VUKOVIC v PERRYMAN SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL HANDLEY JA, CLARKE, and GROVE AJJA 14 April 1997, 14 April 1997 [1997] NSWCA 332 Negligence — trenching works near railway — workman struck by backhoe jib — attempting to clear imminent danger by standing on dumpster load contrary to standing order — no other practicable course — finding of contributory negligence quashed — damages — manifest overestimate of value of residual capacity adjusted Grove J There is before the court a cross appeal brought by Peter Vukovic who had been the plaintiff in an action in the District Court in which Philip Perryman and the State Rail Authority of New South Wales were defendants. They are the respondents to the cross appeal. It will be convenient for present purposes to continue to refer to the parties as plaintiff and defendant. The relevant proceedings were the subject of a judgment given by Garling DCJ on 27 October 1994. The cross appeal is expressed in multiple grounds but essentially two issues are raised and the parties have argued the matters before this court in that fashion and I will adopt it. The broad facts are that the plaintiff (who was employed by the second defendant) was working in certain operations excavating a trench between railway lines in the inner western suburbs of Sydney. He was the driver of a dump truck which was obviously available to be used to remove extracted material and the defendant Mr Perryman was the operator of a front end loader which was fitted with a backhoe implement. At the relevant time it was this implement that was being used and the loader had been rendered immobile for that purpose. As the backhoe extracted material forming the trench the extract was loaded into the dump truck being operated by the plaintiff. It was the plaintiffs case that for purposes to which I will turn he was standing on the load in the dump truck when he was struck by the bucket on the moving jib of the backhoe. At the time there had been signalled the approach of a train on an adjacent railway line. It can be observed that at trial the central issue litigated between the parties was whether the plaintiff was struck by the moving bucket at all or whether in some fashion he simply fell from the back of the loader. This would involve a descent to the ground of something in the order of two metres or six feet. The issue of contributory negligence at trial seems to have emerged during the course of hearing. Our attention was drawn to a remark by senior counsel for the defendants (who did not appear in the appeal) when he said to the trial judge, "T really think it is an all or nothing case your Honour, I cannot see and I think my learned friend would agree with me, how contributory negligence would come up. He was either injured in the way he says he was, or he was not." It is important to observe at the outset that in relation to this dispute the trial judge found primary negligence in favour of the plaintiff and that is not the subject of the present challenge. The issue of contributory negligence acquired significance in the light of the finding by the trial judge in these terms. 2 UNREPORTED JUDGMENTS "T am satisfied that the plaintiff contributed to this accident by putting himself in a position of danger on the back of the truck and by staying there whilst a train was approaching when he knew or should have known that the bucket would have had to be lifted out of the way of the train and the only place it could have gone was towards the back of the truck." This proposition, especially as to the last part of it, appears never to have been put to the plaintiff at trial. There was no explanation of how he ought to have known that he was to be struck by the bucket. The case that did emerge in relation to contributory negligence appears to have centred upon the evidence that the plaintiff did not obey a standing order not to get on the back of the truck in any circumstances. This disobedience needs to be looked at in the context of what was happening at the time. There were several descriptions of this piece of material (some of them appear to have been inapt) but it can be said that amongst the material extracted by the backhoe was a lengthy piece of thick stranded wire which had been placed on the dump truck in such a fashion that there was an overhang. On top of this further material was extracted by the backhoe and placed above it. It was common ground at trial that the dump truck ought not proceed with this overhang because of its obvious potential, not only to strike workers but perhaps to interfere with signalling systems which were nearby to the site of operations. Thus it was that the plaintiff was faced with a situation that this danger needed to be remedied. What his Honour found in relation to this matter was expressed in these terms: "Mr Gray the ganger gave evidence that the members of the gang have been told not to stand on the back of these dumpster trucks and if they had to cut off the edges of slings they did it with a sledge hammer. Mr Gray said it was dangerous to stand on the back of trucks and I accept his evidence. It was argued that this was the only way the plaintiff could have done this job but I reject that. There were numerous ways in which this job could have been done without the necessity for the plaintiff to stand on the back of the dumpster." In relation to the suggestion that the piece of material as described in the evidence to which I have earlier referred as thick stranded wire, it is difficult to contemplate how this could be safely severed by a sledge hammer. In any event it is not necessary to rely upon that difficulty of contemplation because if one turns to the evidence of Mr Gray it is apparent that when speaking of the use of a sledge hammer he was not referring to material of that description. He was asked about the proposition that drivers of dumpsters would use this method but it is clear that he was referring to what he described as "mostly signal cables, they were only small wire black ones" and he later added the description that these were plastic and fine copper wire mainly. The evidence showed only one other proposition being explored as to a method of removing the danger of the overhang of the wire from the dumpster and that was for a workman such as the plaintiff to roll up the wire and then place it on the back of the truck. This was explored in some cross-examination of the plaintiff. He was asked these questions and made these replies. "Q. Do you agree with me that the orders of your superiors to you were that if any intrinsic material had to be removed from the load it was to be done so from the side or the front of the truck, never by standing on the load. A. Well, this was hanging on to the side. Q. Yes; and you could have removed it from the side could not you? URJ VUKOVIC v PERRYMAN (Grove J) 3 A. No, I couldn't do it from under there because I had to pull it up and roll it because it was high." This evidence of the plaintiff was not challenged. He later testified that the supervisor was not there and thus he was unable to make a request to him that he should ascend to the back of the truck. If one excluded then the two possibilities of using a sledge hammer and rolling up the wire there was really, so the evidence showed, only one alternative left for the removal of the danger and that was by the plaintiff ascending to the back of the dumpster himself. This is what the plaintiff in fact did. It is perhaps worth observing that Mr Perryman, the driver of the backhoe, was at one stage specifically aware of the circumstance that the plaintiff was standing on the dumpster. It is true that he gave this evidence in the context of his proposition that the plaintiff had or must have in some fashion simply fallen off the back without being struck by his backhoe. He was asked this question, "Q. No, but at the time you put the - I am sorry to interrupt, but at the time you put the bucket on the edge of the dumper body, where was Mr Vukovic? A. Vukovic was standing on the dumper." As I have noted in relation to the happening of the accident in connection with the plaintiff being struck by the hoe bucket, the learned trial judge accepted the evidence of the plaintiff. That seems to me to have included his evidence that he gave a signal to Mr Perryman of a type which police on traffic control duty give, but Mr Perryman did not see it. The accident occurred when the bucket struck the plaintiff. One therefore turns to the critical observation by the trial judge that there were numerous ways in which this job could have been done without the necessity for the plaintiff to stand on the back of the dumpster. That finding is not supported by the evidence. In those circumstances therefore in my view the appeal should be upheld and the finding of contributory negligence should be quashed and a judgment for the plaintiff for damages undiminished on that account should be entered. I turn to the second issue which was agitated in the cross appeal. This related to the evaluation of residual earning capacity retained by the plaintiff. There was no viva voce medical expert testimony taken at the trial and this court is in a position to examine that evidence. The trial judge observed, "There is little dispute on the medical evidence however I prefer the opinion of the treating doctor, Dr Weisz, to the other doctors. He is in the best position to assess the plaintiffs position." It suffices for present purposes to examine that evidence. In February 1991 Dr Weisz by way of prognosis made these observations concerning the plaintiffs incapacity. "He would remain unfit for any kind of physical activity, particularly lifting and carrying heavy loads, prolonged pedalling and travelling or driving industrial vehicles that would have offending trepidation effect upon the lumbar spine. He should soon settle to such a condition in which sedentary type of duties from alternating position, working with his hands, would be conceivable. He should lose additional weight and a final description for re-affirmation of his ability to return to work would be available in three to four months from now." He reported further in March 1991 and this was merely confirmatory of what he had said before. His final report is dated 8 March 1994. Significantly he made these observations. 4 UNREPORTED JUDGMENTS "In the past I have concentrated on his major pathology namely the lumbar spine. This is by now stable, well consolidated fusion, evidenced clinically and radiologically. His previously expressed restrictions and permanent impairment remain valid on permanent basis." He made further remarks concerning the shoulder injury. He described the treatment that had been given and concluded, "The treatment is conservative and only in extreme should surgery be considered. This condition is permanent and would be approximately equivalent to a 5-10% impairment to his left upper extremity, above the elbow. This condition will prevent him from lifting and carrying loads with his left non-dominant upper limb." His Honour's findings in relation to the plaintiff's capacity were these, "The plaintiff has got a good working history, the doctors all say he is fit for light duties. He does not have a good command of the English language. He is 53 years of age. He cannot work in the sort of work he used to do prior to the accident and the outlook does not look good. However no doubt there are many jobs available to the plaintiff. Although he has the view he cannot work that is not the view of the various doctors and I have no doubt there is suitable work he could do." An attack was made upon his Honour's observation that all doctors say that the plaintiff is fit for light duties but it does not seem to me that it is presently necessary to recite the various opinions of the doctors. No doctor to my observation said the plaintiff was totally unfit for ever doing anything at all although some of them made gloomy prognostications as to the likelihood of the plaintiff re-entering the workforce. On the findings that he made, the trial judge evaluated the residual capacity of the plaintiff at $250 per week as against an agreed uninjured capacity to work as a labourer of $580 per week. As senior counsel for the plaintiff has pointed out that involves a finding that the residual capacity is equivalent to some 43 percent of uninjured capacity. There was evidence of the plaintiffs background. He had very little education even in his native Croatia. He has still some inhibitions as to language skills. Throughout his life he has always worked as a labourer. None of this was in dispute. Cross-examination at trial was directed towards the plaintiff's motivation to re-enter the workforce although it has to be observed that there was no suggestion made to him of any specific employment that he might be able to undertake. The medical opinion as I have noted was all taken by way of report. In all the circumstances I would conclude that a figure of $250 per week overvalues the residual capacity of the plaintiff to the point where intervention by this court is provoked. The matter is one necessarily for a broad judgment but in my view in lieu of $250 per week as the value of residual capacity I would substitute $ 150 per week making a loss of $430 per week over 12 years instead of $330 over that period awarded by the trial judge. I therefore propose that the cross appeal be allowed with costs and judgment substituted for the plaintiff for an amount calculated in accordance with the foregoing reasons. Handley J I agree. Clarke J I also agree. URJ VUKOVIC v PERRYMAN (Clarke J) 5 Handley JA: The order of the court is cross appeal allowed with costs, parties to bring in short minutes. The respondents to have a certificate under the Suitor's Fund Act if qualified.