Walters v Canberra Girls' Grammar School [2007] ACTSC 52 (17 July 2007)

Last Updated: 28 July 2008

SCOTT ANTHONY WALTERS v CANBERRA GIRLS' GRAMMAR SCHOOL

[2007] ACTSC 52 (17 July 2007)

EX TEMPORE JUDGMENT

State Government Insurance Commission v Oakley 1990 Aust Torts Reports 81-003 at 67557

Bankstown Foundry Pty Ltd v Braistina [1986] HCA 20; (1986) 160 CLR 301

No. SC 246 of 2006

Judge: Master Harper

Supreme Court of the ACT

Date: 17 July 2007

IN THE SUPREME COURT OF THE )

) No. SC 246 of 2006

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: SCOTT ANTHONY WALTERS

Plaintiff

AND: CANBERRA GIRLS' GRAMMAR SCHOOL

Defendant

ORDER

Judge: Master Harper

Date: 17 July 2007

Place: Canberra

THE COURT ORDERS THAT:

1. Judgment be entered for the plaintiff in the amount of $97,444.26.

2. The defendant pay the plaintiff's costs up to 4.00 pm on 15 November 2006.

1. The plaintiff claims damages for personal injury arising out of an incident in the course of his employment with the defendant on 6 April 2004. The plaintiff was born on 1 November 1967 and is now 39. He was 36 at the date of the accident. He had suffered some injuries earlier in his life, including a fractured right elbow in a motorcycle accident, but I accept his evidence that he had no continuing symptoms or disabilities arising from any injuries that he had suffered prior to the injury the subject of this claim.

2. The plaintiff is a qualified plumber, drainer and gasfitter. Towards the end of 2003 he devoted his working hours to establishing a business as a plumbing and gasfitting maintenance service. With a view to getting that business established he purchased an appropriate motor vehicle and supplemented his tools of trade. He undertook some work in the business, but not surprisingly for a business that had been operating only for a matter of months, he was not yet making a profit. He decided in April 2004 to apply for a position as a groundsman with the defendant at the Canberra Girls' Grammar School in Deakin.

3. He was interviewed for that position by, among others, Mr Grebert, the school property manager. There is some conflict in the evidence as to precisely what was said during the interview in relation to the plaintiff's intention as to the future. The plaintiff's evidence is that he took the job with a view to earning a regular income, intending to build up his business until a point was reached where he could give up work as an employee and devote himself entirely to the business. His evidence is that that was a longstanding ambition and something that he wanted to do. I accept that he saw attractions in being his own boss.

4. Mr Grebert gave evidence that he asked the plaintiff at interview why he was applying for a job for which he appeared overqualified. The plaintiff's response was that he had his own business but he wanted to wind that down and settle down with his partner and have a family, reduce his working hours, and earn a regular income. Mr Grebert did not have, understandably, a precise recollection of the words used.

5. It seems to me likely that the plaintiff did answer questions about his intentions which were aimed at assisting him to obtain the job. He may well have given an impression about his reasons for wanting the job which were not entirely consistent with his real ambitions. I accept his evidence that his intention was to use the time working at the school to establish his business, with a view eventually to leaving the employment of the school and working full-time in his business.

6. The plaintiff started work at the school about three weeks before the accident as a groundsman and plumber. Mr Grebert explained that the duties of the position were expanded to reflect the plaintiff's experience and qualifications as a plumber, although he would not have been expected to undertake all of the plumbing work that the school might have required.

7. On the day of the accident, 6 May 2004, a cupboard had been delivered to the main building of the school, which housed upstairs dormitory accommodation for boarders. The cupboard had been placed inside the building on the ground floor. Mr Grebert directed the plaintiff and a fellow employee, Chris Ayaniseba, to move the cupboard up the stairs and into one of the dormitory rooms. He took the plaintiff up the stairs to the bedroom where the cupboard was to be installed, to show him the route that was to be taken. Mr Grebert has no specific recollection about these events and is unsure whether it was he or another member of the school staff who gave the directions, but I accept the plaintiff's evidence that it was Mr Grebert who did so.

8. The plaintiff had been at the school for only three weeks. The fellow worker, Mr Ayaniseba, was an employee of longer standing. The plaintiff says that they were told to go to the store and get a trolley. I have had the benefit of a view. I have seen the building, including the ground floor and the upper floor and the staircase, and a cupboard identified as being either the cupboard in question or one virtually identical to it. I have also had the opportunity to see the trolley. It is a stair-climbing trolley with three wheels on either side. It is about chest high to me. I think my height is about 173 cm. It has a platform at the front, agreed to be about 350 mm wide by 250 mm in forward protrusion, with rails 350 mm apart. The trolley at the time was equipped with a strap of similar width and strength to a car seatbelt, long enough to be taken around the cupboard and connected by a hook to the trolley, and tightened by means of a winding handle and ratchet mechanism.

9. The cabinet is agreed to be 1.8 metres high, 900 mm wide and 600 mm deep, and to weigh 90 kg. I accept the evidence of the plaintiff that he and his colleague were not given any instructions as to how they were to go about the task of getting the cupboard from the ground floor to the upper floor, other than that they were to use the trolley. They had some discussion between themselves. They agreed to put the trolley under the cupboard from one side and to put the strap in place around it, and to wheel it up the stairs backwards.

10. The staircase was an enclosed staircase with, as one approached it ascending from the ground floor, a flight of stairs going up to a halfway landing, with a wall on the left, to which was attached a timber banister, with a banister on a balustrade on the right. From the landing the staircase consisted of a second flight in the opposite direction to the first flight of about the same dimensions to the upper floor. The staircase appeared to me relatively narrow. I accept that it is about 1.2 metres in width.

11. The plaintiff and Mr Ayaniseba manoeuvred the cupboard on the trolley up the first flight of stairs to the landing. The plaintiff's evidence is that they had difficulty turning it 180^o to get it up the second flight. The plaintiff was holding the handles of the trolley and was going up ahead of the load backwards. His colleague, who he described as a very small man, was at the lower end pushing.

12. The plaintiff's evidence is that they could not get the trolley and cupboard around the corner and up straight. They found that they had to get it on to the bottom step with the trolley at an angle. They had to shuffle it up onto the upper flight of stairs. In the course of this manoeuvre one of the wheels of the trolley fell back down a step and the cupboard fell to the plaintiff's right. As he explained it, this twisted his forearm around in an anticlockwise direction. He felt immediate pain. He called out to his colleague to stop. Another man heard him call. This man was not a member of the school staff, but it is not clear who he was. He came and helped the two men to manoeuvre the cupboard on the trolley up to the top of the stairs. They were then able to move it to the bedroom and put it in place.

13. The plaintiff had considerable pain in the arm. He thought that he might have torn or pulled a muscle. He hoped that it would recover soon, without any need for treatment. His optimism was not borne out. On 17 May, eleven days after the accident, he went to see his general practitioner, Dr Shihoff at Lyneham, who referred him to the Sports Medicine Centre, where he went two days later and was treated by Dr Masci.

14. The plaintiff returned to work at the school on 8 June 2004, working reduced hours, four hours a day five days a week. On 29 June those hours were reduced further to two hours a day five days a week. On 30 August 2004 he resigned from his employment with the defendant, having found other employment. Two weeks later he started with his present employer, Elgas, where he is employed in a managerial sales and customer relations position. This does not involve him in heavy physical work, but only in office work and customer relations, which requires him to drive in his company car to customers in the Canberra region to ensure that their needs for bulk gas are looked after.

15. The injury to the plaintiff's right forearm was later diagnosed as a partial tear of the right wrist extensor tendon, a tendon which extends from the elbow to the wrist. The tear was at the origin of the tendon, off the lateral epicondyle of the humerus. There was an issue at trial as to whether wrist symptoms which were said to have developed some months after the accident were causally related to the original injury. This gave rise to an issue between the plaintiff and the defendant's workers compensation insurer as to payment of expenses for treatment of the wrist.

16. I note that when the plaintiff first saw Dr Masci on 19 May 2004, Dr Masci noted that pain was produced on extension of the wrist. Dr Masci diagnosed tendonopathy of the wrist extensor tendon. Mention of the wrist appears in Dr Masci's note at almost every attendance on the plaintiff over the ensuing weeks. There is an issue between medical experts about the involvement of the wrist, which I resolve in the plaintiff's favour.

17. Dr Ross Whittaker, a consultant rheumatologist who examined the plaintiff at the request of the defendant's solicitors in February 2006, expressed the opinion that the plaintiff's right wrist symptoms were unrelated to the work injury, but Dr Whittaker arrived at that opinion in the light of a history that the plaintiff had first reported right wrist symptoms to Dr Masci on 19 October 2004, some five months after the injury. This was not an accurate history.

18. Interestingly, Dr Whittaker noted tenderness over the wrist and a small palpable nodule which he thought might have been a ganglion. He also noted that resistance of wrist extension caused pain in that area, precisely the same finding which Dr Masci had recorded within two weeks of the injury. The ganglion was not picked up until a little later by those treating the plaintiff. He was referred in the middle of 2006 to Dr Katherine Gordiev, an orthopaedic surgeon, who did not immediately detect the ganglion but did so on review two months later. She performed surgery on the wrist for the purpose of removing the ganglion in August 2006. Dr Gordiev expressed the following opinion:

Given the temporal relationship between the incident, the symptoms and the appearance of the ganglion, I would have to attribute the appearance of the ganglion to the incident. It is likely that it would fully account for it.

19. I accept Dr Gordiev's opinion in that regard. The plaintiff was provided at the expense of the workers' compensation insurer in December 2004 with a gym program. Dr Masci recommended this to the insurer, suggesting that the gym program should be under the supervision of a personal trainer. The insurer agreed to fund the gym program but not to pay for a personal trainer. On 6 February 2005 the plaintiff was at the gym using a rowing machine when he felt what was described as a "twang" in his back - a sharp pain. Thereafter the plaintiff required treatment for his low back for some time. He continues to complain of some low back symptoms.

20. Counsel for the plaintiff submits that the injury to the low back and its consequences should be regarded as a consequence of the original injury, but I am not persuaded that that is so. True it is that if the plaintiff had not been using the rowing machine at the gym he would not have suffered the injury, and that if he had not injured his right arm he would not have been at the gym. But it seems to me that causation somewhat closer than that needs to be established.

21. Counsel for the plaintiff also submits that if the insurer had accepted Dr Masci's recommendation and engaged a personal trainer, then the back injury would not have happened. I cannot be sure that that is right, in the absence of any expert evidence about it. I am satisfied that Dr Masci in recommending the engagement of a personal trainer was concerned to ensure that appropriate exercises were put in place to strengthen the plaintiff's right forearm, rather than to protect the plaintiff against injury to some unrelated part of his body.

22. It seems to me that the injury should be regarded, to quote Malcolm CJ in State Government Insurance Commission v Oakley 1990 Aust Torts Reports 81-003 at 67557, as a subsequent accident which would have occurred had the plaintiff been of normal health. The damage sustained included no element of aggravation of the earlier injury. In those circumstances, his Honour said the subsequent accident and further injury should be regarded as causally independent of the first. It seems to me that that is the correct analysis of the present fact situation.

23. The plaintiff has continued to work with Elgas and fortunately has suffered no actual loss of income beyond that for which he has been compensated by the workers' compensation insurer. He is now at a stage where he continues to suffer from time to time from some low back symptoms. There are some activities he avoids because of low back problems. He also experiences pain from time to time in the right wrist in cold weather in the form of aching, and at any time of the year in the form of shooting pains which are probably activity related.

24. It is not in contention that the plaintiff's continuing wrist symptoms would preclude him from engaging in the full work of a plumber, drainer and gasfitter, although it may be also that his capacity to engage in work of that kind would be considerably restricted in any event by his low back symptoms. There are other activities which the plaintiff used to enjoy which are no longer available to him because of his wrist, including riding his motorcycle, which he now does only occasionally and which was a particularly enjoyable recreational activity for him previously, the difficulty with motorcycling principally being the use of the accelerator mechanism on the right handlebar of the bike. He still goes camping and fishing with friends sometimes, but he used to engage in a considerable amount of bushwalking and no longer does that. He used to play the drums for enjoyment, having a drum kit at home, and he no longer does that either.

25. As far as liability is concerned, counsel for the defendant submits that the defendant has done nothing which could be categorised as breaching its admitted duty of care to the plaintiff. It is my view that considerably more could have been done on the morning of the incident. The plaintiff was given no instruction as to how to go about the task which, it seems to me, was a difficult and complex one, of manoeuvring a 90 kg cupboard up a flight of stairs with a 180^o bend halfway up them on a trolley. He was given no instruction about the best way to put the cupboard onto the trolley, or rather to put the trolley under the cupboard. He was given no instruction about the best way to get it up the stairs and around the bend halfway up the stairs. Rather, the plaintiff and his fellow employee were left to their own devices to discuss and work out for themselves how to go about what proved to be a task with some perils about it.

26. I will make brief reference to Bankstown Foundry Pty Ltd v Braistina [1986] HCA 20; (1986) 160 CLR 301, where the High Court dealt with the issue of the scope of an employer's duty to an employee, and also with the question of what conduct on the part of an employee might be seen as contributory negligence. It seems to me sufficient to say that the employer in this case failed to provide the plaintiff with a safe system of work and exposed him to an unnecessary risk. It may well have been, and seems to have been, the case that cupboards of the same dimensions had been moved using the same or a similar trolley up the stairs many times in the past without employees suffering injury, but that, it seems to me, is not the test. I am satisfied that the system of work was not as safe as it could have been, and that it did expose the plaintiff to an unnecessary risk of injury which materialised.

27. Counsel for the defendant submits that if I arrive at that conclusion I should find that the plaintiff was guilty of contributory negligence in failing to ask for help, and in continuing to carry out a task which was clearly to him one that he could not cope with, simply with the aid of a fellow employee. The High Court in Braistina drew a distinction between, on the one hand, mere inadvertence, inattention or misjudgment on the part of an employee and, on the other hand, negligence rendering the employee responsible in part for the injury. It seems to me that if the plaintiff could be criticised in the circumstances of this case, any criticism would be for misjudgment and would fall far short of negligence rendering the plaintiff himself partly responsible for his own injury.

28. In those circumstances, the plaintiff is entitled to succeed without reduction. As I have said earlier, his damages must be assessed on the basis that the injury to the back at the gym in the rowing machine incident is not something for which the defendant is liable. The defendant's liability is limited to the forearm injury, that is the injury to the extensor tendon, involving both the elbow and the wrist.

29. It is agreed that the plaintiff has suffered no loss of earnings other than the amount of $8,437.11, being the gross amount paid by the workers' compensation insurer for his absences from work between May and September 2004. That being a gross amount, no additional compensation referable to Fox v Wood is appropriate, and the plaintiff is entitled to that amount by way of damages for past economic loss.

30. In relation to treatment expenses, the workers' compensation insurer has paid a total of $7,452.20 which it is agreed I should allow in full. In addition to that, the plaintiff has paid expenses himself of $2,654.95. That amount will also be allowed. The amount having been paid by the plaintiff attracts interest at commercial rates, for which I allow $400.00.

31. I have heard submissions from counsel as to whether I should make any allowance for loss of earning capacity for the future, in circumstances where the plaintiff is presently earning no less than he would have been earning but for his injuries, and, as long as he keeps his present job, may never suffer any diminution in earnings. However, I am satisfied that the plaintiff's capacity to earn income is impaired, in that it is no longer open to him to work as a plumber, drainer and gasfitter because of the problems with his right wrist.

32. It may be said that he would in any event have been precluded from working in that capacity because of his low back. At the same time I take account of the fact that, as a master tradesman, it may have been manageable for him to cope with low back problems by the employment of labour. His wrist undoubtedly precludes him from working in that field in any event. I propose to make some allowance as a component of general damages, rather than attempting to award any specific amount for loss of earning capacity.

33. I have taken into account the plaintiff's pain and suffering and interference with his enjoyment of life, past and future, and impairment of earning capacity, I propose to award an amount of $75,000.00 for general damages, of which I apportion $40,000.00 to the past. The past component attracts interest at the rate of 4% in accordance with High Court authority. I note that the pain and suffering and other effects were probably greater in the period immediately after the accident, and I allow interest of $3,500.00.

34. I order that judgment be entered for the plaintiff for $97,444.26.

35. To reflect a Calderbank offer made by the defendant which the plaintiff did not accept, I order that the defendant pay the plaintiff's costs up to 4.00 pm on 15 November 2006. I make no order as to costs subsequent to that date.

I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master.

Associate:

Date: 17 July 2007

Counsel for the plaintiff: Mr F M G Parker

Solicitors for the plaintiff: Baker Deane & Nutt

Counsel for the defendant: Mr G A Stretton

Solicitors for the defendant: Sparke Helmore

Date of hearing: 16, 17 July 2007

Date of judgment: 17 July 2007