New South Wales District Court CITATION: Russell v Grace Worldwide (Australia) Pty Ltd trading as Grace Removals [2008] NSWDC 154 This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S): 22-23 July 2008 EX TEMPORE JUDGMENT DATE : 25 July 2008 JURISDICTION: Civil JUDGMENT OF: Sidis DCJ DECISION: Stood over to 1 August 2008 to deal with costs and the making of final orders. CATCHWORDS: TORT - Furniture removalist - obvious risk - whether s 151Z adjustment appropriate in absence of evidence concerning conduct of labour hire company - assessment of damages LEGISLATION CITED: Civil Liability Act 2002 Workers Compensation Act 1987 Bourke v Victorian Workcover Authority (1999) 1VR 189 - [1998] VSCA 24 CASES CITED: Fox v Wood (1981) 148 CLR 438 Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99 PARTIES: Shannon Russell (Plaintiff) Grace Worldwide (Australia) Pty Ltd trading as Grace Removals (Defendant) FILE NUMBER(S): Newcastle 168/07 COUNSEL: T R Edwards (Plaintiff) A D M Hewitt SC (Defendant) SOLICITORS: Bale Boshev (Plaintiff) Curwood Lawyers (Defendant) JUDGMENT 1 Shannon David Russell was injured in his low back on 2 22 December 2005 in the course of his employment as a removalist. He was employed by J D Thompson Personnel Pty Ltd, a labour hire company trading under the name, Jobwire. His services were provided by Jobwire to Grace Worldwide Australia Pty Ltd, a company trading under the name, Grace Removals. The issues in the proceedings were: 1 Whether the risk of injury was so obvious that the defendant should not be held liable to the plaintiff. 2 Whether there was contributory negligence on behalf of the plaintiff. 3 The extent of the responsibility of Jobwire for the purposes of the application of s 151Z of the Workers Compensation Act 1987. 4 The extent of the plaintiff's injury and ongoing disabilities. 5 The assessment of his damages for non economic loss, loss of income earning capacity, requirement for future domestic assessment assistance and out-of-pocket expenses, past and future. Circumstances of the Accident 3 The plaintiff was employed by Jobwire as a removalist for six months prior to his injury. He made a direct application for employment to the defendant, who referred him to Jobwire. He registered with Jobwire and was employed by that organisation and allocated to work with the defendant. 4 At the commencement of his employment he was fit and well. He was aged twenty-five, he is now twenty-eight years old. The plaintiff stated that he was given no induction training. 5 He said the standard equipment on removal vehicles operated by the defendant comprised lifting straps and a two wheeled trolley. At times removalists were also supplied with a piano trolley that had four wheels and a flat base. Lifting straps were designed to be placed under items to be lifted and around the shoulders of the removalist concerned. 6 The plaintiff worked on a casual basis for which he was paid an hourly rate. His hours varied from week to week. 7 On 22 December 2005 he was directed as to the work to be done by Craig McPherson, apparently an employee of the defendant, at the defendant's depot at Mayfield. His initial task occupied him two hours. 8 On return to the Mayfield depot he was instructed by Mr McPherson to take a loaded vehicle to Medowie and to unload it. The plaintiff said he had no part in the loading of the vehicle. The vehicle was not the usual pantechnicon bearing the defendant's name, but a pantechnicon belonging to Newcastle Truck and Hire. The plaintiff said he asked Mr McPherson if the usual equipment was on the truck and he was told that it was. 9 Mr McPherson allocated another male to accompany the plaintiff on the job. The plaintiff had not previously met this person and he did not know his name. 10 The plaintiff drove the pantechnicon to Medowie and manoeuvred it into position to allow it to be unloaded. On opening the truck he discovered that it was fully loaded and that it contained no lifting straps or trolleys. He telephone Mr McPherson concerning the absence of equipment and was told that there was none left in the warehouse and he was to proceed to unload without it. 11 The plaintiff said he then discovered that the co-worker allocated to the task had not previously worked as a furniture removalist. He said he lacked the necessary skills and that he dropped items, failed to carry them properly and that he knocked and chipped walls of the premises to which the items were to be moved. After two hours he rang Mr McPherson and requested that he be replaced. His request was declined, Mr McPherson stating that the defendant was short staffed. He therefore continued to work with the inexperienced co-worker. 12 The last item to be unloaded from the truck was a four drawer filing cabinet in the rear corner of the vehicle. The plaintiff said he slid the cabinet forward and tilted it towards his co-worker. He then squatted to lift the other end. He assessed the weight of the cabinet as reasonable and lifted it. 13 After the cabinet had been lifted to about chest height, he checked and was told by the co-worker that everything was "fine". They moved it about twelve to eighteen metres into the house. The plaintiff noticed that the co-worker's hands were slipping and asked him if he wanted to put the cabinet down. The co-worker did not respond, instead he dropped his end of the cabinet to the floor. 14 The plaintiff said he felt a sharp stabbing pain in his back. He stood the cabinet upright and reported the incident to Mr McPherson, who arranged to replace the co-worker with someone with more experience. The plaintiff worked with the replacement worker to complete the Medowie job and returned to the depot. He has not worked since that day. 15 No evidence to challenge this version of events was called by the defendant. ISSUE 1 - OBVIOUS RISK 16 S 5 of the Civil Liability Act 2002 defines obvious risk as one that in the circumstances would have been obvious to the person who suffered harm. S 5H provides, with certain exceptions that are not relevant to the current claim, that a defendant owes no duty of care to warn of an obvious risk. The defendant submitted that the risk, namely that involved in lifting the filing cabinet when it was full, was obvious. In this case the plaintiff made no allegation that the defendant neglected to warn him of the risk involved in the lifting task he was undertaking when injured. Thus the provisions of s 5H are not to be applied. 17 Effectively, the defendant argued that it was not liable to the plaintiff because, as set out in paragraph 7 of the defence, the sole cause of the plaintiff's accident was the plaintiff's decision to carry the cabinet with the drawers in place and not emptied of their contents. 18 In respect of this defence, the plaintiff agreed to the following propositions: 1 He did not empty the contents of the cabinet or remove its drawers. 2 The contents made the cabinet heavier than if it had been empty. 3 Removing the contents would have reduced the risk. 4 At the time of his injury he had six months experience in lifting heavy items. 5 He was aware that he needed to take care when lifting heavy items. 6 He was aware that his co-worker was inexperienced. 19 In response to these propositions the plaintiff pointed out that he assessed as reasonable the weight of the cabinet before it was lifted. For that reason he said he did not consider it necessary to empty it of its contents. The defendant did not challenge his evidence that he checked and confirmed that his co-worker was managing the lift and that he asked the co-worker if he wished to put the cabinet down immediately before it was dropped. 20 The defendant called no evidence to establish its contention that in undertaking the lift of the cabinet in the manner described by the plaintiff, he was acting in any way unreasonably. There was no evidence of its weight or that the plaintiff's assessment of the weight as reasonable was so inappropriate that it represented a failure to take care for his own safety. 21 To the contrary, there was evidence that the plaintiff attempted to minimise the risk of lifting the cabinet by obtaining appropriate equipment from the defendant, who told him that the equipment was not available. Further, his request that his inexperienced co-worker be replaced was declined. The plaintiff said that if the usual equipment had been supplied he would have moved the cabinet on a trolley or with the aid of the lifting straps. Either of these methods would remove the risk that one of the removalists would drop the cabinet. 22 The result is that I find the cause of the plaintiff's accident was the failure of the defendant to provide the equipment normally available to persons engaged on its behalf in moving heavy items. The very purpose of providing the equipment was to minimise the risk of injury to persons engaged in employment that necessarily involved heavy lifting. 23 Thus the risk of the plaintiff's injury was both reasonably foreseeable and a risk that a reasonable person would take action to guard against. It was a risk that was preventable without undue inconvenience or expense. The defendant's failure to provide the necessary equipment and the direction to proceed to unload the vehicle without it, constituted a breach of duty by the defendant to the plaintiff. 24 I find the defendant liable in the primary negligence. ISSUE 2 - CONTRIBUTORY NEGLIGENCE 25 The particulars of contributory negligence pleaded in the defence were: 1 Failure to use the equipment provided for him. On the evidence there was no such equipment provided. 2 Failing to remove or empty the drawers of the cabinet before lifting it. As already noted there was no evidence that in determining the weight of the cabinet to be reasonable without removing its contents, the plaintiff acted negligently. 3 As team leader, failing to ensure that his co-worker had a secure grip on the cabinet and was carrying it in a safe and secure manner. There was evidence that the plaintiff did in fact check with his co-worker on two occasions before the cabinet was dropped. On the first occasion he was assured that the co-worker was managing the lift. The second occasion when he checked was immediately before the cabinet was dropped when there was little he could have done to prevent the accident. 26 In the circumstances I make no finding of contributory negligence. ISSUE 3 - S 151Z CONTRIBUTION 27 The defendant raised by way of defence the issue of negligence of Jobwire and contended that in those circumstances any verdict against it should be reduced in accordance with the provisions of s 151Z of the Workers Compensation Act 1987. The particulars of negligence alleged against Jobwire were, involved the following: 1 Failing to train or instruct the plaintiff appropriately. 2 Failure to instruct and train the plaintiff's co-employee appropriately. 3 Providing a co-employee who was unsuited to heavy lifting work and who should not have been sent for work with the defendant. 4 Vicarious liability for negligence of the co-worker. 28 In respect of allegations 2, 3 and 4, there was no evidence that Jobwire employed the co-worker. There was a suggestion without evidence that he was in fact employed by another labour hire company. 29 Ultimately, the proposition of the defendant was that it should have the benefit of the s 151Z provision simply because the plaintiff was not its employee. It was suggested that I should infer that Jobwire did not fulfil its non delegable duty of care as employer of the plaintiff. 30 I was concerned at this approach because it was not particularised and because there was no evidence provided of the arrangements made between the defendant and Jobwire to enable Jobwire to fulfil its obligations to its employees. I appreciate that there are an increasing number of authorities for the proposition that a labour hire company cannot avoid its obligations as an employer by relying upon the parties to whom its employees are allocated. 31 The defendant was unable to identify any authority in which the labour hire company was found liable in circumstances where there was no evidence before the Court of what it did or failed to do about its obligations to its employees. I was referred to the decision of the Court of Appeal in Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99, in which McColl J, with whom Mason P and Beazley JA agreed, analysed many of the existing authorities. None of the authorities to which McColl J referred dealt with the situation where there was no evidence of the labour hire company's attention or failure to attend to its obligations. There were decisions in which labour hire companies were held not liable in negligence. It is apparent therefore that it is not inevitable that a finding of negligence will be made and that the proportion of that negligence in causing the plaintiff's damage will be assessed. At [45] McColl J quoted from the decision of the Victorian Court of Appeal in Bourke v Victorian Workcover Authority [1998] VSCA 24, [1999] 1VR 189 at 19 and said that it was accepted that deciding whether the labour hire company's non delegable duty was discharged, depended upon matters such as the employer's opportunity to inspect the premises, the length of time the employer has put his employees to work on the premises, the awareness in the employee of the danger, his capacity to shield his employees from the danger and various other factors. 32 In the absence of evidence concerning these factors, I am unable to draw the inference suggested by the defendant that Jobwire failed to discharge its non delegable duty to the plaintiff. 33 I find therefore that this element of the defence has not been made out. ISSUE 4 - THE EXTENT OF THE PLAINTIFF'S INJURY AND DISABILITY 34 The plaintiff claimed significant injury and disability involving pain in his low back, extending through the backs of his legs to his knees, affecting his left leg to a greater degree than the right. He initially consulted his general practitioner and was treated with anti-inflammatory medication. He was referred to Dr Spittaler, neurosurgeon, when he failed to improve by March 2006, and for pain management to Dr Russo, in June 2006. 35 At the time of his injury the plaintiff was sharing rented accommodation with three other males and sharing housekeeping and cooking duties. He said he was unable to continue to share those duties after his injury. In March 2007 he returned to live at his mother's home because of financial difficulties and his ongoing inability to perform housework. At that stage he said his pain remained unmanageable. 36 The plaintiff said his condition had not improved to the date of the hearing. He said that he suffered from constant dull pain in his low back with pain into his left leg and that his pain level seriously limited his capacity to undertake activity requiring him to bend, twist, lift, walk, sit, stand, squat and drive. Physiotherapy and hydrotherapy had not assisted him, rather the hydrotherapy had aggravated his pain. He complained of a sitting tolerance limited to ten to fifteen minutes, that he was able to stand still for only two minutes and that it was necessary to take breaks when he was driving. 37 The plaintiff's pre-accident activities were indoor and outdoor soccer, shooting, water skiing, motor cycle riding and restoring motor vehicles. He said he is no longer able to engage in these activities and that he misses them. 38 The plaintiff has not been employed since the accident, although he said he made a considerable number of job applications. 39 In October 2006 the plaintiff undertook an eight week course to secure a certificate in community support services and thus qualify for work with handicapped persons. He said he was unsuited to the work because he was unable to bend, lift or run and therefore to provide adequate supervision. In addition he said he was emotionally unsuited for the work. 40 He agreed that in late 2007 under lump sum contracts he painted the interior and exterior of two houses. In one case he said he did this over a period of twenty to twenty-five days, when prior to the accident he would have completed the work in fourteen days. He said he was delayed by the need to stop to rest and to take occasional days off. He said his back was very sore by the time he completed the job. 41 He also agreed that in recent months he had travelled to Singleton once or twice a week to assist a friend who was building a house. 42 He said he undertakes work that is light and he is not paid for it. The plaintiff said his previous occupations which had involved landscaping, work as a service station console operator and work as a handyman subcontractor, were no longer available to him because they involved the activities that he could no longer undertake. He proposed that he would improve his prospects of future employment by undertaking four years of study, one year to qualify for university entry and three years to undertake degree courses in occupational health and safety and construction management. 43 His mother is currently performing housework on his behalf. He said that if she was not available, he would be unable to undertake heavy housework and mow lawns or hang out washing. He said he would pay for assistance with those household chores if he were funded. 44 Treating medical practitioners have not provided treatment that relieved the plaintiff's symptoms. Dr Russo trialled a number of pain relieving medications and investigative epidural blocks without success. 45 Diagnoses of the plaintiff's medical advisers were based on an MRI scan taken in April 2006 which disclosed a central disc prolapse at L4-5 with possible left L5 nerve root compression. The question is whether their opinions based as they were upon acceptance of the plaintiff's complaints and symptoms should be preferred to those of the defendant's advisers. 46 Dr Sage noted that there were some inconsistencies in the plaintiff's presentation but he reported that the plaintiff had suffered a significant injury that involved an acute annular tear that was often associated with predictable exacerbations of pain. 47 Dr Buckley gave details of the nature of the plaintiff's injury and the means by which he was partially recovered. His prognosis was for ongoing pain with the risk of occasional exacerbations and remissions of pain. 48 Dr Cummine who examined the plaintiff on behalf of the Workers Compensation Commission was considerably influenced by the plaintiff's complaint of pain bilaterally at five degrees of straight leg raising. He said the findings on the MRI did not correlate with the symptoms of which the plaintiff complained and that those findings did not support his observations on clinical examination of the plaintiff. He accepted, however, that the MRI indicated a posterior tear in the annulus at L4-5. 49 Dr Zeeman reported his concerns that on examination there were no clinical signs of organic pathology, nor were there neurological signs, such as weakness or loss of reflex that would ordinarily accompany nerve root compression. His diagnosis was of a disc prolapse at L4-5 without neurological signs. His prognosis was of intermittent but not constant back pain. 50 There was reference in the medical reports to psychological testing that indicated that the plaintiff suffered from a significant degree of depression, anxiety and adjustment difficulties. Medication prescribed by Dr Russo was reported to have assisted. Although the statement of particulars claimed the development of a condition of anxiety and depression, no evidence was put forward to support any ongoing condition of that nature and I have not further considered it. 51 In deciding that the opinions of Dr Cummine and Dr Zeeman are to be preferred, I have taken account of the following: 1 The reported inconsistencies in the plaintiff's presentation at medical examination. 2 The inconsistencies between the plaintiff's complaints to the medical advisers and his evidence to the Court concerning his physical restrictions resulting from his injury an his physical capacity as demonstrated in the photographs, exhibits 4 and 5, and recorded on the DVD, exhibit 10. The photographs and the DVD portrayed the plaintiff climbing a ladder, lifting an aluminium bench overhead with one arm, lifting various other items, lifting his large fishing bag overhead, carrying his fishing bag on his back over his shoulder, fishing from a breakwater comprising a number of rocks and boulders, climbing up and down the rocks and boulders to access his fishing spot, sitting and standing intermittently on the boulders, squatting, before sitting up on a boulder, casting the fishing line using a twisting movement, bending to pick up items from the ground, spending a considerable period of time at an hotel or bar, alternately sitting or standing for considerable periods of time. 3 The evidence recorded on the DVD was of concern for two reasons. Firstly, it was inconsistent with the plaintiff's evidence that he was unable to undertake activities such as bending, twisting, lifting, sitting, standing or squatting. Secondly, at no time in the course of the record made on the DVD did the plaintiff in any way appear to suffer from back or leg pain, or to behave in a way protective of a seriously disabling back condition. Rather while undertaking these activities he moved freely and apparently perfectly normally. 4 There was evidence of the plaintiff's failure to co-operate with medical and rehabilitation services which the defendant attempted to provide. A W Workwise in October 2006 published a report which noted the cancellation of a number of appointments. The plaintiff was issued with two notices of compliance by the workers compensation insurer. One related to his failure to provide Job Search diaries as required. The second related to his failure to attend scheduled appointments with a nominated physiotherapist without explanation. The physiotherapist reported in February 2007 that the plaintiff had failed to attend seven of fifteen sessions. In addition, he reported that the plaintiff displayed poor motivation to participate in active rehabilitation. He stated that in the sessions that the plaintiff did attend, he had demonstrated good physical capability and had achieved some moderate improvement. The plaintiff denied any memory of failing to attend physiotherapy appointments. 5 There was evidence of half hearted efforts at obtaining employment. The plaintiff stated that he had made numerous applications for employment in accordance with the requirements of his workers compensation insurer. He produced five undated sample letters of application which appeared from exhibit L, an extract of a Job Search diary, to have been sent in the period 21 to 27 May 2007. In ordinary circumstances I would not share the defendant's criticism of the plaintiff's reference to his back injury in those letters of application, provided they truly represented his level of disability. I do not accept that they did. I consider that he included reference to his injury and the restrictions imposed on his activities in order to diminish his prospects of securing employment. 52 For those reasons I make the following findings: 1 The plaintiff suffered from an injury to the L4-5 vertebrae in the course of his employment with the defendant on 22 December 2005. The injury involved damage to the annulus. 2 The plaintiff was not a witness of credit. He overstated the extent of his ongoing disability resulting from the injury. This overstatement rendered it difficult to undertake the task of assessment. 3 Having regard to the unsatisfactory features of the plaintiff's evidence already identified, in particular the material recorded on the DVD, I reject the plaintiff's evidence that he was affected by constant back pain. I prefer the opinions of Dr Sage and Dr Zeeman and to some extent Dr Buckley, that the plaintiff recovered to the point where he was no longer in constant pain, but that he remained vulnerable to periods of intermittent rather than constant pain. ISSUE 5. ASSESSMENT NON-ECONOMIC LOSS 53 The plaintiff is still a young man at the age of twenty-eight. The defendant accepted that a period of one year was a reasonable period within which to expect him to have recovered. However, he remained with weakness in his back and with a requirement that he take care of his back. 54 In those circumstances I have assessed his impairment at 27 per cent of a worst case, allowing him the sum of $44,000 for non-economic loss. Income loss 55 The preponderance of medical opinion was that the plaintiff could not return to his employment as a furniture removalist or to work involving heavy labouring and that some level of retraining would be required. There was evidence that there were many occupations available to the plaintiff were he motivated to engage in retraining for alternative employment. The defendant accepted that the plaintiff should be compensated for his full loss agreed to be $609 per week for a period limited to fifty-two weeks after his injury. I reject the defendant's contention that I should reduce this period to take account of an injury which he suffered in 2006 to his right hand, following which he was incapacitated for twelve weeks. At this time the plaintiff was still recovering from his back injury and could not in any event engage in employment. 56 The plaintiff seeks a past income loss at rates according to his certified level of capacity at various periods since the accident. The amount claimed is $59,487. I have decided that I should allow the full loss of $609 dollars per week for the period of eighteen months to allow the plaintiff twelve months to recover from his injury and six months in order to retrain and secure alternative employment. In my view, notwithstanding his ongoing vulnerability it is reasonable to expect that the plaintiff would return to employment after that period. The amount allowed therefore is 78 weeks at $609, totalling $47,502. Superannuation on past income has been calculated on the basis of 11 per cent of that sum at $5225.22. 57 For the future the plaintiff asked that he be compensated for a period of four years at a rate of $639 per week being the estimate of his current income earning capacity, were he to return to work as a removalist. The four year period is based upon his expressed intention to undergo tertiary education, following which he has expectations of an income greater than that which he was receiving at the time of his injury. With respect I do not accept that the defendant is required to compensate him to this level. Opportunities of rehabilitation and retraining offered to him in the past have not been taken up. I do accept that a buffer should be allowed to compensate the plaintiff for the loss of capacity to engage in heavy work and to take account of the probability of lost income in periods of exacerbation of pain. I have allowed the sum of $50,000 inclusive of superannuation to cover this loss. Domestic care 58 The claim for past gratuitous care was not pursued. For the future the plaintiff claimed paid assistance for three hours a week discounted by 30 per cent. This assessment was made by Dr Buckley who based it on the plaintiff's complaints of ongoing constant pain. The defendant contended that no allowance should be made. Dr Zeeman acknowledged a requirement for one hour a week for heavy aspects of maintenance of a household and garden and I consider this to be a reasonable assessment of the plaintiff's needs. It is allowed without the 30 per cent discount in the sum of $30,096. Out-of-pocket expenses 59 Expenses for the past are agreed in the sum of $35,036.83. The plaintiff's claim for compensation against future expenses was again based upon Dr Buckley's assessment of his needs for general practitioner attendances, medication and physiotherapy. The plaintiff also asked for an amount to cover ten years of gymnasium membership. 60 The defendant contended that I should make no allowance on the basis of the plaintiff's evidence that he has not consulted any medical practitioner in 2008 and that he no longer takes medication. 61 It was apparent however, that the plaintiff will require medical attention from time to time in the future, although I do not accept that his requirements are at the levels proposed by Dr Buckley. 62 I have allowed against this contingency the sum of $5000. 63 As to the gymnasium membership, it is quite possible that the plaintiff does require some physical reconditioning in order to restore him to the level of fitness necessary to return him to work. Opportunities to improve his fitness were made available by the defendant and not taken up by the plaintiff. I consider the defendant has discharged its obligations in this respect and the claim for gymnasium membership is rejected. 64 A Fox v Wood component is allowed in the agreed sum of $4007.29. 65 In summary the awards made are as follows: Non-economic loss at 27 per cent: $44,000.00 Past income: $47,502.00 Superannuation on past income: $5225.22 Future income loss: $5000.00 Future care: $30,096.00 Past out-of-pocket expenses: $35,036.83 Future out-of-pocket expenses: $5000.00 Fox v Wood component: $4007.29 Total $220,867.34 66 I stand the matter over to Friday 1 August 2008 to deal with the issue of costs and the making of final orders. ********** 19/08/2008 - Typographical error on cover sheet in name of Defendant deleted Grace Worldwife and substituted correct spelling of Grace Worldwide - Paragraph(s) Cover sheet 11/09/2008 - Formatting in short case title and parties as to "trading as" in lieu of t/a - Paragraph(s) Short case title 11/09/2008 - Formatting of short case title - Paragraph(s) Short case title DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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