Hall v Enerka Apex Belting Pty Ltd [2000] NSWSC 1055

New South Wales Supreme Court

CITATION : Hall v Enerka Apex Belting Pty Ltd [2000] NSWSC 1055 CURRENT JURISDICTION: civil FILE NUMBER(S) : SC CW500010/99 HEARING DATE(S) : 21 August 2000 JUDGMENT DATE : 11 December 2000

PARTIES : Bradley Wayne Hall Enerka Apex Belting Pty Ltd JUDGMENT OF : Wood CJatCL at 1

COUNSEL : D. Nock SC with S.Torrington P. Crittle SOLICITORS : Barry F Cosier & Associates McCulloch & Buggy DECISION : Verdict and judgment for plaintiff in sum of $404,902.

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

No. CW 500010/99 WOOD CJ at CL

MONDAY 11 DECEMBER 2000

HALL v ENERKA APEX BELTING PTY LTD

JUDGMENT 1 WOOD CJ at CL: The plaintiff brings these proceedings for damages for a back injury that he says he sustained during the course of his employment by the defendant. It is his case that this injury was sustained on 28 August 1996, at the Mount Owen Mine, in the Singleton district, where he was sent to assist in the splicing of some conveyor belting. 2 There is no issue that the plaintiff has some back pathology, confirmed by CT scan in June 1998 and later by MRI, in the form of a left postero-lateral disc protrusion at L4/5, and small annular tears at L4/5 and L5/S1, with some minimal disc bulging at the last mentioned level. However, serious issues arise as to whether this pathology was causally related to lifting work carried out that day, and also as to whether it is as debilitating as the plaintiff claims.

The suffering of work related injury 3 The work of splicing in which the plaintiff was engaged on 28 August 1996, requires the use of a vulcaniser press to heat splice conveyor belts. The press is quite large and heavy, estimated by the plaintiff to weigh about two tonnes, but it can be dissassembled into a number of components, including four plattens, eight aluminium beams, two steel plates and some large bolts, in order to ease the task of moving it to the required location, and setting it up over the sections of belting that need to be spliced. 4 The heaviest components that had to be carried, on this occasion, were the four steel plattens or square heating plates. The other heavy components that had to be carried were the aluminium beams used for clamping the equipment together and for exerting pressure on the vulcanising plates. The only evidence as to their weight came from Dr Neil Adams' report, in which he provided a range between 78 kgs. and 90 kgs, depending on their length. The weight of the steel plates, this report suggested, was in the order of 70kgs. 5 There was some divergence of opinion among the witnesses as to the weight of the plattens, and some uncertainty in that respect, attributable to the difficulty in determining exactly which vulcaniser press had been used at Mount Owen. Their weight, however, was estimated to be somewhere between 90kgs and 110 kgs. 6 It was the plaintiff's evidence that the Newcastle manager of the defendant, Greg Howell, instructed the men working on the splice to move the vulcaniser down an incline, and across some rough and uneven ground to the belt structure. He said that this task was carried out by two Newcastle employees and by two men sent over from Lithgow, namely Todd Lane, and himself. 7 The plaintiff said that before the press was moved, he spoke to Greg Howell, and told him that they should not try to lift it, but should get a forklift to do the job. According to him, Mr. Howell said that they had two hours to spare. He instructed the Newcastle staff to effect the move. The plaintiff and Todd Lane then went ahead and helped them. The particular task, he said, that caused his problem, involved taking the four plattens from the pallet onto which they had been unloaded down the embankment and over to the conveyor structure. The distance over which they carried the plattens, was according to him about twenty metres. 8 The plaintiff did not notice any pain during the lift of the plattens, but on the next day he experienced extreme pain in the lower back. On the following day he and Todd Lane returned to Lithgow. When he went to work on Monday, he said that he complained to his boss, Barry Johnson. 9 The pain continued thereafter, but the plaintiff did not consult a doctor until February 1998, when he saw Dr. Suresh. In June 1998, he took some time off work, before going back on light duties in November 1998 for a short period before resuming full duties. He ceased work altogether on 28 June 1999. For most of the period following the lift of the plattens he claims to have suffered from back pain. Although there were some days when he was pain free, they were, on his account, rare. Activity, particularly leaning over and bending down, brought on pain, he said. 10 In cross examination he acknowledged that he had made no complaint of pain on the day of the lift. When lifting and carrying the two largest plattens, he said that he could "feel a lot of weight on my legs, my back and my arms. I could hardly lift my legs up when I was walking with (them)". 11 It was his evidence that while doing this task, he was walking backwards and had to watch where he was going. He did not give any specific evidence in chief, or in cross examination, as to whether or not he experienced a similar sensation when carrying the aluminium beams, the steel plates or the bolts. Nor did he give any evidence as to the way in which they were carried, or whether he was personally involved in moving those items. 12 The plaintiff acknowledged that no notation of any injury was made in the incident book on his return to Lithgow. Nor did he see any record made of the various complaints that he said he made to Mr. Johnson, on subsequent occasions, concerning his back pain. 13 It was put to him in cross examination that the men involved in the lift had not included Todd Martin, and that he had made no request to use the forklift. He denied each suggestion. He acknowledged that there was an overhead structure where the splice was to take place, but he said that had the forklift been used for the move, the distance of carriage could have been reduced to five metres. He disagreed with the suggestion that the ground had been graded by a bulldozer and was level. 14 No other witness was called in the plaintiff's case, and I am accordingly in the dark as to whether Todd Lane or Mr. Johnson would have supported his evidence. It was established that Mr. Johnson now lives in central Queensland and works for an opposition company. The evidence was, however, silent as to the whereabouts of Mr. Lane. 15 The defendant called Mr. Howell as well as two splicers from the Newcastle branch, Clifford Anderson and Kenneth Jones. 16 Mr. Howell said that the vulcaniser had to be moved about nine to ten metres. The area over which it was to be moved, had, on his account, been recently graded and was smooth dirt. The work area he described as comprising an amphitheatre with a gently sloping bank. That bank dropped about two metres over the nine to ten metres that the vulcaniser had to be moved. 17 Mr Howell said there was no request by the plaintiff prior to the lift, to use a forklift or lifting aid. The lift was done, on his account, by the plaintiff, by the two Newcastle employees mentioned and by himself, each man taking one corner of the plattens. He experienced no difficulty with the lift. He said that this kind of manual operation was conducted every time the vulcaniser was used. He did not regard the weight of the plattens as excessive when using one person at each corner. He did, however, acknowledge that it was "heavy work". 18 He also acknowledged that, when he had joined the defendant, just before 1996, he had put together a set of safe working procedures for this type of activity. These instructions specified that the equipment required for the work of splicing should include: "(6) one lifting device, such as block and tackle or a wire rope/chain puller and chain slings for lifting the press and two (2) 3-tonne wire rope or chain pullers with 3 tonne chain slings for tensioning the belt". 19 The instructions did not otherwise deal with the transport, movement or lifting of the press, or of its components if disassembled. 20 In a statement made by Mr. Howell on 11 November 1999, he noted that the plattens weighted approximately 100 kgs, a figure which he revised in his evidence in chief to 90 kgs, based upon his recollection of the contents of the manufacturer's data sheets, which were not, however, produced. 21 He also stated in this document: "… all lifting is lifted with either assistance of the work crew, however, the majority of the large items are more commonly loaded by means of a forklift. Upon arrival at the site, the majority of the sites have mobile cranes or forklifts."