Vojko Radulovic v Multiweld Engineering [2001] NSWSC 187

New South Wales Supreme Court

CITATION : Vojko Radulovic v Multiweld Engineering [2001] NSWSC 187 FILE NUMBER(S) : SC 020447/99 HEARING DATE(S) : 14/11/00 - 16/11/00, 15/12/00 JUDGMENT DATE : 23 March 2001

PARTIES : Vojko Radulovic v Multiweld Engineering Pty Ltd JUDGMENT OF : Howie J at 1

COUNSEL : R.P. McLoughlin with J. Anderson (Plaintiff) G.F. Butler (Defendant) SOLICITORS : Martin Bell & Co. (Plaintiff) P.W Turk & Associates (Defendant) Crimmins v Stevedoring Industry Finance Committee (1999) 74 ALJR 1 Gillespie v The Commonwealth (1991) 105 FLR 196 Neill v NSW Fresh Food & Ice Co. Pty Ltd (1963) CLR 362 CASES CITED : Wyong Shire Council v Shirt (1980) 146 CLR 40 Southgate v Waterford (1990) 21 NSWLR 427 Dell v Dalton (1991) 23 NSWLR 528 Sharman V Evans (1977) 138 CLR 563 Van Gervan v Fenton (1992) 175 CLR 327 DECISION : There will be a verdict for the plaintiff in the sum of $1,266,297.30. The defendant is to pay the plaintiff's costs up to 8 June 2000 on party party basis, thereafter on an indemnity basis.

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

HOWIE J

FRIDAY 23 MARCH 2001

020447/99 - VOJKO RADULOVIC v MULTIWELD ENGINEERING PTY LTD

JUDGMENT 1 HIS HONOUR: On 13 January 1995, the plaintiff suffered an injury to his back during the course of his employment with the defendant company. There is no dispute about the fact that the plaintiff was injured, the nature of his injury or the circumstances in which he came to be injured. The issues for the court to resolve are, firstly, whether the defendant had breached its duty of care in respect of the plaintiff and thus incurred liability for his injury, and, secondly, if the defendant is found liable for the injury, the quantum of damages that should be awarded to the plaintiff as a result. 2 The oral evidence was in a short compass and there was little dispute on matters of fact. The most significant controversy arose from the conflicting opinions of the two experts called in relation to the issue of whether the work-practices of the defendant were unsafe. Ultimately that evidence proved to have less significance than might otherwise have been the case in light of the evidence given by the plaintiff's employer. 3 The plaintiff was born in Bosnia, Yugoslavia in 1963. He came to Australia in 1988. In November 1990 he commenced employment with the defendant as a fitter and welder. He was required to work in various aspects of the metal trade including cutting, welding and drilling metal. Apart from a short period in 1993, when he was laid off because of a lack of work, the plaintiff was employed by the defendant continuously up until the date of the injury. The plaintiff has not worked in any way since he sustained the injury that gives rise to the present proceedings. 4 As part of the work that he was required to perform during the course of his employment, the plaintiff from time to time cut steel bars into designated lengths. Each bar was 16mm in diameter, 6 metres in length and weighed about 9.5 kilograms. When the bars had to be cut, they were delivered to the defendant's factory in three bundles. Each bundle contained 50 bars and weighed about 475 kilograms. 5 A system of work had been established for cutting the bars and was followed on the day the plaintiff was injured. After the bars were delivered by truck into the factory, three or four trestles were placed alongside one another, about a metre apart and adjacent to a conveyor that ran along one side of the factory wall. The three bundles of bars were unloaded from the delivery truck at the one time by a forklift and placed along the trestles. The forklift was operated by Mr Matic, the owner and managing director of the defendant company. 6 The employee who was required to cut the bars, on this occasion the plaintiff, cut the metal strips binding the bundle of bars which had been placed nearest the conveyor. He would then proceed to push a bar along the trestles onto the conveyor. The bar was pushed down the conveyor to the saw and cut into the required lengths. When all the bars in the first bundle had been cut, the same procedure would be adopted for the second bundle. 7 However, before the strips binding the third bundle could be cut to release the individual bars, the bundle had to be pushed across the trestles towards the conveyor. If this were not done, there was a risk that, when the strips were cut, the bars would spill off the end of the trestle. In order to move the bundle of bars across the trestles, the employee cutting the bars was assisted by another person to push the bundle toward the conveyor. This other person was frequently Mr Matic himself. 8 The practice adopted was for both men to push one end of the bundle as far as they could across the trestles and then walk to the other end of the bundle and push that end to straighten the bundle of bars. The metal strips binding the bars were then cut, releasing the bars safely. The end of the bundle nearest the saw was pushed first. 9 On the day the plaintiff suffered his injury he had followed the normal practice and cut all the bars in the first two bundles without incident. Mr Matic then helped him to push the third bundle toward the conveyor. The plaintiff was positioned at the right-hand end of the bundle facing the conveyor and on the outside of the furthest trestle. Mr Matic was to the plaintiff's left on the other side of the trestle. They both pushed the end of the bundle of bars toward the conveyor. The end that they were pushing moved about 300 millimetres. The other end of the bundle also moved a small distance, about 50 millimetres. 10 While the plaintiff was pushing the bundle of bars, he felt a very severe pain in his lower back. He told Mr Matic that he had hurt his back and he stood for a few minutes until the pain subsided a little. He was then given other work to do and he did not go back to the bundle of bars. The plaintiff worked for the rest of the day even though he was in discomfort due to the continued pain in his back. 11 The next day the plaintiff was in such pain that he was unable to attend work and remained in bed. The pain increased over the next few days, and on 16 January the plaintiff's general practitioner was summoned to his home. He recommended that the plaintiff have bed rest and prescribed analgesics. A CT scan taken a short time later showed some abnormality at the L4/5 level. The spinal cord and the site of the L5 nerve roots were also compressed. The plaintiff was referred to an orthopaedic surgeon, Dr Beer, who arranged for a further CT scan to be carried out. 12 Dr Beer felt that the plaintiff had a large disc protrusion that would probably require surgery. He advised that an MRI should be carried out to assist with the decision as to whether surgery was appropriate. 13 The plaintiff was referred to Dr Segalov, a neurosurgeon. On 23 February 1995 he reported that there was a disc rupture on the left side at the L4/5 level. He thought that a week of leg traction might reduce the protrusion but was of the view that, if this failed to provide substantial relief, the plaintiff would require surgery to remove the protrusion. 14 On 22 March 1995 the plaintiff commenced 5 days traction and two days bed rest in hospital. However, little improvement was achieved and Dr Segalov recommended surgery. The Plaintiff opted to continue with conservative treatment. It was Dr Segalov's view that, even with successful surgery, the plaintiff would not be fit to return to work involving lifting, repeated bending or prolonged sitting or standing. 15 The plaintiff underwent a course of physiotherapy throughout the remainder of 1995 and 1996. There was a gradual improvement in the amount of pain he suffered throughout this period and into 1997. However, the plaintiff continued to experience, what his general practitioner described as, "fairly high level pain" both in his back and down his left leg with frequent exacerbations of his condition. 16 In April 1997 the plaintiff was referred to Dr Compton, a neurosurgeon. There were further investigations of the plaintiff's spine carried out by a CT scan and a myelogram. Dr Compton recommended surgery but the plaintiff again chose to avoid this course in the hope that his back pain would settle with time. 17 In early 1998 the plaintiff commenced an English language course at TAFE. He had realistically come to the view that he could not return to his previous form of employment and intended to retrain in some less physically demanding field. However, he realised that, before this could be possible, he had to improve his verbal and writing skills in English. 18 During 1998 the pain in the plaintiff's back worsened. In July 1998 he was complaining to Dr Compton of disabling left-side sciatica. A further myelogram and CT scan were carried out in August 1998. On 2 September 1998 Dr Compton reported to the defendant's workers compensation insurer that the plaintiff had "a very large disc prolapse" and that he required surgical treatment to maximise his chances of recovery. 19 On 10 September 1998 the plaintiff moved in his bed and suffered a sudden loss of sensation in both legs and control of his bladder and bowel. An ambulance was called and he was taken to Liverpool Hospital. The plaintiff suffered an acute exacerbation of his condition when the disc protrusion caused cauda equina compression. The next day Dr Compton carried out a laminectomy and discectomy. Although the plaintiff was relieved of pain in his back and left leg, he developed weakness and sensory impairment of the lower limbs, a neuropathic bladder and bowel dysfunction, and impotency. 20 Apart from some improvement to the plaintiff's mobility, his condition has remained relatively stable to the present time. His prognosis is poor and he should be taken to have suffered a permanent loss of the efficient use of his legs, his bladder, his bowel and his sexual function. There is no dispute that his present condition is a result of the injury suffered by the plaintiff on 13 January 1995. It has not been suggested that the plaintiff unreasonably contributed to his present injuries by the failure to have surgery when it was recommended to him in both 1995 and 1998.