John Leslie Ware v Ridge Consolidated Pty Limited [1994] ACTSC 57 (9 June 1994)

SUPREME COURT OF THE ACT

JOHN LESLIE WARE v. RIDGE CONSOLIDATED PTY LIMITED
No. SC912 of 1988
Number of pages - 9
Damages - Negligence

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
HIGGINS J

CATCHWORDS

Damages - assessment - personal injuries - tort - no new question of principle.

Negligence - duty of care - failure to provide safe plant and equipment - contributory negligence - no new question of principle.

HEARING

CANBERRA, 11 May 1994
9:6:1994

Counsel for the Plaintiff: Mr R Williams QC with Mr F G Parker

Instructing solicitors: Gary Robb and Associates

Counsel for the Defendant: Mr W Austron

Instructing solicitors: Hunt and Hunt

ORDER

THE COURT ORDERS THAT:
There be judgment for the plaintiff in the sum of $664,215.08.

DECISION

HIGGINS J This is a claim by the plaintiff for damages for personal injury caused as a result of an accident at work on 4 September 1987.

2. There was no dispute as to the circumstances of the accident. The plaintiff was aged 40 years at the time. He was an experienced plant operator. He had attended work at 6.30am at the Mugga Lane rubbish tip. It was his duty to operate an International TD 20 bulldozer. His first task was to check the oil, grease the machine, start it and let it idle for about 30 minutes, then he could operate it. The operating of the machine involved pushing and compacting dirt over rubbish.

3. Normally, he would have been given his instructions as to what work he was to do by the foreman, Jerry Walsh, at about 7.00am. On this day, the foreman did not arrive until about 8.30am. The plaintiff, whilst awaiting his arrival, continued with the work he had been engaged upon on the previous day. Weather conditions had been wet. The dirt being pushed around was, in fact, mud.

4. The foreman stopped his utility some distance away. He gave the plaintiff a signal which indicated that he should shut down the motor and come to him.

5. The plaintiff shut the motor off and went to alight from the left hand side of the bulldozer. The left hand side was really his only option. There was deep mud on the right hand side and, in any event, the foreman had approached towards the left side of the bulldozer.

6. The plaintiff followed what he understood to be the usual method of dismounting from the bulldozer. There was no doubt that this was a potentially dangerous exercise. The driver's feet, whilst that person was sitting at the controls, were approximately 1.6 metres above ground level. The method described by the plaintiff was first to step from the cabin floor onto the track of the bulldozer. That was a step down of 45cm. It was accomplished facing out. There were no handrails to grasp in carrying out that manoeuvre. From the track, the next step was onto the blade arm which was the main support raising or lowering the blade. That was a step down of 59cm. The next step down would be to the ground. If the ground was level that step would be 56cm.

7. As the plaintiff stepped off the track intending to step onto the top surface of the blade arm, his trailing left foot slipped off the muddied steel surface of the track. The plaintiff fell to the ground landing heavily on his right leg. He was wearing standard steel-capped working boots. Effectively, the slip caused him to miss a step.

8. The plaintiff attempted to get up. He felt as if he had sprained his right ankle. He testified that had handrails been provided, he would have used them to assist his egress. Before this accident he had driven plant which had been equipped with handrails.

9. As it happened, the injury turned out to be much more serious than a sprain. It was, in fact, a comminuted fracture of the lower third of the right tibia and fibula with involvement of the ankle joint.

10. The defendant both disputed liability and alleged contributory negligence.

Liability
11. There was no dispute that it was the duty of the defendant employer to provide safe plant and equipment. It is obvious that ascending and descending to and from the cabin of heavy plant involves a risk of injury unless suitable steps and rails are provided. Those steps may, of course, include portions of the machinery relevant for other purposes. However, if portions of the machine such as the track and blade arm are used as steps, it is also obvious that their surfaces cannot be modified to make them slip-proof. They are of smooth steel. In muddy and wet conditions they will clearly become even more slippery. To avoid or reduce the risk of slipping, handrails would seem an obvious precaution.

12. Dr Neil Adams, an ergonomics and industrial safety expert, supported that view. His preference was for a pair of handrails able to be grasped from ground level and held until the operator was in the cabin. They would then be equally available for a descent to ground level. A pair of rails would encourage descent facing inwards which was ergonomically more sound than descending whilst facing outwards.

13. It was pointed out, by Mr Austron for the defendant, that although the theoretical desirability of handrails may be obvious, though he did not concede that it was, Dr Adams lacked the necessary expertise to comment on the practicability of installing such handrails on the machine from which the plaintiff fell.

14. After the matter was adjourned on 7 October 1993, still in the plaintiff's case, Dr Adams found a vehicle which was, from its appearance, a TD 20E. This was the same type of machine being used by the plaintiff when he was injured. He attended with Mr Doug Rann, a consulting engineer. Their reports, including photographs of the machine, were tendered on 11 May 1994.

15. The bulldozer inspected, interestingly, had a handrail fitted to the control console facing out on each side. It extended to the cabin floor. It enabled the operator to grasp it whilst ascending or descending.

16. Dr Adams would have preferred two rails. One fixed to the canopy post to the side of the cabin on the access space, the other to the side of the control console on the other side of the access space. The rails would extend to the floor of the cabin. They could be grasped then from ground level. Mr Rann was of the view that it was practicable to attach rails as described by Dr Adams. It would not compromise the safety of the canopy structure which was designed to act as a "roll-bar" to protect the operator in the event of the bulldozer turning over.

17. However, whilst a pair of handrails as proposed by Dr Adams would have provided optimum protection for the plaintiff, the installation of a rail, depicted in the reports of Dr Adams and Mr Rann as already installed on the TD 20E actually inspected, would, in Dr Adams' opinion, have significantly reduced the risk to the plaintiff of being injured as he was. I accept that opinion. It is, in any event, an obvious conclusion.

18. As at 4 September 1987, the need for attention to be given to safety in ascending or dismounting heavy plant was clearly recognised. There were handrails in common usage prior to the plaintiff's injury. It would have been inexpensive and practicable to install rails of the kind referred to in the expert reports of Dr Adams and Mr Rann. At least the handrail shown on the TD 20E inspected by those experts could have been installed.

19. In my view, a careful employer would have given attention to the proper installation of handrails on this bulldozer well before the accident.

20. If this defendant had done so, it is probable that this accident would have been avoided.

21. It follows that the defendant is liable for the personal injury sustained by the plaintiff and for damages consequent thereon.

22. Contributory negligence was pleaded. It was not stressed by counsel for the defendant in his final address. There is no evidence from which I can conclude that the plaintiff failed to exercise due care in alighting from the bulldozer. The absence of handrails is not something for which the plaintiff could be held responsible. The presence of mud increased the risk to a considerable degree. It is true that the presence of mud was known to the plaintiff. That was, however, a feature of the plaintiff's duties from time to time. He could not do anything to avoid that increased risk and still engage in his employment as required by the defendant. I decline to find contributory negligence.

Damages
23. The plaintiff was conveyed by ambulance from the work site to the Woden Valley Hospital following his fall. He was in severe pain.

24. Dr Kitchin treated the fractures. When the plaintiff was discharged from hospital on 16 September 1987, his right leg was encased in plaster from his toes to his thigh. He could get around only on crutches.

25. About three months later the cast was changed to a short cast up to the knee. Following removal of a pin, a weight-bearing cast was substituted. That cast was in place for the next nine months.

26. The union of the relevant fractures was slow. Union was still incomplete by 9 February 1988. His recovery was complicated by steroid medication he had to take for asthma. He was given an external bone growth stimulator which had probes inserted into the leg to aid the healing process.

27. He was experiencing severe pain still in the lower leg. He felt unsteady on the crutches, particularly on stairs.

28. In October 1988, Mrs Beverley Ware, the plaintiff's wife, went into hospital. She had a serious operation. On her return home, the plaintiff had to attempt more of the household chores. Mrs Ware was incapacitated and had been advised to rest for six weeks.

29. On 21 October 1988, the plaintiff was attempting to take out to the garbage bin, a small bag containing vegetable scraps. He had to negotiate four steps from the back door to the patio area. He put his right foot onto the first step, the next thing he found himself at the bottom of the steps. He had fallen. He noticed that his right knee now hurt. It is not certain whether he slipped on the steps or his leg gave way. The former hypothesis is more favourable to the defendant. However, it is not suggested that the fall was occasioned by reason of any defect in the steps, the crutches or the cast then in place on the plaintiff's right leg.

30. The plaintiff was taken to Royal Canberra Hospital. X-rays revealed that he had sustained fractures of the right femur, the neck of the fibula and of the patella. Again, the leg had to be fully immobilised. The plaintiff was hospitalised for 10 to 12 days. The full cast was removed after about four months. Physiotherapy treatment followed for about six weeks.

31. Since the fall, the plaintiff has had chronic pain and stiffness in the knee area.

32. There was a further knee operation on 1 September 1989. He was then hospitalised until 20 October 1989. On 20 March 1991, the plaintiff was admitted to John James Hospital. The right patella was removed. The plaintiff was discharged on 25 March 1991. The plaintiff's reliance on crutches was not diminished as a result of these operations.

33. During March 1992, the plaintiff endured operations to remove plates from his right knee and right ankle. In June 1992, the knee collapsed. An evulsion fracture was diagnosed. He was again in plaster until 10 August 1992. Physiotherapy and pain-killing medication have continued.

34. The plaintiff's right leg remains seriously disabled. It is very stiff at the knee and ankle. It aches. He keeps it raised when sitting to minimise pain. The right knee has, however, become less painful.

35. It suffices to say that the plaintiff is, literally, semi-crippled. All aspects of his life are made more difficult and painful. He cannot engage in physical labour. He will need, in due course, a knee reconstruction and an ankle fusion.

36. The plaintiff does not have any clerical skills. He can barely read and write. He has, relatively recently, taken up welding. That seems to be more of a hobby than a marketable skill.

37. There were other health problems the plaintiff had. He suffers from asthma, as I have noted.

38. In 1968, he had a back injury. He was off work recuperating for six weeks. It does not seem to have seriously troubled him since then. The plaintiff had worked on heavy plant for over 20 years prior to this accident. There were periods of time when he was unemployed but he usually managed to find work quickly. He did work as a rouseabout in a shearing shed at one stage.

39. The plaintiff did concede that he could presently be suitable for the job of gatekeeper or ticket collector if such a job was available.

40. Mrs Ware confirmed his general level of disability. She also confirmed the circumstances in which the plaintiff came to fracture his knee in October 1988. She gave evidence of the extent to which her contribution to household work had been increased by reason of the plaintiff's disabilities.

41. The medical condition of the plaintiff was not seriously in question, although there was some evidence tendered on behalf of the defendant addressing the extent of the plaintiff's disability. It was submitted that the plaintiff had shown an insufficient inclination to engage in at least some employment. It was further submitted that, given his other health problems and the nature of his employment, he would probably not have worked until age 65.

42. It is necessary, therefore, to review the medical evidence.

43. Dr Kitchin was the treating orthopaedic surgeon. It is unnecessary to detail the various procedures he performed upon the plaintiff. By 25 September 1990 (sic, this should have read "May" in Dr Kitchin's report of 21 June 1990), Dr Kitchin had formed the view that the plaintiff would be "highly unlikely" ever to be fit to return to his occupation as a plant operator. That position was largely contributed to by the further fall on 23 October 1988. Further osteoarthritic change was considered "highly probable".

44. By 21 October 1992, Dr Kitchin was able to report,

He is not fit for his pre-injury work as a Plant Operator, because of
lack of any other form of formal training, he would have difficulty in
finding sedentary work.

45. In his final report, Dr Kitchin noted the onset, by 14 September 1993, of secondary osteoarthritic changes in the right ankle. He was then of the view that the plaintiff would require further treatment to the ankle joint.

46. Dr Kitchin also gave evidence. He confirmed the likelihood of ankle fusion. A knee replacement, he felt, was also a likely option. In each case, the indication would be that pain had become intolerable otherwise. There was some risk of nerve damage and leg muscle wastage from continuing use of crutches.

47. Dr Peter Morris, an orthopaedic surgeon, was asked by the plaintiff's solicitors to review him for medico-legal purposes. Dr Morris reported that as at 1 March 1993,

...this man remains with severe disability in his right knee and ankle
and he will never be in the position to undertake physical work again.

48. Dr Morris regarded the knee injury as a direct result of the preceding ankle fracture and use of crutches. He felt ankle surgery was a "long term" requirement. He hoped knee surgery could be postponed for 5-10 years. In a subsequent report, Dr Morris indicated that the cost of a fusion would be about $7,000.00 and a knee replacement $10,000.00.

49. In evidence, Dr Morris also referred to the plaintiff's weight problem. He considered that the problem was exacerbated by the plaintiff's need to take steroids to control his asthma. As his physical activity was limited then, whilst he would benefit from weight loss, it was unrealistic to regard that outcome as practicable.

50. Dr Morris did not consider any real improvement in the employability of the plaintiff to be likely.

51. The plaintiff was assessed, also, at the request of the plaintiff's solicitors, by Dr D G Macleish, a consultant surgeon. This was, for the most part, merely confirmatory of previous medical examinations. Dr Macleish considered that even with future surgical treatment, the plaintiff would be left with a "serious handicap" in the right leg.

52. There were reports from two specialists in occupational medicine. The first was Dr David McGrath. He estimated the permanent impairment of the plaintiff's right lower limb at 25%, being a 10% impairment relative to the whole body. Whilst concluding that operating machinery requiring foot control would be out of the question, Dr McGrath did conclude that other occupations may be open to the plaintiff. He did not specify which occupations but recommended further assessment for the purpose of identifying those occupations.

53. The second report was from Dr J Olsen. Dr Olsen assessed the plaintiff on behalf of the defendant. In his report of 2 February 1993, he expressed the opinion that the plaintiff was fit for any work not involving standing. He could not tolerate "constant standing or walking". The report also concluded that,

His background is limiting, he has almost no education and certainly
no training or other qualifications. His experience is in jobs that
will not be suitable for him in the future such as station hand and
plant operator.

54. With a properly structured rehabilitative program, Dr Olsen considered that the plaintiff might be able to undertake suitable occupations such as a stores person, assembly work, some process work, machinist. Driving might also be possible, other than in respect of a vehicle requiring use of the right leg.

55. Dr Olsen also gave unsworn evidence by telephone. Mr Williams QC, for the plaintiff, suggested to Dr Olsen that, given all of the plaintiff's disabilities and his lack of education and training, his prospects for employment were "pretty grim". Although his response to that suggestion was somewhat lengthy, Dr Olsen did agree that the plaintiff's situation was "very difficult".

56. On the whole of the medical evidence, it seems to me that some conclusions can safely be drawn.

57. First, although it was submitted that the fall experienced by the plaintiff on 21 October 1988 should not be regarded as causally related to the ankle fracture of 4 September 1987, I cannot accept that submission. The plaintiff was not doing anything fool-hardy or unusual when he fell. He was engaged in a normal household chore. He was not advised to avoid steps entirely. The risk of falling whilst on crutches was an ever present risk. It arose because of the original injury.

58. Second, until further operative treatment takes place in 5-10 years time, the plaintiff's pain will worsen as osteoarthritic changes progress.

59. Third, until then, and even after then, the plaintiff's prospects for gainful employment are slight.

60. Fourth, there are some prospects for increased mobility but it will not be substantial.

61. Finally, I note that some of the plaintiff's disabilities are the result of or contributed to by his asthmatic condition. However, his pre-accident work history suggests to me that he was able to cope with that without diminution of his work capacity. His capacity to exercise has been greatly diminished by the accident. Accordingly, his need to take medication for his asthma obviously creates further disability. That further disability is also a consequence of the right ankle injury.

62. I would award damages as follows,
General Damages
For pain and suffering, loss of amenities and for disabilities, I award $125,000.00 of which I consider 60% should be apportioned to the past. I allow $6,750.00 for interest thereon.

Economic loss
63. Past and future wage loss were calculated to the date of trial. It is convenient to calculate the award for this head of damages as at that date. The past wage loss was $171,601.20 (net of taxation). It is apparent that had the plaintiff not been injured, he was at risk of losing some time from work over the past 6.58 years before trial. However, having regard to his pre-accident work history and Mr Zeltner's evidence about work availability for plant operators, I consider 10% to be an appropriate allowance for that contingency. It is a larger allowance than usual because of the greater than usual health risk the plaintiff suffered from.

64. I award $154,440.00 on account of past wage loss.

65. For interest thereon, after deducting compensation paid in the sum of $88,286.29, I allow $31,670.00.

66. A further sum of $13,000.71 is to be allowed for the tax paid on the compensation payments made to the plaintiff. There was no request to allow interest on that sum.

67. Future wage loss to 65 years, the plaintiff being aged 46 at trial (18.25 years to retirement) would be $325,105.55. A greater than usual discount should be allowed against that figure because of the risk that the plaintiff might not work until 65 years and, although it is a lesser risk, could have been forced to retire even before 60 years by reason of his health disorders.

68. I award $217,820.00 for this head of damage.

Past and Future domestic assistance.
69. I accept that two hours per week as claimed represents no less than the actual assistance rendered. The figures will, however, need to be discounted. For the past, there was the four week period, it should have been six but for the plaintiff's fall on 21 October 1988, when Mrs Ware was herself disabled. That period should be disallowed. Further, there was a demonstrable risk that the plaintiff would have required some domestic assistance because of his health problems in any event particularly in the future.

70. I award $9,100.00 for past assistance and $30,000.00 for the future.

Out-of-pocket expenses
71. The past expenses relating to the right leg injuries are agreed, as a matter of mathematics, at $60,284.37. I see no reason why that figure should not be allowed in full.

72. Future expenses need to be discounted to take account of the fact that vicissitudes will affect future medical expenses. Further, the present value of adverse future operative costs needs to be adjusted to reflect the present value of that future expense. I award $3,400.00 for the former and $12,750.00 for the latter.

73. The total of the above items is as follows,

General Damages $125,000.00
Interest on past component 6,750.00
Past wage loss 154,440.00
Interest thereon net after compensation paid 31,670.00
Fox v Wood component of compensation paid 13,000.71
Future loss of earning capacity 217,820.00
Past domestic assistance 9,100.00
Future domestic assistance 30,000.00
Past out-of-pocket expenses 60,284.37
Future medical and operative expenses 16,150.00
TOTAL $664,215.08

74. There will be judgment for the plaintiff in the sum of $664,215.08. I will hear the parties as to costs.