New South Wales Supreme Court CITATION : Joe El-Tarraf v Franklins Ltd [2001] NSWSC 407 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 020162/99 HEARING DATE(S) : 3 May 2001, 4 May 2001 JUDGMENT DATE : 22 May 2001 PARTIES : Joe El-Tarraf (P) Franklins Ltd (D) JUDGMENT OF : Newman AJ COUNSEL : M L Williams SC (P) G M Watson (D) SOLICITORS : CATCHWORDS : Negligence - Master and servant duty - Damages - Workers' Compensation Act s151 - Threshold DECISION : See paragraph 30 - 11 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION NEWMAN AJ 22 MAY 2001 020162/99 JOE EL-TARRAF v FRANKLINS LTD JUDGMENT 1 HIS HONOUR: This is an action brought by the plaintiff against his former employer. The plaintiff claims damages for breach of master and servant duty. While the topic of breach of duty was not the subject of any substantial contest the defendant's liability to pay damages having regard to the provisions of Section 151 of the Workers Compensation Act 1987 was the subject of strong contest. 2 The plaintiff at the relevant time was employed by the defendant as a loader. His duties took place at the defendant's depot at Chullora. The depot was used as a distribution centre from which goods for sale in the defendant's stores were loaded onto trucks. In order to carry out those duties the plaintiff utilised mechanical equipment such as forklift trucks and pallet jacks. Trucks would enter the depot, reverse up to a loading dock and goods would be then loaded by the plaintiff and other employees onto the trucks. To assist that process a bridging device known as a dock leveller was provided by the defendant. This formed a bridge between the dock and the truck and was hinged along the edge abutting the loading dock. The bridge portion of the leveller was raised and lowered manually to form a proper bridge upon contact with the deck of the trucks. It seems that the bridge levelling device in question was faulty and had been so for some period of time before 4 April 1996 and a system of work had been developed whereby a person such as the plaintiff would jump on the dock leveller in order that it be lowered. 3 On 4 April 1996 a truck arrived at the depot and reversed up to the loading dock. The plaintiff then began the task of engaging the bridge levelling device. When it had reached a certain point in its engagement the plaintiff commenced to stand on the leveller in order that it be lowered. The truck driver decided to assist the plaintiff in the task. His assistance took the form of him jumping onto the dock leveller. This caused the plaintiff to lose balance and he landed awkwardly on his right knee feeling immediate pain. 4 The failure of the defendant company to provide the dock leveller in working order which led to the truck driver taking the course of action which he did, in my view plainly constitutes a breach of duty. Indeed, counsel for the defendant very properly made no submissions in relation to the question of breach of duty. In my view the plaintiff has made out his case in this regard. 5 The assessment of damages in cases of industrial injury such as this are governed by the provisions of the Workers Compensation Act 1987. In particular, Division 3, Part 5 of that Act controls the amount of damages which may be awarded. 6 Section 151G (4) of that Act provides that at the time when the plaintiff suffered his work injury damages for non-economic loss are not to be awarded if damages less than $38,850 are awarded. At the relevant time, the gazetted maximum for damages for non-economic loss was set at $220,100. The sum of $38,850 represents some 17% of the maximum sum. Accordingly, the plaintiff must obtain an award of damages of at least $38,850 to obtain any damages for non-economic loss. 7 Section 151H prescribes that no damages are to be awarded for economic loss unless the injured worker has received a serious injury. A serious injury as described by Section 151H (2A) is one for which compensation under Section 66 (1) of the Act is not less than 25% of the maximum amount from time to time referred to in Section 66 (1) or is an injury for which damages of non-economic loss are of no less a sum than $51,100. The latter figure is the amount gazetted for injuries received at the time when the plaintiff received his injury. 8 It is the plaintiff's claim that as a consequence of the incident of 4 April 1996 he has suffered a number of injuries. They include not only injury to his right knee and consequent problems with his right leg but also injury to his left hip, injury to his back and injury to his neck, headaches and pain in his left knee. 9 Following the accident the plaintiff was originally treated by general practitioners of his own choice and by doctors engaged by his employer. He was eventually referred by his own general practitioner Dr Michael, to an orthopaedic surgeon, Dr Neville Rowden. Initially, Dr Rowden considered that the plaintiff had suffered from a torn medial meniscus in his right leg and accordingly carried out an arthroscospy. That arthroscopy was performed by Dr Rowden on 23 October 1996. He found on carrying out that procedure that the plaintiff had suffered from a radial tear in the lateral meniscus of his right knee. The medial meniscus was, in fact, intact and he also found that there was no significant articular cartilage damage. 10 Having carried out that procedure, Dr Rowden reviewed the plaintiff's progress, last seeing him on 6 March 1997. He had undergone tests including MRI scans following the procedure of 23 October 1996. Dr Rowden finally determined that the plaintiff had a 15% permanent impairment of the right left at or below the knee. In the reports which Dr Rowden has furnished and are in evidence he makes no mention of any complaints being made to him by the plaintiff of disabilities in his neck, back and left leg. Indeed, the complaints recorded by Dr Rowden refer only to the plaintiff's right leg and in particular to his right knee. Dr Rowden was of the view that the plaintiff was fit for light duties. 11 After he passed from Dr Rowden's care, he has been seen by a number of doctors, both for the purposes of treatment and for the purposes of medico-legal examination. 12 One doctor to whom he was referred for treatment, Dr David Lewington, describes himself as a rehabilitation physician. Dr Lewington saw the plaintiff on a number of occasions in 1997. Initially, the plaintiff complained to Dr Lewington of difficulty with his right knee but it appears as time went by he complained of problems in other parts of his body. On 14 August 1997 Dr Lewington reported to Dr Rowden in these terms ..-"Apart from his right knee injury he continues to report apparently increasingly widespread musculoskeletal symptoms including his neck, shoulders, back, elbows and knees. As previously, investigations have been non-contributory to date and he continues to see a rheumatologist. I am not sure if the rheumatologist has formed some provisional diagnosis but I must confess that I am at a loss to explain this man's symptoms. Certainly they are not attributable to his knee injury. It is possible he has a secondary depression and he may benefit from a psychiatric consultation in this regard." 13 I should note at this point that no psychiatric evidence was produced to this Court. 14 The rheumatologist referred to by Dr Lewington was one Dr Harry Patapanian. That doctor first saw the plaintiff on 4 June 1997. He received a history of a myriad of complaints to various parts of his body from the plaintiff. He arranged a number of tests. Ultimately Dr Patapanian concluded in a report dated 1 December 1997 as follows ..-"Mr El-Tarraf's diagnoses are as follows: 1, mild generalised degenerative arthritis; 2, lateral meniscal tear of the right knee; 3, pain amplification syndrome (fibromyalgia); 4, soft tissue injury to the right ankle. It is my conclusion that the lateral meniscal tear as well as the soft tissue injury to the right ankle are directly attributable to the fall he describes taking place on 4 April, 1996 which was from a height of approximately 1.2 metres. However his other problems are not related to this injury and I feel do not constitute major problems for him." 15 In November of 1997 the plaintiff came under the care of Dr George Kirsh, an orthopaedic surgeon. Dr Kirsh saw him on a number of occasions in 1997 and 1998 finally seeing him in February of 1999. Dr Kirsh, unlike Dr Rowden, received a history which included complaints to the plaintiff's right knee, ankle, hip, neck, shoulders and lower back. Dr Kirsh expressed the view that the plaintiff's injuries to this region were all related directly to his injury at work on 4 April 1996. Dr Kirsh expressed the view that the plaintiff suffered a 10% impairment of his neck and a 10% loss of efficient use of his right lower limb at and below the level of the knee to include the entire limb. Dr Kirsh did not give any reasons why the injuries to those parts of his body other than the plaintiff's right leg were attributable to his injury of 4 April 1996. This, of course, makes it difficult for the Court to assess the value of his evidence, particularly as he was not called. 16 The plaintiff was referred by Dr Kirsh to a Dr Geoffrey Rosenberg. Dr Rosenberg, who is another orthopaedic surgeon, has special interest in, inter alia, spinal surgery. He received a history of low back pain, neck pain, as well as problems in the plaintiff's right leg. He carried out clinical examination and also had X-rays and read a CT scan. Dr Rosenberg concluded as follows ..-"This man does not strike me as a surgical candidate at all. He has pain that seemingly is out of all proportion to any hard objective findings. His pains are not activity related as well. 17 The above review involves a summary of the reports of the specialist practitioners who have treated the plaintiff whose reports were tendered in evidence in the proceedings. It is observed that only Dr Kirsh of those practitioners relates symptoms complained of by the plaintiff in parts of his body other than the right leg to the incident of 4 April 1996. As I have said he gives no reason why he so ascribes. On the other hand, Dr Rowden received no history of any complaints to parts of his body other than his right leg, and other specialist practitioners who saw him exclude any of his other complaints from the incident of 4 April, 1996. Those who have given assessments of percentage disability range from 10 to 15% of his right lower limb and in the case of Dr Kirsh an estimate of a 10% disability in his neck. 18 He has, as is usual in cases of this type, been seen by a number of specialists for medico-legal purposes. Some he has seen on behalf of himself and others on behalf of the defendant. Their views are quite disparate. 19 Dr Douglas Seaton who saw him on a number of occasions in 1998 received a history of complaints of pain from the plaintiff involving his neck, both shoulders, his back and both hips as well as complaints of pain in his right knee. Dr Seaton in his last report observed as follows .. - "Overall, I am at a loss to explain why this man has aches and pains involving his neck, both shoulders, his back and both hips because I can only really find an orthopaedic problem in his right knee where he has undergone surgical procedure mentioned in an earlier report. There is no evidence of neck or back injury on clinical examination or on the investigations. No doubt the aches and pains that he described are basically caused by the fact that he has an injured right knee which has caused him to limp and prevents him doing his normal exercise with his neck and back." In an earlier report Dr Seaton expressed the view that the plaintiff had a permanent loss of efficient use in his right leg at and above the right knee but including below the right knee and he has permanent loss of efficient use in the right leg at and below the right knee of some 15%. Dr Selby Brown, an orthopaedic surgeon, saw the plaintiff on 8 December 1999. He was prepared to accept that complaints of pain to the plaintiff's neck were related to the injury of 4 April 1996. Ultimately Dr Selby Brown came to the following conclusion: "I assess Mr El-Tarraf as having a permanent 10% impairment of his neck and a permanent 10% loss of use of his right lower limb at or above the knee. I am not able to identify that he has any permanent loss of use in his upper limbs." 20 He effectively certified the plaintiff fit only for light duties. 21 Another orthopaedic surgeon, Dr Raymond Wallace saw the plaintiff on 31 January this year. Dr Wallace concluded that he had problems in his lower back as a consequence of an alteration in the plaintiff's gait as a result of ongoing right knee pain. Having coming to that conclusion, Dr Wallace concluded as follows ..- I believe that his condition is now stabilised and I would estimate that he has suffered a permanent impairment in his back of 15% with 5% being due to pre-existing lumbar spondylosis and 10% being due to injury sustained as a result of alteration of his gait after a right knee injury in April 1996. I believe he has suffered a permanent loss of efficient use of the right leg at or above the knee, taking into account the leg as a whole, of 18%, directly attributable to injuries sustained in the course of his duties at work in April 1996." 22 He was also referred to Dr Stephen Buckley by his solicitors. Dr Buckley describes himself as a consultant physician in rehabilitation medicine. The plaintiff saw Dr Buckley on 9 July 1999. To Dr Buckley the plaintiff stated that his main problem was in the right knee but he also had some neck and shoulder pain. Having carried out an examination and reviewed X-rays, scans and magnetic resonance images of the right knee, cervical and lumbar spines, Dr Buckley expressed the following view ..-"The partial right meniscectomy and meniscal injury is consistent with a fall of one metre on 4.4.96 as described to me. The injury and menisectomy is likely to hasten the deterioration of osteoarthritis in the right knee. The arthritis in the left knee, cervical and lumbar spines is consistent with his age." 23 Dr Buckley concluded that the plaintiff had demonstrated a capacity to continue his work as a storeman since the meniscectomy and Dr Buckley proposed he will be fit to continue this work to a normal retirement age. Dr Buckley made no assessment in percentage terms of disability to any part of the plaintiff's body. 24 Finally the plaintiff was referred by his solicitors to Dr Grahame Mahony, orthopaedic surgeon. Dr Mahony received the history of complaints of pain in the shoulders, back, both lower limbs, lower back, left ankle. Dr Mahony concluded that the plaintiff had suffered a number of disabilities which he related to the incident on 4 April 1996. He assessed in percentage terms the following disabilities. 17 ½ % permanent impairment of the neck 15% permanent loss of efficient use of the right upper limb at and above the elbow to include impairment below the elbow 10% permanent loss of efficient use of the left upper limb at and above the elbow to include impairment below the elbow 15% permanent impairment of the back 25% permanent loss of efficient use of the right lower limb at and above the knee to include impairment below the knee 12 ½ % permanent loss of efficient use of the left lower limb at and above the knee to include impairment below the knee 25 Thus again, those who have seen him on the behest of his solicitors for medico-legal opinions have come out with a range of view as to the plaintiff's disabilities. Some are prepared to assess a permanent disability in his back or neck, all are prepared to assess a permanent disability in his right leg. They range as far as the right leg is concerned from an assessment of 10% by Dr Kirsh to an assessment of 18% by Dr Wallace. Dr Mahony, indeed, gives an assessment of 25% of efficient use below the right knee. It should be observed that Dr Mahony's assessments which I have set out above, stand quite apart from the assessments made by those practitioners who have seen him either on behalf of his solicitors or for the purposes of treatment. 26 The plaintiff was also seen for medico-legal purposes by a number of specialists on behalf of the defendant. Reports were tendered before the Court from a Dr Flood, orthopaedic surgeon; Dr Carr, rheumatologist; Dr Millons, a general surgeon and Dr Terenty, a specialist physician. 27 Dr Flood, who saw the plaintiff on a number of occasions in 1997 did not receive any history of pain in the plaintiff's body other than in the right knee regions. I should add that Dr Flood's reports seem to indicate that that specialist was sympathetic to the plaintiff. However, Dr Flood concluded that the plaintiff should be assessed as having 7% permanent impairment of his right lower extremity. 28 Dr Terenty excluded any complaints made to her by the plaintiff of disabilities in any part of his body other than the right leg which she assessed as having a 10% loss. I should add that in Dr Terenty's report the reference to percentage loss is in the left leg but on a close reading of what she said earlier it is plain that this is a typographical error and she is in fact referring to the plaintiff's right leg. 29 Dr Millons on the history he received was prepared to assess the plaintiff as having a 10% loss of function in his back. However, he found that that was due to an underlying degenerative condition and not to the injury suffered on 4 April 1996. As far as the plaintiff's right leg was concerned Dr Millons was of the view that the plaintiff suffered from a 10% loss of efficient use at or above the right knee. He found him fit for light duties and did assess the plaintiff as requiring two hours a week assistance with gardening, lawn mowing and the like. Dr Carr, rheumatologist saw the plaintiff on 3 April this year. Dr Carr who was the only medical practitioner called to give evidence in the proceedings, assessed the plaintiff as having a 5% permanent loss of function in his right leg at or above the knee as a result of the incident on 4 April 1996. He excluded the plaintiff's other complaints, of which it seems all were made to Dr Carr, as being related to that incident. Dr Carr was subjected to searching cross examination by counsel for the plaintiff. My view of Dr Carr is that he gave his evidence in a clear and persuasive fashion. I find Dr Carr's evidence to be entirely acceptable. 30 On the evidence before me I conclude that the plaintiff's disability as a consequence of the incident of 4 April 1996 is confined to his right leg. It may be seen that many practitioners have been unable to ascribe any disability to his back, neck or other parts of his body to that incident. Those who do, would seem to stand quite apart in their views from the majority of doctors who have seen him whether by way of treatment or on behalf of either of the parties on a medico-legal basis. It is for this reason that I am of the view that the plaintiff has not been able to establish on a balance of probabilities that he has a disability related to the injury of 4 April 1996 other than in his right leg. I accept the view that the injury suffered to his right leg was, in fact, one of a not severe type. That being so it is my view that the plaintiff has failed to establish ..- (a), that he has a serious injury for the purposes of Section 150H (2A) of the Workers Compensation Act and, (b), that he has failed to prove that he has established a claim for damages for non-economic loss of at least $38,850, that is 17% of the maximum amount which may be awarded under the Act under this head. I am also of the view that the plaintiff has failed to establish that he has a need to have domestic assistance of the type he claims. In this regard I have found Dr Carr's views to be persuasive. It follows that as the plaintiff's medical expenses have been already paid under the Workers Compensation Act that the plaintiff's claim for damages, even though he has established a breach of duty, must fail. In my view, therefore, there must be a verdict for the defendant. I shall defer making any order as to costs until after the delivery of these reasons. I certify that this and the 10 preceding pages are a true copy of the reasons for judgment therein of the Honourable Mr Acting Justice Newman Dated 22 May 2001 Associate Dorothy Harwood *********** Last Modified: 05/23/2001 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.