Luigi Manna v Citra Constructions Pty Limited [1986] ACTSC 23 (18 April 1986)

SUPREME COURT OF THE ACT

LUIGI MANNA v. CITRA CONSTRUCTIONS PTY. LIMITED
S.C. No. 1520 of 1981
Negligence - Damages - Evidence

COURT

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

CATCHWORDS

Negligence - employer's liability - failure to provide reasonably safe system of work - plaintiff left to devise method himself - no question of principle.

Damages - injury to back - laminectomy - back permanently weakened - assessment of value of loss of earning capacity - plaintiff subjected to rehabilitative measures for four years and in receipt of workers compensation for ten years - whether earning capacity destroyed.

Evidence - issue estoppel - findings of magistrate in workers' compensation proceedings.

Evidence - whether payment of compensation in accordance with award can be construed as admission by employer.

Hoysted v. Federal Commissioner of Taxation [1921] HCA 56; (1921) 29 CLR 537, 561.

Blair v. Curran [1939] HCA 23; (1939) 62 CLR 464 at 531

David Jones (Canberra) Pty. Ltd. v. Zapasnik (42) ACTR 6 at 14

Way v. Penrikyber Navigation Colliery Company Ltd. (1940) 1 KB 517

Huysse v. Snowy Mountains Hydro-Electric Authority (1975) 1 NSWLR 401

Pastras v. The Commonwealth (1966) 9 FLR 152

HEARING

CANBERRA
18:4:1986

ORDER

The plaintiff to have judgment in the sum of $225,000.00.

The defendant to pay plaintiff's costs.

DECISION

The plaintiff sues for personal injuries received whilst in the employ of the defendant on 12 February 1976. He bases his claim in common law negligence. The writ was issued on 16 October 1981. There were amendments to the pleadings and these were eventually closed by the filing of a reply on 26 February 1983. A certificate of readiness was filed on 25 February 1985. The hearing took place on 3 and 4 March 1986. At the commencement of the hearing the plaintiff applied to file an amended reply alleging that the defendant was estopped from denying certain allegations in the statement of claim. The amendment was granted over objection. When the plaintiff was subject to cross-examination, the question arose as to whether it was appropriate for the defendant to cross-examine on certain matters which were the subject of the alleged estoppel. I ruled that the question of the estoppel should be decided before proceeding further with the evidence and, after hearing counsel, I ruled that the defendant was estopped from denying:

(a) that personal injury was caused to the

plaintiff on 12 February 1976 arising out
of or in the course of his employment by
the defendant.

(b) that such personal injury consisted of the
tearing of the medial ligament of the left
knee joint and lumbar disc prolapse.

(c) that as a result of the said injury the
applicant was totally incapacitated for
work from 12 February 1976 to 8 April 1976
and from 18 May 1976 until 25 May 1977.

2. I said that I would give my reasons later and I now do.

3. The amended statement of claim dated 20 December 1972 includes the following allegations:

"3. On or about the 12th day of February, 1976
and/or on the 8th day of April 1976 the
plaintiff was so employed by the defendant
and in the course of such employment was
required to assist in the work which was
then being performed and to move cement
pipes as required.

4. Whilst moving a cement pipe and in
consequence thereof the plaintiff suffered
pain and injuries to his left leg and his
lumbar spine."

4. The particulars of negligence alleged include the following:

"(b) Requiring and/or permitting the plaintiff
to roll up and carry a large cement pipe in
a manner and at a location which was in all
the circumstances dangerous.

(c) Requiring and/or permitting the plaintiff
to roll up and carry a heavy cement pipe
without assistance and without any
mechanised facilities in an area where it
was likely that the pipe would roll off and
out of control and cause injuries to the
plaintiff.

(d) Requiring and/or permitting the plaintiff
to work in unsafe surroundings and on an
uneven ground."

5. The particulars of injuries included an allegation of the tearing of the medial ligament of the left knee joint and lumbar disc prolapse. The particulars of special damages include an allegation of loss of wages from 13 February 1976 to the time of the amended statement of claim and continuing, as well as certain medical expenses.

6. The abovementioned allegations in the amended statement of claim were put in issue by the amended defence. The amended reply included the following allegation:

"2. The defendant is estopped from denying -

(a) that personal injury was caused to
the plaintiff on the 12th day of
February 1976 arising out of or in
the course of his employment by the
defendant,

(b) that such personal injury consisted
of the tearing of the medial
ligament of the left knee joint and
lumbar disc prolapse,

(c) that as a result of the said injury
the applicant was totally
incapacitated
for work from the 12th day of
February 1976 to the 8th day of
April 1976 and from the 18th day of
May 1976 to this date and
continuing."

7. It is not necessary to set out the particulars of facts giving rise to the estoppel as they are set out in the amended reply. It is sufficient to say that the facts which the defendant is alleged to be estopped from denying are those facts contained in findings made by a Magistrate on 26 May 1977 sitting in the workers' compensation jurisdiction of the Court of Petty Sessions at Canberra where the plaintiff as applicant had brought proceedings against the defendant as respondent. Those findings appear in paragraph 2 of the amended reply as set out above. I leave aside (as did counsel) the somewhat academic point that it was not appropriate for the amended defence to be read as if it traversed the particulars in the amended statement of claim, although it is said to be a fundamental rule of orthodox pleading that one does not plead to particulars.

8. Before looking at and assessing the effect of the findings by the learned Magistrate, it is necessary to have regard to the amended application for compensation in order to see what the issues were that were before the Magistrate. Paragraph 1 of that amended application was in the following terms:

"On or about 12 February 1976 and/or on or about
8th April 1976 personal injury by accident arising
out of and in the course of his employment was
caused to LUIGI MANNA, a workman employed by the
respondent, CITRA CONSTRUCTIONS PTY. LIMITED."

9. The particulars set out in the amended application include the following:

"4. Date and place of accident, nature of work
on which worker was then engaged and nature
of accident and cause of injury -
12 February 1976 -

Applicant injured when struck by rolling
cement pipe which caused severe damage to
the ligaments of the left knee and
prolapsed disc. Pain from the said disc
lesion did not become obvious until about
8th April 1976 when during the course of
physiotherapy treatment for his injured
knee the applicant noticed the onset of
back pain. Alternatively the applicant
will claim that the prolapsed disc arose
from necessary treatment for his injured
knee and was therefore an injury by
accident arising out of or in the course of
his employment."

10. Accordingly, it is not difficult to conclude that the factual findings of the Magistrate were within the issues which he had to determine.

11. The concept of issue estoppel is by now a well known one, although according to Phipson on Evidence 13th ed. para. 28-46 the term was coined by an Australian, namely Higgins J., in Hoysted v. Federal Commissioner of Taxation [1921] HCA 56; (1921) 29 CLR 537,561. It has been described by Dixon J. in Blair v. Curran [1939] HCA 23; (1939) 62 CLR 464 at 531 as follows:

"A judicial determination directly involving an
issue of fact or of law disposes once for all of
the issue, so that it cannot afterwards be raised
between the same parties or their privies."

12. The essential argument on behalf of the defendant that no issue estoppel arose in the present case because the proceedings in the Court of Petty Sessions were by way of arbitration under the Workmen's Compensation Ordinance 1951 and did not involve a judicial determination. The argument may be disposed of by reference to the decision of Gallop J. in David Jones (Canberra) Pty. Ltd v. Zapasnik (42) ACTR 6 at p 14 where his Honour said:

"In my view the fact that the procedure of the
court is not governed by the ordinary principles
relating to the disputed questions of fact by a
judicial tribunal does not conclude the question
whether the Court of Petty Sessions exercising
jurisdiction under the Workmen's Compensation
Ordinance is a court of competent jurisdiction.
It is a competent court exercising judicial
functions. When it makes a decision within its
jurisdiction it is in the nature of a judgment in
personam. Its awards are enforceable in the same
manner as a judgment or order of the court given
pursuant to its ordinary civil jurisdiction. The
Rules themselves provide for enforcement and
execution. Notwithstanding that the provisions of
the Arbitration Act 1902, under which proceedings
may be susceptible to the doctrine of res judicata
(which I do not decide) have been excluded from
the operation of the Ordinance, I am of the
opinion that the Court of Petty Sessions is a
court of competent jurisdiction for the purposes
of all matters and questions arising under the
Workmen's Compensation Ordinance or under the
First and Second Schedules to the Ordinance
pursuant to s.24 thereof."

13. Accepting that the Court of Petty Sessions exercising jurisdiction under the Workmen's Compensation Ordinance 1951 exercises a judicial function, the findings of the Magistrate above referred to gave rise to an estoppel in relation to the issues decided. It is to be observed, however, that those findings did not give rise to an estoppel in relation to all the matters alleged in the amended reply. In particular, the findings of the Magistrate could not operate so as to preclude the parties contesting the true state of facts as they were subsequent to the date of the Magistrate's findings. Accordingly the defendant was not estopped from denying the plaintiff's incapacity for the period commencing 26 May 1977 and continuing to the date of the hearing in this Court.

14. Returning then to the issues in the present case, we start with the premise that the plaintiff did in fact receive injury in the course of his employment with the defendant on 12 February 1976. Exactly how he came to suffer the injury remains to be decided, but the primary facts are not really in dispute. The plaintiff was employed as a grade checker. The defendant was engaged in roadworks and similar activities relating to the subdivision of an area in one of the suburbs of Canberra. On the day in question he was told upon his arrival at work to leave the grader for the day and assist the driver of a bulldozer to cover a newly laid water main in a trench. The water main was several hundred metres long and had been laid in a trench about half a metre deep. Every two hundred metres or so along the water main there was a valve. The plaintiff's duties were to assist by shovelling dirt into the trench to keep the pipe in position. He was also required to place a concrete pipe about 1200 millimetres long vertically over each of the valves as he came to it. The plaintiff had been instructed that morning that the water main was to be tested the following day, and so there was some urgency about the task. The work progressed without incident during the day until about 2 p.m. Until then, as he reached each of the valves, the plaintiff was able to utilise a concrete pipe which had been placed close to the particular valve. At about 2 p.m. however he reached a valve in the vicinity of which no concrete pipe was to be found. He signalled the bulldozer driver to stop and proceeded to walk back towards the site office some 400 metres or so distant. Although the evidence is not very clear, I find that in order to reach the site office it was necessary for the plaintiff to cross an area in the nature of a storage yard where pipes and other materials were kept. As he was crossing the storage yard the plaintiff said, and he was not challenged on this, that he saw one of the supervisors, the one who had given him the instruction early in the morning, and there was some conversation between them. The plaintiff did not give evidence of the exact conversation but the supervisor suggested to him that it was not necessary to go to the office as more time would be lost that way. So, according to the plaintiff, he selected an appropriate pipe from several in the vicinity and commenced to roll it towards a road. In view of the weight of the pipe which made it difficult to carry it more than some twenty to fifty metres, this manoeuvre of rolling the pipe was not an unreasonable one on the part of the plaintiff. He had on previous occasions noticed that the pipes that had been transported to the trench had been transported ten or fifteen at a time by means of a backhoe.

15. The plaintiff rolled the pipe some forty to fifty metres as described. The ground sloped down to the road. When it was close to the road, it got out of control. In order to stop the pipe going over the kerb and gutter and possibly breaking, the plaintiff attempted to stop it with his right hand. Exactly what happened then is not clear but the pipe in some way or other swung around and struck him on the left foot causing him to feel immediate pain and a clicking sensation in his left knee. At the same time he fell to the ground and was struck again by the pipe, this time on his back. It was not, however, a hard blow. The plaintiff was unable to move and called for help.

16. The exact allegation of negligence as I understand it is that which is alleged in paragraph 7(c) in the statement of claim, already above referred to, and alleging that the plaintiff was required or permitted to manoeuvre the heavy concrete pipe without assistance and without mechanised facilities in a place where it was likely to roll out of control and cause injury to him. Senior Counsel for the plaintiff added a gloss to that allegation and submitted that the defendant was negligent in allowing the plaintiff to be left to his own devices as to how to get the pipe from the yard back to the trench without adequate instruction or supervision or both. Although this latter particular of negligence was not pleaded, it seems to me sufficiently allied to the matters pleaded that, despite lack of amendment to include it, I should not leave it out of my consideration. There was no submission to the contrary by the defendant.

17. I decide the issue of negligence only after considerable hesitation. The weight of the concrete pipe in question was fifty to sixty kilograms but to suggest that it was unreasonable for the defendant to require the plaintiff to lift or move the pipe is, in my view, unwarranted. After all, the plaintiff had to lift and move similar pipes from where they had been deposited by the backhoe and position them on the individual valves as he moved down the water main. There was no evidence as to how far he had to move them, or exactly where it was that the backhoe driver brought the pipes before they were unloaded. Presumably they were unloaded manually by somebody from the bucket of the backhoe.

18. Where I think that the plaintiff is able to show a lack of reasonable care is in the expectation of the defendant that the plaintiff would somehow or other be able to move the pipes some four hundred to five hundred metres without manual or mechanical assistance. The defendant stated in an answer to interrogatories that the plaintiff was supplied with a crowbar, but in my view that was a wholly inadequate device in the circumstances in which the plaintiff found himself. The bulldozer driver was unable to help, because he was not permitted to take the bulldozer along the road. The superviser who had earlier told the plaintiff that the job had to be done that day diverted the plaintiff from his intention to call the site office to obtain instructions. Accordingly it was not unlikely that the plaintiff would make a decision of the nature he did in fact make, namely to roll the pipe along the ground, which involved the risk of the pipe getting out of control on the incline down towards the road. The pipe in those circumstances was not unlikely to become a dangerous object constituting a risk of injury to a person in its vicinity, particularly a person who tried to control its movement. Although the evidence is not precise, it is not difficult to infer that there were somewhere in the vicinity other employees who could have assisted had the defendant made one or other of them available. The defendant could have made a backhoe or bulldozer or other mechanical transport available. In the absence of some explanatory evidence from the defendant, I am prepared to draw the inference on the balance of probabilities that adequate assistance was available to the plaintiff if the defendant had chosen to make it available. In failing to make it available I think that the defendant was guilty of failure to take reasonable care for the safety of the plaintiff. The plaintiff himself, however, was in no position to command such assistance. In all the circumstances I am not satisfied that the plaintiff failed to take reasonable care for his own safety. There will be a verdict for the plaintiff without any apportionment for contributory negligence.

19. I turn now to the question of damages. The plaintiff was born on 24 March 1935 in central Italy where he went to school from the age of 5 to the age of 12 years. He then went to a special school where he learned singing for a period of years and then returned to his parents' farm until the age of 21. He then came to Australia where he worked as a cane cutter for some months and in November 1956 he began work on the Snowy Mountains Scheme where he remained for some 13 years following a variety of semi-skilled occupations. In 1969 he commenced work as a pipe layer with the defendant in Canberra. He followed that occupation for three years and then spent two years as an air truck driller with the defendant until he became grader checker. The work of a grader checker is to check and advise the driver of a road surface grader as to the level of the road surface under construction or maintenance. The plaintiff was in good health. He was married in 1970 and has two children. He led a perfectly normal life before his injury, working during the week, spending some time at the Italo Australian Club at weekends, sometimes going with his wife out to dinner and to movies and doing the usual things around the house such as gardening and concreting.

20. In view of my findings on the estoppel question, one starts with the following propositions. The plaintiff was totally incapacitated for work from 12 February 1976 to 8 April 1976 and from 12 May 1976 to 25 May 1977. The injury which the plaintiff had received on 12 February 1976 consisted of the tearing of the medial ligament of the left knee joint and a lumbar disc prolapse. The effect of the knee injury, however, ceased to have any effect upon the plaintiff's capacity for work beyond 8 April 1976. The plaintiff's incapacity from 18 May 1976 until 25 May 1977 was due to the lumbar disc prolapse.

21. Having regard to the nature and cause of the plaintiff's incapacity as at 25 May 1977, it is likely as a matter of fact that such incapacity, brought about by such causation, continued some time beyond that date. In order to determine the extent of the ongoing capacity both as to nature and as to time, it is appropriate, in my view, to look at the whole of the medical evidence, bearing in mind that it was not open to the defendant to argue that there was no incapacity as at 25 May 1977 or that such incapacity as existed as at that date was due to any cause other than a lumbar disc prolapse. Before looking at the medical evidence, however, it is necessary to deal with a point of law raised on behalf of the plaintiff, namely, that the continuation of payments of worker's compensation to the plaintiff from the date of the determination in the Court of Petty Sessions until the date of the hearing in the Supreme Court operates as an admission on the part of the defendant that the plaintiff's condition has been due to the employment injury. It is true that a claim for compensation by an injured worker followed by a payment of compensation by or on behalf of the employer may amount to prima facie evidence of admission which may be rebutted if the employer chooses to give evidence to rebut it: Way v. Penrikyber Navigation Colliery Company Ltd. (1940) 1 KB 517. However, in my view, every case must depend upon its own circumstances. The present case is not one of a demand by the worker followed by a payment by the employer. The payments by the employer followed the determination of the Magistrate in the Court of Petty Sessions after an arbitration in which the claim by the injured worker was resisted by the employer. There may be any number of reasons why the employer continued to make the payments after the decision in the arbitration: see Huysse v. Snowy Mountains Hydro-Electric Authority (1975) 1 NSWLR 401 and Pastras v. The Commonwealth (1966) 9 FLR 152. I am not satisfied as a matter of fact that the continuation of payments of compensation amount to an admission by the defendant of any relevant fact in the present proceedings.

22. It must also be borne in mind that for the purposes of liability for workers' compensation, a medical condition may have more than one cause and an employer will be liable if he is responsible for only one of those causes. The question may arise as to whether a cause for which an employer is responsible has been overtaken or displaced by other causes during the course of time. The question arises directly in the present case because the plaintiff is now 52 years of age, ten years having elapsed since the injury for which he sues, and nearly nine years since the date of the findings of the Magistrate.

23. Immediately after his injury the plaintiff was driven to the Royal Canberra Hospital where he was x-rayed and a plaster was placed on his left leg. He was sent home and rested in bed for some six weeks and thereafter returned to the hospital for two weeks physiotherapy. On the second last day of the physiotherapy the plaintiff felt pain in his back for the first time. He mentioned this to Dr Roebuck, but Dr Roebuck disregarded the complaint of pain in the back at that stage and the plaintiff was allowed to return to work. After three weeks at his former duties as a grade checker the plaintiff was required to shovel soil during the whole of one day. He felt pain in the back during the course of the day which increased severely by night time. The following day he returned to the Canberra Hospital where he was x-rayed and underwent a further two weeks of physiotherapy as well as heat treatment and traction. He continued for some short time under Dr Roebuck and was referred to Dr Andrews, a consultant neurologist on 28 May 1976. Dr Roebuck, apparently an orthopaedic surgeon, was not called to give evidence and the only report furnished from him was that dated 16 July 1976, prior to surgery, and of little assistance. I was told from the bar table that Dr Roebuck now lives in Fiji. I am not satisfied that there has been a failure on the part of either party to call Dr Roebuck and accordingly I draw no inference adverse to either party from his absence.

24. Dr Andrews reported that the history given to him by the plaintiff was that he received an injury to his left knee and twisted his back at work on 9 April 1976. Although it was submitted on behalf of the defendant that this somehow cast some doubt upon the plaintiff's case, I am quite satisfied that the doctor has simply misinterpreted what the plaintiff told him and that what Dr Andrews took to be an accident on 9 April 1976 was the prolonged shovelling that the plaintiff was required to carry out on that day.

25. Dr Andrews supplied reports and gave evidence. He first saw the plaintiff after reference from the casualty department of the Royal Canberra Hospital on 28 May 1976. The plaintiff's complaints at that stage were of back pain and left sided sciatica. The clinical signs were suggestive of a disc rupture. X-rays showed evidence of disc narrowing at the L5-S1 level. After a week of bed rest and a further ten days in traction, the plaintiff was subjected to a myelogram which showed a likely massive prolapse of the L4-5 disc. Dr Roebuck performed an operation upon the lumbar spine about six months later but Dr Andrews did not see the plaintiff again until 16 June 1982. The complaints by that stage were that the results from surgery were reasonably good, but if the plaintiff did any physical work he developed significant back pain. At that stage the plaintiff was attending technical college courses in English and mathematics. X-rays taken on 11 November 1980 showed disc narrowing at L5-S1 and Dr Andrews' report recalls that as at 17 June 1982 the plaintiff "still appears to be having symptoms from an L5-S1 disc lesion". It is notable that six years previously, although there had been narrowing at the L5-S1 level, Dr Andrews had not thought that the plaintiff's disability was due to any lesion at that level but rather due to a massive rupture at the L4-L5 level. As at June 1982 Dr Andrews formed the view that the plaintiff would never be fit to return to physical work, even if further surgery was performed, and that at the most the plaintiff might hope to find a job of a clerical nature.

26. In May 1984 the plaintiff was examined once again by Dr Andrews with the assistance of a CAT scan and this procedure showed no lumbar disc protrusion but some evidence of localised arachnoiditis, which had resulted from the myelogram. Back movements in the spine were good and leg-raising was full, suggesting that it was the arachnoiditis and not discopathy which was responsible for the plaintiff's persisting complaints of pain. There was also a minor degree of bony canal stenosis which Dr Andrews felt did not contribute significantly to the plaintiff's symptoms. If it did, the bony canal stenosis was a result of degeneration and not of the injury. When Dr Andrews examined the plaintiff on the final occasion on 19 February 1986, his view was then, as it was when he gave evidence, that there was a possibility that the bony canal stenosis was contributing to the on-going symptoms. In any event, his general view as to the unfitness of the plaintiff or physical work remained the same and he concluded that the plaintiff was fit only for work involving little activity.

27. The plaintiff was examined on two occasions by Dr Geoffrey Stubbs, an orthopaedic surgeon, for the purpose of giving evidence. On the first occasion on 13 March 1984, the plaintiff indicated that he was "now almost completely free from the pain . . . . which was the principal trouble prior to surgery immediately after the operation." The plaintiff continued to complain, however, of continuing stiffness in the low back helped temporarily by heat and therapy treatment but aggravated with activity. The plaintiff described to Dr Stubbs his restricted activity around the house and the aggravation of his back condition by vigorous activity such as digging and the difficulty experienced when standing on ladders and looking above his head and when bending and stooping to carry out tasks such as painting or weeding. By that time Dr Stubbs noticed that the plaintiff was becoming somewhat obese. On physical examination there was overall restriction of mobility of the spine of about one-third of the expected range. Both knee jerks were present but the left ankle jerk was reduced. Dr Stubbs formed the view that having regard to the plaintiff's background and lack of successful education he should be regarded as completely disabled.

28. The views of Dr Stubbs did not undergo modification when he next saw the plaintiff on 10 February 1986, except to the extent that it was found that by that stage the plaintiff was suffering from peptic ulcer brought upon by pain-killing medication. By the time of the second consultation Dr Stubbs also noted increased obesity.

29. On the question of causation I accept Dr Stubbs' view that it was likely that the plaintiff suffered a tear of the intervertebral disc at the L4-L5 level in the injury of 12 February 1976 which did not become manifest for some time because the plaintiff was resting at home. It was not until the plaintiff was required to get around on crutches with a leg in plaster and finally to carry out the digging activity that the disc prolapsed to its full extent.

30. The defendant called in its case Dr Archibald Watts, a consultant orthopaedic surgeon who has been in practice for many years, although he ceased to carry out surgery some 16 years ago. Dr Watts' view was that the plaintiff, whom he examined on 26 May 1978, 19 November 1979 and on 25 January 1984, sustained a spontaneous exacerbation of a degenerative disc lesion in the incident of May 1976 which was not related to the injury of 12 February 1976. However, that view is one which does not lie within the issues which are left for me to decide in this case, because of the issue estoppel. As at 29 May 1978 Dr Watts was of the view that the plaintiff was fit for work not involving heavy and continuous back strain and the like, particularly having regard to the effect of the laminectomy performed by Dr Roebuck. By the time of his next examination on 20 November 1979, Dr Watts concluded that the symptoms at that stage were only slight and amounted to no more than a slight discomfort in the back and that any restriction on activity was due to the degeneration which pre-existed the injury. By 26 January 1984, the last occasion on which Dr Watts examined the plaintiff, he found that there were no abnormal physical signs, that the plaintiff was complaining of symptoms which had no organic basis, but on the assumption that there was some slight underlying pain from time to time, that was due to degeneration and not to injury. As to fitness, Dr Watts thought that the plaintiff was fit for his previous work which might be regarded as heavy work for many but moderate for a man of his build.

31. Dr Watts was subject to a strong attack on his professional bona fides. The attack, as far as I am concerned, totally failed and I am quite unconvinced that Dr Watts was doing other than giving what he genuinely considered to be the true position both as to the plaintiff's fitness for work and as to causation. In his first report Dr Watts conceded that his opinion as to causation was in the face of the findings in the workers' compensation proceedings, and of course that concession was rightly made. Nevertheless, when one weighs up the evidence of Dr Stubbs as against that of Dr Watts, I find that of Dr Stubbs more convincing so far as causation is concerned and that lends weight to his evidence on other aspects. Furthermore, an assessment of the plaintiff's symptoms from May 1977 onwards depends not only on the evidence of a strictly medical nature but also upon an assessment of the plaintiff himself.

32. Having carefully observed the plaintiff in the witness box and taking his evidence into account in the light of all the other material before me, I found the plaintiff an acceptable witness. I bear in mind that he spoke English, which presented some slight difficulty for him. I was impressed also with the evidence of the plaintiff's wife and have no reason to conclude that she was speaking other than the truth. For reasons which I am about to explain, however, I do not accept that the plaintiff is completely unemployable, although he has unfortunately been led to that conclusion himself. On the other hand, the plaintiff does not believe and has never claimed to believe that he is completely unfit for carrying out a range of physical activities.

33. There is a paucity of evidence relating to the plaintiff's history over the ten years since his injury, but having regard to that lapse of time the plaintiff cannot personally be blamed for it.

34. The events since the injury appear to be, as best as I can ascertain them, as follows. After the treatment in the Royal Canberra Hospital to which I have already referred, Dr Roebuck performed a laminectomy on 16 August 1976. From that time until the determination of the workers' compensation proceedings the plaintiff saw Dr Roebuck regularly and received treatment by way of physiotherapy and hydrotherapy and the like at the Woden Valley Hospital. Between mid 1977 and 1980 what happened is unclear. Apparently in 1978 the plaintiff underwent vocational assessment to see whether he could carry out clerical duties. The view was formed that he lacked sufficient English. He was sent off to do a course at a technical college and attended for the purpose of learning English and mathematics. He attended the course on two days per week for two years. At the end of that time he sat for the School Certificate Examination but failed. In 1982 he then returned to the Woden Valley Hospital Rehabilitation Centre for further rehabilitation. Dr Farnbach, the Director of Rehabilitation, supplied a report in January 1983 to the effect that the plaintiff attended regularly and appeared motivated, well mannered and well dressed. Although his English had improved he was very slow at performing minor clerical tasks and unable to carry out alphabetical filing. Although he was capable of operating a small photocopying machine he was unable to record details of the work done. It was concluded that the plaintiff was not likely to pass any Public Service entrance examinations either then or in the future. He was tried out in light repetitive process work and appeared able and happy to do it. In August 1982 the plaintiff was discharged from further treatment. Sometime thereafter, and I am not convinced that there was any unreasonable delay on the plaintiff's part, he attended at the Commonwealth Employment Service, Civic Branch, to seek or at least register for employment. The plaintiff informed the officer there to whom he spoke of his injury and subsequent history including his time at the Rehabilitation Centre at Woden. The plaintiff did not fill in any forms and was not asked to do so. I do not know whether the officer to whom he spoke had access to an already existing file, but I am quite convinced that the plaintiff was then told that he was then unemployable. There is some evidence that the plaintiff had on a previous occasion made some application regarding employment at the Woden Branch of the Commonwealth Employment Service, but I do not think that this is of any significance. The fact is that since the time he spoke to the Commonwealth Employment Service officer at Civic which could have been in late 1982 but no earlier, the plaintiff has not made any attempt to obtain work. Prior to that he had not made any attempt to get work, but this is explained by the extraordinary length of the vocational and rehabilitative processes to which he was subject, unsuccessfully. I do not think that he has been unreasonable in all the circumstances on this alleged failure to mitigate his damages by getting or at least seeking work. He was cross-examined thoroughly on the subject, and I do not think that it is necessary to set out all the questions and answers on that matter. He seems to have become, and I do not say this critically of anybody, a victim of the welfare system. He seems to have been subject to at least four years of continuing attempts at rehabilitation, assessment, education, reassessment, further rehabilitation, further reassessment and eventually a decision, which he understandably took to be of an official nature, that he was unemployable. During all that time and since, up until the time of the hearing, he has been paid worker's compensation. The plaintiff was frank when it was suggested to him that if he were offered a job that did not involve him carrying any heavy weights or climbing ladders and was otherwise a job that he could carry out satisfactorily with his standard of English, he would take it. Although there was evidence which I accept that the practical opportunities for light, repetitive process work for a person such as the plaintiff in the Canberra/Queanbeyan area are virtually nil at the present time, this does not mean to my mind that the plaintiff's earning capacity has been entirely and permanently destroyed. It is to be noted that the plaintiff is able to drive a car which he does for the purposes of shopping with his wife and for taking holidays on the coast. It is conversely notable that when he goes on holidays he is unable to pitch a tent.

35. It is very difficult to calculate the value of the plaintiff's loss of earning capacity, not only because of the difficulties of assessing his physical incapacity above referred to, but also because of the lack of material relating to the plaintiff's earnings and the earnings of other persons employed by the defendant company. Mr. Frederick Allan Hayes, present pay master for the defendant company in the Canberra area, said that the present rate of pay for grade checkers was just under $9 per hour. There were allowances paid in addition to that basic rate, but in the absence of evidence that such allowances are anything but payments made to compensate employees for such disadvantages in carrying out their work as the expense of travelling to particular sites, purchasing meals and the like, I am not prepared to add the allowances to the basic hourly rate for the purpose of assessing value of loss of earning capacity. Mr. Hayes also gave evidence that persons working on building sites for the defendant company at the present time work a considerable amount of overtime both between Mondays and Fridays as well as on Saturdays. On the other hand the defendant company did not carry out any work at all in the Canberra area between 1978 and 1984. Furthermore, the defendant company does not at the present time employ anybody above the age of 50 years on a building site. There is no evidence before me as to rates applicable prior to the present time. The plaintiff's claim as set out in particulars filed was that at the date of injury the plaintiff earned $143 per week net. I am prepared to accept that as a rule of thumb without proof. This would work out roughly at about $4 per hour gross. For the purpose of assessing the loss of earning capacity from the time of injury to the present time, I would strike an average of the rate payable at the time of injury and the rate payable now which would seem to me to be in the region of $5 an hour net, or $200 per week. Any further amount which might be added for overtime is, in my view, cancelled out by the contingency that the plaintiff might have suffered injury to his back or simply suffered from the natural degeneration that would have ensued in any event. I think it appropriate to award a round sum of $100,000 for past loss of earning capacity.

36. As far as the future is concerned, I would allow $300 per week, which if calculated at the 3% discount tables to the age of 60 yields a sum of $111,600 and to the age of 65 a sum of $168,900. I think it appropriate to average those sums to $140,000 and reduce that figure by 40% to allow for contingencies including the strong contingency that the plaintiff might have suffered further injury to his back in any event or might have suffered from incapacitating degenerative condition during the period even without the subject injury whilst in the defendant's employ. The reduction for contingencies also includes the possibility that the plaintiff will at some time find some form of remunerative activity. This yields a final sum for future loss of earning capacity of $84,000.

37. On the question of general damages, I accept the evidence of the plaintiff and of his wife that because of his injury he is restricted in his activities around the house such as gardening, weeding and so forth, that he and his wife do not enjoy the social and sexual life that they once did. The level of pain which he experiences from time to time is such that it would require the use of pain-killing medication, if such were available without undesirable side-effects. Again, however, it is difficult to exclude the possibility that even without the injury the plaintiff may well have been overtaken by a painful and debilitating back condition that would have rendered his life less enjoyable. After all, he was ten years ago a relatively young man and he is now well into middle age. He has within limits shown considerable resilience in trying to overcome the incapacity he does have and those limits will, to some extent at least, be removed by the end of this litigation. He will, I am sure, be relieved of the misapprehension that he is unemployable.

38. For pain and suffering and loss of amenities of life past, present and future, I award the sum of $25,000. Out-of-pocket expenses are agreed at $2,923.25. Tax paid on workers compensation received is $10,439. The total is $222,362.25 which should, in my view, because of the many vague aspects of the case be stripped of any pretence at mathematical accuracy and rounded out to $225,000.00. Viewing that figure in a general way as best I can, I think it an appropriate sum to award the plaintiff by way of damages and he will have judgment for that amount together with his costs.