New South Wales Supreme Court CITATION : Scott v S & E Visser Pty Ltd [2000] NSWSC 265 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 147/97 HEARING DATE(S) : 30-31 March 2000 JUDGMENT DATE : 5 April 2000 PARTIES : Robert William Scott (Plaintiff) S & E Visser Pty Limited (Defendant) JUDGMENT OF : Studdert J COUNSEL : C. Callaway QC/C. Houghton (Plaintiff) D. Kennedy SC (Defendant) SOLICITORS : Michael Evers & Co. (Plaintiff) P.W. Turk & Associates (Defendant) LEGISLATION CITED : Construction Safety Act Workers' Compensation Act Australian Iron and Steel Pty Limited v Luna (1968) 123 CLR 305 CASES CITED : O'Connor v Commissioner for Government Transport (1954) 100 CLR 225 Bankstown Foundry Pty Limited Braistina (1986) 160 CLR 301 DECISION : See para 55 IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION STUDDERT J NEWCASTLE: Wednesday 5 April 2000 147/97 ROBERT WILLIAM SCOTT v S & E VISSER PTY LIMITED JUDGMENT 1 HIS HONOUR: Robert William Scott has sued S & E Visser Pty Limited seeking damages for injury sustained in the course of his employment with the defendant on 2 March 1995. The principal of the defendant company, Mr Visser, carried on work as a carpenter, and the plaintiff was employed by the defendant in a like capacity. The plaintiff was injured in a fall in the course of his employment and has sued the defendant in negligence and for breaches of statutory duty under certain of the regulations made under the Construction Safety Act . The defendant has denied negligence and has pleaded contributory negligence. 2 The circumstances in which the plaintiff was injured are really not in dispute; nor is it in dispute that the plaintiff was seriously injured. 3 The accident happened at the Cardiff Contemporary Christian Centre. The defendant was engaged to carry out work at the centre, which was in the nature of fire protection work and I am satisfied that such work attracted a requirement for the defendant to comply with the regulations made pursuant to the Construction Safety Act . Mr Kennedy of Senior Counsel has not contended to the contrary. 4 To carry out the work the plaintiff was required to enter a loft in the church building, being the area between the ceiling and the roof. This area has been depicted in photographs forming part of the report of Dr Adams (Exhibit A). As part of the fire prevention work it was necessary to fill certain gaps in the brickwork around the trusses and the steel beams. For this purpose a cement mix had been made and the plaintiff entered the loft area carrying a ten litre bucket that contained seven to eight litres of cement mix. The plaintiff followed Mr Visser into the loft area, and Mr Visser was carrying trowels and some bagging. 5 Inside the loft there was planking over insulation that rested on the ceiling and that planking afforded a walkway across the ceiling. The planking consisted of three timber planks lying side by side with an overall width of about 525 mm. This was in situ before the plaintiff and Mr Visser started their work and the defendant had no part in its placement. The work which the plaintiff and Mr Visser were engaged to perform was to take them initially to the far end of the walkway from the door through which access to the loft was provided. The walkway was obstructed at one point by air conditioning ducting that lay directly across it. Further obstruction of the walkway was afforded by a metal roof truss support. The duct and the roof truss support which caused the obstruction is depicted in Exhibit A (in particular photos 3, 4 and 5). 6 The plaintiff was following Mr Visser along the walkway as they proceeded towards their initial destination at the far end of it. Mr Visser climbed over the duct through the truss but the plaintiff decided to go around the duct. He said that he saw there was some timber across a ceiling joist and he indicated the position of this timber plank on photograph 3 in Exhibit A. It lay at right angles to the walkway and he described this timber as dusty. He said it appeared to him to be the same size as the timber on the walkway. The plaintiff stepped off the walkway and on to this single timber plank. It gave way under him and the plaintiff fell through the ceiling on to the floor below, a distance of some three metres. 7 The plaintiff alleges that the defendant was negligent in the circumstances in which he was injured and reliance has been placed upon a report of Dr Adams, whose qualifications are well known to this Court. According to Dr Adams, there were measures that could have been taken by the defendant to avoid this accident. The first of these was the provision of safety harnesses and lanyards for both Mr Visser and Mr Scott. The plaintiff, who I accept is an experienced carpenter, considered that the provision of slings and lanyards would have been "ridiculous" and highly impractical. Mr Visser's evidence was to the like effect, and I am not persuaded that the defendant was negligent in failing to provide such equipment. 8 Dr Adams also opined that more adequate lighting should have been provided. However, although the plaintiff complained of the adequacy of the lighting, I accept Mr Visser's description of it. There were three lighting points along the wall adjacent to the walkway and at least two of the globes were lit. There were also two skylights above. I accept Mr Visser's evidence that the lighting was adequate. 9 Dr Adams advanced as a further preventative measure that the plaintiff could have been warned about the hazards of stepping off the timber walkway. Some warning was given by Mr Visser, not at the point where the plaintiff had his accident but earlier in point of time after the two men entered the loft. At that earlier point of time Mr Visser said that he cautioned the plaintiff to watch what he was walking on, that not everything he was standing on was safe. Mr Visser is softly spoken, but the plaintiff acknowledged that Mr Visser had cautioned him "as they first climbed over the main ducting – not at the accident point - that there was some loose timber." He said that Mr Visser said at that point: "There's some loose timber here when you get down." 10 There is no evidence to suggest that any further warning was given as the plaintiff and Mr Visser approached the point where the plaintiff departed from the walkway. However I find the plaintiff was an experienced carpenter and known by Mr Visser to be such. Mr Visser was leading the way and he did not stray from the walkway. 11 It seems to me that the strength of the plaintiff's case is to be found in breach of statutory duty. The plaintiff pleaded breach of reg 73(1), (2), (3), (4) and (5) of the regulations made under the Construction Safety Act . Mr Callaway however indicated that he did not rely upon alleged breaches of reg 73(1), (4) or (5). 12 Under reg 73(2) the defendant was obliged to provide and maintain safe means of access to every place at which the plaintiff was required to work. Mr Kennedy submitted that the plaintiff was at his place of work at the time of the accident. He referred to Australian Iron and Steel Pty Limited v Luna (1968) 123 CLR 305. It is a question of fact as to what constituted the plaintiff's place of work. It seems to me, having reflected upon the evidence, that the plaintiff was at the relevant time at his place of work, identifying as I do the work as including what he did from the time he first entered the loft area engaged in the task of carrying the bucket across the loft. Accordingly, I do not consider the facts attract the operation of reg 73(2). 13 Regulation 73(3) required the defendant to provide means "by fencing or otherwise for securing the safety" of the plaintiff working at a place from which he was liable to fall a distance of more than 1.8 metres. In my opinion there was a breach of this regulation. The plaintiff was working in the loft when he fell. There were no means provided to prevent the plaintiff from falling. That he was liable to fall a distance of more than 1.8 metres was demonstrated by the very accident that occurred. As I understand Mr Kennedy's submissions, he did not seek to argue that reg 73(3) did not apply and I am satisfied there was a breach of it. This of itself entitles the plaintiff to succeed against the defendant, not only for breach of statutory duty but also in negligence as the breach affords evidence of negligence. 14 However the defendant has also pleaded contributory negligence and as the law now stands since the introduction of s 151N of the Workers' Compensation Act 1987 contributory negligence does afford a defence to an action based on breach of statutory duty. Section 151N provides: "In an action for the award of damages founded on a breach of a statutory duty imposed on a defendant, contributory negligence on the part of the injured worker is not a complete defence, but the damages recoverable are to be reduced by such percentage as the court thinks just and equitable having regard to the person's share in the responsibility for the damages." 15 Mr Kennedy has submitted that the plaintiff as an experienced carpenter was guilty of a failure to exercise reasonable care in stepping off the walkway, particularly since Mr Visser had earlier cautioned him about the need for care after they had entered the loft, albeit in connection with different timber than that piece which gave way under the plaintiff. Mr Visser said the obstruction of the truss and the duct did not result in a small gap, and Mr Kennedy submitted that the prudent course would have been for the plaintiff to put his bucket on top of the duct and then climb over the duct before retrieving the bucket. 16 When one looks at photograph 3 in Exhibit A, the photograph on which the plaintiff drew the ink outline of the location of the plank which gave way, it is not clear what route the plaintiff contemplated he was going to take to go around the duct. He could only have endeavoured to step along the narrow edge of a joist, either the larger timber joist or the narrower metal one, or both. Mr Callaway submitted it is irrelevant for the purpose of considering contributory negligence to look past the plaintiff's action in stepping on to the plank that broke. However that plank was obviously not a walkway and Mr Kennedy has persuaded me that in acting as he did the plaintiff was guilty of contributory negligence. 17 To what extent is it just and equitable that the plaintiff's damages should be reduced, having regard to the plaintiff's share of the responsibility for the harm he suffered? 18 The truss and the duct work provided an obvious obstacle in the plaintiff's footpath. Mr Visser was ahead of the plaintiff and was well able to appreciate it was not going to be as easy for the plaintiff to negotiate the duct as for Mr Visser himself. He did not offer the plaintiff assistance or give him any specific instruction about how he should proceed. More significantly though, there has been established a breach of statutory duty by the employer. The law imposes an absolute duty to comply with the regulation which the defendant here breached and the benefit of the regulation is to be enjoyed by the careful and the careless employee alike. 19 It is well settled that what is a reasonable standard of care for the safety of an employee is "not a low one" : see O'Connor v Commissioner for Government Transport (1954) 100 CLR 225 at 230 and Bankstown Foundry Pty Limited v Braistina (1986) 160 CLR 301 at 308. The plaintiff's conduct is to be assessed against the background that I have found that the employer was in breach of its duty to exercise reasonable care and in particular was in breach of an absolute duty imposed by a regulation under the Construction Safety Act . 20 It seems to me to be just and equitable in all the circumstances of this case that the plaintiff's damages be reduced by fifteen percent by reason of his lack of reasonable care. 21 I turn to damages. 22 The plaintiff was born on 1 January 1948. He was therefore forty-seven years of age when this accident happened and he is presently fifty-two years old. 23 The plaintiff sustained a serious spinal injury involving a burst fracture of L1. He was admitted to John Hunter Hospital but transferred to Royal North Shore Hospital where Dr Ruff operated upon him on 3 March 1995. Dr Ruff performed a procedure described in the medical evidence as "a L1 vertebrectomy and T12-L2 spinal fusion" . After this procedure the plaintiff was confined to bed for six weeks and then mobilised in a thoraco-lumbar brace. Unhappily the compromise of the spinal cord resulted in partial paraplegia and the plaintiff did not regain the capacity to walk unaided. Since the accident he has been dependent upon Canadian crutches and bilateral foot drop callipers. He has required a wheelchair for some activities such as shopping. 24 The plaintiff was transferred to the Moorang Spinal Unit on 28 April 1995 for a rehabilitation programme and he remained at that unit until 4 August 1995. He was readmitted several times thereafter for assessments and was last assessed at that unit by Dr Middleton on 15 September 1997. Dr Middleton reported following that assessment on 9 January 1998: "Mr Scott will remain permanently disabled with impairment of lower limbs, bladder, bowel and sexual function directly resulting from the caudaequina syndrome sustained in the aforedescribed work-site accident. Using the American Medical Association Guides, I estimate the percent loss of efficient use of his lower limbs to represent 45%, bladder 20%, bowel 30% and sexual function 20% of whole person impairment. When combined this represents 76% impairment of whole person. He will continue to require a wheelchair for many of his daily functional mobility needs. I do not believe that his recent neck symptoms are directly related to his accident, although quite possibly exacerbated by his abnormal gait pattern and greater reliance on his upper limbs to ambulate. Psychologically, he continues to have a great deal of difficulty adjusting to his disability. This is currently compounded by his enormous frustration at not being supported by the Commonwealth Rehabilitation Service to return to some form of carpentry, which for him was much more than simply a vocation, but also his major recreational pursuit. He is keen to develop a cottage industry making toys, clocks and furniture from home, although he acknowledged that this may not be financially viable. His educational background is extremely limited, with poor literacy skills, and his work experience limited almost exclusively to the building/carpentry field. He has no interest whatsoever in learning computers or office-based work. Given his age, work history, educational background, current skills and interests, I feel that vocational re-training is unlikely to succeed and possibly also detrimental to his long-term psychological well-being. I would, however, encourage and support a return to some form of carpentry, even if not for financial gain. In addition, I would recommend that Mr Scott be reviewed by a clinical psychologist, who could assist him with his adjustment difficulties." 25 Since that time the plaintiff has been seeing his general practitioner, Dr Colliss, and he has been assessed by Dr Plowman, Dr Kerridge and Dr Lambeth for the purposes of this case. Reports have been tendered from those doctors and the defendant has also had medico-legal assessments by Dr Fulop, Dr Maguire, Dr Richter and Prof. Gye. 26 I do not perceive that the case is one that presents any medical issues. I do not propose to record the content of the various medical reports. No doctor was called and the plaintiff's medical reports comprise Exhibit B whilst those tendered by the defendant comprise Exhibit 1. It suffices to refer to Dr Plowman's most recent report dated 7 September 1999 which followed his assessment that day and to the report of Dr Collis of 13 March 2000. 27 Dr Plowman wrote on 7 September 1999: "Since I examined him in May 1998 his progress has been as follows: - He has not been able to work. - His condition has remained more or less unchanged and there has been ongoing treatment for his various disabilities as follows: - Recurrent backaches, which do not require treatment. - Partial paralysis of both legs below the ankles, which severely restricts his mobility. He uses Canadian crutches except when he is inside the house and he wears foot drop splints most of the time. - Sexual impotence, so that he requires penile injections or Viagra for an erection. - Urinary retention, so that he requires self catheterisation and the use of urinary antiseptics to prevent infection. - Constipation for which he requires enemas and laxatives. - Recurrent pain in the shoulders from using walking sticks. He has massage treatment occasionally. 2. Fitness - With these disabilities he has been and remains permanently unfit for his pre-injury employment, and for work in general, other than of a clerical nature. 3. Prognosis - Present disabilities are stable and stationary. There will be a need for ongoing treatment for his various disabilities as at present." 28 Dr Collis reported that the plaintiff had seen him six times since 24 August 1999. He stated: "As stated in my previous report Mr Scott's neurological impairment is permanent and indeed there has been no improvement in his paraparesis since this report. Mr Scott's main associated problem appears to be his frustration that he has been severely physically impaired at a relatively young age. He usually expresses the desire to be back at work and able to carry on his pre-injury activities. Mr Scott has been experiencing some left elbow pain and exacerbations of his lumbar pain. I suspect the elbow pain is, in part, due to the fact that he walks placing considerable strain on his Canadian crutches. This places his weight on his forearms, which is transmitted through his elbows. His significant lumbar pain is obviously related to his major injury. As mentioned in my previous report I supplied Mr Scott with samples of Viagra tablets. Mr Scott was hesitant to take the medication because 'he didn't want to be dependent on tablets' and he suspected it took some of the spontaneity out of his marital relations." 29 The plaintiff gave evidence as to his ongoing difficulties. I was much impressed by him as a witness and I accept his evidence as being both truthful and reliable. 30 The plaintiff said that whilst he was at Moorang he was having painkillers every four hours for his back pain. In this period he learned to walk with callipers and Canadian crutches. Following discharge from that centre attempts were made to place him in employment but these proved unsuccessful. The plaintiff started to have hydrotherapy and has kept having that, attending the Hunter Valley Private Hospital at Shortland three times a week. He finds this helps his mobility. 31 The back pain has persisted since he left hospital, though it improved somewhat. The plaintiff described his improvement as having plateaued some two years ago. The plaintiff has had difficulties with urinary function and has to use a catheter every six hours. He has also experienced trouble with his bowel function. He did have accidents earlier but has overcome that problem. 32 The plaintiff is a married man and his sexual activity is impeded. He has required injections to obtain and maintain an erection and has found this frustrating. His sexual malfunction he said has been frustrating for both his wife and himself. 33 The plaintiff said that he has had to use his callipers and crutches to move about although at home he can move unaided provided he is able to support himself on furniture in the home. 34 The plaintiff said his sleep is disturbed by pain and he has also experienced pain in his arms and shoulders, particularly the left shoulder by reason of the stresses imposed by the use of the crutches. 35 To begin with when he first came home from the rehabilitation unit the plaintiff needed assistance to dress and to shower but he has become more independent in those functions. He said that socially the accident has affected him, although he and his wife used not to go out very much before his accident anyway. Since the accident though, the plaintiff has to be careful that any place he attends is clean enough to permit him to use the catheter and because of this concern the plaintiff said that he and his wife do not go out, other than to do voluntary work for the church they attend. 36 The plaintiff has been unable to return to his employment as a carpenter and he misses that "greatly" . He said, and I accept, that work was to him a hobby and he used to do work for friends in his spare time. 37 So far as the future is concerned, what the plaintiff hopes to do is to set up a workshop at home where he could use bench saws rather than handsaws and tools that accommodate his disabilities. He understands that the cost of re-tooling would be approximately $10,000 and he hopes to use his carpentry skills in some home based business making toys and craft items. If it does not prove practicable to operate a business making and selling items of this type, he would hope at least to make toys to give them to children who cannot afford them. 38 Damages are of course to be assessed under the W orkers' Compensation Act provisions and I will now proceed to make my assessment. 39 Section 151G of the statute governs the award for non economic loss. The maximum payable "in a most extreme case" for the purposes of s 151G(3) is, for present purposes, the sum of $216,950. The injuries the plaintiff suffered were most serious and the disabilities that the plaintiff will be required to endure on a permanent basis are very significant. There has been a grave disruption of his enjoyment of life and he has endured significant pain in the past and will have to do so in the future. However I do not regard this as "a most extreme case" for the purposes of s 151G. The proportion of the maximum sum which I consider to be appropriate, having regard to the severity of the non economic loss, is eighty percent and I therefore allow for non economic loss the sum of $173,560. 40 The out of pocket expenses are agreed at $155,854 (omitting cents). 41 The plaintiff has, of course, received substantial payments under the Workers' Compensation Act and it is agreed that the Fox v Wood adjustment to be included in the assessment is $22,900. 42 The plaintiff has a requirement for the provision of a wheelchair and cushion, surgical stockings, Canadian crutches and orthoses. The parties are agreed that the capital sum required to provide for these needs, allowing that the plaintiff has a life expectancy of twenty-six years, is $23,500. 43 The parties have also agreed on an appropriate allowance for the plaintiff's future medical, physiotherapy, hydrotherapy and rehabilitation requirements. They have also agreed on the appropriate allowance for future gardening and handyman services and the cost of medication. The lump sum required for these various items, all of which I am satisfied the plaintiff will require, is $165,000, and that sum I will include in my assessment. 44 The plaintiff's disabilities have required modification to his house and the parties are agreed that the reasonable cost of these modifications is $4700. 45 In addition to the equipment needs I referred to earlier, the parties have agreed that it is reasonable that the plaintiff be provided with a shower chair, a raised toilet seat, a car hoist, and a special car seat, an electronically operated lounge chair and a monkey bar and ring. The parties are agreed that I should allow for the future the sum of $5900 for these items. 46 A claim is made for past economic loss. The parties have agreed on the average weekly earnings over the period since the accident at the rate of $436.25 nett. Mr Kennedy does not concede that the plaintiff is entitled to be compensated at that weekly rate for the entire period and has submitted that the plaintiff would have been capable of doing some work in the past. I reject that submission. Efforts to retrain the plaintiff have not proved successful and his background does not fit him for clerical or computer work. I consider it is reasonable to treat the plaintiff as having been totally incapacitated for employment in a practical sense since this accident and I therefore allow for past economic loss the sum of $115,170. 47 For the future Mr Callaway has submitted that I should treat the plaintiff as unemployable. Mr Kennedy has submitted that he has some ability to earn. It is agreed that had he been uninjured and continued as a carpenter he would now be earning $475.50 per week nett. Theoretically the plaintiff has some capacity to work and he will have some opportunity to employ his skills as a carpenter in a suitably modified workshop in his home. My assessment of the plaintiff is that he will endeavour to employ his residual skills once he has re-tooled and is able to do carpentry work at home. There is some scope for him to embark upon the sort of home based business he contemplates, making toys and craft items. 48 Clearly the defendant's insurer was not impressed with the employment opportunity thus presented because the evidence is that it was not prepared to fund the cost of equipment, but I consider it probable that the plaintiff will use his best endeavours to earn from his workshop activities and I regard it as fair in all the circumstances to assess the plaintiff as having some modest residual capacity to earn. I assess that residual capacity at $50 per week and accordingly I measure future loss of earning capacity at $425 per week, in round figures. The lump sum presently required to compensate for a loss of that magnitude to age sixty-five, using the five percent tables and a discount of fifteen percent for the vicissitudes, is $181,457. That sum I propose to include in the assessment. 49 The plaintiff makes a claim for loss of superannuation benefits. That claim is not affected by my assessment of his residual earning capacity and accordingly I allow the sum, agreed as to mathematics between the parties, of $18,270. 50 A claim is made for home care and for the provision of gratuitous services in the past. The plaintiff said that his wife assisted him when he first came home to dress and to bathe. She tends to chores which he used to perform, such as making the bed, and getting things for him that are out of reach. For a time the plaintiff's wife helped him to use the catheter and an enema, although he has now learned to do those things for himself. He has been assisted in the garden in that his son now mows the lawn, and it is necessary for somebody else to wash the dog which he used to wash. 51 Mr Callaway has submitted that it is reasonable to allow the plaintiff an hour a day for past care but Mr Kennedy has submitted that this would be to allow too much. It is always difficult to make an accurate assessment of the time spent in providing gratuitous services. Certainly I accept, as the plaintiff contends, that one hour a day was spent in providing that which the plaintiff would have done for himself before the accident for some time thereafter but I do not consider that the extent of the need has required seven hours per week ever since the accident. I propose to allow for seven hours per week for one year and thereafter for three hours per week. On this approach I allow the plaintiff $14,010 for the provision of gratuitous services to date. 52 For the future the need will continue as I have assessed it in the recent past but as the plaintiff gets older the need will increase again. In recognition of this I propose to allow for the provision of home care three hours per week for the next ten years and then seven hours per week for the remaining sixteen years of the plaintiff's life (treating the plaintiff as having a life expectancy of twenty-six years). On this approach, and taking the agreed rate of $15 per hour, using the five percent tables, and the deferred tables as appropriate, I allow for the future $55,940. 53 The parties are agreed that I should allow $7000 by way of capital sum to provide for the increased motor vehicle costs the plaintiff will incur, it being agreed that the plaintiff now requires a station wagon instead of a sedan. That sum I propose to include in my assessment. 54 I summarise then my assessment as follows: Allowance for non economic loss $173,560 Out of pocket expenses 155,854 Fox v Wood adjustment 22,900 Future personal equipment costs 23,500 Future medical, physiotherapy, hydrotherapy, rehabilitation costs 165,000 Allowance for home modification 4,700 Future equipment needs 5,900 Loss of earning capacity: Past loss of earnings 115,170 Future economic loss 181,457 Lost superannuation benefits 18,270 Care costs: Past gratuitous care 14,010 Future care 55,940 Increased motor vehicle costs 7,000 $943,261 55 The damages that I have assessed must be reduced by fifteen percent because of the finding of contributory negligence earlier expressed. In the result there will be verdict and judgment for the plaintiff in the sum of $801,772. I order the defendant to pay the plaintiff's costs. ********** Last Modified: 09/25/2000 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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.