William Lyle Buttriss v Taira (T and T) Pty Limited T/As Erindale Supabarn [1993] ACTSC 49 (3 May 1993)

SUPREME COURT OF THE ACT

WILLIAM LYLE BUTTRISS v. TAIRA (T and T) PTY LIMITED t/as ERINDALE SUPABARN
No. SC807 of 1990
Number of pages - 11
Negligence

COURT

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

CATCHWORDS

Negligence - Injury sustained at work - 3.4m fall onto cement floor - Assessment of damages - Whether totally or partially incapacitated for work - No new question of principle.

HEARING

CANBERRA, 24-25 March 1993
3:5:1993

Counsel for the Plaintiff: Mr R Stanley QC with

Mr J Constance

Instructing solicitors: Messrs Snedden Hall and Gallop

Counsel for the Defendant: Mr L King

Instructing solicitors: Messrs Mallesons Stephen Jaques

ORDER

The Court orders that:

1. There be judgment for the plaintiff in the sum of $645,766.18.
2. The defendant pay the plaintiff's costs of and incidental to
these proceedings.

DECISION

HIGGINS J On 10 April 1990, the plaintiff was employed by the defendant as the manager of the butchery section of the Erindale Supabarn.

2. It was part of the plaintiff's duties to deal with sales representatives taking orders for consumables such as packaging and wrapping materials used in the course of the retailing of meat products.

3. Those materials were stored on the top of the coolroom. There was a gap of over two metres between the top of the coolroom and the roof of the storage area. The area between the top of the coolroom and the ceiling of the storage area roof thus formed a mezzanine. The top of the coolroom was about 3.4 metres above the cement floor of the storage area. Access was obtained by ascending a ladder set in place against the side of the coolroom. A person could then walk around on the top of the coolroom to gain access to the various materials stored there.

4. Walking about on the roof of the coolroom was hazardous enough by reason of various pipes and cables running across the area. There was no safety rail to prevent a person falling from the top of the coolroom. The roof area was, on this day, rendered more hazardous by the presence of various wooden pallets, the surface of which comprised slats of wood with gaps in between.

5. The plaintiff had to walk over those pallets (or some of them) in order to check and count the stock of packaging materials to enable re-ordering.

6. The pallets were near the edge of the coolroom roof. As the plaintiff advanced to look at a second box of packaging materials, the inevitable accident occurred. Whether his foot went into a gap or a pallet shifted is not clear. It is clear that, due to the state of the surface of the coolroom, the plaintiff lost balance. Due to the lack of a safety rail, the plaintiff fell off the top of the coolroom onto the concrete apron below.

7. Unfortunately, as it transpires, the plaintiff landed on both his heels. They were badly fractured.

8. A few days later, a safety rail was installed.

9. I have no doubt the defendant was negligent. The state of the premises was even worse than the plaintiff expected. I am satisfied that there was no contributory negligence on the part of the plaintiff. I am only required to be of the view that the defendant has failed to establish negligence on the part of the plaintiff.

Damages
10. After his fall, the plaintiff was taken to Woden Valley Hospital. He was in severe pain. He was given pain killing drugs. After a week he was returned home in a wheel chair. After about three weeks, swelling had reduced sufficiently for both lower legs to be plastered.

11. The plaster remained in place for the next eight to nine weeks. For five weeks, the plaintiff was mobile only by wheelchair. After that he was ambulant on crutches.

12. When the fall occurred, the plaintiff was 37 years old. He was married. There were four children in the family (aged 20, 18, 14 and 12, the two elder children being step-children). At the time of the hearing, on 22 March 1993, only one child was still dependent.

13. There was continuing physiotherapy and hydrotherapy.

14. After the plaster was removed the plaintiff's mobility did not improve. Pain, already severe, worsened.

15. In April 1991, Dr Stubbs, under whose care the plaintiff had been, operated. His purpose was to ease the severe pain the plaintiff was suffering. Following the operation the plaintiff's lower limbs were in plaster for 13 weeks.

16. For six weeks he was at home. A bone graft had been taken out of his hip. He was virtually bed-ridden. He was left with a 12-15cm scar on the right hip. That area still remains numb, though not painful.

17. The plaintiff then went back to physiotherapy. He underwent rehabilitation therapy at Woden Valley Hospital. As he described it, the plaintiff was put to "whittling wood". He felt like an invalid.

18. There was a second operation in October 1991.

19. The intention was to correct the pain resulting from the pinching of nerves in the left foot. The operation succeeded in improving that.

20. From August 1991 lower back pain had become evident.

21. The left ankle and foot still remains the plaintiff's worst disability. Once he gets to his feet, pain begins to worsen. It starts after a few minutes and gets very bad after a relatively short time. The right ankle is better but takes "shock" badly. It also aches with standing. That ache worsens the longer he stands.

22. The lower back has worsened. It aches and gets quite painful, "like cutting teeth", the plaintiff said.

23. The plaintiff's activities have been greatly curtailed by this accident, both as to employment and socially.

24. Effectively, both the plaintiff's ankles have been fused. He has up and down movement only. His balance is precarious. He has orthopaedic inserts in each shoe. He can wear only "Reebok" high cuts or like shoes. They support the ankles. The feet and lower ankle areas are badly scarred.

25. The plaintiff was born in Cootamundra on 28 March 1953. He left school at 15, halfway through year 8. He hated school. He did learn to read and write. He was a keen sportsman. He played rugby league, tennis and took part in athletics. He made top district grades. He also played rugby union and squash.

26. On leaving school he started a butchery apprenticeship. He did four years. The rules were then changed, to require an additional year. He declined to do that. As a result he has no formal qualifications.

27. Nevertheless, the plaintiff has worked constantly up to the accident. He has done plumbing work. He did work as a tree feller.

28. Most of the time he has worked as a butcher. He gained a position in February 1987 in the butchery section of a "Shop-Rite" Supermarket. In June, the shop was bought out by "Supabarn".

29. At first the plaintiff was employed managing the Chisholm Supabarn. He was offered $75.00 per week more to manage the Fadden store butchery section. In August 1987, he took over as manager at Erindale Supabarn. It was a more responsible position.

30. Up till then, he had had a second job at a butchers' shop at Erindale.

31. His duties included ordering meat, hiring and firing staff and keeping records of receipts and returns. He had two other butchers on staff and three or four shop assistants to wrap and stack meat products. His functions were, however, mainly concerned with cutting and preparing meat products. He did do heavy work, with others, unloading cuts of meat from trucks. Some cuts could weigh as much as 90kg.

32. The plaintiff was clearly a conscientious and well-regarded employee. He was a skilled and experienced butcher. He could have run his own butchery business. However, he liked working for the defendant and hoped to become a supervisor in its organisation. That would have increased his earnings and responsibilities. It was, however, well within his capacity. He had, effectively acted as a "trouble shooter" for the various butchery sections of the "Cannons" stores. That role was very similar to that of a "supervisor".

33. I am satisfied that had the plaintiff not been injured, he would soon have advanced in the defendant's hierarchy. It would, in any event, have had to pay him more in real terms to retain his services. Otherwise, the option of running or joining in another butchery business would become more attractive to him. His plan was, however, to stay with "Cannons" until retirement and, thereafter, work part-time in a butchery business doing lighter work. I think it fair to observe, also, that, in his current position, it was likely that the plaintiff would have been able to delegate heavier lifting tasks had he found physical difficulty in performing them.

34. The plaintiff enjoyed the collegiate attitude of the Supermarket organisation, the meetings and social gatherings.

35. I will not repeat all the complaints and disabilities to which the plaintiff referred in his evidence. I have no hesitation in accepting his evidence as both truthful and accurate. He did not exaggerate his difficulties or his distress following his injury.

36. The principal issue in the case was not to the accuracy of the plaintiff's evidence. It was as to whether he had made sufficient efforts to accept and respond to rehabilitation therapy. It was as to whether he should be regarded as totally or only partially incapacitated for work.

37. In that assessment, the medical evidence is of considerable importance.

38. Dr Stubbs was the treating orthopaedic surgeon. In September 1990 he reported that the plaintiff had, on 10 April 1990, suffered "serious fractures of both calcanei (heel bones); both fractures involved the sub-talar joint". He expected serious permanent disability. Such injuries were, he advised, "very disabling".

39. In March 1991, after 11 months, Dr Stubbs was even more pessimistic. He said of the plaintiff,

"He can walk and stand, but his gait is slow and flat-footed and
his ankles and feet get progressively painful the longer he stands.
There is no way at the present time he could return to work as a
butcher."

40. Dr Stubbs was hopeful, at that time, that the plaintiff might be retrained for sedentary work.

41. On 17 June 1991, Dr Stubbs provided a further report. It recorded the details of the operation performed on 10 April 1991. It describes the bilateral sub-talor arthrodesis performed on that day.

42. The plaintiff was reviewed on 26 November 1991. There had been a further operation in October 1991 to free tendons in the left foot. As to the plaintiff's employment future, Dr Stubbs commented as follows,

"... I was doubtful that he would be able to return to work as a
butcher. There are a lot of problems with this, one especially
worrying is that he does lack agility because of the stiffness
in his hind foot."

43. The risk of falling over, in Dr Stubbs view, precluded work in a butcher's shop. He felt retraining was indicated. He referred the plaintiff to Dr Corry, a rehabilitation specialist.

44. On 13 May 1992, Dr Stubbs reported on the plaintiff's condition as at 5 May 1992.

"... if he sits about or only does a little walking he really has
no pain. If he gets up and gets active there is increasing degree
of ache in both feet but rather more on the left than on the right."

45. He assessed the level of disability, as a result of the feet only, of 40% on one scale and 32% on each lower leg on another, with an 18% total body impairment.

46. However, this position has not remained static. The left ankle has shown signs of possible future deterioration. If it does deteriorate, a further operation will be required.

47. In the right lower leg, a hairline fracture appeared (according to the plaintiff's history) following the operative treatment. He had suffered (as he confirmed in his evidence) a sudden cracking sound from the area of his right ankle. It could have been caused, according to Dr Stubbs, by a weakness induced by the last operation. It seemed to heal without complication.

48. The left fibula actually requires shortening although it is not inevitable that it will be. It depends on the level of pain. Dr Stubbs thought it was a 50:50 chance that it would be required. Further fusion of the mid-foot was possible but was not likely to be required. There was a 2:1 chance against it, he believed. Cost estimates for these operations were provided.

49. A further complication was that, after the plaintiff became mobile, a back condition manifested. Dr Stubbs observed a lateral wedging on X-ray film ordered by the plaintiff's General Practitioner. He considered that to be consistent with a wedge fracture associated with the fall on 10 April 1990. It was also possible, Dr Stubbs conceded, that the X-ray sign showed a naturally occurring retrolisthesis, a degenerative change previously asymptomatic.

50. It is not disputed that such a condition would have been rendered symptomatic by loss of fitness, changed gait and use of crutches, or some combination thereof.

51. Dr Stubbs felt that the back condition would worsen from time to time. Chiropractic treatment was an appropriate pain relief regime, so long as it was cost effective.

52. In Dr Stubbs' opinion, the plaintiff's capacity for work is very limited. He has trouble standing for more than short periods. He lacks agility, ruling out work involving walking over uneven surface areas. He can sit for a while but not longer. He has an aversion to "indoor" work. I take that to mean clerical or office work.

53. Dr Stubbs was not aware that the back pain is now accompanied by pain in the neck and shoulders.

54. It may be added, however, that the plaintiff's wife gave evidence corroborating his complaints. I found no reason to doubt her evidence.

55. The defendant called only medical evidence in reply.

56. Dr Anthony Cairns saw the plaintiff for medico-legal purposes three times.

57. On 13 March 1991, Dr Cairns noted the plaintiff's "obvious discomfort". He felt the prognosis was "poor". It would be three to four years before optimal improvement was experienced. Dr Cairns' view was,

"The most predictable outcome is that he will gain fitness only
for primarily sedentary occupations or mixed sedentary and
standing, where the standing component is minimal. In addition,
he will be permanently impaired from participating in the type
of active, physical leisure pursuits in which he was previously
engaged, probably on a permanent basis."

58. Dr Cairns' view has proved correct with the exception that, with great difficulty, the plaintiff can manage, aided by a motorised golf buggy, a weekly round of golf.

59. The next review was 19 August 1992. Dr Cairns reported that,

"... in August 1991 he suffered the onset of upper buttock pain
which was attributed to "pinched nerves" and for which he has
required chiropractic treatment. This has led to a restriction
of his capacity for bending, and he advises again that he does
not recall any back injury sustained in the fall at work on or
about 10 April 1990."

60. The plaintiff told Dr Cairns that he was "not interested in any occupation which would require indoor or sedentary activities".

61. Dr Cairns adhered to his previous opinions concerning the plaintiff's prospects. As to the lower back pain, he commented,

"I cannot find any direct relationship between the onset of lower
back disability and the fall of 10 April 1990, other than to observe
that disturbances in gait pattern caused by lower extremity injuries
can lead to the onset of lumbo-sacral mechanical symptoms."

62. In a report dated 15 October 1992, Dr Cairns, whilst noting that the plaintiff was "a reasonable and credible witness", felt that continued use of chiropractic services was too expensive a means of pain relief.

63. There was a further review on 11 March 1993. Dr Cairns found the plaintiff's condition unchanged, save as to symptoms of loss of strength and tenderness in first the right and then the left upper extremities. Those symptoms settled with chiropractic treatment.

64. Dr Cairns considered the low back disability to be related to degenerative changes aggravated and rendered symptomatic by the plaintiff's disturbed gait pattern. The upper limb and cervical disturbance Dr Cairns did not consider to be related to the lower limb injuries.

65. He noted that the only likely prospects for rehabilitation and retraining related to those primarily sedentary occupations which the plaintiff was unwilling to contemplate.

66. In evidence, Dr Cairns did express a view, which he conceded to be speculative, that the plaintiff might in any event have developed back symptoms given the heavy work he performed over a similar time frame.

67. In cross-examination, Dr Cairns conceded that a fall such as the plaintiff suffered, was likely to have caused spinal injury. It was possible, he said, that the symptoms could have been masked by the analgesics and bed rest prescribed for the lower limb injuries.

68. On the issue of the back symptoms, I have no doubt that they were caused by or as a result of the fall. I think it likely that some injury or aggravation of degenerative change was caused by the fall. I also think it likely that, had the plaintiff commenced to experience spinally related pain without some traumatic event, he would have delegated the heavier work to younger persons of sufficient fitness. I do not believe the onset of such back pain would have been likely as soon as it now has appeared. I am convinced that natural deterioration, had it become spontaneously symptomatic, would not have led to early retirement or loss or curtailment of employment. It would not have been likely to have prevented possible post-retirement part-time butchery work.

69. Another issue was as to the plaintiff's future employability. Mr Bob Wells of REACT, Rehabilitation consultants, provided a report. Of interest were the ratings the plaintiff gave of his pain levels. At its worst, he regarded his back pain as worse than his left foot pain at its worst.

70. The report concluded that rehabilitation was not viable. This conclusion was based not only on the nature and extent of the plaintiff's physical disabilities and vocational skills but also on the plaintiff's refusal to countenance study or retraining courses for alternative employment.

71. Dr Peter Henke, a consultant in rehabilitation medicine, also provided a report and gave evidence.

72. In his report of 11 November 1992, Dr Henke concluded that the plaintiff was physically restricted to "duties of a semi-sedentary type". He acknowledged that "for him to consider clerical or similar type work he would require significant periods of re-training". He felt that driving light vehicles (obviously not for long distances at a time) was open.

73. A subsequent report of 23 February 1993 acknowledged that, "This man represents a difficult rehabilitation problem". The report did discuss various options, including taxi driving. Without retraining, however, Dr Henke could not offer any realistic options. Office work, he felt was the plaintiff's "best option".

74. I accept that the plaintiff lacks the motivation to attempt to raise his clerical skills to employable levels. My task is to determine whether it is due to obstinacy or to a realisation by the plaintiff that he could not successfully undertake such a course of retraining.

75. Such a conclusion depends on my assessment of the plaintiff. I have already indicated that I found him to be a truthful witness. It follows that I am convinced that he truly believes rehabilitative training will not result in him becoming more skillful in office work and, hence, more employable.

76. He has, of course, a duty to mitigate his loss. Given his honest belief, I have to decide also if it is reasonable for him to decline to engage in office skills retraining. In so doing, his belief is relevant, although not decisive. Some people simply have no scholastic aptitude at all. The plaintiff has, in my view, very little. His educational and career history show he has not been a lazy person. He has had a busy and active life up to his injury. He strikes me as being determined and very likely to succeed if he can. I find his view that he would not benefit from retraining in the office skills area to be convincing. I accept it is, in the circumstances, reasonable.

77. Many of the suggestions for alternative careers for the plaintiff outside that area strike me as fanciful. The suggestion that he might become a taxi-driver is a good example. He could not move luggage. He could not drive for long periods. He could not sit and wait for long periods. He has such obvious disabilities that he would be unlikely to be hired in the first place.

78. It is obvious from his reports and evidence that Dr Henke could not think of a realistic career option for the plaintiff.

79. To my mind, the chance that the plaintiff will, notwithstanding his difficulties, find remunerative work to partially off-set his loss is more than outweighed by the chance that he would, but for the injury, have improved his employment situation. The chance that he might have become disabled spontaneously, or by reason of some non-compensable cause, is more than outweighed by the prospect that he would otherwise have worked on past normal retiring age.

80. I propose to assess damages accordingly.

General Damages
81. The plaintiff suffered a serious injury. It has led to him becoming a semi-invalid. It has adversely affected every aspect of his life. I consider $100,000.00 to be the appropriate figure for pain, suffering and loss of enjoyment of life. I attribute $50,000.00 to the past. As a result I award $3,000.00, in round figures, for interest.

82. Past loss of net earnings was assessed to 22 March 1993 at $76,542.00. I see no reason to discount that figure. I award that sum accordingly. There was $59,520.00 net paid by way of compensation. I award $3,550.00 for interest on earnings foregone, allowing an average of 14% over the period.

Future earning capacity
83. The figure for the plaintiff's net weekly earnings was calculated at $507.69 as at 1 June 1992. I have no figure for March 1993. However, I will assume that the figure given as at June 1992 would not be less nine months later.

84. There are various contingencies, including the 5% discount on purchases allowed to employees after the plaintiff had ceased to be employed with the defendant. I think the various contingencies virtually cancel themselves out. Accordingly, I will assume $508.00 per week to be the net weekly figure as at 22 March 1993. I will make the usual calculations to age 65, allowing the conventional discount only to that already discounted figure. I round the result down to $370,900.00 and award that figure accordingly.

85. The value of lost superannuation benefits was calculated at a net $40,295.00. I see no reason to discount that figure as an equivalent benefit would have been payable for an enforced early retirement. I award that sum accordingly.

86. Out-of-pocket expenses were agreed to have been $25,479.18. I award that sum. I have no information as to what portion of that sum, if any, should attract interest.

Other expenses
87. Special footwear seems reasonable for the plaintiff to obtain. To date, it is agreed that $500.00 represents a reasonable estimate of past expenses. For the future, I award $6,300.00.

88. There was also the additional expense of hiring a golf cart. This is reasonable but I do not think that the full cost each week is appropriate. Ordinarily, I think the plaintiff would find someone to share the cost. I do not accept he would incur it each week, although it might be more often than not. I would allow $1,400.00 for the past and $10,000.00 for the future.

89. For future chiropractic treatment, I accept it will taper off, either because of better adjustment by the plaintiff or because more convenient means of pain relief will wholly or partially substitute. I also accept that it is reasonable for the plaintiff to avoid drug usage. I award $4,000.00 for this head of damage.

90. For the chance of future operations, I proceed on the basis of Dr Stubbs estimates both as to the likelihood of operation and the cost. I award $3,800.00 on that basis.

91. The damages may be summarised as follows:-

General damages $100,000.00
Interest thereon 3,000.00
Loss of earnings - past 76,542.00
Interest thereon 3,550.00
Future loss of earning capacity 370,900.00
Loss of superannuation benefits 40,295.00
Past hospital and medical expenses 25,479.18
Footwear - past and future 6,800.00
Recreational expenses - past and future 11,400.00
Future chiropractic treatment 4,000.00
Future operative treatment 3,800.00
Total $645,766.18

92. The resultant sum does not seem excessive. I direct entry of judgment for the sum of $645,766.18.

93. Unless the parties wish to be heard to the contrary, I propose to order the defendant to pay the plaintiff's costs of and incidental to these proceedings.