Domenico Esposito v Commonwealth of Australia [1987] ACTSC 84 (17 December 1987)

SUPREME COURT OF THE ACT

DOMENICO ESPOSITO v. COMMONWEALTH OF AUSTRALIA
S.C. No. 759 of 1984
Negligence - Employer - Damages

COURT

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

CATCHWORDS

Negligence - plaintiff injured at work - further aggravation of injury at work on same day - notice to employer of original injury - no causative link between original injury and plaintiff's current medical condition - no contributory negligence - no new matter of principle.

Employer - plaintiff injured at work - further aggravation of injury at work on same day - notice to employer of original injury - no causative link between original injury and plaintiff's current medical condition - no contributory negligence - no new matter of principle.

Damages - original injury to back diagnosed as lumbar ligamentous strain - further exacerbation of same injury - no causative link between plaintiff's present deteriorating spinal condition and original injury - no new matter of principle.

HEARING

CANBERRA
17:12:1987

DECISION

This is an action for damages for negligence brought by the plaintiff against the Commonwealth of Australia as his employer. The plaintiff was born in Italy on 20 August 1944. He served an apprenticeship as a hand compositor in the printing trade in that country. He completed that apprenticeship at age 16 and then worked as a printer in Rome and came to Australia in April 1969. After a few months with a private printery at Dickson he joined the Commonwealth Service in January 1970. He was employed for many years in what is now known as the Australian Government Publishing Service. He was at the time of the two injuries under consideration in 1980 a hand compositor. There is no question that he was at that time in 1980 a skilled and experienced tradesman. He was married in 1970 and has five children ranging in age from 11 years to 24 years.

2. The first injury is alleged to have occurred on 5 May 1980. On that occasion, according to the plaintiff's evidence, he went to the locker room at the ordinary starting time of about 8 a.m. There were no chairs or benches in the locker room. He was changing his shoes and as he did so he felt a pain and a tingling sensation in his back. It was a pain such as he had never experienced before. He went and informed his overseer, Mr. Sluce, who instructed the plaintiff to report to the sister at the clinic which was apparently conducted on the premises. The plaintiff went to the clinic but the sister had not yet arrived for work. He reported back to Mr. Sluce who, with knowledge of what had already happened to the plaintiff, said, "You'll have to wait until she arrives". He then instructed the plaintiff to go on with his work. The work involved setting metal type into what is called a setting stick which is about 25 cm to 30 cm long. The metal type had to be taken from a tray-like container called a case. The dimensions of the case were some 90 cm in length by some 40 cm in width and some 5 cm in depth. The cases were stored in shelf-like structures, each a metre or more in height. The structure (or the top of it) is apparently referred to in the trade as the bulk. The top is on a slope of about 30 degrees, much like the top of a reading desk. The bulk contains twenty or more cases, one on top of the other, but separated from each other so that each could be pulled out like a drawer. The case containing the smallest type was at the top and the case containing the largest type was at the bottom. As it happened on the particular occasion, the plaintiff was required to set a line of type of the largest size. The case was at the bottom, closest to the floor. According to the plaintiff, a case full of type weighs about thirty kilograms. This was not disputed. The plaintiff said in his evidence-in-chief, "As I grabbed the case to lift I felt a strong pain in my back". He went on to say that he then reported to his overseer who told him to see the nursing sister. She sent him home. In cross-examination the plaintiff stated that he squatted down and pulled out the case with both hands. At that stage he had not felt anything untoward in his back. He then started to set the type in the setting stick, at which stage he felt a feeling of pain in the back. He then decided to discontinue setting the type in that manner and to lift the case onto the bulk.

3. In a letter about which the plaintiff was cross-examined, which was not in evidence, but which he admitted writing on 14 July 1980, the plaintiff said, "I bend down to change my shoes for easy work, the shoes, and felt pain. I was unable to report to a nurse, the sister. I should commence work at 8 a.m. I report accident to my leading hand. I commence work and the bending down to remove type . . . . injure my back. I done a report to the nurse, the sister who referred me to the Commonwealth Medical Officer."

4. It was submitted on behalf of the defendant that I would not be satisfied on the balance of probabilities that the plaintiff's injury was incurred in the manner claimed, and that although it was not disputed that the plaintiff suffered some sort of back injury on the day in question, it might equally have occurred in the changing room or when the plaintiff was removing the case from the stack rather than when he was lifting the case after having removed it.

5. A Mr. Michael Seminaro, a fellow compositor, gave evidence that on the occasion in question he was near the plaintiff and heard him call out. On inquiring of the plaintiff what had happened the plaintiff said to him, "I went to try to lift this case and I bent down to lift this case and I hurt my side, my back". I accept Mr. Seminaro's evidence and no reason was advanced as to why I should not.

6. Mr. Sluce was called on behalf of the defendant. His evidence was that he had been informed by the leading hand, Mr. Klippan, and not by the plaintiff, of the incident in the locker room where the plaintiff had experienced a painful feeling in his back prior to starting work. According to Mr. Sluce, it was not until 9.15 a.m. that the plaintiff spoke to him about any relevant matter and it was to inform Mr. Sluce that the sister wanted to send the plaintiff to the Commonwealth Medical Officer. According to Mr. Sluce the plaintiff then said that he had injured his back but could drive his own car to the doctor. The plaintiff did not, according to Mr. Sluce, then explain how he had injured his back. However, in a written report dated 23 May 1980 which was in evidence, Mr. Sluce reported that the plaintiff had reported to him at 9.15 a.m. that he had injured his back, "pulling out a thirty-six point case". Mr. Sluce further said in his report that on investigation he found that the plaintiff "had set one line of type in a setting stick from the type case."

7. Mr. Klippan was not available to give evidence (and I draw no inference against either party in that respect) but a statement from him was in evidence. It was dated 3 June 1980 and in it he stated as follows:

"On the morning of 5 May 1980, when about to

start work at 8 o'clock, Mr. Esposito reported to
me that he had hurt his back after picking up his
dust coat from his locker. He was advised to see
the sister-in-charge and I reported the matter to
the overseer. He was then handed a job which
involved hand setting of one line. After setting
the line he then went to see the sister-in-charge
to report his back injury (approx. 8.45 hrs.).
On returning to this section he told me that he
was advised to see the CMO and subsequently left
work."

8. There was no oral evidence from the Commonwealth Medical Officer nor were any records from that source put in evidence. In fact the plaintiff did not say that he went to the Commonwealth Medical Officer. From the report of the plaintiff's general practitioner, Dr Gary Jones, dated 22 August 1983 it is clear that the plaintiff consulted him on the same day, 5 May 1980, with a complaint of injuring his back while lifting at work.

9. Whilst there must be considerable doubt about the matter, I think on the balance of probabilities that the plaintiff's account given in evidence is acceptable. First, it is established that something happened to his back when he was in the locker room before starting work. Whether it was when he was putting on his boots or putting on his dustcoat is not clear, but it does not, in my view, matter. Secondly, it is established that the incident in the locker room came to the attention of the overseer, Mr. Sluce, whether direct from the plaintiff or via Mr. Klippan again does not matter. There is little difficulty in making the next finding that the plaintiff experienced pain in his back after setting a line of type. That must have occurred after the plaintiff had done something to get the type out of the case. That means further that the plaintiff must have removed the case either wholly or in part from the stack. I think it not unlikely, as the plaintiff explained, that as he squatted in the normal way to set the single line of type, he experienced pain in his lower back which caused him to decide to remove the case altogether and place it on the bulk.

10. I am aware that the statement of Mr. Klippan carries with it the inference that the plaintiff had completed the job he was given to do before going to see the sister-in-charge and without complaining of a further incident of pain subsequent to that in the locker room. However, Mr. Klippan was not available to be cross-examined on that statement. The inference that might be drawn is contrary to the express evidence of Mr. Seminaro. There is no evidence from the defendant as to where the case was when the plaintiff left to see the sister. The plaintiff said in cross-examination that he was able to complete the lifting of the case onto the bulk. I think it likely, therefore, that the plaintiff left his place of work having experienced an exacerbation of pain in his back when he attempted to lift the case of type. Although I make that positive finding, I do not think that in the end it matters greatly whether the plaintiff suffered that exacerbation when he was trying to pull out the case from the stack or when he was trying to lift the case after having pulled it out. I shall return to that particular matter in a moment.

11. The plaintiff claimed that he suffered a further injury to the same area of his back on 7 October 1980. According to his evidence-in-chief this occurred when he was working in the monoroom. On that occasion he said he filled a galley or tray with metal lead, which are slices or strips of lead. According to Mr. Alan Knight, acting manager of the Australian Government Publishing Service, Canberra, a galley loaded in such a fashion would weigh about 14 kilograms, whilst a single lead ingot weighed 7 kilograms. It was his intention to put the galley on a trolley or piecart, as it is known. However, all the trolleys in the area were already full and he went to lift the galley to put it on a bench. Once again he felt pain in the same area of his back. He told the overseer and once again was sent to see the sister and sent home.

12. In a written report dated 4 November 1980 the plaintiff described the second injury in the following terms:

"Nature of injury: Re-occurrence of back injury

Details of accident: I went to the monocaster to
get leads ingot so I put on the tray
(two bars) and then I felt my back strain as I
was carring them back to my bulk, the distance I
walk was 10 to 15 meters. The weight was
approximately 25 kilos."

13. There was no other evidence relating to this incident. Dr Jones said in his report of 16 August 1983 that the records of his practice indicated that a partner, Dr Greenhalgh, saw the plaintiff on 7 October 1980 with pain over the L3 and L4 segments of the spine radiating to the left buttock and that Dr Greenhalgh at that time diagnosed a lumbar ligamentous strain. The allegation in the amended statement of claim relating to the subsequent incident is in the following terms:

"Approximately six months following the Plaintiff
returned to work and subsequent to the first
incident of 5th May 1980 the Plaintiff sustained
aggravation, exacerbation and acceleration of the
earlier injuries whilst moving a galley full of
metal to the composition room."

14. As far as the incident of 7 October 1980 is concerned, I am satisfied on the balance of probabilities that the plaintiff suffered some sort of exacerbation to his lower back and that it occurred during the process of moving a galley, but I am not able to determine exactly what the plaintiff was doing when he suffered that exacerbation and I am not convinced that the incident had anything to do with the absence or otherwise of trolleys.

15. The question, therefore, that falls to be determined is whether on either of these two occasions the defendant was guilty of a failure to take reasonable care for the safety of the plaintiff and whether the failure resulted in an injury to the plaintiff as claimed. I think in relation to each incident the question may be answered simply. I do not think that there was anything negligent about the general system of work as it related to the stacking of the cases and the requirement that employees like the plaintiff would from time to time either pull out the cases from the stack and make up a line of type without fully removing the case, or alternatively, on less frequent occasions, would fully remove the case and lift it onto the bulk. The evidence did show that in the years since the plaintiff's injury the risk of that sort of injury has been reduced by a greater proportion of work going to the photocompositing section of the printing office and a lesser proportion going to the hand compositing section. This follows simply from the introduction of new technology and not from the introduction of further safety measures. In any event, we have to look at the situation as it existed in 1980. There is no evidence that there was an alternative system used anywhere in the printing industry either in the area of government service or in private industry whereby the need to remove a case full of type could be avoided. It was suggested by way of submission that the Commonwealth might have installed some sort of mechanical device, but in my view that is simply in the area of speculation. There was evidence from an occupational therapist that the risk of back injury would be reduced by having all the cases kept at a working height so that a worker would not have to stoop to pick one up. That again, in my view, is to go beyond the bounds of what might be reasonably required of an employer in the position of the defendant in 1980.

16. However, I think that the plaintiff's claim has substance in that his first injury occurred on a very particular occasion. It had become known to the overseer that he had experienced pain in his lower back when he was in the locker room prior to starting work. He was told either by the overseer or by the leading hand to see the sister-in-charge when she arrived. In addition he was given duties which involved the need to pull out the case from the stack and which involved a further possibility that the plaintiff would then bodily lift or attempt to lift the case onto the bulk. In my view the plaintiff simply should not have been given that task on that day. Having been given notice that the plaintiff was suffering from some sort of pain in the back sufficient for him to consult the sister-in-charge, the reasonable employer would, in my view, have refrained from setting the plaintiff to a task involving such a risk. In instructing the plaintiff to do what he did and allowing him to do it, the Commonwealth was, in my view, guilty of a failure to take reasonable care for the safety of the plaintiff.

17. As far as contributory negligence is concerned, the defendant has not, in my view, discharged the onus of showing that the plaintiff failed to take reasonable care for his own safety. I take into account that the plaintiff was an experienced tradesman and that his employer was not expected to act as his nursemaid. On the other hand, the plaintiff's skill and experience lay in matters technically associated with his trade. There was no evidence of his ever being given particular instructions relating to the risk of back injury and in particular was given no warning or instruction on the day in question when it was obvious to the employer that his back was in an abnormal condition. I do not think there was any failure on the part of the plaintiff to exercise reasonable care for his own safety. I note that Mr. Knight was aware of the practice, on occasions, whereby compositors would lift a case of type onto the bulk, and he said he would not have interfered if he had seen a compositor doing that because he would have expected that as an experienced tradesman, the compositor would have known what he was doing. Mr. Sluce did not direct his attention to the safety aspects involved, and there was no evidence that he had ever done or been introduced to do so by higher levels of management.

18. As far as the second incident is concerned, I am not convinced that the defendant has shown a failure to take reasonable care on the part of the plaintiff. In the first place, as I have already said, I am not convinced that the failure to supply trolleys had anything to do with that incident. In any case, the plaintiff would have had to lift whatever it was he was putting onto the trolley just as much as he had to lift it, according to him, onto a table. If the plaintiff's claim in negligence is to succeed in respect of this later incident, it must be upon the basis that it was unreasonable of the defendant to set the plaintiff to the task that he was performing on the day in question. There is no evidence, however, that it was outside the range of duties that the plaintiff had been performing since his return to work some three to four weeks after 5 May 1980. He said in his evidence that he could not do much lifting and whilst I accept that this would have been so during the early period, I note that the plaintiff consulted Dr Jones on 23 May 1980 and on 2 June 1980 by which time the doctor reported only slight pain in the back. The plaintiff conceded that he continued to do gardening at home and also that he played soccer occasionally. I think that whatever the exact nature of the incident that occurred on 7 October 1980, it was such a slight exacerbation of the injury of 5 May 1980 that it should not be regarded as a new injury at all. Dr Greenhalgh prescribed drugs to reduce the inflammation and physiotherapy at that stage. By 20 October the plaintiff was "almost better" and by 27 October there was slight soreness and stiffness but the plaintiff was instructed to return to work. This he presumably did, although he did not give any evidence of actually losing any time from work at this stage.

19. The plaintiff said that after that he could not work continuously because he felt pain once every couple of months which worsened. However, as far as the medical evidence is concerned the plaintiff did not seek any medical attention between the end of October 1980 and 16 December 1981 when he consulted Dr Jones complaining of back pain "with no provoking injury" and of soreness over the left hip and thigh. Dr Greenhalgh thought that this was probably a recurrence of the old injury which was considered to be ligamentous. On 12 January 1982 the plaintiff consulted Dr Jones complaining of two days of very bad back pain leading to nausea and radiating down into the left foot. The plaintiff in his evidence said that this followed an incident when he was on holidays at a beach when he was lying in the shallows playing with his children and was struck by a wave. He said that on standing up he immediately felt pain and caught a bus back to Canberra to consult his doctor. Dr Jones referred the plaintiff to Dr Chandran, a neurosurgeon, whom he first saw on 16 January 1982. An x-ray was taken at about that time and on 14 January 1982 the plaintiff again consulted Dr Jones who, according to his report of 16 August 1983, "was still sure that he had an acutely ruptured lumbar disc". The x-ray had been unremarkable. Nowhere else in the report does Dr Jones express the view that the plaintiff had suffered any rupture of the lumbar disc and the statement that he was "still sure" is curious. However, Dr Jones was not asked anything about this during his evidence. The effect of Dr Jones' evidence was that he took the view that because there was such a continuity of symptoms, the plaintiff's condition through 1982 and indeed to the present time should be regarded as related to the injury of 5 May 1980.

20. However, the rest of the medical evidence is over-whelmingly against the plaintiff and Dr Jones' opinion. I do not think it is necessary to set out the rest of the plaintiff's medical history except to say that it indicates complaints which on the face of it are those of a deteriorating spinal condition. There is also evidence of a functional overlay and of psychological factors which derive from the plaintiff's unfortunate domestic circumstances. There have been a number of exacerbations of the condition from time to time. Dr Chandran reported that a radiculogram taken on or soon after 16 January 1982 showed a large disc protusion at L4/5 level, with compression of both L5 roots. He performed a disc excision of a protruded lumbar disc on 26 January 1982 after which the plaintiff was given work of a lighter nature without the need for lifting. He coped with this reasonably for some time but his services with the Commonwealth were terminated in February 1984. Prior to the accident in May 1980 the plaintiff had a good relationship with his wife and children and had an active social and sporting life. He used to take his family on picnics with friends, attend dances with his wife and played a bit of soccer. Since Dr Chandran's operation on 26 January 1982 he has ceased his sporting activity. His relationship with his wife has deteriorated because, as he said in evidence, he is "not the same man" as before. He has become increasingly impatient with his children and even little things can make him angry. He can no longer do any work about the house or in the garden whereas prior to the 1982 operation he did do some gardening work. The deterioration in the matrimonial relationship and relationship with the children is corroborated by evidence from the plaintiff's wife and from one of his sons.

21. In April 1986 there was a further exacerbation and there was an operation carried out by Dr Newcombe on 4 July 1986 which involved a decompression at the L4, L5 and S1 nerve roots and in addition a discectomy was performed at the L3/4 level. These operations do not appear to have been successful and the prognosis is guarded. Dr Newcombe expresses no view at all as to the relationship between the plaintiff's condition when he first saw him on 17 December 1985 and the injury or injuries in 1980.

22. The opinion of Dr Chandran, who operated on 26 January 1982, is one to which great weight has to be given. He is clearly of the view that because of the lack of continuity of symptoms between October 1980 and December 1981, the condition which necessitated the operation in January 1982 was not causally connected to the injuries in May 1980. That opinion, however, is based not only on the assumption of lack of continuity of symptoms but also on the assumption that the history given as to the incident in the surf is correct. The plaintiff was far from impressive when he was asked about this incident and when his wife was called to give evidence, she denied that it had ever occurred. On the other hand, she did not appear to be entirely forthcoming as to what had in fact occurred and if she had simply not been present at the time of the incident, she could hardly give any evidence as to its non-occurrence. This is a curious aspect of the case but it leaves the plaintiff with the history that he has given to the Court and to Dr Chandran and that history leads to the conclusion of Dr Chandran, which I accept, of a lack of causal relationship between the May 1980 injuries and the condition in the plaintiff's spine from December 1981 onwards. I have carefully weighed up the evidence of Dr Jones which favours the plaintiff's case, but Dr Jones is in no better position than myself to decide whether there was a continuum of symptoms between October 1980 and December 1981. I am not convinced on the balance of probabilities that there was that continuum. Accordingly, the award of damages will be to cover what I consider to be a ligamentous injury to the plaintiff's spine on 5 May 1980 which led to a loss of some three to four weeks employment immediately thereafter with commensurate but decreasing pain until sometime shortly after the end of October 1980, with some spasmodic loss of a few days work in the intervening period. The loss must accordingly be a small one.

23. The figures supplied by the defendant indicated that the plaintiff lost time from work from the date of the first injury on 5 May 1980 to 6 June 1980 at a net pay rate of about $310 per week. I award $1,300 for this period and a round sum of $1600 for total loss of wages. Out-of-pocket expenses to 14 November 1980 (shown in table 3 being annexure B to interrogatories answered by the defendant and including pharmaceutical and physiotherapy expenses) amount to $237.75. I award general damages of $5,000. Interest is claimed. The plaintiff's action was not commenced until 12 June 1984. A delay of such length may disentitle a plaintiff to interest in the absence of some explanation, but in the exercise of my discretion, I award a lump sum of $500 in lieu of interest. In summary the award is as follows:

Total loss of wages $ 1,600.00
Out-of-pocket expenses $ 237.75
General damages $ 5,000.00
Interest $ 500.00

Total: $ 7,337.75

24. The plaintiff is to have judgment for $7,337.75. Unless the parties wish to be heard I propose to order the defendant to pay the plaintiff's costs.