Barton v Samarkos Earthmoving Pty Ltd & Simeonov Civil Engineering (ACT) P/L [2003] ACTSC 63 (6 August 2003)

Last Updated: 15 August 2003

PAUL ANDREW BARTON v SAMARKOS EARTHMOVING PTY LIMITED

and SIMEONOV CIVIL ENGINEERING (ACT) PTY LIMITED

[2003] ACTSC 63 (6 August 2003)

NEGLIGENCE - workplace accident - access to construction site by ladder only - failure to provide safe system of work.

DAMAGES - personal injury -shoulder injury - no issue of principle.

Social Security Act 1991 (Cth)

Fox v Wood [1981] HCA 41; (1981) 148 CLR 438

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

No SC 436 of 2000

Judge: Connolly J

Supreme Court of the ACT

Date: 6 August 2003

IN THE SUPREME COURT OF THE )

) No SC 436 of 2000

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: PAUL ANDREW BARTON

Plaintiff

AND: SAMARKOS EARTHMOVING PTY LIMITED (ACN 003 988 694)

First Defendant

AND: SIMEONOV CIVIL ENGINEERING (ACT) PTY LIMITED

(ACN 013 330 868)

Second Defendant

ORDER

Judge: Connolly J

Date: 6 August 2003

Place: Canberra

THE COURT ORDERS THAT:

1. There be judgment for the plaintiff in the sum of $236,926.76 with costs.

1. This is a claim for damages for personal injuries arising from a workplace accident that occurred on 18 November 1998 at Manuka in the Australian Capital Territory. The plaintiff was an employee of the first defendant, Samarkos Earthmoving Pty Limited, and was contracted to the second defendant, Simeonov Civil Engineering (ACT) Pty Limited, in the course of excavations for the construction of the Manuka Plaza shopping centre and residential complex located between Captain Cook Crescent, Franklin Street and Flinders Way in Manuka. At the time of the accident the plaintiff was engaged in supervising a gang of workers in the base of the large pit that had been excavated for underground parking. The plaintiff's case is that he fell about six metres from a ladder as he was descending into the pit, and it is his case that the method of access to the pit at the time, which is said to have been a ladder only, was unsafe.

2. It is common ground that during the earlier stages of construction there was an earthen rampway leading from the base of the pit to the surface. The plaintiff's evidence, which was not contradicted on this point, was that on the date of the accident this ramp was itself being removed, and that the only way into or out of the pit was a ladder. It is his evidence that some time shortly after the accident a proper system of scaffold enclosed stairs was erected to facilitate access. The plaintiff says that he had to gain access to the surface, and that he successfully climbed out of the pit. His evidence is that the ladder extended about six metres from the base of the pit, and came to the end at an earthen batter that formed about a 45 degree slope for the final few metres of the pit. He says that there was a rope to assist persons to get up and down this batter. He says that as he was descending he lowered himself down with the aid of the rope, but that as he moved to gain his footing on the ladder, he slipped and fell to the bottom.

3. The matter first came on for hearing on 5 March 2003, and was then adjourned to 25 June 2003. It was apparent on the first hearing day that the defendants were strongly contesting liability, and were putting to the plaintiff that there had in truth been no accident. Counsel for the defendants, Mr McNally, indicated at the resumed hearing that they may seek to amend the pleadings to allege fraud, but this was not proceeded with, and in the end no evidence was adduced to counter the plaintiff's version of the facts of the accident, and Mr McNally, quite properly, made no submissions in respect of liability.

4. On the plaintiff's version of the events which lead to the accident and which were not contradicted, I am satisfied that the system provided on the day of the accident, which I find to have occurred as described by the plaintiff, was an unsafe system of work. Access to a deep pit, which extends at least two stories below ground level, requires more than an unsupported ladder leading to an earthen batter. I find liability is established. Mr McNally indicated that issues as between the defendants were resolved between themselves, and a judgment against both defendants would be appropriate, that is to say, it was not necessary for the Court to attribute responsibility as between defendants.

5. The plaintiff sustained an injury to his right shoulder in the fall, which has persisted, and which, it is claimed, has precluded him from returning to employment. It is common ground that after the accident the plaintiff was wrongly diagnosed as having sustained a rotator cuff lesion in the accident, and he received treatment for this, to which he did not respond. He eventually came under the care of Dr CJ Roberts, an orthopaedic surgeon, who performed an arthroscopic examination of his right shoulder, and diagnosed a frank injury by way of a lesion of the biceps tendon. This was repaired arthroscopically in June 1999, and he then underwent a course of physiotherapy, which resulted in some improvement. He returned to work in November 1999 with the first defendant, but says that he still experienced some shoulder pain. Although he was notionally on light duties, he says that he was involved in operating heavy machinery and also some heavy labouring type activities within weeks of his return to work. His employment was terminated in March 2000, and he has not worked since. He is presently in receipt of a carer's pension in respect of his care for his elderly mother.

6. It is the plaintiff's case that he has not been able to work, and will not be able to work, due to the accident. The defendant acknowledges that the plaintiff has sustained a frank shoulder injury in the accident, and that this has impacted on past wage loss, but argues that present and future economic loss is also affected by the fact that the plaintiff is in receipt of a carer's pension and also by other old injuries.

7. The plaintiff was born in 1964 in Boorowa, New South Wales, and attended school to the age of 15, leaving before obtaining the school certificate to work with his father on the family farm as a farmhand. He also worked in a variety of rural labouring jobs. In the early 1980's he worked as a shearer. He sustained some cervical whiplash type injuries in two motor vehicle accidents in the early 1980's, but he says that he recovered his full health and was able to resume shearing and playing competitive rugby league for his local team.

8. In about 1986 he moved to Canberra and obtained work in the construction industry as a plant operator and occasional carpenter. He says that he had become familiar with operating heavy plant as a farm worker, and that this provided him with skills to do the same in construction and earthmoving, and he has worked in this field ever since. At the time of this accident he had been promoted to a foreman plant operator, so he was responsible for supervising other workers, as well as operating his own equipment.

9. In 1989 he sustained an injury to his left knee which resulted in some four months off work, but he says that he was able to return to work following an operation to his knee. He sustained a more serious accident later that year when he was crushed while operating a Bobcat type excavator, and sustained a fracture to his pelvis and lower back injury, and was off work for about twelve months. He says, however, that he was able to return to quite heavy work as a foreman plant operator involved in bitumen laying, and that he was able to do this for several years without difficulty before commencing employment with the first defendant in 1996. He says that when he first got this job he was doing labouring work because the employer had not realised that he was a qualified plant operator, but that when this became known he moved to plant work, and eventually became a foreman. He said that although this involved supervision, he still did a lot of physical work. He acknowledges that he had occasional back pain while doing this work, but says that he was able to cope with this.

10. Following the accident the plaintiff was taken to Canberra Hospital where his neck and shoulder were x-rayed. This did not demonstrate any frank injury, but he continued to complain of right shoulder pain. His general practitioner certified him as unfit for work, and he was seen in January 1999 by Dr D McNicol, an orthopaedic surgeon, who made an initial diagnosis of rotator cuff tendonitis or tear, and provided appropriate treatment. During this time it is common ground that he was unfit for work. Dr McNicol referred him to Dr Roberts for an arthoscopic examination, and he was first examined by Dr Roberts on 2 June 1999.

11. Dr Roberts took a history of ongoing right shoulder pain with a sensation of catching within the shoulder, and noted on examination a degree of muscle wasting. He reviewed an MRI scan and diagnosed a SLAP lesion, being a tear where the biceps tendon attaches at the shoulder. Dr Roberts performed arthroscopic surgery on 30 June 1999 to reattach the tendon. In a report of 16 March 2000 Dr Roberts has described this procedure, and expressed the view that his recovery following the procedure was sound, to the point that by November 1999 he considered the plaintiff was fit to return to work initially on light duties.

12. The plaintiff did return to work in November 1999, but says that he was in fact doing quite heavy work, and was in pain after each day's work. He says that he was required to do pick and shovel work, as well as work with a crowbar. He says that in February 2000 he returned to the office from a job and the boss "told me that he'd have to let me go, there just wasn't enough work" (T 38). The plaintiff says that he would have continued working, although he says he was in pain after heavy work.

13. He continued to complain of right shoulder pain, and was examined by Dr J Douglas, an orthopaedic surgeon for a medico-legal report in May 2000. Dr Douglas expressed the view that the tendon may have again become separated, and recommended a repeat arthrogram, and consideration of a further repair by Dr Roberts. The plaintiff saw Dr Roberts in November 2000, and in his report of 14 November he advised that he had recommended a repeat arthroscopy. Unfortunately, the insurer has declined to fund this procedure, and so there has been no further examination or surgery. The reports from Dr Douglas and Dr Roberts indicate that further surgery is appropriate, and that the prospects of improvement are positive, although he will remain with some residual shoulder restriction. This view is also shared by Dr J Talbot, who reported for the second defendant in July 2002. It is most regrettable that, although a further procedure was identified and recommended as early as mid 2000, the plaintiff has not been able to undergo this procedure to date because the insurer has refused to pay for it. This has clearly delayed his rehabilitation.

14. The plaintiff has not returned to work since being retrenched. He says that he has attempted to drive a tractor on his father's farm, but found that this jarred his shoulder. He also said that he attempted some bar work, but this was not successful, in part because he has a longstanding hearing difficulty. It is common ground on the medical evidence that until and unless there is a successful further surgical procedure to reattach the tendon, he will be restricted to light work. Dr Talbot, in his report for the defendant in July 2002, said that if the further surgery is unsuccessful "he will be limited in his ability to work as a labourer and plant operator, and may need to seek lighter work".

15. The plaintiff's case is that he has been fully incapacitated for work since the accident, but for the period between November 1999 and March 2000. Given his education and workplace experience, it seems to me that he must be considered in the context of heavy labouring and plant operation roles, and experts for both the plaintiff and the defendants are in agreement that he is presently restricted to light work only, although this may improve following further surgical intervention.

16. Against this, the defendants submit that the plaintiff had returned to work in November 1999, and it is his evidence that he would have continued in his employment were he not made redundant for the reason that there was not enough work around. I find that he was retrenched on economic grounds, and it seems to follow that it cannot be said that he went from being able to utilize his full economic capacity on the last day of his employment to having no residual economic capacity on the first day of his redundancy.

17. There are however two other factors which, it seems to me, are of significance in regard to his claim for economic loss. The plaintiff acknowledged that he has had a number of problems with the law in the period since the accident. He has had five convictions for driving with a prescribed concentration of alcohol in his blood between 1984 and 2001, and on the last occasion he acknowledged that his driver's licence was cancelled, and he has not yet got it back. This must amount to a significant difficulty for a person seeking to work as a plant operator. The doctors are in agreement that he is presently restricted to lighter plant type duties, which would, it seems to me, encompass driving trucks, but he is unable to drive on the road. Moreover, the operation of plant on construction sites will often involve travel to and from isolated sites, and the inability to drive a motor vehicle is again a significant barrier to employment.

18. There was also a conviction in relation to burglary, for which he was found guilty in the ACT Magistrates Court, and sentenced to a three month suspended sentence and 208 hours community service, which he completed with a Canberra welfare agency. The offence he said related to breaking into college premises and the theft of computers. There is clearly a difficulty in submitting that he is incapable of utilising his economic capacity if he is capable of committing offences involving breaking into premises and carrying away computers. There is also a difficulty in saying that he cannot work when he has successfully completed community service obligations ordered as part of a sentence.

19. There is a further difficulty in relation to his economic loss claim relating to his present status as the recipient of a carer's pension. He said that this was due to his present care for his aged and infirm mother. He was unable to say precisely how much this was, but his evidence indicated that it seemed to be a full rate pension. Section 198 of the Social Security Act 1991 (Cth) (the Social Security Act) provides that a person may qualify for such a pension if they are providing "constant care". It seems to me to be difficult to reconcile the ability to provide such constant care with an inability to utilise a capacity for remunerative work. If he is providing constant care he cannot also be working, or be available for work. This is also relevant to the claim for personal assistance.

20. In relation to general damages, I accept that the plaintiff sustained a significant frank injury to his shoulder in this accident. Although initially diagnosed as a rotator cuff lesion, it was eventually diagnosed as a frank tear to the tendon, and he underwent an arthroscopic examination, and then a surgical procedure, to correct this. He was significantly restricted in shoulder mobility before this procedure in June 1999. After the operation he underwent physiotherapy and recovered significant mobility and strength, to the point where he was able to return to work, on supposed light duties.

21. I am satisfied that although he had an initial good recovery, he has suffered a recurrence of the original condition. I am satisfied, on the balance of probabilities, that the tendon has become detached, as diagnosed by Dr Douglas and Dr Talbot. I am satisfied that this means that he now has a significant restriction to his right shoulder, and cannot at present undertake heavy physical work. Dr Douglas assessed this as a 22 per cent permanent loss of the efficient use of the right arm. The prognosis for an improvement following further surgery, which again will involve arthoscopic surgery under anaesthetic is, I find, positive. Dr Talbot said that the probability that the surgery will be successful is "moderately high", and Dr Douglas said that "it is likely that Dr Roberts or another shoulder surgeon will repeat the fixation surgery to the shoulder". Dr Talbot has expressed the view that the repeat procedure will leave him with no residual disability, or at most 5 per cent, but Dr Douglas has expressed the view that even after the repair he would be limited for one to two years to lifting no more than 5 kilos above head hight, and would have an ongoing limitation of between 15 and 18 per cent.

22. Given that there have been difficulties with the first procedure, it seems to me that I cannot be satisfied on the balance of probabilities that the operation will be totally successful in that the plaintiff will have no disabilities following surgery. I am satisfied, to the requisite standard, that he will experience a significant improvement, and that after a sufficient period of recovery will be left a far lower level of residual shoulder difficulties.

23. In relation to general damages, I would assess the plaintiff in the sum of $65,000, with $50,000 being for past loss, generating interest of $4,715, for a total award of $69,715.

24. Past medical expenses were agreed in the sum of $16,913.52, which I award.

25. It is common ground on the medical evidence that he will need further arthroscopic investigation, and I am satisfied on the balance of probabilities that this will then lead to further surgery to re-attach the tendon. There will need to be appropriate physiotherapy following this treatment, and there will be an ongoing need for some medication and occasional general practitioner treatment in relation to residual difficulties. I would award the sum of $20,000 in respect of future out-of-pocket expenses.

26. The claim for past economic loss is based on an ongoing loss of $538 per week from the date of the accident, less the period during which he was employed, being about ten weeks. For the reasons set out above, I am not satisfied that he has throughout this period sustained a total loss of economic capacity. There were certainly periods of total loss, notably the period between the accident and the surgery and during the recovery period, but it seems to me that from the point at which his employment was terminated for economic reasons, he has had an ongoing degree of residual capacity, and he has also had other barriers to utilising his capacity. These include the fact that he has lost his driver's licence, and that he has for some period now been the carer for his mother. He acknowledged that he was not actively seeking work at present due to these responsibilities. The medical evidence throughout supports a degree of capacity, albeit restricted to avoiding heavy plant operation and labouring roles, but it seems to me that lighter plant and supervisory roles have been open to him, and could have been utilised but for the difficulty with his driver's licence. I also note here the burglary conviction and the period of community service which has been successfully completed as evidence of a degree of capacity which could have been utilised.

27. This is not a case for an ongoing arithmetic loss, and I would award the sum of $60,000 as a buffer for past economic loss inclusive of superannuation. He has received worker's compensation payments for loss of earnings in the sum of $29,174.27, so the net loss for the purposes of interest is $30,825.43, which generates interest of $4,514 for a total award for past economic loss of $64,515.

28. He has paid tax on the worker's compensation payments, which requires an adjustment pursuant to the principles of Fox v Wood [1981] HCA 41; (1981) 148 CLR 438 agreed in the sum of $5,784.24, which I award.

29. Future economic loss is claimed and particularised as an ongoing full loss to normal retirement age of $538 per week. I am not satisfied on all of the evidence that such a claim is made out. In addition to the factors that I have referred to above in relation to the past loss claim, I have made the finding, on the balance of probabilities, that he will undergo successful surgery which will further improve his shoulder, so that he will be left with residual difficulties only and should, subject to factors such as his driver's licence, be able to resume plant operation and driving, but should avoid heavy work and labouring activities.

30. In regard to ongoing residual restrictions on heavy work, the defendant has tendered medical reports in relation to some of his prior accidents, in particular reports produced for the purposes of prior damages claims. In November 1991 Dr White reported that due to a back injury at work in 1989 "he should never return to heavy work but should always be looking at trying to upgrade his skills and seek alternative forms of employment". Dr D McGrath, in a report of January 1992 to the plaintiff's then solicitors, expressed the view that due to that accident "with or without surgical intervention, the prognosis for hard physical labour is very low".

31. Although the plaintiff gave evidence, which I accept, that he had in fact been able to return to heavy work, and indeed was so engaged at the time of this accident, I am satisfied that there was an underlying spinal condition caused by an earlier accident which had resulted in medical opinions, on which he apparently was then relying, that he should remain restricted to light work of the type which the medical evidence in this case also suggests is the only likely long-term restriction from his shoulder injury.

32. The plaintiff gave evidence in this case that he returned to work at about the time his son was born, in 1991, and he said in his evidence-in-chief that at around 1992 he had no problems doing heavy physical work, and that his back did not interfere with doing heavy work, although "it would ache a bit every now and then, but that's something I sort of got used to over the years" (T 16). This is clearly inconsistent with the histories given in the medical reports referred to above which were prepared at the same period.

33. In regard to future economic loss I find that the plaintiff will have a period of total incapacity following the likely shoulder surgery, but that he will then probably have a capacity for most plant operation duties, save that he should avoid heavy lifting, a restriction that has previously been diagnosed as a long-term restriction due to a prior back injury. A former colleague, Mr RA Pye, was called to give evidence in respect of comparable earnings for plant operators. He was presently working on a pipeline project in outback regions, and in cross-examination he conceded that this was not heavy work and agreed that "You just operate the levers" (T 57). This may be something of an understatement, but it does, it seems to me, indicate that it is not necessary to do heavy lifting and labouring type work in order to utilise an economic capacity as a plant operator, provided the other skills are present, and no doubt provided a person is licensed to drive a vehicle. In all of the circumstances, it seems to me that this is a case for a buffer only in respect of future economic loss, which on all of the evidence I assess in the sum of $50,000, inclusive of superannuation.

34. The plaintiff makes a substantial claim for care in respect of accident-related assistance. This is particularised at an ongoing loss in respect of 3 hours a week for the past and the future, and a higher need for the period immediately following the accident and until the first surgery.

35. I accept that the plaintiff would have had a need for domestic assistance following the accident, and at a greater level following the surgery until recovery. His evidence-in-chief was that through 1999, which is the period during which he had the operation and before he returned to work, he was able to do things like hang out washing, although he had a problem with a rug (T 32), and that he would do chores but he would get some pain.

36. He has given evidence that he is now in receipt of a carer's pension which, under the Social Security Act 1991 means that he is providing constant care to his mother. He acknowledged that this has involved activities such as mowing his mother's lawn. To the extent that there has been some re-arrangement of household duties, in relation to which his wife gave evidence, it seems to me that this is now due to his other responsibilities. I would limit his Griffiths v Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161 claim to the past only, in the sum of $10,000 inclusive of interest.

37. This amounts to a total award of $236,926.76 made up as follows:

General damages $ 65,000.00

Interest $ 4,715.00

Past economic loss $ 60,000.00

Interest $ 4,514.00

Future economic loss $ 50,000.00

Past out-of-pocket expenses $ 16,913.52

Future out-of-pocket expenses $ 20,000.00

Griffiths v Kerkemeyer $ 10,000.00

Fox v Wood $ 5,784.24

38. I consider the amount of $236,926.76 to be appropriate in all the circumstances, and I award this sum, with costs.

I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Connolly.

Associate:

Date: 6 August 2003

Counsel for the plaintiff: Mr H Marshall

Solicitor for the plaintiff: Stacks with Snedden Hall & Gallop

Counsel for the 1^st and 2^nd defendants: Mr G McNally

Solicitor for the first defendant: Hunt & Hunt

Counsel for the second defendant: Phillips Fox

Dates of hearing: 5 March and 25 June 2003

Date of judgment: 6 August 2003