New South Wales District Court CITATION: Scott Cole v DIB Group trading as DIB Group Pty Limited trading as Hill & Co & Anor [2008] NSWDC 201 HEARING DATE(S): 15 -16 September 2008 JUDGMENT DATE: 19 September 2008 JURISDICTION: Civil JUDGMENT OF: Goldring DCJ DECISION: Verdict for the plaintiff against the first defendant in the sum of $318,719.23 CATCHWORDS: TORT - Occupier's Liability - Workers Compensation - breach of duty by employer - no contribution LEGISLATION CITED: Workers Compensation Act 1987 Civil Liability Act 2002 CASES CITED: Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99 Fox v Wood (1981) 148 CLR 438 Scott Cole (Plaintiff) PARTIES: DIB Group trading as DIB Group Pty Limited trading as Hill & Co (First Defendant) Gibarco Australia Pty Ltd (Third Defendant) FILE NUMBER(S): 1325 of 2007 COUNSEL: A J Lidden SC with E E Welsh (Plaintiff) R Cavanagh (First Defendant and Third Defendant) SOLICITORS: Brydens Law Boyd House & Partners JUDGMENT Introduction 1. Scott Cole claims damages from DIB Group as a result of injuries he suffered on 30 June 2005, when he stepped on a pit cover at the Goulburn Mobil Depot, which DIB occupied. His foot slipped into the pit and he suffered a serious and complex fracture of the left ankle, as well as further complications. 2. He also sued Gilbarco Australia Pty Limited, but there was no evidence that it was liable, and there will be a verdict in its favour. Mobil Oil (Australia) Limited was also sued, but those proceedings were discontinued. 3. DIB raised as a defence the provisions of the Workers Compensation Act, s 151Z, because, at the time, Mr Cole was employed by Finemore's Transport, and DIB says the employer was in breach of its non-delegable duty to provide a safe system of work. It also raised contributory negligence. 4. The accident happened about 6.40 a.m. I infer that, given the date of 30 June, the light (if any) would have been very faint dawn, although there was evidence that some areas of the depot were lit, Mr Cole says this area was not well lit and it was hard for him to see. He had arrived with a load of fuel in the tanker he was employed to drive. In order to discharge the fuel, he was required to walk from the tanker to the static fuel tank and open a series of valves. When unloading was complete, he had to walk back and close the valves, and this is what he was doing when he fell. Occupier's liability 5. The pit appears from the photos in evidence to be about 60-80 cm square. The evidence was that it was only about 20-30 cm deep. It is surrounded by rectangular pieces of wood, which were a centimetre or two above the ground, and the lid, at the time, was solid metal. According to Ms Skelly, who was then the Occupational Health and Safety supervisor at Finemore's, when she visited the site shortly after Mr Cole fell, she found that the lid was supposed to rest firmly on a concrete rim within the pit, but that the concrete corners of the rim had been chipped away to make the lid easier to remove. This made it unstable when weight was placed on the corner. 6. Ms Skelly, and Mr Byrd, her counterpart employed by DIB, produced a report on Mr Cole's accident, recommending that the pit and its cover be changed to prevent future accidents of the same type, and this was done, but not immediately. The changes appear in photographs taken later. They could, if necessary, constitute an admission that the pit cover was dangerous. 7. I am satisfied that the pit, with the chipped edges, was a hidden trap, and that any person who saw the pit cover in place would not know that it was unstable. I also find that a solid metal plate, flush with the ground surface, would, to a reasonable person, appear to be safe to tread on. 8. Ms Skelly gave evidence, without objection, that Mr Byrd told her that he had fallen himself, when he put his weight on the corner of the pit cover. This is evidence that DIB had actual knowledge that the pit cover, as it was on 30 June 2005, was not reasonably safe. This constitutes a breach of the duty of the occupier to those who, like Mr Cole, were lawfully on its premises. Contributory negligence 9. DIB contends that, in putting his foot on the pit cover, Mr Cole failed to take reasonable care for his own safety, or was guilty of contributory negligence, within the scope of the Civil Liability Act, s 5R. It advances this contention, either, because it says Mr Cole failed to keep a proper lookout, or because he chose a route that was unnecessarily risky. 10. I have already alluded to the time of this accident, a time when the dawn light was, at best, dim. In any event, although the pit had a wooden border, there was absolutely nothing to indicate that it was not safe for a person to place weight on the pit cover. There was certainly nothing to lead to the inference that risk of the pit cover sliding from its mounting and causing injury was an obvious risk. Nor was there anything to suggest that the route that Mr Cole in fact followed was in any way unreasonable. 11. I therefore find that there was no contributory negligence as expressed in s 5R. Responsibility of the employer 12. DIB has raised the non-delegable duty of the employer. The employer was not represented, but it is inescapable that an employer has a duty to take reasonable care to provide a safe place and safe system of work. Ms Skelly gave evidence of what Finemore's had done. They provided an induction for their drivers. The trainer visited various sites, including the Goulburn depot, and was required to report any obvious risks. 13. DIB argues that because the pit cover was in fact unsafe, Finemore's had a duty to prevent the risk of a collapse by warning its employee drivers to avoid walking over the pit cover. It also says that Finemore's was in breach of its duty by failing to inspect the Goulburn site. 14. The non-delegable duty of the employer is to take reasonable care to provide a safe system of work. The duty is onerous, even stringent, but it is not absolute. It is different in nature from the duty of an occupier. It would not, I find, have been reasonable for Finemore's to have lifted the pit cover to see that the corners had been chipped away. Even if there had been a site inspection, it was beyond any reasonable expectation that the defect in the concrete, that caused the pit cover to be unstable, would have been discovered on inspection. The defendant could not establish that there was any causal relationship between any breach of duty by Finemore's and Mr Cole's injury. 15. DIB relied on the decision of the Court of Appeal in Pollard v Baulderstone Hornibrook Engineeering Pty Ltd [2008] NSWCA 99, especially at [33] - [36]. I find that that decision, which concerned the position where the employer is a labour hire business, who sends its employees to work on the premises of someone else, does not apply here, because, as I indicated, even if Finemore's had inspected the site in a reasonable way, the chipped concrete would not have been obvious to a reasonable person. 16. Because of the reasoning I have expressed in relation to contributory negligence, I could not find that it would have been reasonable for Finemore's to instruct its drivers to walk other than on the path followed by Mr Cole. 17. I find that the employer was not in breach of any duty owed to the employee, and that therefore s 151Z has no application. Damages 18. Mr Cole is now 40. He was 38 at the time of this accident. He left school after completing his School Certificate, and obtained a position as an apprentice motor mechanic. He had a motor cycle accident, which left him with no permanent impairment, but when he was fit to return to work, there was no position for him. He then obtained work as a storemen and packer, and then as a truck driver. From 1990 until June 2000 he drove trucks. In 2000 he suffered a back injury when he was injured by a roller door. He returned to work after 8 months, but then suffered a further similar injury. He returned to light duties, and ultimately settled a claim for compensation in respect of his back injury. He stopped working as a driver and trained as a security guard. After he completed a security course in Wollongong, he worked briefly as a security guard in Goulburn. He then found a position as driver of a concrete agitator truck and, from 2003, as a tanker driver, first with Lewington's, and when that business was taken over by Finemore's, with Finemore's. The work was driving tankers from Sydney to Goulburn and then to various service stations serviced from Goulburn. Mr Cole says he continues to suffer some back pain, but can still work. 19. The work as a tanker driver did require Mr Cole to climb into the cab of the prime mover, and on occasions to climb on to the top of the tanker, to check hatches. However, unlike his previous truck driving work, he did not have to load or unload cargoes manually, tie down loads, or move steel fences on the flat-top trailer. He does have to use his left foot to operate the clutch on an assembly that has an 18- or 20-speed gearbox. 20. Before he started work with Lewington's Mr Cole fell from the back of a utility and fractured his right ankle. He was not at work at the time. 21. After he trod on the metal pit cover and his foot went into the pit, an ambulance was called and Mr Cole was taken to Goulburn base Hospital. A surgeon, Mr Lyttle, performed an open reduction of the left ankle. He fitted a plaster cast. Mr Cole had this for some weeks and was on crutches. The ankle is permanently scarred, and Mr Cole still suffers swelling and pain in this ankle. Mr Cole was off work for 8 months, but then returned to work. 22. In 2003, after the injury to his right ankle, Mr Cole suffered deep vein thrombosis and a pulmonary embolism. Dr Koutts at Westmead Hospital treated him with Warfarin. 23. In July 2005, after the incident leading to this claim, there was a recurrence of deep vein thrombosis and a pulmonary embolism. 24. After he had returned to work with Finemores for about 4 months, Mr Cole suffered retroperitoneal haemorrhage, and was taken off Warfarin. He was in hospital for about a week, and off work for 2 months. He returned to work. 25. Mr Cole said he suffered soreness and swelling in his left ankle when he was driving for Finemore's. In May 2008 he accepted an offer of a job driving fuel tankers for Coote's Transport, This job involved shorter hours (about 10 hours per week less) and slightly lower pay (on average about $210 per week less) but Mr Cole took the job because he suffered less pain. He continues to work in this position. Non-economic loss 26. Mr Cole spent two periods in hospital as a result of the injuries he suffered in this accident. He underwent surgery on his ankle, and consequently he suffered the deep vein thrombosis and pulmonary embolism. His left ankle is permanently scarred. He has constant soreness and swelling in his left ankle, becoming acute after long periods of driving and at the end of each 5-day week. 27. At present, Mr Cole can carry out the work of a fuel tanker driver without undue pain or discomfort. His case is that the condition of his ankle will, more probably than not, deteriorate and prevent him from working in this capacity until he is 65. Dr Conrad, a medico legal expert, believes that his working life is likely to be five to ten years shorter than would otherwise have been the case. The defendants' medico legal experts, while conceding the seriousness of his injury, do not agree. Dr Donaldson considers that it is possible that Mr Cole may, in future, suffer from arthritis or some other complication (including necrosis), but, while it is most likely that the onset of that condition would occur within two years of the injury, the possibility cannot be totally excluded. On this basis, while I do not accept Dr Conrad's view that Mr Cole's working life will be significantly reduced, I cannot discount the possibility of some reduction. This possibility should be reflected both in the damages for non-economic loss, because of the concern it will cause to Mr Cole, and in damages for loss of earning capacity. 28. In the circumstances, I consider that Mr Cole's situation places him as 33% of a most extreme case and I will award damages for non-economic loss accordingly. The amount, in accordance with the Civil Liability Act s 16, is $146,000. Future economic loss. 29. Although in his evidence, Mr Cole indicated that he was currently earning roughly the same amount with Coote's as he was with Finemore's', the tax returns and group certificates in evidence indicate that he is, in fact, earning about $210 per week less. I am satisfied that Mr Cole changed jobs so that he would enjoy reduced hours and suffer less pain and swelling in his right ankle. I am not satisfied that it was necessary for him to sacrifice $200 per week. 30. In the circumstances, it seems to me, that it is appropriate to compensate Mr Cole for loss of future earning capacity by awarding him a "buffer", which will reflect both a slight reduction in earnings, and the possibility that his working life will be reduced. To make a specific calculation, based on a dollar amount and percentage likelihoods would not, in my view, be a proper approach to take here, because the evidence gives rise to possibilities that are not capable of precise calculation. These include the effect of pre-existing conditions on Mr Cole's ability to work, and the possibility that the injury to the left ankle will reduce his working life. I propose to award a buffer of $120,000. Other economic loss 31. Past out-of-pocket expenses are agreed at $8,951. 32. Mr Cole claims future out-of-pocket expenses, but there is no evidence to support this claim so none will be awarded. 33. Past wage loss is agreed at 34 weeks @ $130 per week ($31,620) and 21 weeks at the difference between the earnings at Finemore's and the earnings at Coote's (($213 per week) ($4473). The total is $36,093. Superannuation on this amount is $3970.23. The Fox v Wood component is agreed at $3704. 34. There will be a verdict for the plaintiff for $318,719.23. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.