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District Court of Western Australia |
Last Updated: 30 March 2017
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION : PERTH
CITATION : DERRICK -v- THIESS PTY LTD [2017] WADC 41
CORAM : WAGER DCJ
HEARD : 6 - 9 FEBRUARY 2017
DELIVERED : 29 MARCH 2017
FILE NO/S : CIV 504 of 2013
BETWEEN : MICHAEL DERRICK
Plaintiff
AND
THIESS PTY LTD
Defendant
Catchwords:
Torts - Negligence - Plaintiff employee injured at
workplace - Whether employer in breach of duty of care - Failure to mitigate
loss
- Turns on own facts
Legislation:
Workers' Compensation and Injury Management Act
1981 (WA)
Occupational Safety and Health Regulation 1996 (WA)
4.25
Result:
Plaintiff's claim dismissed
Judgment for the
defendant
Representation:
Counsel:
Plaintiff : In person
Defendant : Mr D Clyne
Solicitors:
Plaintiff : Not applicable
Defendant : SRB Legal
Case(s) referred to in judgment(s):
Fazlic v Milingimbi Community Inc [1982] HCA 3; [1982] 150 CLR 345
Hoad v Scone Motors [1977] 1 NSWLR 88
Kittelty v Davies [2011] WADC 1
M R & R C Smith Pty Ltd t/as Ultra Tune (Osborne Park) v Wyatt [No 2] [2012] WASCA 110
Matters v Baker & Forsett [1951] SASR 91
Shire of Gingin v Coombe [2009] WASCA 92
Transfield Services (Australia) Pty Ltd v Wieland [2014] WASCA 41
Wyong Shire Council v Shirt (1980) HCA 12; (1980) 146 CLR 40
1 WAGER DCJ: The plaintiff Mr Derrick injured himself on 27 June 2011 when he alighted from an elevated work platform known as a scissor lift (EWP). At the time he was a fully qualified scaffolder with about five years scaffolding experience who was working on the construction of a residential construction village on Barrow Island. The injury occurred when he was hanging onto a grab rail with his left hand while his feet were on the bottom rung of a fixed ladder on the side of the EWP. He had hold of a swing gate in his right hand which was above the grab rail. The swing gate sprang shut. His feet went to the ground but he did not release the grip of his left hand. As a result he suffered a large posterolateral and intraforaminal C6/7 disc extrusion severely compromising the left C7 nerve root for which he underwent an anterior cervical discectomy and fusion operation on 6 January 2012.
2 Assessment by Dr Thompson, consultant occupational physician, for the purposes of Pt 4 div 2 subdivision 3 Workers' Compensation and Injury Management Act 1981 using the WorkCover WA guide to the evaluation of permanent impairment third edition, spine chapter (chapter 6) was that Mr Derrick had 26% whole person impairment. This translates under sch 2 of the Act to 65% of item 77 (impairment of the neck). A second assessment by Dr Beinart was 29% whole person impairment. There is no dispute that Mr Derrick's injury was over 25% whole person impairment.
3 It is accepted that the issues for determination are liability for the injury sustained and the quantum of damages that would be appropriate.
4 The plaintiff claims that the accident was caused by the negligence and/or breach of statutory duty of the defendant, its servants or agents.
5 The particulars of negligence alleged are set out in par 20:
(a) failed to carry out any or proper inspection of the EWP to ensure that the means of access to and egress from it were safe;
(b) failed to provide any or any proper instructions as to the safe method of gaining access to or egress from the EWP;
(c) failed to instruct the plaintiff as to the safe means of egress from the EWP;
(d) failed to provide proper steps or alternative means of egress from the EWP;
(e) exposed the plaintiff to a foreseeable risk of injury.
6 The defendant denies that it was negligent. In par 5 of the defence to amended statement of claim the defendant states that:
5.1 the EWP scissor was not manufactured by the defendant but was manufactured in accordance with Australian Standards and was hired from Coates Hire Pty Ltd;
5.2 the EWP scissor lift was safe;
5.3 there was no reason for the plaintiff to gain access or use the scissor lift as the scissor lift was not used as part of the defendant's operations on the material date;
5.4 if the accident occurred as alleged (which is denied) the plaintiff suffered injury because he did not release his left arm before placing his foot on the ground, not due to any breach of duty of care by the defendant.
7 In the alternative the defendant states that if the plaintiff suffered injury as alleged the plaintiff contributed to those injuries by failing to take precautions for his own safety.
The law
8 The defendant owed the plaintiff a non-delegable duty to take reasonable care for his safety and to provide a safe work environment. However, that duty is not an absolute duty. It is subject to the overarching principle of reasonableness. In Transfield Services (Australia) Pty Ltd v Wieland [2014] WASCA 41, a case relating to the respondent falling down four steps at work, Pullin JA said [18]:
There is no doubt that the employer has a duty to take reasonable care for the safety of its employees. The obligation is to take reasonable steps to provide a safe place of work. The duty is that of a reasonably prudent employer and the duty is not to 'safeguard a worker completely from all perils': see MR & RC Smith Pty Ltd t/as Ultra Tune (Osborne Park) v Wyatt [No 2] [2012] WASCA 110 [156]. The response to a foreseeable risk is to be judged by the criterion of reasonableness, and not some more stringent requirement of prevention: Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; (2007) 234 CLR 330 [69].
9 In M R & R C Smith Pty Ltd t/as Ultra Tune (Osborne Park) v Wyatt [No 2] [2012] WASCA 110 a case relating to a respondent slipping on a step which the respondent had used many times before and which had been used regularly on countless occasions every working day for many years without incident, Murphy JA said [155]:
10 The existence of a foreseeable risk of injury does not dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors: Wyong Shire Council v Shirt (1980) HCA 12; (1980) 146 CLR 40, 47 - 48 (per Mason J).
11 The test for foreseeability must not be performed in hindsight. In the Shire of Gingin v Coombe [2009] WASCA 92, a case in which the respondent suffered personal injury while participating in an inherently dangerous recreational activity and sought to recover compensation for those injuries from the public authority in control of the site on the basis that the authority breached a duty to warn him of the dangers involved in that activity, Martin CJ spoke of the hindsight bias [43]:
Much has been written on the subject of what cognitive scientists would call 'hindsight bias' - such as the unavoidable tendency of bringing to account the fact that something has occurred when attempting to retrospectively evaluate the likelihood of it occurring (see, for example, Spigelman CJ above (see p 220 of published version); Fischhoff B, 'Hindsight ≠ Foresight: The Effect of Outcome Knowledge on Judgment under Uncertainty' (1975) 1(3) Journal of Experimental Psychology, Human Perception and Performance 288; Fischhoff B, 'For Those Condemned to Study the Past: Heuristics and Biases in Hindsight', in Kahneman D, Slovic P and Tversky A (eds) Judgment Under Uncertainty: Heuristics and Biases (1982) 335; Guthrie C, Rachlinski J and Wistrich AJ, 'Blinking on the Bench: How Judges Decide Cases' (2007) Vanderbilt University Law School Public Law and Legal Theory Working Paper 07 - 25 101, 123 - 126; Hawkins A and Hastie R, 'Hindsight: Biased Judgments of Past Events after the Outcomes are Known' (1990) 107 Psychological Bulletin 311). The dangers and consequences of hindsight bias have been recognised by the High Court in a number of cases. In Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434, Gleeson CJ observed:
There is an aspect of such a question which may form an important part of the context in which a trial judge considers the issue of causation. In the way in which litigation proceeds, the conduct of the parties is seen through the prism of hindsight. A foreseeable risk has eventuated, and harm has resulted. The particular risk becomes the focus of attention. But at the time of the allegedly tortious conduct, there may have been no reason to single it out from a number of adverse contingencies, or to attach to it the significance it later assumed. Recent judgments in this Court have drawn attention to the danger of a failure, after the event, to take account of the context, before or at the time of the event, in which a contingency was to be evaluated. [16]
(See also Commissioner of Main Roads v Jones [2005] HCA 27; (2005) 79 ALJR 1104 [5])
12 The need to guard against hindsight bias is relevant to the consideration of foreseeably in this case.
13 A breach of reg 3.7 of the Occupational Safety and Health Regulations 1996 is also pleaded by Mr Derrick. Regulation 3.7 provides:
3.7. Access to and egress from workplace, duties of employer etc. as to
A person who, at a workplace, is an employer, the main contractor, a self-employed person or a person having control of access to the workplace must, where practicable, ensure that the means of access to and egress from the workplace —
(a) enable persons to move safely to and from the workplace; and
(b) are at all times kept free of obstructions.
Penalty: the regulation 1.16 penalty.
14 Although I must consider the regulation, the statute does not impose any greater or more stringent duty on the defendant than the duty of an employer to act reasonably. No evidence specifically dealing with this issue was led at trial.
The evidence
15 The plaintiff was the only witness who gave evidence in relation to the incident. Mr Derrick was 30 years old when the injury occurred. He had worked in the building and construction industry since his teen years and had obtained his basic scaffolding ticket and high risk licence in 2005 and his intermediate and high level scaffolding tickets in 2006 through the support of his employer at the time, Phoenix Shutdown Services.
16 He was thereafter qualified to carry out all types of scaffolding. He continued employment with Phoenix Shutdown Services for a number of years and only left that employment to move to Pilbara Access when that business was set up by one of his former managers. Pilbara Access carried out construction and shutdown work and he continued to work as a scaffolder. Given family commitments, Mr Derrick worked briefly in Perth in 2008, however he preferred the more complex construction scaffolding work and returned to the Pilbara where he worked until the end of 2010 when he took up employment with the defendant on Barrow Island.
17 At first the scaffolding work on Barrow Island was relatively basic. It involved the use of aluminium scaffolding that the plaintiff did not enjoy, however he was then offered a position to be part of the roofing crew working as an EWP operator building a construction village. This position started in 2011, about six months prior to his injury.
18 The defendant used two different types of scissor lift EWPs and two types of cherry picker EWPs. Mr Derrick worked on the smaller of the two scissor lift EWPs, because he was carrying out work installing flashings and the smaller EWPs could go between buildings whereas the larger one could not. Each work day commenced with a pre-start meeting and then he and his work partner would prepare for the day. They took it in turns to operate the EWP or to hold the flashing secure.
19 On the day of the injury Mr Derrick attended the pre-start meeting, did some stretches and warm up exercises and then went to a work site that was situated between two buildings. The day before another crew had performed work on flashings and they had used the larger EWP scissor lift, the 260. The 260 had been on site for about two months but was only occasionally brought to Mr Derrick's job. Mr Derrick had not used it before.
20 Some of the tools Mr Derrick needed for the day had been borrowed by the last crew and tools had been left on the deck of the 260 EWP. At a time when his partner had left the area to collect items that they would need for the day, Mr Derrick climbed up onto the deck of the 260 EWP in order to get the tools. Mr Derrick was in the process of coming down from the deck of the 260 EWP when the injury occurred.
21 Immediately prior to the injury his left hand was on the lower of two sets of hand grips and his feet were on the lowest rung of the fixed ladder that he estimated was about 1.7 m in length. The step was about 40 mm across and rounded in shape. Mr Derrick is approximately 166 cm in height. His right hand was on the spring loaded half gate that was above the fixed hand grip. When the gate sprang closed the force pushed him backwards but he kept hold of the grip with his left hand. His feet went to the rocky ground and given his short stature he sustained an injury
22 Exhibits D 1.89 - D 1.99 are photographs that show both the 260 EWP and Mr Derrick's partner who, he estimated, is 6 foot 5 inches tall. Mr Derrick described the ground as being more rocky than that shown in photograph exhibit D 1.97. Photograph exhibit D 1.97 shows an unsealed flat road surface.
23 On reaching the ground Mr Derrick experienced numbness in his arm and a tingling sensation. He waited for his partner to come back to the EWP consistent with onsite safety procedures and he then waited to see if the symptoms would dissipate, however they did not. He was subsequently directed to the site medical officer. Despite a number of medical examinations, Mr Derrick was diagnosed with muscle strain. After a number of referrals and an MRI on 18 July 2011 a disc herniation at the C6 level pressing on the exiting nerve root was identified as causing his left arm pain. Eventually on 6 January 2012 he had surgery. From an anterior approach, the offending disc was removed and the disc space fused across the C6/7 level using a metal cage and screws.
24 No evidence was led about the suitability of the 260 EWP for work on the site nor in relation to its operation. However, exhibit D 1.108, the statement of importation design adherence certificate of assurance dated 10 May 2002 confirmed (as required by reg 4.25 Occupational Safety and Health Regulations 1996):
(a) identified hazards in the design of the plant to which trained persons who properly install or use plant at a workplace may be exposed;
(b) assess the risk of injury or harm to a person resulting from each identified hazard; and
(c) reduce the risk as far as practicable
...
(a) Stability of the unit has been assessed relative to Australian and international standards. Ratings of the unit are marked on the machine, and the instructions on the unit clearly warn the user against misuse.
(b) Structural strength has been catered for during the design stage, and proven with prototype testing. The overall design has been independently verified and proven safe.
(c) Energy sources required for movement of components use fail-safe or control devices to control movement in an emergency.
25 Exhibit D 1.109 is the confirmation of a notified design, Victorian Work Cover Authority dated 26 July 2002 relating to the 260 EWP and exhibit D 1.110 is the design registration in respect of the 260 EWP confirming registration in the Northern Territory of Australia dated 25 June 2007.
26 There is no evidence that the EWP had been altered or was not fit for its purpose. The owner of the EWP, Coates Hire Services, have not been joined as a party in these proceedings and there is no evidence to indicate that they should have been.
27 Mr Derrick was an experienced and competent scaffolder who enjoyed the challenges presented by working in the north of Western Australia on more complex sites. He had experience with the Pilbara terrain, consistent with landing and walking on the relatively rocky surface at Barrow Island, and he had been working with EWP's for about six months. Although he may not have worked on the 260 EWP prior to the date of the injury there is no evidence that he was not competent to do so, nor that the defendants should have trained or supervised him in any additional way prior to him climbing up the fixed ladder.
28 Although Mr Derrick is relatively short of stature, he had successfully manoeuvred his way around scaffolding challenges for over five years.
29 Looking with hindsight it may be that Mr Derrick could have approached the task differently, however there is no suggestion of how this would have occurred. He was a competent climber, he was competent and fully trained in relation to stair and ladder safety. Mr Derrick was on his way down to the ground. He had opened the spring loaded gate in order to fetch the tools when he went up. He was therefore aware that the gate was spring loaded because the injury occurred on his way down.
30 There is no evidence that in the circumstances the defendants did not exercise reasonable care in discharging their duty at common law.
31 I am not satisfied that the defendant breached any statutory obligation to Mr Derrick either. Mr Derrick was trained to go up and down ladders and stairs and to operate an EWP. He was highly skilled at dealing with scaffolding. The usual pre-start meeting had taken place on the day of the injury and Mr Derrick had stretched and warmed up.
32 There is no evidence that the defendant's failed to provide what was, in the circumstances, a safe way of alighting from the EWP given the nature of his job and his training.
33 I dismiss Mr Derrick's claim.
34 Despite dismissing the claim I am required to reach a determination in relation to quantum of damages that would have been appropriate.
Particulars of injury, loss and damage
35 At par 24 to par 33 of the plaintiff's re-amended statement of claim dated 12 April 2016 Mr Derrick pleads:
PARTICULARS OF INJURY LOSS AND DAMAGE
...
PARTICULARS OF PAIN AND SUFFERING
PARTICULARS OF PAST LOSS OF EARNINGS AND SUPERANNUATION
PARTICULARS OF LOSS OF ENJOYMENT OF LIFE
PARTICULARS OF FUTURE LOSS OF EARNING CAPACITY
PARTICULARS OF SPECIAL DAMAGES
PARTICULARS OF GENERAL DAMAGES
Mr Derrick's impairment and disability 27 June 2011 to September 2013
36 Soon after the injury Mr Derrick was examined by a doctor on site who diagnosed muscle strain and prescribed Brufen. The physiotherapist on site was not prepared to manipulate him due to the pain he was experiencing and the physiotherapist suspected that nerve irritation was causing him left arm pain. On further medical review however the doctor again diagnosed muscle strain and stated that Mr Derrick was fit to work. Mr Derrick's supervisor continued to advise him not to work and he was flown to Perth. Once in Perth Dr Lawson-Smith also diagnosed a muscle injury and advised Mr Derrick to rest.
37 Dr Hahn Nguyen prescribed Tramadol for pain control and certified Mr Derrick fit for light duties at the defendant's Bibra Lake office, however Mr Derrick continued to experience intrusive pain that he described as being so severe that he was unable to sleep.
38 Ultimately he went to the emergency department of Peel Health Campus and following an MRI undertaken on 18 July 2011 a disc herniation at the C6 level pressing on the exiting nerve root was identified as the cause of the left arm pain. Mr Derrick received a nerve root sleeve injection, however that seemed to aggravate his level of pain. He was subsequently referred to spinal neurosurgeon, Professor Gabriel Lee, who recommended immediate decompressive surgery. A second opinion was obtained from spinal neurosurgeon, Mr George Wong, who confirmed Professor Lee's diagnosis and supported the surgery. Professor Lee undertook the surgery on 6 January 2012. Mr Derrick spent three days in hospital and was discharged home to the care of his then partner. He attended four post-operative neck rehabilitation programmes and other treatment involving massage, stretches and exercises.
39 In the evaluation of the degree of permanent impairment AMS5 and certificate of degree of permanent impairment AMS6 dated 26 April 2012, exhibit B11 and exhibit B12 Dr Beinart assessed that his neck symptoms had continued to improve, particularly with respect to his neck range of movement and level of pain but that he reported persistent pain extending from the left side of his neck around his shoulder blade and in the outer aspect of his left upper arm, the outer aspect of his left forearm and his left hand. Mr Derrick reported persistent numbness and tingling to the tips of his left index and middle fingers and described the pain in his left arm as sharp and shooting. He said his left arm was still weakened. Mr Derrick advised Dr Beinart that he was restricting himself to occasional use of Oxycontin for pain control on average twice a week at that time, however he had been advised to stop using Oxycontin by Mr Wong in 2012. Mr Derrick continued to attend his general practitioner, Dr Hermann Meyer, on a monthly basis and physiotherapy three times a week while he was in receipt of worker's compensation payments.
40 On 31 October 2012 Professor Lee advised that recent imaging of the cervical spine was satisfactory but that Mr Derrick could expect pain in his neck for 12 months.
41 Dr Beinart said:
Mr Derrick is not capable and would be well advised not to return to his pre-disability occupation as that of a scaffolder. He requires vocational assessment, re-education and re-direction.
42 The evaluation of the degree of permanent impairment AMS5 and certificate of degree of permanent impairment AMS6 dated 9 January 2013, (exhibit D 1.17 and exhibit D 1.28) of Dr Thompson reached a similar conclusion to that of Dr Beinart.
43 In order to reach this conclusion Dr Thompson reviewed Professor Lee's reports and noted that Professor Lee had reviewed Mr Derrick on 31 October 2012, eight months following the operation. Mr Derrick had told Professor Lee that the arm pain was considerably improved when compared to his pre-operative situation. Professor Lee noted that Mr Derrick's arm function had also clearly improved and that cervical spine X-rays showed that there was fusion across the C6/7 disc space and the instrumentation remained in a good position.
44 Mr Derrick reportedly expressed frustration with regard to his work rehabilitation.
45 On 3 December 2012 Dr Thompson noted that Mr Derrick was marginally tender over the mid-cervical spine and also on the medial to the left scapular. He demonstrated a good range of motion of the neck and of the shoulder a full range of motion of the arm, forearm, wrist and hand with power being 5/5. He reported a sensation to his index and middle fingers.
46 Under the heading 'Diagnosis and impairment' Dr Thompson stated:
In my opinion, his condition does appear to have stabilised and I am of the opinion that he has effectively reached Maximum Medical Improvement.
47 In evidence-in-chief Mr Derrick was inconsistent about when he stopped taking painkillers stating it was one year ago, but also stating that it was about two years ago and not disputing that he had told Dr Thompson that it was in about 2013 (being over three years ago). The 2013 date is consistent with the records of the general practitioner Dr Hermann Meyer. Given this consistency I accept the 2013 date as accurate.
48 Consistent with the evaluation of the degree of permanent impairment of Dr Beinart and Dr Thompson I accept that Mr Derrick's injury was a significant one for which the calculation of a permanent impairment of between 26% and 29% whole person impairment attributable to cervical spine injury was appropriate.
49 The defendant does not dispute that Mr Derrick suffered this injury and that he experienced pain and a high level of frustration due to the late diagnosis of his condition.
50 The defendant does not accept that he continued to experience the level of disability pleaded after 2013.
Employment and physical capacity
51 Mr Derrick's injury was not correctly diagnosed for nearly six months. Following recovery from surgery Mr Derrick attended Star Injury Management under the direction of Ms Richelle Baker and was referred to vocational psychologist, Mr John Alessandrini. He underwent vocational assessment that established there were no suitable sedentary roles in scaffolding. He understood he was deemed suitable to be retrained in the role of a maintenance planner, a position his father held and with which he was familiar, and he believed he could return to the construction injury and earn an income in this role. However, the defendant's insurer rejected the application to fund the maintenance planning training. Mr Derrick was then provided with an option of employment as a real estate manager. He was advised that the role would mainly involve telephone reception work and dealing with customers. Mr Derrick asserted that he was very bad at dealing with people and that he did not consider the role would be suitable for him personally nor would it provide sufficient income for his family. He refused to elect to go to the placement.
52 Mr Derrick then attended Disability Employment Services weekly. From the date of the accident until 12 March 2013 Mr Derrick received weekly worker's compensation payments of $2,156 gross. Once the payments were exhausted he applied through a private insurance policy for income protection that was paid from 27 May 2013 at a rate of $6,308 per month gross. The payment increased to $7,159 per month gross from 1 September 2014.
53 Mr Derrick's application to the insurance company to be declared totally and permanently disabled was rejected.
54 Mr Derrick commenced receiving Centrelink Newstart payments from 24 June 2015.
55 In about November 2013 Mr Derrick's brother, Patrick James Derrick, who was a supervisor at Celebration Homes offered him a job performing pre-handover maintenance. Mr Derrick asserted that he was not paid for this position and that he undertook it in order to see what it was like. He said that his brother had lent him money and he was in his debt. Mr Derrick worked with one of three supervisors being his brother, Mr Carrle or Mr McIntyre. He then had a trial period with Goodlife/Gemmill Homes to see if he could work for that company given the high demand for workers in the construction industry, however he said that a small timeframe was allocated for completion of pre-handover maintenance jobs on site and he could not work long enough hours to meet the timeframe because he was only able to work a maximum of three days in a row given the pain he experienced. He said it was for this reason he was not offered paid employment by any of the building companies performing pre-handover maintenance.
56 Mr Derrick does not dispute that he had told Dr Mander, psychiatrist, (consistent with Dr Mander's report dated 24 July 2016), that the work trial continued until April 2014 and that he used Oxycontin during that time to manage his pain. Mr Derrick did not advise Dr Mander of any other work capacity but he reportedly said that he could do virtually anything, it was just a matter of tolerating the pain.
57 Dr Mander queried this comment and rejected Mr Derrick's self-report as lies because Mr Derrick had worked only seven or eight weeks before the interview yet he positively stated he had not worked. The lies impacted on the diagnosis Dr Mander would otherwise have reached based on Mr Derrick's self-reported actions. I accept Dr Mander's conclusions.
58 In March 2013 Mr Derrick told Dr Thompson that he had been off work continuously. He did not refer to performing any work (paid or otherwise).
59 As a result of the information provided Dr Thompson assessed that Mr Derrick would be best returning to work initially on a part-time basis and recommended that he initially work for four hours per day, five days per week and that the time be progressively built up over a period of six to eight weeks to full-time. Dr Thompson recommended that Mr Derrick not engage in scaffolding or heavy manual duties and recommended that he not lift heavy items being items more than 15 kg in weight. He recommended avoiding working over shoulder height and avoiding work that required Mr Derrick to repeatedly look up and down. Dr Thompson said that Mr Derrick could not return to a site such as Barrow Island while taking Oxycontin or any other medication. Dr Thompson's opinion was that Mr Derrick would be better suited to a job of sedentary or administrative duties such as using computers or telephones or attending meetings.
60 In his report dated 12 December 2013 Dr Thompson noted that Mr Derrick continued to have difficulties in undertaking household tasks. Dr Thompson did not refer to Mr Derrick performing any work in the period between March and December 2013. The fact that Dr Thompson believed Mr Derrick was not able to work was consistent with his recommendation that part-time work of a sedentary or desk based nature avoiding heavy manual labour remained appropriate. However, Dr Thompson's recommendation would have been that Mr Derrick could return to work involving heavy manual labour had he been aware of the work that Mr Derrick performed prior to 12 December 2013.
Mr Derrick's impairment and disability September 2013 to February 2017
61 Contrary to the information provided to both Dr Mander and Dr Thompson in 2013 and consistent with DVD recordings, Mr Derrick had performed work on building sites. He had also undertaken private work for payment. The following evidence of surveillance DVD recordings is unchallenged.
25 September 2013 – DVD of Mr Derrick working at 94 Bundaburra Avenue for Aussie Living in Landsdale (exhibit D 2.1)
62 The DVD shows Mr Derrick is capable of using either arm to carry out physical tasks. He does not stretch, manipulate his neck or arms nor grimace in any way during a 28 minute period during which he performs physical work. Mr Derrick is shown kneeling and using both arms to lift paving blocks. He uses his left hand to reach for items and he carries items using his left hand. He is required to be flexible when getting out of a car because of limited space in a garage and he bends and flexes his body.
63 Footage from October 2013 shows he has a normal gait and he uses both hands equally. His movements include bending to the floor and raising his hands to a shelf above head height. Mr Derrick does not stretch, touch or manipulate his limbs or back nor does he favour a particular arm. He does not grimace nor display any signs of pain.
18 December 2013 – DVD of Mr Derrick working at Celebration Homes (exhibit D 2.2)
64 Mr Derrick performs handover maintenance work. He lifts items with both hands at one point, holding a manhole cover in his left hand and painting it with his right and he stands from a squat position after painting for about 20 minutes. He carries large items with his right hand while opening the hatchback of a car with his left.
19 February 2013 – DVD of Mr Derrick working at Celebration Homes Wellard (exhibit D 2.3)
65 Mr Derrick cleans up a building site. He carries a large bin that appears to be approximately 75 cm in height and picks up numerous items. His gait is balanced and he uses both arms. He empties the rubbish bin onto a refuse pile. Some of the items emptied or placed on the pile are substantial. He carries two long planks weighing between 5 kg to 10 kg each on his right shoulder. He carries out this work for 30 minutes non-stop. After a short break he continues working by raising his hands above head height while standing on a raised platform in order to perform gapping of cornices. Eight minutes later he breaks and smokes a cigarette. He does not rub his neck, shoulder or arms nor does he stretch or grimace during the break. He displays equal strength in both arms and has no apparent difficulty working over the next one and half hours during which he performs various duties on site.
66 The period when he had his arms above his head is 1 ½ hours before he finishes performing general duties. He does not demonstrate any signs of pain or weakness.
67 The second portion of surveillance from 19 March 2014 shows Mr Derrick with unrestricted movement getting in and out of a car and resting a ladder onto his right shoulder by holding it with his right arm in a bent position.
68 In cross-examination he said that he was probably doing gutters on 19 March 2014 at this site because the house was not at lock up stage.
69 I find that gutter work would require his hands to be raised slightly higher than his head or level with his head.
9 April 2014 – 11 April 2014 DVD of Mr Derrick working at Celebration Homes (numerous locations)
70 Mr Derrick carries items with both hands, holds items while standing and performs work with both hands above head height on occasion.
13 April 2016 – DVD of Mr Derrick working as a bricklayer's labourer on a building site
71 Mr Derrick works for about 2 ½ hours without favouring either side of his body, stretching his back or arms or manipulating these areas. He does not grimace. His demeanour is not consistent with being in pain. He repeatedly shovels sand into a concrete mixer in order to make mortar. He takes the mortar from the mixer and wheels a heavy barrow around the site over unsealed ground. He carries a 15 kg bag of concrete on his right shoulder. He proceeds with other tasks after carrying the bag and he does not stretch, manipulate his muscles or grimace. He manually pushes and lifts the concrete mixer onto the back of the utility without grimacing.
72 Further surveillance from 2016 that was not viewed was accepted by Mr Derrick as showing him working to 2.00 pm on one day, for approximately 3 hours on 13 April 2016, being on a site that was rained out on 14 April 2016 and working for approximately 2 hours on 15 April 2016.
Other work performed by Mr Derrick from June 2014 to 1 February 2016
73 Mr Derrick's ANZ and Commonwealth Bank account statements are consistent with the proposition that he worked for his brother at a rate of about $150 per day. I accept on some occasions he worked without payment because he owed his brother money. The records show:
|
02.06.14
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Cth - $6,308 – Income Protection
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|
01.07.14
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Cth - $6,308 – Income Protection
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25.07.14
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Cth - $6,308 – Income Protection
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01.09.14
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Cth - $7,159 – Income Protection
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22.09.14
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Cth - $1,500 – Arvind Kondisett – 'Leech Drain'
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22.09.14
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Cth - $1,500 – Venkat Tadepalli – 'Soak Well Pipe'
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03.10.14
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Cth - $1,300 – Arvind Kondisett – 'Painting'
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07.10.14
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Cth - $7,159 – Income Protection
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24.12.14
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ANZ - $1,500.00 – B N Fowler 'Soak Wells'
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24.12.14
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ANZ - $1,150 – Gemmill Homes
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03.02.15
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ANZ - $1,400 - ?
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25.02.15
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ANZ - $200 – Gemmill Homes
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26.02.15
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ANZ - $780 – Gemmill Homes
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06.03.15
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ANZ - $750 – Gemmill Homes
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18.03.15
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ANZ - $250 – Gemmill Homes
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26.03.15
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ANZ - $660 – New Choice Homes
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08.04.15
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ANZ - $1,250 – Gemmill Homes
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21.04.15
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ANZ - $250 – James Posilerd – Soak well
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24.05.15
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ANZ - $400 – Alexander Genhoe – Lot 450
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07.05.15
|
ANZ - $1,320 – New Choice Homes
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20.05.15
|
ANZ - $740 – Gemmill Homes
|
|
24.06.15
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ANZ (2) - $374 – Centrelink New Start
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30.09.15
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ANZ – A/C Closed
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30.06.15
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ANZ (2) $476.70 – Centrelink
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14.07.15
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ANZ (2) $476.70 Centrelink
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20.07.15
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ANZ (2) - $1,350 – P Derrick 'Mike Labour'
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28.07.15
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ANZ (2) - $476 – Centrelink
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30.08.15
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ANZ (2) - $1,600 – P. Derrick
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12.08.15
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ANZ (2) - $467 – Centrelink
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14.08.15
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ANZ (2) - $28.44 – Centrelink
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17.08.15
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ANZ (2) - $1,550 – P. Derrick
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26.08.15
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ANZ (2) - $479.80 – Centrelink
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31.08.15
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ANZ (2) - $650 – P. Derrick
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09.09.15
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ANZ (2) - $416.77 – Centrelink
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14.09.15
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ANZ (2) - $1,650 – P Derrick
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28.09.15
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ANZ (2) - $2,200 – P Derrick
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15.10.15
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ANZ (2) $800 – P. Derrick
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20.10.15
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ANZ (2) - $863 – Centrelink
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26.10.15
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ANZ (2) - $1,700 – P. Derrick
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|
05.11.15
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ANZ (2) - $77.75 – Centrelink
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|
09.11.15
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ANZ (2) - $1,700 – P. Derrick
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20.11.15
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ANZ (2) $800 – P. Derrick
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23.11.15
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ANZ (2) - $1,150.00 – P. Derrick
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23.11.15
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ANZ - $79.63 – Centrelink
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|
01.12.15
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ANZ - $109.63 – Centrelink
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04.12.15
|
ANZ (2) $800 – P. Derrick
|
|
07.12.15
|
ANZ (2) $700 – P. Derrick
|
|
21.12.15
|
ANZ (2) $800 – P. Derrick
|
|
21.12.15
|
ANZ (2) $900 – P. Derrick
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|
08.01.16
|
ANZ (2) $800 – P. Derrick
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|
11.01.16
|
ANZ (2) $850 – P. Derrick
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|
18.01.16
|
ANZ (2) $650 – P. Derrick
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|
01.02.16
|
ANZ (2) $500 – P. Derrick
|
74 Mr Derrick said that bank entries for a named person related to work he carried out with his brother and Mr Carrle for which he received one third of the sum deposited into his account. However Mr Carrle only recalled one of the six jobs that are listed by name.
75 Both Mr Carrle and Mr Patrick Derrick gave evidence that Mr Derrick stood around on site and was not paid to work nor could he complete work that was required. Although I accept parts of Mr Patrick Derrick's evidence including that Mr Derrick is not as fit as he was prior to the injury, I do not accept that Mr Derrick stood around on site in light of the surveillance DVDs. Mr Carrle said that he saw Mr Derrick on site on about two occasions and that he touched his back and stretched and sat down. I do not accept this evidence in light of the contents of the surveillance DVDs that do not show Mr Derrick ever sitting, touching his back or stretching. Mr Patrick Derrick also said that he had seen his brother a few times squatting down and rubbing the back of his neck and shoulders. This evidence is also inconsistent with the surveillance DVDs and I reject it.
76 Dr Thompson viewed the surveillance footage from 18 and 19 December 2013. In his report dated 25 March 2014 (exhibit D 1.47) he said at page 6:
Considering the surveillance footage, he appears to have the capacity to return to his pre-injury duties, as intend he was apparently able to work on a building site as a labourer without apparent difficulty. He appeared to be able to repetitively look up and down, and also appeared to have the capacity to lift heavier than 15 kilograms and to work over head (not merely over shoulder height). He appeared to be able to undertake heavy manual labour, and with the apparent ease with which he undertook these activities, I am of the opinion that he could likely conduct these full time.
77 Dr Thompson subsequently viewed surveillance DVD footage from 8 to 15 April 2016 (exhibit D 1.79). In his report dated 29 July 2016 at page 6 his opinion was:
However, the conclusions I had reached about his capacity have now been thrown into doubt by the very recent DVD surveillance which appears to show the contrary – demonstrating him undertaking a range of heavy activities without any difficulty. I had previously considered that he would be able to undertake lighter or preferably sedentary roles but I am now of the opinion that he would be able to undertake heavy roles: there do not appear to be any formal restrictions required.
78 Mr Derrick said that he had a high threshold for pain and Mr Patrick Derrick said that given their joint training in martial arts he was capable of not showing pain. Even if Mr Derrick has a high threshold to pain, I do not accept that he would be unable to show pain or would not favour a particular arm. I accept Dr Thompson's assessment of Mr Derrick's physical capacity.
79 Mr Derrick also pleads that he has experienced severe depression as a result of the injury he sustained at Barrow Island. No one can dispute that Mr Derrick has reason to be depressed about his life circumstances. He was injured at a time when he was working in a well-paid job that he enjoyed, his injury was repeatedly misdiagnosed, he has had financial and personal restrictions since that time and his wife and children have left the family home. His financial position has been dire and his home is in the process of being repossessed.
80 However, being depressed in a general sense is not the same as suffering from a psychiatric condition of severe depression attributable to an injury.
81 Dr Mander said that in 2013 and 2014 he accepted that Mr Derrick's wife had been concerned enough about his state of depression to talk to his GP and Mr Derrick had seen a psychiatrist. Dr Mander clarified in evidence-in-chief at ts 110:
Depression is a difficult concept in this day and age. Over the 30 years I've been in psychiatry, the whole concept has been broadened so much, that at times it becomes almost meaningless and that's had to occur because the research has shown us, that we are really not good at detecting the difference between so called clinical endogenous depressions, that you might think of as organic and those that are more akin to sadness, unhappiness, everyday reactions. So that's why that has happened. That places any of us in a somewhat difficult position when we are assessing somebody, because we are looking for some kind of evidence to push us in the direction of a diagnosable psychiatric illness. And so we do it in a number of ways. We look at context and we look at impairment. Now there are just a couple of things with regards to Mr Derrick. His wife said to his GP in 2013 that he wasn't coping and he wasn't getting out of bed. That – as early as that, raises issues about what his mental state was like. If he was able to do work trials. He was able to work at Celebration Homes and, according to him, doing well enough to increase the work that he was doing. So that counters straight away the degree to which he was impaired. He was seen by a psychiatrist Dr Kanner in late 2014 and that report is fairly short, but he does raise some symptoms that are consistent with, for want of a better word, a clinical level of depression and yet this man is running his own court case here. That is no small matter, as anybody in the court will know. It requires attention to detail, organisation, concentration, energy, motivation, all of the things that are absent with a significant level of depression. So with this extra piece of information from the DVDs, I looked at the whole thing and thought 'Do you know what? There is really precious little evidence to support the presence of a significant level of depression in any way'. I said in my original report, I thought he was work fit based on some of those things. But this extra – extra information really led me to reducing further my thoughts, in terms of the severity of the depression he was presenting himself with.
82 Accordingly Dr Mander was of the view that Mr Derrick was not suffering from a psychiatric condition of severe depression.
83 I accept Dr Mander's diagnosis that Mr Derrick was not suffering from severe depression.
Duty to mitigate loss
84 Every plaintiff has a duty to mitigate damages. In Kittelty v Davies [2011] WADC 1 [250] Derrick DCJ concisely summarised the principles of mitigation of loss. I adopt that summary as accurate and applicable to this case:
The principles relating to mitigation of loss are well established. The burden of proving that a plaintiff has failed to take all reasonable steps to mitigate his or her loss lies upon the defendant: Watts v Rake, 159; Plenty v Argus [1975] WAR 155, 157; Wakim v McNally [2002] FCAFC 208; (2002) 121 FCR 162, 182. Failure to take all reasonable steps to mitigate any loss bars the plaintiff from being compensated for that loss: British Westinghouse Electric & Manufacturing Company Ltd v Underground Electric Railways Company of London Ltd [1912] AC 673, 688 – 689; Ardlethan Options Ltd v Easdown [1915] HCA 53; (1915) 20 CLR 285, 296; Tuncel v Renown Plate Co Pty Ltd [1976] VicRp 50; [1976] VR 501, 503 – 504. In considering the reasonableness of the plaintiff's conduct the test is objective, but depends upon the personal characteristics of the plaintiff including his or her state of knowledge at the time: Fazlic v Milingimbi Community Inc [1982] HCA 3; (1982) 150 CLR 345, 349-352; Fontaine v Quality Platers (1994) 12 WAR 71, 78-79; Kalavrouziotis v Howel & Kalavrouziotis (unreported, WASC, Library No 980219, 1 May 1998), 3 per Kennedy J, 8 per Wheeler J.
85 The question is whether a reasonable person in the circumstances as they existed for the plaintiff would have refused to seek work or take up work. Allowance for matters personal to the plaintiff must be made when making the assessment: Fazlic v Milingimbi Community Inc [1982] HCA 3; [1982] 150 CLR 345.
86 The plaintiff is not required to do something he cannot afford, however he may be required to incur expense to mitigate his damage: Matters v Baker & Forsett [1951] SASR 91; Hoad v Scone Motors [1977] 1 NSWLR 88 [100].
87 Consistent with the surveillance footage that commenced in late 2013 Mr Derrick was physically capable of working on a construction site and as a bricklayer's labourer. He did not rely on medication after 2013. He said that he self-medicated with alcohol, however the surveillance DVDs show a stable, competent and sober man carrying out work tasks on various dates, some consecutive, during a period of three years from 2013 to 2016.
88 I do not accept that Mr Derrick was not able to work because he was so affected by alcohol that he could not work. He was able to work for his brother for cash payment and he was able to work as shown in the surveillance DVD footage.
89 In 2012 Mr Derrick considered re-training as a maintenance planner. When the defendant's insurer refused to fund the training he did not consider any other form of employment. In his report dated 19 March 2013 (exhibit D 1.30) Dr Thompson's opinion was that Mr Derrick was suited to a job with sedentary or administrative duties such as computers, telephones or attending meetings. After viewing surveillance DVD footage from 2013 to 2014 Dr Thompson's opinion was that Mr Derrick was fit to return to pre-injury employment.
90 In cross-examination Mr Derrick was asked about his suitability to be a driver, a haul pack driver or perform maintenance. He denied that he was physically able to carry out any of these options day after day in a timely fashion. He agreed that he had not signed up for training in maintenance planning because the defendant had not paid for it but he denied having sufficient funds from income protection payments to meet the cost of attending the programme.
91 Mr Patrick Derrick said that Mr Derrick was not fit enough to work as a bricklayer's labourer for 8 – 10 hours per day. Although Mr Patrick Derrick denied paying his brother $150 initially, he reluctantly agreed to the proposition that he had paid his brother when his attention was drawn to bank statements. I find that Mr Patrick Derrick paid his brother $150 per day.
92 Given the quantity and quality of the work performed by Mr Derrick as shown on the surveillance DVD footage and for which payment was made consistent with his bank statements, I am satisfied that the defendant has proven that Mr Derrick failed to mitigate his loss after late 2013.
93 For the reasons I have outlined I am satisfied that Mr Derrick suffered injury to the cervical spine and injury to his left arm. I reject that he suffers from severe depression and I reject that financial ruin is attributable to the injury he sustained.
94 Mr Derrick required treatment and medical assistance. He experienced pain, discomfort and inconvenience until the end of 2013. For the reasons I have outlined I do not accept that he requires future treatment or medical assistance.
95 I find that Mr Derrick experienced pain and suffering following the injury and post-surgery for a period of at least one year but I reject that he has experienced severe mental distress. Further, the evidence does not support that he experienced increased pain and discomfort when carrying out activities or household duties.
96 Mr Derrick pleads particulars of past loss of earnings of $370,000 and loss of superannuation of $35,000. Mr Derrick's taxation returns (exhibit D 12 - D 16) show that his gross earnings were as follows:
(a) 30 June 2009 $119,268;
(b) 30 June 2010 $84,270;
(c) 30 June 2011 $154,102;
(d) 30 June 2012 $112,230; and
(e) 30 June 2013 $87,509.
97 Following the injury Mr Derrick received worker's compensation payments until 1 September 2014. Given my findings that he experienced pain, discomfort and inconvenience until the end of 2013, I am not satisfied that he has proven a loss of earnings or of superannuation in this case.
98 I dismiss the plaintiff's claim.
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