Garin Stuart Thomson v the Canberra Labour Club Ltd Sc [1989] ACTSC 51 (25 October 1989)

SUPREME COURT OF THE ACT

GARIN STUART THOMSON v. THE CANBERRA LABOUR CLUB LTD
SC No. 1170 of 1984
Negligence

COURT

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

CATCHWORDS

Negligence - damages - unsafe system of work - No new question of principle.

Fishlock v Plummer (1950) SASR 176

Faulkner v Keffalinos (1971) 45 ALJR 80

The Council of the Shire of Wyong v Shirt and Ors [1980] HCA 12; (1980-1981) 146 CLR 40

Bankstown Foundry Pty. Ltd. v Braistina [1986] HCA 20; (1986) 160 CLR 301

John Pfeiffer Pty. Ltd. v Canny [1981] HCA 52; (1981) 148 CLR 218

Leask Timber and Hardware Pty. Ltd. v Thorne (1961) 106 CLR

HEARING

CANBERRA
25:10:1989

Counsel for the Plaintiff: Mr P Sheils, QC

Mr A S Gillespie-Jones

Solicitors for the Plaintiff: Messrs Gillespie-Jones & Co

Counsel for the Defendant: Mr D Nock

Solicitors for the Defendant: Messrs Macphillamy Cummins & Gibson

ORDER

There will be judgement for the plaintiff in the sum of $445,783.40.

DECISION

The plaintiff sues the defendant, his employer at all relevant times, for damages in respect of two accidents said to have been caused by its negligence.

2. The plaintiff was born on 13 February 1957. He reached third form at High School and left school when aged 16. Thereafter for a short time he had a job involving the manufacture of tow-bars and subsequently took up an apprenticeship as a cabinetmaker for a few months. He then began work as a builder's labourer and remained in that occupation for about two years. He moved to the Snowy Mountains to work in winter as a ski-lift operator and ski instructer and in summer as a builder's labourer. In 1979 he came to Canberra where he worked for a year as a barman and subsequently for a year and a half as a supervising barman at the Western Districts Rugby Union Club. He spent some time in Western Australia working as a miner and in February 1982 came back to Canberra and began to work for the defendant. He had earlier, after leaving the Snowy Mountains, worked for his brother from time to time in a restaurant as kitchen hand and second chef. He began to work for the defendant as a casual barman, continuing in that position for about eight months when he became a permanent supervisor responsible to a manager and assistant manager. His duties on day shift involved responsibility for setting up the bar and the changeroom for poker machine change, for making sure that the poker machines were running, that staff requirements for the day were satisfied and that functions were set up in the function room, and for cellar work and general duties around the club, including public relations work.

3. When he first started working for the club it had something less than 40 poker machines, but when he became responsible for the clearance of coins from them it had, as I am satisfied, a lot more. This was in 1983. The person clearing money from the machines would deal with six at a time. Six boxes of change could be fitted conveniently on the six-wheeled trolley which was used to carry the money from the machines to the room where the money was weighed. The cash boxes were 326mm wide, 136mm high and 302mm deep and weighed about 7lbs (3.2kg). There was a handle on the front of each box. Each box was located near the bottom of the machine. It was necessary for the person clearing to crouch down to the level where the cash box was, to take it by the handle and pull it out, to put one hand behind the back of the box so that it came out at an angle and then to lift it from the machine and place it on the trolley. It could not be pulled straight out because it was awkward to do so and the person clearing the machine could not get his hand behind it as there was not enough room to put the hand where the top of the cash box was. When six cash boxes had been placed on the trolley it was wheeled to the weighing machine. The first cash box would be taken from the top of the trolley (it would be at approximately chest height) and carried to a weighing machine where the contents were poured into a small hopper on top of the weighing machine. As the boxes were emptied in succession it became necessary to stoop lower and lower in order to pick up in succession the boxes until the bottom box was reached so that it might be carried across to the weighing machine. The coin weighing machine was placed on the top of a bench at the front of the reception area of the club. The top of the machine was about 150-200cm (6-8 inches) above the bench. The bench was as high as an ordinary table. Weighing the coins was the method used to ascertain their value.

4. After the coins were weighed in the hopper and their value noted, the hopper was taken from the front desk through an office to a room, which was in fact a large safe. I accept that this is what the plaintiff actually did despite evidence from Mrs Prentiss and Mr Cummings which might have suggested that the bagging took place in another room. There the coins from the smaller hopper were placed into a larger hopper. The operation would then be repeated.

5. The bagging hopper had a divider down the centre which separated 10 cent coins and 20 cent coins. An ordinary domestic plastic bucket without a handle was placed under a chute on one side of the hopper. The chute was lifted up and the coins flowed into the bucket. The plaintiff said, and I accept, that when he was bagging coins, time constraints meant that there were approximately $500 worth of coins in each bucketload, or about 62lbs (28.4kg), the bucket being about half filled on each occasion. The coins in the bucket were then tipped into a bagging machine. It was necessary to lift the bucket containing the coins to approximately chin height. The plaintiff was approximately 182cm (5'11") tall.

6. Coin clearances were made twice a week. All told, coins of a value of between $22,000 and $25,000 would be cleared from the poker machines on a Wednesday morning, one of the two days when clearances were made.

7. The plaintiff gave evidence that in July 1983 his health was good, he had never had an accident involving his back, nor any back pain, that he played rugby league in 1982 although he stopped when he was offered his position with the defendant and that he played some golf.

8. He then gave evidence that on 20 July 1983 there were approximately 44-46 poker machines in the club. However, it appears from the book kept pursuant to the requirements of the Gaming and Liquor Authority of the Australian Capital Territory, that there were as many as 80 machines in the club on that date.

9. The plaintiff said that early in the morning of 20 July 1983 he went to the club, intending to clear the poker machines. He started to clear them. While doing so he felt a sudden low back pain. He located the pain in the middle of the lower back below the belt line. He said he had never had a pain like it before and described it as a sharp pain in the centre of the back. It came on when he was lifting a cash box from a machine after he had taken the weight of the box. He said it was a "somewhat heavy" box and that the incident happened halfway through the clearance of the machines. He said that the box was the heaviest of the boxes he lifted that day. His identification of the actual box was unsatisfactory but I accept that it was the heaviest he lifted that day.

10. When he felt the pain he stopped, walked over to the bar, made a cup of coffee and engaged in general conversation with one or more fellow employees. When Mr Peter Cummings, the Assistant Manager, came on duty at about 10.00 am the plaintiff told him of the incident.

11. The break which he took after the onset of the pain lasted for approximately 20 minutes. He then went back and finished the job but felt pain when lifting the other cash boxes.

12. He was then placed on light duties for a period which was expected to be four weeks but during the last week of the four, when he wore a brace which seems to have been prescribed by a physiotherapist who was treating him, he worked, with the knowledge of the defendant, for a friend called Glen Myers for whom he drove a delivery truck. He then returned to full duty continuing as before and managing quite well without problems. Occasionally he suffered pain when he had to work on the Wednesday clearances which were the heavier of the two.

13. He approached Mr Cummings and told him that the machines were getting heavier. (By this he obviously meant that the contents of the coin boxes were getting heavier.) Mr Cummings replied "If you don't like it, there's the door", and on another occasion, apparently in response to a similar approach by the plaintiff, "If you don't like it we'll find someone else to do your job".

14. On 16 May 1984 the plaintiff was engaged in bagging up coins. As I have already indicated, to do this it was necessary to lift the bucket containing the coins approximately to chest level, chin height. It involved lifting the bucket forward and away from the plaintiff's body, an uncomfortable and awkward lift, involving as well as leaning forward a degree of twisting. While he was doing this the plaintiff experienced low back pain which he described as "like someone sticking a knife into you". He said he had never had pain like that before. He persisted with the job to get it done. He told Mr Cummings what had happened. He continued the work of bagging but was unable to finish it until about 11.45am, although the club was supposed to open at 11.00am. He continued with his duties as supervisor, setting up the bar, organising the staff and carrying out his various other duties, but during the afternoon the pain became worse. At about 2.30pm or thereabouts he went to Mr Cummings and said that he was in so much pain that he had to do something about it.

15. Mr Boris Osman, a consulting engineer with very considerable experience in respect of safety practices in industry, gave evidence that the generally accepted limit in industry throughout Australia for a safe lift for adult males was within the range of 70-110lbs (32-50kg). The safe upper limit varied from industry to industry and from one part of a particular industry to another part, depending upon the type of article which was to be lifted and moved, how it was to be lifted and moved and where it was to be placed.

16. He gave evidence further that there are, throughout Australia, publications about safe methods of lifting and safe limits which are available to employers. The limits just referred to are based on lifting under ideal conditions. Ideal conditions obtain when the article to be lifted is held in close proximity to the body of the person, preferably with arms stretched downwards and the back and body of the person lifting held vertically and straight. He said that the most advantageous lifting position obtains when an object is being lifted by a person and the weight is being directly transferred through the person, so that the body is in compression. This occurs either when the article is being supported close to the body and the load is then transmitted to whatever it is which is to support it, or where the load is applied to the head or shoulders as one sees labourers in Asia do.

17. On the other hand, a bending operation occurs when the same article is being supported at some distance from the main support so that the weight of the article is multiplied by the distance and a bending moment is applied to part of the body of the person. The greater the distance of the weight from the body the greater the leverage.

18. The operation which the plaintiff was carrying out on 20 July 1983 was then described to Mr Osman, who gave evidence that the weight of $100 in 10 cent coins or in 20 cent coins was 12.5lbs or 5.6 kg. The weight of each of the coin boxes was, as I have already said, 7 lbs. I interpolate that this meant that of the 80 boxes cleared on 20 July 1983, nine weighed between 50 and 60 lbs (22.7 and 27.3 kg); 13 weighed between 60 and 70 lbs (27.3 and 31.8 kg); seven weighed between 70 and 80 lbs (31.8 and 36.3 kg); three weighed between 80 and 90 lbs (36.3 and 40.9 kg); one weighed almost 91 lbs (41.2 kg), while the heaviest weighed 114 lbs (51.8 kg). All but four of the remaining 46 boxes weighed between 30 and 50 lbs (13.6 to 22.7 kg).

19. Mr Osman was asked about the safety of the operation being carried out. He replied that if the container were being lifted in the correct manner it would be lifted by the person with his back straight and the load being lifted close to his body, with any vertical movement being taken without altering his body alignment but by bending his knees. That he thought presented a difficulty because of the fact that the article was some 15 inches from the floor and because it had to be retrieved from within a machine. He commented that the access to the lifting location could render the lift much more hazardous. He had referred earlier to what he described as a shock loading component where the full weight of the object being lifted is taken by the person lifting from a position where part of the weight had previously been supported by something else. He then added that repetitive lifting of the type described was very undesirable. He said that if the person lifting bent his back to do the lifting, or had to lift from a location away from his body, he was subjected to the bending moment earlier referred to. He described such repetitive bending and lifting as being generally regarded as unsafe to the knowledge of people in the industry. He said that there was plenty of advice and for many years there had been plenty of advice readily available about safety techniques necessary to overcome the danger.

20. He agreed that the danger would be decreased if the machines were cleared more frequently because it might be expected that the amount of coins in the machine cash boxes would be less with a consequent reduction in weight.

21. He said that instruction in the correct method of lifting with the most advantageous alignment could be given and would tend to make the operation safer. He considered that rest breaks would be advantageous.

22. He was then asked about the operation being undertaken by the plaintiff on the occasion of the second incident on 16 May 1984. He was asked to assume that the weight of coins in the plastic bucket was no more than 50lbs but that the lift required was awkward because the arms had to be moved forward and the emptying of the coins required an awkward twisting action which the plaintiff found uncomfortable.

23. Mr Osman perceived two danger points in the sequence of operation. He said that the first occurred when the lifter lifted the bucket from the floor and the second when he went to tip the bucket with its contents into the other machine. While the bucket containing the coins was close to his body he would be in the best lifting position, but once he had to move the bucket away from his body the bending moment came into operation. The further he had to reach out the greater the bending moment produced.

24. Mr Osman said also that there was "a clear consciousness in industry that people who have suffered or made complaints of back injury ought not to be carrying out work of the nature described (that is the operation in which the plaintiff was engaged on 16 May 1984)".

25. Mrs Tapsell, an occupational therapist with wide experience as a consultant in the field of health and safety, gave evidence that on attending at the defendant's premises she was told by Mr Cummings that the height of the coin counting machine had recently been lowered so that people did not have to tip the coins so high and so that easier operation of the machine might be facilitated. He also said that students from the weightlifting team from the National Institue of Sport were employed to put coins in the machine. Mr Cummings told her also that the machines continued to be cleared twice weekly and that the clearance usually took around three hours.

26. Mrs Tapsell considered that persons required to make the sort of clearance from the poker machines that the plaintiff had been required to do in 1983 were at risk unless they had training in how to go about lifting and protecting their backs. She said that if the poker machines were cleared more frequently of coins so that their weight at each clearance was lessened, the reduction thereby gained would tend to increase the safety of the work. So too would instruction of those engaged in correct lifting methods. She also suggested that an adjustable trolley might have been used to take the coins from the poker machines. Initially the trolley would have been set at a height approximately that of the distance from the floor of the coin boxes in the machines. It could then be adjusted to the height of the weighing (counting) machines to obviate the necessity of a lift from near floor level.

27. She indicated that a number of safety measures could have been taken. These were the provision of a trolley of the type just referred to, shortening of the time during which lifting of the coins took place, training in safe lifting, more frequent emptying to lighten the load, work pauses, and requiring that heavy lifting be done always by two people together.

28. Mr Osman considered that the bagging operation was fraught with risk at two points which he described as "large danger points". He said that the first was in the lifting of the bucket. This operation would have required that the lifter have at least one hand, preferably two, under the bucket to support the load when lifting it from floor level. He would have had to do a weight transfer where he could have only one hand on the floor supporting the bucket while attempting to get a grip with the other hand. The second danger point would be at the point where the lifter went to tip the contents of the bucket into the bagging machine. While the bucket was close to his body with the load of coins in it, he would be in the best lifting position, but as soon as the bucket moved away from his body to the point where he emptied all its contents into the final container, it became a question of the weight of the contents and the bucket multiplied by what he described as the lever arm, the distance away from the centre line of action of the body of the lifter. It is clear that he meant that the further from the lifter the bucket was the greater the strain. Obviously regard would also have to have been had to what the plaintiff described as the awkwardness of the lift.

29. I accept the evidence of Mr Osman and Mrs Tapsell.

30. In The Council of the Shire of Wyong v. Shirt and Ors [1980] HCA 12; (1980-1981) 146 CLR 40, Mason J. (as he then was) said at pp 47-8:

"In deciding whether there has been a breach of the duty
of care the tribunal of fact must first ask itself
whether a reasonable man in the defendant's position
would have foreseen that his conduct involved a risk of
injury to the plaintiff or to a class of persons
including the plaintiff. If the answer be in the
affirmative, it is then for the tribunal of fact to
determine what a reasonable man would do by way of
response to the risk. The perception of the reasonable
man's response calls for a consideration of the
magnitude of the risk and the degree of the probability
of its occurrence, along with the expense, difficulty
and inconvenience of taking alleviating action and any
other conflicting responsibilities which the defendant
may have. It is only when these matters are balanced
out that the tribunal of fact can confidently assert
what is the standard of response to be ascribed to the
reasonable man placed in the defendant's position.
The considerations to which I have referred indicate
that a risk of injury which is remote in the sense
that it is extremely unlikely to occur may
nevertheless constitute a foreseeable risk. A risk
which is not far-fetched or fanciful is real and
therefore foreseeable. But, as we have seen, the
existence of a foreseeable risk of injury does not in
itself dispose of the question of breach of duty. The
magnitude of the risk and its degree of probability
remain to be considered with other relevant factors."

31. In respect of each of the accidents it seems to me that the first question to be asked, "Was the injury foreseeable in the relevant legal sense?", must yield an affirmative answer. Mr Cummings' evidence, almost without more, shows this.

32. The evidence discloses that lifts of the type in which the plaintiff was required to engage on 20 July 1983 were fraught with peril of damage to the spine of the lifter. The same considerations apply to the lift of the kind which the plaintiff was carrying out on 16 May 1984. It follows that in each case the risk of injury to the plaintiff was foreseeable. Measures to mitigate that risk could readily have been taken without any expense or any significant expense. But despite suggestions by the plaintiff, some of these measures, which appear to have been matters of commonsense, were not taken.

33. That the risk associated with the work when carried out within time constraints was appreciated by the plaintiff's superiors appears from the evidence of Mr Cummings when he said:

"The general thing there was we did not want anyone to
overdo things. There were specific things we wanted
done in the Club and there was usually a time factor
on them being done, but no-one was to overstep the
mark."

34. Mr Cummings was also aware of the problem which the weight of coins in the poker machines caused. He said, for example, "... myself, ... the head cellar man, Jim Donnelly, and Garin Thomson, all of us were a bit concerned that the weight in those Golden Bank machines was getting fairly heavy". He was then asked, "And that occurred prior to 1983?". He replied, "Well, I just remember it as discussions and looking at different ways we could do it. ... My instructions were if anyone came across a particularly heavy machine they were to leave it and two of us were to lift it."

35. It was submitted on behalf of the defendant that the injuries which the plaintiff sustained in the two incidents were "workmen's compensation" injuries, that is to say, they had occurred without negligence on the part of the defendant and ought to be dealt with as matters compensable under workmen's compensation legislation only. Counsel for the defendant referred to Bankstown Foundry Pty. Ltd. v. Braistina [1986] HCA 20; (1986) 160 CLR 301. He cited the case as authority for the proposition that an employer's duty to his employee remained still the duty to take reasonable care to avoid exposing the employee to unnecessary risks of injury.

36. I accept that that proposition still remains of full force and effect, but I set out passages from the judgments which, in my respectful opinion, conveniently show how the duty is to be approached now compared to what was the appropriate approach 20-30 years ago.

"The passages in the judgment of McHugh J.A. to
which counsel for the appellant takes exception are
the following:
'The common law requires no more of an employer
than that he take reasonable care for the safety
of his employee. Reasonable care, however, varies
with the circumstances of the case. It varies
with the advent of new methods and machines and it
varies in accordance with changing ideas of
justice and increasing concern with safety in the
community.
I think that it is impossible to read recent
decisions of the High Court of Australia without
realising that employers are now required to
comply with safety standards which, only twenty
years ago, would have been seen as imposing an
onerous even an absurd burden on employers. Cf.
Turner v. South Australia (1982) 56 ALJR 839
with Skinner v. Barac (1961) 35 ALJR 124 and
Commissioner for Railways (N.S.W.) v. O'Brien
[1958] HCA 20; (1958) 100 CLR 211.'
Counsel for the appellant argues that these passages
show that their Honours have postulated a higher duty
of care resting on employers than the traditional test
of reasonable care. We do not think that, properly
understood, the passages bear out such a claim.
Indeed, each of their Honours commence their discussion
with an endorsement of the conventional formula. The
reference by McHugh J.A. to strict liability is
unfortunate because of its tendency to mislead but
there can be no doubt that his Honour was not intending
to break new ground in the law of employer's
liability. Indeed, he says explicitly that the common
law requires no more than that an employer take
reasonable care for the safety of his employee. Again,
the reference by Priestley J.A. to what his Honour
perceives in recent decisions of this Court as "a
deliberate emphasis on the heavy obligation upon an
employer in fulfilling his duty to take reasonable
care" must be evaluated in the context of the
particular circumstances and issues which were involved
in each of the cases to which he referred. This is not
the place for an examination of the reasoning in
earlier decisions of this Court. What must be asserted
is that the law has not changed. It is as accurate
today as it was thirty years ago to say that the duty
'is that of a reasonably prudent employer and it
is a duty to take reasonable care to avoid
exposing the employees to unnecessary risks of
injury' Hamilton v. Nuroof (W.A.) Pty. Ltd.
[1956] HCA 42; (1956) 96 CLR 18, at p 25, per Dixon C.J. and
Kitto J.'
We digress to remark upon the formulation preferred by
Windeyer J., with whom McTiernan, Kitto, Taylor and
Owen JJ. agreed, in Vozza v. Tooth & Co. Ltd. [1964] HCA 29; (1964)
112 CLR 316, at p 319, namely:
'For a plaintiff to succeed it must appear, by
direct evidence or by reasonable inference from
the evidence, that the defendant unreasonably
failed to take measures or adopt means, reasonably
open to him in all the circumstances, which would
have protected the plaintiff from the dangers of
his task without unduly impeding its
accomplishment.'
This passage has been repeated more than once in recent
decisions of the Court Raimondo v. South Australia
(1979) 23 ALR 513, at p 518; McLean's Roylen Cruises
Pty. Ltd. (1984) 58 ALJR at p 425; 54 ALR at
p 7. It seems right to us to caution the reader
against interpreting the concluding phrase in the
citation, that is, 'without unduly impeding its
accomplishment', as furnishing an additional
qualification to an employer's liability independently
of the question of what is reasonable in the
circumstances. If protective measures are reasonably
open to an employer then ordinarily they will not
unduly impede the accomplishment of the task. The
extent to which the proposed measures would unduly
impede that accomplishment will bear directly on the
question whether it was reasonable to expect them to be
undertaken.
Furthermore, it has long been recognized that what is a
reasonable standard of care for an employee's safety is
'not a low one' O'Connor v. Commissioner for
Government Transport [1954] HCA 11; (1954) 100 CLR 225, at p 230.
Whether or not it will be found to have been satisfied
is always a question of fact to be determined in the
light of the circumstances of each case. It is
unhelpful to attempt to arrive at conclusions about
what changing standards of reasonable care require
merely by comparing the decisions in different cases
because no two cases can provide true comparability in
circumstances. The Court had occasion to make this
point recently in Waugh v. Kippen (1986) 160 CLR
1156, in distinguishing from the case in hand the
decisions in Turner v. South Australia (1982) 56
ALJR 839; 42 ALR 669 and Castro v. Transfield
(Qld) Pty. Ltd. (1983) 57 ALJR 619; 47 ALR 715.
On the other hand, being a question of fact, it is
undoubtedly true, as McHugh J.A. said, that what
reasonable care requires will vary with the advent of
new methods and machines and with changing ideas of
justice and increasing concern with safety in the
community. This must be so, because in every case the
tribunal of fact, be it a judge sitting alone or a
jury, must determine whether or not in the
circumstances of the particular case the employee
failed to take those precautions which an employer
acting reasonably would be expected to take. What is
considered to be reasonable in the circumstances of the
case must be influenced by current community
standards. In so far as legislative requirements
touching industrial safety have become more demanding
upon employers, this must have its impact on community
expectations of the reasonably prudent employer. As
Mason, Wilson, Brennan and Dawson JJ. said in McLean
v. Tedman (1985) 155 CLR, at p 313 'Accident
prevention is unquestionably one of the modern
responsibilities of an employer.' However, it would be
wrong to exaggerate the recency of the trend in this
regard. It has long been required of an employer that
in the case of repetitive work under strain he take
account of the possibility of thoughtlessness or
inadvertence or carelessness on the part of an
employee see Smith v. Broken Hill Pty. Co. Ltd.
[1957] HCA 34; (1957) 97 CLR 337, at pp 342-343; Da Costa v.
Cockburn Salvage & Trading Pty. Ltd. [1970] HCA 43; (1970) 124 CLR
192, at p 218." (per Mason J., as he then was, and
Wilson and Dawson JJ. at pp 307-309).

37. At p 314 Brennan and Deane JJ. said:

"... it would be wrong for a trial judge to approach an
action in negligence by an employee against an employer
on the basis of some perceived principle that 'the
heavy obligation upon an employer' was to be emphasized
or that the standard of care required of an employer
'has moved close to the border of strict liability'.
Contemporary decisions about what constitutes
reasonable care on the part of an employer towards an
employee in the running of a modern factory are in
sharp conflict with what would have been considered
reasonable care in a nineteenth century workshop and,
for that matter, reflect more demanding standards than
those of twenty or thirty years ago. While it is true
that that has, in part, been the consequence of the
elucidation and development of legal principle, it has,
to a greater extent, reflected the impact, upon
decisions of fact, of increased appreciation of the
likely causes of injury to the human body, of the more
general availability of the means and methods of
avoiding such injury and of the contemporary tendency
to reject the discounting of any real risk of injury to
an employee in the assessment of what is reasonable in
the pursuit by an employer of pecuniary profit."

38. In all the circumstances, applying the tests that are appropriate, I am satisfied that the defendant was negligent in respect of each of the incidents of which the plaintiff complained. The evidence of Mr Morris and of Mrs Prentiss does not persuade me to the contrary.

39. The defendant pleaded that the plaintiff was guilty of contributory negligence in respect of the incidents. The evidence does not satisfy me that the plaintiff was guilty of contributory negligence in any of the respects particularised or at all.

40. The plaintiff claimed also that the defendant had been guilty of a breach of statutory duty giving rise to a cause of action, alleging that it had failed to comply with relevant legislation which provided that poker machines were not to be cleared of coins by a person who did not have the appropriate certificate or who was not in the company of someone who did. Reliance was placed on John Pfeiffer Pty. Ltd. v. Canny [1981] HCA 52; (1981) 148 CLR 218. But in that case the relevant regulations were clearly designed to ensure the safety of those who might be at risk of injury arising from the use by an unqualified operator of a potentially very dangerous tool. The two cases are clearly distinguishable and this aspect of the plaintiff's claim founders on the rock of Leask Timber and Hardware Pty. Ltd v. Thorne [1961] HCA 73; (1961) 106 CLR 33.

41. Immediately after the second incident the plaintiff consulted a therapist manipulator whose treatment afforded him a good deal of temporary relief, but by the time he got back to the defendant's premises, he felt just as bad as when he had left. He wrote out an accident report which he stuck on a loose sheet of paper inside the daybook.

42. He stayed off work for four days, returning on the following Tuesday, when he started at about 3.30pm but had to stop at about 5.30 or 6.00pm because he was in so much pain that he could not stand straight or walk properly. He was bent over and was in considerable pain. He left at about 6.00pm, having made arrangements for another supervisor to take over his shift. He told Mr Cummings that he was going home. He never returned to work for the defendant.

43. After a couple of weeks he noticed pain down the left buttock in the back of the leg as far as the foot. Within a couple of days it went over to the right side, stayed there for a couple of days, went back to the left side and then was in both legs and back into the left side again. He described the pain as crippling to the point where on occasions he had to crawl to go to the toilet.

44. He had consulted Dr Berenson, a general practitioner, on 11 August 1983, when he gave a history of having been lifting cash boxes weighing over 100 pounds when at work and experiencing sudden pain in his left lower back. X-rays which were ordered showed that the usual lumbar lordosis was absent but that the spinal alignment was otherwise normal. There was mild anterior wedging of the L1 vertebral body which was probably developmental. No other bone or disc abnormality was seen and the sacroiliac joints were normal. Treatment consisted of physiotherapy, oral analgesics, anti-inflammatory drugs and muscle relaxants. The plaintiff presented for review to Dr Berenson on 24 April 1984, complaining of back pain and a stiff back. On examination straight leg raising caused back pain at 90 degrees and bed rest for two weeks was prescribed.

45. Dr Berenson next saw the plaintiff on 12 June 1984 when he complained of right knee pain. On examination there was definite right sciatica. But the plaintiff had noted left side sciatica the week before. A CT scan of the lumbar spine disclosed no abnormality or lesion at the L3/4-L4/5 levels but there appeared to be a central disc protrusion at the L5/S1 level with some compression of the arachnoid sac. The appearances were consistent with disc herniation. The findings were consistent with the plaintiff's symptoms and explained the pain variation from left to right. Dr Berenson reviewed the plaintiff again on 28 June 1984 when he found that the situation had not changed significantly. Dr Berenson considered that the plaintiff's symptoms were consistent with L5/S1 disc injury, a type of injury consistent with the plaintiff's description of its cause. At that stage he planned to persevere with a conservative management including physiotherapy, traction and possibly an epidural steroid injection. But if all else failed he thought it likely that the plaintiff would come to surgery.

46. Dr Berenson referred the plaintiff first to a Canberra neurosurgeon, Dr Chandran, and then to a Sydney doctor, Dr Rivett. Subsequently, Dr Chandran operated on the plaintiff on 31 July 1984. Following the operation the plaintiff was, as he put it, "Good for a while". He had pain but it was not as bad as it had been. He attended the Woden Valley Rehabilitation Centre for pool therapy for about three months. It did not help.

47. He attempted to go back on light duties in around about October 1984, or late in the year or even possibly early in the following year. He approached the defendant to see whether it was possible that he might return to work on light duties. He discussed the matter with Mr Cummings, who told him that there were no light duties available. He had a second discussion with Mr Cummings about the possibility of his doing some work as a doorman but nothing came of that.

48. Reporting on 15 November 1984, Dr Chandran referred to the incident in July 1983 as part of the history given him and to the plaintiff's claim that he was well for a while and then had recurrent symptoms particularly on sitting for long periods. Dr Chandran said that the plaintiff claimed that about eight weeks before he was seen "while cleaning a poker machine" he developed further pain in the back. There is no suggestion in any of the evidence that Mr Thomson was cleaning poker machines and it seems to be more likely that the doctor took a history that he was clearing poker machines.

49. A CT scan of the lumbar spine on 15 June 1984 showed a large central bulge at L5/S1 pushing into the theca. A steroid injection failed to effect any improvement. When seen on 24 July 1984 the plaintiff claimed that his main problem was in the legs and that the back pain was not so severe. On 31 July 1984 Dr Chandran excised the lumbo-sacral disc by bilateral (exposure). A large bulging disc, stretching the thin posterior longitudinal ligament, was found and excised. The nerve roots were widely decompressed. The plaintiff's symptoms improved after surgery but he was found to be quite anxious and very protective initially when mobilised.

50. Dr Chandran reviewed the plaintiff's condition on 5 October 1984. Then he complained that he was still having some back pain around the wound but no pain in the leg. He complained of soreness in the left buttock. On examination no neurological deficits were found. He was advised on a program of physiotherapy and referred for further hydrotherapy as a means of strengthening the back. It was suggested to him that he might consider returning to work if he could get light duties. He said he was unable to get any. Dr Chandran therefore advised him to stay off work and to continue with hydrotherapy at that stage.

51. Dr Chandran concluded that after surgery on his spine for removal of the bulging disc the plaintiff showed improvement in the symptoms in his leg but still had pain in his back which he thought likely to settle with further therapy. He thought the plaintiff to be a very anxious and highly-strung person needing a lot of reassurance and encouragement to mobilise and expected that his recovery would therefore be likely to be slower than average.

52. Dr Chandran reviewed the plaintiff on 17 December 1984. Before that date there had been two incidents upon which the defendant relied as having been likely to cause further injury to the plaintiff's back and thus operate as novi actus intervenientes.

53. The first of these incidents related to a fracas in which the plaintiff had become involved. It apparently took place in the early hours of Sunday, 16 September 1984. The plaintiff was well affected by alcohol. Mr Brian Anderson, a friend of the plaintiff's, described the incident. Having learnt that there was some difficulty involving the plaintiff he went outside the club and saw the plaintiff. He went up to him. The plaintiff hit him and started screaming and swearing at him. He described the blow as "like a wet dishcloth (which) did not hurt him at all". He said that he grabbed the plaintiff by the neck and around the waist and around the back and just walked forward so the plaintiff's legs went out from under him whereupon Mr Anderson laid him down on the concrete. The Police arrived. After discussion with Mr Anderson who told them all about the plaintiff's back the Police went to the plaintiff. Mr Anderson described what happened as follows:-

"He took a few swipes at them but they were really
good, they held him properly and got him into the
car and took him away."

54. I accept that the incident caused no exacerbation of the plaintiff's back condition.

55. On 16 December 1984 the plaintiff, who had been fixing up his boat, took it onto the Molonglo River to test it. The plaintiff got into the boat and began to circle around. The intersection of its wake with the wake of another boat caused the plaintiff's boat to sink. Mr Anderson called out to him but the plaintiff told him that he was all right. Mr Anderson said that he would have expected the plaintiff to be in a lot more pain or hurt but he was not. The plaintiff helped to get bits and pieces off the boat when it was eventually dragged in and Mr Anderson remembered him as not being any the worse off for having fallen out of the boat into the water.

56. When Dr Chandran reviewed the plaintiff on 17 December 1984 he understood that the plaintiff had been doing part-time work assisting his friends in the catering business but experienced pain in his back after standing for long periods. He referred to the plaintiff's brush with the law and to the accident with the power boat. The plaintiff told Dr Chandran that he experienced no aggravation of pain. Reporting on 27 December 1984 Dr Chandran said that the plaintiff's main complaint was still back pain with occasional pain in the buttocks but no leg pain. On examination he found no neurological deficits in the lower limbs but noted that the plaintiff was very stiff in the back. He was not clear whether that was due to the fall out of the boat or not. He felt that there was a considerable amount of functional overlay and noted that although he found no neurological deficits the plaintiff had numbness in the whole of the left leg with no dermatomal pattern.

57. In a later report of 20 March 1985 Dr Chandran thought it was possible that the power boat incident may have stretched or bruised a nerve. He found no clinical evidence of nerve root compression and thought that the plaintiff was exaggerating his symptoms.

58. Dr Chandran had earlier arranged for a CT scan which showed no evidence of nerve root compression. As at 31 January 1985 and 5 February 1985 the plaintiff was continuing to complain of low back pain in the left sacroiliac region, occasionally extending into the leg with pins and needles. Dr Chandran had told the plaintiff that he had no explanation for the extensive symptoms and disability that he was claiming. He thought that there could have been some pain in the sacroiliac region, possibly arising from the facet joint. For this he offered a local steroid injection but he did not expect any significant improvement in the plaintiff's condition because he seemed to have a fair degree of functional overlay. By 7 February 1985 Dr Chandran was saying that he was quite certain that there was some aggravation of the injury due to the incident with the power boat but he thought that the predominant feature seemed to be his functional problem.

59. I accept the plaintiff's evidence supported as it is by Mr Anderson's, that he suffered no ill effects from the boating incident. I contrast that evidence with Dr Chandran's conclusion reached only after some seven weeks although he had seen the plaintiff the day after the incident.

60. On 8 July 1985 the plaintiff consulted Dr John Grant. Dr Grant noted the various x-ray examinations, that a myelogram done in March 1985 seemed free of abnormality and yet in the CT scan there was what looked to Dr Grant like a large possible fragment of disc tissue. It seemed to be more in the nature of disc tissue than scar tissue.

61. Dr Grant performed surgery on the plaintiff on 29 October 1985. In that operation the nerve root was simply bound in some dense scar tissue without evidence of actual disc protrusion. A posterior spinal fusion was carried out between the L5 and S1 segments using screw fixation to help stabilise the back. Reporting on 4 November 1985, Dr Grant said that the plaintiff would require eight to ten weeks hospitalisation for convalescence and would then be mobilised wearing a spinal support.

62. Reporting on 12 April 1986, Dr Grant said that x-rays appeared to show that stabilisation had occurred between the L5 and S1 segments and that no movement was occurring. The plaintiff told him that his pain was significantly better but he still had leg and back pain. Dr Grant thought he might increase his activities within the limits of discomfort to see just what the limitation of his ability to exercise was. He did not see the plaintiff returning to a job which involved bending and lifting strains and thought it would probably be advisable for him to be retrained as a clerical worker.

63. The plaintiff worked at the Canberra College of Advanced Education between August and November 1986 as an Assistant Audio Visual Technician in the Audio Visual Library. He worked for four three hour shifts a week for about 16 weeks earning $1,802.00.

64. On approximately 17 December 1986 the plaintiff went to Coffs Harbour where he stayed with some friends who owned a shop. He assisted from time to time in the shop for up to three or four hours a day in return for board and lodging.

65. The plaintiff arrived in Maroochydore in early or mid March. He then engaged in mining work in the employ of J E Gardner Pty Limited. He was only able to carry out this work for two and a half weeks, pain preventing him from working any longer. The plaintiff says that no specific incident caused him to have the disabling pain following the mining work. He denied, and I accept his denial, that the pain was due specifically to a fall which he had or to the use of a drilling machine which, powered by compressed air as it seems to have been, could be operated relatively easily. As the plaintiff described it, "all you have got to do is hang onto it".

66. A number of incidents took place while the plaintiff was subsequently living in Darwin but these seem to me to be incidents which followed naturally from the condition from which the plaintiff was suffering and not to constitute novi actus intervenientes. (See the discussion concerning the problem by Windeyer J in Faulkner v Keffalinos (1971) 45 ALJR 80 at pp 84 and 85).

67. See also Fishlock v Plummer (1950) SASR 176. In that case at p 181 Mayo J said,

"If any part of his damage was sustained by reason
of his own negligence or unreasonable behaviour,
the plaintiff would not be recouped as to that
part. Added loss may occur by reason of another
misadventure when the claimant's lack of care is
not a causative element. I think two propositions
are consistent with the principles referred to.
Where further injury results from a subsequent
mishap (without carelessness by himself), which
would not have been sustained had he not been in
the physical condition caused by the defendant's
neglect, the added damage is directly linked with
the original catastrophe. If injury would have
resulted from the subsequent mishap had the
plaintiff been in normal condition of bodily
health, but the damage sustained is greater
because of his injured state, the extra damage,
but only the extra damage, is sufficiently connected."

68. I am not satisfied that any of the incidents to which reference has been made and which were put forward by the defendant as evidencing additional traumata which had an aggravating effect on the plaintiff's condition did in fact do so. The onus of proving that they did lay upon the defendant. See Watts v Rake [1960] HCA 58; (1960) 108 CLR 158 and Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164.

69. It was suggested that in engaging in the activities in which he did the plaintiff was acting without due regard for his own safety but it seems to me that the activities were no more than incidents in the plaintiff's life with which he was simply attempting to get on and did not, I am satisfied, lead, because of his own carelessness or negligence, to exacerbation of his condition which had been caused by the defendant's negligence.

70. I consider the plaintiff to have been generally a witness of truth. I consider also that to some degree he may have been guilty of exaggeration but, in my opinion, not too much should be made of this since the plaintiff has already undergone surgery thrice in an endeavour to be relieved of the backache. I am satisfied that he sustained serious injury to his back. The injury is illustrated by his evidence concerning work which he did at the Canberra College of Advanced Education. He described his condition when he did the work in response to a suggestion that that constituted the very type of job which he would be able to do as follows:-

"I was doing it then, I was in pain, I could not
sit, I could not stand for long periods of time
and while I was working in that control room,
there were times when I was on the floor laying down."

71. The medical evidence seems to me to be all one way. It is clear, I think, that the plaintiff sustained an injury in 1983 and that that injury was aggravated in 1984 to a very substantial degree. Even if the results of the injury in 1983 had completely cleared up by the time the 1984 incident occurred, it would seem to me that that second incident was enough to account for the eventual incapacity from which the plaintiff suffers. It was put to Dr Chandran that the operation which he carried out in July 1984 was a fairly standard procedure with no particular difficulty and no indication of complication. The doctor did not perform a fusion at that stage but agreed that 10-15 percent of patients who undergo a disc excision then develop back pain and require fusion irrespective of whether there has been any further injury or not. This would account, I think, for the need for operative intervention by Dr Grant which took place on 29 October 1985 and as a result of which the plaintiff was in hospital for about three months.

72. But the surgical intervention did not stop there. In Darwin on 7 September 1987 the plaintiff first attended on Mr Baddeley, an Orthopaedic Surgeon. He complained that since the surgery which he had previously undergone he had continued with backpain which had never really settled and that he was having increasing pain on bending, lifting and stooping and on prolonged sitting. He found himself unable to sleep in a prone position. There was radiation of pain to the left thigh. Mr Baddeley considered that x-rays and the CT scan suggested strongly that there had been a failure of fusion and that further surgery was indicated if the plaintiff was to expect any relief from his severe back pain. On 30 October 1987 an intertransverse postero-lateral fusion between L5 and S1 was performed, the surgery being relatively uneventful. One of the screws which had been previously inserted was seen and removed, leaving one screw in place.

73. Following the surgery, the plaintiff's back improved slowly and he wore a lumbo-sacral brace for a period of three months. When seen in December he was continuing to have some pain but was much improved. On 16 February 1988 Mr Baddeley saw the plaintiff again. The plaintiff said that he had had a fall on 17 December 1987 which had caused some back pain but that this had settled. On 7 March 1988 the plaintiff was complaining that his back had again worsened and he was having pain down his right lower limb into the S1 distribution. He had certainly never had right lower limb pain before. He stated that at that time the leg pain was worse than the back pain. A CT scan showed no obvious disc ruptures but did raise the possibility of delayed union of the intertransverse fusion.

74. Subsequently, Mr Baddeley saw the plaintiff on three occasions the last being 4 August 1988. He described him as certainly better than prior to his most recent operation but said he was still complaining of significant back pain with right lower limb pain to a lesser degree. Mr Baddeley concluded that the plaintiff was unlikely to return to any heavy work for a period of at least six months and that it was probable that his back would continue to improve but that he would reach a stable and static condition in approximately six months. He considered that then he would be able to perform all sedentary duties and be able to perform light labouring duties although he felt that heavy labouring work would always be impossible for him.

75. Reporting on 16 August 1988 Mr Baddeley considered that at that time only light sedentary work was possible for him. He considered the possibility that the intertransverse graft had not fully consolidated and might require further surgery should fusion not occur although he did not think that it would be likely.

76. Dr Lane examined the plaintiff on behalf of the defendant in 1985 and 1986. Reporting in 1985 he said,

"He showed excellent motivation regarding return
to work and basically I believe his claim is
genuine. There was no specific evidence of
embellishment or exaggeration today."

77. On the second occasion, Dr Lane gave as his diagnosis and opinion the following:-

"It is reasonable to assume that this man
developed a disc protrusion and it was probably
the incident on the 20.7.83 which caused the disc
protrusion. Although there was some embellishment
today as shown by the incongruity between the
straight leg raising and his ability to make a 90\
angle between his trunk and his legs, in general
his presentation was played down and there is no
doubt that he has had demonstrable pathology.
This man would be quite capable of resuming an 8
hour job on light duties, i.e. he should not lift
loads greater than 15 kg. This man's long term
prognosis is not good related to the early
development of his disc protrusion."

78. Dr Millons, reporting on 11 August 1988 said,

"I would doubt whether there was any indication
for any further investigation and the only
treatment required is for him to keep as active
as he can to the limits of his discomfort. He
would clearly be incapable of working as a
supervisor or cellarman if there was a lot of
lifting and bending involved which there
probably would be. He seems to be coping
reasonably well with his current lighter tasks
and he is really only suited to work that avoids
a lot of bending and lifting. A semi sedentary
situation is really best for him.
The prognosis is guarded and continuing problems
would appear inevitable."

79. While in Darwin, the plaintiff engaged in very light work for a limited period and even this seems to have caused him some difficulty. However, I think it likely that, given time and the completion of litigation, the plaintiff will be able to undertake work of the kind to which Dr Millons referred in evidence. He is not unintelligent and has shown himself in the past to be capable of doing responsible work (at the defendant club). I think that, more probably than not, he will be able to do some work after further training. Nevertheless, I think that given his personality and background he is considerably disabled and I would assess that disability so far as his economic capacity is concerned at 50% of his pre-injury capacity. I proceed to assess damages accordingly.

80. Before the accident in 1983 the plaintiff was a fit, strong, young man who had been, amongst other things, a ski instructor and a competitive surfer. He enjoyed life. He was interested in a catering career and had been told that he was in line for the post Assistant Manager of the defendant club. There was no evidence which established to my satisfaction that he had any pre-existing back condition. Subsequently he became morose and depressed, once attempting suicide in a half-hearted fashion, and was constantly in pain and was, as Mr Anderson, whom I accepted as a witness of truth, described him, "a whinger". Mr Anderson's unchallenged evidence was that the plaintiff was always "bitching about his back and his pain".

81. The plaintiff attempted to get work as is evidenced by the matters I have already found.

82. In the normal course of events one would have expected that the plaintiff would have worked until he was aged 65 and I proceed on that basis. I think that the contingencies in favour of promotion had he not suffered his accident would have tended to counter-balance the unfavourable contingencies in his life but I have some regard to the likelihood that unfavourable contingencies might have been the more dominant. I assess this likelihood at a low 5%.

83. Out-of-pocket expenses, including some unpaid ones, total $43,938.40. For past economic loss I find a net figure of $80,645.60 plus $20,384.00. I round the resulting figure to $101,100.00. For future economic loss I take into account the national wage case decision handed down in August of this year and increase the amount of the net earnings of a comparable employee of the defendant to $402.00 per week, ie $10.00 more than that shown in the Schedule numbered 1 tendered as part of the plaintiff's case. To allow for early mortality, I use the appropriate table from the Australian Life Tables 1975/1977 quoted at page 544 of Assessment of Damages by Professor Luntz, 2nd Edn, and assess the gross loss until age 65 at $411,648.00 ($402.00 x 1024). I reduce this figure by 5% to allow for unforeseeable contingencies and that result by a further 50% because, as I have earlier indicated, I think the plaintiff will eventually gain some form of remunerative employment.

84. I round the resulting figure to $195,500.00 which I think represents future economic loss.

85. For general damages for pain and suffering and for loss of enjoyment of life which is a substantial amount considering the plaintiff's age, I allow $70,000.00.

86. For interest I allow 7% on $48,000.00 at which I assess the plaintiff's past net economic loss and for five years and five months on $35,000.00 at which I assess the plaintiff's general damages for pain and suffering etc to date. The total is $31,470.00. For the Fox v Wood component I allow $3,875.00.

87. There will be judgement for the plaintiff in the sum of $445,783.40.