Alan Robert Ross v John Adrian Fleet and Katherine Mary Fleet [1988] ACTSC 23 (5 May 1988)

SUPREME COURT OF THE ACT

ALAN ROBERT ROSS v. JOHN ADRIAN FLEET and KATHERINE MARY FLEET
S.C. No. 323 of 1985
Negligence - Damages

COURT

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

CATCHWORDS

Negligence - plaintiff injured at work - alleged breach by defendants to take reasonable care for the safety of their employee - alleged negligent act of fellow employee for which defendants vicariously liable - whether plaintiff contributorily negligent.

Damages - injury at work - spinal injury caused by lifting steel rods at building site - whether plaintiff's previous back injuries to be taken into account when assessing loss of earning capacity - whether plaintiff's travel allowance should be treated as part of his earnings for the purpose of determining award.

HEARING

CANBERRA
5:5:1988

ORDER

There be judgment for the plaintiff in the sum of $245,128.64.

The defendants pay the plaintiff's costs.

DECISION

The plaintiff sues his employers, the defendants, for damages for negligence arising out of an injury sustained on a building site in Northbourne Avenue, Canberra on 13 February 1984. The plaintiff was employed as a steel-fixer. He was nearly thirty years of age. He had about three years experience as a steel-fixer. It is a job which requires a degree of skill, but it was not at the time regarded as a trade. From July 1982 to early February 1984 the plaintiff worked as a steel-fixer on the Parliament House construction site. Most, if not all, construction workers were retrenched in the first week of February 1984. The plaintiff found a job with the defendants and it was on his first day in his new employment that the injury was sustained. He was in the company of a leading hand called Brian McCarthy. Mr. McCarthy was not called at the hearing, but he cannot be located and no inference is to be drawn from his absence.

2. The plaintiff and Mr. McCarthy spent the first few hours of the morning shifting steel rods. The rods were used for reinforcing concrete. They were twenty to thirty-two millimetres in diameter. The rods lay on the ground in bundles tied with heavy fencing wire. For the first few hours the two men adopted the method of cutting the tie wire and carrying three or four rods at a time, each man at one end of the rods being carried. In the case of the rods of narrower gauge they carried more than four at a time.

3. At about 10.30 a.m. the two men came to a bundle of rods which was partly obstructed at one end by other bundles lying on the ground. What happened over the next couple of minutes or so is crucial. The only direct evidence on the point came from the plaintiff. His evidence was somewhat sketchy, possibly because he was rather inarticulate, but I see no reason to reject it as far as it goes. One of the defendants gave some evidence as to the practice of tying bundles of reinforcing rods and the like, but he was unable to speak as to the position on the day of the plaintiff's injury.

4. The plaintiff's evidence, which I accept, was that the bundle consisted of about fifteen rods. Each rod was five to six metres in length and twenty millimetres in diameter. Mr. McCarthy told the plaintiff to "pick it up like it is". Hence, instead of cutting the tie wires and carrying three or four or more rods at a time as had been done with the other bundles previously that morning, the two men set about to lift and carry the bundle intact. Mr. McCarthy approached one end which he lifted to waist height. The plaintiff was unable to position himself directly next to his end of the bundle in question because of the other bundles which were partly obstructing it. He leaned over and placed his hands around the bundle at or towards his end. Mr. McCarthy said, "Right". The plaintiff attempted to lift his end by a pulling motion and thereupon felt a sharp pain in his lower back. He nevertheless continued the lifting motion and when he had raised the bundle clear of the obstruction and on to his left shoulder he said to Mr. McCarthy, "I've really hurt my back". Mr. McCarthy said, "Put it down over here". The plaintiff complied with Mr. McCarthy's direction and they put the bundle down ten metres away. The plaintiff rested for a short while. The two men then continued with their work but at the plaintiff's suggestion the tie wires on each were cut and several rods at a time were carried by the two men as before.

5. Under cross-examination the plaintiff agreed that he had not had occasion to take particular notice of the rods in the bundle in question nor to count them. He was unable to give the precise reason as to what it was that caused him to estimate the number at about fifteen. Nevertheless, I accept the plaintiff's evidence as establishing on the balance of probabilities that the number of rods in the bundle was approximately fifteen. I accept further and with less difficulty that the rods were twenty millimetres in diameter. There were other rods on the site which, according to the plaintiff, varied from about twenty millimetres to thirty-two millimetres in diameter. According to the defendant there were on the site from time to time, although not necessarily on the day in question, rods ranging from twelve millimetres in diameter and upwards but as I have said, I see no reason to reject the plaintiff's evidence that the bundle in question consisted of about fifteen rods each twenty millimetres in diameter.

6. There was in evidence a report from a consulting engineer, Mr. Boris Osman, of Oatley, New South Wales, whose qualifications and experience are well known. The material contained in his report was uncontradicted. The report establishes that fifteen reinforcing rods of twenty millimetres diameter and five metres in length weigh approximately four hundred pounds or one hundred and eighty-one kilograms. Furthermore, according to the report, it is generally considered in industry that a weight of seventy to one hundred and ten pounds is a reasonable maximum lift for an adult male if the weight is to be lifted in a steady manner with no shock loading, with the back of the person straight and legs bent as required, arms being outstretched downwards and the weight to be lifted held close to the body. Mr. Osman was of the view that four rods would be a "convenient maximum" for two men to lift in the conditions which existed at the time of the plaintiff's injury.

7. According to Mr. Osman's report he calculated that, assuming that the weight of the bundle was about four hundred pounds and that the leading hand had already lifted one end to waist height, then the weight to be lifted by the plaintiff at the other end was about two hundred pounds. As I read Mr. Osman's report, the weight to be raised by the plaintiff was in the region of two hundred pounds regardless of whether the bundle of rods was rigid or flexible. If it was flexible then part of the length of the bundle would have remained on the ground after the leading hand had lifted his end and before the plaintiff commenced to lift the other end. That would mean that the force required to be exerted by the plaintiff would have been increased. In any event the plaintiff was not likely to have been in the optimum position for lifting because of the obstruction of his end of the bundle by another bundle of rods. On the probabilities the lift was, in my view, an excessive and dangerous one. The weight exceeded the limits of normal industry practice.

8. The plaintiff lays his claim in the alternative alleging on the one hand a breach of the personal duty of the employer and on the other hand vicarious liability on the part of the employer for a dangerous act on the part of the leading hand. The case was opened on the basis that there was something in the nature of the movement of the leading hand, a jerkiness or an unexpected movement which caused the plaintiff to take the greater weight. This allegation was pleaded in paragraph 6 of the amended statement of claim. However, in my view it was not made out on the evidence and I am not satisfied that there was anything on the part of the leading hand, Mr. McCarthy, which constituted a failure to take reasonable care for the safety of his fellow worker, the plaintiff. In all the circumstances, however, I am satisfied that the system of work was such that there was a failure on the part of the defendant to take all reasonable steps to avoid exposing the plaintiff to unnecessary risk. For workers engaged in heavy manual tasks such as steel-fixing and the lifting and moving of heavy bundles of steel rods there must be, in my view, a risk of spinal injury of the nature sustained by the plaintiff, which risk is more than a bare possibility. The nature of the measures to be taken by an employer to avoid that sort of injury will, however, vary according to the circumstances. In some circumstances it may be entirely reasonable for the employer to rely upon the common sense of the employee to refrain from attempting to lift weights which are obviously excessive and therefore dangerous. The employer may also be permitted to rely upon the good sense of the worker to refrain from attempting to lift in a manner which is obviously dangerous. In the circumstances of the present case, the plaintiff and his leading hand were required to shift bundles of steel, some of which at least were so heavy that to attempt to lift the bundle intact involved a departure from commonly accepted industrial practice. That this was accepted by both the plaintiff and the leading hand is obvious insofar as prior to the plaintiff's injury they had followed the course of cutting the tie wires and carrying a few rods at a time. At the crucial stage of the morning, however, a new factor intervened and that was the instruction from the leading hand to the plaintiff that the bundle in question should be moved at it was. In my view the negligence of the defendants lay in failing to ensure that the leading hand did not instruct the plaintiff to lift a bundle, the weight of which exceeded the commonly accepted limit, in a situation where the plaintiff was not likely to be able to carry out the lifting motion in the optimum manner because of the position of the obstructing bundle. The instruction of the leading hand, in my view, whilst not constituting negligence on his part because the standard of care required of him was not the standard of care required of the defendant, was a substantial cause of the plaintiff's injury because without it, it is likely that the plaintiff would have proceeded to follow the earlier course of cutting tie wires and carrying a few rods at a time. Indeed that course was adopted after the plaintiff's injury at his suggestion.

9. The defendants sought to rely on the alleged contributory negligence of the plaintiff.

10. The plaintiff said that before he began his lift he considered that the bundle was too heavy and that it should be cut. He said further that he did not suggest to the leading hand that the bundle should be cut because he did not want to jeopardise his job. There is no evidence that the defendant was a particularly difficult employer and it is impossible to decide whether there was any objective merit in the plaintiff's opinion that his job might be in jeopardy. Nor is there any evidence as to whether Mr. McCarthy was a particularly difficult or unreasonable leading hand who might seek to discipline the plaintiff if the plaintiff complained. The evidence indeed is to the contrary in that after the plaintiff's injury, the leading hand accepted the plaintiff's suggestion that the bundles should be cut. Was the plaintiff careless for his own safety in failing to draw attention to the likely weight of the bundle? One has to consider the particular position in which the plaintiff found himself. He had recently been retrenched. There was a lot of other steel-fixers in the district who were unemployed. Whilst the plaintiff may have been somewhat naive in his approach and less robust than some other building workers in a similar situation, I do not think that his failure to protest was, in the circumstances, unreasonable. Hence the plaintiff's damages will not be reduced for contributory negligence.

11. I turn now to damages. The plaintiff continued to work until the end of the day of the incident, with increasing stiffness and soreness in the lower back. When he returned to work the following morning the pain was sufficient for him to cease work, and he has not returned to paid employment since. He saw a local doctor, Dr Cowan, and then Dr Webber furnished a report. Dr Webber first examined the plaintiff on 21 March 1984. The complaints to Dr Webber were of pain radiating from the lower back into the left buttock. A CT scan revealed a calcified protrusion at the L5/S1 level with swelling of the right L5 nerve root. The plaintiff's symptoms did not improve and he was referred to Dr Chandran, a neurosurgeon. Dr Chandran first saw the plaintiff on 16 April 1984. Complaints remained the same. Dr Chandran prescribed physiotherapy and anti-inflammatory drugs. There was some improvement with physiotherapy. However, a lumbar discogram indicated a disc protrusion at L5/S1 and because of the continuing complaints of pain extending into the right leg from the lower back, Dr Chandran carried out a spinal transfusion on 17 September 1984 with excision of the disc and wiring of the spine.

12. The plaintiff was an acceptable witness and some of his evidence was supported by that of Mrs. Hines, with whom he had a de facto relationship and with whom he continues to associate. He noticed a deterioration in his condition during the first two weeks after the injury, particularly in relation to the pain extending down into the lower limbs. He said that the pain in the legs ceased after the fusion operation but he still has pain in the back and that condition has not really changed since the end of 1984. He was relatively active before the injury and assisted in the raising of Mrs. Hines' three young sons. In addition he played squash one night a week and attended a gymnasium. In 1963 he attended a rigger's course at a TAFE and obtained a certificate. He had been offered a job as a leading hand rigger on the Parliament House site but the offer had lapsed at the time of the retrenchment. Between the time of the injury and the end of 1984 the plaintiff suffered increasing frustration as he came to realise the limits of his capacity. He resorted to some extent to medication. He became particularly irritable, at times violent, so that Mrs. Hines felt unable to tolerate the relationship any longer. She left and took her children to Bendigo. The exact date she left is not clear but it appears to have been at about the end of 1984. Some time later the plaintiff followed her to Bendigo and he continues to live there in a house near to that of Mrs. Hines. Mrs. Hines does not expect that the de facto relationship will resume but there is a possibility of marriage. Whilst the plaintiff remained in Canberra he underwent a rehabilitation course at the Woden Valley Hospital and amongst other things developed an interest and skill as a leather worker. He continues to follow this interest and has earned a modest amount, about $600, from that activity. He has continued and developed an interest in a technical course in Bendigo and has also completed an introductory course in accountancy.

13. During the course of the evidence counsel for the defendant raised the issue that the plaintiff had experienced difficulties with his back prior to the injury. These difficulties had occurred in 1982 and 1983 and on each occasion had necessitated a week or so away from work. In view of the evidence of Dr Chandran, however, I have little difficulty in finding that those prior incidents do not place any obstacle in the way of establishing a causative link between the injury on 13 February 1984 and the plaintiff's subsequent condition. Where the defendants do gain some solace from this evidence, however, is on the question of a discount when fixing a figure for loss of earning capacity, in that there must be an allowance for the contingency that but for the subject injury the plaintiff may well have suffered a debilitating spinal condition in any event by reason of some other lifting incident or similar activity or simply by reason of progressive degeneration over a long period of time. I should also add that there was some cross-examination of the plaintiff which sought to establish that he had suffered an injury when he fell, hurting his neck, some little time before 13 February 1984. The worker's compensation claim form completed by the plaintiff on 28 February 1984 is sufficient proof as I see it that such prior injury was not as was suggested by the defendant in cross-examination on 8 February, but on 1 February 1984. I accept the plaintiff's evidence that he had fully recovered from that injury after two days.

14. There is little doubt that the plaintiff has, since the time of his injury, been unable to carry out the work of a steel-fixer or rigger or any other heavy manual task, and that this condition is permanent. He has after all had a major operation to his spine. I accept that he has made some effort to obtain employment through the Commonwealth Employment Service and that such efforts have been unsuccessful. He was born on 4 July 1954 and left school after three years secondary education. He worked for a year or two in New Zealand in a bank and passed an examination in accountancy at that stage. From 1975 to 1981 he was engaged in house painting and truck driving till he came to Australia. When he was a painter he carried out business on his own. Having regard to his pre-injury history, his post-injury history, the comments of the witnesses and my own observations of the plaintiff, I think that he is an intelligent and enterprising young man who has eventually come to terms with his disability. There was, naturally enough, a time when he was anxious and depressed about his future and when he sought refuge in drugs and alcohol. That time has now passed. The assessment of loss of earning capacity will be upon the basis that the plaintiff was wholly incapacitated from earning income for a period of about one year after the injury. From then until the present time I would assess his earning capacity at about twenty-five percent of what it had been at the time of the injury.

15. There is a great deal of material before me about comparative earnings. I note that payments made to steel-fixers on the Parliament House site and indeed, as I understand it, in the Australian Capital Territory generally contain a travel allowance. It was submitted on behalf of the plaintiff that I should treat the travel allowance as part of the earnings of a steel-fixer. In my view this submission should be rejected. As I understand it, the travel allowance is payable to building workers to compensate them for the fact that although they presumably each have a fixed place of abode, their place of work will change from time to time and they will be forced to incur travel expenses such as would not be incurred by a person who has a fixed place of work and who could be expected to organize his or her activities so as to minimise travel expenses. The earning capacity of a person in the position of an ACT building worker is not to any extent, in my view, reflected in the payment of a travel allowance. I have already referred to the evidence that the plaintiff had been offered a position as a leading hand. I take into account that there was a possibility that he would have achieved such a position and continued in it had he not been injured. However, that factor is to be assessed as a possibility only. The figures before me indicate from the time of injury to the date of hearing the net wage payable to a steel-fixer such as the plaintiff in the ACT would have been about $71,500. The net wage payable to a leading hand steel-fixer during the same period would have been about $72,500. It is reasonable, I think, to strike a median figure of $72,000, but the plaintiff is not to be awarded that sum. The total loss for the first year after the accident would be about $15,000 and I think it appropriate to award a further sum from then until the present of $40,000 on the basis of a partial loss, making a total of $55,000 for past loss.

16. As far as the future is concerned, I think that a very broad brush approach is required. The plaintiff was, of course, working at the Parliament House site at the time of his injury. Although along with others he was retrenched just before his injury, the construction work subsequently resumed. The steel-fixing work on that site has long ago come to an end and the opportunities for steel-fixers within the Territory has probably been reduced. However, I accept that the plaintiff would have travelled to wherever the work was available and it is unlikely that he would have been out of work for substantial periods. The current net wage for a steel-fixer within the ACT, without travel allowance, is $380 per week or, if a leading hand, $390 per week. The current rate paid to steel-fixers in New South Wales is about $300 per week. I note that the award rate within the ACT for persons employed as security officers is at present $243 per week. In my view, it would be a rare employer indeed who would be prepared to accept the plaintiff as a security officer, although I have no doubt that there are some such positions which the plaintiff would be able to carry out, although probably with some discomfort. Accordingly, I am not prepared to find that the plaintiff's present income earning capacity is as high as that of a full-time security officer.

17. I would assess the plaintiff's current loss of earning capacity at $200-250 per week over the next ten years, reduced by twenty to twenty-five percent for contingencies including the contingency that he might without the subject injury have become incapacitated for some form of work in any event. Furthermore, there is the contingency that he will find some remunerative way to spend his time given his physical capacity, his initiative, his intelligence, the encouragement of Mrs. Hines and some working capital which will be provided by the award of damages. I will round off the award for future economic loss during that period to $85,000. For the period thereafter it is impossible to be precise. There is a strong possibility that any disability thereafter would have occurred in any event. There is also a strong possibility that the plaintiff will have recovered most of his earning capacity. I award $50,000 for the rest of the future, making a total of $135,000 for future economic loss.

18. As far as pain and suffering and loss of enjoyment of life are concerned, the plaintiff is undoubtedly precluded from following the very active life that he previously followed. On the other hand, he still manages to get some positive enjoyment from leisure time activities such as walking his German Shepherd dogs, effecting light repairs to motorbikes, rough panel-beating and taking the children yabbying. He is able to drive a car but not for long distances without discomfort. The major source of discomfort at the present time is caused by bending and lifting and he manages to minimise that sort of activity. I think an appropriate award for pain and suffering and loss of enjoyment of life is $35,000 as to which I would apportion the sum of $20,000 to the past for the purpose of interest. I note that interest was claimed in the statement of claim dated 2 April 1985 but not claimed in the amended statement of claim of 22 November 1985. I presume that this was an oversight and the defendant raised no objection in this regard. If objection is raised, the defendant has liberty to apply within seven days.

19. The Fox v. Wood component is $8,781.81. Out-of-pocket expenses are agreed at $5,513.50. The total sum for damages is $239,295.31 which upon a global consideration appears to me to be an appropriate amount to award the plaintiff.

20. The plaintiff received the sum of $60,041.82 from 14 December 1984 to 8 February 1988 by way of worker's compensation which is greater than my assessment of the value of past loss of economic capacity. Interest will be awarded only on the past component of pain and suffering, calculated at 14 percent and the result reduced by half. That will be added to the damages and the plaintiff is to have judgment for $239,295.31 plus interest which is $5,833.33, making a total of $245,128.64.

21. Unless the parties wish to be heard I propose to order the defendants to pay the plaintiff's costs.