McGee v Bacova Holdings Pty Ltd [2003] ACTSC 71 (5 September 2003)

Last Updated: 14 October 2003

JAMIE McGEE v BACOVA HOLDINGS PTY LTD [2003] ACTSC 71 (5 September 2003)

NEGLIGENCE - personal injuries sustained due to slip whilst carrying heavy gate - failure to provide safe system of work - contributory negligence - differing medical opinions as to cause of continuing pain - no issue of principle.

McLean v Tedman [1984] HCA 60; (1984) 155 CLR 306

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

No SC 598 of 2002

Judge: Crispin J

Supreme Court of the ACT

Date: 5 September 2003

IN THE SUPREME COURT OF THE )

) No. SC 598 of 2002

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: JAMIE McGEE

Plaintiff

AND: BACOVA HOLDINGS PTY LTD

Defendant

ORDER

Judge: Crispin J

Date: 5 September 2003

Place: Canberra

THE COURT ORDERS THAT:

1. judgment be entered for the plaintiff in the sum of $90,860.1. This is a claim for damages for personal injuries sustained as a result of an accident on or about 22 June 1998 when the plaintiff, who was employed by the defendant as a car salesman, injured his back whilst attempting to carry a heavy gate from its resting place into position at the front of the defendant's premises.

2. The gate was approximately three metres long and one metre high. It was constructed of two horizontal steel rails and numerous vertical steel poles which protruded above the upper railing and below the lower railing to form spikes. The plaintiff was obliged to manoeuvre the gate through a confined space due to the presence of a nearby pot plant and a parked car. As he attempted to move the gate into position, a section of the vertical spikes protruding from beneath the lower rail caught on his trouser leg and he slipped and fell to his knees. He clearly sustained some injury to his back, though the nature and extent of the injury was disputed.

3. As he readily conceded, staff had been instructed that the gate was to be moved by two people. However, on this occasion the plaintiff, the sales manager Mr Ward, and another salesman Mr Losher, stayed back beyond normal closing times and were only finishing their duties at about 5.45 pm. It was a wet afternoon and all were anxious to get home. Mr Losher began to bring in the numerous flags apparently festooned around the defendant's premises and the plaintiff decided to move the gate. When asked why he did not wait for Mr Losher to assist him, he explained that it had started to rain quite heavily, that it was freezing cold, that he wanted to get home and that, in any event, he was stronger than Mr Losher.

4. Other car sales yards nearby used hinged gates rather than detached gates and the plaintiff and other employees had repeatedly complained about the need to physically carry the gate each morning and afternoon. The gate was apparently mounted on hinges sometime after the plaintiff's accident.

5. Mr Parker, who appeared for the defendant, indicated that he did not wish to be heard on the issue of whether the evidence revealed negligence on the part of the defendant and I am satisfied that a breach of its duty of care to the plaintiff has been established.

6. On the other hand, Mr Parker submitted that the accident would not have occurred had the plaintiff obeyed repeated instructions not to move the gate without assistance and that he had clearly been guilty of contributory negligence.

7. Mr Spry, who appeared for the plaintiff, submitted that, even if the plaintiff's conduct involved some measure of risk, it did not involve any breach of his duty to take reasonable care for his own safety and should not result in any reduction in damages. He cited the following well known passage from the judgment of Mason, Wilson, Brennan, Dawson JJ in McLean v Tedman [1984] HCA 60; (1984) 155 CLR 306 at 315:

As Windeyer J. observed in Sungravure [ [1964] HCA 16; (1964) 110 CLR 24, at p 37], when an employee in a factory sustains injury, the jury in considering contributory negligence may have regard to `inattention bred of familiarity and repetition, the urgency of the task, the man's preoccupation with the matter in hand, and other prevailing conditions'. It is then for the tribunal of fact to determine whether any of these things caused some temporary inadvertence, some inattention or some taking of a risk, `excusable in the circumstances because not incompatible with the conduct of a prudent and reasonable man'. His Honour went on to reject the suggestion that the approach applicable in the case of injury sustained in a factory was inapplicable to activities elsewhere, specifically referring to activities upon a highway.

8. That case had involved an allegation that a garbage collector run down by a car had been guilty of contributory negligence in darting across the road in its path. After noting that the defendant, who was his employer, had sanctioned a system of work involving such conduct, their Honours stated at 315-316:

In concluding that the appellant's conduct amounted to mere inadvertence, inattention or misjudgment, the following factors have impressed us as being significant: (a) the prevailing condition of poor light unquestionably diminished his ability to pick out the vehicle and locate its speed and position accurately; (b) performance of his task necessarily involved preoccupation with the matter in hand; (c) at the relevant time he was carrying on his right shoulder a humper whose capacity ranged between four and eight household garbage deposits; (d) the carrying of this humper on his right shoulder when running across the road would very considerably restrict his capacity to observe an oncoming vehicle and assess its speed accurately; and (e) in order to retain his employment as a garbage collector he was expected to run across the road and keep up with the truck as it moved forward.

9. In the present case, the plaintiff's decision to move the heavy and unwieldy gate unaided was not the product of temporary inadvertence, inattention, misjudgment or the taking of a risk "excusable as not incompatible with the conduct of a prudent and reasonable man". It may have been understandable that a man who had already worked back beyond the normal closing time and who was locking up the yard on a cold, wet afternoon was tempted to move the gate himself rather than wait until a colleague was able to help him. However, those circumstances did not make his conduct less imprudent. Indeed, the fact that the ground was wet may have actually increased the likelihood of him sustaining an injury by slipping as he attempted to carry the gate. He did not claim to have overlooked the instruction due to being distracted by the inclement weather and it seems clear that he simply succumbed to the temptation to disobey it. Furthermore, having regard to the manner in which the accident occurred, I think it is probable that it would have been avoided if he had followed the instruction.

10. Mr Spry argued that the defendant should have realised that employees, such as the plaintiff, might disregard the instruction in circumstances such as those which the plaintiff encountered on the day of the accident. I accept that submission. However, I do not accept that a plaintiff may be wholly absolved from any responsibility for contributory negligence merely because his employer should have foreseen the possibility that he might behave imprudently in circumstances similar to those that transpired. I am satisfied that there was some measure of contributory negligence on the part of the plaintiff.

11. On the other hand, the fact that an employer responsible for devising the relevant system of work should have foreseen such a possibility should obviously be taken into account in the apportionment of responsibility for the accident. In the present case, the defendant not only instituted an unsafe system of work but insisted upon maintaining it in the face of repeated complaints and the knowledge that the risk of injury thereby occasioned could have been substantially alleviated, if not wholly removed, by the simple expedient of swinging the gate with hinges rather than requiring it to be carried into place. In contrast, the negligence of the plaintiff lay only in a spur of the moment decision made in trying circumstances.

12. Accordingly, I find that the accident was 90 per cent attributable to the negligence of the defendant and only 10 per cent attributable to the contributory negligence of the plaintiff.

13. The assessment of damages presents considerable difficulty. I did not form the impression that the plaintiff gave his evidence dishonestly or consciously exaggerated either the severity of his symptoms or their impact upon his lifestyle. However, he was clearly anxious to present his case in the best light and I have some doubt about the accuracy of his recollection as to the onset and development of symptoms, especially during the first two years after the accident.

14. The evidence reveals that on 23 June 1998, which was the day after the accident, he saw Dr Pickup who diagnosed muscle strain, prescribed medication and the use of a hot water bottle and recommended physiotherapy. In his evidence in chief he said that he had returned to work about three days later, though in cross-examination he conceded that he had lost no time from work. When he did return he found that he was unable to get in and out of cars without great pain and was unable to assist in washing them. He initially "put up with" the pain because he thought it would go away and sought no further medical treatment or advice until 1 December 1998. During the intervening period he played a full season of netball, participating every week from 13 July to 9 November 1998 inclusive. He conceded that on some occasions he had played for the entire match but said that on other occasions he had had to go off the court after periods of about 8 to 10 minutes.

15. The further consultation with Dr Pickup on 1 December 1998 was occasioned by the onset of back pain after leaning over a desk and turning. On this occasion Dr Pickup noted he had a tender right mid thoracic spine and facet joint and recommended exercise and the application of heat. She also suggested that he consult a chiropractor to mobilise the area.

16. He saw Dr MacIver on 31 December 1998 and again on 20 January 1999 when six sessions of physiotherapy were prescribed. He may have seen him again on 2 February 1999 though the doctor's notes for that day seem somewhat cryptic. On 7 April 1999 he apparently told Dr MacIver he was having good days and bad days, with the former involving no pain and the latter involving intense pain. He gave evidence of having taken pain medication constantly since about "mid 99 to 2000". However, the records reveal that he participated in a further full season of netball attending each week from 29 July to 21 October 1999 inclusive. He did not return to see Dr MacIver until 7 December 1999, but, when he did, he complained that his back was no better.

17. He next saw Dr MacIver more than a year later on 12 December 2000. During the intervening period the defendant appointed him as the Manager of its Tuggeranong Branch, though he gave contradictory evidence as to both the date of his appointment and the date upon which he subsequently returned to the branch at Belconnen. He resigned from the company effective from 27 July 2000 explaining that the reasons were "mostly of a personal nature". By that time he had already accepted a position at Melrose Hyundai, he explained that he thought that that job would give him a better lifestyle because he would be able to work shorter hours and would not be obliged to wash or move cars. On 5 September 2000 he left that job, having obtained a position at Aussie Home Loans which he thought would give him a better lifestyle "in regards to being able to work hours that would suit [him] in regards to [his] back". In November 2001 he commenced work at Australia Wide Home Loans apparently in order to obtain a higher income. He agreed that his endeavours were producing an income of approximately $2,200 per week gross, though this was apparently diverted into a company structure and his personal income was "a little bit less than that".

18. Dr MacIver originally diagnosed a thoracic costo-vertebral joint dysfunction and concluded that, whilst he would require ongoing physiotherapy, he was fit for employment and would probably not be left with any permanent disabilities. He subsequently formed the view that the plaintiff was suffering from a neurogenic spinal pain disorder.

19. On 4 February 2001 Dr Garth Eaton, an occupational physician, provided a report in which he expressed agreement with the latter diagnosis. Dr Eaton suggested that he should approach the Canberra Injury Management Centre with a view to being assessed as to his suitability to attend a full program. Dr Eaton said that he believed the plaintiff would benefit from attendance at a cognitive behavioural pain management program and that he appeared to need psychological counselling, assistance with relaxation techniques and an exercise program. Dr Eaton also mentioned having ordered a bone scan to ensure that there were no underlying problems that may not have been "elucidated".

20. Unfortunately, no further report was provided by Dr Eaton to reveal whether he had subsequently had the opportunity to examine the images obtained from the bone scan which was carried out on 12 February 2001 or the subsequent CT scan of the plaintiff's chest carried out three days later. Furthermore, his report of 4 February, 2001 did not reveal whether he had seen the earlier x-ray of his thoracic spine carried out on 11 October 1999.

21. Dr Milton Cohen, a consultant physician specialising in rheumatology and pain medicine, saw the plaintiff on 16 August 2001 and expressed the opinion that his pain was best labelled as neuropathic thoracic spinal pain, explaining that the term "neuropathic" implied sensitisation of central nociceptive pathways. He observed that mid thoracic spine pain of this nature is very difficult to treat but suggested the use of an opioid such as methadone and other medication to decrease neural irritability. Dr Cohen also expressed the opinion that the plaintiff would be a good candidate for what he described as the Feldenkrais approach to posture and movement control.

22. Dr Cohen provided a further report in July 2003. However, he had not seen the plaintiff since 16 August 2001 and this report consisted substantially of a recapitulation of the comments he had previously made, though he did add that he would not have expected the plaintiff's problem to have resolved.

23. The plaintiff was examined by Dr Anthony Hodgkinson, an orthopaedic surgeon, at the request of the defendant on 29 April 1999. He reported that the plaintiff had complained of constant deep upper interscapular pain localised to the left scapular and aggravated by reaching forwards and twisting. Dr Hodgkinson did not then have the benefit of any radiological evidence and on examination found minimal evidence of pathology apart from some slight myofascial soreness around the left scapular vertebral border. He expressed the opinion that there had been a degree of embellishment in the plaintiff's description of the injury "in December 1998" and said that he was unable to confirm that this had any direct relationship to any minor myofascial stress that the plaintiff may have suffered in June of that year. He also said that he did not believe that the plaintiff had any serious ongoing disability which would prevent him from undertaking normal activities consistent with his age.

24. Dr Hodgkinson saw him again on 26 April 2001, and provided a further report, though, regrettably, it purported to deal with the possible implications of a lifting incident on 30 November 1998, rather than the incident of 22 June 1998. Dr Hodgkinson reported that the plaintiff had complained of a continuous dull interscapular ache and a jolting pain across the back causing him to fall, though he claimed to have had no memory of these falling incidents. The plaintiff had also said that he experienced back pain when holding things such as a kilogram of sugar or when ironing a shirt or washing up. On examination Dr Hodgkinson found that the plaintiff did not reveal any restriction in his movements but suggested that he had overreacted to a very light touch over the dorsal spines of the thoracic vertebra in the interscapular area and again when his lumbar and lumbo-sacral spine was tilted and rotated. Dr Hodgkinson reported that bone scans and CT scans of the chest revealed sclerotic areas within the fifth and seventh ribs on the right side and suggested these were developmental areas of bone change unrelated to his lifting accident. He concluded that the plaintiff was fit for work and suggested that his description of pain followed by falling incidents was unusual and likely to be attributable to psychological causes.

25. Dr Ross Whittaker, a consultant rheumatologist, provided a report dated 20 March 2003 in which he indicated that he had reviewed the x-ray of the plaintiff's spine taken in October 1999 and the bone and CT chest scans carried out in February 2001. He expressed the opinion that those investigations had revealed a thoracic scoliosis, the existence of which had been confirmed on clinical examination. He said that the plaintiff's ongoing symptoms over the period between the time when pain became a problem towards the end of 1998 and the time of the examination would have been entirely consistent with "mechanical spinal pain due to the scoliosis and increasingly symptomatic with his escalating weight, loss of fitness and inactivity". He said that this proposition was also supported by the fact that the plaintiff had enjoyed a significant improvement with weight loss and the resumption of regular exercise.

26. Doctors Eaton and Cohen were apparently not asked to attend for cross-examination. There was some limited cross-examination of Dr MacIver and of Doctors Hodgkinson and Whittaker, but there was no real challenge to Dr Whittaker's opinion that the plaintiff suffered from scoliosis and no attempt was made to refute that diagnosis.

27. It may be observed from this history that, apart from Dr Hodgkinson who thought that the plaintiff had been embellishing his symptoms, the medical practitioners who examined him between 1999 and 2001 apparently formed the impression that his complaints were genuine.

28. Whilst I have carefully considered Dr Hodgkinson's opinion, I have ultimately concluded that it should be discounted if only because it seems to have been based substantially upon his belief that the plaintiff was exaggerating his symptoms. As I have mentioned, the plaintiff did seem to be endeavouring to present his case in the best light but I did not form the impression that he was deliberately exaggerating the nature and extent of the pain he had suffered.

29. On the other hand, I accept that Dr Hodgkinson may well have been correct in attributing the plaintiff's complaints of falling to psychological causes. The plaintiff did not give evidence of any incidents of falling and none of the medical witnesses ventured any possible physiological explanation for such incidents. I also note that both Dr Eaton in his report of 4 February 2001 and Ms Conroy, a physiotherapist, in her report of 26 June 2001 suggested that the plaintiff should have a psychological assessment.

30. It may also be observed that, apart from Dr Hodgkinson, the medical practitioners who examined him between 1999 and 2001 formed the impression that the plaintiff's pain was neuropathic in origin. However, the only one who referred to the x-ray of the thoracic spine undertaken in October 1999 was Dr Cohen. He thought the radiograph was clear but, as previously mentioned, Dr Whittaker, who examined it in March 2003, thought that it revealed a mid thoracic scoliosis.

31. During his brief oral evidence by telephone Dr Whittaker appeared to be confident of his diagnosis and no reason emerged to doubt its accuracy. His report contained apparently careful analyses of the results of the x-ray, the bone scan and the CT scan and this was augmented by his evidence that the diagnosis of a scoliosis was confirmed on clinical examination and consistent with the history recounted by the plaintiff. I accept his evidence that the plaintiff suffers from scoliosis.

32. Dr Whittaker was plainly of the opinion that the plaintiff did not suffer from neuropathic pain, but that opinion seems to have been based substantially upon the proposition that the scoliosis was sufficient to account for the symptoms described. However, whilst the other medical specialists had not had the benefit of having any recent history of the plaintiff's symptoms, Dr Whittaker had not had the benefit of having examined him during the earlier years and, as I have mentioned, of those who had, all but Dr Hodgkinson thought he was suffering from neuropathic pain.

33. Unfortunately, neither Dr Eaton nor Dr Cohen had apparently examined the plaintiff after 2001 and, as I have mentioned, Dr Whittaker had not examined him prior to 2003. None of the medical witnesses suggested that a person could not suffer from neuropathic pain as well as having scoliosis of the spine. Dr Eaton and Dr Cohen did not advert to the possibility that the scoliosis might be causing the plaintiff pain while Dr Whittaker seemed to think that it was wholly responsible for the pain. Having considered the competing opinions carefully, I have concluded that Dr Whittaker's subsequent diagnosis of scoliosis in 2003, albeit based in part upon an x-ray taken in 1999, does not preclude the conclusions drawn by Drs Eaton and Cohen in 2001 that the plaintiff was then experiencing neuropathic pain.

34. In all the circumstances, I think it is probable that he did suffer some measure of neuropathic pain as a consequence of the accident. I also think it probable that the inactivity and resultant weight gain caused by the plaintiff's response to his neuropathic pain may have aggravated or even, perhaps, accelerated the onset of symptoms caused by the scoliosis. Hence, whilst I am unable to be satisfied that the accident was responsible for all of the pain he has experienced, the plaintiff is entitled to be compensated both for the neuropathic component of his pain and for a temporary aggravation or premature onset of symptoms due to his spondylitic condition.

35. The evidence does not permit any accurate assessment of the extent to which his pain has been and may in the future be attributable to neuropathic causes rather than to the scoliosis and some of the evidence is capable of supporting competing hypotheses. For example, whilst Dr Eaton's evidence suggested in 2001 that an exercise program might improve the strength and flexibility of his back and hence reduce neuropathic pain, Dr Whittaker's evidence supported the view that the plaintiff's subsequent improvement in symptoms with weight loss and resumption of regular exercise indicated that there had been a reduction in the pain caused by scoliosis. However, the fact that there may be a paucity of evidence does not relieve a judge of the obligation to do his or her best to assess an appropriate level of damages.

36. The onus of proof rests on the plaintiff and I am not satisfied that in the period immediately after the accident his symptoms were as severe as they subsequently became. On the contrary, the paucity of medical consultations, the maintenance of a full employment schedule and his regular participation in the netball competitions during late 1998 and 1999 all suggest that his symptoms became progressively more severe as time passed. There may be other possible explanations for such an exacerbation in his condition, but the most likely explanation appears to be the onset of pain due to the scoliosis, albeit precipitated and/or aggravated by reduced exercise or weight gain. The combination of these factors has clearly had a significant impact upon his lifestyle. He experiences chronic pain, is unable to drive for extended periods, unable to carry his two year old daughter for more than five to ten minutes and unable to do much of the work around the house that he had formerly done. His sporting and leisure activities have also been substantially restricted. Doing the best I can to assess an appropriate sum to compensate him for the pain attributable to the accident, including any precipitation or aggravation of his spondylitic condition, I allow the sum of $40,000, apportion $25,000 of this amount for the period up to the date of trial and allow a further sum of $2,500 for interest on this component.

37. Fortunately, the plaintiff's decision to move into mortgage broking proved successful and his income has been substantially higher than that which he earned as a car salesman with the defendant. It is true that he received a reduced income during the short period he worked at Melrose Hyundai but I am not satisfied that his decision to accept that position was wholly or even predominantly attributable to the pain he was then experiencing, let alone to that component of the pain attributable to neuropathic causes. He had continued to work for the defendant for more than two years after the accident and during that period had apparently not been obliged to take any time off work as a consequence of back pain. In fact, he had continued to work up to sixty hours per week. He did not suggest in evidence that he would have been unable to reduce those hours had he chosen to do so. At the time of his departure from the defendant's employment in July 2000 he had apparently not consulted a medical practitioner for more than seven months. His letter of resignation adverted only to "personal reasons" and did not suggest that he had been unable to maintain the position because of the condition of his back. In any event, he made it plain that but for the accident he would have continued in his career as a car salesman and the evidence did not establish that, had he done so, the total income he would have earned to date would have been greater than that which the evidence revealed he had actually earned. Mr Spry did suggest that he may have suffered some loss in his business as a mortgage broker due to his inability to continually drive long distances from Canberra in order to follow up leads to potential customers. However, the evidence suggested that he had adopted the practice of spending Wednesday and Friday afternoons with his family rather than working but that he frequently saw customers at night and was generally quite busy. I am unable to accept that any quantifiable loss was demonstrated.

38. Nevertheless, a plaintiff is entitled to some measure of damages for loss of earning capacity even if that has not been shown to have produced a quantifiable loss. In the circumstances proven in evidence, I think it is likely that the neuropathic component of the pain caused some diminution in his earning capacity during the relevant period by limiting his ability to carry out physically demanding tasks. However, in my opinion, the evidence justifies only a modest award for this component of the plaintiff's damages. I allow the sum of $18,000 inclusive of any loss of superannuation and interest.

39. Similarly, I accept that there may have been some diminution in his future earning capacity, though the task of assessing an appropriate component of damages must be undertaken in the face of further imponderables. I am unable to determine to what extent, if any, his present symptoms are attributable to pain of neuropathic origin rather than to the scoliosis identified by Dr Whittaker. I am uncertain as to how long he may continue to experience some pain attributable to that cause and uncertain as to what, if any impact, it may have upon his future income. Furthermore, whilst his income as a mortgage broker presently exceeds that which he was earning as a car salesman, I am unable to determine whether he would continue to enjoy such a level of income if there were to be a substantial downturn in the housing market and, if so, whether his earning capacity in any other occupation he may be forced to adopt as a "fallback position" would be adversely affected by pain and disability attributable to the accident. Again, I am satisfied that the plaintiff is entitled to some compensation for loss of earning capacity but not satisfied that the evidence justifies any more than a relatively modest award for this component of damages. I allow the sum of $35,000.

40. I accept that his wife and father in law have shouldered much of the responsibility for such domestic activities as cleaning, mowing the lawns and child care that he would have accepted had it not been for his chronic pain. However, he takes his daughter to a play group on Wednesdays and is clearly able to do other domestic chores. If, despite any necessary reallocation of duties, he has, nonetheless, been obliged to depend upon others for some time each week, I am unable to be satisfied that such reliance is attributable to neuropathic pain rather than pain due to scoliosis. Accordingly, I am unable to make any award pursuant to the principles in Griffiths v Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161.

41. It has been agreed that out of pocket expenses total $5,454.82.

42. For these reasons, I assess damages in the sum of $100,954.82, which I round up to $100,955 and reduce by 10% for contributory negligence.

43. There will be judgment for the plaintiff in the sum of $90,860.

44. I will hear counsel as to costs.

I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Crispin.

Associate:

Date: 5 September 2003

Counsel for the plaintiff: Mr M Spry

Solicitor for the plaintiff: Howes & Kaye

Counsel for the defendant: Mr G Parker

Solicitor for the defendant: Dibbs, Barker, Gosling Lawyers

Date of hearing: 11, 12 August 2003

Date of judgment: 5 September 2003