Hans Schmidt and Partners (ACT) Pty Limited (In Liquidation) Vdane Stephen Zunic [1994] ACTSC 58 (17 June 1994)

SUPREME COURT OF THE ACT

HANS SCHMIDT AND PARTNERS (ACT) PTY LIMITED (IN LIQUIDATION) v.DANE STEPHEN
ZUNIC
No. SCA116 of 1993
Number of pages - 10
Negligence

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
MILES CJ(1), HIGGINS(2) AND DAVIES(3) JJ

CATCHWORDS

Negligence - liability of employer for injury to employee - appeal from decision of the Master in favour of the employee - whether the Master acted on evidence inconsistent with facts established by the evidence - whether the Master failed to use or misused the advantage of seeing and hearing the witnesses - appeal court will not disturb finding as to credibility of witnesses.

Negligence - liability - whether employer was negligent in failing to provide adequate safety mechanisms on scaffolding - mere fact of the existence of a practical method of minimising the risk is not sufficient to establish liability - must show that the failure to adopt the method was unreasonable.

Negligence - Scaffolding and Lifts Regulations - breach of statutory duty to provide safety mechanisms - not necessary to consider issues of practicality and reasonableness.

Scaffolding and Lifts Act 1957, ss. 4, 7
Scaffolding and Lifts Regulations, reg 73

Australian Iron and Steel Pty Limited v Ryan [1957] HCA 25; (1956-1957) 97 CLR 89
Devries and Anor v Australian National Railways Commission and Anor [1992] HCA 41; (1993)

177 CLR 472; 112 ALR 641

HEARING

CANBERRA, 24 March 1994
17:6:1994

Counsel for the Appellant: Mr D Nock

Instructing solicitors: Hunt and Hunt

Counsel for the Respondent: Mr G Lunney

Instructing solicitors: Crossin Barker Gosling

ORDER

THE COURT ORDERS THAT:
The appeal be dismissed with costs.

DECISION

MILES CJ I have read the judgment in draft of Higgins J and agree that the appeal should be dismissed. However, there are two matters on which I wish to comment.

2. On the question of liability, I should say that it is not obvious to me (despite the evidence of Dr Neal Adams, whom the defendant's counsel accepted as being "an expert in this field") that a failure to fit a toe-board or a kick-board or a safety rail to the platform on which the plaintiff was working, or to supply a safety harness to the plaintiff, automatically gives rise to a finding of negligence on the part of the defendant employer. For the purpose of proving negligence, it is not enough to show that there was a method of minimizing the risk of injury of the type sustained by the plaintiff, not even if the method be practicable. It must also be shown that the failure of the defendant to adopt the obviating measure was unreasonable in the circumstances. That issue does not seem to have been addressed in the present case.

3. However, there was another issue that was not addressed. The plaintiff's statement of claim relied not only on negligence but also on breaches of the Scaffolding and Lifts Regulations (see Scaffolding and Lifts Act 1957, ss.4, 7). In particular, the plaintiff relied upon a breach of reg.73(1) which required the defendant to provide safe and suitable scaffolding for all work which cannot be done safely by a person standing on permanent or solid construction. The plaintiff relied also upon a breach of reg.73(3) which required the defendant to provide by means of fencing or otherwise for securing the safety of any person working at a place from which he would be liable to fall a distance of more than six feet. Regulation 75 provides, inter alia, that where a working place is required by the Regulations to be fenced, such fencing shall be effected by fastening guardrails and toe or fender boards.

4. Thus there was uncontradicted evidence of breach of both reg.73(1) and reg.73(3), either of which breaches entitled the plaintiff to succeed, relying on the breach of statutory duty and regardless of issues of practicability and reasonableness: Australian Iron and Steel Pty Limited v Ryan [1957] HCA 25; (1956-1957) 97 CLR 89. In my view, a finding of negligence should be reserved for circumstances in which all the ingredients which constitute that cause of action are made out. The Master does not seem to have been asked to make a finding on the alleged breach of statutory duty. In any event, the plaintiff is entitled to judgment on his statement of claim.

5. On the question of loss of earning capacity, I have some difficulty in accepting the approach taken by the Master. For past loss of earning capacity the Master appears to have treated the plaintiff's capacity to earn as restricted to the actual earnings that he received from his activities as a partner in the Subway Tavern and, later, Smokey's Nightclub. For past loss of earning capacity, the Master took the difference between what he might have earned but for injury and what he received for his efforts in the nightclubs. He then discounted that figure by 10 percent for contingencies unassociated with the injury and its aftermath. Allowing for the plaintiff's exaggeration of symptoms both to doctors and to the Court, the extent of physical capacity shown on video tapes, and the nature of the duties he carried out in the nightclubs, it seems to me to be erroneous to regard the value of the plaintiff's residual earning capacity in the past as restricted to what he had been able to draw from the earnings of the partnership. However, this was a matter on which the Master had the undoubted advantage of making his own assessment of the plaintiff, who gave evidence before him.

6. For future loss of earning capacity, as Higgins J has put it, the Master regarded the plaintiff as lacking "saleable economic capacity". In relation to future economic loss, the Master took "the outer limit" of an award based on total incapacity to be $320,825, and, "as a matter of judgment" discounted it to $200,000. Again, whilst I would regard it as improbable that the plaintiff has lost entirely the capacity to earn, it would appear that the end result reflects the residual earning capacity which the plaintiff probably has.

7. Ultimately, whilst I think the award for past economic loss is somewhat more than what I would have awarded, I do not think that it is the role of this Court to interfere in the overall award. The total figure of $553,000 could not be considered as manifestly excessive in view of present day standards of damages for personal injuries. I agree that the appeal should be dismissed with costs.

HIGGINS J This is an appeal from a decision of the Master handed down on 17 November 1993. The Master ordered that judgment be entered for the respondent ("plaintiff") against the appellant ("defendant") in the sum of $553,000.00 plus costs.

2. The plaintiff had claimed to have suffered personal injury in the course of his employment by the defendant on the new Parliament House construction site.

3. His version of the incident was recounted by the Master in the following terms,

"On 30 October 1984 formwork was being constructed on top of
scaffolding to enable a concrete beam to be poured on the site. The
base of the formwork consisted of pieces of ply 1800 by 1200
millimetres, laid end to end, resting on the scaffolding at a height
of about 5 metres above the floor.
The sides of the formwork consisted of formwork shutters, 400
millimetres apart and 700 to 900 millimetres high, extending the
length of the plywood platform.
In order to stop the side shutters from moving apart when the concrete
was poured into the channel that they formed and to enable the end
plates to be fitted to the channel, it was necessary to fix bolts
through from one side to the other at the end of the channel, where
the end plates were to be fixed.
He was instructed to drill the holes through the shutters at the site
of the end plates, with a portable electric drill, fitted with a bit
long enough to pass through both shutters. The drill was 300 to 400
millimetres long, and the bit about 600 to 700 millimetres. The whole
instrument was about a metre in length.
The plaintiff made one pass with the drill, making a hole towards the
top of the shutters, at about mid thigh height. He then began to
drill a hole beneath it, at a height of about 8 inches from the
platform base.
He was standing with both feet on the platform, outside the shutter.
The whole platform was only 1200 millimetres wide. 400 millimetres
was the space between the shutters. The stringers at the outside base
of the shutters were about 100 millimetres thick. There was therefore
less than 300 millimetres, or about one foot, of platform available
for him to stand on. There were no guardrails around the platform, or
any toe boards or kick boards.
Separated from the scaffolding on which the platform was resting was
another scaffold, to about the same height, and a little more than a
metre away.
He drilled the lower hole. His evidence was that he began to withdraw
the bit from the hole that he had drilled, and while doing so lost his
balance and fell towards the scaffolding that was beside him.
As he was falling he put out his right hand, in which he was holding
the drill, and was caught under the right elbow by one of the pipes on
the other scaffold. As he was going down he turned and caught a cross
brace of the scaffold under his left armpit. He felt pain in his
right upper arm and elbow.
A stepladder was brought by fellow workers, he was helped down on to
the floor, and taken to the first aid nurse."

4. There was no direct evidence tendered by the defendant to contradict this version of the incident. The general description of the work place and work operation was not challenged. It followed that there was no contradiction of the proposition that the defendant had negligently created a risk of injury to a worker in the position of the plaintiff by failing to fit a toe board (also known as a kick board) or safety rail to the scaffolding upon which he was working. If, for some reason, those devices were inappropriate, then a suitable safety harness should have been provided.

5. However, the defendant's real contention, before the Master, was that the plaintiff's account of the manner in which he sustained the undoubted injury to his shoulder should be rejected. The view advanced by the defendant was that the plaintiff was injured when the drill-bit caught as he was withdrawing it from a hole he was drilling. The torque of the drill motor and the force it imparted, it was suggested, caused the injury rather than a fall. That is, that the plaintiff had not proved that there was a fall and, therefore, the negligence of the defendant did not cause the plaintiff's injury.

6. The onus was on the plaintiff to satisfy the Master, on the balance of probabilities, that the defendant's negligence had caused the injury of which he complained. It was, clearly, a factual dispute.

7. Mr Nock, for the defendant, conceded that, insofar as the Master's findings of fact were based on the credibility of the witnesses, including the plaintiff, this court would not disturb such findings, even if persuaded that the findings in question were less probable than other findings which were open on the evidence. (See Devries and Anor v Australian National Railways Commission and Anor [1992] HCA 41; (1993) 177 CLR 472.)

8. Mr Nock, for the defendant, accepted that to succeed on its challenge to the Master's finding as to liability, the defendant had to demonstrate that the Master had "failed to use or has palpably misused his advantage" in seeing and hearing the witnesses or had acted on evidence which was "inconsistent with facts incontrovertibly established by the evidence" or which was "glaringly improbable" (per Brennan, Gaudron and McHugh JJ; Devries (supra), 479).

Onus of Proof 9. It was contended by the defendant that the Master had, effectively, reversed the onus of proof. Insofar as the submission suggests that the Master adopted a view of the facts which this Court considers less probable than a contrary view, it conflicts with the view of the majority in Devries and must be rejected. Insofar as it suggests that the Master misunderstood the onus of proof, the submission lacks any support from the terms in which the Master expressed his reasons for decision. Further, given the Master's experience, it is most unlikely that he would overlook or misunderstand such a fundamental legal principle.

10. The real thrust of the defendant's contention, on this appeal, suggests that the Master's acceptance of the plaintiff's account was inconsistent with incontrovertible evidence or that the plaintiff's account was "glaringly improbable" and so, could not have been accepted.

Inconsistency with previous testimony 11. The plaintiff had, on 13 March 1987, given evidence before the Magistrates' Court in support of an application for workers compensation.

12. In the course of that evidence (set out by the Master in his reasons for decision), the plaintiff asserted that he had been drilling when,

"I got twisted by the drill and, you know, because it wobbles and I
just went off the platform ...".

13. It was put to him that there was no mention of any such fall on the accident claim form. The plaintiff explained that he had not filled in the form himself and had not been asked for such details.

14. It was not disputed that the claim form described the accident to the plaintiff in the following terms,

"He was drilling a stop end and the drill twisted and pulled his
shoulder."

15. That description was not written by the plaintiff. The person who wrote it could not recall the source of her information. There was no description of the accident at all in the accident report form. The nursing sister who gave the plaintiff first aid treatment gave no account of having been given a description of the accident by the plaintiff.

16. Dr Dawson, a general practitioner, saw the plaintiff shortly after the accident and recorded that the plaintiff had fallen and caught his elbow on a rail at work.

17. The terms of the claim form could not provide a reason to conclude that the plaintiff's account of the accident was "glaringly improbable". The previous evidence of the plaintiff was, however, significant.

18. The defendant contended that the reference in the plaintiff's previous evidence to clambering back onto the platform from which he had fallen was inconsistent with his evidence before the Master in two respects.

19. First, there was the plaintiff's previous evidence that, "... my partner said to me, he said, "Jesus Christ, you nearly went down" and then I walked down to, you know, with him ...".

20. Second, there was his claim in that evidence that, following his arrested fall, "... I leaned back onto the platform ...". He had agreed that that statement meant that he had clambered back onto the platform.

21. As to the first inconsistency alleged, the evidence of the plaintiff before the Master was that he had been instructed to work at the site in question by his foreman. The area was, it seems, subject to a Union black ban, but he obeyed the instruction. He said (on 2.3.93),

(T.17) "... Well, I didn't like the idea but, you know, he told me,
you know, to go and he gave my other partner something else to do and
I was told to go and drill the holes."

22. His next mention of any other person being present was,

(T.22) "... My recollection is I had people yelling from behind me
and someone come up with a step ladder, put it close to me and kept
saying to me, "Hold on, hold on, I'm coming". So I was holding as
much as I can and then one of the workers come and held me by the
waist and walked me slowly down to - from the ladder ..."

23. In cross-examination, (T.62 ff), the plaintiff was asked about these apparent inconsistencies. He was asked by Mr Nock whether there was anyone else on the platform when he fell.

24. He replied,

(T.68) "Not right next to me but a little further away from me."

25. He acknowledged that he had a "partner" who usually worked with him. He was asked about his whereabouts. He said,

(T.70) "Yes, he was on the platform but he had nothing to do with me
with the job I had to do."

26. The person referred to was known as "Vince". There were, he said, other persons in the general vicinity. He was asked where "Vince" was when he fell. He replied,

(T.71) "He was sort of behind me a bit further away gathering
something you know, doing something. I don't know what he was doing."

27. No person was produced, by either side, who was present at the time of or shortly following the alleged fall.

28. There was no contemporaneous record of the plaintiff complaining of a fall. Conversely, there was no record of the plaintiff complaining of injury in terms which denied that he had fallen from the platform in question.

29. Having regard to the apparent seriousness of the plaintiff's injury, it seems inherently more likely to have resulted from an accident of the kind complained of rather than the torque imparted by the drill on being withdrawn. Further, the dimensions of the drill and bit, as described render it probable that, in withdrawing it, the plaintiff might well have stepped too far back and stumbled over the unguarded edge of the platform upon which he was working.

30. In my opinion, therefore, it cannot be said that the conclusion to which the Master came was so unreasonable as to be appellable. Nor does it seem to me that the Master failed properly to use the opportunity his observation of the witnesses afforded him.

31. I would dismiss the appeal insofar as it challenges the Master's findings with respect to liability.

Damages 32. There was a medical issue raised by the defendant on the trial. However, it was accepted that, following the incident, whatever it was, on 30 October 1984, the plaintiff required treatment for his right shoulder.

33. Dr Dawson, who first treated him, diagnosed a right rotator cuff injury. It was, at first, treated conservatively. On 27 November 1984, Dr Dawson injected hydro-cortisone into the affected area. That treatment did not succeed. Dr Dawson then referred the plaintiff to Dr Morris, a specialist orthopaedic surgeon.

34. The plaintiff was examined by Dr Morris. On 30 May 1985 Dr Morris performed an operation to repair a torn rotator cuff. The plaintiff's right arm was in plaster for two months. He was carefully splinted to immobilise the shoulder. After the plaster was removed the plaintiff continued to complain of shoulder pain and disability.

35. In a report dated 3 February 1986, Dr Morris expressed the opinion that for the "near future" the plaintiff would be unable to return to his previous occupation.

36. In fact, Dr Morris conducted a further operation on 3 July 1986 with a view to improving the plaintiff's range of pain-free movement. However, the plaintiff continued to complain of severe shoulder pain and weakness. Accordingly, Dr Morris referred the plaintiff to Dr Sonnabend, another orthopaedic surgeon. Dr Sonnabend, on examination, found gross wasting of both spinati. He offered an opinion that the plaintiff might have a supra scapular nerve palsy. That was not confirmed upon further examination by Dr Andrews, a neurologist.

37. Dr Coyle, another orthopaedic surgeon, also examined the plaintiff. He suspected that the plaintiff may have suffered a sub-luxation of the shoulder as well as the rotator cuff injury. He noted the shoulder dislocated readily and that there was associated muscle spasm. He referred the plaintiff back to Dr Sonnabend who was a specialist in shoulder injuries.

38. On 23 May 1991, Dr Sonnabend examined the plaintiff's shoulder under general anaesthetic. The rotator cuff repair he found to be intact. An operation was conducted on 31 July 1991. It was intended to correct the dislocation problem. There was, in fact, a defect requiring repair. Dr Sonnabend felt, however, that the shoulder would not permit a full return to manual labour. In his opinion, "strenuous or repetitive overhead activity" was the major limitation.

39. The defendant did not dispute those findings as such. It contended, however, that surveillance of the plaintiff, particularly that conducted and recorded by videotape on 11 and 20 January 1986, demonstrated that the rotator cuff injury was then not troubling the plaintiff. Nor was there any sign of the dislocation related injury. It was suggested that Dr Sonnabend's findings of a second injury would, therefore, be related to an injury after those dates, and not before.

40. The Master concluded that the video showed that,

(AB 1011) "In none of the recorded activity was it possible to detect
any restriction of movement, or any indication that the plaintiff was
suffering any pain or discomfort."

41. On the other hand, the Master noted that the activity was "relatively light". The video does not purport to show any "strenuous or repetitive overhead activity.

42. Nevertheless, the video was accepted by the Master as demonstrating that the plaintiff had a much greater range of movement than he had demonstrated to Dr Morris.

43. To Dr Coyle, the video "did not indicate any disability of the right shoulder at the time it was taken" (AB 1021).

44. Dr Sonnabend, quite apart from the video, regarded the plaintiff as one who "complained inordinately of extraordinary symptoms and pains for which he (Dr Sonnabend) could not find any organic basis" (AB 1024). He regarded the plaintiff as "behaving normally" in the video. He did not consider that it was inconsistent with his complaints of pain. However, Dr Sonnabend was also of the opinion that the operation of May 1985 would not have been performed had the plaintiff demonstrated to Dr Morris the degree of movement he had shown on the video.

45. The Master accepted that the video showed that the plaintiff had been guilty of exaggeration. It raised the possibility that, after January 1986, the plaintiff had suffered some further injury. There was no dispute with Dr Sonnabend's finding of actual pathology on operation. There was evidence from the plaintiff's wife which, if accepted, required a conclusion that complaints of pain and disability had been constant since the incident in October 1984 and, further, that there had been no supervening accident which could explain a second injury, such as would cause the damage seen by Dr Sonnabend. That evidence was not directly challenged.

46. It was concluded by the Master that despite the activity shown on the video and his exaggeration of his symptoms, the plaintiff did suffer sufficient pain and disability to require the operative treatment he underwent. It was also sufficient, in the Master's opinion, to prevent the plaintiff's return to work as a carpenter. It was also accepted by the Master that the physical pain and disability referred to was, at least, partially causative of a severe and continuing depressive state which, in turn, exacerbated the physical symptoms.

47. The defendant's counsel contends that these findings are so at variance with the video evidence that their acceptance amounts to a reversal of the onus of proof in a civil case.

48. That submission, albeit a little dramatically, states, in a different form, the test for setting aside a finding of fact as adopted by the High Court in Devries.

49. The video is objective evidence. It is not, however, capable of demonstrating, beyond controversy, more than the Master inferred from it. It could not, and did not, demonstrate that the plaintiff had no disability. It did not demonstrate that the plaintiff could perform fully his pre-accident duties. It did show that he had exaggerated his level of disability and suffering. A finding of exaggeration would support, but not require, a conclusion that the plaintiff's evidence of ongoing pain and disability should be rejected. That conclusion would also have required the rejection of the evidence to the contrary of the plaintiff's wife.

50. The Master accepted the evidence of the plaintiff and his wife making due allowance for the exaggeration by the plaintiff of his symptoms and disabilities.

51. I am not persuaded that there was any error of principle demonstrated in the Master's conclusions as to the level and cause of the disabilities of which the plaintiff complained at trial.

Economic Loss - The Tavern Business 52. During some of the period following his injury at work the plaintiff worked as a co-proprietor of a tavern. That venture was not successful. The Master considered that the plaintiff's disabilities contributed to that lack of success.

53. Certainly, it was open to the Master to have refused to accept the plaintiff as a witness of truth on this issue. However, his reasons for accepting this aspect of the plaintiff's case were tempered by a realistic appreciation of the limits of the plaintiff's reliability. The conclusion was open to the Master that the loss of earnings from the tavern business was substantially contributed to by the plaintiff's physical and psychological disabilities caused by the accident in question.

54. It was, therefore, open to the Master to conclude, as he did, that the figure of $145,240.00 represented the gross value of the net loss of earnings suffered by the plaintiff. That figure was discounted by a little over 10% for "contingencies". Those contingencies were expressed as including a lack of employment opportunity for other reasons and "other accidents". There was no discount for the possibility of casual employment utilising whatever residual capacity the plaintiff had. He had, in fact, performed some of the functions of a tavern manager for 10 months, albeit with difficulty.

55. However, when turning to future economic loss, the Master did allow for the contingency that the plaintiff might sufficiently recover physical and emotional strength so as to engage in "light bench work".

56. It seems to me, therefore, that the Master accepted that the tavern work had not been demonstrative of a saleable economic capacity. He considered that such a capacity would be a realistic contingency only after some further recovery. Granted the significant psychological component contributing to the plaintiff's disabilities, this does not seem to me to have been an erroneous approach.

57. Accordingly, although observing that I might well have discounted the gross figure for past wage loss to a greater extent than did the Master, I would not consider the difference to be so large as to require a finding that the Master's exercise of judgment was wrong.

58. Adopting a similar approach, I would not interfere with the award for future economic loss.

59. A number of particular findings of fact were criticised by counsel for the defendant. I would simply say that each of those particular findings (see Ground 12) were fairly open to the Master although, as the plaintiff pointed out in submissions, it is questionable whether the Master made all such findings. They are, in any event, subsidiary questions which would be unlikely to affect the final result even if differently decided.

60. I would dismiss the appeal with costs.

DAVIES J I have had an opportunity to read the reasons for judgment prepared by Higgins J. I agree with them and with the orders proposed.