Rakima Megic v Limro Pty Limited [1992] ACTSC 2 (24 January 1992)

SUPREME COURT OF THE ACT

RAKIMA MEGIC v. LIMRO PTY LIMITED
S.C. No. 1169 of 1987
Negligence - Master and Servant - Damages

COURT

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

CATCHWORDS

Negligence - Damages for personal injuries - Rate of interest.

Master and Servant - Liability of employer for injury to employee - Safe system of work - No new issue of principle.

Damages - Assessment - Discount for likelihood of natural deterioration - No new issue of principle.

Brkovic v J.O. Clough and Son Pty Ltd (1983) 57 ALJR 834; 49 ALR 256

Blackman v Commonwealth (1978) 20 ACTR 33

Hamilton v Nuroof (WA) Proprietary Limited [1956] HCA 42; (1956) 96 CLR 18

Kingshott v Goodyear Tyre and Rubber Co Australia Ltd (1987) 8 NSWLR 707

Sydney County Council and Anor v Dell'Oro [1974] HCA 47; (1974) 132 CLR 97

Bus v Sydney County Council [1989] HCA 29; (1989) 167 CLR 78

Watts v Rake [1960] HCA 58; (1960) 108 CLR 158

Wilson v Peisley (1975) 50 ALJR 207; 7 ALR 571

MBP (SA) Pty Limited v Gogic [1991] HCA 3; (1991) 171 CLR 657

HEARING

CANBERRA
24:1:1992

Counsel for the Plaintiff: Mr D. Campbell

Instructing solicitors: Messrs Scott Sheils and Glover

Counsel for the Defendant: Mr J. Nock

Instructing solicitors: Messrs Hunt and Hunt

ORDER

There be judgment for the plaintiff in the sum of $273,115.80.

DECISION

On 19 August 1985, the plaintiff, Rakima Megic, was employed as a cleaner by the defendant, Limro Pty Limited, at Woden Valley Hospital.

2. Her duties included the operation of an electric floor polisher. The polisher was fitted with a clutch plate on its base. Various pads and brushes could be fitted to it. They were mounted on a heavy disc which had a similar clutch plate on its upper surface. When the disc was rotated in the opposite direction to the usual operating direction, it would engage. It would remain in place during operation of the machine. When the removal of the disc was desired it could be removed in one of two ways. It could be displaced by rapidly turning the polisher on and off a few times. The forces so generated would cause the clutch to disengage. The other method was to remove the disc manually. This involved rotating the disc in the opposite direction to that necessary to have fitted it to the polisher. Of course, it is obvious that the latter method might cause difficulty if the teeth of the clutch plates stuck together. It was said that a kick along the edge of the disc would then be necessary to dislodge it. That process, of course, would duplicate the forces created by a rapid turning on and off of the machine.

3. The plaintiff says that, on 19 August 1985, she was operating the polishing machine she usually used. The "on/of" switch was taped to the handle, presumably because it was broken, in the "on" position. She could not, as a result, use the "on/off" switch to disengage a disc. In any event, she said, she was instructed not to use that method. She was instructed to kick a pad or brush off. Sometimes that method worked easily. Other times it was hard. It was harder, she said, if the machine and brush or pad disc were "not new".

4. On this occasion, the brush was firmly engaged on the polisher. She kicked it three to four times. On the last occasion, she twisted and fell down "to the floor". She hurt her back. She could not move or straighten up. Following that, she reported the incident to her supervisor. After that she had treatment from various medical practitioners.

5. An issue was raised as to liability. The defendant contends that there was no foreseeable risk of injury from the use of the polisher in the manner described by the plaintiff. Mr Nock, for the defendant, further contended that, even if the "on/off" switch was defective, that defect was not related to the accident and there was no evidence pointing to any particular defect in the polishing machine otherwise.

6. Mr Adolph Zanzerl, one of the two principals of the defendant, gave evidence. He said the polishing machines were all new when his company was awarded the cleaning contract for Woden Valley Hospital about November 1984. The type of polisher was standard and had been so, to the best of his knowledge, since 1974. He claimed that necessary maintenance on the polishing machines was done promptly. He had no recollection of any complaints about the state of the machines or the method for removal of pads and brushes.

7. Mr Zanzerl was asked to say what his instructions were for removal of pads and brushes. He said,
(T.184) "...you switch the machine (off), you lay it down and you

try to remove the pad with you(r) hands. If that is too difficult,
you can kick it off and if this still doesn't - if it's still too
hard, then you use the electric switch and chain (should be "try
and"), sort of jerk it off, electric."

8. He had no personal knowledge of the particular instructions given to the plaintiff. Mr Zanzerl conceded that -

(T.187) "...it poses a danger to your employees to be using
a machine in circumstances where there is a difficulty in
removing the pad."

9. He did exhibit some distaste for the use of the "on/off" switch method of releasing a pad. He said that, as far as he was concerned it was "a last resort".

(T.188) "...you have to do it (turn the polisher on and off
quickly) a few times really to jerk it off, which is of
course, a strain on the capacity and the motor, but it does
loosen the brush."

10. He said that "most times" the pads were too hard to release by hand and often required more than one kick. He also agreed, although it is no doubt self-evident, that one is less well-balanced during such a kicking manoeuvre.

11. Indeed, the defendant had pleaded that the plaintiff had been guilty of contributory negligence by kicking pads off rather than using some other method.

12. It is obvious that a person using the method of kicking at pads to remove them is at risk of being overbalanced and falling if the foot slips off the edge of a pad or if it suddenly disengages.

13. Mr Zanzerl's co-director, Mr Trepeski, was said to have instructed operators not to use the "on/off" switches at all to remove pads because it strained the motors of the machines. He was not called to give evidence. It is, however, consistent with Mr Zanzerl's evidence that the use of the "on/off" switch to remove pads would be discouraged.

14. In the light of that evidence, the testimony of Mrs Flavia Peresan, a fellow worker with the plaintiff, came as something of a surprise. She said she always used the "on/off" switch method to remove pads and had never seen any other method used. She was a union delegate on the site.

15. She was asked the following question:-

(T.208) "MR CAMPBELL (for the plaintiff): You would agree,
wouldn't you, that it would be dangerous to have to kick the
brush off, wouldn't you? - - - Yes. Surely, it would. It's
made of iron, it's stupid to give it a kick."

16. In reply, the plaintiff called Mrs Maria Korunek. It must be said that she gave the impression of being somewhat disgruntled with the defendant. She had been employed by the defendant as a supervisor at the same time as the plaintiff was employed by it but she left the defendant's employ in circumstances of conflict.

17. However, I do not think that Mrs Korunek's tinge of ill-feeling affected her evidence in any relevant way. Of course, the number of complaints about machines, the age of the equipment, the former allegedly numerous the latter allegedly ancient, was probably a bit exaggerated but I do not think it was consciously so. Essentially, she confirmed Mr Zanzerl's evidence concerning the method the plaintiff used and was instructed to use to get the pads off the polishing machines.

18. She said that she was concerned about using the foot to kick pad discs off because (T.233) "...I was always afraid that I would get hurt".

19. In the result, it does not seem to me to matter whether the machines were all new in November 1984 or whether some were reconditioned or renovated second-hand models. Nor does it seem to me to matter whether the "on/off" switch on the plaintiff's machine was taped to the handle because it was faulty. Whether it was or not (and I accept it probably was), the plaintiff's instructions were to remove pads by kicking the edge of the heavy disc. That was precisely what she was doing when she fell.

20. That method clearly carried with it a risk that the operator would slip and over-balance. As I have noted, that would happen if the kick glanced off an edge of a disc or even if the disc suddenly loosened.

21. It is, of course, not the duty of an employer to safe-guard an employee against a risk of injury arising from some particular susceptibility of the employee of which the employer is unaware and of which the employer could not reasonably have become aware.

22. An example of that situation is Brkovic v J.O. Clough and Son Pty Ltd (1983) 57 ALJR 834; 49 ALR 256. The worker was injured pulling a pipe out from beneath a stack of steel beams. The worker's back suffered injury when the pipe jammed. Whilst the jamming of the pipe could have been avoided by adopting a different system of work, this shifting of the pipe would not have posed a risk to a worker of ordinary strength and soundness. He had a special susceptibility. (See also Blackman v Commonwealth (1978) 20 ACTR 33.)

23. In the present case, however, it is clear that the method of removing the pads laid down by the employer carried with it a risk of falling. It required no special susceptibility on the part of the plaintiff for that. Some injury was likely. Serious, though not necessarily permanent disablement was a real risk. It is a case, therefore, where only the extent of the plaintiff's injury is attributable to her pre-existing spinal condition.

24. It follows that I am satisfied that the system of work used was negligent. I acknowledge that to have forbidden kicking the pad discs off may to some extent have shortened the life of the polisher motors but it could not have been greatly significant if Mrs Peresan's evidence is accepted. She, without apparent objection, used that method all the time. In any event, falls at any workplace clearly risk serious injury. A choice between possible damage to a machine when used as designed and serious injury to employees should have been resolved in favour of eliminating or, at least, greatly reducing the risk of injury to employees.

25. It follows that by instructing employees to follow the "kicking off" method in preference to the use of the motor, the latter a method not involving a risk of injury, the defendant was exposing the plaintiff to unnecessary risk of injury (see Hamilton v Nuroof (WA) Proprietary Limited [1956] HCA 42; (1956) 96 CLR 18; Kingshott v Goodyear Tyre and Rubber Co Australia Ltd (1987) 8 NSWLR 707; cf Sydney County Council and Anor v Dell'Oro [1974] HCA 47; (1974) 132 CLR 97; Bus v Sydney County Council [1989] HCA 29; (1989) 167 CLR 78). This was not a case where a plaintiff unexpectedly chose a more hazardous system of work.
Damages

26. The plaintiff complains that, since 19 August 1985, she has had constant pain in her leg and back. She had planned to work to age 60. She has not worked since her fall. Up to the date of her injury her social life had been confined to her family and church. She used to participate in dancing at church social functions. She has not done so since the fall.

27. Her sleep is disturbed by pain and she is obliged to take analgesics. She gets "cranky" because she cannot do much in the house and her family does not always do things to her liking. She no longer does gardening, which she used to enjoy, taking great pride in the results.

28. It is quite clear that the plaintiff, with limited knowledge of English and no formal educational qualifications of any relevance, is disabled from all relevantly available paid work assuming she suffers the disabilities she claims. She will remain so disabled as long as her symptoms persist to the same or approximately the same level as they presently are said to.

29. The central issue as to damages was a medical one. The defendant's contention was that the plaintiff had a defective spine before her fall at work. The role of that fall is, therefore, a central question.

30. If the fall rendered symptomatic a pre-existing weakness or disease, it is no answer for the defendant, having caused some damage of the kind complained of, to point to the particular physical or mental susceptibility of the plaintiff (see Watts v Rake [1960] HCA 58; (1960) 108 CLR 158). On the other hand, an award of damages ought not require the defendant to pay for consequences which would have eventuated regardless of the defendant's negligence (see, for example, Wilson v Peisley (1975) 50 ALJR 207; 7 ALR 571).

31. The plaintiff conceded, quite readily, that she had had some back trouble before 19 August 1985. She also pointed out, and it was not challenged, that she had lost no time from work as a result.

32. Dr Gavranic's notes as to prior consultations were tendered. They are likely to be more reliable within their inherent limitations than the plaintiff's unaided recollection.

33. His notes, however, commence on 10 January 1983. They, therefore, rely on the plaintiff's unaided recollection at that time. The first entry seems to read as follows (expanding abbreviations where necessary):-

"Jan-Feb 82: Suddenly stiffened = 3 days
Suddenly stiffened with pain, when she was cleaning cupboard
- actually sitting down - (Went to Coast for annual leave and
came the day before)
1.2.82: Vacuum cleaner pushed forward = 3 days. massage and
Manipulation x 4
4.1.83: Just sitting down, cleaning out cupboard - when got
up - stiff with pain."

34. She was found to have back pain at the level of L5/S1. Dr Gavranic noted that he discussed the episodes with her, referring to them as "warning signs". She is quoted as saying words to the effect, "I will stop this work in 3 months anyway - I can see it's bad". In the event, of course, the plaintiff did not give up work until the injury on 19 August 1985.

35. It seems reasonably obvious from later notes that the "Jan-Feb 82" note has been confused with the record of what happened on 4 January 83.

36. On 12 January 1983 a history is noted in the following terms:-

"1st attack: Feb 81: Son with, lifted a polishing machine
step by step up to 1st floor - Pain ++ Got into car and
couldn't get out. People had to take out] Sweating from
pain. Treatment with massage - manipulation x 3 / (that is,
got better)
2nd attack: Feb 82: Vacuum cleaner pushed ahead - sudden
low back pain Dr again. Treatment - Massage - Manipulate
lasted longer = 1/12 "I couldn't breathe" - went to sea for
rest etc.
3. Just sitting, cleaning out cupboard - back locked.
Progress: Pain left me - practically no problem yesterday]
Got up this morning = pain ++"

37. It is clear that the first "lifting" episode was probably more manoeuvring than actually lifting.
Another entry was on 25 August 1983:-

"2/81 = Start of backache:- lifted a polyvac at work -
pain. SELF-EMPLOYED, so not insured.
OK 2/82 OK
8/83: Start 24.8.83. Hosing outside - rest - Couldn't get
up from sitting = PAIN ++. Poor sleep. Left leg: since
this a.m."

On 27 August 1983 she was also seen for backache.

38. On 19 September 1983 - "Excellent results from Moree: pain went while in Moree". At Moree, there are natural spa baths it seems.

39. On 6 December 1983, Dr Gavranic wrote a note, "To who it may concern", expressing the view that the plaintiff's lumbar disc problems (and cervical disc problems) were likely to worsen over time.

"I have advised her to avoid physical work involving much
bending and/or lifting and/or prolonged sitting or standing.
4/5/84: Went to pick some flowers 9.30 - today at home,
severe pain in back - fell. Can't move.
21.1.85: Severe backache again.
May - Jan, occasionally pain, settling with Naprosyn
14.6.85: Back wax and wane."

40. It should be noted that it is not pleaded against the plaintiff that she was guilty of contributory negligence by reason of continuing to work in an arduous occupation notwithstanding that she was advised not to. It is put forward, however, as relevant to whether or not the plaintiff's disabilities were inevitable in the short to medium term.

41. On 18 August 1985, the plaintiff was, apparently, seen by a locum for Dr Gavranic, Dr Wu. She had, he said, "muscular pain in her back, left lower lumbar area, no sciatica pain".

42. Dr Gavranic had referred the plaintiff to Dr Newcombe and received reports of November 1983 and January 1984 (exhibit 6).

43. The former report expressed the opinion that additionally to her cervical trouble, the plaintiff -

"...also suffers from lower thoracic and back pain due to
lumbar spondylosis but I do not think this aspect needs more
than routine conservative management at the moment".

44. An orthopaedic surgeon, Dr David Roebuck, gave evidence. He expressed the opinion that, on 19 August 1985, the plaintiff suffered a lumbar disc lesion. It had lead to an L4/5 disc excision on 5 August 1986. He noted that the plaintiff had generalised degenerative change over L2/3, L3/4 and L4/5 levels. He felt she would not improve but gradually worsen. No further treatment was likely to be helpful. He also expressed the opinion (T.67) that -

"she probably would still be working as she was if she hadn't
sustained a disk protrusion".

45. He took account of her previous complaints of back pain and the general areas of spinal degeneration. However, he also considered that doing a lot of work with the polisher then in Court, said to be similar to that used by the plaintiff, "could lead to a problem".

46. However, it was clearly unlikely, in his opinion (T.75), that the disc lesion operated upon by Dr Newcombe could have been present before 19 August 1985. Had it been, she would not have coped with work.

47. After the accident the plaintiff was attended by Dr Niewiadomski, having become dissatisfied with Dr Gavranic's locum on language grounds. Dr Niewiadomski had also referred the plaintiff to Dr Corry, a rehabilitation specialist. She also saw Dr Chandran, another neurosurgeon.

48. Dr R.B. Goldrick, a specialist physician, gave evidence for the defendant.

49. In his first report (31 October 1985), he expressed the opinion -

"...Mrs Megic's symptoms and signs are not consistent with disc
herniation at the L4/5, or in fact at any other level. She appears
to be a very genuine person who has always worked hard and who now
has pain for which there is apparently no solution."

50. Apparently, at that time, Dr Goldrick was not aware that the plaintiff had in fact fallen over when kicking the pad off the polisher. Nor, of course, was he aware that the disc was, apparently, in fact herniated. On 9 February 1988, although advised that there had been an operation on the plaintiff's back, Dr Goldrick was not then aware of the details of it or the findings on examination. However, he was, nevertheless, of the "provisional" opinion that the plaintiff's disabilities were "largely functional and unrelated to her original back injury". He felt she was, nevertheless, unemployable "for the immediate future".

51. It should be noted that the "functional" problem, if it did exist, could be a result of the original injury just as much as any physical injury.

52. In his report of 22 March 1988, Dr Goldrick had more details of the "multilevel disc disease" in the plaintiff's lumbar spine. He could not find a sufficient explanation for her pain, particularly in the left leg, from the CAT scan and x-rays. He considered the incident of 19 August 1985 to have been "trivial". He seems, at this stage, still to be unaware of how the plaintiff came to fall.

53. On 22 October 1990, in a further report, Dr Goldrick indicated awareness of the nature of the plaintiff's fall. He was, however, still unclear as to the nature of the operation Dr Newcombe performed in August 1986. He was convinced that she had low back pain. He said -

"There is every reason to believe that she continues to
suffer from low back pain and is unlikely to work in the
future for this particular reason. She is in fact, suffering
from an aggravation of a pre-existing disease."

54. He was also of the opinion that her problems had a very large "functional" element. He appears to consider that they were not, therefore, attributable to the physical injury she undoubtedly suffered in the fall. He felt she had developed a "chronic pain syndrome". In his final report of 30 April 1991, Dr Goldrick described the plaintiff's complaints as representing a "gross exaggeration".

55. It was put to Dr Goldrick that the plaintiff had previous back trouble as noted by Dr Gavranic. That led Dr Goldrick to conclude that the plaintiff probably should not have been at work on 19 August 1985. He felt that she was not fit for work as a cleaner.

56. In cross-examination, he conceded that the result shown by the CT scan (exhibit 2) ("a small disc fragment lying ag(a)inst the left L5 nerve root in its lateral recess") was possibly caused by trauma. He did not consider the symptomatology indicative of continuing pain caused by the physical result of such trauma. However, he did express the view that the trauma at work on 19 August 1985 was the cause of the symptoms she suffered from initially. Anxiety over those symptoms had exaggerated and prolonged them.

57. It may be noted that Dr Goldrick's opinion supports the view that the plaintiff's current disabilities result from her fall even if not a direct result of the physical continuance of spinal injury.

58. Unfortunately, Dr Newcombe was not called to give evidence nor were any of his reports tendered. However, it seems to have been assumed by both Dr Roebuck and Dr Goldrick that a herniated disc was removed in August 1986. It also seems to be accepted that the plaintiff was, as at August 1985, vulnerable to back injury. The accident she had was certainly sufficient to cause a serious disability. It clearly marks the end of the plaintiff's economic working life. Both sides agree on that. Dr Roebuck would hold that the cause of the current disability is more physical than psychogenic. Dr Goldrick would reverse the importance of those factors. Both doctors agreed that the plaintiff's perception of her symptoms is a genuine one. Dr Goldrick would expect a degree of relief if the anxiety of litigation is removed. He does not assert that such a degree of relief would be experienced as to render the plaintiff employable.

59. However, on one point I differ from Dr Goldrick. I accept that he was of the view that the plaintiff should not have been working as a cleaner. However, I was very impressed by the fact that, notwithstanding that she must have had some back discomfort from time to time, the plaintiff had worked for many years as a cleaner, without losing any time from work. She had been working for the defendant for the previous 18 months without losing any time from work. I think that lends weight to Dr Roebuck's view that the plaintiff would probably have continued indefinitely at her work as a cleaner but for the fall. I do not believe that the incident of 18 August was such as to trouble her on 19 August. I conclude that it was more an emotional problem than a physical one which caused her to call her doctor. Dr Wu's letter to Dr Gavranic is certainly consistent with this view of the incident. It follows that I consider that Dr Roebuck's opinion is more probably correct insofar as he differs from Dr Goldrick. That difference is, in fact, one of degree rather than anything else.

60. Of course, the plaintiff did have a spinal disease. As a consequence she was more susceptible than most to serious and lasting damage from incidents which would be likely to cause a serious, albeit temporary, disability in others.

61. Accordingly, I conclude that the incident on 19 August 1985 caused the serious problems of which the plaintiff has subsequently complained. It is the effective cause of her continuing inability to work as a cleaner. There is no other employment reasonably open to her. However, it is necessary to take account of the plaintiff's other health problems, including neck pain, and her enhanced liability to spinal damage, as well as the heavy nature of the work she had been doing, by discounting the general damages and future wage loss which might otherwise have been awarded to take account of the risk that such disability may have overtaken her before her anticipated retirement date.

62. For general damages, accordingly, I award $35,000.00. I apportion half to the past. That award takes account of the chance of some improvement in the intensity of symptoms following the cessation of litigation.

63. Medical and like expenses are agreed at $8,757.87. The Fox v Woods component is agreed at $9,572.61.

64. The quantum of past wage loss, to the date of hearing, was $107,798.50. I do not think that any part of the past six years approximately can be attributed otherwise than to the effects of the accident on 19 August 1985. I will assume some improvement in the future.

65. Accordingly, I award $107,798.50 for the past wage loss. $67,873.72 was paid in compensation payments. Interest at commercial rates thereon would average 14%. The loss was relatively evenly suffered over the past 6.3 years. It is awarded on $39,924.78. I therefore award $17,606.82 for interest on the past wage loss.

66. The current wage loss is $335.50 net per week, an agreed figure. It seems accepted that her birth date was 24 June 1940. It follows that she had approximately 8 1/2 years from the date of hearing for loss of future earnings. I apply a 30% discount in lieu of the conventional 15% for vicissitudes (see Wilson v Peisley (supra). I award $92,175.00 under this head.

67. Interest on general damages is $2,205.00. That is calculated at 4% on the past general damages allowing for the fact that the pain and suffering was incurred over 6.3 years (see MBP (SA) Pty Limited v Gogic [1991] HCA 3; (1991) 171 CLR 657.

68. The total is $273,115.80. I consider it an appropriate sum to award. I will hear the parties as to costs.