William Roy Ryan v Mecho Constructions Pty Ltd [1986] ACTSC 20 (18 March 1986)

SUPREME COURT OF THE ACT

WILLIAM ROY RYAN v. MECHO CONSTRUCTIONS PTY. LTD.
S.C. No. 1785 of 1981
Negligence - Damages

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Miles C.J.(1)

CATCHWORDS

Negligence - employer's liability - plaintiff required to load drum on to utility from ground made slippery by oil and grease from refuelling and greasing operations - no question of principle.

Damages - personal injury - tear of rotator cuff aggravated by unexceptional and foreseeable physical activity.

Damages - subsequent and foreseeable event which aggravates original injury - defendant responsible for aggravation - whether workers compensation paid by subsequent employer to be taken into account in reduction of award for past loss of earning capacity.

Damages - past loss of earning capacity - whether tax paid by plaintiff on workers compensation received from subsequent employer to be taken into account. Fox v. Wood (1981) 35 ALR 607 distinguished.

Mahony v. J. Kruschich (Demolitions) Pty. Ltd. (1985) 59 ALJR 504

Chapman v. Hearse [1961] HCA 46; (1961) 106 CLR 112

Griffiths v. Commonwealth 50 ACTR 7

Farmer & Company Ltd. v. Griffiths [1940] HCA 19; (1940) 63 CLR 603

Redding v. Lee [1983] HCA 16; (1983) 47 ALR 241

HEARING

CANBERRA
18:3:1986

ORDER

The plaintiff to have judgment in the sum of $212,450.

The defendant to pay plaintiff's costs.

DECISION

The plaintiff sustained personal injuries whilst in the employ of the defendant company on 9 May 1977 and brings this action alleging negligence on the part of the defendant. The writ was issued on 9 December 1981. Pleadings closed on 23 March 1982. A certificate of readiness was not filed until 9 May 1985. The hearing took place on 13, 14 and 17 February 1986. Counsel were given leave to lodge written submissions relating to the arithmetic within fourteen days. None were received. I proceed as best I can.

2. The defendant was engaged in general civil engineering work in the development of the residential area of the Tuggeranong Valley. The plaintiff commenced employment in January 1977 as a labourer with occasional duties as a plant operator. At the time of the plaintiff's injury the major project in which the defendant was concerned was earth-moving at the Kambah Health Centre, but it was also engaged in building an access road in Wanniassa in Vosper Street. The Vosper Street site, or part of it, was used as a sort of store where building materials and the like were kept. It also served as an overnight depot for earth-moving plant, and it was on this site that the plant was refuelled and greased each morning. There was also on the Vosper Street site, as there were on several of the construction sites occupied by the defendant from time to time, an overhead fuel tank from which the plant could be refuelled. Because of the refuelling and greasing operations a certain amount of grease and diesel oil found its way onto the bare ground where some of it percolated into the soil.

3. Amongst the materials stored on the site were a number of 44-gallon drums of diesel fuel. The plaintiff was instructed on the day of his injury to go from the Kambah site to Vosper Street in a utility vehicle belonging to the defendant and collect three drums of fuel for refuelling the machinery for the day. He was not given any particular instruction as to how he was to load the drums onto the utility nor was he given any assistance by way of an offsider. Clearly the plaintiff did not regard himself as in need of any such instructions or assistance. He is a tall man (six foot three and a half inches) and then strong and physically fit. As it happened, he was predominently left-handed. He had done this sort of work many times before. He drove the utility to the Vosper Street site and reversed into where the drums were situated. The exact layout of the site is not clear, but nothing seems to turn on it. He dropped the tailgate of the utility and rolled the drums over to it. The height of the 44-gallon fuel drum was somewhere between 37 and 40 inches, and the tray of the utility of the type in question was somewhere between 32 and 36 inches from the ground. The top of the drum therefore projected some three to six inches above the tray of the utility. (The plaintiff himself said it projected about two feet above the tray, but I reject that assessment on his part.) The plaintiff then proceeded to try to load one of the drums onto the utility by pushing the top against the tray with his right arm and placing his left hand under the lip of the bottom of the drum in order to lift it. He described what then happened.

"Well as I was proceeding to push and pull and

lift it at the same time where all the fuel had
been spilt and that from fuelling machinery and
getting spilt and that, me left foot slipped in
the slime and a bit of the grease and stuff that
was lying around the drums and as I was lifting
it up and had it balanced on the back of the ute,
me left foot slipped and the drum started to slip
back down and so I kept my left hand under it to
stop it from falling on me foot and that is when I
felt the pain in me shoulder."

4. Evidence was given by Mr. Boris Osman, a consulting engineer, that a 44-gallon drum full of diesel fuel would weigh 400 pounds. The evidence of the plaintiff which I accept is that the drum, according to the movement and sound of its contents, was about three quarters full. Mr. Osman gave evidence of the mechanics involved in lifting such a drum in the way described by the plaintiff, where the tray of the utility acted as a fulcrum against the upper part of the drum. It is not necessary to recount that evidence in detail. In effect it demonstrated that the higher the drum projected over the tray of the utility, the less the effort required to get the drum into a horizontal position so that it could be rolled onto the tray. According to the principles of mechanics, said Mr. Osman, if the weight of the drum slipped during the loading operation and then was retained partially or completely by the person attempting to lift it, then the force applied by the person retaining it at the end of the slipping movement could go "up to double the actual static weight". It is not necessary for me to try to make any precise calculations based on the principles of physics or mechanics as to the load which the plaintiff was attempting to control at the time he received his injury. It is sufficient to say that a severe degree of force was involved which easily explains his injury, which he described as "like me socket had been ripped out of the joint".

5. Mr. Osman gave evidence of some alternative means that are and were available at the time for loading a drum of fuel onto the tray of a utility vehicle. One method involved the use of a block and tackle with a loop of rope around the drum so that the drum could be lifted to the required height and the utility backed underneath it. Another method involved the use of an inclined ramp in association with a hoist fitted on the vehicle. More complicated methods utilised a forklift. In cross-examination Mr. Osman agreed that it was common practice in rural areas for farmers to load drums without assistance and in the manner described by the plaintiff although, strangely, he was not asked as to any practice in the building or civil engineering industries. Nevertheless I would think it is a matter of common knowledge, and the plaintiff himself conceded, that to attempt to load the drum as he did is a common practice and it was obviously to him not one that suggested itself as involving any risk of physical injury.

6. Evidence was given on behalf of the defendant by Mr. Brian David Backhouse, who was the manager of the defendant at the time of the plaintiff's injury, and had been the manager for some years prior to that. Mr. Backhouse did not say anything of any assistance on this issue as to the risk of injury involved in the manual loading of a drum of fuel onto a vehicle without assistance, nor as to the alternative methods available which had been mentioned by Mr. Osman.

7. Nevertheless, I have come to decide the issue of the alleged negligence of the defendant after considerable hesitation. Although it may be said that there is always some risk of injury of the type sustained by the plaintiff in the lifting of any heavy and unwieldy object, the question arises in every case as to the reasonableness or otherwise of expecting a defendant to supply assistance either by way of a fellow employee or some mechanical means. Amongst the particulars of negligence set out in the statement of claim are the following:-

"e) permitting and/or requiring the plaintiff
to load 44 gallon drums from the ground
into a itility in circumstancses where the
ground was slippery;

f) permitting and/or requiring the plaintiff to
load 44 gallon drums of varying weights from the
ground into a utility in circumstances where the
ground was slippery;

g) permitting and/or requiring the plaintiff to
load 44 gallon drums from the ground into a
utility without manual assistance in
circumstances where the ground was slippery;

h) permitting and/or requiring the plaintiff to
load 44 gallon drums of varying weights from the
ground into a utility without manual assistance
in circumstances where the ground was slippery;

i) in failing to provide manual assistance in the
circumstances set out in a) to h) above;

j) in failing to provide mechanical assistance in
the circumstances set out in a) to h) above."

8. In the end I think what weighs the scales in the plaintiff's favour is that the plaintiff was required to carry out the lifting operation in circumstances where because of the presence of oil and grease on the ground it was not unlikely that his foot would slip or that he would lose his balance in some way or other during the course of the lifting operation. Whether this is characterised as a failure to provide a reasonably safe system of work or as a failure to provide a reasonably safe place of work, does not seem to me to matter. It was convenient for the carrying out of the defendant's operations that the vehicles be fuelled and greased in the area in question and it was therefore to be expected that if employees were required to carry out the sort of activity that the plaintiff was carrying out then the risk of slipping was a real one. This is not the sort of case where the ground was made slippery by some substance, identified or unidentified, whose presence on the ground is unexplained. Slipping whilst loading an unwieldy drum of fuel gave rise to the risk of the type of injury which the plaintiff in fact suffered. In those circumstances I think that the standard of care expected of the defendant required the use of one of the mechanical means suggested by Mr. Osman. It is not necessary to specify which particular one was the most effective or the most practicable, nor to exclude the further reasonable alternative that the defendant might have provided assistance from one of its seventy or eighty employees. The plaintiff is entitled to a verdict.

9. In the circumstances I am not satisfied that the defendant has made out a case of contributory negligence on the part of the plaintiff. The plaintiff was sent to do a job and it does not appear that any course was available to him except to go about it in the way in which he did. It was not suggested that the plaintiff should have driven the vehicle to some other part of the site which was free from oil and grease. Possibly as a counsel of perfection, it was open for him to have done so, but in the absence of any evidence as to where exactly he would have to go, how far he would have had to roll the drums in order to get them to the back of the utility, a paucity of evidence as to the nature of the terrain and the like, I am not convinced that it has been established on the probabilities that the plaintiff failed to take reasonable care for his own safety and there will be a verdict in his favour without reduction of damages for contributory negligence.

10. I turn now to the question of damages. Firstly, something about the plaintiff himself. The plaintiff was the first person to enter the witness box and the last to leave. His evidence was interrupted by that of the other witnesses including the doctors and also by some very lengthy video tapes that were taken of him working and otherwise being active around his house. It became clear quite early in the case that quite serious allegations would be made about the plaintiff's veracity and so I took good care to observe him in the witness box. I also took care as far as humanly possibly to observe, recollect and to some extent make notes as to the contents of the video tapes. The plaintiff is a large man, of little education, who, although he made some effort about his appearance for the purposes of the court case, appeared unkempt (as he is quite entitled to do) whilst around his house, dressed in thongs, jeans, blue singlet and cowboy hat, showing his tattoos and the scars on his injured shoulder, as one of the doctors remarked, almost as if he were proud of them. I shall return to the subject of the video tapes in a moment. In my view the plaintiff was a truthful witness who did not on the whole exaggerate his injuries or symptoms to any extent which would cast doubt on his evidence as a whole.

11. The plaintiff was born on 13 March 1952 at Cooma. He left school at the age of 16 and did a number of jobs involving labouring on construction sites and the roads over the years prior to his injury. It is of some significance, however, I think, that for some five years he was an A grade linesman with the Electricity Authority and had completed a technical college course to that end. It indicates that he is capable of more sophisticated activity than the hard labouring work which he seems to have preferred. He was a fit man before his accident, and proud of his fitness. He had been a football forward in his earlier years. He was married at the time of his injury, but has since been divorced. He lives in a neatly kept house at Kambah and has two children aged 11 and 12 to whom he has access including access over the holidays.

12. Immediately following the injury the plaintiff returned to the work site at the Kambah Health Centre (he does not remember what happened about the drums that he had intended to load), favouring his left shoulder for the rest of the day. He could not sleep that night because of pain and the following day saw his local doctor, Dr Chan. The pain felt "like it was within the socket itself" but extended down the left arm about ten to fifteen centimetres also up the base of the neck on the left side. He saw Dr Chan on 10 May 1977, whose initial diagnosis was a muscular sprain in the left shoulder and left neck. Physiotherapy was prescribed and the plaintiff was certified as fit for light duties for the period 16 to 20 May 1977. According to the plaintiff, he was off work altogether for two weeks. Dr Chan (who gave evidence) did not at that stage think that there was any serious injury to the arm. The plaintiff returned to his work and carried on with the defendant company until 29 September 1978 when he joined a company called Capital Landscape Contractors Pty. Ltd. in a similar position. The plaintiff said in evidence that the left shoulder had continued to give him trouble, that he favoured the left shoulder "all the time" because he thought it was like a sprained ankle in that if he gave it a bit of work it would come good again. By April 1979 the shoulder had given him sufficient pain and trouble for him to seek treatment at the Woden Valley Hospital. He was treated by Dr Brook by way of traction to the neck which, according to the plaintiff, did not effect any improvement. He lost a few days from work and continued then with his work, obtaining little relief from the traction, pain-killing medication and cortisone injections. He then consulted a chiropractor, a Mr. Mitchell, and obtained some temporary relief. Then on 5 February 1980, by which time he had changed his employer and gone to work for a company called Capital Civil Contractors Pty. Limited, an incident occurred when he attempted to assist a fellow worker to free a mechanical compactor which had become stuck in mud. The plaintiff said that as he gave a hand to lift it up it jarred his shoulder and aggravated the pain. He immediately consulted Dr White, his local doctor, who referred him to an orthopaedic specialist, Dr Coyle. The chronology thereafter is simple. The plaintiff has not worked in employment since 5 February 1980. He was first seen by Dr Coyle on 29 April 1980. Dr Coyle had the history much as the plaintiff gave it in evidence and formed the initial view that the plaintiff was suffering from a shoulder rotator cuff condition, probably the result of a partial tear in the original injury in 1978 resulting in fibrosis and thickening of the tendons and capsule. Dr Coyle advised an operation to relieve the compression in the subacromial space, with the caution that the results were not predictable and that further operation might be necessary. The first operation was carried out on 10 September 1980, but Dr Coyle's reservations about the possible success were borne out in that the plaintiff experienced no relief. A further operation of a more extensive nature was carried out on 25 February 1981 where Dr Coyle repaired what he described in his report as "a chronic tear in the left rotator cuff, the site of the supraspinatus tendon rupture, and also transferred the long head of the biceps tendon into the shoulder capsule". On 20 May 1981 a manipulation under anaesthesia was performed. Again, however, the plaintiff's condition did not improve and on 6 August 1981 Dr Coyle performed a left total acromionectomy and excised adhesions which had resulted from the prior operative procedures. Nevertheless the plaintiff's condition still never improved.

13. Much in the case turns on whether or not the plaintiff's evidence that he continued to feel symptoms of pain in the left shoulder between 1978 through 1979 and into 1980 is accepted. I think that it should be accepted.

14. Although there is no record in the notes from Dr Chan's practice of any complaint of shoulder pain in 1978 after the return to work, those notes do bear out the plaintiff's complaints of shoulder pain as at April 1979. There is no evidence of any particular incident which gave rise to shoulder pain in 1979, and no suggestion indeed was made on the part of the defendant that any such incident had occurred. The history given to Dr Coyle in April 1980 was entirely consistent with the plaintiff's evidence. There is nothing before me from the Woden Valley Hospital or from Dr Andrew Brook, who is said to be the rheumatologist who treated the plaintiff when he was admitted to hospital in Easter 1979, but despite the absence of that evidence I think that the records from Dr Chan's practice sufficiently corroborate the plaintiff on this aspect. I take into account, of course, the fact that the plaintiff continued to carry out his heavy labouring duties during the period in question (apart from the time when he was admitted to the Woden Valley Hospital), but this is explicable by the fact that the plaintiff is a person who would tend to minimise his disability in the hope that his condition would resolve, there being no suggestion to him by any medical practitioner at that stage that he had been seriously injured.

15. Dr Coyle gave evidence about the nature of the plaintiff's injuries and the extent of his disability. Dr Coyle's initial view prior to the first operation was that the plaintiff had suffered a partial tear of the rotator cuff in the original injury. Upon operation, however, what was found was what was described as a full thickness tear on the rotator cuff, short of a complete tearing off of the rotator cuff. The first operation performed by Dr Coyle was a relatively minor one and did not enable him to see by visual observation the full extent of the plaintiff's injury. The second operation involved the excision of the ligament in the sub-acromial space and the only explanation proferred as to why that excision did not relieve the plaintiff's condition was that the damage to the rotator cuff was more extensive than had been realised. The effect of Dr Coyle's evidence on the cause and extent of the condition of the plaintiff up until the time of the first operation was that the severe tearing of the rotator cuff in the original injury, whilst it might have resolved if it had been repaired immediately, had never healed, or had healed with some thickening leading to pain on movement of the shoulder. In re-examination Dr Coyle drew a distinction between the original injury in 1977 and the subsequent incident in February 1980. The injury described by the plaintiff in 1977 was, according to Dr Coyle, consistent with a rotator cuff tear, whereas the incident involving the pulling of the compactor out of the mud involved nothing more than a strain which would not have ruptured the rotator cuff in a 28 year old fit and healthy labourer.

16. Medical evidence was called on behalf of the defendant from Dr Richard Vance, an orthopaedic surgeon, and also Dr Edwin Cassar, a consultant physician. Dr Vance's evidence was really directed towards the extent of the plaintiff's disability rather than to the exact nature of his condition and its causation. In any event, in his original report of 18 August 1982, Dr Vance said that he could "only conclude the present condition of his shoulder is a result of the accumulative effects of time and treatment to the original injury in 1977". Dr Cassar's attention also seems to have been directed mainly to the extent of disability. Nevertheless he did make a diagnosis of the nature of injury and found it to be a severe traction injury on the left brachial plexus resulting in cervical nerve root tearing and secondary muscle wasting together with traction tearing of the left bicipital tendon on the anterior compartment of the left shoulder. Dr Cassar, however, had never been appraised of the findings on operation by Dr Coyle. Dr Cassar acknowledged in evidence that a brachial plexus lesion was not normally operated upon, and that in contrast a cuff rotator tear would be confirmed if the area were opened surgically. In the circumstances I have little hesitation in accepting the evidence of Dr Coyle where it conflicts with that of the other doctors on the question of the nature of the plaintiff's injury, his subsequent condition and the question of causation.

17. In the light of the above, I make the finding that the plaintiff's original injury was in the nature of a rotator cuff tear which condition caused him to have symptoms of pain and restriction of movement in the left shoulder, aggravated from time to time by unexceptional physical effort during 1979 and finally substantially aggravated when he tried to lift a heavy object on 5 February 1980 and further aggravated by a series of operations which were intended to relieve his condition. Each element of aggravation was, in my view, a foreseeable consequence of the original injury and no act on the part of any person other than the defendant operated as a novus actus interveniens. Consequently, the defendant is wholly responsible for the plaintiff's condition and the symptoms resulting from the original injury on 9 May 1977. These findings are findings of fact; I do not think it necessary to discuss problems of law that might arise in different factual circumstances: see e.g. Mahony v. J. Kruschich (Demolitions) Pty. Ltd. (1985) 59 ALJR 504, Chapman v. Hearse [1961] HCA 46; (1961) 106 CLR 112, Griffiths v. Commonwealth 50 ACTR 7. The question of whether and how far payments made in respect of the incident on 5 February 1980 by the plaintiff's then employer, not the defendant, (or more accurately the then employer's insurer), have to be taken into account is dealt with below.

18. The plaintiff's evidence was that he is still in "constant pain all the time even at home working around the house". He complains that if he uses the arm for any considerable period he has the sensation of pins and needles and then if he tries to use his left hand or arm it becomes more painful and he has to lie down and rest. He normally wears a sling. He was wearing a sling when he gave evidence and was shown to be wearing a sling in the video tape. He said that if he tries to use his left hand for any period of time he suffers cramp in the thumb and fingers. He demonstrated the restriction of movement in his left shoulder and in doing so said that when he raises his elbow at about 20 degrees from the body at any angle the muscles seem to lock up from the pain. He has free elbow movement. The shoulder is slightly mis-shapen because of the removal of the ligamentous material in the joint. He has trouble getting in and out of shirts and the like. He prefers to wear singlets without sleeves and is not troubled by the cold. The plaintiff complained that he was depressed for some time after "the accident", but it is not clear exactly when this period of depression began. In any event, the plaintiff has come to terms with his condition to a considerable extent. He is able to tend his well-kept garden, to mow the lawn, pull out at least some of the weeds and even to trim the edges of the lawn. All this he does substantially with his right hand with only some little assistance from the left, which remains in the sling. The plaintiff says that to remove the sling causes pain in the shoulder because of the dragging effect. The sling is of the "collar and cuff" variety. The plaintiff could get better support from a full sling, but he prefers the convenience and greater freedom of what he is currently using. In my view all that was shown on the video tapes was largely in confirmation of what the plaintiff had said. Clearly he is active around his house and he does not spend the day in bed or sitting around watching television. However, he never claimed that he did. Counsel for the defendant submitted that there were some parts of the video film which showed the plaintiff using his left arm to a greater extent than he was supposed to have admitted in his evidence, those sequences being, in particular, one when he was shown apparently pulling weeds out of a garden bed on the side of his property and the other when he was sitting on the front doorstep with his elbows on his knees. With regard to the latter, the weight of the elbow was supported by the knee and I am not convinced that it showed a range of movement any greater or substantially greater than that described by the plaintiff. As to the former, my recollection of the video tape did not accord with counsel's, and in view of the time taken to show the video tapes, I was not prepared to view them again. In favour of the defendant what I think the video tapes did disclose was that the plaintiff was perhaps slightly exaggerating when he said that he is "in constant pain all the time". Furthermore, the tapes demonstrated that the plaintiff has adjusted well to his limitations. Indeed in one sequence where he was shown sitting on the step holding a cigarette in his left hand and patting the dog with the right hand, with a can of beer by his side, he presented a classic picture of Australian male contentment. I bear in mind that he was able to hold the cigarette in the left hand. I note also that when he hoses the lawn (hosing the lawn was what took up most of the video tapes) he holds the nozzle of the hose in his left hand, but when he wants to move the hose he pulls it with his right.

19. I turn now to the medical evidence as to the plaintiff's present condition and his future.

20. Dr Coyle's view is that at the present time the plaintiff is not able to use his left hand in any position at or above shoulder height and that he probably would have pain with minor jarring and twisting injuries involving the left arm. Whilst there are hopes that the plaintiff would perhaps get some movement back into his shoulder with less pain, it is unlikely that his condition will get any worse. He has, in effect, at the present time a "frozen shoulder". It is true that Dr Coyle seems to be somewhat puzzled as to why the plaintiff is incapacitated. In his evidence he said as follows:

"I manipulated it twice and also divided adhesions
in an attempt to get it moving and that did not
work. I do not know why that did not work. I do
not know why he did not at least get a passive
range of movement. He may just lay down a lot
more scar tissue than most people do or he may
have a low pain threshold and not be able to
co-operate with physiotherapists much but there
is no doubt that he had an organic condition in
his shoulder."

21. To the extent that he was unsure about the results of the operative treatment, or the reasons therefor, Dr Coyle referred the plaintiff to a Dr Cairns for a second opinion. He received a letter from Dr Cairns in which he stated that he could find no reasonable explanation for Mr. Ryan's continuing problem. Dr Cairns was, however, not called to give evidence.

22. There was no real issue between Dr Coyle and Dr Vance, who was called on behalf of the defendant, as to the nature of the plaintiff's present condition. Dr Vance concluded after his examination on 16 August 1982 that the plaintiff's claims were a little exaggerated but there was no prospect of him returning to any worthwhile work in the then foreseeable future. Upon further examination on 12 March 1984 his further view was that the plaintiff was in fact able to do a good deal more with his arm than he admitted. This development in the view of Dr Vance was based upon the expectation that if the plaintiff kept his arm in a sling for as long as he said he did, there would be a significant degree of wasting in the upper portion of the left arm. However, the circumferences of the muscles in the left arm and right arm both above and below the elbow were equal. There was also no wasting in the muscles of the left hand. At his last examination on 6 February 1986 Dr Vance measured the circumferences of the muscles once more and noted that the left upper arm is one centimetre less than the right whilst the left forearm muscles remain equal in circumference, without evidence of muscle wasting in the left hand. Dr Vance did not alter his general view as to the plaintiff's condition and disability.

23. The evidence of Dr Cassar was in marked contrast to the rest of the medical evidence and was subject to very strong attack on the part of senior counsel for the plaintiff. I have already discussed and stated my findings in relation to Dr Cassar's evidence on the causation issue. In his first report of 23 September 1982, Dr Cassar stated that the plaintiff's complaints were completely genuine and his examination findings supported the disabilities claimed. At his later examination described in his report of 31 January 1986, Dr Cassar stated that what he had previously assessed as a seventy-five percent of loss of function in the left shoulder had been reduced to a thirty percent loss of function in the meantime. Whilst there was an incapacity for labouring work, the assessment of disability had to be tempered by "the very strong likelihood of a malingering contribution". Part of the attack upon Dr Cassar's credit was based upon a suggestion that on the first occasion he reported Dr Cassar was under the impression that he was reporting to the plaintiff's solicitors, whereas on the occasion of his second report he believed that he was reporting to an insurer. The terms of the two reports do support the suggestion that Dr Cassar was indeed writing with those assumptions in mind. On the other hand I do not accept that this resulted in any conscious effort on his part to tailor his evidence to suit the purpose of the recipient of the report. However, there were certain other aspects of Dr Cassar's evidence which makes me hesitant about accepting it. The information which was furnished to Dr Cassar on 15 April 1982 by the solicitors to assist the doctor in his examination was highly inaccurate and referred to a number of injuries including cerebral concussions and speech disturbance which related to a different patient altogether. The evidence of Dr Cassar as to the restriction of elevation of the plaintiff's left arm was not easy to follow and conflicted with what he had to say in his report. Dr Cassar stated in his evidence that the plaintiff was capable of touching the back of his head with his left hand and also of rotating the left arm and putting it virtually in the middle of his back. As the range of movement so described is entirely out of keeping with the whole of the evidence in the rest of the case, I am not able to accept Dr Cassar's evidence in that regard. I have already stated my reasons for not accepting the views of Dr Cassar that the plaintiff had suffered a brachial plexus lesion. Again, where there is a conflict with the evidence of Dr Coyle on any aspect, I prefer the latter.

24. Reverting to the opinion expressed by Dr Vance, I think that it should be borne in mind that the plaintiff was, prior to injury, a left-handed person, and an active one. I think it not unlikely that the muscle in the upper left arm prior to injury was greater in circumference to that of the right arm, so that by the time the plaintiff was examined by Dr Vance on 16 August 1982 it was not unlikely that a certain amount of wasting had occurred, leaving both arms roughly equal in girth. Furthermore, if that be correct, the wasting was likely to continue so that by the time Dr Vance examined the plaintiff once more on 12 March 1984 the left upper arm was likely to be slightly less in circumference than the right, which in fact it was found to be. I am not convinced that the muscle wasting or lack of it described by Dr Vance leads to a conclusion that the plaintiff is exaggerating his condition.

25. In calculating the damages I begin by assessing the plaintiff's loss of earning capacity. I accept for practical purposes that it is unlikely that he would at any time from about the beginning of 1982 have been able to gain employment of any type in the building or civil engineering industry. Indeed I think it unlikely that he would have been able to gain employment for wages in any industrial situation. That, however, does not necessarily mean that his earning capacity has been totally destroyed. It is possible to earn income other than through employment. The video tapes make it clear that the plaintiff is able both physically and psychologically to carry out a range of activities which is sufficient for him to maintain a domestic garden, and maintain it well. He is not unlikely to be able to carry out that range of activities on behalf of other persons as well as in his own garden. He manages to drive around the local area. He could spend time attending to other people's gardens as well as his own. Although he states that housekeeping and gardening is a full-time occupation, I think that if he put his mind to it, he could probably do his gardening in less time than it takes at the present. For instance, most of the time is taken standing holding a hose. The hosing of the garden could just as easily be done by a fixed sprinkler, although at the present time this is understandably not as attractive to the plaintiff. The video tapes show that on occasions he is assisted in the garden by an unidentified friend. I think the plaintiff is capable of light maintenance gardening which could yield him a modest income. Obviously, he is not likely to attract customers who want the work done in a hurry, or who want heavy work done. But in the circumstances, difficult as it is to assess his present earning capacity, I would put it in the range of $100 a week. Accordingly, I assess his loss of earning capacity at $200 per week. I think he should be regarded as having reached his present condition some five years ago. Prior to that he lost two weeks from work immediately after the 1977 injury and a further week in about April 1979, involving a net loss of wages (based in figures in Exhibit C, a report by an actuary) of about $450 all told up to 1979. For the twelve months after February 1980 he lost about $10,000 net. Thereafter the loss should, in my view, be assessed prima facie at two-thirds of the net wage which he might have expected to have earned if he had not been injured. The figures postulated by the actuary for after tax earnings but for injury are not disputed and for the period February 1981 to February 1982 appear to be in the region of $75,000, two-thirds of which is $50,000. On this basis $60,450 is appropriate on the face of it for the past loss of earnings.

26. The question arises as to whether and how far the plaintiff's loss of past earnings is affected by receipt of workers compensation payments from the employer for whom he was working at the time of the incident on 5 February 1980. Clearly that employer, or its insurer, regarded that incident as an injury for which the employer was liable under the workers compensation legislation. Exhibit D sets out details of the compensation paid from 5 February 1980 to 11 November 1984, amounting to $38,369.23 and also details of medical, hospital and similar expenses paid to the extent of some $4,000. Counsel for the plaintiff concedes that the plaintiff is not entitled to claim those amounts against the present defendant. That concession seems to me a proper one (see Farmer & Company Ltd. v. Griffiths [1940] HCA 19; (1940) 63 CLR 603, 614). S.22(1) of the Workmen's Compensation Ordinance 1951 does not apply; there would appear to be no statutory entitlement on the part of the 1980 employer to recoupment of compensation from the plaintiff. What is claimed however on the part of the plaintiff as against the present defendant is the tax which he had to pay on the workers compensation received. The defendant submits that the plaintiff is not so entitled. Had it been the defendant who had made the workers compensation payments then the plaintiff would be entitled in an action for damages to claim the tax paid by him on the compensation received because the gross compensation received is, in the common provisions in Australian workers compensation legislation, to be deducted in one way or another from the damages that the defendant has finally to pay the plaintiff: Fox v. Wood (1981) 35 ALR 607. Counsel for the defendant submitted that where the workers compensation benefits have not been paid by the defendant and where there is no liability on the part of the plaintiff to repay or refund the third party employer, the principle in Fox v. Wood does not apply. In that respect, I think the submission is correct, but it is not really to the point. What is in issue is the quantification of loss of earning capacity for a period in the past. That quantification is usually made by using the yardstick of looking at what earnings, net of tax, the plaintiff might have received but for injury. The plaintiff has to bring into account any earnings which he has in fact received, or any receipts in the nature of earnings: Redding v. Lee [1983] HCA 16; (1983) 47 ALR 241. It is the net value of such receipts after tax, not the gross receipts, which go to make up the yardstick. Hence I think that the plaintiff is required to bring into account the net figure for workers compensation from February 1980 to November 1984. That net figure is calculated by taking the gross $38,369.23 and subtracting the estimated tax and leaving $35,000 or thereabouts. That amount then has to be set against the $60,450 previously and provisionally calculated for past loss of earnings, leaving an end figure for past loss of $25,450.

27. As to out-of-pocket expenses, there are none claimed for the period prior to 1982. All expenses since then have been paid by the 1980 employer and for the reasons already given are not recoverable by the plaintiff against the defendant: Redding v. Lee at p 243.

28. As far as the future is concerned, it is likely that the plaintiff would have worked to some age probably between 60 and 65 years. He is now aged nearly 34. On the 3% discount tables set out in para. 4.2 of the actuary's report, loss of income earning capacity to the age of 60 years may be assessed at $183,000 and to age 65 at $201,000. Choosing a figure roughly in the middle of $190,000, I reduce it by 20% for vicissitudes, a slightly higher reduction than usual because of the possibility mentioned by Dr Coyle that the plaintiff may improve to some extent but will not get any worse. The end figure for the future is $152,000.

29. Damages for pain and suffering, loss of enjoyment of life, in the light of the above findings, is assessed at $35,000. Interest is not claimed.

30. In summary, the award of damages is as follows:

Past loss of earning capacity $ 25,450

Future loss of earning capacity $152,000

Out-of-pocket expenses Nil

Pain and suffering, etc. $ 35,000
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$212,450
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31. The plaintiff is to have judgment for that amount and the defendant is to pay his costs.