Simo Dimitrijevic v Interior Joiners (Aurora) Pty Limited [1987] ACTSC 10 (4 March 1987)

SUPREME COURT OF THE ACT

SIMO DIMITRIJEVIC v. INTERIOR JOINERS (AURORA) PTY. LIMITED
S.C. No. 1204 of 1981
Employee/Employer

COURT

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

CATCHWORDS

Employee/Employer - Negligence - In each case alleged failure to provide sufficient manpower for safe system of lifting at work - Assessment of damages - No new principle involved.

HEARING

CANBERRA
4:3:1987

ORDER

There be judgment for the plaintiff in the sum of $166,764.84.

The defendant pay the plaintiff's costs of and incidental to the action.

DECISION

The plaintiff in this action was born on 12 March 1928 in Yugoslavia. His father died in 1934 when he was six years old. He began school when aged about eight and had four years primary school education, leaving school in 1941 when aged about 12. He married, it would seem, in 1944. He worked in Yugoslavia variously in the building trade, on the family farm and in what he described as "with coal factory". He obtained no formal qualifications and I am satisfied that his training leaves him with no capacity for any work other than that involved in the general labouring field.

2. He came to Australia in January 1969. He worked as a kitchen hand for some years and then went into the building industry working apparently as a builders' labourer. In May 1975 he began to work for the defendant as a builders' labourer. He claims that while employed by the defendant he sustained injuries through its negligence in two accidents, the first on or about 30 September 1975, the second on or about 31 October 1977.

3. On the morning of 30 September 1975 four of the defendant's employees set off from Queanbeyan to install some wardrobes at Chapman, a suburb of Canberra. The plaintiff travelled to Chapman in a truck with Mr William Weyers, then employed by the defendant as a leading hand. I am satisfied that three wardrobes plus a few small items had been loaded onto that truck. Mr Weyers gave evidence that an apprentice accompanied the plaintiff and him to Chapman. One of the four men who set out from Queanbeyan to install the wardrobes at Chapman was Josip Rathouski. He gave evidence that an apprentice and he, two of the four, lost their way. On this point I prefer his evidence and that of the plaintiff to Mr Weyers' evidence, more particularly since Mr Weyers in a report of the accident in question gave his own name as that of the only direct witness to the accident.

4. When the truck arrived at Chapman, at 19 Titheradge Place, it was parked about ten metres from a small flight of stairs leading into the house. Mr Weyers elected to proceed to carry in the wardrobes with the assistance only of the plaintiff although I am satisfied that the original plan was that all four of those who set out from Queanbeyan should be engaged in carrying them into the house, sensibly as I think, having regard to their size and weight and the awkwardness of the operation. The plaintiff and Mr Weyers managed to get at least one of the wardrobes into the house without incident.

5. The pair then attempted to carry another wardrobe into the house. The plaintiff was holding its leading edge as they carried it and was walking backwards. The plaintiff described the wardrobe as very heavy and as, to use his words, "that is not to carry for only two people". He complained to Mr Weyers about having to carry it. He managed to lift it up one step but was unable to lift it onto the second step. He fell with the leading edge of the wardrobe across his thighs and struck his upper lumbar spine on the edge of one of the concrete steps.

6. In my opinion the defendant, through Mr Weyers, was negligent in adopting the method of carriage used. It must have been obvious that there was a very real risk that the man moving backwards while carrying such a wardrobe would fall on stairs as he mounted them.

7. I am therefore satisfied that the defendant is liable for any damage suffered by the plaintiff as a result of the fall.

8. Following the accident the plaintiff was off work for about two weeks. He continued to work for the defendant thereafter.

9. On 31 October 1977, he was injured again. A report of injury furnished by the defendant to its insurer describes the accident as having occurred when the plaintiff was "lifting cupboard onto truck lost his grip and slipped his disc". One "A. Nickro" (sic) was shown as the only direct witness to the accident. The report incorporated a "declaration by the employee", the plaintiff. The description of the accident in that part of the report which was to be completed by the employee who was injured was made by Mr Weyers, by this time manager of the defendant, on behalf of the plaintiff. The description was as follows:-

"Loading truck with cupboards, slipped with

the grib (sic) I had on one corner and
slipped my disc."

10. The declaration was signed, as I am satisfied, by the plaintiff.

11. However, the plaintiff denied that the accident which he suffered on that day had occured as was set out in the report of injury.

12. He gave evidence that the accident which befell him occurred, not at Queanbeyan as the report of injury form set out, but at Phillip. He and a fellow employee, Mr Nikro, had gone to Phillip from the workshop. They had with them some steps which were to be installed at premises at 7-11 Botany Street. The steps had been prefabricated. A flight of steps was installed from ground level to a landing from which two further flights were to lead right and left to the first floor of the building. The particular flight of steps concerned was that which led from the right of the landing to the first floor. It weighed, as I am satisfied, between 79 1/2 and 97 1/2 kilograms, most probably about 88 1/2 kilograms (about 194 1/2 pounds). The two men encountered difficulty in installing it. During the course of their attempt to install it the plaintiff took a very substantial lift, the whole of the weight of the steps on his shoulder. As a result he sustained further injury to his back.

13. Mr Nikro, at the relevant time a carpenter and cabinet maker but now retired, was called to give evidence. He was not asked about the injury referred to in the report of injury but gave evidence which differed significantly from that of the plaintiff concerning the incident at Phillip. His evidence was not easy to understand because of language difficulties but I am satisfied that what he meant was as follows. He said that he and the plaintiff were required to fit steps from the ground level to the first storey of the premises. The steps had been built in the factory. When he attempted to install them he found that they were not of the right measurements. He called his manager, no doubt Mr Weyers, and told him that the steps were not right. He was told to fix them up. He did that and subsequently received a call from the manager requiring them to take the steps off and refix them because the building inspector had not passed them.

14. The evidence shows that the inspection made by the building inspector took place on 4 November 1977. But I am satisfied, on all the evidence, not least the evidence of time books kept by the defendant, forming Exhibit 9, that any injury sustained by the plaintiff as a result of an accident involving the steps occurred either on 31 October 1977 or 1 November 1977, the earlier date being the more probable because on 1 November 1977 he attended upon Dr Niewiadomski complaining of having received an injury the day before. The time book shows him to have attended work on 1 November 1977 but it may well be the case that he attended work and went subsequently to consult his doctor.

15. Mr Nikro and the plaintiff carried out the necessary adjustments to the steps on the first occasion in a room 7 - 10 metres from the place where the steps were to be located. One of the three flights of steps having been adjusted to Mr Nikro's satisfaction it was necessary to lift it from the ground or floor to a height of at least three quarters of a metre (approximately 2ft.6in.) so that it might be carried from the room to the place where it was to be installed. As the two men lifted the flight of steps (it was, as Mr Nikro said, heavy) the plaintiff fell down and said, "Oh, my back". Mr Nikro took the plaintiff to a chair and he said again, "My back" and was crying. Later, in cross-examination, he said,

"When I lift up the big one, the first one we
have to put the bottom on, when he lift up
the bottom one and he get hurt in that time
he said, 'Oh, my back' and fell down with the
steps."

I took that evidence to mean that the plaintiff was injured when attempting with Mr Nikro to lift the bottom flight of steps. That flight consisted, as appears from a photograph, Exhibit B, and the evidence of Mr Childs, of nine steps and using the weight established in respect of the shorter flight of 7 steps as a guide, it would have weighed somewhere between at least 101.8 kilograms and 125.3 kilograms, most probably about 113.5 kilograms (about 250 lbs).

16. As I understand his evidence, acceptance of the plaintiff's version of the incident involves acceptance of his standing on the ground near a landing about 198cm (6ft.6in) above ground level (see Exhibit R). It would follow, that the plaintiff was in some fashion which is not clear attempting to lift the right flight of steps from the ground onto the landing so that they could be manoeuvred into position. This seems so unlikely as to lead to the rejection of the plaintiff's version of the incident as improbable. At the same time the version given by Mr Nikro seems to me to be highly probable and acceptable. I accepted him as a witness of truth, noting, however that there were deficiencies in his recollection due to the lapse of time. I am satisfied that he gave an accurate account of the essential features of the incident. For what it is worth his version is to some degree corroborated by what the plaintiff told Dr Newcombe, a neurosurgeon, when he first consulted him on 30 March 1978, i.e. that "he was lifting a flight of stairs at about the beginning of November 1977. As he did so he developed low back pain".

17. I am also satisfied that to require two men, one of whom, the plaintiff, was known by Mr Weyers, by then Manager of the defendant, to have a weakened back, to manhandle a flight of steps of that weight was negligent. In my opinion it was readily foreseeable that a man with a weakened back, not young, could readily be injured by manhandling such a heavy and awkward object. I accept that a weight such as that involved was too great for safe manhandling by two men. It seems to me that at least one further man should have been provided to assist in the operation. Accordingly, I am satisfied that the defendant was negligent in the system of work which it adopted in respect of the installation of the flight of steps which the plaintiff was lifting. It is liable for any damage sustained by the plaintiff as a result of the injury caused him in the incident.

18. On 1 October 1975 the plaintiff attended on Dr Niewiadomski complaining of low backbone pain. Dr Niewiadomski "gave him sick leave" from 1 October 1975 to 15 October 1975 and again from 16 October 1975 to 22 October 1975. The wages records tendered indicate that the plaintiff was off work for a fortnight following the accident on 30 September 1975 but there is no indication that he was absent from work for three weeks as Dr Niewiadomski's report might indicate.

19. Reporting on 13 August 1982, before a more detailed search provided the information to which I have just referred, Dr Niewiadomski said that the plaintiff first came to see him as a patient on 2 August 1976 and first consulted him about a slipped disc on 17 October 1977 without making mention of any accident. However, on 1 November 1977 the plaintiff reported that he had injured himself at work the previous day "as he had slipped".

20. It is to be noted that according to the wages record tendered in evidence the plaintiff was absent from work two days in the week ending 18 October 1977. This accords with Dr Niewiadomski's report of a consultation about a slipped disc on 17 October 1977 and indicates that the plaintiff was having back difficulties following the first accident even though, apparently, on that occasion there was no particular factor identified as the cause of the condition about which he consulted Dr Niewiadomski. The wages records indicate that the plaintiff was absent from work for the week ended 8 November 1977 but, apparently, returned to work in the next week. He was then absent from work for two weeks, returning to work in the week ending 6 December 1977 although he had two days off sick during that week. He did not return to work until the week ending 14 February 1978. He worked for the whole of that week, the following week and two days of the week ended 28 February 1978.

21. There is some dispute as to the circumstances in which he left the employment of the defendant. On the whole I think I prefer the evidence given by Mr Weyers concerning this episode but, in my opinion, it really does not matter because I am satisfied that by this time the plaintiff had sustained a then incapacitating injury.

22. After the plaintiff came under Dr Newcombe's care a radiculogram performed early in May 1978 showed a protrusion of the disc at L5-S1 level with a smaller bulge at what I am satisfied was the L4-5 level. In June 1978 Dr Newcombe performed a simple disc excision of the lumbo-sacral intervertebral disc protrusion. Following this the plaintiff improved but there was some persistent right sided sciatica. In February 1979 the plaintiff had no low back pain but quite severe right sciatica with limitation of straight leg raising and sensory loss on both sides of the area supplied by S1 nerve roots. A further radiculogram demonstrated that the L5 nerve root on the right was enlarged and there were disc protrusions at L4-5 and L5-S1 levels. Dr Newcombe performed a full decompressive laminectomy at the L4 and L5 levels and a rhizolysis of the L5 nerve root sheath.

23. I accepted Dr Newcombe's conclusion that the plaintiff has continued low back disability following his injuries which prevent further effective employment.

24. Coupled with his physical injuries is a paranoic condition. On the balance of probabilities I am satisfied that the likely explanation for its existence was a combination of injury pain and stress related particularly to the second accident although some aspects of the plaintiff's personal life, particularly his separation from his family and his relative loneliness within the community, would undoubtedly have been a contributing factor.

25. I am satisfied on a consideration of all the medical evidence that following the surgery performed on him the plaintiff recovered to a point where he would have been fit for light work had such work been available for him. I am satisfied, however, that, given his age and background such work would have been unavailable for him and that effectively he was totally incapacitated as a result of his physical injuries. In making this assessment, I accept the evidence of Mr Kinnane of the Commonwealth Employment Service and take into account the films shown in evidence.

26. Although I am satisfied that the plaintiff was rendered unemployable as a result of the second accident, the effects of the first having subsided, I do not think it can be doubted that he would not have been able to work until he was 65 in any event because of his latent back condition. I think that, more probably than not, he would have been forced to retire from active work by not later than his sixtieth birthday and that, in any event, by his late fifties his condition would have deteriorated to a point where he would not have been able to do more than light duties. I am satisfied that he would have had considerable difficulty in obtaining suitable work at that point. But I make some allowance for the probability that he would have been able to gain some employment until he was 60 and for the possibility, which I do not regard at all highly, that even after that age he might have been able to find and do some.

27. In dealing with the question of past economic loss I have taken into account also the fact that the defendant employer was in some financial difficulty. While this would not of itself reduce the plaintiff's earning capacity, it would have had a bearing, I think, on his capacity to obtain work at his age having regard to his limited background and training and advancing physical deterioration.

28. The plaintiff worked as a part-time cleaner from 5 May 1977 until the accident in October 1977. Thereafter a friend took his place at that work under the plaintiff's name. The arrangement finished on 12 April 1978. It shows, however, that the plaintiff had, at least until 31 October 1977, a capacity to work longer hours than those he worked for the defendant. I am satisfied by the wages records that his claim for overtime fails. This claim was taken into account by Mr Cumpston, an actuary who produced a set of helpful figures, Exhibit "S".

29. The plaintiff also accepted a reduced wage from approximately 10 August 1977 to the end of his employment by the defendant. This was because the defendant was experiencing financial difficulty and not because of any perceived reduction in the plaintiff's capacity to work. I assess his loss of earnings on that basis making some allowance for the favourable contingency that such a reduction was hardly likely to have continued for a greatly extended period. In part that favourable contingency may be balanced against the possibility of earlier incapacity. Having regard to the plaintiff's age, the possibility of early death need hardly be taken into account.

30. For past economic loss I allow the sum of $100,000 and for future economic loss the sum of $10,000.

31. For pain and suffering I think the appropriate amount to award, having regard to the surgery undergone by the plaintiff, his continuing physical disability and the paranoia from which I am satisfied he suffers, is $45,000. For out-of-pocket expenses in accordance with the particulars furnished at paragraph (c) of the document dated 10 October 1984 I allow the sum of $5,896.03. For pharmaceutical expenses from the date of trial and continuing I allow the sum of $1,637.00.

32. The Fox v. Wood ((1981) [1981] HCA 41; 148 CLR 438) component of the plaintiff's damages is agreed at $4,231.81.

33. There will be judgment for the plaintiff for $166,764.84.