Maxwell James Dunley v Raymond John Sullivan [1986] ACTSC 75 (13 August 1986)

SUPREME COURT OF THE ACT

MAXWELL JAMES DUNLEY v. RAYMOND JOHN SULLIVAN
S.C. No. 43 of 1986
Negligence - Contributory Negligence - Damages

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Miles C.J.(1)

CATCHWORDS

Negligence - Employers Liability - duty to maintain and enforce reasonably safe system of work.

Contributory negligence - duty of plaintiff contrasted with duty of defendant.

Damages - aggravation of degenerative spinal condition - employed worker anticipating breeding horses for profit - no matter of principle.

McLean v. Tedman and Another [1984] HCA 60; (1984) 56 ALR 359.

HEARING

CANBERRA
13:8:1986

ORDER

There be judgment for the plaintiff in the sum of $152,952.31.

The defendant pay the plaintiff's costs.

DECISION

This was an action for damages for personal injuries. The writ was issued on 10 January 1985. A certificate of readiness was filed on 27 November 1985, although pleadings were not closed until 4 December 1985. At the end of the first day of the hearing after evidence on liability had been completed, I heard addresses from counsel on that aspect and announced there would be a finding in favour of the plaintiff without reduction for contributory negligence. I heard more evidence as to damages and heard further submissions the following day.

2. The plaintiff was injured at about 5.30 p.m. on 1 April 1981 whilst employed by the defendant. The defendant was in the business of tree-lopping and the like. The plaintiff had been the foreman for many years. Under the supervision of the defendant a tipper truck owned by the plaintiff and hired by the defendant had been loaded up with tree loppings, and the trunk of a tree placed on top of the loppings. The trunk was some twenty to thirty feet in length and projected over the cabin of the truck and also over the tail of the truck. The trunk was placed in position by a front end loader. The effect of placing the trunk and the bucket of the loader on the loppings was to compress the loppings. When this had been done the load was secured by tying ropes attached to rope bars on either side of the truck over the trunk and the load underneath. The bucket of the loader was removed. This placed the ropes under increased tension. The plaintiff said in his evidence and I accept that he pointed out to the defendant that it was a "hairy" load. By this I took him to mean that there was a certain amount of springiness, and therefore instability, in the load. The defendant in his evidence acknowledged this in effect and stated further that whilst being loaded the trunk appeared liable to roll until it was secured by the ropes. The defendant acknowledged further that there was a possibility that when the ropes were removed the trunk would roll, but he left that aspect of the matter to the plaintiff who was instructed to drive the truck to the rubbish disposal tip at Mugga Lane and to dispose of the load there. Upon the plaintiff's arrival at the tip he removed the ropes, threw them in the cab of the truck and was about to climb into the truck to operate the tipping mechanism when the log rolled on top of him causing him injury. There was no evidence of anything unusual in the defendant's method of operation that day either in comparison to what was done on other days or in comparison with what is done by other employers engaged in similar enterprises. However it is clear, in my view, that the method of loading and unloading the truck involved a foreseeable risk of injury to a person in the position of the plaintiff and that there were reasonable alternatives available to the employer which would have avoided the risk and which were not utilised. For instance, the log could have been cut up and placed on another truck which was available to the defendant at the time. Alternatively, another worker could have been instructed to accompany the plaintiff and to untie and watch the load whilst the plaintiff remained in the cabin.

3. On the question of contributory negligence I am satisfied, as was submitted on behalf of the defendant, that the dangers of the enterprise were as well known to the plaintiff as they were to the defendant, and that the plaintiff accepted the instructions of his employer knowing of the risk involved. However the duty cast upon an employer to take reasonable care for the safety of employees is a different matter from the duty of an employee to take reasonable care for his own safety. The duty of the employer encompasses a duty to take reasonable steps to enforce a reasonably safe system of work, a duty which is not discharged by allowing employees to adopt dangerous procedures: McLean v. Tedman and Another [1984] HCA 60; (1984) 56 ALR 359.

4. In the circumstances I think that the conduct of the plaintiff, after accepting the instructions of the defendant to proceed to the tip to dispose of the load, particularly when he had already drawn to the attention of the defendant that the load was unstable, did not amount to a failure to take care for his own safety. There will be no reduction of damages for contributory negligence.

5. I turn now to the question of damages.

6. The plaintiff was born on 15 November 1935. He is married with four children, three of whom are adult and the youngest is a girl aged 14 years. He left school at the age of 14. He is practically illiterate. He worked on rural properties in the Cootamundra area until about 1951 when he came to the Canberra district. He continued to work on properties, with an inclination towards horses, and when a younger man was active in show-jumping and other equestrian events. He had worked for the defendant for about twenty years, originally as a contractor and in recent years as employed foreman. Some five years prior to the injury he had acquired eighty acres of land near Gunning. I am not sure of the exact nature of the land, but it carries at the present time eighty sheep and four horses including Bojangles. About two years prior to injury the plaintiff had acquired a two year old part Arab stallion called Bojangles which he kept in his back yard at Ainslie and exhibited with some success at rural shows particularly in southern New South Wales. It was the plaintiff's intention to put this stallion to work as a sire and to take up horse-breeding at some time in the then future.

7. I return to the events immediately after the injury. The plaintiff was knocked unconscious for a matter of no more than a few minutes. He was pinned by the branches of the tree but managed to extricate himself by wriggling across the ground. He got back into the truck in considerable pain but was able to drive back to the work site holding the lower part of the steering-wheel. He was driven home, cleaned up and then taken to the Royal Canberra Hospital. He was unable to get out of the vehicle and was taken into the casualty department in a wheel-chair. X-rays were taken and he was sent home. The following day he saw his local practitioner, Dr Donnan, who has since died. However, notes from Dr Donnan's practice record painful crepitus over the chest wall, stiff neck and pain in both hands. There were similar complaints on 21 and 27 April 1981. Pain-killing medication was prescribed and continued. The plaintiff underwent physiotherapy treatment from 11 May until July 1981, and the physiotherapist noted massive bruising and stiffness. The treatment included ultra sound, manipulation and cervical traction. During this period the plaintiff experienced pain between the shoulders and in the lower back. He returned to work in August 1981 on selected duties, but gradually built up the range of duties that he was able to carry out. At the same time, however, the symptoms continued, no doubt contributed to by the increasing range of duties that the plaintiff set himself, so that by August 1983 the plaintiff again sought medical attention. In the meantime, according to his evidence which was not challenged, he had been taking pain-killers daily two or three times. On 12 August 1983 the plaintiff came under the care of Dr Walshe at Kippax, who had the opportunity to refer to the notes of Dr Donnan and also to the x-rays taken at the Royal Canberra Hospital in 1981. Dr Walshe, who gave evidence, was of the view that the plaintiff had suffered considerable damage in the thoracic area of the spine. This was confirmed by x-rays taken in August 1983 which showed wedging at the T7/8 level, not evident on the 1981 x-rays. This led Dr Walshe to the conclusion, which I accept, that it was the 1981 injury which had led to the changes which later showed up on the 1983 x-rays.

8. Dr Walshe referred the plaintiff to Dr Raymond Newcombe, a neurosurgeon on 28 June 1984. Dr Newcombe noted that in addition to the complaints of pain in mid and lower back there was paraesthesia in the feet and hands at night. Dr Newcombe's views were that the plaintiff had suffered an aggravation of cervical and low thoracic spondylosis and in particular at the T7/8 level, rendering the plaintiff unfit for heavy work. He reviewed this situation on 3 July 1986 noting the plaintiff's complaints that lifting and bending aggravated his back pain, but that the plaintiff nevertheless did some part-time farming work on his property at Gunning.

9. The plaintiff's evidence, which I accept as to his present symptoms and disabilities, is that he continues to get pain between the shoulders and in the mid to lower back aggravated by bending and lifting. He also complains of a more substantial sensation of pain when raising his hands above head height. He has pins and needles in the feet and calves after lifting, he finds that he is more quick tempered now and that he has difficulty sleeping because of pain in the back causing him to get up during the night and walk around. He takes pain-killers before sleeping. He is, nevertheless, able to do some jobs around the home and property such as feeding the stock, cutting firewood with a chain-saw and bringing the firewood into the house. He manages to mark the lambs on his property with the assistance of his daughter, but it is clear that he is greatly restricted in his activities around the property. Dressing and bathing also cause pain in the back as does sexual activity. He has put on a lot of weight since his injury, which I ascribe to relative and unaccustomed inactivity.

10. When one of the doctors suggested to the plaintiff that he might be fit for work as a watchman or the like, he made an application for such a position but was not successful. In view of the plaintiff's near illiteracy, it seems to me highly unlikely that he would be a candidate for employment in any real sense. On the other hand, it seems to me that his earning capacity cannot be regarded as entirely destroyed because of the activity that he readily acknowledges that he is able to carry out upon his property. He managed to carry on in his old job, with some restrictions, for two years. The plaintiff's loss of wages from the time of the injury to August 1981 are agreed at $3,849.31. Between September 1983 and the present time the wages paid to a person in the plaintiff's position with the defendant rose from $234 per week to about $347 per week. During that time I think that the plaintiff retained an earning capacity of about $90 a week and suffered a loss of earning capacity of about $200 a week. Over a three year period this may be rounded out to $30,000. As far as the future is concerned, the plaintiff may be regarded as suffering a loss of earning capacity of $240 per week. The medical evidence as to his pre-existing condition leads me to the conclusion that there was a strong possibility that the plaintiff's pre-existing degenerative condition would have disabled him from working before the age of 60. Because of his robust attitude to work, I think it unlikely that the plaintiff would have been incapacitated by the age of 55. I strike a balance somewhere in the middle. On the 3 per cent discount tables $240 per week for a period midway between five and ten years yields a figure of about $83,000. This has to be reduced for vicissitudes. As I understand the medical evidence it takes into account the possibility not only of natural degeneration but also aggravation by injury, and I do not see any need to reduce the figure calculated on the 3 per cent discount table by more than the conventional 15 per cent. For the purpose of calculating amounts for past and future loss of earning capacity, I take into account my findings in relation to the award of damages relating to the anticipated loss of income from horse breeding. The end result is that I award $33,849.31 for past loss of earnings and loss of earning capacity and $70,000 for future loss of earning capacity. There was a good deal of evidence relating to the loss suffered by the plaintiff in relation to horse breeding and showing. The plaintiff had always been interested in horses and it is clear that he hoped to divert more of his attention to this pursuit. The property upon which his horses are kept is about an hour's drive from his home at Ainslie and as far as I have been told there is no dwelling upon it. Accordingly, if the plaintiff was going to devote any substantial period of time to working the horse on that property, he could hardly have expected to do that and remain in permanent full-time employment. For that reason there could be a risk of over compensating the plaintiff by over-lapping in the awards for loss of earning capacity which relate on the one hand to his former employment and on the other hand to the proposed horse breeding and showing. It was perhaps for that reason that Mr. Maguire QC for the plaintiff properly conceded that the award under the latter head should be a modest one. There was a good deal of evidence as to the costs of feeding, running and breeding horses and as to the financial benefits which might accrue, but in the end as both parties again properly conceded, the evidence is not sufficiently precise for an award to be made except in the most general terms.

11. The stallion, Bojangles, of which photographs were tendered in evidence, is obviously an outstanding beast. Mrs. Thelma Olive Castles, who has had great experience with horses, owned the horse during its first two years. She gave evidence of the vast number of prizes it won over 1978 and 1979. She still takes an interest in the horse. She sold it to the plaintiff in 1979 for $2,000. Her view was that there was no doubt that Bojangles would be a successful sire, capable of servicing 20 to 25 mares per year. The service fees were said to be $200 to $250 in Canberra and up to $800 outside Canberra in such places as Gunning. Why there should be such a marked difference I do not know. Mrs. Castles thought, moreover, that the foals could be sold at five months for about $800 each. Mr. Kevin Slaven, a stud master at a property at Murrumbateman who also had considerable experience in training and breeding horses, gave evidence and described the horse Bojangles in superlative terms. He thought that the horse could command a siring fee of $500 and be able to perform up to 35 times in one season. He gave evidence that the foals were likely to fetch a price of $1,500 to $2,000 each netting a profit to the breeder after cost of at least $1,000. Obviously, if Mr. Slaven's evidence was accepted on its face value and the plaintiff's injuries have prevented him from utilising Bojangles for breeding purposes, then the plaintiff has been deprived of very substantial profit. On the other hand, evidence was given by Mrs. Francesca Davies-Graham, a grazier at Gunning and President of the Arabian Riders' and Breeders' Association, which tended to show that part-bred stallions are in over supply in the area. She said that she makes virtually no money out of this activity, being concerned presumably to engage in it substantially for enjoyment. The evidence of those three witnesses was entirely credible: obviously much depends on the circumstances of the breeder, the market, the capacity of the horse and so on. Furthermore, in my view, it must be borne in mind that if the plaintiff's horse is capable of yielding such high potential profits, then the plaintiff is excluded from those profits partly by his inability to look after the horse himself and partly by his inability to pay someone else to look after it. In this regard one has to pay attention to the principle of mitigation of loss. In other words, if he had the money he could employ somebody to do the work and he could take the reduced profits. The award of damages in this case would provide him with a capital basis if he wished to use it. Furthermore, the basis of the plaintiff's claim in this area is compensation for the loss of a possibility. In all the circumstances I think that an award of $5,000 is appropriate to compensate the plaintiff for prospective loss of profits in relation to the horse Bojangles. I note that there is no evidence that any profit was to be made from showing the horse at local horse shows and the like, but the award of damages will take into consideration the plaintiff's loss of enjoyment of such activities.

12. The plaintiff was not an articulate witness and has overall displayed a stoical attitude to his injuries. Such an attitude does not always result in a generous award for pain and suffering. On the other hand there is plenty of evidence, apart from the plaintiff's own description of his symptoms, which lead to a conclusion that the plaintiff has suffered substantial pain and that there has been serious interference with his enjoyment of life's activities which will continue indefinitely into the future. I note the opinion of Dr Stubbs that "it is reasonable to attribute his symptoms in part to his accident, but essentially his present problems are due to the normal progress of a degenerative condition". I do not think that this sits easily with Dr Stubbs' other conclusion that the plaintiff's injuries have led to the plaintiff "ceasing work earlier than he otherwise would have". Furthermore, even accepting that the plaintiff's present symptoms are partly due to degeneration and partly due to aggravation, it is impossible for me to sort out which are which. In my view, the matter should be approached on the basis that the injury aggravated a degenerative but asymptomatic condition which I am not satisfied on the evidence would have become symptomatic even at the present time. I do accept that some symptoms may have manifested themselves somewhere in the future when the plaintiff would have been somewhere between the ages of 50 and 60 years but, as I have already ruled, I do not think those symptoms would have been incapacitating until a time which I select as being midway between age 55 and age 60. In all the circumstances, I think that an appropriate award for pain and suffering and loss of enjoyment of life is $27,500 as to which for the purpose of interest I attribute $20,000 as to the past. Interest will be awarded on that past element at 14 per cent per annum and the result reduced by half because the loss occurred more or less evenly throughout the period. That interest amounts to $7,467.

13. Out-of-pocket expenses are agreed at $1,669. The total damages are $145,485.31. Interest on past pain and suffering and loss of enjoyment of life is $7,467. I refrain from entering judgment as it seems that the plaintiff is likely to have received worker's compensation and there may be some interest to be awarded in respect of the past wage lost. I shall hear the parties on that aspect and on costs.