Jamie Cornelius John Geysen v J Blackwood and Son Limited [1989] ACTSC 58 (8 December 1989)

SUPREME COURT OF THE ACT

JAMIE CORNELIUS JOHN GEYSEN v. J. BLACKWOOD AND SON LIMITED
S.C. No. 1638 of 1983
Employer

COURT

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

CATCHWORDS

Employer - employee - lifting injury, foreseeability - negligence - no new question of principle inolved.

HEARING

CANBERRA
8:12:1989 Counsel for the Plaintiff: Mr L Morris, QC
Mr G Lunney

Solicitors for the Plaintiff: Messrs Sneddon Hall & Gallop

Counsel for the Defendant: Mr D Nock

Solicitors for the Defendant: Messrs Crossin Power Haslem

ORDER

There be judgment for the plaintiff in the sum of $221,981.53.

DECISION

This is a claim for damages brought by the plaintiff against his employer, the defendant, in respect of injuries sustained by him as a result of an incident which took place on 27 April 1982. On that date the plaintiff was employed as a storeman/delivery clerk at the defendant's premises at Fyshwick. At about 4.00pm the plaintiff, who had been working with the only forklift which was available for loading and unloading at the defendant's premises, was called to the office. In his absence the forklift caught fire and was rendered unserviceable. Mr Owen Cargill, the plaintiff's warehouse manager, then directed the plaintiff to load onto a truck, of which the driver was Mr Ray Tetley, 80 bags of "Drisorb" so that they could be transported to the Woodlawn mine. That mine was a major customer of the defendant. "Drisorb" was a substance which was used for absorbing spilt oil. It was packed in bags which, when full, each weighed 25 kg or 55 lbs. The bags were plastic lined paper bags very like cement bags. Mr Cargill told the plaintiff that the "Drisorb" had to leave for the mine by 4.30 pm and that he should start loading immediately. There was no difficulty in respect of the first 40 bags which were located at near ground level and could be, and were, readily lifted by a straight lift onto the truck.

2. The remaining 40 bags were in different case. They were located in a pallet on a storage rack at a height of some 12 feet (3.65 m) above the ground. The plaintiff made his way to the level where they were stored using a makeshift ladder, and then stood with one foot on each of two separate transverse supports forming part of the storage racks and some 2 ft 6 in (76.2 cm) to 3 feet (91 cm) apart. The tray of the truck was some 3-4 feet (91 cm to 122 cm) from ground level. Having positioned himself apparently securely, if somewhat precariously, on the rack with his feet placed as indicated, the plaintiff then proceeded to hand the 40 bags of "Drisorb" to Mr Tetley. He did this first by shaking the bags so that he could get a grip on one of the top corners of the bag and then by transferring the bag from its position on the rack to Mr Tetley. To do this he used one hand only, using his other arm for balancing and twisted the bag first in a circular movement. When he had a reasonable grip of the bag he lifted it one-handed, swung it out to the right, twisted and bent down and lowered the bag to Mr Tetley standing below. The plaintiff estimated that the bottom of a bag would have been below the level of his feet when Mr Tetley took it from him.

3. The loading of the second lot of 40 bags took about 15 minutes.

4. When the plaintiff descended the ladder, he found himself unable to straighten up because any attempt to do so caused severe low back pain. He went straight to Mr Denham, the Canberra Manager of the Branch, to report that he had hurt his back.

5. In completing his claim form in respect of the injury addressed to the defendant's insurer, the plaintiff described the incident in the following terms:-

"I was loading 80 bags Drisorb (25 kg each) from a
mezzanine level pallet storage. After the
loading of the truck I was unable to straighten
to an upright position due to intense pain in my
lower back + right leg."

6. It was suggested to the plaintiff that he could not have been loading from a mezzanine level because the second lot of 40 bags were taken from a pallet on top of the rack. However, I see no reason to doubt the plaintiff's evidence concerning the events preceding the onset of pain. The use of the expression "mezzanine level" is at least equivocal and does not cast enough doubt on the plaintiff's evidence to persuade me that I should reject his account of what happened.

7. Dr Neil Adam, a Senior Lecturer at the Centre for Safety Science at the University of New South Wales accepted the following as an account of what happened to the plaintiff on 27 April 1982:-

"He had to stand with his legs straddled so that
his left foot was braced on one rail and the
right foot on the other, at least a metre away.
I understand that although the rack was inside
the warehouse at the time, it was not close
enough to either the wall or the ceiling for
Mr Geysen to use either for a secure grip. He
had to balance himself in this posture by holding
his left arm akimbo as he lowered the bags one at
a time with his right hand. He would balance on
the two rails, lean forward to pick up a 25 kg
bag with both hands, "dog ear" one corner so that
he could grip it and lower it one handed, and
then extend his left arm for balance as he bent
down and to the right to lower the bag to his
fellow worker who was standing on the back of the
truck......Mr Geysen had to rely entirely on his
strength and agility to retain balance and a
secure position as he lifted and lowered the bags
of Drisorb."

8. Dr Adam then went on to say:-

"The person to whom the bags were being passed is
recalled as being quite small - less than 167 cm
(about 5 ft 6 in). This helper was standing on
the tray of an Isuzu 8 tonne truck, at a level of
approximately 122 cm (about 4 ft) above floor
level. A man of this stature can reach safely
(to take a weight) to as high as 187 cm (about
6ft 2 in), so, standing on the truck tray as
described, his total reach height would be
309 cm. It will be recalled that Mr Geysen was
standing with his feet on rails which were 330 cm
above floor level. Allowing for his grip on the
bags of Drisorb, the bottom of the bag, which is
the part that would be grasped by the assistant
on the truck, would be some 40 to 50 cm below
Mr Geysen's hand gripping the bag as he lowered
it. Mr Geysen would therefore have to lower the
25 kg bag, one handed, to a level approximately
mid way between his knee and his ankle, ie about
25 cm above the level of his feet."

9. Using material referred to in his report, particularly under the heading "Ergonomic and Safety Management Considerations", none of which was challenged by Counsel for the defendant, I am satisfied that the method of lifting adopted by the plaintiff as a result of the demand that he should complete within a limited time the loading of the bags of "Drisorb" was dangerous in that it placed on the plaintiff a lifting demand which Dr Adams described as quite excessive. Dr Adams also said:-

"There is available very extensively published
information on the prevalence of back injury
among manual workers world-wide. Journal and
trade magazine articles, state and federal
government advisory booklets and circulars, and
public symposia have proliferated in the last
forty years dealing with the prevalence of injury
resulting from, and other problems associated
with, manual handling. It is my opinion that no
employer in the 1980's should be unaware of the
risk of back injury and the activities which have
highest potential for that risk.
In the light of this sort of information, as well
as what might be referred to as "common
knowledge" in relation to lifting tasks and human
susceptibility to back injury as a result of
lifting in adverse postures, I would regard the
injury suffered by Mr Geysen as highly
foreseeable. The injury was also quite preventable."

10. In all the circumstances I am satisfied that the defendant was negligent in requiring the plaintiff to work as he did on 27 April 1982 and is responsible for any damage resulting from that negligence.

11. The defendant pleaded that the plaintiff was guilty of contributory negligence. It is alleged first that he was negligent in failing to use plant and equipment provided by the defendant. This allegation failed. There simply was no suitable plant or equipment provided by the defendant. It further claimed that he failed to have any or any proper regard for his own safety. I find this allegation unproved. The plaintiff was required to load at short notice and urgently a large number of bags of "Drisorb", 40 of which had to be unloaded from a precarious position without the use of mechanical aid. In these circumstances I do not see how the plaintiff could be blamed for doing what he was told to do in the best way he could. I need not deal with the last particular of contributory negligence alleged; it was plainly pleaded in error.

12. The plaintiff's medical history, so far as it related to his lower back, is somewhat complicated. Just before his 17th birthday he complained to his then general practitioner, Dr Neubauer, of a painful right hip. There was no obvious injury. X-rays of the lumbo-sacral spine and of the right hip were taken, apparently on 11 July 1979. That of the spine was reported as showing no bone injury but narrowing of the lumbo-sacral disc space which could have been developmental. In other respects the appearances were normal. Of the right hip it was reported that no fracture, dislocation or other abnormality was seen.

13. On 27 October 1980 the plaintiff was still complaining of low back pain radiating down the back of the right leg. From an undated, difficult to decipher entry in Dr Neubauer's records, made apparently between 27 October 1980 and 22 December 1980, it appears that he prescribed Brufen, an anti-inflammatory agent. However, on 22 December 1980 the plaintiff apparently presented still complaining of back pain. There was no complaint of back pain made to Dr Neubauer between that date and 28 April 1982 when the plaintiff presented complaining of the pain sustained in the accident which I have described. On that occasion he complained of back pain apparently radiating down the right side. He had already attended a physiotherapist on the afternoon of the accident following advice from Mr Denham.

14. When first seen on 13 September 1982 by Dr Kitchin, an orthopaedic surgeon, on reference from Dr Neubauer, the plaintiff gave a history of back pain following the incident described with pain subsequently extending down the right buttock and thigh into the posterior aspect of the calf with susequent development of feelings of numbness in the sole of the right foot. His treatment before seeing Dr Kitchin had been physiotherapy and the prescription of a variety of analgesic and anti-inflammatory tablets. He was back at work on restricted duties but could not bend or lift, had difficulty with stooping and could not sit for any length of time because of back pain and right lower limb pain. He described the episode of back pain in 1979 for which he said he was x-rayed but that the condition had cleared and that he had been free of back pain for three years. It will be noted that this does not accord with the history as it appears from Dr Neubauer's notes.

15. Dr Kitchin viewed x-rays taken on 22 July 1982 of the lumbo-sacral spine. These showed some narrowing of the L5-S1 disc and evidence of a retrolisthesis, ie a backward displacement of S1 on L5. He considered that the x-rays of the lumbo-sacral spine taken on 11 July 1979 showed similar changes. He diagnosed the plaintiff's condition as a right sided sciatica probably due to an L5-S1 disc disruption and protrusion. Conservative methods of treatment did not change the situation significantly. On 22 October 1982 the plaintiff presented with persistent low back pain and right lower limb pain. A ridiculogram demonstrated a disc protrusion at L5 S1 with cutoff of the sheath of the S1 nerve root on the right side. These changes were consistent with the physical features of a disc protrusion at the lumbo-sacral level.

16. Thereafter Dr Kitchin performed a laminectomy at the L5 S1 level on 25 November 1982. He found the disc protrusion adequately demonstrated with the nerve root lying stretched over the disc space and adhesions between the disc and the nerve root. The features were of a fairly recent protrusion. Disc enucleation was affected and the nerve root released. Recovery from the surgery was uncomplicated and when Dr Kitchin reported on 21 December 1982 the plaintiff was out of hospital and was ambulating well.

17. Dr Kitchin concluded that the plaintiff was, when he reported on 21 December 1982, unfit for work but expected that he would be able to return to his pre-injury work in the future after time off which he expected to be of the order of three months.

18. Dr Kitchin reviewed the plaintiff on 4 February 1983 when he reported significant improvement in his condition. He still had a catching pain behind the right buttock present at intervals. On examination back flexion was about 80% of normal, straight leg elevation on the right was restricted to 80 degrees and produced buttock pain while right ankle reflex remained absent. Dr Kitchin's comment and prognosis were that the plaintiff's recovery following disc excision and laminectomy had been satisfactory and that following the review just referred to he was able to return to light work which should in the future avoid repetitive bending and over-heavy lifting. He considered the plaintiff as liable to have periodic shooting pains down the leg associated with the lumbar nerve root and that he might have recurrent episodes of back pain in the future.

19. Dr Kitchen saw the plaintiff again on 25 November 1983 when he reported an occasional nagging pain in the lower back and in the anterior groin area on the right side. At that stage he had been employed as a salesman for the previous six months. Physical examination of the lumbar spine showed some restriction in flexion. Straight leg elevation was to 90 degrees on the left and to 80 degrees on the right. Again the right ankle reflex was absent. Dr Kitchin considered that the plaintiff had some residual objective signs, namely a loss of the right ankle reflex and some restriction in back flexion together with some symptoms referable to the previous disc excision. He considered the type of work he was then doing was suitable but that he was not fit for heavy duties involving heavy lifting and repetitive bending.

20. On 15 August 1986 Dr Kitchin examined the plaintiff again. He then complained of pain in the left calf, left knee and left thigh present since the end of March 1986. He had some low back pain and periodic numbness of the second toe. He had been taking medication. He reported that in the May-June period he was at work engaged in asbestos stripping and noticed the symptoms in the left leg shortly after that. I think the inconsistency in the dates when the pain commenced should be resolved in favour of the later period.

21. On physical examination there was a mid-line scar, limited flexion, a tilt to the left, satisfactory extension with straight leg elevation on the right to 70 degrees and on the left to 40 degrees. The right ankle reflex was absent. A lumbar CT scan performed on 27 June 1986 was reported as showing a posterior bulge at the L4.5 disc level. Dr Kitchin concluded that the symptoms from which the plaintiff suffered were due to a L4.5 disc lesion which he thought to have arisen from the activities during the end of May-early June period. He considered the plaintiff's then problems to be due to the pathology at the L4.5 disc level, a level above the previous level of trouble. He thought him unfit for work and that surgery would be necessary if the condition did not settle.

22. In a brief report dated 3 February 1987 Dr Kitchin said:-

"This patient's present symptoms are due to an
L4.5 disc lesion. This is not a consequence of
his previous L5.S1 disc lesion. The likelihood
of further surgery is high."

23. The onset of symptoms referable to the L4.5 disc lesion was noted particularly following a short period when he was engaged in asbestos removal in June 1986. He described this in a claim form submitted on 20 August 1986 in the following terms:-

"I was removing asbestos from U/B (underbeams)
and purlins on platform above stairwell and
decontamination unit (NCDC site) in a confined
area where standing room was limited. After
about 2 hours in this area crouching and bending
under low U/B's and purlins, my back was becoming
extremely painful and sensitive to any bending or
twisting action of any kind. I immediately
discontinued work and rested until the morning
shift was over and decontaminated normally."

24. Perusal of the claim form indicates that the onset of symptoms happened at about 10.00 am on Wednesday, 11 June 1986.

25. Dr Kitchin's view would seem at first sight to attribute the onset of symptoms in June 1986 to a second discreet incident, that which occurred during the asbestos removal. Neither side sought to call Dr Kitchin. It will be seen that his opinion expressed in his reports of 28 August 1986 and 3 February 1987 does not specifically deny the possibility that the injury of 27 April 1982 was associated with the damage found at the L4.5 level after the onset of symptoms on 10 June 1986. He described the earlier condition as:-

"Previously he had an L5.S1 disc rupture with
right-sided sciatica. His present problems seem
to be due to pathology at the L4.5 disc, that is,
the disc above the previous level of trouble."
I have already quoted in full his report of 3 February 1987
which merely says that the symptoms due to the L4.5 disc
lesion were not a consequence of the previous L5.S1 disc
lesion.

26. It was put to medical witnesses that Dr Kitchin, as the treating surgeon, was in a better position to assess the aetiology of the injury at the L4.5 level. No doubt, in the ordinary case this would be so but Dr Kitchin did not, in my opinion, say that the earlier injury had nothing whatever to do with the damage of the L4.5 level. He simply did not diagnose it as being due to the problem at the L5.S1 level of which surgery had affected a reasonably good cure.

27. The radiculogram taken on 1 November 1982 was reported on as follows:-

"There is indentation of the column of dye and
poor filling of the nerve root sheath at the
L5/S1 level on the right side consistent with
disc herniation. At the L4/5 level no definite
abnormality is seen but there is slight
displacement of the nerve root on the left ?
significance."

28. In these circumstances, Dr Stubbs, another orthopaedic surgeon, thought it advisable to have nerve conduction tests carried out with a view to establishing definitely what was the aetiology of the L4.5 disc problem. The tests were carried out by Dr Owen White, a neurologist. He found marked abnormality of the right L5/S1 nerve root in keeping with the previous pathology as identified surgically. He also found evidence of pathology of the left L5/S1 nerve roots and that the left L4/5 nerve root components also appeared to be involved in a pathological process. The findings indicated to him that there was a left L5, perhaps L4, lesion on the left hand side while the left S1 component was probably normal. On the right hand side he found undoubted evidence that either the L5 or S1 or both were involved in the pathologic process. Having reviewed the previous CT scans and myelogram (by which I am satisfied he meant the radiculograms performed in 1982) he said that, "There would appear to be an unequivocal bulge of the L4/5 disc on the myelogram performed some years ago." He thought that it was somewhat greater than one would expect in a man of the plaintiff's age but nevertheless doubted whether at that stage it would have been producing any clinical symptoms or would have required any specific treatment. In his view the follow-up to the CT scans performed in 1985 and 1986 showed unequivocal evidence on each film of central bulging of the L4/5 disc. In his opinion there had been an extension of the bulge and probable nerve root involvement at the L4/5 level since 1986. He believed that there had been damage superimposed on previous trauma induced degeneration. The view which Dr White expressed concerning the unlikelihood of the condition at the L4/5 disc level producing any clinical symptoms or requiring any specific treatment is quite consistent with the view expressed by Dr Kitchin that it was not the cause of any trouble. The significance of the damage, if any, caused to the L4/5 disc on 27 April 1982 lies not in the fact that it produced symptoms immediately but that it was a possible source of future trouble in the plaintiff's back.

29. Armed with the results of the nerve conduction study performed by Dr White, Dr Stubbs expressed the view that the plaintiff's then present left sided sciatica arose from the L4/5 disc for which there was evidence of injury on the earliest radiculogram. He took the view that the disc was injured in the accident of 1982.

30. Dr Stubbs, in cross-examination, conceded that the history of physical effort undertaken by the plaintiff before the occurrence of the aggravation which took place in June 1986 was to be weighted more heavily than the x-ray changes and (as I understood him) that the plaintiff's behaviour in May-June 1986 was more likely to have caused the aggravation than any progression of the disease caused by the incident in April 1982. He also, in response to a question put to him by me, indicated that the problem shown in the radiculogram of 1 November 1982 at the L4 level was one that indicated a fairly recent nerve root problem in that the nerve root was swollen. He thought it reasonable to assume that the swelling around the nerve root indicated that the problem was recent and therefore that the damage to the L4/5 nerve root had occurred at the same time as the accident to the L5/S1 disc. He had no criticism whatever to offer concerning the lack of attention given to the L4/5 disc given the size of the problem which was manifest at the L5/S1 disc level.

31. In all the circumstances I am satisfied that the plaintiff injured not only the L5/S1 disc in the accident in 1982 but also did damage, much less obvious but nevertheless real, to the L4/5 disc in the same accident. I emphasise that, as I have already said, this finding is not inconsistent with the views expressed by Dr Kitchin.

32. Dr Cairns examined the plaintiff on behalf of the defendant.

33. Reporting on 6 August 1984 following examination of the plaintiff on that day, he took the view that the plaintiff's then symptom complex was causally related to the incident at work, that is, as I understand it, the incident of 27 April 1982. He reviewed the plaintiff on 16 August 1989 and subsequently reported in part as follows:-

"In respect of observations regarding
attributability, the evidence does suggest that
he had a bulge at the L4/5 intervertebral level
on the occasion of his initial investigations in
1982. In my view therefore, he was predisposed
to aggravation of this level, which I believe
occurred in the incidents in 1986, and have led
to a deterioration in his situation to that which
existed prior to the episodes in 1986."

34. In cross-examination, Dr Cairns was given the history of the plaintiff's back condition from the time it first developed in 1979 and a history of his work performance since the accident in April 1982. I think that the history as put by Counsel for the defendant to Dr Cairns was generally accurate save that I believe it did not take sufficient account of the fact that on many occasions the plaintiff was unable to continue to work full-time because of pain. It is, however, clear that he was able to work between 1982 and 1986 without any further disruption due to the lesion of the L5/S1 level of his spine.

35. I am satisfied that the disablement from which he suffered following the incident on 10 June 1986 arose, not from the lesion at the L5/S1 level but from the L4/5 level.

36. A question therefore arises whether there was any causal connection between the accident of 27 April 1982 and the disabling lesion from which the plaintiff suffered in June 1986.

37. On the whole of the evidence I am satisfied that the plaintiff did sustain damage to the L4/5 disc level in 1982 and that, weakened as it was, that level was susceptible to exactly the sort of injury which occurred in 1986. Whether it was the sole reason for the break-down of the disc or whether the break-down occurred as a result of the combination of the effect of the condition which had existed since at least 1979 and the lesion which occurred in 1982 does not seem to me to matter. The 1982 lesion must have weakened further an already weakened back rendering it susceptible to exactly the sort of aggravation which happened in 1986.

38. It follows, therefore, that I am satisfied that the defendant is responsible for the condition which became frankly manifest in 1986.

39. As to whether the engagement by the plaintiff in work which was heavier than that in which he ought to engage following the advice of his doctor, I accept the evidence of Dr Meiklejohn that the plaintiff was depressed partly because of pain and partly due to the frustration of not being able to work and that on balance it was probably reasonable for the plaintiff to engage in the activities in which he did. One can readily accept that this should be so. It seems to me to be clearly foreseeable that a young man otherwise of good physique would be so exasperated by the disability from which he suffered and the frustration of not being able to work that he would engage in activities in which prudently he should not have.

40. In all the circumstances, I am satisfied that the defendant is liable for the damage sustained by the plaintiff arising out of the incident of 27 April 1982 and that of 10 June 1986.

41. The plaintiff has refused to have an operation in connection with the lesion at the L4/5 level of his spine. I am satisfied that if he underwent such an operation it would in all probability significantly reduce the level of his pain and thus enable him to engage the more readily in occupations which do not require much bending, lifting, or prolonged sitting or standing. I am satisfied that his refusal to have the operation thus far has been reasonable and would consider it reasonable that he should continue to refuse to undergo such surgery. However, I think that in the not too distant future, probably within three to five years, he will have further surgery at the damaged level and I think that he will probably gain such considerable relief from that surgery as to enable him to engage in an occupation subject to the limitations referred to above.

42. He is interested in completing a course in building which would enable him to work in some sort of supervisory or inspection capacity in the building industry and I am satisfied that within five years he will have qualified as he plans. I thought him to be intelligent and articulate and easily able to do the studies necessary for the achievement of his aim.

43. I turn to the question of damages which I assess on the basis that by the end of 1994 he will be in a position where his future economic loss may be taken to be negligible. I have no figures to indicate what he might earn in an occupation such as that for which he plans to train but I am satisfied that it would be not less than that which he would have earned but for the injuries he would have sustained in 1982 and 1986.

44. In assessing the plaintiff's damages on the basis set out above, I am mindful of the possibility that the plaintiff's pre-existing back condition may have led in any event to his incapacity for the work in which he had been engaged by the end of 1994.

45. So far as past economic loss is concerned, I take into account his loss immediately following the accident of 27 April 1982. For the period to 30 May 1983 I allow $9,072.00. I do not think the plaintiff has proved any loss thereafter until 12 August 1986. From that date to 30 January 1989 I allow $39,400.00. From 11 August 1989 to date I allow $6,800.00. Past economic loss therefore amounts to $55,272.00.

46. On the basis of the findings I have made, out-of-pocket expenses total $7,724.53. For future economic loss I allow $85,000.00. This allows for a discount of three per cent. It also allows for a further discount to take account of unfavourable contingencies of approximately 12.5% rather than the conventional 15% because it seems to me that in dealing with a relatively short period as I am here, there is a lessened risk of unfavourable contingencies operating.

47. For pain and suffering, loss of enjoyment of life and other matters personal to the plaintiff, which are generally dealt with under the heading "General Damages", I allow $40,000.00.

48. As to interest, I make no allowance on account of out-of-pocket expenses which either remain unpaid or have been dealt with by the defendant's insurer. In respect of the first period of loss, I allow interest at the rate of 14% from the mean date of 13 November 1982 to date in an amount of $8,975.00. I allow interest at the rate of 14% in respect of the period from 12 August 1986 to 30 January 1989 calculated from the mean date of 6 November 1987 in an amount of $11,530.00. I also allow interest at 14% calculated from the mean date of 10 October 1989 in an amount of $155.00.

49. I allow interest in respect of general damages calculated on the sum of $25,000.00 from the mean date of 15 February 1986 in an amount of $13,325.00.