David Jones v Scruttons Limited [1987] ACTSC 46 (9 July 1987)

SUPREME COURT OF THE ACT

DAVID JONES v. SCRUTTONS LIMITED
S.C. No. 1210 of 1984
Negligence - Employer - Damages

COURT

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

CATCHWORDS

Negligence - alleged negligent act of fellow employee for which defendant vicariously responsible - alleged breach by employer to take reasonable care for safety of its workers - no negligence by fellow employee - failure by employer to take reasonable care for safety of workers in circumstances - no contributory negligence - no new question of principle.

Employer - alleged negligent act of fellow employee for which defendant vicariously responsible - alleged breach by employer to take reasonable care for safety of its workers - no negligence by fellow employee - failure by employer to take reasonable care for safety of workers in circumstances - no contributory negligence - no new question of principle.

Damages - injury at work - plaintiff employee's right leg injured when he fell between two rollers on conveyor - crushing of both sides of knee - sympathetic dystrophy of right leg - five per cent loss of efficient use of right leg - no new question of principle.

Damages - no claim for continuing actual loss of earnings - found to exist a real loss of earning capacity with potential to result in actual loss of earnings in the future. Evidence - credibility of witness - assessment as witness of truth.

The Myth of the Impressive Witness (1983) 57 ALJ 679

Barry, The Problem of Human Testimony, 11 ALJ 314

Griffiths v. Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161

Fox v. Wood [1981] HCA 41; (1981) 148 CLR 438

HEARING

CANBERRA
9:7:1987

ORDER

There be judgment for the plaintiff in the sum of $82,590.28.

The defendant pay the plaintiff's costs.

DECISION

This is an action by the plaintiff worker against the defendant employer for damages for personal injuries sustained by the plaintiff during the course of employment. The cause of action is negligence. The statement of claim is somewhat ambiguously worded, but it was accepted that the plaintiff relies upon a breach by the employer to take reasonable care for the safety of its workers and also upon the alleged negligent act of a fellow employee for which the defendant is vicariously responsible.

2. The broad circumstances of the injury upon which the plaintiff relies are set out in paragraph 3 of the statement of claim as follows:

"3. At approximately 2 p.m. on Wednesday, 2 May

1984 the plaintiff was required in the
course of his employment to retrieve by
lifting and/or moving a bundle of cut iron
rods from a steel framed trestle in the
defendant's premises. In order to so move
the said rods the plaintiff was required to
stand partly on the steel trestle and partly
on the inside roller rail of a conveyor.
When a servant or agent of the defendant
with whom the plaintiff was working partly
shifted the bundle of rods the same struck
the plaintiff's foot causing it to fall
between the rollers of the conveyor in the
defendant's premises."

3. Amongst the many particulars of negligence set out in the statement of claim the following emerge as the substantial ones:

". . . . .

(i) Failing to provide assistance (mechanical)
to retrieve and/or to lift and/or to move
the bundles of steel.

. . . . .

(k) Failing to instruct and/or prohibit and/or
to exhort the plaintiff from climbing onto
the trestle and rollers in order to retrieve
and/or lift and/or move the steel rods.

(l) Failing to provide hooks to retrieve the
rods which would eliminate the necessity of
climbing onto the trestle and/or rollers.

. . . . .

(o) Failing to provide a safe place to stand
upon whilst retrieving and/or lifting and/or
moving the aforementioned steel rods."

4. The defendant denies negligence and relies on contributory negligence, and particularly an alleged failure by the plaintiff to use a mobile crane and an alleged failure by the plaintiff to obey instructions.

5. The plaintiff's credit as a witness was subject to strong attack. I shall have something more to say about that when I come to discuss the matter of damages. It is, however, convenient to adopt the customary course of dealing first with the matter of liability.

6. The plaintiff is aged 23 years. He married on 7 March 1986. He and his wife have no children as yet. He left school at age 15. Apart from two years as "trainee manager" for a department store, he worked in unskilled occupations until commencing in March 1984 with the defendant as a driver and factory hand. His duties were to collect and deliver and to help cut and bend reinforcing steel rods and mesh. The rods were delivered in bundles of up to 50 rods, depending on the diameter of the rods. The diameter varied from 6 to 35 millimetres. The bundles were stacked in the yard and when needed brought by mobile crane into the workshop. The workshop had within it a long bench about twenty metres in length (also described as a trestle) with a cutter (also described as a guillotine or cropper) in the middle. Running the whole length of the bench was a series of rollers about two to three hundred centimetres in width and spaced about seven to ten centimetres apart. These acted as a type of conveyor whereby steel rods could be moved in order to be cut to length. The rollers were on the righthand side of the bench and of the cutter as one faced the interior of the workshop. The bench itself was without a true bench top. It consisted of a number of upright steel frames with horizontal cross members at the top spaced about half a metre from each other. These acted as a type of rack. The system was for bundles of rods to be positioned by the mobile crane on the bench on the side closer to the yard. The operators then selected a single rod for cutting, pulled it across to the rollers, and then moved it on the rollers towards and past the cutter to the appropriate position for cutting the correct length. When the rod was cut, the section cut to the desired length was then on the interior side of the cutter. The operators then lifted the rod manually from the rollers and placed it on the bench. From time to time there would be an accumulation of cut rods on the bench. On the opposite side of the bench from where the rollers were situated was the bending section of the workshop. The employees engaged in the bending of rods selected the individual cut rods from the bench top and then subjected them to the bending process. The evidence established that a number of cut rods would be secured together in bundles and left on the bench top. Other bundles of cut rods would be secured together and left on the floor on the bending side of the bench.

7. The plaintiff's injury occurred in the early afternoon of 2 May 1984. He was working with Mr. Phil Martin, another employee who had more experience than he did and who had some degree of authority over him. The two men were cutting lengths of steel in the way just described. They discovered that some of the lengths cut had been cut to the wrong size. The cut lengths lay on the bench adjacent to the rollers. It was decided between Mr. Martin and the plaintiff to retrieve those sections erroneously cut, and cut them again for the purposes of another order. In order to do this it was necessary to select each individual cut rod and put it back on to the rollers. There was an accumulation of rods and possibly of bundled steel on the bench. The pieces that had recently been cut were, according to the plaintiff, some twelve metres in length. According to the plaintiff's case, it was not practicable to simply lean across and manually drag a single rod back on to the rollers. This was because the weight and flexibility of the rods made them difficult to handle and also because the rods tended to obstruct one another. It was necessary, according to the plaintiff, to climb up on to the bench in order to free the rod that was sought and to then place it back on the rollers. The plaintiff climbed on to the bench as did Mr. Martin, each at opposite ends of the rods. The plaintiff was at the end of the rod closer to the cutter. Each man picked up a rod at or close to each end, and moved it on to the rollers. At that stage the plaintiff had his left foot on the bench and his right foot on the rollers. According to the plaintiff, Mr. Martin "flicked his end" before the plaintiff had got down from the rollers. This had the effect of knocking the plaintiff's right leg from under him and causing the leg to fall between two rollers, jamming the plaintiff's knee-cap. According to Mr. Martin, he had already placed his end of the rod on the rollers and climbed down from the stack when he heard the plaintiff fall.

8. The plaintiff relies upon a casual act of negligence on the part of Mr. Martin and also upon an unsafe system of work. I see no reason to reject the evidence of Mr. Martin. The plaintiff did not say that he saw what he alleges. Mr. Martin did and I conclude that the plaintiff's evidence on this aspect is really a reconstruction on his part. Whilst I think that it was inadvertent of Mr. Martin not to watch what his workmate was doing in the circumstances, I do not think that this establishes a lack of reasonable care on his part for the safety of the plaintiff, and I reject the contention that there was negligence on the part of Mr. Martin for which the defendant is responsible. On the question of a negligent system of work, it is clear that over a period of time the employees of the defendant had made a practice of climbing upon the rack in order to retrieve pieces of steel in circumstances very similar to those in which the plaintiff and Mr. Martin acted on the day in question. The defendant was aware that this was an unsafe practice, particularly because of the instability of the rollers if a worker needed to keep his balance by standing on the rollers. The general manager of the defendant, Mr. Frank Clark, who gave evidence, had instructed the workshop foreman, Mr. Fred Bolton, to ensure that the workers did not climb up on to the bench. Mr. Bolton said that he made a practice of informing employees when they joined the company that they were not to climb up upon the bench. Neither Mr. Bolton nor Mr. Cox, however, had any independent recollection of instructing the plaintiff to this end. Mr. Cox, the leading hand, said that he received instructions from Mr. Bolton "to tell everybody not to get up on to the rollers, which I did". In the light of the evidence of Mr. Martin, I have little hesitation in finding on the balance of probabilities that no such instruction was ever given to the plaintiff. The lack of instruction in itself amounts to failure to take reasonable care.

9. Mr. Boris Osman, a consulting engineer whose qualifications are well known, gave expert evidence about the various alternative methods that were available to the defendant to obviate the risk to which employees would be exposed by climbing up on the bench. These included the use of an overhead monorail device, a hoist or a mobile crane, or a combination of any of the three. Whilst I think that it was reasonably practicable to use any one or more of those devices, I do not think that, having regard to the magnitude of the risk and the cost involved of installing such devices, the employer's duty to take reasonable care for the safety of the employees required the expense of installing any of those devices. A mobile crane might have been available in the yard, but I am not convinced that it was available for use within that part of the workshop where the plaintiff was injured without a major reorganization of the defendant's stacking and bundling procedures. I am further not convinced that it was reasonable to require the defendant to reorganize those procedures. On the other hand, Mr. Osman said that simple hooks could be fashioned for the purpose of retrieving single rods of cut steel from the bench, and dragging them across to the rollers. Furthermore, the evidence in the defendant's case established that the workers had for themselves fashioned such hooks from short pieces of the very rods which had to be moved and manipulated and that these were in use both before and after the plaintiff's injury. No one had, however, on my finding instructed the plaintiff as to the use of such hooks and whilst it may have been that the hooks were available to be used by the plaintiff if somebody had asked him to do so or suggested to him that they were available, it could not be said that the hooks had been in any real sense "supplied" to employees in the position of the plaintiff. That, in my view is a further reason for finding common law negligence on the part of the employer.

10. It was alleged that the plaintiff failed to take reasonable care for his own safety. Whilst it must be obvious to any employee that to climb upon the structure in question presented a risk of slipping on the rollers and suffering the sort of injury that the plaintiff did in fact suffer, the question is whether the plaintiff's behaviour was in all circumstances unreasonable. I do not think that the defendant has established that it was. Clearly, on the defendant's own evidence employees were repeatedly climbing on the rack for the very same purpose for which the plaintiff climbed on it. In doing this they were not engaging in anything in the nature of skylarking, but acting under the usual pressures encountered by workers required to carry out an employer's enterprise without delay. Inadvertent though the plaintiff may have been, I do not think that what he did displayed an unreasonable lack of care on his own part. I have already said that the inadvertence of Mr. Martin although contributing to the injury did not, in my view, constitute negligence on his part. I would not reduce the plaintiff's damages for reasons of contributory negligence.

11. I turn now to the question of damages. The credit of the plaintiff as a witness was, understandably in the circumstances, subject to heavy attack particularly on this question of damages. I interpolate that I have already taken the matter of the plaintiff's credit into account before I decided the question of liability.

12. On the matter of credit, I should state in the first instance that, as a matter of impression, the plaintiff appeared to be an honest and truthful witness, although lacking in articulateness, and possibly intelligence. He is not a person of much education. There is a school of thought that it is dangerous for a trial judge to act upon impressions of a witness gained by observations of demeanour in the witness box and the like. According to the interim Report on Evidence of the Australian Law Reform Commission (ALRC 26) at para 586 psychological research supports reservations about the value of demeanour in divining whether a witness lies or tells the truth and suggests that the manner and appearance of the witness may actually mislead the fact finder about the value of the testimony. Loretta Re in The Myth of the Impressive Witness (1983) 57 ALJ 679 has sought to shatter the "prevailing myth" that observation of a witness is likely to lead to an informed decision as to the witness' reliability. She refers to the proposal of a psychologist, Dr D. Thomson, consultant to the Australian Law Reform Commission that the fact finding tribunal should be excluded from the courtroom during the taking of evidence and decide the issues on a transcript in order to avoid contamination by observation of witnesses. I acknowledge all the dangers, but the system is that a tribunal of fact is entrusted with the responsibility of deciding whether and how far the evidence of a particular witness is to be accepted. Under the present system it is beyond practical possibility to decide such questions by reference only to objective factors, uninfluenced by observation of the witness in the witness box. The recently released final Report on Evidence of the Law Reform Commission (ALRC 38) does not appear to recommend any restrictions upon the power of a tribunal of fact to rely upon observations of the witness.

13. Nevertheless, whatever objective matters there are have to be taken into account. There are a number of factors on which the defendant was entitled to rely to found the suggestion that the plaintiff's evidence could not be accepted. For instance, the plaintiff gave evidence and told a number of doctors over a period of time that he had resumed work in November 1985. Group certificates in evidence establish, however, that he had commenced work in July 1985, although that was not with the defendant but with another company.

14. It was put to the plaintiff in cross-examination that between July and November 1985 he continued to receive worker's compensation, although he had resumed work. The plaintiff acknowledged this and stated that he had on a number of occasions during this period received telephone calls from a representative of the insurance company involved and had informed that person that he had in fact resumed work. He also acknowledged that he received the fortnightly payments of worker's compensation by means of a cheque delivered by post to his residential address, and that although he realised that he was not entitled to the compensation, he nevertheless paid those cheques into his own bank account. The reason he took this course was, he said, that whilst he had been restricted to worker's compensation he had run up a number of debts, particularly instalments on a motor car.

15. There was also a curious feature of the case in that a letter was tendered by the defendant ostensibly written by the plaintiff advising that he was "now able to take up some sort of employment" and that he no longer required the monthly cheques. The plaintiff denied ever sending this letter and denied that it was written by him or written on his behalf. He gave some examples of handwriting when requested to do so under cross-examination. The handwriting examples are inconclusive. No handwriting expert was called. The defendant quite properly did not place any great emphasis on this aspect and, in my view, no conclusion is to be drawn adverse to the plaintiff on it.

16. There was also evidence that the plaintiff had not informed some of the doctors that he had resumed work between July and November and indeed there is positive evidence that he informed the doctors that he was still not working during that period.

17. Another matter that was raised on behalf of the defendant is that the plaintiff suffered subsequent injuries on 25 March 1986 and 16 April 1986 when working for Finemores Transport Pty. Ltd. Again, allowing that the defendant had good cause for investigating these matters during the course of cross-examination, nothing really turns on them.

18. It was also submitted on behalf of the defendant that an inference adverse to the plaintiff ought be drawn from the fact that the plaintiff had not sought to return to work with the defendant. On the other hand, there is evidence that he was unpopular amongst his fellow employees and I do not think that an adverse inference is to be drawn. It was suggested to the plaintiff in cross-examination that on the occasions when he had gone back to the premises of the defendant during the early period of incapacity to collect his pay, his difficulty in walking to the pay office was not reflected by the ease with which he returned to the vehicle. However, the only evidence on this subject was from Mr. Bolton. Mr. Bolton's evidence was, I think, influenced by what he considered to be the plaintiff's tendency to insubordination. I do not think that on this aspect it established more than that the plaintiff's condition appeared to improve over a period of time.

19. Even the plaintiff's present occupation was a matter of dispute. He agreed with his counsel's leading question at the commencement of his evidence that he was a cleaner. In cross-examination he agreed that he is not a cleaner but a "night filler in a supermarket". I think that the error was probably that of counsel: the duties do include some cleaning in any event.

20. The two substantial matters that need to be taken into consideration on the question of credit were the plaintiff's inability to recollect during evidence (and when he gave his history to some of the doctors) that he had returned to work in July 1985, and his continued receipt of worker's compensation despite the fact that he was back at work. In the end I am not satisfied that either of these matters affect the plaintiff's credit. As to the first, I accept simply that he has a bad recollection, or that the doctors have misinterpreted the history he gave them, or both. As to the second, I have given it full consideration. There was no evidence by which the defendant sought to prove that the alleged conversations with a representative of the insurance company did not take place. In these days of automated methods of periodic payments, it is not impossible that over payments of compensation can occur despite the worker informing the insurer that he is back at work. It was suggested that the worker in receipt of periodic compensation is under an obligation to give written notice to an employer of his resumption of work. The source of the obligation was not disclosed. I am not convinced that it exists. Of course, the plaintiff's deliberate and repeated use of the over payment is not to be condoned or applauded, but I do not think that it reflects upon him as a witness of truth.

21. Immediately after the injury the plaintiff was removed from the rollers with the assistance of workmates. His trouser leg had to be cut. As Dr. Thorpe points out in his report, the removal of the leg from the rollers involved a second crushing injury to the plaintiff's knee. Dr Cairns considered that it was important to take into account that the crushing took place on each side of the knee (on the medial and lateral aspects) and not from front to back (anteriorly over the patella). He was taken to the Woden Valley Hospital by the foreman, Mr. Bolton. The plaintiff stated in his evidence that they tried to place him in the back of the utility but he protested and was placed in the front. Mr. Bolton denied that there was any attempt to put the plaintiff in the back of the utility. Dr Corry reports that the plaintiff told him that he feared that his leg had been cut off in the machine at the time it was jammed. These aspects of the case do not make it any easier, but I think it quite likely, although the plaintiff never said so much in his evidence to the Court, that he was not only in a great deal of pain when his leg was trapped between the rollers, but that he was also under some apprehension that his leg was very severely damaged, so much so that his perception of events at that stage and soon after may not have been very accurate. The hospital authorities telephoned Mr. Bolton when the plaintiff was ready to go home and in fact the plaintiff was discharged some time later in the day. At that stage he was living with his parents. Over the next few days his leg became swollen, increasingly painful with associated numbness and a feeling of coldness and loss of colour. The plaintiff was then admitted to the Woden Valley Hospital and according to his own evidence which was neither challenged nor supported by any of the medical evidence, he remained there for another week. He continued under the care firstly of Dr Lithgow in the Anaesthetic Clinic and later by Dr Geoffrey Stubbs, orthopaedic surgeon. Following the joint consultation with Dr Stubbs and the diagnosis of a reflex sympathetic dystrophy, Dr Lithgow treated the plaintiff by way of lumbar sympathetic blocks. The initial response was considered to be good but after the first three months was considered disappointing. On 23 September 1984 Dr Stubbs considered that the principal orthopaedic concern was with the presence of and pain associated with post-traumatic retro-patellar chondroitis. In the interim period the plaintiff had been discharged from hospital on crutches which he continued using until about the end of 1984. He continued with the assistance of a walking stick to May 1985. He had physiotherapy in the interim for several months with visits to the physiotherapist once or twice a week. He had the use of a TENS machine for some time a few months after the accident, but it is not clear when he ceased to use it. He gave no evidence of continuing to use it at the present time. By 8 July 1986 Dr Stubbs, when reassessing the plaintiff on reference from solicitors, considered that the reflex sympathetic dystrophy had resolved, but that there was still a five per cent loss of efficient use of the right leg. I accept that opinion as an accurate assessment of the plaintiff's permanent disability.

22. In 1985 at about Easter time, the plaintiff entered hospital for an arthroscopy by Dr Stubbs, or on reference from Dr Stubbs, and the findings were that there were no internal derangement of the knee. When last seen for treatment by Dr Stubbs in April 1985, the plaintiff was considered to be recovering slowly and it was expected that he would be able to return to work later in the year.

23. The plaintiff's evidence was that he returned to work in November 1985. I am, however, convinced by the group certificates and the plaintiff's concession that his evidence-in-chief may be incorrect, that he in fact returned to work in July 1985. The work he did was with a transport company carting meat, involving both the driving of trucks and the handling of carcases. This is undoubtedly heavy work and he was able to carry on with the assistance of an off-sider. He drove long distances, at least from Canberra to Sydney and return. He says that the job "played hell with my knee" but that he coped with it.

24. In September 1986 the plaintiff's work with Finemores Transport Pty. Ltd. came to an end, again because of some disagreement he had with the management and the other workers. The plaintiff found work then with a furniture removalist by the name of Howell. He continued in that occupation until Easter 1987 when his employer went bankrupt. He says again that he managed the work but with difficulty "never lifting anything too heavy". On 20 May 1987 the plaintiff commenced work with his present employer. He is engaged in the unpacking of cartons in supermarkets, the stacking of the shelves and the cleaning up of the cartons. That would appear to me to be moderately heavy work. The plaintiff says, however, that he has applied for other jobs but upon disclosing the fact that he has had the previous injury whilst in the employ of the defendant, finds that "they don't want to know you". He conceded that he could carry out his work with the defendant, again with difficulty. There is no claim for a continuing actual loss of earnings, but it is put on the plaintiff's behalf that he has sustained a real loss of earning capacity which has the potential to result in actual loss of earnings in the future or, to put it another way, reduces his value as a unit on the labour market. I accept all that.

25. There appears to be no real dispute on the medical material that the plaintiff does suffer from a continuing disability in his right knee, that there is some slight limitation of movement and susceptibility to pain on frequent and heavy use. I think it is well summed-up in the opinion of Dr Coyle that "in the end he will be left with symptoms which are of nuisance value only although possibly severe enough to prevent him from doing heavy manual work indefinitely". Dr Stubbs advises against work on building sites.

26. The medical picture was complicated unnecessarily at one stage by a suggestion by Dr Cassar that the plaintiff is suffering from a back disability which is due to the subject injury. In my view Dr Cassar's opinion was clouded by his championing of the cause of the plaintiff and it probably encouraged those representing the defendant to take a somewhat suspicious view of the plaintiff. Dr Lane, a general surgeon who saw the plaintiff on behalf of the defendant, was given to understand that the plaintiff had not resumed work in two and a half years and that for the first twelve months claimed to require full-time nursing services. There was obviously a communication breakdown between doctor and plaintiff and I do not attribute all fault to the plaintiff.

27. Dr Lane is of the view that the plaintiff's disability, if any, is not due to any sympathetic dystrophy. Dr Stubbs' view appears to be that there is a combination of sympathetic dystrophy and retro-patellar chondroitis. Dr Cairns tended to the view that there was little or no disability but suggested that Dr Stubbs might be better able to judge this. The general weight of medical opinion, however, is that the plaintiff does suffer the residual disability I have mentioned and that its cause is or was sympathetic dystrophy which was relieved by the sympathetic block treatment of Dr Lithgow, but not completely relieved. Whatever the true pathological nature of the plaintiff's disability, it is on the balance of probabilities, a true although slight to moderate disability and in my view is a consequence of the injury.

28. There is a claim under Griffiths v. Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161. The plaintiff's mother gave evidence which was quite convincing. I am quite satisfied that up until the time the plaintiff ceased to use crutches, he required domestic assistance for several hours per week over a period of eight months. At a domestic rate of $6.50 per hour, this would give a figure of just under $1,000. Bearing in mind that the assistance was rendered by his mother who was engaged in full-time domestic duties in any event, I think it reasonable to allow $750 under this head.

29. Most of the other figures in the case are agreed. Out-of-pocket expenses amount to $4,274.77. The wage loss to 31 July 1985 was $13,103.36. The Fox v. Wood component ((1981) [1981] HCA 41; 148 CLR 438) is $1,802.15. As I have already indicated, it is impossible to fix the figure for loss of earning capacity in the future by reference to any periodical loss but bearing in mind the age of the plaintiff, a more than nominal but moderate sum must be awarded. I award $30,000 for loss of earning capacity into the future. For pain and suffering and loss of enjoyment of life, I accept the plaintiff's evidence that he was an active young man although not engaged in competitive sport, he was interested in abseiling and the like. He has recently married. He will probably have to bring up a family with all the physical demands that that entails. Although his disability is slight he has a long life ahead of him. I think it appropriate to award $30,000 for pain and suffering, as to which I would apportion $18,000 as to the past. For the purposes of assessing interest I note that the plaintiff has already been paid $19,394.12 in respect of worker's compensation. That figure, for reasons already indicated, exceeds the actual wage loss for the period he was off work. I think it appropriate therefore to credit the defendant in effect with a sum which I round off at $6,000 for the purpose of interest. I therefore assess interest on $12,000 from the date of injury to the present time, at fourteen per cent per annum reduced by one half, giving a figure of $2,660.00. That will be added to the other sums and there will be judgment for the plaintiff for $82,590.28. Unless the parties wish to be heard, I propose to order that the defendant pay the plaintiff's costs.