Milan Kramer v Smk Pty Limited Formerly Canberra Roof Trusses Pty Limited [1994] ACTSC 52 (1 June 1994)

SUPREME COURT OF THE ACT

MILAN KRAMER v. S.M.K. PTY LIMITED formerly CANBERRA ROOF TRUSSES PTY LIMITED
No. SC782 of 1987
Number of pages - 11
Damages - Negligence

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
HIGGINS J

CATCHWORDS

Damages - assessment - personal injuries - tort.

Negligence - duty of care - unsafe system of work - no proper instruction to employees - contributory negligence.

HEARING

CANBERRA, 10 May 1994
1:6:1994

Counsel for the Plaintiff: Mr G Lunney

Instructing solicitors: Legal Aid Office (ACT)

Counsel for the Defendant: Mr R Crowe

Instructing solicitors: Vandenberg Reid

ORDER

THE COURT ORDERS THAT:
There be judgment for the plaintiff in the sum of $730,164.47.

DECISION

HIGGINS J The plaintiff, Milan Kramer, sues for damages for personal injury arising out of an accident at work which allegedly occurred on 2 July 1981. His date of birth is 20 July 1939 The defendant was his employer at the date of the accident. The plaintiff claims that the accident was caused by the negligence of the defendant.

Was there an accident?
2. It is the plaintiff's claim that he was injured in the course of his employment with the defendant on or about 2 July 1981.

3. There is no dispute that, on or about that day, the plaintiff was employed by the defendant as a machinist. The defendant manufactured roof trusses. It was the plaintiff's job to cut to appropriate size and to prepare various lengths of timber. There was no real dispute about the method of work.

4. The plaintiff operated three saws. To obtain wood he had resort to a pile of lengths of timber. The pile was the result of a bundle of lengths of timber being placed 30-40 metres away from that part of the factory of the defendant where the plaintiff's work station was located. The bundles of timber were obtained from a larger stock and placed by a gantry crane.

5. It would have been possible to deliver individual timbers to the plaintiff's work bench by gantry crane but it was agreed that such a course would have been far too slow to be practicable.

6. The plaintiff routinely went to the pile and carried a length of timber to his work bench, cut it as required, then obtained another or others for similar processing.

7. The timber the plaintiff was carrying when he said he was injured was relatively typical being about 7-8 metres in length. It weighed about 40-60 kilograms.

8. It is not alleged that the carrying of such timber was itself unsafe. However, the process of cutting the timber necessarily produced hardwood off-cuts which fell onto the floor near the work bench.

9. Near the work bench there was a large bin into which wood off-cuts were supposed to be placed. There was also a cleaner who ensured that the factory floor was clear and clean at the beginning of the day.

10. Given the number of work benches involved in cutting timbers, it would have been impracticable for the cleaner to have kept the floor around the saws and associated work benches free from off-cuts at all times.

11. Whilst it was understood that saw operators would put off-cuts into the bin provided, it does not appear that there was any instruction or warning that it was desirable to do so for reasons of safety. There was no instruction given to saw operators to ensure the floor around their work area was clear of off-cuts before going to get more timber to work on or any warning that failure so to do could render that task unsafe.

12. It is apparent that, if off-cuts, some small, some large, were permitted to lie on the floor of the factory then there would be a serious risk of injury to a worker concentrating on carrying a large and heavy length of timber. Not only is the weight on a descending foot much greater but the consequences of a loss of balance are, also, much greater.

13. It seems to me, therefore, that a safe system of work would have required operators, for their own safety, to ensure that the path to the stock of timber from their work bench was free of off-cuts and any other substances likely to disturb their balance whilst carrying timber to it.

14. In the absence of any such instruction or warning that the system of work was unsafe, it was conceded that it was left to the operator's own judgment,. The means to correct that situation was, simply, to give proper instructions to operators and to reinforce those instructions from time to time by appropriately placed notices or otherwise.

15. The plaintiff says that he attended work at his usual hour of 6.00am on Friday, 2 July 1981 (although 2 July 1981 was, in fact, a Thursday). He agreed off-cuts sometimes fell on the floor and went unnoticed. The factory floor had been clear and clean on his arrival. At about 10.30am he went to obtain more timber. He was carrying a length of timber, as described above, to his work bench. Close to the work bench, his foot descended onto a piece of timber off-cut about 5cm x 5cm x 9cm. It was probably an off-cut from one of the grooves cut routinely in the timber truss components by one of the saws the plaintiff used.

16. His ankle turned and he stumbled. The timber twisted off his left shoulder as he lost balance. He dumped it on the work bench suffering a sharp pain in his back in the course of this activity.

17. He attempted to continue work but could not. He went to the office and told a lady there, whom he described as a "time keeper" and, perhaps, a man who worked in the office that he needed to go home early.

18. In cross-examination he agreed that he might well have only referred to a bad headache as a reason for his indisposition. That was between 11.00am and noon. He arrived home about 12.30pm.

19. On Monday, contrary to his expectations, his back was no better. He consulted Dr Gerard Caine, a general practitioner since deceased. He obtained a certificate which he took to Mr Rudolf Klug, the proprietor of the defendant company on the following Monday or Tuesday.

20. The plaintiff said he told Mr Klug that he had suffered an accident at work on the previous Friday. He denied a suggestion that he told Mr Klug that he thought he would be okay. He alleged that Mr Klug suggested that he apply for sickness benefits as it would take three months to get compensation.

21. The plaintiff had only commenced work with the defendant on 11 February 1981. It is not clear what sick leave he had accrued. Nor is it clear whether the plaintiff told Mr Klug that he had suffered a headache.

22. Mr Klug had no recollection of the plaintiff speaking to him on the Monday or Tuesday following 2 July 1981. He did not deny that there may have been some conversation. He was able to recall receiving two medical certificates, one for ten days off, the other 14 days. One referred to "back strain", the other to "back pain". He assumed that the plaintiff would have brought them in.

23. He denied, however, that he said or would have said to the plaintiff that he should go onto sickness benefits. He said there was an "Accident Book" at his factory. Any injury, however slight, was entered. If any worker went off work as a result of injury, a claim for compensation would be made to the defendant's insurer. There was no record of any injury to the plaintiff.

24. It should be noted that both Mr Klug and the plaintiff were giving evidence about events which occurred nearly 13 years ago. Mr Klug was a busy man with about 100 employees at the time. Although Mr Klug speaks English fluently, it is not his first language. The plaintiff's command of English, though adequate, is not very good even now. In 1981 he had been in Australia 18 years. I do not believe that his command of, or understanding of, English was better in 1981 than at present, though it was probably not significantly worse.

25. There is a contemporary record which is of some assistance. Dr Caine wrote a report on 28 May 1984 setting out the effect of his contemporaneous notes. He confirmed that the plaintiff consulted him on 6 July 1981. He recorded the history then given to him in the following terms,
"He told me that he had had an accident at work on 2 July 1981 when he

was working for Canberra Roof Trusses. He said that he had hurt his
back. He said that he had been trying to carry on at work but
eventually came home after telling some official of his problem."

26. Of course, 2 July was a Thursday in 1981 which is not consistent with the plaintiff's recollection that the accident occurred on a Friday. However, given the lapse of time, it is not important whether the accident happened on 2 July and the plaintiff did not work on 3 July or whether the true date of the occurrence was 3 July.

27. It is clear, however, that on Monday, 6 July 1981 the plaintiff did complain of an accident at work in which he strained his back.

28. That reported complaint does not detail the circumstances giving rise to the accident. However, for compensation purposes that would not have mattered. It is also quite clear that Dr Caine expected the plaintiff to make a compensation claim.

29. His report states,

"My notes indicate that I gave certificates as if he was going to go
on Workers Compensation at the beginning of his case, but that later I
switched over to giving certificates as if he was to be on sickness
benefit."

30. This note is consistent with the plaintiff having an initial intention of claiming workers' compensation but changing his mind for some reason. Certainly, Dr Caine, as at the date of his report, had not altered his understanding that the plaintiff had claimed to have been injured as the result of an accident at work.

31. Whether the plaintiff also complained of a "bad headache" to Dr Caine is not clear. In 1984 it was the backache that was the main cause for concern.

32. The plaintiff did, however, consistently complain of backache following the date of his accident, according to Dr Caine. It was certainly Dr Caine's conclusion that it was the chronic back pain which led to the plaintiff being granted the invalid pension early in 1984.

33. Accordingly, while it is possible that there was no "accident" and the plaintiff reported an "accident" by reason of a desire to claim falsely that there had been, I think it much more likely that there was an accident involving a back strain, more likely than not on the Friday before 6 July 1981. I believe the plaintiff told "an official" of the defendant that something had happened but although he was suffering both backache and headache he conveyed only a complaint of incapacity without clearly describing the cause. He probably mentioned the headache which by then had come on severely. I think it likely he did speak to Mr Klug and, possibly, another "official" of the defendant on the Monday or Tuesday following his consultation with Dr Caine. He then delivered the medical certificates Dr Caine made out. Whatever was said to him, I believe he got the impression, rightly or wrongly, that he would be better off claiming sickness benefits, which he did.

34. It is not necessary for me to find whether Mr Klug or any other officer of the defendant deliberately misled the plaintiff and I make no finding that he or they did so.

35. The next issue was as to the manner in which the plaintiff's back was injured. It was put to the plaintiff during cross-examination that he had signed a statement about that aspect of the matter on or about 14 December 1984.

36. Eventually, the plaintiff agreed that he had done so. It may be that his initial hesitation was due to a lack of reading glasses, but I had the distinct impression that an element of evasion was involved. The reason for that was, I think, that the plaintiff was aware that the statement contained some discrepancies when compared with his evidence in chief.

37. The provenance of the statement produced by the defendant's counsel was unclear. It seems to have been a statement given to one or other of the plaintiff's various solicitors. There was no explanation as to how it came to the possession of the defendant's representatives save that it came via the workers' compensation insurer. I assume that the latter came by it properly although it would be unusual for a plaintiff's solicitor to provide such a statement to a defendant's insurer.

38. The discrepancies appear in this passage, which purported to describe how the accident happened,

"I recall falling very heavily onto the ground however, I picked
myself up and continued on with my work. About one hour later I
started to get a very bad headache and noticed that my lower back was
aching. I then went into the office and told them that I had a
headache and that I wanted to go home. The person I told in the
office was my employer Rudy Klug, Foreman."

39. The plaintiff denies that he said he tripped, heavily falling to the ground. He also says he noticed back pain immediately, though he agrees after about an hour a headache developed and the pain in the back was worse. He denies that Mr Klug was present in the office when he attended. The statement as put to him is ambiguous in the latter respect. It is not clear if it should be read as "Rudy Klug's Foreman" or "Rudy Klug, the Foreman".

40. There is no detail of any history which was given by the plaintiff for the purposes of obtaining sickness benefits or the invalid pension.

41. The next version suggested was that recorded by Dr Corry. The history Dr Corry recorded was that,

"He (the plaintiff) stood on a piece of loose wood on the floor and
partially lost balance, landed heavily on his left heel. He felt a
jarring through his back associated with a burning sensation in the
lower back region. He did not fall to the ground. He was able to
continue working for the next two hours but pains in the lower back
increased and he also developed pain in the neck region and headache.
He reported the incident and went home and rested." (Emphasis mine.)

42. A further discrepancy appears in a report from Dr Andrea, a surgeon, who examined the plaintiff for the defendant. He recorded a reference to neck pain "About one week after the accident".

43. I note also, that the Statement of Claim makes a number of allegations at variance with the plaintiff's evidence. The piece of hardwood is alleged to have been "70-100kg". In any event, that should have been seen to be improbable. The allegations proceed as follows,

"Whilst carrying the said hardwood, the plaintiff tripped, lost his
balance and fell over wood lying on the ground, whereby the plaintiff
suffered injury to his back, left leg and otherwise suffered injury to
his back, left leg and otherwise suffered loss and damage."

44. The plaintiff says he did not fall. There was no injury to his left leg.

45. However, the plaintiff is not only difficult to understand, he does not tend to respond directly to questions. He rambles and uses exaggeration quite routinely. It would be very difficult to take a coherent factual history from him. For medical purposes most of the details at variance with his evidence in chief would be of little significance.

46. It is clear that the plaintiff's present version has been what he has told doctors consistently since 1985 (save for the "two hours" Dr Corry refers to). How his solicitors managed to formulate the allegations that still appear in the Statement of Claim is a mystery I do not propose to enquire into.

47. All I can conclude is that, whilst approaching the plaintiff's evidence with due caution, and allowing for his tendency to over-dramatise, I am persuaded that the incident he described in his evidence occurred as he has stated it. Indeed, he does not seem to have exaggerated the factual elements of his account. 40-60kg is a more modest weight than 70-100kg. The accident was not observed by any other person. A fall to the ground would better explain his injury than a mere stumble.

48. I have already concluded that if the plaintiff was injured by stumbling over a wooden off-cut, then that injury was caused by the negligence of the defendant in the respect or respects which I have referred to.

49. The nature of the negligence in question does not, to my mind, permit a finding that the plaintiff's negligence caused the accident. I refused an application by defendant's counsel, in the course of his final address, to amend the defence to allege contributory negligence. In any event, it does not seem that the plaintiff did more than carry on with his work in accordance with the directions of and method required of him by the defendant. The reason he failed to notice the wood off-cut was because he was not warned or instructed to look out for and remove such off-cuts before going to get more wood. It was his employer's responsibility to do that. I do not consider that the defendant would have discharged its onus of proving contributory negligence even had it been pleaded.

Damages
50. The plaintiff's complaints following his injury are dramatic. Following his consultation with Dr Caine, the plaintiff says that his back condition deteriorated. He was not able to return to work. He was able to do some things of a minor nature to assist his wife but had to abandon most previous activities. He abandoned a plan to buy land and build a house on it. He had intended to do the carpentry work for it.

51. He has developed high blood pressure. He has habitually taken pain killers. They have helped to ease his back pain to a degree but have resulted in stomach trouble.

52. The back pain is aggravated by sitting still, work activity, even light work. He cannot walk more than 800-900 metres. He cannot drive a motor vehicle for more than one hour. Sleep is disturbed.

53. The plaintiff has continuing problems with neck and back pain. However, although the neck has been of more concern by reason of pain, the back area is more debilitating from the point of view of work activity.

54. He is now, he claims, totally and permanently disabled for work purposes. He is partially crippled for other purposes.

55. The defendant does not dispute the genuineness of the plaintiff's current disabilities. Its case is that they arise either from a psychiatric propensity to invalidism, natural degeneration or a combination of those factors.

56. Certainly, as Dr Caine noted in his report of 28 May 1984, the plaintiff had consistently complained of lumbo-sacral spinal pain since the accident. It was accepted as being disabling enough to warrant the grant to the plaintiff of an invalid pension.

57. Subsequently, the plaintiff was referred to Dr John Corry, a rehabilitation specialist. In a report dated 4 June 1985, Dr Corry noted that there had been both back and neck pain since the accident. However, no significant joint or neurological abnormalities could be found. X-rays of the lumbar spine dated 11 September 1981 and 2 November 1983 respectively showed "slight lumbar scoliosis but the disc spaces appear normal". The complaints following injury were regarded by Dr Corry as consistent with the suffering of a sudden compressive injury causing minor fractures around the vertebral end plates. However, he considered it "unusual" for there to have been no improvement noticed in the absence of apparent degenerative change.

58. It was Dr Corry's view, as at 4 June 1985, that the plaintiff had "fair prospects" of finding a lighter job. However, he did note that the plaintiff's age, limited education and English language skills were "positive barriers" to finding such work.

59. On 2 February 1988, Dr Corry reported that the plaintiff was then complaining of worsening neck pain. He had suffered a worsening of blood pressure and of left ankle problems. The latter was one of the sequelae of a motor vehicle accident in which the plaintiff was involved about 1969. X-rays taken 9 December 1987 again showed nothing abnormal other than the slight scoliosis already noted.

60. His prospects for employment had, however, dimmed. Dr Corry noted that by then the plaintiff was becoming dominated by his various illnesses. He noted,

"... he has now settled into the life of a chronic invalid and I see
no realistic way this can be altered."

61. In his final report, dated 21 June 1991, Dr Corry confirmed this opinion. He noted that x-rays of the cervical and lumbar spine dated 21 May 1991 showed,

"... moderate degenerative changes with disc narrowing at the C5/6 and
C6/7 level and a little facet joint arthropy at the L5/S1 level."

62. That apparent deterioration was, he considered due to the natural progression of degenerative disease.

63. On 6 February 1986, the plaintiff was examined for medico-legal purposes by Dr William Coyle, an orthopaedic surgeon. Dr Coyle confirmed that x-rays of the lower lumbar spine showed no definite pathology. His explanation for the plaintiff's level of disability was couched in the following terms,

"I felt that Mr Kramer might well have a low pain threshold and that
he also might well be poorly motivated but that his clinical picture
was consistent with organic lumbar spinal pain."

64. Dr Coyle re-examined the plaintiff on 20 June 1991. He had noted the neck pain in 1986 as being "of recent onset". It was his view that neck pain arising then would not be related to the accident. It seems Dr Coyle was unaware of the almost immediate onset of neck pain and occipital pain following the accident.

65. Dr Coyle was more doubtful on this occasion as to whether any of the plaintiff's symptoms were organically based. By then x-rays of the neck, presumably the same as viewed by Dr Corry, had become available. His opinion as to the plaintiff's complaints of back pain was that,

"... Mr Kramer's symptoms are largely if not entirely functionally
based and the result of a personality disorder or illness rather than
of any true spinal disorder."

66. His prognosis was that the chances of meaningful improvement were "nil".

67. The plaintiff was also examined for the defendant by Dr Brian M Andrea, a surgeon. On 4 December 1987, Dr Andrea noted some slight spasm in the para-vertebral muscles. However, Dr Andrea expressed surprise that a musculotendinous strain such as was suffered by the plaintiff could lead to chronic low back pain.

68. Upon re-examination on 24 April 1991, Dr Andrea confirmed his initial opinion. He doubted that the continued invalidism was physically based. Further re-examinations were conducted on 19 August 1992 and 3 February 1994. That produced no change in Dr Andrea's opinion but in his final report he noted that the plaintiff's prognosis for further gainful employment was "hopeless". This was, in his opinion, "largely due to normal degenerative changes together with a major functional overlay".

69. After all these examinations, at least since 1991, it was clear that although some signs could be detected to explain neck pain following and probably caused by the accident, there was no physical explanation for the continuing low back pain.

70. No doubt for this reason, the plaintiff was referred to Dr Hugh Veness, a consultant psychiatrist. He examined the plaintiff on 11 August 1993. He found symptoms of a low grade chronic anxiety state but no significant depression. However, the plaintiff had developed, in his opinion, an entrenched belief in his own invalidity.

71. Dr John Saboisky, another consultant psychiatrist, examined the plaintiff for the defendant on 29 December 1993. His opinion agreed that of with Dr Veness. He found indications of a pain disorder, that is, perception of pain without an adequate organic basis for it. However, he could not provide any convincing reason for development of that disorder. He agreed, nevertheless, that there was little likelihood of improvement.

72. It seems to me that, given the history of complaints of neck and back pain it is likely that a back strain was suffered by the plaintiff in the accident together with some minor damage to the cervical spine. I note that was no prior history of neck or back pain.

73. The gradual worsening of neck pain and the detection of degenerative change in that area seems to me consistent with that degeneration being triggered by the accident at work.

74. The lack of back pathology detected may mean that there is as yet undetected disc damage but it seems more probable that it is a functional overlay which has prevented recovery and entrenched chronic pain. It is clear that no medical opinion would support the likelihood of any significant improvement.

75. Mr Crowe, for the defendant, submits that, so far at least as the low back condition is concerned, the plaintiff should be regarded as having been peculiarly susceptible to exaggerated damage from an injury that would not ordinarily be disabling. The effect of this submission was, he contended, that some allowance should be made for the risk that some other relatively minor injury might have had a similarly exaggerated result.

76. I accept that submission to some extent. It is, however, subject to the qualification that the injury to the plaintiff was objectively severe enough to put him off work for several months. His back strain was severe enough for him to develop this entrenched fear reaction which has, according to both psychiatrists, lead to him regarding himself as an invalid. There is no other factor on the evidence which precipitated that chain of events than the work accident. The chance of a similar event occurring was, I think, relatively low, particularly if another negligent employer is not to be assumed.

77. In all the circumstances, given his level of disability and loss of enjoyment of life, I consider $100,000.00 to be appropriate for general damages. I apportion $70,000.00 thereof to the past. I allow $18,060.00 for interest thereon.

78. So far as economic loss is concerned it is agreed that the particulars annexed to the Statement of Particulars accurately sets forth what the plaintiff would have earned had he continued in the same or similar employment. The net figure projected to the end of June 1994 was $255,415.17. I consider some discount should be applied for various vicissitudes including lack of continuous employment, possible injury and the like. I would allow $216,000.00 in rounded figures, for past loss of earnings. That also takes account of the fact that the estimate is to the end of June 1994.

79. No sum has been paid to or for the plaintiff for compensation so it is appropriate to allow interest at conventional commercial rates on the net past wage loss. That yields a result of $214,070.79.

80. For the future, of course, assuming a present net earning capacity of $25,000.00 per annum, the plaintiff, had he worked to age 65, has a remaining earning capacity valued at approximately $217,000.00. Over the last 10 years of his working life it is obvious that the risks of premature retirement would, to some extent, increase. I consider that a figure of $173,500.00 is appropriate to allow for future economic loss taking account of that factor as well as the usual vicissitudes.

81. There was no dispute as to the plaintiff's out-of-pocket expenses as claimed. I award $2,678.80 therefore. For future medical consultations and medication, the evidence is far from precise, however, a sum of $3,200.00 seems appropriate given the plaintiff's current life expectancy.

82. A sum of $2,654.88 should be added for interest on the $2,678.80 expenses incurred to date.

83. The components of the award are therefore as follows:-

General damages $100,000.00
Interest on amount apportioned to past 18,060.00
Past economic loss 216,000.00
Interest thereon 214,070.79
Future economic loss 173,500.00
Past out-of-pocket expenses 2,678.80
Interest thereon 2,654.88
Future medical and medication expenses 3,200.00
TOTAL - $730,164.47

84. I direct the entry of judgment for the plaintiff accordingly. I will hear the parties as to costs.