Slobodan Grbavac v Dj Dempsey Landscaping Pty Limited [1996] ACTSC 20 (4 April 1996)

SUPREME COURT OF THE ACT

SLOBODAN GRBAVAC v. D.J. DEMPSEY LANDSCAPING PTY LIMITED
No. SC 643 of 1994
Number of pages - 7
Negligence

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
MILES CJ

CATCHWORDS

Negligence - industrial injury - plaintiff claims he was required to lift hardwood sleepers without assistance - conflict in evidence - claim not proved - no question of principle.

Negligence - industrial injury - plaintiff with nearly 40 years of experience as manual worker - allegation of failure to instruct in techniques of lifting and failure to warn of risk of injury - absence of instruction and warning involved no want of reasonable care - high contributory negligence in any event.

HEARING

CANBERRA, 16-17 October 1995
4:4:1996

Counsel for the plaintiff : Mr. F.G. Parker

Solicitors for the plaintiff : Gary Robb and Associates

Counsel for the defendant : Mr. M. Robinson

Solicitors for the Defendant : Crossin Barker Gosling

ORDER

THE COURT ORDERS THAT:

There be judgment for the defendant.

DECISION

MILES CJ The plaintiff sues the defendant in negligence for personal injuries sustained whilst employed by the defendant as a concrete finisher and labourer. The plaintiff alleges that he was injured on or about 14 July 1993 when he was required to lift hardwood sleepers on to a truck without assistance. The defendant does not dispute that if the plaintiff in fact received injury in the way he claims, then he is entitled to damages for the defendant's failure to provide a safe system of work. But the defendant disputes that he was required to lift the sleepers without assistance, that he in fact did so and that he received injury at all.

2. Because the plaintiff's credibility is challenged, it is appropriate to consider the evidence as a whole before deciding what is the issue first and foremost, namely whether the plaintiff was required to lift the sleepers alone and without assistance.

3. The plaintiff is aged 62 years. He came to Australia from Croatia in 1960. He worked at first on the Snowy River Scheme and then for many years as a maintenance man at the Royal Canberra Hospital at Acton. When the hospital was closed down he joined the defendant in November 1991. He continued working for the defendant until he finished on 14 December 1993. He has not worked since. The cessation of work and the circumstances in which it occurred need to be seen in the light of his previous work history and apparent good health.

4. The plaintiff had been a vigorous participator in such sports and physical activities as exercising with weights, judo, tennis, table-tennis and pistol shooting. However, he did not state in his evidence-in-chief that he had ceased these activities well before the time of the alleged injury. He made that concession during cross-examination.

5. The plaintiff also said in his evidence-in-chief that he never had any back trouble prior to the alleged injury. But Dr Ferguson gave him a certificate dated 8 November 1992 stating that the plaintiff was "suffering from back and hip pain and is unfit for work from 9.11.92 until 13.11.92 inclusive". This period was little more than six months before the alleged injury and contradicts the plaintiff's evidence that he had complained only about his hips and bladder problems. It is of course possible that the doctor made an inaccurate note or obtained an inaccurate description of symptoms. But the certificate needs to be seen in the light of the other evidence.

6. According to Mr. Dempsey, a director and the effective owner of the defendant company (whose evidence on this aspect I have no hesitation in accepting), the plaintiff began to express dissatisfaction with his work by November 1992. The plaintiff expressed lack of satisfaction about his rate of pay. According to Mr. Dempsey the plaintiff "took a week off and came back with a certificate from Dr Ferguson". By this time the plaintiff's work output as a concrete finisher was diminishing. Mr. Dempsey tried to discuss with the plaintiff a program of carrying out lighter duties on the landscaping side of the business at one of the various sites at which the defendant was operating, with a bonus for such times as the plaintiff was engaged in concrete finishing. The plaintiff continued to carry out concrete finishing duties from time to time and in particular on a project at Monash. The work at Monash had been proceeding for some two years and was winding down at the beginning of July 1993. The defendant began to concentrate on another job at Palmerston, on the other side of Canberra. Mr. Dempsey enquired from the plaintiff from time to time in the first half of 1993 as to how he was coping and the plaintiff's usual reply was that he was "okay but that he was very tired". The plaintiff's work output continued to decrease.

7. The job at Monash consisted of landscaping in association with some roadworks. For the purpose of storage of equipment and materials, the defendant occupied some land which it enclosed with wire fencing. This area with the materials, equipment and fencing was known collectively as the yard. By early to mid-July the Monash job was nearly finished and the defendant decided that it was time to start moving the yard to the other job at Palmerston. The materials remaining in the yard included some hardwood sleepers. The job at Palmerston did not require any sleepers. Mr. Dempsey gave instructions for the sleepers to be loaded onto a truck and taken to his house nearby and off-loaded there.

8. The plaintiff said in his evidence that there were about 30 sleepers to be loaded onto the truck. Mr. Dempsey said that there were about seven. Mr. Jeffrey Hargreaves, the foreman, said that there were seven to ten sleepers on the site. The plaintiff told Dr Neil Adams that there were approximately three dozen sleepers.

9. Mr. Hargreaves, who was in charge of the operation on the day, said that the team that moved the sleepers consisted of himself, Glen Kyloh, Brian Lawrence, Maureen Devoy and the plaintiff. Mr. Dempsey's diary contains a note that on 14 July, the date alleged by the plaintiff, the persons working at Monash were the plaintiff, Maureen Devoy and Brian Laurence only. Mr. Hargreaves was noted in the diary as planting shrubs in the Belconnen area. The plaintiff's evidence was that the persons present were himself, Maureen Devoy, Brian Laurence, Mr. Dempsey but not Jeffrey Hargreaves. He added that there was a fifth person, Ricky Stretton, who helped him to move some of the sleepers.

10. Ricky Stretton himself gave evidence that he was absent on extended leave from mid-July to early September and that he had nothing to do with the moving of the yard. This was confirmed by Mr. Dempsey. There is no reason to reject that evidence.

11. Mr. Dempsey gave further and unchallenged evidence that invoices showed that concrete was poured at Monash each day from Wednesday, 14 to Saturday, 17 July 1993. As the plaintiff was in charge of the concrete pouring, this would suggest that the plaintiff would not have been engaged in shifting the yard on 14 July. The diary also shows that the plaintiff was at Palmerston on 13 July. Mr. Dempsey says that he remembered "delegating" the work of shifting the yard to Brian Lawrence, Jeffrey Hargreaves, Maureen Devoy, Glen Kyloh and the plaintiff, that the truck arrived with the contents of the yard at Palmerston, but without the sleepers, and that the sleepers were at his house that evening when he arrived home. Otherwise, however, he is not able to shed any light on the date the yard was shifted. He was adamant that he himself was not present except to the extent that he gave instructions for the work to be commenced at the beginning of the day.

12. I accept the evidence of Mrs. Grbavac that the plaintiff had been working for the defendant for some two years when he came home one evening complaining of pain in the lower back area. How Mrs. Grbavac was able to put this event at mid-July 1993 is not exactly clear, but she said that she was in hospital about two weeks later and that fact may have assisted her to fix the date of the first complaint of back pain. She also said that the plaintiff said that he had hurt himself when he was putting a "sleeper or something" on a truck. She gave him some of her own pain-killing medication and sedatives to ease the pain. I am disposed to accept Mrs. Grbavac's evidence. But it is significant that the plaintiff did not tell her that he had hurt his back when he was required to lift the sleepers alone. The evidence of Mrs. Grbavac that the plaintiff had not made any previous complaint of back pain to her and that the plaintiff went to Dr Ferguson "for his bladder" sits oddly with the doctor's certificate but is not entirely inconsistent with it.

13. The plaintiff claimed that at the time of his alleged injury he put his hand on his back in order to attract attention and to indicate to his fellows that he had injured himself, that he continued to work in pain for the rest of the day having been given light duties. He also claimed that when he arrived next morning, some of his fellow workers spoke to him about the injury. He said that "everyone knew I'd hurt my back". He claimed that he continued working the next day, smashing concrete with a sledge-hammer.

14. The evidence of the other workers was that they remembered nothing of any incident in which the plaintiff hurt his back, that he participated with them in the lifting of the sleepers, and that no one was required to lift any of the sleepers without assistance.

15. If it is true, as I find, that there were only seven sleepers to be moved amongst five people, it was hardly the sort of operation that of itself would have required a great deal of time or attention. If the plaintiff had been injured and attracted the attention that he claimed, it is unlikely that that aspect of it would have been forgotten.

16. The plaintiff also claimed in his evidence that he repeatedly asked Mr. Dempsey for a claim form for his injury, but that Mr. Dempsey kept putting him off until the plaintiff threatened towards the end of the year to take the matter to the union.

17. Mr. Dempsey said in his evidence that the first he heard of any injury to the plaintiff was on 14 December 1993, although he conceded that the plaintiff could have raised it with him earlier. Mr. Dempsey also recollected that when the plaintiff made the request to him on that date, it caused him to recollect that Maureen Devoy had told him something earlier about an incident involving some distress to the plaintiff's body at the time of the moving of the yard. Mr. Dempsey appears to have related that piece of information to the plaintiff's decreasing work activity over the preceding five months.

18. Mr. Dempsey's evidence about the recollection of what Ms. Devoy had told him was not entirely satisfactory. Ms. Devoy was not called and there was no explanation for her absence. However, it is not clear whether what she told Mr. Dempsey, whatever it was, was a matter of her own observation or of relating what the plaintiff had told her. I draw no inferences from the absence of Ms. Devoy. The plaintiff's evidence that he repeatedly sought a claim form cannot be related to any loss of time from work or the incurring of medical or other expenses. In any event, on 14 December Mr. Dempsey assisted the plaintiff to complete a claim form. On that day the plaintiff also ceased work and it appears, and I so find, he then consulted his doctor for the first time.

19. Mr. Dempsey was cross-examined to suggest that the words appearing in the claim form were not those of the plaintiff and to that extent are misleading. It may well be that the suggestion is correct. It would be highly unlikely that the claim form is in effect a transcript of the plaintiff's words no more and no less. But I am satisfied that Mr. Dempsey did his best in the circumstances to record accurately what the plaintiff told him.

20. The claim form (Exhibit 2) included the following:

"Date of injury: ? July 1993

Day of week: (not completed)

Time: (not completed)

When did you report accident? (not completed)

If injury was not reported immediately state reason: Just felt
pain didn't think major problem.

Name of witnesses: Brian Laurence, Ricky Stretton, Marueen
Devoy, Denis Dempsey.

How did injury occur? We were cleaning up site yard, moving old
materials. We carried the sleepers by two people, however there
were five of us - I picked up sleeper on my own, I felt back pain
but as job was finished didn't make fuss."

21. The plaintiff saw Dr Herath of Isaacs on 23 December 1993 and obtained a "certificate of sickness" with repeats on 11 and 21 January 1994.

22. On 17 January 1994 the plaintiff sent the defendant a letter prepared on his behalf by his daughter. That letter makes reference to lifting a load of hardwood sleepers onto a truck in the presence of "co-workers Ricky, Maureen, Brian and Dennis". There is, however, no allegation in the letter that the plaintiff was required to lift the sleepers without assistance or that he did in fact do so.

23. In the reports from the various doctors, the plaintiff appears to have been consistent in his history that in July 1993 he felt pain in his back when lifting sleepers. But there is no consistency on whether he was required to do so without assistance or on whether he felt pain during a particular manoeuvre or simply at the end of the episode. In particular there appears to have been no allegation of lifting sleepers without assistance to the doctor who first saw him, Dr Herath. The somewhat dramatic account recorded by the Canberra Medico-Legal Associates on 27 May 1994 has the plaintiff lifting two or three sleepers by himself with a sudden onset of severe back pain whilst bending over the last one to be lifted.

24. The plaintiff was interviewed by an ergonomist, Dr Neil Adams, in the plaintiff's solicitors' office on 4 July 1994. The plaintiff told Dr Adams that on the day in question, between 7 and 14 July 1993, there were approximately three dozen sleepers to be loaded onto the truck, that the plaintiff assisted in lifting and loading most of them and had lifted two beams unaided. As he was raising a third beam unaided to chest height, he felt what he described as "something cracked in my back". On the assumption that these were the facts, Dr Adams gave an opinion favourable to the plaintiff's case on the issues of causation, probability/foreseeability and preventability. If the assumptions made by Dr Adams are incorrect, as I think they are, it becomes difficult to find a basis for his opinions. In any event, it was conceded by the defendant that if the plaintiff had been injured in the way he describes, the defendant was liable in negligence. The evidence of an ergonomist was unnecessary.

25. One matter which emerges relatively clearly is that, whatever the cause, the plaintiff's work output was declining in the second half of 1993 and this caused tension between his workmates, his employer and himself. The parting of the ways on 14 December 1993 was mutually acceptable to all.

26. Another matter which must be mentioned is that a videotape of the plaintiff's activities in his garden show no signs of particular discomfort or the symptoms described in his evidence whereby he presents himself as a man incapable of carrying out most of such activities.

27. I take into account that the plaintiff's first language is not English and that he may well have difficulty in expressing himself in that language. His wife did not suffer the latter disadvantage. Whatever the plaintiff's lack of language skills, they cannot explain the various inconsistencies in his case as he would have it presented. I am satisfied that it is likely that something happened at his work on the Monash site on a day in July 1993 when sleepers were being loaded onto a truck. Whatever the nature of the incident, it resulted in pain to the plaintiff's back some time that day. On the plaintiff's own account it was insufficient to stop him working. I am not satisfied that any of his co-workers observed an incident resulting in immediate and obvious pain. I am not satisfied that the plaintiff was required to lift any of the sleepers on his own without assistance. I am not satisfied that Mr. Dempsey or Mr. Ricky Stretton were present. I am satisfied that reasonably adequate assistance was available. I have regard to the possibility that there may have been an incident in which a sleeper having been loaded onto the truck, the plaintiff did something to adjust its position and in that particular operation his fellow worker did not lend assistance. However, although the particulars of negligence may be sufficiently wide to cover that possibility, they do not focus upon it and in any event I would not be satisfied that the hypothesis itself proves absence of reasonable care on the part of the defendant. For the purposes of an action in negligence an employer is not required to take more than reasonable steps to secure the safety of an employee. A workplace is not to be equated with a children's playground or a prison exercise yard.

28. I am not satisfied that the plaintiff was under any undue pressure on the day in question, although it is obvious that there was a job to be done. In my view, the defendant supplied sufficient assistance to the plaintiff, and indeed to all the employees engaged in the work, to get it done without unacceptable risk of injury.

29. I reject the submission that the defendant should have instructed the plaintiff in the technique of safe lifting, or should have warned the plaintiff of the particular risk of lifting or moving sleepers without assistance. The plaintiff was an experienced manual worker with some 40 years in the workforce. The plaintiff himself was in charge of the concreting, which is a form of heavy manual labour. Mr. Dempsey, who had some training and experience in occupational health, said that he did not think that the plaintiff required any particular instruction having regard to his previous work history.

30. Fundamentally I reject the plaintiff's account of how he came to injure himself, if indeed he did so. Consequently I do not think that any purpose is served by assessing the damages provisionally. If in due course I am shown to be wrong in my assessment of the plaintiff, no doubt the damages will have to be calculated with that in mind. In any event, I would have thought that if the defendant was negligent in allowing him to be injured in the way he claims, then the plaintiff bears a substantial share of responsibility by failing to take reasonable care for his own safety. In other words, instead of lifting a sleeper on his own, he could have asked one of the people who were there to help him to do just that.

31. There will be judgment for the defendant. Unless the parties wish to be heard, I order the plaintiff to pay the defendant's costs.