New South Wales Supreme Court CITATION : Welsh v Cotton Seed Distributors Limited [2000] NSWSC 801 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20347/99 HEARING DATE(S) : 18-20 July 2000 JUDGMENT DATE : 16 August 2000 PARTIES : John Richard Welsh v Cotton Seed Distributors Limited JUDGMENT OF : Michael Grove J at 1 COUNSEL : R. Ilwaine SC with P. O'Connor (Plaintiff) C. Hickey (Defendant) SOLICITORS : Lyons Barnett Kennedy (Plaintiff) McCulloch & Buggy (Defendant) CATCHWORDS : Master and Servant - Industrial Accident - Negligence and Breach of Statutory Duty - Dust Extractor at Seed Plant DECISION : Damages Assessed THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION MICHAEL GROVE J Wednesday 16 August 2000 20347/99 - JOHN RICHARD WELSH v COTTON SEED DISTRIBUTORS LIMITED JUDGMENT 1 HIS HONOUR : The plaintiff seeks damages from his employer the defendant in respect of the consequences of an accident at work on 30 July 1996. 2 The plaintiff had worked a night shift and finished at about 6am. At about the time of the shift changeover a dust line had become blocked. The plaintiff remained to assist in clearing it. It is not necessary to particularize the pipe complex which is external to the factory shed and it suffices to refer to one of the pipes through which a mixture of acid and cotton dust passed in order to be collected at the bottom of a hopper by dump trucks. Among the distribution stages leading to the hopper discharge point was a cyclone and what was described as a dust box. The box had an inspection hatch which is a type of door and need not be described in detail as it is clearly visible on the photographic exhibits. 3 Under the supervision of the day shift foreman Mr Stevens a number of pipes in the system were unbolted, I presume they were then cleared or checked, and the system was reassembled. 4 The plaintiff ascended above the hopper in order to check that clearance had been effected to the complex in that area which included the cyclone and the dust box and other pipe assemblage high above the ground. The plaintiff knew that other employees had set the system running again and the purpose of his ascent was to make sure that it was doing so effectively. 5 Upon reaching the upper area the plaintiff perched upon metal components of the assemblage and tapped the carrier portions in order to determine by sound whether those parts were, at least prima facie, blocked or unblocked. The sonic response suggested that there was no blockage. To verify this, the plaintiff opened the inspection hatch. A mixture of cotton dust and hydrochloric acid exploded into his face. To work in this area the plaintiff had donned a surgical type face mask but the force of the explosion blew it off and drove the saturated dust mixture into his mouth and nose causing choking. Dust also entered his eyes. He attempted to clear his own airway by manipulating his throat. Fellow workmen came to his aid. He collapsed and suffered blackouts. His fellow workmen took him to a shower and then after he was dried he was driven to Wee Waa Hospital. 6 The plaintiff has comfortably made out a case for primary liability against the defendant and no submission to the contrary was advanced. There were however aspects of his description of events which I cannot accept. The plaintiff testified that he had simply offered to go up and check the cyclones but I found it impossible to determine from him just why he knew that this might be needed. He said he had not encountered a blockage like this himself, he had not been involved in doing the task, he had not seen Mr Stevens do it and not himself been given any instructions about the need to do it or how to do it. The most the plaintiff could tell me is that it was general knowledge that this checking had to be done. 7 This vague testimony contrasts with, for example, the information recorded as given by the plaintiff to Mr Donohue, an engineer retained as an expert, that the plaintiff had done this task on previous occasions and also contrasts with relation by the plaintiff to medical examiners that he thought that there would be a vacuum inside the hatch when he opened it rather than an outwards pressure. This claimed expectation would have to derive from information and it would exhaust the possibilities to suggest that this must have either been oral or in writing or from experience; all of which the plaintiff denied. 8 He did give some contradictory evidence about discussion with Mr Stevens but I did not understand him to be seeking to resile from the position that he simply had no knowledge or experience about this activity. 9 Despite the difficulties that might be caused by the obscurities and unacceptabilities within this evidence there was, as I have said, no challenge to the plaintiff's primary case on liability and no challenge to his evidence that he was given no instruction, training, manual or other facilities to enable him to know how to undertake the task in proper safety. There was no working platform and the plaintiff (or anybody else) had to use the skeleton of the structure as an ad hoc means of access and workplace. The mask used by the plaintiff was manifestly ineffective and although better equipment may have been able to be accessed, the employer left it to the plaintiff's own devices to know when these might be needed and to acquire them. 10 I am satisfied that there were practical alternatives which would have avoided the risk to the plaintiff. Mr Donohue suggested a pressure relief valve or a simple "L" bend so that the pipe would be opened to the atmosphere away from the face of an operator. Even more simply, as is reported now to be the case, a safety chain could be attached to the hatch which would inhibit its full opening and tend to expel any content away from an operator. 11 Mr Stevens gave evidence that he had performed the task on prior occasions and simply presumed that the plaintiff had also. More importantly, Mr Stevens' experience taught him that it was necessary to take steps to avoid an outward rush of dust when the hatch on the dust box was opened. He never communicated this to the plaintiff. In addition Mr McCarthy, then the plant superintendent and now the production manager, gave similar evidence that he simply assumed the knowledge of the plaintiff whilst he himself was well aware that the opening of the hatch would be likely to be followed by a blow out rather than a vacuum and he took precautions to avoid the expelled detritus. 12 It is not necessary to elaborate further on this issue in the light of the acknowledgment by counsel for the defendant that he was unable to make a submission contrary to that of the plaintiff that I should find primary liability proved. However he vigorously asserted that the defendant had proved the issue of contributory negligence and that the plaintiff's damages should be reduced accordingly. 13 The defendant submitted that I would conclude that (consistently with histories given to a variety of people) the plaintiff had performed the task before. Why else, it was rhetorically asked, would he have ascended to the job wearing a mask? The evidence is that it was a relative commonplace to wear masks about the dusty areas of the plant and I draw no particular conclusion on the wearing of one by the plaintiff on this occasion. From wherever the plaintiff got his knowledge that the cyclone and dust box portion of the system needed to be checked, I am satisfied that the probability is that his knowledge did not include the potential that the content would blow out. If I am to accept what the plaintiff had told other people about doing the task previously as the defendant impliedly invites me to do, included would be his statements of expectation that there would be a vacuum inside the system rather than the potential of forcible expulsion. I find it more probable than not that, from whatever source it was, the plaintiff did have the expectation that there would be a vacuum within the hatch. This is to be contrasted with the explicit contrary knowledge possessed by Mr Stevens and Mr McCarthy which they did not share with the plaintiff. I am unpersuaded that, absent any warning and left to his own conclusions or anticipation which led him wrongly to expect a vacuum, the plaintiff failed to take reasonable care for his own safety in all the circumstances when he opened the hatch. 14 It was expressly conceded that the injury to the plaintiff can be categorized as severe and that any thresholds necessary for entitling the plaintiff to modified common law damages had been passed. 15 The consequences of the accident have been described in a variety of terms, the most comprehensive of which seems to be a "reactive airway dysfunction syndrome". This is similar to asthma and, indeed, was sometimes described as such. As Dr Clarke explained, the significance is the production of ongoing symptoms of airway obstruction. He observed the parallel with asthma and elaborated that the difference between the plaintiff's condition and other causes of occupational asthma is that the causative exposure was single and intense. 16 I have no doubt that the plaintiff underwent a terrifying experience. The choking would be so and the super-added ingestion of hydrochloric acid would magnify the situation. I note that it was the acid rather than the cotton dust which appears to be the cause of the plaintiff's chest troubles. Subjectively he has problems of breathlessness, cough and wheeze. 17 There is an overwhelming preponderance of medical opinion that the plaintiff is vulnerable to dust exposure and therefore limited to activity particularly as regards to employment. The defendant tendered medical reports which included that of Dr Harvey who accepted that the plaintiff was unfit for his previous employment and fit only for occupations which did not involve exposure to fumes or dust. Dr Gandevia thought he could undertake a sedentary occupation but said that he may well be irritated by any form of dust or even fume. 18 The plaintiff is not equipped with clerical skills. He has formally remained in the employ of the defendant but the extended term has not seen a suitable job found for him. A short trial of working at a club demonstrated that his sensitivity is such that he is affected even by tobacco fumes. In his case this is not a mere matter of discomfort but is productive of the symptoms which I have mentioned. 19 There is mention in the medical reports of lack of diligence on the part of the plaintiff in attending to his medication. There appear to be two factors at work here. As Dr O'Connor mentioned at one point, the medication was not completely effective although it would have to be conceded that this scarcely provides a reason for not taking it. The other is that on occasions the plaintiff appears to commence to feel well and I believe the probability is that he has not appreciated that this is not an indication of "cure" and that in order to maintain the situation he must continue with his medication whilst he is feeling well. The situation is complicated by the despondency and the depression which has been noted by attending medical professionals. It is no doubt further complicated by the personality of the plaintiff in which I detected traces of stubbornness and aggression. The description of the encounter between the plaintiff and the psychological examiner retained on behalf of the defendant is revealing. Nevertheless, the plaintiff's personality is what it is and the defendant must take him as it finds him. 20 The probability of the future is that the plaintiff will live a restricted lifestyle inhibited by the potential to suffer symptoms whenever exposed to dust or fume. The nature of the human condition in modern society even in a rural area is that such encounter is unlikely to be able to be avoided. There is smog in the cities and dust in the dry times in the country. 21 It was revealed in evidence that since the accident the plaintiff has purchased a small landholding and he said that he was unable to stock it because of lack of funds. I think the probability is that money gained from this litigation will be used in part for that purpose and that the plaintiff is likely to occupy himself in rural pursuits. However, had the accident not happened the probability is that he would have continued to earn income by way of employment and in order to establish a rational basis for the assessment of damages I consider that the fairest approach to both parties is to assess the damages referrable to the extinction of his capacity to undertake his pre injury employment and to allow for the not insignificant residual capacity that the plaintiff should be estimated to have. I would take into account the plaintiff's limitations not only by reason of the effects of injury but also his lack of skills and experience for what might generally be assessed as sedentary occupations. 22 I should make specific reference to the plaintiff's abilities as a diver. When living at the coast he had learned and became certificated as a scuba diver. He set up a small business in this regard clearing blockages in irrigation systems. He is obviously unfit to resume diving. Since the accident he conducted a small amount of this business using an employee. The plaintiff was born on 21 January 1952. There was no evidence concerning the existence of any age limitation upon certification of professional divers but I consider that it is open to me to make an assessment that it is unlikely that such an activity would be professionally pursued very far into the fifth or sixth decade of life. Some figures have been presented but it seems to me that it would be artificial to rely entirely upon mathematical extrapolations in regard to this but I shall take into account the plaintiff's lost prospects in the dive business when dealing with damages for economic injury. 23 Although it was emphasized on behalf of the plaintiff that he had no formal background or skills of a clerical nature, I do not ignore the circumstance that since the accident the plaintiff has maintained his interest and activity with the State Emergency Services and it would appear upon his own evidence that he is not without administrative skills which could easily translate into commercial value although he is presently using them in a voluntary capacity. 24 I turn to the individual ingredients of damage. 25 Medical and like expenses to date are agreed in the sum of $6,566. 26 Based upon the plaintiff's statistical life expectancy of thirty two years, a claim is postulated for the cost of various medications and routine consultations with a general practitioner and a specialist for the purpose of supervision of the plaintiff's condition and, no doubt, any adjustments to medication. Senior counsel for the plaintiff produced a calculation which capitalized in a total sum of $32,783. No contradictory submission was advanced on behalf of the defendant and that sum will be included in the assessment of damages. 27 It is further agreed that a sum of $5,380 should be included in the damages to avoid the detriment identified by the High Court in Fox v Wood . 28 The plaintiff's position with the defendant was productive of a comparatively substantial wage and for comparison purposes I am invited to accept that if the plaintiff had continued to be employed his average nett weekly wage would be $834. A further comparison can be made between the likely earnings of the plaintiff had he continued uninjured in his previous job with the actual earnings that he has received when allocated to tasks for trial at rehabilitation. If he had remained in his previous employment he would have earned to date $162,974. In fact he has actually earned $68,549, leaving a difference of $94,425. It seems to me to be reasonable to include that differential as representative of the financial effect of diminished earning capacity to the plaintiff to date. 29 A claim is also made for the supplementary income which would have been derived from the operation of the plaintiff's part time diving business. It should be observed that the plaintiff had taken all proper steps to conduct this business including the disclosure of income and expenditure and the like in relevant returns to revenue authorities. The activity was necessarily sporadic but I am invited to look at a nett loss represented by $50 per week which could be calculated as $10,350 against which must be taken actual earnings of $6,214. The lastmentioned figure was obtained as a result of the conduct of the business but the undertaking of the actual diving by employees or subcontractors to the plaintiff. The amount of claim is a relatively modest $4,136 and I consider that it is reasonable to include this sum in the damages. 30 As previously indicated I am satisfied that the plaintiff has a continued diminution in his earning capacity and I find that this is likely to be productive of financial loss. As I have also already said, I do not believe that in fact the plaintiff will return to conventional employment and is likely to engage himself in rural pursuits on the property that he has purchased. Nevertheless he may from time to time find some gainful employment and it is clear that there are ranges of activity in which the plaintiff can engage. This is the overwhelming tenor of the medical opinion and is confirmed by the plaintiff's activity in the Emergency Services. 31 The difference between the earnings which the plaintiff would have received in his previous job and his actual earnings can be reduced to an average of just under $450 per week nett. As has been noted, fully fit it is agreed that a comparable wage for his previous employment would be $834 per week nett. The average differential of course includes significant periods of total absence from employment during the early period of recuperation from the immediate effects of accident and what I am required to look at is a future which I would postulate as 16.5 years until the conventional retirement age of sixty five. 32 It seems to me that, bearing in mind the observation that I have just made, but needing to take into account (on the other side of the ledger as it were) the possible earnings from the diving business, a figure of $450 per week provides a reasonable guide to the assessment of the plaintiff's future loss of earning capacity. On the appropriate tables the capitalizing factor is 591.3 and I would reduce the calculated sum by 15 percent in order to allow for the conventional adverse vicissitudes. Accordingly I would award the plaintiff $226,172 for future interference with earning capacity. 33 A separate claim is made for the loss of the employer contribution towards the plaintiff's compulsory superannuation. The statutory requirement is for the employer to contribute the equivalent of 9 percent of the gross weekly wage and the parties have informed me that in this case that can be represented by a sum of $104 per week. By way of pure calculation that can be capitalized on the tables by again using the factor of 591.3 but as the receipt of the benefit of the contribution is deferred for 16.5 years the resultant sum would need to be multiplied by a factor of .447. This produces by way of arithmetic, a sum of $27,488. The assumption in the calculation is of course that there will be an uninterrupted contribution by that employer at that rate for the next 16.5 years. The plaintiff's working history is not one of extremely extended periods in a single activity and it is of course possible that if the plaintiff chooses to exercise his reduced residual capacity in employment the new employer will be required to make proportionate contribution thus replacing some of this calculated loss. Making allowance for the potential of part replacement and the possibility that the plaintiff would not have continued in employment or at least in this particular employment until retirement, it seems to me that it will do justice between the parties if I include for this element of damage a rounded sum of $20,000. 34 A claim is made for the provision of voluntary services in accordance with the statutory rate of $11.50 per hour. These services are said to have been provided by the plaintiff's mother although the evidence shows that some of these services were provided by her both before and after the accident. Damages of this nature are available where it would have been reasonable at cost to fulfil a tort induced need. The claim is based upon a contribution of three hours per week for the first six months after the accident and thereafter at one hour per week. I am not satisfied that the fulfilment of any tort induced need extends beyond the first six months for which I will include the sum of $897 but otherwise the claim is declined. 35 A specific claim is made for the cost of mowing the lawns in the plaintiff's residence. This claim is postulated upon a cost of $25 twenty times per year or a total of $500 per year. It has been reduced into a future claim of $9.60 per week over the plaintiff's life expectancy of thirty two years. In round terms this is a claim for the past of $2,000 and on the tables for the future of $8,112. I am satisfied that given the plaintiff's vulnerability to dust and the likelihood of breathlessness being induced that he cannot realistically be regarded as capable of performing this task and I will include the sum of $10,000 for this element of damage. 36 Finally in the assessment of damages I should turn to compensation for non economic loss. It is agreed that a most extreme case would attract a relevant award of $220,100 and that the plaintiff's damages are to be proportioned to that hypothesis of loss. These calculations are necessarily matters of impression but it must be borne in mind that the plaintiff has been reduced from a very high level of fitness to a situation where he must be markedly tentative about activity. I am satisfied that his depression and general manifestation of being morose can be traced to the accident. Allowing for these aspects, I would accept the general descriptions of the plaintiff of his situation both in testimony and as related to medical experts. I would assess the plaintiff as 50 percent of a most extreme case and include in the damages $110,050. 37 For ease of reference I will tabulate the ingredients of my award as follows: Out of pocket expenses $6,566.00 Future treatment $32,783.00 Fox v Wood $5,380.00 Economic loss to date (cotton seeds) $94,425.00 Economic loss to date (diving) $4,136.00 Future economic loss $226,172.00 Loss of superannuation contribution $20,000.00 Voluntary services $847.00 Lawn mowing $10,000.00 Non economic loss $110,050.00 Total: $510,359.00 38 It is agreed that pursuant to statute the defence of payment is established by the defendant to the extent of $45,805. 39 I direct entry of judgment for the plaintiff for $464,554.00. 40 Subject to application for which liberty to apply is granted, an order should be made that the defendant pay the plaintiff's costs of action. ********** Last Modified: 09/26/2000 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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