RAE v HILLS INDUSTRIES - B & S GARAGE v HILL INDUSTRIES [2007] NSWDC 1

New South Wales District Court

CITATION: RAE v HILLS INDUSTRIES - B & S GARAGE v HILL INDUSTRIES [2007] NSWDC 1

HEARING DATE(S): 3-6 April 2006, 14-15 August 2006, 26 October 2006

JUDGMENT DATE: 2 February 2007

JURISDICTION: Civil

JUDGMENT OF: Sidis DCJ

DECISION: 1. Verdict for the defendant, Hills Industries Pty Limited, in each action; 2. The plaintiff, Mr Rae, in proceedings 141 of 2005 is to pay the defendant's costs of the proceedings; 3. The plaintiff, B & S Garage Door Operators Pty Limited, in proceedings 298 of 2005 is to pay the defendant's costs of the proceedings; 4. The exhibits will be held for 28 days or until further order noting that in proceedings 141/05 Exhibit D has been returned to the plaintiff and Exhibit 10A and 10B have been returned to the defendant.; 5. Reasons are published.

CATCHWORDS: Fall from Ladder - Claim of inherent weakness - Whether ladder of merchantable quality.

LEGISLATION CITED: Trade Practices Act - ss 4B & 74D(1)

CASES CITED: Barnett v H & J Packer & Co Ltd [1940] 3 All ER 575, Evans v Triplex Safety Glass Co Ltd [1936] 1 All ER 283, Fletcher v Toppers Drinks Pty Ltd (1981) 2 NSWLR 911, Goldman v Franklins Stores Pty Ltd (1980) ASC 55-071, Grant v Australian Knitting Mills Ltd & Ors [1936] AC 85, Greenwood v Sefton Holdings Pty Ltd Unreported NSWSC Wood J 6 July 1990, Macerola v GIO NSW (1990) 11 MVR 575, Martin v Thorn Lighting Industries Pty Ltd [1978] WAR 10, Phillips v EW Lunberg & Son (1968) 88 WN (Pt 1) 166, Shandloff v City Dairy et al (1936) 4 DLR 712, Zeppa v Coca-Cola Ltd (1955) 5 DLR 187.

Geoffrey Rae PARTIES: Hills Industries Limited B & S Garage Door Operators Pty Ltd Hills Industries Pty Ltd

FILE NUMBER(S): Newcastle 141/05 ; Newcastle 298/05

Plaintiff Rae M B Williams SC - P J Kirby COUNSEL: Plaintiff B & S Garage Door Operators Pty Ltd M J Jenkins Defendant - P R Garling SC - P W Cummings

Plaintiff Rae - Palmieri Law Firm SOLICITORS: Plaintiff B & S Garage Door Operators Pty Ltd - Greylings Attorneys Defendant - Sparke Helmore

JUDGMENT

1 Mr Geoffrey Rae was injured when he fell from a ladder manufactured by Hills Industries Pty Limited. He claims that the ladder was defective. At the time of his fall he was using the ladder in the course of his employment with B & S Garage Door Operators Pty Limited.

2 Mr Rae brings proceedings against Hills Industries claiming compensation for the injuries suffered.

3 B & S brings proceedings against Hills Industries to recover workers compensation paid to Mr Rae.

4 The proceedings were heard together on 3–6 April 2006, 14-15 August 2006 and 26 October 2006 on the basis that evidence in one set of proceedings was to be dealt with as evidence in the other.

Issues

5 The issues to be determined are:

(1) the circumstances of Mr Rae's fall; (2) whether the fall was a result of a defect in the ladder in any of the respects set out extensively in the statement of claim; (3) whether there was negligence on the part of Hills Industries; (4) whether there was contributory negligence on the part of Mr Rae; (5) whether the provisions of the Trade Practices Act 1974 apply to the determination of the fitness of the ladder for its purpose; (6) the extent of Mr Rae's injuries; (7) the compensation, if any, to be awarded.

Issue 1 - the circumstances of the fall

6 Evidence concerning circumstances in which the fall occurred was given by Mr Rae and a co-employee, Mr Peter Thomas, as follows.

7 The accident occurred on 6 September 2002. At this date, the plaintiff had been employed by B & S for about three years. B & S was in the business of supplying and installing roller doors. Mr Rae's primary responsibilities were the installation and servicing of the motors that operate roller doors but he was sometimes required to assist other employees in installing the doors themselves. On this occasion he was helping Mr Thomas to install a door at the premises of Mr Barry Beck at 33 Danalene Parade, Corlette.

8 Their work required that they lift a roller door onto existing L-shaped brackets that were fixed at each side of the garage door opening. The roller door had a drop of 2400 mm and weighed between 59 and 61 kgs. The left hand side of the door was heavier than the right because the motor was attached on that side. The weight of the motor was estimated at 8 kgs.

9 Mr Rae worked on the left hand side of the garage door opening. The area in which he was required to work was limited. The left hand front wall of the garage was approximately 30 centimetres wide and the bracket on which the axle of the roller door was to rest was positioned close to the side wall. As a result it was necessary to cut back the axle that protruded from the rolled up door from its standard length of 20 to 30 cms to a length of 10 to 12.5 cms.

10 Mr Rae and Mr Thomas worked from inside the garage, the floor of which consisted of level concrete. Mr Rae used a ladder1 which he had purchased on behalf of B & S on 26 July 2002.

11 The ladder involved was described as a Gemini 3 stepladder. Its rated load was 120 kg, industrial. It was double sided, with two steps or treads and a top cap. The ladder was constructed of aluminium with steel gusset plates. The ladder was manufactured by Hills Industries.

12 Mr Rae placed the ladder fully open and parallel with the front wall of the garage so that the steps were immediately in front of him. The ladder was placed one or two feet from the side wall to Mr Rae's left. Mr Thomas placed his ladder in a similar position on the right hand side.

13 They adopted their usual practice of lifting the roller door. This was said to involve cradling the door in their arms to lift it from the floor. The hand position was then moved so that the right hand was placed under the door and the left at the edge of the roll. This allowed them to guide the edge of the roll and the axle onto the bracket since they were unable to see the brackets once the door had been lifted into position.

14 Their practice also required that they communicate during the lifting process to ensure that they completed the task in unison and avoided shifting the weight of the door if it tilted. Mr Rae denied that the additional weight of the motor on the left hand side of the door magnified the unbalancing effect of the weight shift if the door were tilted in his direction.

15 Mr Rae had both feet on the second step of the ladder and was about to place the axle of the door on the bracket. At this time he was lifting the door above his head with his right arm extended directly above his right shoulder. His left hand was positioned at the edge of the roll and close to the bracket.

16 He felt the ladder move to his right. He attempted to adjust his balance by moving to the left but the ladder collapsed. Prior to this movement of the ladder he had not felt any unusual movement or weight shift.

17 Mr Rae denied that that it was inevitable that he would be required to lean to the left in order to place the axle of the door on the bracket. He denied that he had in fact leaned to the left so as to produce forces which moved the ladder to the right.

18 Mr Rae fell to his left, scraping his body against the side wall as he fell to the ground. He fell flat on his back to the ground and the door fell to the centre of his chest as he landed. His position on landing was parallel to the side wall of the garage, his head pointing to the inside and his feet to the outside. His head and shoulders were in contact with the wall.

19 After Mr Rae fell the roller door was in a position about 2 feet away from the ladder. The ladder had fallen away from him so that it was lying to his right hand side.

20 Mr Rae was assisted to his feet by Mr Thomas. He then noticed that, on the side of the ladder that was on the ground, one foot of one stile had buckled inwards and was in the condition of that of the ladder which was Exhibit D.

21 There was some inconsistency between the evidence of Mr Rae and Mr Thomas. Mr Rae said that Mr Thomas stepped down from his ladder and then put down his end of the roller door. The evidence of Mr Thomas was that Mr Rae fell as they were in the process of ascending their respective ladders. He noticed that the door suddenly fell to the ground in what he described as a massive weight shift. He said he dropped his end of the roller door and jumped to the ground.

22 Mr Thomas otherwise confirmed Mr Rae's evidence. He said that he lifted the door, which was across Mr Rae's legs and chest pinning him against the wall, so that Mr Rae was able to crawl out from beneath it. He then helped Mr Rae to his feet.

Issue 2 – Was the ladder defective? – the lay evidence

23 Mr Rae said he inspected the ladder prior to its purchase in July 2002 and it appeared to be in good order and sturdy. He had used the ladder a number of times before 6 September 2002 and inspected it prior to each use. On each such occasion it appeared to be in good order and sturdy. He denied that the ladder had suffered any damage prior to 6 September 2002.

24 Mr Rae denied having heard any creaking or sound of breaking metal before his fall. He said he felt a sensation of the ladder collapsing.

25 Mr Beck went to his garage on hearing what he said was a commotion. He said Mr Rae told him that the bloody ladder collapsed2.

26 The roller door was delivered to the site rolled and shrink-wrapped in plastic. Hills Industries pursued the question of whether the door had been damaged by contact with Mr Rae or the ladder as it fell.

27 Mr Rae denied hearing or seeing anything strike the ladder. He denied that any part of his body came into contact with the ladder as he fell. He denied that it was possible that the door struck the ladder, stating that in such circumstances it would have too badly damaged to hang. He did not see any contact between the door and ladder as it was being removed from its position across his body.

28 There was evidence of minor damage to the roller door. Mr Beck noticed the damage only after the door had been put in place. He said it took some time to find and described the damage as a slight indentation 2.1/2 inches in area located at the edge of the door on the side at which Mr Rae had been working. B&S offered Mr Beck a new door but he accepted a price reduction because he did not think that the slight damage to the door warranted its replacement.

29 Mr Thomas examined the ladder after it fell. He noted the foot of the stile bent inwards and said it appeared to him that a pop rivet was loose or missing. The affected rivet was at the top of the gusset where it ordinarily adjoined the tread. Mr Thomas agreed that the ladder in evidence was in the same condition as when he inspected it on 6 September 2002. He agreed that the identified rivet was in fact present but that it had been pulled out of its position. He agreed that it appeared that the rivet had been pulled through a hole created by the application of force.

Issue 2 – was the ladder defective? – expert evidence

30 Professor Samson, called by Mr Rae, was of the opinion that the ladder was defective. Dr Stark, called by Hills Industries, was of the opinion that it was not. They were directed meet in joint conference. The result was a joint statement3 in which they agreed on a number of important aspects concerning the forces exerted on the ladder immediately prior to Mr Rae's fall.

31 I have proceeded to examine the expert evidence on the following basis: (1) the force which caused the damage to the foot of the stile was from the right to the left;

(2) Mr Rae exerted a lateral force to his left initiating motion to the right of the second tread on which he was standing;

(3) in normal use, the reaction force on the foot of the stile bends the bottom of the stile outwards. 32 Professor Samson and Dr Stark agreed that, in normal circumstances, if sufficient resultant force was applied: (1) the bottom of the stile would bend outwards; and

(2) the ladder would tilt and topple over. 33 Their evidence was that the damage to the foot of the stile of the ladder was caused by: (1) according to Professor Samson – defects in the design and manufacture of the ladder;

(2) according to Dr Stark – impact upon the ladder by Mr Rae or the roller door or both as they fell to the ground. 34 The defects identified by Professor Samson in his reports4 were: (1) Design: (a) weakened tread/stile joints by positioning holes in treads adjacent to the treads; (b) use of only one rivet per gusset to connect the gusset to the tread; and (c) gussets insufficiently reinforced. (2) Manufacture: ineffective loose rivets in the gussets and treads weakening the structure of the ladder. 35 Professor Samson attributed the manufacturing defects to faulty workmanship and inadequate inspection after manufacture.

36 After extensive cross examination Professor Samson agreed that, having regard to the results of the tests undertaken by Dr Stark, his opinions concerning the design of the ladder could not stand.

37 Professor Samson's opinion concerning the manufacturing defects depended upon evidence establishing that loose or missing rivets on the affected gusset failed and caused the ladder to collapse. Mr Thomas identified one rivet on the gusset plate which was loose and out of position. A second rivet was drawn to Professor Samson's attention in the course of cross examination. This rivet had been sheared.

38 Professor Samson's opinion concerning the ineffective rivets was undermined by Dr Stark's test results5 which indicated that, when the gusset plates were removed from one side of the type of ladder used by Mr Rae at the time of his fall, the ladder remained capable of supporting a vertical load of 154 kgs of force with the maximum possible lateral load of 40 kgs of force. The 154 kgs of force was greater than the 120 kgs of force calculated by Professor Samson to have been the load comprising Mr Rae and his portion of the door.

39 Professor Samson accepted these test results but emphasised that they had been carried out on a ladder that had been intact. He continued to maintain that there was an inherent weakness in the tread/stile joint of the ladder the nature of which he was unable to identify. He agreed that in the absence of this inherent weakness …it is overwhelmingly the fact that the ladder would have toppled rather than the leg folded under6.

40 There were a number of difficulties with Professor Samson's opinion, namely: (1) The evidence indicated that the method of lifting the door employed by Mr Thomas and Mr Rae involved some stretching to the left by Mr Rae, although Professor Samson stated that it was possible to stretch with the hand outside the base of the ladder in a safe way.

(2) Professor Samson agreed that the risk of overbalancing when holding a load overhead is increased by 30%.

(3) There was no evidence that Hills Industries had failed to meet applicable standards in the manufacture of the ladder and Professor Samson agreed that a ladder manufacturer, acting reasonably could not be expected to do more than was required to meet applicable standards.

(4) Reports of other incidents 7 involving ladders manufactured by Hills Industries did not match the circumstances of Mr Rae's fall and were therefore of no assistance in determining its cause. 41 Dr Stark has had substantial experience in testing ladders and in preparing standards for their manufacture. He responded to Professor Samson's opinions with calculation, theory and experiments which he claimed established that those opinions were without basis.

42 Dr Stark propounded, after conducting his experiments, that the ladder had toppled over and that Mr Rae struck the ladder with a glancing blow as he fell, exerting as he fell sufficient force to cause the foot of the stile to bend inwards. He relied on a sketch provided by Professor Samson8 as support for these propositions because, he said, it demonstrated that in lifting the door Mr Rae leaned outside the base area of the ladder and applied sufficient lateral force to cause the ladder to topple.

43 Dr Stark's conclusion, which was maintained throughout his four reports, was that the damage to the ladder was the result of the accident and not its cause. He said that it was commonly the result of impact with falling individuals that the foot of the stile bent inwards.

44 There were a number of difficulties with Dr Stark's conclusion: (1) there were no scratch marks or paint on the ladder to indicate impact at high velocity with the roller door;

(2) Mr Rae denied that he rotated as he fell, his evidence being that he fell against the side wall of the garage;

(3) there was minor damage only to the roller door.

(4) Dr Stark had not inquired as to the nature of Mr Rae's injuries and whether they were consistent with impact with the ladder. 45 In my view, the issue of whether the ladder was defective was to be resolved by assessing the evidence of Mr Rae that he had not applied force outside the base area of the ladder and that he had not struck the ladder in the course of his fall.

46 In deciding this, I have placed considerable weight on the evidence concerning the forces available at the time of his fall and those necessary to cause the damage of the type suffered by the ladder.

47 On the issue of whether force was applied outside the base area of the ladder I have noted: (1) It was agreed by both experts that some lateral force outside the base area of the ladder was necessary to cause the ladder to tilt to the right.

(2) Professor Samson and Dr Stark set out the following in their joint statement: 6. Agree that the Plaintiff exerted a lateral force to his left at which time the incident in question started initiating motion to the right of the tread on which he was standing. 8. We agree Dr Samson's scenario for failure is Plaintiff pushes to left causes tread to initially slowly move to the right and that the left foot of the ladder slightly leaves the ground. Mr Rae may or may not compensate by shifting his centre of gravity to the left. Suddenly after a minimum rotation of the ladder the right leg collapses (foot tucks under).

(3) It was necessary for Mr Rae to apply force to his left in order to complete the task that he was required to perform in lifting the roller door onto the axle.

(4) Notwithstanding Mr Rae's evidence that he did not lean outside the base area of the ladder, it follows that the tilting of the ladder was initiated by Mr Rae's exerting lateral force outside the base of the ladder and that this part of the process was not the result of the collapse or tucking under of the foot of the stile.

(5) Mr Rae's stability on the ladder was affected by the requirement to lift a load overhead.

(6) His stability on the ladder was further affected by the weight of the load that he was required to lift. 48 On the issue of whether there was contact between Mr Rae and the ladder as he fell, I have noted: (1) Dr Stark's experiment demonstrated that more than 40 kgs of lateral force was required before a stile without the reinforcement of steel gusset plates would suffer deformation.

(2) Other experiments conducted by Dr Stark indicated that a 140 kgs component of lateral force was required to bend inwards the foot of a stile that had been reinforced with steel gusset plates.

(3) Professor Samson and Dr Stark agreed that it was not possible with normal use that Mr Rae could have applied a 140 kgs component of force to the foot of the stile.

(4) Professor Samson calculated that 330 kgs of force would be required to shear a 4.8 mm pop rivet.

(5) Professor Samson and Dr Stark agreed that velocity will increase the force of a mass when applied to an object.

(6) Professor Samson did not agree that the element of velocity upon the combined weight of Mr Rae and his part of the door, estimated at 110 kgs, would generate a force of 330 kgs sufficient to shear the rivet on the gusset.

(7) Dr Stark had conducted experiments which indicated that a 70 kg load striking a ladder with a glancing blow caused the foot of the stile on the opposite side of the ladder to that impacted to bend inwards. The ladder upon which the experiment was conducted was different to the ladder in this case. Further the stile was not reinforced by a gusset plate.

(8) Dr Stark stated that inward bending of the stile of a ladder commonly occurred when an individual fell from a ladder.

(9) There was damage to the roller door, albeit minor.

(10) Mr Rae did not give detailed evidence concerning his condition immediately after his fall. He stated only that his back was very sore and that his general practitioner referred him for x-rays. Mr Thomas stated that Mr Rae's left elbow was cut and very sore; that he had helped Mr Rae to his feet and that he was generally very sore. Mr Beck said Mr Rae had a lot of injuries. He referred to a lot of abrasions and missing skin on Mr Rae's left hand side.

(11) Mr Rae did not tender evidence from his general practitioner. A report 9 of Dr Fluitt to the workers compensation insurer was tendered by B & S. Dr Fluitt reported that Mr Rae consulted him on 6 September 2002 with injuries that included abrasions to the left hand and elbow, bruising to the left elbow, scapular, chest wall, right foot, left iliac chest and lumbar spine. Dr Tarrant 10 referred to an xray of the right calcaneus dated 13 September 2002. This was not in evidence. 49 In its submissions B & S referred to a number of authorities11 in which courts had been satisfied that a product was defective although the precise nature of the defect could not be identified. In those decisions there was frequent reference to the question of whether in the ordinary course of human affairs an accident of the kind under consideration would have happened.

50 In particular, my attention was drawn to the statement of Moffitt P in Fletcher v Toppers Drinks11 to the effect that it was necessary that a plaintiff eliminate himself as a cause of the incident in question.

51 It was argued that Mr Rae had excluded all possibilities other than that the ladder was defective.

52 FINDINGS (1) In the light of the agreement of the experts that Mr Rae in fact initiated the tilting motion of the ladder and that the task in which he was involved placed him in a position of instability on the second tread of the ladder, I find that Mr Rae has not eliminated himself as a cause of the toppling of the ladder.

(2) In the light of the evidence of the generalised nature of the pain suffered by Mr Rae immediately after the fall and, in particular, the bruising to his right foot, I find it probable that there was some contact between Mr Rae and the ladder as he fell. Mr Rae's fall occurred within a split second and in a confined area of the garage. It was likely in the circumstances that he was unaware of an impact with the ladder in the nature of a glancing blow.

(3) There was little evidence to establish precisely the forces generated by contact between Mr Rae, or Mr Rae and the roller door, and the ladder. However, Dr Stark's experiment and his experience indicated that a falling individual is a common cause of inwards bending at the foot of a stile of a ladder.

(4) In the absence of even the slightest indication of the defect, I reject the inherent weakness theory. Mr Rae used the ladder for approximately six weeks without incident. It appeared to him at all times to be in good order and sturdy. 53 These findings necessarily result in a verdict for Hills Industries in both claims. The remainder of these reasons deal with the other issues on the hypothetical basis that I had found that there was an inherent weakness in the ladder.

Issue 3 – negligence by Hills Industries

54 Since it was not been possible to identify the precise nature of the defect and consequently the steps Hills Industries might have taken to prevent its occurrence, it is necessary that an inference of negligence be drawn on the basis that Hills Industries had control of the process involved in the manufacture of the ladder.

55 Professor Samson's evidence was that the defect was not observable, that the ladder had been manufactured in accordance with the relevant standard and that it was not reasonable to require a manufacture to do more than to comply with the standard.

56 Notwithstanding this evidence, I find that the manufacture and release for sale of a ladder with an inherent weakness such that it would collapse after only six weeks of use, to be sufficient to establish a deficiency in the manufacturing process amounting to a breach of duty on the part of Hills Industries.

Issue 4 – Contributory Negligence by Mr Rae

57 I note that this issue was not addressed in submissions by counsel for Hills Industries.

58 I would not find contributory negligence in circumstances where the fall from the ladder was found to have been the result of an inherent defect in the ladder.

Issue 5 – Trade Practices Act 1974

59 It was conceded that Hills Industries was an incorporated entity engaged in trade or commerce and that it manufactured the ladder.

60 I accept that the circumstances in which the ladder was purchased by Mr Rae were such as to meet the definition of consumer in s 4B of the Act.

61 Mr Rae and B & S relied on the provisions of s 74D(1) of the Act to claim loss or damage in respect of goods that were not of merchantable quality. There would be little doubt that a ladder with an inherent weakness of the nature claimed would not be of merchantable quality.

62 The issue was whether the ladder qualified as goods ordinarily acquired for personal, domestic or household use or consumption so as to invoke the compensatory provisions of s 74D(1).

63 Mr Rae purchased the ladder from a Bunnings hardware store where, although rated for industrial purposes, its sale was not limited to those engaged in trade or industry. It was available for purchase on a general retail basis to both commercial and domestic users. Further, the type and price of the ladder was such as to lend itself to domestic use.

64 In such circumstances, if the ladder had been defective, Hills Industries would have been liable to Mr Rae and B & S for the supply of a ladder which was not of merchantable quality.

Issue 6 – the extent of Mr Rae's Injuries

65 Mr Rae's evidence was that he suffered a laceration to his left elbow in the fall and grazing to the left side of his upper body. He also felt pain in his neck, ribs and back.

66 He said that prior to his accident he had been easy going, enjoying a happy family life. He stated that his marriage had been good but since his accident his relationship with his wife had been stressed by financial pressures and the additional domestic load placed on his wife by reason of his incapacity. He also stated that their previously active sexual relationship had been much affected by his back pain.

67 Mr Rae previously enjoyed playing with his two children. He stated that his activities with his children had been restricted as a result of his injuries.

68 His activities prior to the fall included motor cycle riding, surfing and competition soccer. These activities have ceased and the motor cycle has been sold.

69 He continues to suffer from continuous low back pain, which extends into his legs. The pain disturbs his sleep. He takes medication on occasion to assist him to sleep. He continues to receive fortnightly remedial massage.

70 After the fall Mr Rae returned to work with B & S on light duties because he was unable to bend or lift. His employment with B & S was terminated in circumstances involving unfair dismissal proceedings.

71 He said he did not look for other employment for four to five months because of the restrictions of his physical condition. He then sought employment and claimed to have made about 250 applications before securing his current employment as a sales representative with Valvoline. He produced a folder13 containing copies of over 200 of these applications.

72 Prior to commencing employment with Valvoline, he attempted three other jobs which proved to be too taxing for him.

73 His current employment involves a considerable amount of driving which he claimed causes aching in his back. He tolerates this pain by taking breaks and stretching. The work is manageable because it involves minimal amounts of heavy lifting.

74 Mr Rae expressed concern at his prospects if his current employment were to cease, having regard to the difficulties he experienced in securing suitable work.

75 Dr Tarrant, for Hills Industries, described his examination of Mr Rae as unremarkable14 . He reported that Mr Rae complained of ill defined low back pain without evidence of spinal spasm, scar, sinus or scoliosis. He said that the xrays and MRI scans indicated no hard pathology to account for the back pain. He reported similarly in respect of Mr Rae's complaints of neck pain. His opinion was that Mr Rae's symptoms were not likely to be related to trauma, that he needed to improve his cardio-vascular fitness and that he was fit to work as a salesman. He acknowledged that Mr Rae would complain of back and neck pain if he was required to do manual work and that prolonged periods of driving would exacerbate his neck pain.

76 The MRI scans to which Dr Tarrant referred were dated 18 November 200215 in respect of the lumbar spine and 24 March 200316 in respect of the cervical spine. The MRI of the lumbar spine was reported to show a broad based disc bulge and a possible small annular tear at the L4/5 level. The MRI of the cervical spine was reported to show a moderate sized central protrusion at C5/6 and a small central protrusion at C4/5 without evidence of nerve root compression at any level.

77 Dr Rabone17 and Dr Sage18 for B & S and Dr Ghabrial19 for Mr Rae took a different view of the radiological evidence to that of Dr Tarrant. They accepted that there had been injuries to the discs nominated in the MRI reports and that those injuries were the result of Mr Rae's fall from the ladder.

78 Dr Sage noted Mr Rae's marked residual sensitivity in the affected areas and stated that he was not fit for the work he had been doing with B & S or work involving significant lifting. Dr Sage described both the back and neck injuries as resistant to treatment.

79 Dr Ghabrial was similarly of the view that Mr Rae was unfit for work involving lifting, bending or twisting.

80 Dr Patrick20 who examined Mr Rae in August 2004, described him as genuine in his presentation and his symptoms as consistent with his fall at work. He said Mr Rae had reached optimum recovery by that date and that his symptoms would continue. In his opinion Mr Rae was suffering a significant ongoing partial work incapacity.

81 I have decided that I should prefer the opinions of Drs Rabone, Sage, Ghabrial and Patrick to those of Dr Tarrant for the following reasons: (1) Two of those doctors were reporting in the interests of B & S and not Mr Rae.

(2) No doctor suggested that Mr Rae overstated his symptoms or that they were inconsistent with his fall.

(3) The MRI scans provided some support for their opinions.

(4) Although I rejected part of Mr Rae's evidence concerning the circumstances of his fall, I did so on the basis that it was likely that the speed with which the incident occurred was such that he was mistaken in his evidence rather than that he was untruthful. His evidence concerning his physical condition following the fall was entirely credible and it has been accepted.

Issue 7 - Quantum

82 Mr Rae is still a relatively young man at the age of 38. He was 34 when the fall occurred. He is married with a young family. The evidence already set out demonstrated that his neck and back injuries have had a significant impact on his marriage, his family life and his income earning capacity.

83 I therefore accept the submission made on his behalf that an assessment of 32% of a worst case is warranted for non-economic loss. The award on this head of damages is $124,200.

84 Past loss of income has been agreed between the parties in the sum of $62,740.88. For the future, Mr Rae submits that $150 per week is the appropriate value to be placed on his vulnerability in the labour market in the event that he is required to find other employment. Having regard to the evidence that established the significant effort that was involved in finding his current position, I accept that this measure of his loss is appropriate. The award for future income loss is $99,832.50.

85 Past out of pocket expenses are agreed in the sum of $41,019.11. I accept that $5,000 is an appropriate sum for future out of pocket expenses to meet the costs of obtaining sleeping medication and remedial massage.

86 The Fox v Wood component is agreed in the sum of $10,701.00.

ORDERS

87 Verdict for the defendant, Hills Industries Pty Limited, in each action.

88 The plaintiff, Mr Rae, in proceedings 141 of 2005 is to pay the defendant's costs of the proceedings.

89 The plaintiff, B & S Garage Door Operators Pty Limited, in proceedings 298 of 2005 is to pay the defendant's costs of the proceedings.

90 The exhibits will be held for 28 days or until further order noting that in proceedings 141/05 Exhibit D has been returned to the plaintiff and Exhibit 10A and 10B have been returned to the defendant.

91 My reasons are published.

********** 1 Exhibit D 2 Transcript 6/4/06, Pt 2, p.3 3 Exhibit H 4 Exhibits C1-C3 5 Exhibit 1D 6 Transcript 6/4/06, Pt 1, p.46 7 Exhibit M in proceedings 298/05 8 Appendix A to Exhibit C3 9 Exhibit L in proceedings 298/05 10 Exhibit 2 11 Macerola v Government Insurance Office of NSW (1990) 11 MVR 575, Phillips v EW Lunberg and Son (1968) 88 WN (Pt 1) 166, Goldman v Franklins Stores Pty Ltd (1980) ASC 55-071, Fletcher v Toppers Drinks Pty Limited (1981) 2 NSWLR 911, Barnett v H & J Packer & Co Ltd [1940] 2 All ER 575, Greenwood v Sefton Holdings Pty Ltd Unreported NSWSC Wood J 6 July 1990, Evans v Triplex Safety Glass Co Ltd [1936] 1 All ER 283, Grant v Australian Knitting Mills Ltd & Ors [1936] AC 85, Shandloff v City Dairy et al (1936) 4 DLR 712, Zeppa v Coca-Cola Ltd (1955) 5 DLR 187, Martin v Thorn Lighting Industries Pty Ltd [1978] WAR 10 12 at 913 13 Exhibit G 14 Exhibit 2 15 Exhibit D in proceedings 298/05 16 Exhibit E in proceedings 298/05 17 Exhibit H in proceedings 298/05 18 Exhibit J in proceedings 298/05 19 Exhibits A1-A3 20 Exhibit B

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