Murray Denton v George Weston Foods Limited T/As Tip Top Bakeries (Canberra) [1991] ACTSC 69 (30 August 1991)

SUPREME COURT OF THE ACT

MURRAY DENTON v. GEORGE WESTON FOODS LIMITED t/as TIP TOP BAKERIES (CANBERRA)
S.C. No. 2028 of 1986
Personal Injuries

COURT

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

CATCHWORDS

Personal Injuries - Negligence by employer - Damages - No new question of principle.

HEARING

CANBERRA
30:8:1991

Counsel for the Plaintiff: Mr P. Williams QC with Mr G. Lunney

Instructing solicitors: Messrs Minter Ellison

Counsel for the Defendant: Mr Nock

Instructing solicitors: Messrs Hunt and Hunt

ORDER

There be judgment for the plaintiff in the sum of $46,537.00.

DECISION

The plaintiff fell from the back of a truck on 8 January 1981. The truck belonged to his employer, the defendant. He was, at the time, delivering bread for his employer to Coles New World Supermarket at Wagga in the State of New South Wales.

2. In the fall, the plaintiff suffered quite serious injury. He injured his right knee, left leg, right wrist and elbow, right shoulder and the back of his neck. He claims that the fall was the result of the negligence of his employer, that negligence being a breach of an implied term of his contract of employment and of the general duty of care owed to him.

3. The defendant denies negligence and pleads, alternatively, contributory negligence on the part of the plaintiff.
Liability

4. The truck provided by the employer had racks inside it which formed rails. On those rails plastic baskets containing loaves of bread could slide. There were (it seems) five vertical rows. There were three across. The racks prevented direct manual handling of baskets positioned towards the cabin end of the truck. To unload baskets out of manual reach, a steel rod with a bend at the far end forming a 90 degree hook was used. It had a similar bend at the end held by the operator but the hook was longer so as to form a handle. The basket could be hooked and drawn towards the operator until it came within reach.

5. The defendant tried to suggest that the plaintiff could carry out this operation standing on the ground, or at least with one foot on the ground. That would, of course, have been a more stable stance than the plaintiff said he adopted. He said he had both feet on the rear step of the truck as he drew baskets towards himself using the rod. It became apparent, however, that the defendant had two types of truck. One had a lower rear tray. It could be used as the defendant contended. The one the plaintiff was using, however, had a rear step about 76cm above ground level. The step was about 30cm deep.

6. I am satisfied that it was not practicable for the plaintiff to unload the truck any differently than he did with the equipment he had. He had to have both feet on the rear step at least for the purpose of drawing out some baskets and probably, though not also using the rod, for most of them.

7. The steel rod was about 2.74m long. The defendant suggested it was only about 2.13m long. It seems the latter suggestion was consistent with the smaller lower truck that the defendant's case wrongly assumed to have been in use at the time. The length of the rod, of itself, does not seem to have caused the plaintiff's fall.

8. What did cause the plaintiff to fall was that as he used the rod to draw out a basket of bread with 24 loaves in it, inserted vertically, the basket jammed. It had skewed a little sideways. It was on one of the top racks towards the front of the truck. The hook of the rod had been inserted underneath the tray of the basket. The plaintiff pushed the basket back to free it and then hooked the rod over the top of the side of the basket facing him and pulled again. I infer that the plaintiff pulled fairly hard to ensure the basket moved freely towards the rear of the truck along the runners on which it was placed. It appears it either jammed again or resisted due to inertia. In any event, the side of the basket facing the plaintiff suddenly broke at one of the corners so that the side collapsed sufficiently to release the hook. The force of this release threw the plaintiff off-balance. Because of the loading dock behind him - there were some steel posts acting as impact barriers - the plaintiff tried to leap sideways. Unfortunately, there was a "lip" or raised edge on the side of the step and the plaintiff's right foot tripped over it so that he fell onto his right side suffering the injuries I have referred to.

9. There had been many previous instances of baskets jamming. The baskets were so constructed that they were originally flat but the four sides could be raised and "snapped" into place with plastic extrusions in each corner. With use, these extrusions either wore out or broke so that the corners would separate. When that was noticed, string or plastic ties could be used to reinforce and restore the integrity of the corner in question.

10. I am satisfied that it was foreseeable to the management of the defendant that there was a risk to bread deliverers using the type of truck being used by the plaintiff that, in the course of drawing bread baskets out using the hook, a basket would collapse throwing the deliverer off-balance. A risk of falling was then obvious. In any event, the sudden collapse of baskets had been the subject of previous and frequent complaints. This was confirmed by Mr Holston, another bread deliverer who had worked for the defendant for a period of time prior to the plaintiff's fall.

11. Avoiding the risk was not a matter of great difficulty or expense. It would have avoided the risk to which the plaintiff succumbed to have tied the corners of each of the baskets with plastic ties, in case the plastic extrusions gave way as they were known to be wont to do.

12. There is no doubt that the defendant was negligent and that negligence caused the injury to the plaintiff.

13. It was the responsibility of the defendant, notwithstanding that the plaintiff was a senior and supervising bread deliverer, to have taken precautions such as the measure I have mentioned. Further, the failure of the basket was the cause of the plaintiff's injury when he was acting both reasonably and in accord with previously sanctioned practice. There is no substance in the submission that the plaintiff is guilty of contributory negligence.

14. I turn, therefore, to the question of damages.

15. Following the fall, the plaintiff continued with his duties, notwithstanding pain in his neck and shoulders. The next day, the plaintiff reported his injury. He consulted his General Practitioner, Dr Dick. He had physiotherapy.

16. The physiotherapy did not help. The plaintiff then consulted Dr McDowall, a chiropractor.

17. In October 1981, the plaintiff consulted Dr Calder and was treated for pain to his shoulder and neck. By this time the injury to the plaintiff's knee and hip area had resolved.

18. However, the disability in the neck and right shoulder was quite serious. There was a lot of pain, aggravated by activity. He got partial relief from chiropractic treatment and continued that treatment 1-2 times monthly up to 1985. Its beneficial effect has, however, diminished since then.

19. In 1983 the plaintiff saw Dr Chandran. He was also referred to Dr Andrews.

20. Notwithstanding these ongoing problems, the plaintiff was promoted by the defendant to "Group Supervisor". A beneficial result of this was that his duties ceased to include bread deliveries.

21. In 1984 the plaintiff moved to Orange. He was, it seems experimentally, appointed to be an "Area Manager" for the defendant.

22. He was able to cope with the duties of this position notwithstanding ongoing pain and disability in the neck, shoulder and elbow. Driving, a significant part of his duties, caused significant problems with his right arm.

23. Whilst he coped with work, he was referred to both Dr Mann and Dr Corry in that year.

24. In June 1985, the plaintiff and the defendant came to a parting of their ways. I do not think it was causally related to the plaintiff's injuries. The plaintiff sought other work.

25. He commenced temporary employment in Canberra at "Betta Brakes", however he found this work was beyond him. He returned to Orange and started a gift shop.

26. I accept that at this time the plaintiff was sufficiently disabled to be unable to work in a business such as pest control, refrigeration mechanic, bread delivery or similar moderately heavy work.

27. The gift shop was called "Odds and Needles". It sold giftware such as cane furniture, pottery, table accessories. The business went well. Another shop was started in Bathurst in 1988 and a third shop at Orange in 1989.

28. The plaintiff found the Bathurst shop a physical strain. A lot of extra driving was engendered. The pain in his neck and shoulder and arm was still sensitive to physical activity. The Bathurst shop was closed. Subsequently the second Orange shop closed also. The additional physical activity occasioned by the extra shops was a significant factor in those closures.

29. Even with this reduced physical activity the plaintiff found the constant pain and periodic aggravation to be more and more difficult to cope with.

30. He now intends to close the Orange Shop and take up a book-keeping course.

31. There is still pain in the neck, shoulder and arm. The arm and grip is weaker. There are headaches, apparently associated with the neck problem.

32. Employment is not the only area of the plaintiff's life affected by his injuries. Golfing has been markedly reduced, as has fishing. He has, for the past six years, given up squash. He avoids gardening work and maintenance work around the house. If he does such work he might well be disabled by increased pain subsequently for 4-5 hours.

33. It is fair to note, as was revealed in cross-examination, that, up to 1988, the plaintiff, notwithstanding ongoing disability, was able to function without the need for any particular medical treatment. He did suffer from some unrelated health problems which played some role in reducing his recreational activities.

34. Nevertheless, considering the evidence of the plaintiff's ex-wife, his brother, Ms Robyn King and Mr Barry Jones, I am satisfied that the plaintiff's disability resulting from the fall is both significant and genuine.

35. Dr Arnold Mann, consultant surgeon, who saw the plaintiff on 10 August 1984, 4 June 1986 and 19 March 1991, found a rotator cuff lesion and assessed the level of disability at 15%. He considered, in his oral evidence, that, given the level of post-accident activity the plaintiff was able to engage in, the injury was "relatively minor". However, it would prevent "arduous occupations".

36. Dr Corry, rehabilitation consultant, saw the plaintiff on 31 July 1984 and 19 March 1991. He finally concluded:-
"Mr Denton complains of multiple aches and pains, a

number of which have occurred in recent years and which
cannot be related to any injuries he may have sustained in 1981."

He considered the plaintiff to be fit for "managerial, sales or clerical work".

37. Dr McDowall, chiropractor, had treated the plaintiff on numerous occasions. He noted that the continuation by the plaintiff after his fall of many of his pre-injury activities, including squash, resulted in "re-injury and strain". He expected that result from the continuation of normal work activity.

38. That accords with my assessment. I think the plaintiff did aggravate his condition by attempting to carry on as before until it became obvious he could not. I do not think that is a criticism of the plaintiff. Rather, it demonstrates a determination not to bow to injury, which is commendable. It does not relieve the defendant of responsibility so far as disability arising from the "rotor cuff lesion" referred to by Dr Mann is concerned.

39. It should be mentioned that the initial diagnosis was not as Dr Mann indicated. Dr Calder (10 July 1981) considered the plaintiff suffered "a strain of his conoid and trapezoid ligaments". Dr Chandran (18 November 1983) and Dr Andrews (22 May 1984) appear to have favoured a "thoracic outlet" problem. The defendant tendered reports from Drs Robson, Vance and Andrews and a Clinical Psychologist, Dr Petroni. Dr Robson (16 March 1984), Neurosurgeon, doubted "thoracic inlet problems" but could not offer an alternative diagnosis. Dr Richard Vance (30 June 1987), Orthopaedic surgeon, was not able to give a definite diagnosis either. However, he found the plaintiff to be "well motivated and hard working". He concluded, therefore,

"...that there was something amiss but I could not
define it. In any event the amount of disability he is
now having is relatively minimal and I see no reason
why this should not continue in the future."

40. I consider Dr Mann and Dr Corry correctly describe the relevant disability. I conclude that the plaintiff's present level of disability will continue.

41. There is, accordingly, little difficulty in assessing general damages, including an element of assistance received by the plaintiff from volunteers. I assess $25,000.00 as an appropriate award for general damages of which I attribute half to the past. Applying a 4% interest rate over 10.67 years I award a sum of $5,330.00 for interest. That sum will include any future medical expenses.

42. The difficulty is to determine what, if any, is the past and future economic loss. I am satisfied that the plaintiff is now precluded from more arduous occupations. However, up to the present the plaintiff's injury has not, in my opinion, prevented him from following or pursuing any particular occupation (except perhaps "Betta Brakes"). I cannot find any particular loss to have flowed from this. The decisions, for example, to close the gift shops although including a consideration of physical discomfort, do not seem to me, having regard to the plaintiff's other problems, to have been occasioned by the accident.

43. A similar difficulty arises in relation to future loss of earning capacity. It seems to me that a consideration of the evidence as to the earnings possibly available to the plaintiff, as opposed to those which would flow if he had continued his previous occupation, must lead to a global approach rather than any other.

44. I assess $15,000.00 as the proper sum for future economic loss, having regard to the totality of the plaintiff's contributing disabilities and future vicissitudes.

45. I have no information on medical or other like out-of-pocket expenses save as to relevant consultations with Dr Donald McDowall in the sum of $1,207.00.

46. Accordingly, I order that judgment be entered for the plaintiff in the sum of $46,537.00.

47. I will hear the parties as to costs.