Stojin Susic v Sunset Pty Limited,new Zealand Company Co Limited, QBE Workers Compensation (New South Wales) Limited and Australian European Insurance (Brokers) Pty Limited [1998] ACTSC 232 (5 June 1998)

  
  
  
  

  
   Downlaod RTF

   IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

   MILES CJ

   NEGLIGENCE - employer's
liability - plaintiff injures back lifting
headstone - aggravation of pre-existing degenerative condition - contributory
negligence
- assistance available - neither plaintiff nor defendant thought to
make use of it.

   DAMAGES - plaintiff aged 60 at time of injury
- damages to reflect short
prospective working life ahead.

  

  

   CANBERRA, 17-20 February 1998 (hearing), 5 June 1998 (decision)

   #DATE 05:06:1998

   Appearances

  
TABLE
 Council for the plaintiff: F.G. Parker

   Solicitors for the plalintiff: Gary Robb
and Associates

  
   Council for the defendant: R. Mildren

   Solicitors for the defendant: Vandenberg Reid

  
   Council for
the First Third Party: L. King, SC

   Solicitors for the First Third Party: Mallesons

  
   Council for the Second Third Party:
R. Williams, QC

   Solicitors for the Second Third Party: Hunt & Hunt

  
   Council for the Third Third Party: A. Bell

  
Solicitors for the Third Third Party: Phillips Fox

  

  

  

   Order:

   1. There be judgment for the plaintiff in the sum of
$144,803.00.

   2. The defendant pay the plaintiff's costs subject to any application in
that regard.

  

  

   MILES CJ

  "Generally"

   1. The plaintiff sues the defendant (Sunset) for damages for personal
injury sustained on 22 January 1993 during his employment
with Sunset. Sunset
joins the first third party (NZI) and the second third party (QBE) claiming
against each indemnity under the
terms of insurance policies issued by each of
those third parties. Sunset joins in the alternative the third third party
(AEI), the
insurance broker who arranged for the issue of the policies by NZI
and QBE, claiming breach of contract and negligent performance
of the duties
of an insurance broker. There are other contribution proceedings amongst the
various parties. The third party claims
raise complex questions of law, not
all of which may need to be answered.

  "Plaintiff sues NSW employer for back injury whilst
lifting headstone in the
ACT"

   2. The first question to decide is whether the plaintiff is entitled to
succeed against Sunset.

   3. The plaintiff was born in what is now Croatia on 2 January, 1933.
Although he appears to have had no trade qualifications,
he had many years of
practical experience in the stonemasonry trade and regarded himself as a
monumental stone mason. Part of the
business activities of Sunset included the
manufacture, supply and installation of headstones in cemeteries and most of
the plaintiff's
duties were concerned with those and related duties. Sunset
operated at and out of its yard at Queanbeyan in New South Wales. The
plaintiff was fit and active and, apart from what is discussed below, had had
little trouble with his back. Sunset supplied him with
a utility truck which
he used partly in connection with his work and partly for his own purposes. If
he had work to do away from
the yard, it was common for him to take the
utility home, sometimes loaded with Sunset materials, and to proceed directly
to his
work site the following day without reporting first at the Sunset yard.

   4. The day before his injury, Mr. Lester, the managing
director of Sunset,
told the plaintiff to take the headstone in question direct to the cemetery at
Gungahlin in the Australian Capital
Territory the following day and to install
it where it was to go in the RSL section of the cemetery. Mr. Lester also told
the plaintiff
that after he had installed the headstone he was to proceed to
carry out work on two more memorials to be erected in the cemetery.
The work
on the other memorials was heavier work and the plaintiff was told that he
would be joined by two other employees for that
work. Clearly the plaintiff
was given no precise instructions about how he was to carry out the
installation of the headstone in
the RSL section, nor did he expect any such
instructions since he had installed many of them in the past. The headstone
was of a
standard type, about 67 kg in weight and in dimension 100 cms high
380 cms wide and 80 mm thick. It was cast in concrete, probably
by Sunset, but
otherwise the evidence is silent as to what part, if any, Sunset played in its
manufacture or the loading of the headstone
on to the utility. Be that as it
may, the plaintiff took the headstone home on the utility and drove next
morning to the cemetery.
He parked the truck so that it was only a few metres
from the grave where the headstone was to be installed.

   5. In accordance
with the practice which the plaintiff followed, and which
must be taken to have been known to Sunset, the plaintiff slid the headstone
along timber rollers on the back of the utility and lowered it manually to the
ground to an upright position. He then "walked" the
headstone the few metres
over the ground, corner by corner, until it was as near as might be to the
concrete channel in which it
was to sit at the head of the grave. There were
no problems until then, because the technique of moving the headstone had not
caused
him to take the full weight of the headstone. However, to get the
headstone into the channel involved movements of more precision.
It was
necessary, as the plaintiff judged it, and because it had always been his
practice, to lift the headstone some 100 mm clear
of the ground and then lower
it into the channel, gripping it on either side. That is what he tried to do
on this occasion. But as
he lifted the headstone, he suffered injury to his
lower back.

   6. Sunset denied liability. However, because the type of injury
was
eminently foreseeable and because Sunset had at its disposal a practical
alternative (namely the assistance of the other two
employees who were going
to help the plaintiff later in the morning) which could have been utilised to
reduce the risk of injury
and which was both readily available and inexpensive
to utilise, I have little difficulty in finding on the probabilities that
Sunset
failed to implement a system of work which would have avoided
unnecessary risk to the plaintiff. Sunset subsequently installed some
sort of
a hoist on the back of the utility, but I am not sure exactly how this would
have avoided the critical movement on the part
of the plaintiff (it is not
clear whether the utility could have got close enough to the head of the grave
for this purpose). I do
not find that Sunset was negligent in failing to
supply a hoist at the time of the plaintiff's injuries. That, however, does
not
prevent him from recovering damages.

  "Contributory negligence

  " 7. Contributory negligence was relied upon. There is nothing
unusual about
the nature of the work that the plaintiff was carrying out, nor the nature of
the movement to which he subjected himself
at the time of his injury. Clearly
the plaintiff had worked for so long over the years at this particular sort of
task that he was
allowed to become in effect "his own boss". Sunset, in my
view, had allowed an attitude of complacency to displace that of awareness
of
safety issues as far as the plaintiff's work was concerned. On the other hand,
if anyone involved in the Sunset undertaking knew
anything about the lifting
and shifting of headstones, it was the plaintiff. He was aware of the risk he
was running in continuing
to do that sort of work in the way in which he had
always done it. He claimed in cross-examination that he asked not to be sent
out
to the cemetery in September 1992. However, I do not think that he was
sufficiently clear or persistent about this to make Sunset
aware of any
lasting problem with his back. He bothered neither himself nor his employer
about getting assistance or equipment to
help him do the job. On the other
hand, he was after all only an employee. Whilst it is difficult to separate
"cause" as between
the plaintiff and Sunset, the nature of the general
responsibility of an employer towards its employees, in my view, makes it just
and equitable that the employer in the circumstances should bear a much
greater responsibility for the injury than the injured worker.
I think it just
and equitable that the plaintiff's damages should be reduced by 10 per cent
for his contributory negligence.

  "Plaintiff's
damages: how much?"

   8. The plaintiff was an honest witness who tended, if anything, to make
light of his injury and the effect
it had on him. The medical evidence is
clear that pre-existing degenerative changes in the plaintiff's lower back
were rendered symptomatic
by the injury in question. There were some warning
signs. He was off work with a bad back for seven days in 1984 and had back
pain
repeatedly thereafter. He was unclear about this in his evidence. In
chief he seemed to want to give the impression that he had no
troubles, except
the usual results of a hard day's work. In cross-examination he seemed to be
saying that he was weak and in pain
in the lower back continuously from
September 1992. Whatever be the truth about prior symptoms, it is clear, in my
view, that the
injury was in the nature of a rupture or derangement of the
disc at the L4/5 level in a degenerating spine. Clearly the plaintiff
has been
prevented from performing his pre-injury work duties, or any other work duties
on a full-time basis and this has had its
impact upon his ordinary everyday
activities. Sunset's case at its most persuasive on this issue was, as
Dr Cairns put it, that
"a proportion of the plaintiff's present
disability .... may well have resulted from the cumulative effect of previous
heavy lifting,
although not necessarily so". I reject the view of Dr Sekel
that the plaintiff's lumbar condition is 50 per cent due to contributory
factors and 50 per cent due to life-long labouring duties.

   9. From this and the rest of the medical evidence, I conclude that
there
was no great likelihood that, absent an injury of the type he in fact
sustained, the plaintiff would have suffered the sorts
of symptoms that
prevented him from working full-time until the expected retiring age of 65
years. The fact of the matter is, however,
that he was engaged in extremely
heavy work and that if he had continued to carry out the duties of a
monumental mason involving,
in particular, the lifting and carrying of stone
and concrete memorials, the possibility that he might have sustained a similar
injury
cannot be disregarded.

   10. There is no doubt, however, that the plaintiff was a person who enjoyed
his work, that he was respected
for it and that he has been deprived of the
opportunity of working until normal retiring age. He was relatively, if not
unusually
fit and healthy for his age, the award for general damages must
reflect these particular aspects of his case. Having regard to his
age and the
fact that he does not, like younger men with similar injuries, have a lifetime
of disability ahead of him, I would award
the sum of $30,000 general damages,
as to which I apportion $15,000 for the past for the purpose of interest.
Interest will be rounded
out to $1,300.

   11. As to loss of earning capacity, the plaintiff attempted a return to
work on 26 January 1993 but, not
unexpectedly, this was unsuccessful.
According to his evidence, he remained away from work until September 1993
when he commenced
work on a part-time basis. From then until March 1997 the
plaintiff worked reduced hours and performed lighter work duties. There
is no
dispute that the plaintiff's wage loss in the earlier period is $34,756.32 and
in the later period $47,362.68, a total of $82,119.
This will be discounted to
$80,000 for the possibility of supervening disability for some other cause
during the meantime.

   12.
In March 1997 the plaintiff was working 18 hours a week. He was further
injured on 17 or 18 March 1997 in a motor vehicle accident
and the effect of
those injuries was to terminate his residual working capacity from then or
soon after. The wages records produced
by the defendant establish that the
plaintiff's weekly wage loss as a result of the injury on 22 January 1993 was
$238 per week net
as at 27 March 1997. On that basis the plaintiff's wage loss
from 27 March 1997 to 3 January 1998, when he turned 65, is $9,520,
and the
plaintiff is to be awarded that sum. Nothing was put to the effect that the
injury in March 1997 put an end to Sunset's liability
for the plaintiff's
continuing loss of earning capacity. The total award for past loss of earning
capacity is $89,520.

   13. It
was submitted on behalf of the plaintiff that, in view of his own
willingness and that of his employer, it should be found that the
plaintiff
would probably have continued to work, if he had not been injured, until age
70. However, I am not prepared to find that
hypothesis established as a
probability in the sense that the plaintiff should be awarded a wholly
undiscounted sum for future loss
of earning capacity. In particular, I do not
think it likely that he would have continued until that age to render the
services to
which he and his employer were accustomed. Perhaps Sunset would
have kept him on in some other capacity, and, perhaps, if not, he
ran the risk
of suffering injury to his back in any event. Figures for a five year loss
into the future result in a present value
of that loss of about $50,000.
However, I do not think that a sum of more than $25,000 can be justified,
having regard to the uncertainties.

   14. The plaintiff's out-of-pocket expenses are agreed at $15,072.96.

   15. There was a modest claim under Griffiths v. Kerkemeyer
[1977] HCA 45;  (1977) 139 CLR
161, but the claim relates to the plaintiff's inability to perform gardening
and lawn-mowing activities previously
undertaken by him. This is a matter
which I think resounds in general damages rather than a sum to be calculated
as if the plaintiff
had suffered a notional loss within the principle of
Griffiths v. Kerkemeyer .

   16. Damages will therefore be awarded as follows:

  
TABLE
 General damages $30,000.00

  
   Interest on past general damages $1,300.00

  
   Past loss of earning capacity $89,520.00

  
   Future loss of earning capacity $25,000.00

  
   Out-of-pocket expenses $15,072.96

  
   Total: $160,892.96

  

   17.
This sum is to be reduced by 10 per cent for contributory negligence.
The plaintiff has leave to enter judgment for $144,803. Sunset
is to pay the
plaintiff's costs subject to any application in that regard.

   18. Judgment in the third party and other contributory
proceedings will be
handed down at a later date.