van Oostwaard v Belevrde Constructions & Murtagh [2003] ACTSC 29 (2 May 2003)

Last Updated: 13 May 2003

SVEN VAN OOSTWAARD v BELLEVARDE CONSTRUCTIONS

PTY LTD and MATTHEW MURTAGH

[2003] ACTSC 29 (2 May 2003)

PERSONAL INJURY - workplace accident - liability - no issue of principle.

PERSONAL INJURY - damages - shoulder and wrist injury - assessment - no issue of principle.

Civil Liability Act 2002 (NSW)

Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298

Raymond John Gaffey v Sridate Pty Limited t/as The National Aquarium Wildlife Park Functions Centre [2002] ACTSC 89

Pinborough v Minister of Agriculture (1974) 7 SASR 493

London Graving Dock Co Ld v Horton [1951] AC 737.

Griffiths v Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161

No SC 574 of 2000

Judge: Connolly J

Supreme Court of the ACT

Date: 2 May 2003

IN THE SUPREME COURT OF THE )

) No SC 574 of 2000

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: SVEN VAN OOSTWAARD

Plaintiff

AND: BELLEVARDE CONSTRUCTIONS PTY LTD (ACN 001 998 036)

First Defendant

AND: MATTHEW MURTAGH

Second Defendant

ORDER

Judge: Connolly J

Date: 2 May 2003

Place: Canberra

THE COURT ORDERS THAT:

1. There be judgment for the plaintiff in the sum of $157,893.00 with costs.

1. This is a claim for damages for personal injuries arising from a workplace accident that occurred on 18 December 1997 when the plaintiff was working as a sub-contract carpenter on a construction site at a ski lodge in Perisher Valley in the New South Wales snowfields. The first defendant was the principal contractor on the site, and the plaintiff was a sub-contractor to that company. He was preparing formwork for the eventual construction of concrete floors, and in order to do this he and other workers had to install props to hold up the formwork. The props used have the proprietary name of Acro Props. They are a telescopic type of construction and can be installed under a beam. The telescopic action allows the prop to be adjusted to take the load, and is held in place with a pin. It is the plaintiff's case that as he was working on a floor level the second defendant, who was also a sub-contractor to the first defendant, passed him down an Acro Prop without securing the telescopic action with a pin, and as a consequence the heavy metal bar slid out and struck him on the right shoulder, causing damage to the shoulder. He also says that as he fell to the ground he sustained injury to his right wrist.

2. Liability and quantum of damages were both in issue. Although the plaintiff's initial recollection was that the Acro Prop had been dropped on him, it emerged as common ground that the most likely mechanism for the accident was the failure by the second defendant to secure the prop with the pin so that the telescopic action allowed the metal beam to slide out and hit the plaintiff. I accept that the accident occurred in this way. There was considerable argument about the mechanism in which the plaintiff says that he had moved props to the relevant part of the site earlier in the day of the accident or on the day before. The plaintiff says that he moved them in a wheelbarrow, and the defendants called evidence to indicate that this was not a safe or practical method. It seems to me that this does not really matter, as the key issue is whether there was negligence in handing down a prop with the pin unsecured. It seems to me that it must follow that this is negligence, as it is entirely foreseeable that, if a telescopic prop is lowered to a workplace on a lower level, the telescopic arm, if unsecured, will drop out, and could strike a worker below.

3. The case against the second defendant is brought on the basis that he was negligent in failing to secure the prop before handing it down. The plaintiff says the second defendant passed the prop down. The second defendant did not attend to give evidence, and I am entitled to draw the inference from this that any evidence he gave would not have assisted his case: see Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298. I have no difficulty in finding, on the evidence before me, that the accident occurred as a consequence of his negligence in failing to properly secure the prop before passing it to the worker below.

4. The plaintiff's claim against the first defendant is based on a failure to adequately supervise the second defendant. It was conceded that, generally, a head contractor would have a good defence to such a claim by showing that it had engaged adequately experienced and competent tradespersons as contractors. A contractor is generally not under a duty to warn skilled tradespersons against the type of hazard they would normally incur in the course of their duties: see Raymond John Gaffey v Sridate Pty Limited t/as The National Aquarium Wildlife Park Functions Centre [2002] ACTSC 89, Pinborough v Minister of Agriculture (1974) 7 SASR 493, London Graving Dock Co Ld v Horton [1951] AC 737.

5. The evidence in this case, however, is that while the plaintiff was a qualified tradesperson, the second defendant had not yet obtained his full trade qualifications, and indeed the company was aware of this and had taken him on to work on this site partly in order to enable him to obtain adequate experience. Mr SW O'Ryan was the construction manager for the first defendant at the site at the time, and he gave evidence in the first defendant's case. He was asked how the second defendant came to be engaged on the site, and he said:

Matt was engaged through an association with his father. Matt had completed a certain amount of time for his contractor's licence and we would give Matt the opportunity to get the extra hours required to get his contractor's licence.

He agreed in cross-examination that the second defendant would not have had as much experience in handling props as fully qualified contractors, and that it was part of his job as the site supervisor to ensure that an inexperienced person yet to complete their full trade qualification was operating safely. He said that this was why the second defendant "was put under the care of licensed contractors", but he agreed that he was ultimately responsible, on behalf of his employer, for safety on the site. In these circumstances, says the plaintiff, the first defendant cannot evade liability.

6. It seems to me that this is a crucial factual matter, and that the first defendant, knowing that the second defendant was not fully qualified, did owe a duty of care to other qualified tradespersons on the site in respect of their engagement of a less experienced trainee contractor, and that for this reason liability should lie also against the first defendant. Towards the end of the hearing, counsel for both the first and second defendants indicated that, if I was of the view that liability attached to both defendants, the proper course would be to enter judgment against both defendants without further considering attribution and relative contribution to the accident. This, it seems to me, is a most appropriate course, and I so find.

7. Counsel were agreed that damages were to be assessed pursuant to common law principles, as the claim was brought, in essence, as a public liability claim. The claim was not brought as an employment claim, as the plaintiff was not an employee of the first defendant. Counsel were agreed that the claim was unaffected by the Civil Liability Act 2002 (NSW) as the claim was issued prior to that Act taking effect.

8. The plaintiff was a 26 year old sub-contract carpenter at the time of his accident. He was working in a partnership with his father, an experienced builder. There is no question that he sustained a frank injury to his shoulder, and attended at the Alpine Medical Centre at Jindabyne, where he was diagnosed with a rupture to the shoulder joint, and advised to take time off work and to rest. An x-ray was taken but no fracture was revealed. The injury failed to resolve with rest, and in February 1998 he was referred by his general practitioner, Dr D Batagol at the Dickson Family Practice, to Dr G Stubbs, an orthopaedic surgeon. Dr Stubbs diagnosed a dislocation of the acromioclavicular joint, and advised that a surgical reconstruction was appropriate. Dr Stubbs placed him on a waiting list for the surgery.

9. The plaintiff, entirely appropriately, sought a second opinion before coming to surgery, and in April 1998 he saw Dr D Kuah at the Sydney Sports Medicine Centre. In his report of June 1998 Dr Kuah said that he was aware of Dr Stubbs' diagnosis and recommendation for surgery, but after reviewing a CT scan of the plaintiff's shoulder he formed the view that surgery may not be immediately required. He recommended and performed cortisone injections to the shoulder joint, but noted that surgery remained a real possibility. The plaintiff says that he obtained only limited relief from this injection, and in July 1998 he consulted Dr D Hughes, a sports physician, who referred him to Dr C Roberts, an orthopaedic surgeon. Dr Roberts recommended a further course of physiotherapy, which did not assist, and on 7 December 1998 he performed an operation to excise the outer end of the right clavicle.

10. In February 1999 Dr Roberts reported that the shoulder had significantly improved following the surgery, and said:

He has far less pain and gradually improving strength and range of movement. He has some mild discomfort only at the extremes of shoulder movement.

11. In April 1999 he reported that:

His right shoulder is doing well, he is able to return to work and has had no problems with his right shoulder, he has gradually been building up his activity.

12. In December 1999 Dr Roberts reported that:

He feels that his right shoulder had dramatically improved following the surgery, he still has some discomfort, particularly when he has been working for periods of time, with a generalised ache in his right shoulder and some tenderness around the excised AC joint.

On examination he has 180° of movement with no pain on adduction of the shoulder.

13. The plaintiff says that there was an incident on a building site in late 2000 when he fell from a scaffold and had to suddenly reach out to stabilise himself with his right hand, which resulted in a temporary aggravation of shoulder pain, which stabilised after some physiotherapy.

14. The most recent medical report in the plaintiff's case concerning the right shoulder is from Dr Craven of August 2002. Dr Craven reported a history of pain in the right shoulder when the plaintiff lifts his arm outstretched and after a heavy day's work. He found on examination normal movement in the right shoulder joint, with no muscular weakness. This is broadly consistent with the medical report tendered in the first defendant's case in relation to the shoulder, being a report of Dr RJ Kitchen of August 2001. He found radiological evidence of the operation, and on examination reported:

There is no specific tenderness. Shoulder mobility is unrestricted in all directions. There is no muscle wasting. There is no neurological deficit in the upper limb.

15. I accept that the plaintiff sustained a frank injury to his shoulder as a consequence of being struck by the metal prop. This failed to respond to conservative treatment, and eventually required operative treatment. On the medical evidence, it seems to me that there is little difference between the treating specialists, Dr Roberts, and the two medico-legal experts, Drs Craven and Kitchen. I find that the plaintiff has had a good recovery with full movement and no muscle weakness, but that the plaintiff continues to complain of some pain when doing heavier work. I accept that he is guarded in his use of the shoulder, and that he has not returned to very heavy work, and has avoided some recreational activities which he previously enjoyed, including wind-surfing, skiing and rock climbing.

16. The plaintiff also complains of wrist pain, and has, since July 1998, told doctors that the metal prop struck his right wrist as he fell. There is no reference at all to wrist pain in any of the contemporaneous medical records before July 1998, and the first note of wrist pain coincides with a note that he fell on his wrist while walking his dog. The plaintiff acknowledged in his evidence that this in fact happened. His evidence, and that of his father and his partner, Ms V Jardine, is that he complained of wrist pain after the accident, but that the shoulder was the major problem. Doctors in his case have supported the proposition that the shoulder pain, which was more severe, would have been his major problem, and have accepted that the wrist pain is attributable to the accident. On balance, I accept that the plaintiff did sustain some soft tissue injury to his wrist in the accident, which was further aggravated by the fall while walking his dog.

17. Dr Roberts also examined the plaintiff in respect of his wrist, and confirmed that there was no fracture. The wrist continued to be painful through 1998 and 1999, and in June 1999 Dr Roberts performed an arthroscopic procedure to the right wrist in which some tissue, described by Dr Roberts as not a true ganglion, was removed. Dr Roberts reported some improvement in the plaintiff's wrist following the surgery, but accepted that there remained some limitation of movement and pain. This is also consistent with the views of the medico-legal reports of Drs Craven and Kitchen, although Dr Kitchen has queried the attribution of this injury to the December 1997 accident. On balance, I am satisfied that the wrist is also attributable, and so I assess the plaintiff on the basis of both the shoulder and wrist injuries.

18. In relation to general damages, I assess the plaintiff on the basis of a frank injury, which he sustained by being struck on his shoulder by the metal prop, which caused a disruption to the shoulder joint that has required a reconstructive procedure to be performed by Dr Roberts under general anaesthetic. I find that he has recovered well from this procedure, with now full range of movement, but there is some residual pain, particularly on exertion. I find also that at the time of the original accident he sustained soft tissue injury to his right wrist, either from the fall after being struck by the prop, or by the prop falling onto his wrist. I find that this was not a major problem until mid 1998 following an unrelated fall which aggravated his soft tissue injury, and that this has eventually lead to the development of a tissue growth which needed to be excised by an arthroscopy performed by Dr Roberts in June 1999, also under general anaesthetic. I find that he continues to have a small degree of limitation of movement and pain in the wrist.

19. I accept that these injuries had a significant impact on his ability to work as a carpenter until his return to work in late 1999. I accept that he still has difficulties with very heavy work, and he gave examples of this in relation to heavy formwork and using items such as a jackhammer to break up concrete. I accept also that he was formerly a keen participant in outdoor sports, and that he now has to be guarded in relation to both his shoulder and wrist.

20. For general damages I award $55,000, with $40,000 attributable to past loss, generating interest of $4,267, for a total award of $59,267.

21. Out-of-pocket expenses for the past were agreed, arithmetically, in the sum of $7,958. As I am satisfied that the wrist condition is also related to the accident, I award the entire sum.

22. There is a claim for future out-of-pocket expenses as a buffer against future surgery, but there is little medical support for a substantial award. The evidence is that the plaintiff no longer receives treatment or takes medication for his residual complaints. In his last report of December 1999, Dr Roberts makes no reference to future surgery to the shoulder, and says that it is unlikely that the wrist would benefit from further surgery. Dr Craven in his report said that he did "not anticipate any additional treatment to be necessary. Whether further surgery needs to be performed in the years to come, is a matter on which an orthopaedic surgeon should opine".

23. There is no report from an orthopaedic surgeon in support of such a claim. A report tendered in the plaintiff's case from Dr PJ Phillips, a surgeon, in July 2001 said that the plaintiff would be prone to having intermittent pain in the shoulder and wrist, but "I do not believe he will get any worse and I do not think there is any substantial risk of developing arthritis". The only evidence in support of any increased risk of arthritis is the report of the general practitioner, Dr Batagol, in November 1999, where he expressed the view that the plaintiff may experience advanced arthritic degeneration. On all the evidence I am not satisfied that a claim for future out-of-pocket expenses is made out beyond a very modest buffer for occasional pain relief, and I award the sum of $2,000 only in regard to this head of damages.

24. The plaintiff particularised a claim for past economic loss in the sum of $39,000, but the statement of particulars acknowledged that this was but an estimate. The plaintiff said that he had records of his time away from work, but these were not produced. The taxation and other earnings records were somewhat incomplete and unclear. He has over the years earned some money through the partnership with his father, and some on his own account. His evidence, which I accept, is that he leaves all of this to his accountant. The plaintiff's income from the available taxation records has fluctuated over the years, with an income of $9,970 in 1994/5 going up to $22,100 in 1995/6 and $22,500 in 1996/7, the last full year before the accident. The records are incomplete for the year after the accident, but his income in 1998/9 showed an income from personal exertion of $22,280, which is within the range of the two years prior to the accident. He earned $12,990 in 1999/2000, which was the year in which he had the wrist procedure and said that he had taken considerable time off due to the wrist injury. His earnings for 2001/2002, the last year for which records are available, showed an income of $41,512, which is by a considerable margin his best earning year.

25. It seems to me that this is a case where at best a buffer claim can be made out, and in this respect counsel for the second defendant, Mr Parker, made the submission that, should I be satisfied that liability was established, this should be in the range of $25,000. Given the lack of clear records to support the higher claim particularised, it seems to me that this is an appropriate sum to award for past economic loss, which would generate interest of $6,668 making a total of $31,668.

26. A future economic loss claim has been particularised in the sum of $250,000. This claim, it seems to me, goes well beyond the medical and other evidence. Such taxation records as are available show that his earnings in the last year for which records are available was considerably in excess of pre-accident earnings. He gave evidence in cross-examination that he presently charges out at $35 an hour for contract carpentry work, and Mr O'Ryan had said that $30 an hour was the going rate. Mr J Ortner, who has been providing him with work did not express dissatisfaction with his work, and it must follow that he is a tradesperson of sufficient quality and that he is able to charge out at or slightly above market rates. I accept that he is limited in relation to heavy work, and evidence was given about difficulty with using a jackhammer, but, it seems to me, there is much in Mr Parker's submission that this is really more labouring work, and that the plaintiff's limited residual disability has very limited impact on his work as a carpenter in respect of more skilled aspects of the trade, such as internal fitting out work.

27. The medical evidence does not support a significant restriction on ongoing employment capacity. In his report of August 2002, Dr Craven said that he was working full-time in 2002, and

There are minor work restrictions, in that he asks for assistance when he is required to lift heavy objects with his right arm eg a piece of scaffolding and he tends to avoid heavy digging or trenching.

28. Dr Phillips in 2001 reported that "he is now doing hard work", and did not refer to ongoing restrictions in employment in the building trades.

29. Dr Roberts in his last report to Dr Hughes in December 1999 said that the plaintiff continued to have some wrist restrictions, and said, "I have suggested that he tries to work in whatever capacity he can and if he is unable to work as a builder he may be required to change jobs". The evidence is clear that he has been able to work full-time in the building trade since this report.

30. It seems to me that while the plaintiff has a degree of ongoing restriction in respect of heavy labouring work, he is, on both the medical and lay evidence, able to work in his trade on a full-time basis. The heavier work, which he gave evidence that he was unable to perform, such as trenching and using a jackhammer, is essentially labouring work. I am not satisfied that a buffer of the magnitude claimed is justified on the evidence, and on all the evidence I would award a more modest buffer of $50,000.

31. Although a claim for past and future superannuation benefits was particularised, Mr Ronzani acknowledged that, as the plaintiff was never an employee, this was inappropriate.

32. A very substantial Griffiths v Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161 claim was particularised in respect of past and future assistance provided by his partner. The defendants acknowledged that there would have been an accident-created need for additional domestic assistance in the period after the initial accident, and after the surgical procedures. The claim is for 14 hours per week, and it seems to me that, while I can accept that Ms Jardine does a lot of work around their rural property, this does not translate into a liability of the tortfeasor. As I have often had to observe, a Griffith v Kerkemeyer claim relates to an accident-related need for assistance, and it is not merely a matter of adding up what a partner does in respect of household duties, many of which of course are for the benefit of both partners. An example of this is Ms Jardine's evidence in relation to chopping firewood. This is in fact the only aspect of the claim supported by medical evidence. Dr Craven said in his report of August 2002 in respect of activities:

He is able to drive the car and is independent in regard to self care and the tasks that he wishes to undertake around the house, other than heavy digging that can prove to be awkward. He has difficulty when chopping wood.

33. While I accept this evidence, it does not follow that Ms Jardine's time chopping wood is a claim on the defendants, given that the employment evidence is that much of the plaintiff's contract work in recent years has been out of Canberra, would have been for heating the Canberra residence when only she was present.

34. I am not satisfied that these injuries have created a real need for domestic assistance at anything approaching 14 hours a week for the past and future. I am satisfied on the medical evidence that he is in fact able to be fully independent for the future, and any realignment of domestic tasks does not sound in damages. I would award the sum of $7,000 inclusive of interest for past care during the period after the accident and the periods of incapacity around the times of the two operations.

35. In summary then, the amounts awarded under each of the heads of damages are as follows:

General damages $55,000.00

Interest $4,267.00

Past out-of-pocket expenses $7,958.00

Future out-of-pocket expenses $2,000.00

Past economic loss $25,000.00

Interest $6,668.00

Future economic loss $50,000.00

Griffiths v Kerkemeyer $7,000.00

Total: $157,893.00

36. There will be judgment for the plaintiff in the sum of $157,893.00 with costs.

I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Connolly.

Associate:

Date: 2 May 2003

Counsel for the plaintiff: Mr D Ronzani

Solicitor for the plaintiff: Blumers Personal Injury Lawyers

Counsel for the first defendant: Mr W Arthur

Solicitor for the first defendant: Dibbs Barker Gosling

Counsel for the second defendant: Mr F G Parker

Solicitor for the second defendant: Phillips Fox

Dates of hearing: 11, 12 and 13 March 2003

Date of judgment 2 May 2003