Milan Zoric v Hans Schmidt & Partners (ACT) Pty Limited (In Liquidation) [1988] ACTSC 12 (11 March 1988)

SUPREME COURT OF THE ACT

MILAN ZORIC v. HANS SCHMIDT & PARTNERS (ACT) PTY. LIMITED (IN LIQUIDATION)
S.C. No. 1408 of 1986
Negligence - Employer - Damages - Evidence - Witness

COURT

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

CATCHWORDS

Negligence - plaintiff injured at work - fall off ladder at building site - ladders subsequently replaced by scaffolding - no contributory negligence - no new question of principle.

Employer - plaintiff injured at work - fall off ladder at building site - ladders subsequently replaced by scaffolding - no contributory negligence - Scaffolding and Lifts Act 1912 (NSW) in its application to the ACT and Regulations made thereunder - no new question of principle.

Damages - fall off ladder - penetrating injury to abdomen - symptoms in cervical area, left forearm and left shoulder - aggravation of spinal condition previously asymptomatic - lump sum for future loss of earning capacity - no new question of principle.

Evidence - use of video film of plaintiff by defendant - no new question of principle.

Witness - credibility of plaintiff - exaggeration of symptoms - no new question of principle.

Scaffolding and Lifts Act 1912 (NSW)

Jones v. Dunkel [1959] HCA 8; (1959) 101 CLR 298

Kakouris v. Gibbs Burge & Co. Pty. Ltd. (1970) 44 ALJR 384

HEARING

CANBERRA
11:3:1988

ORDER

1. There be judgment for the plaintiff in the sum of $80,168.00.

2. The defendant pay the plaintiff's costs.

DECISION

This is an action for damages for personal injuries by the plaintiff against his employer the defendant. I indicated at the conclusion of the evidence on liability that I would find for the plaintiff on the issue of liability and would reserve the question of contributory negligence. At the conclusion of the evidence on damages I reserved that question also.

2. The plaintiff was injured on 6 March 1985 whilst working as a carpenter at the New Parliament House site. The injury occurred at about 10 a.m. It is uncontested that he was on an aluminium ladder about three metres long. The ladder fell sideways depositing him upon a protruding piece of reinforcing steel (called a "starter bar"). The steel penetrated the right side of his abdomen. The essential dispute on liability is what exactly the plaintiff was doing immediately prior to his fall. The plaintiff's evidence was that he mounted the ladder carrying a piece of plywood about 2.2 metres long, 60 centimetres wide and 18 millimetres thick intending to take it to the top. When he got near the top the weight of the plywood caused him to lose his balance and the top end of the ladder, which was resting unattached against oiled formwork timbers, slid to the left. However, the evidence of a workmate, Mr. Dusko Novakovic, whom I found to be a credible witness, was that the plaintiff was, immediately prior to the slipping, engaged in hammering in a nail. Mr. Novakovic gave a slightly different account to an investigator on 15 October 1985. His statement to the investigator was in evidence according to the provisions of the Evidence Ordinance. It read "I tacked the plywood at the top and he could see the line and was fixing the bottom part when the ladder slipped and he fell". Furthermore the plaintiff signed a compensation claim form on 2 August 1985 in which the following words appeared:

"Working on a ladder nailing plywood - ladder

slipped sideways causing fall on to exposed reo."

3. No matter which of these accounts is accepted, the defendant was, in my view, clearly in breach of regulation 80(6) of the Regulations made under the Scaffolding and Lifts Act 1912 (NSW) in its application to the Australian Capital Territory in that it failed to ensure that the ladder, as far as practicable, was securely fixed so that it could not move either from its top or from its bottom points of rest. Mr. Leonard Gilmour, a consulting engineer, gave unchallenged expert evidence that the ladder could have been fixed by tying the top stiles or rails or both to the formwork, if necessary by attaching to a nail, screw or bolt driven into the formwork or nearby wall. I had no difficulty in further concluding that the failure to comply with the requirements of the regulation in all the circumstances amounted to failure to take reasonable care for the safety of persons likely to use the ladder such as the plaintiff. The plaintiff relied on other particulars of negligence. I did not think it necessary to decide whether they were proved.

4. On the question of contributory negligence, the onus of course lies on the defendant. If the ladder fell in the circumstance described by the plaintiff in his evidence, namely by the weight of the plywood being carried by the plaintiff causing the ladder to topple sideways, I see little difficulty in rejecting the defendant's claim of contributory negligence on the part of the plaintiff. The ladder in question had been in use for several days. It belonged to the defendant. It may or may not have been placed there by the plaintiff but, in my view, that is of no consequence. In the circumstances the defendant had not taken reasonable steps to furnish the plaintiff with an alternative means of reaching his objective at the top of the ladder.

5. If, on the other hand, the plaintiff fell whilst he was engaged in hammering in a nail as Mr. Novakovic claimed, there may be more substance in the defendant's claim. As a tradesman carpenter the plaintiff was clearly in a position to be able to move the ladder to a position where he did not run an unnecessary risk of over-balancing whilst hammering in the nail. However, there is no evidence as to the distance between the plaintiff's position on the ladder and the nail. Although the plaintiff was not an impressive witness, particularly on the question of damages, I find it difficult to conclude that the account given by him in evidence is less probable than that of Mr. Novakovic. I doubt the weight of what appeared in the compensation claim form. The plaintiff probably had some language problem at that time. He gave his evidence through an interpreter.

6. No evidence was given by anybody from the management side of the defendant company. It is remarkable that no evidence was tendered by the defendant in the way of contemporaneous reports of the accident, entries in accident books or the like. Within a day or so of the injury to the plaintiff, the ladder had been discarded and replaced by fixed scaffolding. In the absence of evidence on these aspects from the defendant, I draw inferences adverse to the defendant more readily: see Jones v. Dunkel [1959] HCA 8; (1959) 101 CLR 298.

7. I bear in mind that a video film indicated that the plaintiff is capable of carrying on the selling of flowers to customers who presumably speak English. The question of contributory negligence must be approached upon the basis that the plaintiff has already established that the defendant failed to take reasonable care for the plaintiff's safety and whilst it does not follow that because the defendant was also in breach of a statutory duty, the plaintiff is under some lesser duty to take care for his own safety (Kakouris v. Gibbs Burge & Co. Pty. Ltd. (1970) 44 ALJR 384), I find that in all the circumstances the defendant has failed to establish that the plaintiff failed to take care for his own safety on the occasion in question.

8. I turn now to damages.

9. The plaintiff was born in Yugoslavia on 5 May 1930. He came to Australia in 1972 with his wife and three children. Another child was born after they arrived. His wife has since died. The children are all grown up except the youngest who lives with the eldest. The plaintiff received little formal schooling but he did complete an apprenticeship as a carpenter in Yugoslavia. He worked in that trade since his arrival in Australia. He was in previous good health without any significant disability.

10. The plaintiff was attended to at the first aid post at the Parliament House site and then removed by ambulance to the Royal Canberra Hospital where he remained for about nine days. Dr Dyason explored the wound but no intra-abdominal injury was found. Upon his discharge from hospital the plaintiff attended a local doctor, Dr Niewiadomski, who speaks some Serbian and it was in that language that he and the plaintiff conversed. It appears that most of the other doctors have had the services of an interpreter. The plaintiff's initial complaints to Dr Niewiadomski were of pain in both shoulders which prevented him from lifting up his arms and of low back pain. Dr Niewiadomski prescribed physiotherapy, pain-killers and anti-inflammatory tablets and referred the plaintiff to Dr Newcombe, a neurosurgeon. The initial consultations with Dr Newcombe were on 31 July and 21 August 1985 and the history and findings are set out in Dr Newcombe's report of 24 March 1986. The plaintiff complained of numbness and aching in the right rib area, of neck pain and constant pain in the left arm extending to the forearm as well as occasional backache. On examination there was found to be restriction of lateral flexion of the neck to about thirty degrees on each side and sensory loss in the area of the abdominal scar. X-rays taken on 17 May 1985 revealed disc degeneration at the C5/6 level and narrowing of the three lower lumbar disc spaces. A CT scan confirmed cervical spondylosis at the C5/6 level. The plaintiff's complaints were repeated on 21 August 1985 on which occasion Dr Newcombe suggested the possibility of surgery. The plaintiff decided to defer that question in order to see if there might be some improvement in his condition.

11. In the meantime the plaintiff continued with the treatment of Dr Niewiadomski. Dr Niewiadomski considered that he was unfit for any employment involving manual labour and that only part-time light duties would be suitable. Dr Niewiadomski noted that the plaintiff's poor English, his age and his obesity were further factors which disqualified him from a range of employment. Dr Niewiadomski has administered hydrocortisone injections from time to time but feels that this course is no longer open.

12. Dr Niewiadomski gave evidence and his notes were also admitted into evidence. Dr Niewiadomski has no note at the initial consultation of 15 March 1985 of complaints of pain in the shoulders, neck or back. The first complaint of pain in any of these areas was in respect of the right shoulder and that was on 26 March 1985. The first record of a complaint of pain in the neck was on 16 May 1985, when the pain was noted as radiating to the right shoulder. There is no record of pain in the left shoulder until 4 June 1985.

13. When the plaintiff was referred to Dr Kitchin, orthopaedic surgeon, by the defendant on 17 October 1985, the complaint was of pain in the base of the neck, the left shoulder, down the arm to the elbow. Dr Kitchin found on examination restriction in the movement of the neck with associated pain, wasting of the muscles of the left shoulder together with limitation of shoulder movement with pain at the extremes of abduction and rotation. Dr Kitchin thought that the left shoulder was the major cause of disability with the clinical features of a rotator cuff tendinitis consistent with the nature of the fall from the ladder. I note that there was no complaint of low back pain to Dr Kitchin. Dr Kitchin's initial views remained unchanged upon his re-examination of the plaintiff on 15 June 1987. He thought the plaintiff was not fit for full duty as a carpenter.

14. The plaintiff was examined by Dr Andrew in December 1985 on behalf of the defendant. Dr Andrew's reports are not in evidence and he did not give evidence but I do not think any inference is to be drawn either way from his absence. The plaintiff's solicitors referred him to Dr Corry, a rehabilitation specialist, whose reports were in evidence. Dr Corry saw the plaintiff on 8 December 1986 and 21 January 1988. The major complaints related to the neck where the plaintiff complained of constant but variable pain and clicking sensations with movement. He spoke of persisting problems with his left arm and pain spreading from the left shoulder to the elbow with reduced movement in the arm. The lower back was "not a major problem although he does get occasional aching but this in itself is not restricting". Dr Corry found that the movements of his cervical spine were only slightly restricted in rotation and lateral flexion and movements of his lumbar spine appeared full. There was, however, considerable restriction of the left shoulder and crepitus over the acromioclavicular joint with movement. There was no evidence of bony or joint lesion obtained on x-ray of the left shoulder. Dr Corry thought that the plaintiff had "a frozen shoulder" quite consistent with some sort of wrenching stress when the plaintiff tried to arrest his fall at the time of the injury. Clearly Dr Corry at that stage felt that the clinical findings did not quite justify the degree of disability which the plaintiff claimed and he recommended "a much more aggressive approach" to rehabilitation with the use of regular anti-inflammatory medication and physiotherapy. By the time Dr Corry next saw the plaintiff on 21 January 1988 physiotherapy, heat treatment and medication had had little effect and the view was that there was deterioration most probably due to the natural progression of degenerative processes. Dr Corry thought that by that stage little improvement was likely.

15. In the meantime Dr Newcombe's final examination was carried out on 8 September 1987 when the doctor noted "for two years he had sat at home and done nothing". The plaintiff told him that neck pain had remained about the same but low back pain seemed to have got worse. Upon examination Dr Newcombe noted similar restriction of movement in the left shoulder and neck as previously observed. At that stage he thought that the shoulder problem was due to acromioclavicular joint injury, but in his evidence to the Court, Dr Newcombe modified this view on the basis of the opinion expressed by Dr Kitchin that there were arthritic changes in the joint. Dr Newcombe's final view was that the pain in the neck was due to cervical degeneration aggravated by the injury associated with nerve pressure which gave rise to symptoms in the left arm. The pain and limitation of movement in the left shoulder, however, he thought was due to the problems of an arthritic nature which, according to his evidence, "could have been aggravated" by the accident. Although Dr Newcombe's view is expressed in terms of a possibility, I think on the whole the condition in the left shoulder should be accepted as the probable result of the injury and this, it may be noted, accords with the view of Dr Kitchin. It is reasonable, in my view, that the plaintiff decline operative treatment for his neck condition, having regard in particular to his age. On the other hand, his attitude in this respect is reflective of the degree of pain and disability. In other words, it is not so great as to persuade him to submit to operative treatment.

16. In summary then I find that the plaintiff's ongoing symptoms in the cervical area, associated with symptoms in the left forearm, together with the condition in the left shoulder and the area of the abdominal injury all persist and are all the result of the plaintiff's injury. However, as far as the symptoms in the back are concerned, which were overshadowed by the other symptoms until some three months after his injury, these were relatively minor and I am not convinced that they were more than of nuisance value beyond the end of 1985. Any symptoms that the plaintiff has had in the lower back since then are, in my view, just as likely to have been associated with degenerative pain unassociated with the injury as they are to be regarded as injury related.

17. The assessment of damages then depends to a great extent on the extent to which one can accept the plaintiff's complaints. As he gave his evidence through an interpreter the task is not an easy one. My conclusion is that there has been a degree of exaggeration on the part of the plaintiff, whether conscious or unconscious is impossible to tell. It is clear that the plaintiff was a hard-working and fit man all his life prior to his injury. He does not read or write English. He lives on his own. I think that he probably does see himself as unemployable when he thinks about it, which is probably quite a good deal of the time. On the other hand, it was quite evident from extensive video and photographic evidence that the plaintiff is capable of a good deal more activity than he chose to admit in his evidence. His lifestyle as captured on film is not nearly so dismal as his evidence would have led one to believe. He looks and holds himself as a man much older than his 57 years. This may be because he is well over-weight.

18. The defendant by use of the video successfully challenged the plaintiff's claim that he was unable to use his left arm for lifting and unable to raise it beyond his shoulder. The plaintiff is clearly able to use his left arm to pull down the tail gate of his delivery van, which he has in the meantime sold, to reach into the front seat of the vehicle, and to perform other activities. In particular he was reluctant to concede what was shown in the film regarding his flower-selling activities. The film in this respect occupied about one and a half hours of time, although the plaintiff was obviously under observation for much longer periods than that. It showed him setting up on the roadside a stand of cut flowers in containers for sale to the public. It showed him effecting sales of the flowers to customers. In particular it showed him wrapping the flowers in the boot of a motor vehicle. He appeared to move quite freely and easily, bending substantially from the waist and without obvious restriction of the use of the left arm. I accept the plaintiff's evidence that he has made little monetary profit from these transactions. He claims that the flowers are supplied to him by a friend who pays him $1 per bunch sold. The point is not so much the profit that may or may not have been made but the extent to which the plaintiff is able to get about and display a wide range of movement without apparent disability or pain. In short, the films and photographs confirmed the thrust of the medical evidence not that the plaintiff is completely unfit for employment but that he is unfit for heavy work such as his pre-injury occupation as a carpenter and probably unfit for full-time work of any description. As Dr Newcombe said, however, the likelihood was that because of the degenerative changes in his spine he would not have been able to continue in his occupation as a carpenter till the normal retiring age of 60 and I think that as far as contingencies are concerned, allowance would have to be made for possible incapacity even without the accident well before that age.

19. The plaintiff undoubtedly suffered a very unpleasant experience and is left with an unsightly wound on his abdomen. The scar is approximately two centimetres thick and twenty centimetres long and although he must be compensated for it, it cannot be of any great concern to him. The injury caused a previous asymptomatic condition in his neck to give rise to pain in that area. It continues to the present time but I am not convinced that it is unabating. It required, however, injections of hydrocortisone at periods a few months apart and involved a good deal of physiotherapy and heat treatment. There is a continuing claim for $20 per week for pain-killing tablets and I think that one half of this is justified. There are still minor symptoms in the left shoulder from time to time with some slight restriction of movement, but exactly how pronounced this is is impossible to say as the plaintiff's evidence on this aspect cannot be relied upon. Such symptoms as there are in the lower back have long since ceased to be associated with the injury.

20. I think that the plaintiff should be treated as totally incapacitated for any form of employment for a period of about one year from the time of injury. The wage loss should not include site allowance which, in my view, is intended to compensate workers for the expenditure and inconvenience of attending at the particular site. The expense is not incurred if the worker does not attend. However, height money will be included as I am not convinced that this is anything more than a component in the worker's income. On the agreed wage figures I assess the past loss of earning capacity for that period at $15,000. Thereafter and to date his loss of earning capacity is partial only and should be reflected in the sum of about $150 per week, or $15,000 for the period. As far as the future is concerned and having regard to his age and the probability that incapacitating symptoms in the cervical area would have overtaken him in any event, it is not appropriate to assess the future loss of earning capacity on the basis of a periodic loss and that aspect of the claim should be assessed at a lump sum of $17,500.

21. I assess general damages at $16,000. Out-of-pocket expenses to date are agreed at $3,823.70. Future out-of-pocket expenses are assessed at $4,500. The Fox v. Wood component is $6,664. Total damages are therefore $78,488.00.

22. I should mention that the plaintiff received certain ex gratia payments in lieu of worker's compensation or loss of wages for his loss of time from work, but I am satisfied that these payments are refundable to the Authority in the event of his recovering damages for that loss of time. As he is to recover such damages it is not necessary for me to do more than note what I have recorded above and the ex gratia payments may be ignored.

23. Interest is claimed and awarded on the past component of pain and suffering ($8,000), at 14 per cent per annum reduced by half, that is $1,680. Interest is not awarded on the component of past loss of earning capacity as the difference between that component ($30,000) and the net amount received by way of worker's compensation ($21,332) together with ex gratia payments ($7,560) is not sufficient to justify exercising the discretion to award interest.

24. Damages and interest amount to $80,168.00 and there will be judgment for the plaintiff in that sum. Unless the parties wish to be heard I propose to order the defendant to pay the plaintiff's costs.