a sum of $49,640. From that time onwards I am satisfied that there should be allowed a further 12 years. This takes into account the fact that there was some degeneration in his spine and the fact that he had been engaged in fairly heavy labouring work all his life. It also takes into account the usual contingencies. It is difficult to assess what kind of job Mr. Bennett could obtain of a sedentary nature, particularly while he lives at Orbost. Nonetheless, accepting Dr. Johnson-Nurse's opinion, I am bound to treat him as having some economic capacity, so I shall treat his loss over that ensuing period of 12 years at $200 per week. This produces a sum just in excess of $80,000. I shall allow, in all, the amount of $130,000 for future economic loss. Special damages have been partly itemised in schedule 30 40 50 60 Exhibit 9 .. The .items set out there which amount to.$523.1.4 all attract interest which I shall allow in the amount of $126. The other items of special damages are taken from the Workers' Compensation letter which is Exhibit 19. These. amount to $3,703.89 for various medical. expenses, and .the amount of $2,833.80 in respect of taxation installment deductions. The total then of special damages, including interest, is $7,186.83. A claim is made on behalf of the plaintiff for the value of services gratuitously rendered by members of his family. It seems to me that in respect of these it has to be borne in mind that he was not hospitalised except for that very brief period, so that at no time has the care that has been rendered involved anything akin to nursing, rather he has received the kind of help around the house that is -Govt. Printer, Qld. 7 10 20 30 40 50 60 -- 7 of 9 -- 10 2C 30. 40 50 60 ordinarily rendered by one member of the family to others, particularly where ,there is a large family. He may certainly have been treated generously by the other members of the household, but I am not satisfied that that getierous treatment is.of an orde~·that merits some financial compensation borne by the defendant. The only exception to this is in respect of the wood that his.brother provides for him. This would seem to me to go beyond the kind of provision that is made within a family. Clearly, if Mr. Bennett were not injured he would be able to collect this wood himself. There was no precise method of calculating that,· but I shall allow the sum of $1,000, and in respect of that an amount of $240 interest. For the future I am satisfied, on the basis of Dr. Johnson-Nurse's opinion; that Mr. Bennett will recover sufficient capacity.of movement to be able to do the kind of light work around the house and garden, particularly doing the mowing and doing some work in the garden. However, it would seem to me.that the more strenuous work involved in collecting wood will probably be still beyond him. It again is difficult .to calculate what this is worth, but I shall allow the sum of $2,000 for future services gratuitously• rendered. So far as pain, suffering and loss of amenities are concerned it seems to me that here one must begin with the fact that Mr. Bennstt has not undergone any of the painful or protracted surgery that so often falls to people with spinal injtiries.- He has had a great deal of pain and has, of course, had the period in hospital when he received the injection. -Govt. Printer, Qld. 8 • • 10 r· 20 \ 30 40 ( 50 60 ) -- 8 of 9 -- r ) l~ 10 30 40 His lifestyle has certainly been substantially disrupted. He used to enjoy bushwalking and camping, but up until this time these pursuits have been beyond him. It would seem to me that, accepting Dr. Johnson-Nurse's view of the future, it should be possible that in the future there will be opportunities for some recreational activity. However, he will have pain and discomfort in his spine for the balance of his life and if he is tempted to indulge in anymore robust physical activity, he certainly will pay the price for that. Mr. Bennett is now aged 40 so he has this burden to carry for a long time. He has been taking Voltaren tablets to relieve pain. Dr. Johnson-Nurse expects that the need for those will disappear over the next two or three years so it does not seem to me to be practical to include that as a specific item, rather I shall take that into account in the general sum that I assess. For pain, suffering and loss of amenities I shall allow the sum of $45,000, $15,000 of which will bear interest. which I assess at $3,600. The total of the award then will be $249,271.71. The amount due to the Workers' Compensation Board is $20,695.19, so there will be judgment for the plaintiff against the defendant for $228,576.52. 10 20 30 40 so 50 60 HIS HONOUR: There will be judgment for the plaintiff against the defendant for $228,576.52 together with costs to be taxed, and I direct that in the taxation the Taxing Officer take account of the fact that the one issue in respect of the allegations of negligence was abandoned. -Govt. Printer, Old. 9 60 -- 9 of 9 --