Ian Charles Tucker v Westfield Design and Construction Pty Limited [1992] ACTSC 127 (21 December 1992)

SUPREME COURT OF THE ACT

IAN CHARLES TUCKER v. WESTFIELD DESIGN AND CONSTRUCTION PTY LIMITED
No. SC 277 of 1990
Number of pages -18 industrial Law - Damages

COURT

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

CATCHWORDS

Industrial Law - industrial safety health and welfare - building work and scaffolding - statutory regulation - breach of statutory duty - unsafe access to place of work - liability for breach by sub-contractor.

Damages - measure of damages - personal injuries - loss of earnings and earning capacity - discount for pre-existing degenerative condition and for likelihood of intermittent employment - mitigation of loss by pursuit of tertiary studies.

Scaffolding and Lifts Act 1912-1948 (NSW) (as applied in the ACT)

Law Reform (Miscellaneous Provisions) Act 1955, s.20A

Driscoll v. J. Scott Pty Ltd (1975) 8 ALR 593

Australian Paper Manufacturers Ltd v. Conyers (1962) SR (N.S.W.) 682

Fox v. Wood [1981] HCA 41; (1981) 148 CLR 438

Griffiths v. Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161

Gervan v. Fenton (unreported, High Court, 28 October 1992)

HEARING

CANBERRA, 12 and 13 October 1992
21:12:1992

Counsel for the plaintiff: Mr G. Richardson

Solicitors for the plaintiff: Pamela Coward and Associates

Counsel for the defendant: Mr G. Parker

Solicitors for the defendant: Sly and Weigall

ORDER

THE COURT ORDERS THAT:
1. There be judgment for the plaintiff in the sum of $200,000.00.

DECISION

MILES C.J. This is an action for damages by the plaintiff who sustained injury on 27 August 1988 whilst in the employ of the defendant.

2. The plaintiff was employed as a sub-foreman carpenter on a project at Belconnen Mall. The work included the replacement of handrails around the several floor levels of what were called voids, that is to say, open spaces within the shopping complex building which extended to the three storeys of the building. Some of the voids were circular and some were rectangular. Customers were able to go from one floor to another by using circular ramps which surrounded some of the circular voids. In two of the rectangular voids there were devices called travolators, like escalators without steps, which also enabled customers to get from one floor to another.

3. The plaintiff sustained his injury in connection with work he was to carry out in what was called Void 1, which was one of the rectangular voids. Although the plaintiff is not concerned in the third party proceedings, it was the third party, Waco Scaffolding and Rigging (Canberra) Pty Limited (Waco), which was engaged by the defendant as a sub-contractor to supply and erect all scaffolding for the various voids, including all working levels. The scaffolding supported the working platform from which the defendant's employees were to work in order to remove and replace the handrail around the voids and also, in relation to Void 1, to fix gyprock underneath the concrete beam supporting the floor to which the handrail was fixed.

4. On 23 August 1988 the scaffolding had been erected. Whether or not the working platforms were in position at that stage and whether or not they were, or the scaffolding was, already in use is not clear but it does not matter. On that day the plaintiff spoke to Mr John Spence, the defendant's project manager, about what was to be done about access to the scaffolding. Mr Spence told the plaintiff "It's totally in Waco's contract" and told him to speak to Waco. On 25 August there was a conversation between the plaintiff, Mr Spence and a Mr Barry Demison, a supervisor of Waco. The plaintiff said to Mr Demison, "There needs to be access to the Void 1 scaffold. What are you doing about it?" Mr Demison did not reply at all, but Mr Spence said they could not put access into the scaffolding because it was a danger to the public and children might get into the scaffolding.

5. During the course of the next few days, the plaintiff had occasion to use the scaffolding for the purpose of his work. To get onto the scaffolding he climbed over the handrail at the edge of the tiled floor, and then down one of the vertical members of the scaffolding (called a standard) to the timber platform of the scaffolding some 1.3 to 2.4 metres below the level of the floor. An apprentice, Mr Anthony Sorensen, and the general foreman, Mr Dempsey, also got onto the platform of the scaffolding in this way. On 27 August 1988 the plaintiff and the apprentice were to fix plywood or masonite kickboards on the platform of the scaffolding. In order to get to the precise place on the platform where they were to carry out that work, it was necessary to get from the floor surrounding the void over the handrail and down the standard as already described. The plaintiff attempted to carry out this manoeuvre in the same way as he had done on many occasions over the preceding days. He put one leg over the handrail and placed that foot on to the edge of the floor. This left him in a position straddling the handrail. He then brought the other leg over the handrail in order to have both feet on the edge of the floor before taking hold of the standard and climbing down to the platform. As he brought his other leg over the handrail, he slipped, tried to grab the standard but missed, and fell to the platform landing on his lower back.

6. The plaintiff relied, inter alia, on a breach of the regulations under the Scaffolding and Lifts Acts 1912-1948 (NSW) (as applied in the ACT). Sub-regulation 73(2) is in the following terms:
"73. Any person who directly or by his servants or

agents (including every independent contractor from time to
time engaged in that work) carries out any building work
shall take all measures that appear necessary or advisable to
minimise accident risk and to prevent injury to the health of
persons engaged in such building work and for this purpose,
without limiting the generality of the foregoing, he shall -
.....
(2)
provide and maintain safe means of access to every place at
which any person has to work at any time;
....."

7. I am satisfied that the plaintiff received his injury whilst attempting to gain access to his place of work, that is to say, the place on the platform where he and the apprentice were going to install the kickboards. I am satisfied that the means of access, namely climbing over the handrail and down the standards was unsafe, insofar as it presented a possible cause of injury to anyone using that means of access in any way that might reasonably be foreseen: Driscoll v. J. Scott Pty Ltd (1975) 8 ALR 593. There was no other means of access available, but even if there were, that would not relieve the defendant from liability, as the plaintiff does not have to prove a total absence of a safe means of access but merely that a means of access was unsafe: Australian Paper Manufacturers Ltd v. Conyers (1962) SR (N.S.W.) 682. There is no requirement that the failure to provide a safe means of access be unreasonable nor that the plaintiff prove that some other means was safe and its implementation practicable.

8. However, in order to succeed on a statutory count based on regulation 73, the plaintiff must prove that the duty was owed by the defendant according to the terms of the regulation. In this respect it must be observed that the duties owed by a person who carries out building work either directly or through servants or agents (including independent contractors) is owed to a person engaged in such building work (emphasis added). It was submitted that the defendant did not owe a duty to the plaintiff under regulation 73 because the building work being carried out by the defendant did not include the erection of the scaffolding and that at the time of his injury the plaintiff was using a means of access to a place where he was to engage in work the performance of which contributed to the erection of the scaffolding. Hence, so it was submitted, the duty under regulation 73 was owed by Waco and not by the defendant.

9. However, in my view, whether or not the duty was owed by Waco, the defendant was bound by the regulation to provide a safe means of access to the plaintiff's work at the relevant time. This was for either or both of two reasons. First, the defendant was in effect the head contractor, concerned in the overall building operations, and had subcontracted the work on the erection of the scaffolding to Waco. As regulation 73 is expressly directed to any person who directly or by his servants or agents (including every independent contractor engaged from time to time in that work) carries out building work, it follows that the delegation of all or part of the work to a third party cannot relieve the person carrying out the building work of the duty to persons engaged in any part of that building work, whether or not delegated. Furthermore, by committing the plaintiff and the apprentice to install the kickboards, the defendant was by its employees (the "servants or agents" mentioned in the regulation) actually carrying out that part of the building work which it had delegated to Waco. The defendant may have been entitled to refrain from carrying out the erection of the scaffolding and entitled to insist that Waco discharge its contractual obligations by completing the work on the scaffolding. However, that was not the course of events which ensued. The defendant allowed its employees to do work which Waco may have been contractually bound to carry out. Hence the very acts of the plaintiff and the apprentice in taking part in the installation of the kickboards involved the defendant carrying out the building work in which those employees were engaged.

10. According, I find that the plaintiff has established a breach of sub-regulation 73(2) and is entitled to damages. For completeness, I express the view that the plaintiff is not entitled to succeed in his claim for negligence as I am not satisfied that in the circumstances there was any unreasonable failure on the part of the defendant. Although breach of a statutory duty is in itself evidence of negligence, it is not conclusive. There is some evidence that alternative measures were available, but I am not satisfied that failure to utilise them was unreasonable.

11. I am also of the view that the plaintiff is not entitled to succeed upon a breach of sub-regulation 73(3), which is directed towards provision of a safe working platform for a person who has to work at a place where he is liable to fall more than six feet. Apart from the problem of the evidence not clearly establishing the distance which the plaintiff fell, or was liable to fall, there is the simple point that a person cannot be both at a work place and using a means of access to a work place at one and the same time. Having found the defendant in breach of sub-regulation 73(2), it follows that I must find that it is not in breach of sub-regulation 73(3).

12. Contributory negligence, although pleaded, was not pressed. I am of the view that the plaintiff has not been shown to have failed to take reasonable care for his safety, having particular regard to his previous requests in relation to access to the scaffolding. In any event, contributory negligence has been abolished as a defence to a claim for breach of statutory duty in the Australian Capital Territory, a reform which is said to bring the Territory into line with the rest of Australia: see s.20A Law Reform (Miscellaneous Provisions) Act 1955, inserted by Act No. 73, 1991.

13. I turn now to damages.

14. Immediately after the injury the plaintiff was taken to Calvary Hospital where he was found to be bruised over both buttocks with tenderness and restriction of movement in the lumbar spine. He was discharged the same day. He returned on 29 August 1988 for x-rays of the thoracolumbar spine which showed no abnormality. It should be noted that the x-rays indicate that the concern was directed towards an area which was not confined to the lower back. On 5 September 1988 the plaintiff attempted to return to work but left during the day after some hours "because of pain". He was certified as unfit until 12 September when he again returned to work. He continued work until 28 November 1988, during which time, he said in evidence his condition deteriorated. It appears likely that the condition probably fluctuated to some extent during the period. He saw his local practitioner, Dr Hannaford, for the first time on 20 September 1988 when muscle spasm was noted, a sign that the symptoms were genuine. The plaintiff began to experience pain radiating from the lower back into the left leg and, later, numbness in the right leg. Physiotherapy and medication were prescribed. He was not seen again by Dr Hannaford until 17 November 1988 when he was still complaining of lower back pain and pain radiating into the right leg. An insurance investigator interviewed the plaintiff on 13 October 1988 and obtained a statement that, when he resumed work, the plaintiff was "free of pain" in the back, that his injury was "still settling down", with occasional feelings of tension in the back and that Dr Hannaford had told him that his back was recovering satisfactorily. However, Dr Hannaford's reports and notes say no such thing and Dr Hannaford did not give evidence. I conclude that notwithstanding fluctuation, there was an overall deterioration manifested in symptoms during this period. I add that this conclusion is further supported by Dr Hannaford's records that the plaintiff saw him again on 17 and 21 November and 2, 6, 8 and 16 December with complaints of escalating pain in the lower back and left leg paraesthesia developing towards the end of this period. He was then referred to Dr Chandran, a neurosurgeon.

15. The defendant's case is that the plaintiff was suffering from a degenerative condition of the lumbar spine at the time of his injury and that the injury merely and temporarily aggravated the condition to the extent that it became symptomatic for a short time only, after which any further symptoms have to be regarded as due to the degeneration itself, or supervening events, or a combination of both, for which the defendant is not responsible. At its highest, the defendant's case is that the effect of the injury had ceased by the time the plaintiff resumed work on 12 September 1988 or shortly thereafter.

16. There is no question that the plaintiff did have a degenerative condition in his back at the time of his injury. Several months before, on 28 January 1988, he had attended Dr Hannaford, complaining of intermittent right and central lower back pain over the preceding twelve months. He told Dr Hannaford that this pain was made worse by chiropractic treatment and that it had recurred the previous day whilst lifting at work. Upon examination Dr Hannaford at that time found right thoracolumbar muscular spasm and "positive quadrant compression" (a term which was not explained) which "suggested facet joint pain syndrome at the right T12-L1 level". Medication and physiotherapy were prescribed and, according to the plaintiff's evidence, he was off work for two days only with no further symptoms before commencing work with the defendant in May 1988, and indeed there were no further symptoms of any relevance until the date of injury. I accept the plaintiff's evidence on this point.

17. A CAT scan was taken before the plaintiff first went to Dr Chandran and it showed a small central bulge of the L5-S1 disc. An epidural steroid injection was administered with immediate unpleasant effect and without any real benefit. An MRI scan confirmed the bulging disc. In view of the plaintiff's continuing complaints of back and leg pain, he was told by Dr Chandran in early January 1989 that if the pain were intolerable, and subject to discography, he should consider surgery. At the same time Dr Chandran advised him to consider retraining out of the construction industry and in February 1989 the plaintiff commenced pre-tertiary studies at Bruce TAFE.

18. The plaintiff's symptoms continued and he found it hard to sit for long in his classes. Eventually, on 1 June 1989 the discography was carried out which showed disruption at L4/L5 (the MRI and CAT scan showed a bulge one level below at L5/S1) together with "abnormality" at L3/4. The following day Dr Chandran excised the disc at L5/S1 and carried out fusion from L4 to S1.

19. Immediate post operation recovery was at first uneventful and the plaintiff experienced relief from the leg pain. However, the fusion failed to take properly. The plaintiff although "moving well" was still complaining of back pain when seen by Dr Chandran on 15 September 1989. Dr Chandran was still guardedly optimistic, advocating consideration of a return to light work. The plaintiff continued to see his local practitioner, however, for the back pain. The practice was taken over by Dr Kellett who saw the plaintiff on a number of occasions between 23 October 1989 and on a continuing basis until his later report of 10 April 1992. Dr Kellett prescribed a number of therapeutic procedures - injections, exercises, physiotherapy, TENS, medication and acupuncture, none of which was of lasting benefit.

20. During the latter part of 1989 the plaintiff decided that he would undertake tertiary studies in accountancy if available. He was successful in obtaining entry, although it is not clear when he started (either mid-1989 or early 1990). At any rate, as the plaintiff freely admitted, once he had embarked on the course, he was unavailable to return to work as a carpenter, even on light duties, and irrespective of his condition.

21. In December 1989 the plaintiff was keeping up a range of physical activities, cycling and walking regularly in order to maintain his physical condition. However, he changed a car wheel in December 1989 and that activity brought on symptoms of paraesthesia in both feet. The defendant claimed that this was another contributing cause for which the defendant was not responsible but, in my view, it did not cause any break in the chain of causation. The plaintiff's condition whilst aggravated by the incident for a period of a month or so was not made essentially different by the activity and the activity itself indeed was one which was within the range of foreseeable everyday activity in which the plaintiff could be expected to engage despite his partial incapacity.

22. During 1990 and 1991 the plaintiff's condition appears to have remained much the same with back pain continuing, particularly during prolonged sitting, but with leg pain improved and apparently causing trouble only when the plaintiff carried out particular physical activities such as mowing the lawn, or during cold weather.

23. X-rays taken on 13 February 1992 showed a failure of fusion at L4/5. Dr Chandran who was, through the intervening years, somewhat sceptical about the extent of the plaintiff's disability, concluded after last seeing the plaintiff on 10 April 1992 that the symptoms were mild and restricted, but the plaintiff's working capacity was such that he was incapable of heavy physical work or prolonged sitting. A local anaesthetic block was inconclusive as to whether further surgery was likely to be of benefit. The plaintiff does not wish to undergo further surgery and, in my view, that is not an unreasonable attitude. It is, however, indicative that his pain level is not intolerable and confirms Dr Chandran's views that the symptoms are mild, so long as he does not carry out inappropriate activity.

24. Although the plaintiff's condition meant that he had difficulty in coping with his accountancy course (he had to miss an exam in December 1991 because of back pain), he has successfully completed the course and is due to graduate. He has a graduate position within the Department of Finance from February 1993.

25. In my view, the consistency of the back symptoms immediately following injury and continuing until the operation to June 1989, together with the radiating leg pain which was first felt within weeks of the injury, are indicative that the injury was a substantial cause of those symptoms and the incapacity that flowed thereafter. I reject the submission on behalf of the defendant that the history of intermittent back pain prior to January 1988 was such that the injury should be seen as only a temporary aggravation of a pre-existing condition. I accept the plaintiff's evidence that the symptoms which caused him to go to Dr Hannaford in January 1988 resolved within days and that he continued in heavy work from then until the time of injury. The injury itself occurred as a result of what was likely to have been a heavy fall and is to be contrasted with, for example, back symptoms which followed a lifting incident. Moreover, the plaintiff's symptoms have been consistently felt well above the lumbosacral area.

26. The operation of 2 June 1989 was, in my view, a consequence of the injury and the condition that has resulted, being essentially due to a failure of surgical fusion, must also be attributed to the injury. The exact cause of the current leg pain, alleviated by the operation, is not clear, but I conclude on the probabilities that it is associated with disruption of the nerve processes in the spine and that the injury was either alone or in conjunction with the operation a substantial cause.

27. I accept Dr Chandran's opinion that without the injury the plaintiff could have continued in his work as a leading hand carpenter without incapacitating symptoms, possibly to the end of an ordinary working life, particularly in view of the fact that his capacity, interests and experience were pointing him in the direction of supervisory duties. Vocationally, the injury has deprived him of the opportunity to resume ordinary carpentry work in the event of lack of availability of suitable supervising work in the construction industry, or in the event of work in his new found professional capacity being denied to him for whatever reason. Furthermore, the award of damages must reflect the contingency that with his back in the degenerative condition it was at the date of injury, there was a possibility, despite Dr Chandran's opinion, that the degenerative condition alone, or some other injury acting on it, might at some stage in his working life have produced symptoms which could have been sufficient to be incapacitating.

28. The particulars of the plaintiff's claim included an allegation that, in his present position of being able to take up employment as a qualified accountant in the Public Service, the plaintiff has suffered a loss of earning capacity in the future. I am, however, not convinced that this is the case. Nevertheless, the plaintiff will not be able to exercise his present earning capacity until February 1993. I find that he has taken reasonable steps to mitigate his loss by undergoing the accountancy course and he is exercising the capacity so acquired at the earliest time that can reasonably be expected.

29. However, for the purpose of assessing the value of loss of earning capacity in the past, it is said on behalf of the defendant that, having made a conscious decision before the end of 1989 not to go back into the construction industry even if light duties were available, the plaintiff should be regarded as having the earning capacity of a carpenter performing light duties. Furthermore, it was submitted that in gaining tertiary qualifications the plaintiff has done more that mitigate his loss and that he now has in a superior earning capacity to that which he would have had without the injury. There may be some substance in these submissions but they are difficult to translate into an award of damages. I think in practical terms that it is appropriate to regard the plaintiff as reasonably mitigating his loss by not using his capacity to carry out light work and turning instead to tertiary studies, but that the actual cost to him of the tertiary course (in the way of university fees and the like) should not be part of the award of damages. Although it is not the only consideration, the expenses of a university education have led to the acquisition of what is properly characterised as a capital asset.

30. On this basis the plaintiff is to be awarded for past loss of earning capacity a sum based on what a sub-foreman carpenter could have earned with the defendant from 28 August 1988 to February 1993, discounted for the degenerative condition to which I have already referred and discounted further for the likelihood that the plaintiff would not have been in continuous employment during the whole of the period and that there would have been breaks between different construction jobs. The undiscounted figure, based on an agreed base rate of $536.10, is about $123,280.00. There was a suggestion that a higher figure should be used to take account of overtime but there is not enough material before me on this aspect to persuade me that it is appropriate to allow for overtime. It is also, I think, a matter of common knowledge that overtime in the construction industry, and in the community generally, is not now as freely available as it once was and there is no immediate prospect of a return to the previous situation. Accordingly, I reduce the undiscounted figure to a round sum of $100,000.00 for past loss of earning capacity.

31. For loss of earning capacity in the future there will be a nominal to modest sum of $5,000.00 to mark the loss to the plaintiff of the opportunity to return to heavy work in the construction industry or to carry out heavy work of any kind. In the circumstances, it is highly unlikely that he would ever wish to utilise the opportunity that is now denied to him.

32. The plaintiff received worker's compensation of $60,876.22, on which he paid tax of $14,387.84. He is awarded the latter sum as part of his damages, the so-called Fox v.Wood [1981] HCA 41; (1981) 148 CLR 438 component. The net amount of $46,500.00 is subtracted from the award of past loss of earning capacity and interest is awarded on the resultant figure of $53,500.00. As a matter of discretion I apply a rate of 7 percent, and the end figure for interest on the past loss is $16,228.33.

33. For pain and suffering and loss of enjoyment of life I award $35,000.00 as to which I apportion $20,000 to the past for the purpose of interest. Interest is calculated at 2 per cent from the date of injury to the present and amounts to $1,733.33.

34. There is a Griffiths v. Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161 claim for the plaintiff's wife's services. It is clear that Mrs. Tucker, who gave evidence, had to take time off from her own work for a total of sixty-four hours in order to attend to the plaintiff after his operation. As it happened, she is a qualified nurse, but I am not satisfied that the plaintiff required a person with such skills and qualifications. There is recent High Court authority: see Gervan v. Fenton (unreported, 28 October 1992), that a Griffiths v. Kerkemeyer claim is not to be based on the cost to the actual provider of domestic services, but on what it would notionally cost to get appropriate assistance and help. The rate listed by Hughes Home Help Service ACT Inc., which inevitably supplies the figures in these cases but never seems to supply anybody to do the work, was just over $10 per week at the appropriate period, so this part of the claim starts with a figure of $640.00. There is also a claim for help in the garden, particularly with lawn mowing, duties which the plaintiff used to perform himself and is now unable to perform. The claim is made at $25 per hour for one and a half hours per week. A man was in fact paid that amount but after seven or eight times Mrs. Tucker started doing the lawn mowing herself. I think it reasonable to allow for the equivalent of eight visits by a contractor of one and a half hours per year, the rest should be regarded as rearrangement of domestic activities rather than services performed gratuitously to assist the plaintiff. The amount for lawn mowing is $1,300.00 and the Griffiths v. Kerkemeyer claim totals $1,940.00.

35. Out-of-pocket expenses (apart from the cost of re-education which I disallow) are agreed at $16,144.05. I disallow the cost of a future operation as being too remote, but the contingency has been allowed for in the award for general damages.

36. In summary, this is a case in which the plaintiff suffered a real and disabling injury to an already degenerative spine which led to surgery which was only partly successful and which has confirmed permanent incapacity in the plaintiff to carry out his former trade as a carpenter. He will never be fit for heavy work, but he has used the opportunity to qualify as an accountant and is soon to engage in employment in that field which has not been shown to be less remunerative than that of a carpenter. He continues to suffer symptoms of a mild nature. There has been disruption to his domestic life, but it is to be expected that this situation will improve now that the case is over and he is able to take up his position in the Public Service with tertiary qualifications.

37. There is a claim for future medical and pharmaceutical expenses. There is little in the way of evidence to support it, but the plaintiff has taken a good deal of medication in the past and is likely to continue to do so in the future as well as to seek medical attention for his back symptoms. Of course with his degenerative condition he was likely to have sought treatment anyway. A small sum for this head of damages should be sufficient and I award $5,000.00.

38. There is a claim for loss of employer's contribution to long service leave and superannuation, having regard to the particular arrangements in the construction industry. It is agreed that if the plaintiff had remained continuously in the employ of the defendant in his pre-injury classification, the defendant would have contributed just on $4,900.00 for superannuation and just over $1,570.00 for long service leave. The plaintiff should, in my view, be compensated for loss of this nature but the figures should be discounted for the same reasons for which I discounted the figure for past loss of earning capacity. I award a round sum of $5,000.00 for loss of superannuation and long service contributions.

The award of damages is as follows:
General damages $ 35,000.00
Interest on general damages $ 1,733.33
Past loss of earning capacity $100,000.00
Interest on past loss of earning capacity $ 16,228.33
Future loss of earning capacity $ 5,000.00
Past out-of-pocket expenses $ 16,144.05
Future out-of-pocket expenses $ 5,000.00
Fox v. Wood $ 14,387.84
Griffiths v. Kerkemeyer $ 1,940.00
Loss of contributions to superannuation
and long service leave $ 5,000.00
Total: $200,433.55

39. Viewed globally this appears to be an appropriate award and the plaintiff is at liberty to enter judgment for the round sum of $200,000.00. Unless the parties wish to be heard, I propose to order that the defendant pay the plaintiff's costs on a party and party basis.