Marco Krznaric v Taara Formwork Pty Limited; Pdc Constructions (ACT) Pty Limited [1986] ACTSC 68 (18 July 1986)

SUPREME COURT OF THE ACT

MARCO KRZNARIC v. TAARA FORMWORK PTY. LIMITED; PDC CONSTRUCTIONS (A.C.T.) PTY.
LIMITED
S.C. No. 1934 of 1982
Negligence - Scaffolding and Lifts - Practice - Damages

COURT

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

CATCHWORDS

Negligence - action for damages by employee against employer and company to whom employer was under contract to carry out formwork on building site.

Scaffolding and Lifts - Regulations under Scaffolding & Lifts Ordinance 1957 - Regulation 94 - whether duty to comply is cast upon person who engages contractor to erect scaffolding or similar structure.

Practice - pleading - need to plead facts which raise duty to comply with regulation.

Damages - injury to back overtaken by cardiac condition and natural degeneration - no question of principle.

Leotta v. Public Transport Commission of NSW (1976) 50 ALJR 666 at p 668

Moloney v. Commissioner for Railways (NSW) (1978) 52 ALJR 292 at 294

Glass McHugh and Douglas, The Liability of Employers 2nd ed. 1979 at p 243

Jacob v. Utah Constructions and Engineering Pty. Ltd. [1966] HCA 67; (1966) 116 CLR 200

Progress & Properties Ltd. v. Craft (1977) 51 ALJR 184

H.C. Buckman and Son Pty. Ltd. v. Flanagan [1974] HCA 30; (1974) 133 CLR 422

Canberra Formwork Pty. Ltd. v. Civil & Civic Ltd. & Anor (1982) 41 ACTR 1

Bertram v. Armstrong & De Mamiel Constructions Pty. Ltd. (1978) 23 ACTR 15

HEARING

CANBERRA
18:7:1986

ORDER

Finding for the plaintiff against the first defendant for $54,000.00. Finding for the second defendant against the plaintiff.

Matter adjourned for further argument as to interest and formal orders.

DECISION

The plaintiff sues for personal injuries sustained on 24 October 1978 whilst working for the first defendant as a labourer on the site of the Australian National Gallery then in the course of construction. The writ was issued on 2 December 1982. A certificate of readiness was filed on 4 October 1985. There were third party and contribution proceedings between the defendants which are to be dismissed by consent. It will be necessary to refer in some detail to the pleadings in the plaintiff's action but it may shortly be stated that the plaintiff sues both defendants in negligence, for breach of statutory duty, and for breach of the duty owed by an occupier to an invitee. The last cause of action may be disposed of by saying that I am not satisfied that either defendant was an occupier of the premises in question, and indeed it was not argued on the plaintiff's behalf that the evidence was capable of supporting such a conclusion.

2. The plaintiff's injury occurred when he was walking on two timber planks which spanned a distance between two concrete slabs on one of the upper floors. The exact cause of the plaintiff's fall, the responsibility of each of the defendants for that fall, the nature of the fall and its aftermath are all matters strongly in dispute.

3. The essential facts relating to the fall are within a relatively short compass. Unfortunately the evidence was extraordinarily difficult to follow. The plaintiff gave his evidence through an interpreter in the Croatian language. The interpreter's English was not always easy to understand. Those witnesses as to the facts who spoke English did not have a good command of the language. Admittedly influenced by a reading of the statement of claim, I quite misunderstood an important part of the plaintiff's evidence-in-chief and it was not until the addresses of counsel that I was even aware of the possibility of misunderstanding. Having heard the submissions and read the transcript very carefully, I am now convinced that I mistakenly took the plaintiff's evidence to be that he fell from the planks to the floor below.

4. I do not intend to set out the evidence of the witnesses in detail nor to try to reconcile the various conflicts and inconsistencies, many of which I believe were caused by misunderstanding or difficulty in expression. The most convincing witness was the plaintiff's workmate, Mr. Svetislav Pantic. On the whole I think that the evidence of Mr. Pantic and of another of his workmates, Mr. Paul Pavic, is reasonably consistent with that of the plaintiff. Evidence was given on behalf of the defendant by a foreman, Mr. Elmar Rand, but I formed the view that Mr. Rand's memory of the events in question was not as accurate as that of Mr. Pantic. Some of his evidence was quite unacceptable. I refer in particular to Mr. Rand's evidence that Mr. Pantic preceded the plaintiff on to the planks. I refer also to his evidence that the plaintiff did not fall at all, but simply "slid" against a handrail and kept walking. In the circumstances this amounted to a denial that the plaintiff was injured at all, and I reject it.

5. The facts as to the injury which I find established on the balance of probabilities are as follows.

6. The plaintiff was engaged as a labourer to work with carpenters in the erection of formwork at the Australian National Gallery building site. He was employed by the first defendant. The first defendant was the formwork sub-contractor to the second defendant. The second defendant, as was admitted on the pleadings, was the head contractor for the construction of the building. On the day of injury, the plaintiff was assisting a carpenter, Mr. Pantic, to take formwork materials to a particular place on site. For the purpose of gaining access to that place, the first defendant had caused to be provided and laid down two timber planks which were sufficiently long to span a distance of some two to three metres over what, for want of a better term, might be called a gap between two concrete slabs. For a person proceeding in the direction of where the formwork was being erected, the planks led from the surface of one concrete slab across the gap to where they rested on steel bars which projected out from the other concrete floor or slab. The planks sat firmly on the concrete but did not sit firmly on the steel bars, which were slightly curved. The planks had been in use by the employees of the first defendant, including the plaintiff, for at least a day or two prior to the plaintiff's injury. Following complaints by or on behalf of the employees, the first defendant had arranged for a handrail to be erected on one side of the planks. That side was the righthand side for somebody going in the direction of the place where the formwork was being erected. The planks were not secured or fixed to the concrete floor nor to the steel bars nor to each other. There is no evidence as to how the handrail was secured. On the lefthand side of the planks there was no handrail as such, but at a height of about one metre a horizontal bar or pipe projected about two feet out along or beside the planks. It was supported at least in part by a vertical bar or pipe fixed at such a position that about 150 centimetres of the horizontal bar projected out along or beside the plank beyond the vertical bar or pipe. As to the exact purpose or nature of this horizontal bar or pipe there was no evidence: but it was there. Immediately before his injury the plaintiff was assisting Mr. Pantic to carry a timber beam to the place where the formwork was being erected. The exact weight of the beam is unknown but it was several metres in length and both Mr. Pantic and the plaintiff described it as heavy. None of the witnesses had known of such a heavy object being transported across the planks in question on a previous occasion. As the plaintiff moved on to the planks with one end of the beam on his shoulder (and Mr. Pantic behind him at the other end of the beam), the plank on the lefthand side began to sag or vibrate. The cause of the sagging was substantially the weight on the plank. I reject the suggestion that the plaintiff lost his balance because the beam struck a wall in front of him. The sagging or vibrating of the plank, or both, caused the plaintiff to lose his balance. The plank may have tilted to the side before or after that moment but I do not think that that matters. The plaintiff fell, twisting to some extent, so that he struck his left side in the region of the ribs on the projecting horizontal pipe on the lefthand side of the planks. The plaintiff lost control of the beam to some extent, taking the weight of it across his chest. At about the same time the foreman, Mr. Rand, moved in quickly to assist to take the weight of the beam and to prevent the plaintiff falling further. Mr. Pantic who was further back on the concrete surface retained control of the beam for his part. The plaintiff was then assisted to sit on the concrete floor and rested for a short time before going home at the end of what was in any event the usual time for ceasing work.

7. I proceed now to relate the facts as found to the pleadings and to the issues as they otherwise unfolded during the hearing.

8. Paragraph 3 of the amended claim alleges in effect that the first defendant was under the common law duty to take reasonable care for the safety of its employees. Paragraphs 4 and 5 plead as against the first defendant some of the facts as I have found them.

9. Paragraph 6 of the amended statement of claim was in the following terms:

"6. Whilst the plaintiff was walking across the

said timber planks one of them moved,
twisted sideways and caused the plaintiff
to lose his balance and to fall from the
planks causing the plaintiff personal
injury."

10. My original misunderstanding of the plaintiff's evidence was that I took him to be saying what was alleged in the statement of claim, namely that he fell from the planks, and on to the floor below. Indeed a good deal of time and attention in the case was directed towards trying to determine the distance from the planks to the floor below, if it was a floor. However, as I have indicated, my finding of fact is not that the plaintiff fell from the planks but that he fell whilst walking on the planks on to or against the projecting pipe on the lefthand side. There was no application to amend the statement of claim at the end of the evidence, and a tentative suggestion on my part that the statement of claim might be amended was rejected. Despite the lack of amendment I think that it is proper to decide the case on the facts as I have found them. It is, however, desirable to draw attention to the difference between what is alleged in the statement of claim and what findings the plaintiff is entitled to rely upon in case my decision has to be considered by an appellate court: see Leotta v. Public Transport Commission of New South Wales (1976) 50 ALJR 666 at p 668 and Moloney v. Commissioner for Railways (NSW) (1978) 52 ALJR 292 at p 294.

11. The basis of the statutory duty allegedly owed by each defendant is set out in paragraph 8 of the amended statement of claim and is in the following terms:

8. The plaintiff further alleges that there
was in force at all material times Regulation 94
of the Scaffolding and Lifts Regulations of the
State of New South Wales as they apply to the
Australian Capital Territory. The Regulation
provides as follows:

"Runs and Ramps.

94. All runs, ramps, gangways and similar
structures used as a means of communication in
building work shall be of sound material, good
construction, adequate strength, free from patent
defects and be safe for the purposes for which
they are intended.

They shall be constructed of timber planks not
less than ten inches by two inches (10" x 2")
sectional dimensions and shall be not less than
two feet six inches (2' 6") wide. When the planks
overlap, the plank that runs below shall be placed
so that it laps over the one running from above.
Such planks shall be positively fixed in position.

The supports for the planks shall be of adequate
strength and shall be effectively braced.

The construction of runs, ramps and gangways at an
incline greater than one foot (1') rise in three
feet (3') is prohibited.

The planks of runs, ramps and gangways shall be
cleated or otherwise fastened together to prevent
unequal sagging. Where runs, ramps and gangways
are more than eight feet (8') in height the outside
edges at least shall be provided with guard
rails and toe boards."

12. Paragraph 9 alleges that the first defendant was in breach of the terms of the regulation in that it failed to provide a ramp or run in accordance with the specific provisions of the regulation. Paragraph 11 alleges that the second defendant was the head contractor to the Commonwealth of Australia for the construction of the Australian National Gallery and paragraph 12 alleges that the second defendant "constructed the run or ramp referred to in paragraph 5". Paragraph 13 alleges as against the second defendant a common law duty of care. Paragraph 14 alleges that "in breach of that duty" (presumably the duty of the second defendant) "the run or ramp was not of sound construction in that the timbers were not fixed at either end and were springy as a consequence of which one of the timbers twisted sideways when the plaintiff walked upon it causing the plaintiff to fall".

13. Paragraphs 15 and 16 allege as against the second defendant a duty and a failure, respectively, to comply with the regulation by constructing a run or ramp in accordance with its terms.

14. In its defence, the first defendant denied that the regulation "in its terms" applied to the first defendant, denied that on the facts of the case the regulation applied and denied further that there was any breach of the regulation by the first defendant.

15. The defence of the second defendant admitted that the second defendant was the head contractor to the Commonwealth as alleged, denied that the second defendant constructed the run or ramp referred to, denied that the regulation cast any duty on the second defendant, denied that the regulation applied on the facts of the case and denied breach of the regulation.

16. Apart from what was alleged in paragraph 12 of the amended statement of claim (namely that the second defendant constructed the run or ramp) there was nothing in the amended statement of claim to lay a basis of fact which cast on either defendant a duty to comply with the regulation. Accordingly neither defendant was obliged to deny any particular fact upon which the plaintiff might seek to rely to establish that the duty to comply with the regulation was cast upon it. Much time was spent at the end of the hearing on submissions on behalf of the parties as to whether either of the defendants was carrying out "building work" within the meaning of the Scaffolding and Lifts Regulations and to the consequences which might flow if the second defendant had arranged for part of the building work to be carried out by sub-contractors rather than by employees.

17. It is unfortunate that the pleadings did not precisely define the issues which the Court has to try. As the learned authors of Glass McHugh and Douglas point out, The Liability of Employers 2nd ed. 1979 at p 243, it is necessary to plead all the facts necessary to establish that the plaintiff is entitled to rely on the particular statutory provision. The specimen statement of claim set out on p 249 of the text provides an example of how such matters may be properly pleaded. If the case had been properly pleaded much of the argument about "building work" could have been avoided.

18. Regulation 94, upon which the plaintiff relies, is contained within Part VI of the Scaffolding and Lifts Regulations. Part VI bears the heading "The Proper Design, Construction, Erection and Use of Scaffolding". Regulation 94 and Part VI are to be contrasted with Regulation 73 and Part V of the Regulations. Part V is concerned with "Safeguards and Measures to be Taken for Securing the Safety and Health of Persons Engaged in Building Work". Regulation 73 by its terms casts a duty upon any person who directly or by his servants or agents carries out any building work to take certain measures to minimise accident risks and to prevent injury to the health of persons engaged in such building work. Since Jacob v. Utah Constructions and Engineering Pty. Ltd. [1966] HCA 67; (1966) 116 CLR 200 it has been held on many occasions that a breach of one of the sub-regulations of Regulation 73 by a person carrying out building work will give rise to a cause of action on the part of a person engaged in that building work who suffers damage as a result of the breach. But Regulation 73 is not in issue in the present case.

19. Regulation 94 (in contrast with Regulation 73) is couched in negative and passive terms. It does not identify the persons who are obliged to comply with it. In order to identify the persons upon whom the duty to comply with Regulation 94 are defined one has to go to Regulation 6(1), which is in the following terms:

"6(1) Where the obligation to observe any of the
provisions of these Regulations is not by
these Regulations specifically imposed on
any person it shall be the obligation of
every person who directly or by his
servants or agents -

(a) carries out any building work,
excavation work or compressed air
work; or

(b) designs, constructs, erects, sets up
or builds, or sets or places in
position, works, uses, tests or
maintains any crane, lift, hoist,
scaffolding, plant or gear, or roof
sheathed or intended to be sheathed
with asbestos cement or other brittle
material,

to comply with the provisions of these
Regulations in regard thereto."

20. I know of no direct authority on the point as to whether a breach of Regulation 94 confers a private right of action. In Progress & Properties Ltd. v. Craft (1977) 51 ALJR 184 the High Court accepted that breach of Regulation 139(7) affords a private right of action. That regulation is concerned with the safety of persons on a site where a hoist is in use (per Jacobs J. at p 191). In my view the overall and obvious intention of Part VI of the regulations being directed at the safety of scaffolding, I think that a breach of Regulation 94 by a person who is by reason of Regulation 6(1) bound to comply with that regulation gives rise to a right of action by another person who suffers damage by the breach and who is a member of a class of persons whose safety is intended to be secured by the proscription of the dangerous conduct referred to in the regulation. I pass no opinion upon whether, say, a trespasser or sightseer might be entitled to sue for such a breach of the regulation but, in my view, a person like the plaintiff employed to work as a labourer on a building site and employed to use the scaffolding or structure in question has a right of action against a person who is obliged to comply with the provisions of Regulation 94, if damage is sustained as a result of that breach.

21. Were either of the defendants bound to comply with Regulation 94? In H.C. Buckman and Son Pty. Ltd. v. Flanagan [1974] HCA 30; (1974) 133 CLR 422, the High Court held by a majority that Regulation 73 of the regulations does not cast a duty upon a person who carries out building work only by means of the engaging of an independent sub-contractor. I do not find it easy to appreciate how a corporate "head contractor" such as the second defendant can discharge its duties under the head building contract solely through independent contractors and without the intervention of servants or persons for whose acts the corporation is responsible. Nevertheless, the decision is binding if it applies on the facts. It was applied in Canberra Formwork Pty. Ltd. v. Civil & Civic Ltd. and Anor (1982) 41 ACTR 1 and distinguished on the facts in Bertram v. Armstrong & De Mamiel Constructions Pty. Ltd. (1978) 23 ACTR 15. Both those decisions were concerned with Regulation 73. I am unable to see why I am not bound to apply the same principle to Regulation 94. In other words, it is not open to the plaintiff to prove a breach by either defendant unless it can be shown that that defendant, by servants or by persons whose acts are in law the acts of the defendant, carried out the building work, or designed, constructed or was otherwise responsible in one of the ways designated in Regulation 6(1)(b) for the scaffolding or structure in question. There is no evidence in the present case implicating the second defendant in this necessary way. The second defendant's role in what happened has not been shown to go beyond what was admitted on the pleadings, namely that it was the "head contractor" to the Commonwealth and some uncontested evidence that it engaged the first defendant, as subcontractor, to carry out the formwork. The plaintiff's claim against the second defendant for breach of statutory duty fails. On the other hand, I have no difficulty in finding that the first defendant through its employees was both carrying out building work and was responsible for the construction, erection and use of the planks which comprised the scaffolding or structure in question. There was no argument on behalf of the first defendant that the planks were not "scaffolding" within Regulation 6(1), or not the type of "structure" contemplated by Regulation 94.

22. Was there a breach of Regulation 94? My findings on the facts establish that the structure was not of sound construction, as alleged in paragraph 14 of the amended statement of claim. Curiously that paragraph is directed against the second defendant only. Nevertheless, the failure to fix the planks at either end and ensure that the planks did not sag or vibrate in such a way as to give rise to the risk of the sort of injury that the plaintiff in fact sustained amounts, in my view, to a failure on the part of the first defendant to ensure that the structure was of sound material and of good construction within the first paragraph of Regulation 94. The plaintiff's claim should not fail simply because of the omission to allege the breach relied upon was committed by the first (as well as the second) defendant.

23. I feel that I should say that I had considerable doubt as to whether Regulation 94 applied at all in the circumstances of the present case because, reading the regulation as a whole, it appeared to me possibly to be directed to securing the safety of sloping surfaces used as a means of communication in building work and leading from one position to another higher or lower position. Nevertheless, as I say, this precise point, although raised on the pleadings, was not taken in argument, and the word "ramp" was used by Mr. Pantic in relation to the planks in question without any objection being raised. I therefore find for the plaintiff on the claim under Regulation 94 against the first defendant.

24. I turn to the claims in negligence. There is nothing in the evidence, in my view, to sufficiently connect the second defendant with the plaintiff's injury and the plaintiff fails in this respect against the second defendant. As against the first defendant breach of the regulation is itself evidence of negligence. Further, I accept Mr. Pantic's evidence that complaints had been made in relation to the particular planks in question and that in response a guard rail had been erected on the righthand side. The defendant was aware of the danger of an employee falling whilst walking on the planks and should have been aware, in my view, of the particular danger associated with an employee trying to move a heavy object across the planks with the attended likelihood that the added weight would cause the planks or one of them to sag or vibrate. In my view, the plaintiff has made out a case in negligence on the balance of probabilities against the first defendant.

25. Contributory negligence was pleaded by the first defendant but not argued. In all the circumstances I am not convinced that the defendant has discharged the onus of showing that the plaintiff knew or should have known that the plank was likely to sag or vibrate and should have accordingly taken some step to avoid the danger of falling. It was not suggested on the defendant's behalf what alternative step the plaintiff should have taken and it is not for me to speculate. I find for the plaintiff on the issue of contributory negligence.

26. I turn now to the question of damages.

27. The plaintiff was born on 18 April 1938 in Yugoslavia and after leaving school at the age of eleven years carried out unskilled work and performed military service. He came to Australia in 1966 working as a labourer in the areas of the Australian Capital Territory and southern New South Wales until he joined the employ of the defendant in the middle of 1978. The plaintiff is unmarried and lives alone in bed-sitter type accommodation. He says that he reads and writes in his native language, Croatian. On the occasions when he saw the doctors who gave evidence in the case he had the services of an interpreter, except when he saw Dr. Niewiadomski, with whom he conversed in Polish. Difficulty in communication has undoubtedly been a problem with the doctors as it was during the hearing of the case. Furthermore, there have been many occasions on which the plaintiff has seen doctors and received treatment in hospitals when he has not had the assistance of an interpreter. Some of the documents relating to that treatment form part of the substantial amount of material before me. The plaintiff often seemed confused during his evidence, particularly when under extensive cross-examination, but I see no reason why he should not be accepted as a person trying to tell the truth, given the limitations to which I have just referred.

28. I find that the injury which the plaintiff sustained was caused by his falling against the protruding pipe to which I have already referred. This caused injury in the area of his left ribs which was obvious on external examination. In fact the plaintiff showed the injury to his workmates the following day. Also on the following day when he found that he was unable to continue working he visited the Royal Canberra Hospital. X-rays taken there disclosed, according to the hospital report, a fracture of the left eighth rib. One of the doctors who saw the plaintiff at an early stage, Dr Pinner, had some doubt about whether the x-rays did in fact disclose a fracture. However, I am satisfied that there was substantial injury in the area of the plaintiff's left ribs. The plaintiff, according to the records, was seen again at the Royal Canberra Hospital on 30 October 1978 when no change was noted. He saw his local doctor, Dr Niewiadomski, on 1 November 1978. Dr Niewiadomski had no note of the plaintiff complaining of pain in the back, but I am convinced that there was again a communication problem between Dr Niewiadomski and the plaintiff. For instance, Dr Niewiadomski, who gave evidence, said that the plaintiff told him that he had spent three days in Royal Canberra Hospital and had worked for three days after the injury. All this is quite contrary to the rest of the evidence and there is no reason, as I see it, why the plaintiff should have misled Dr Niewiadomski on those particular matters. Accordingly, I do not think that the absence of complaint of pain in the back to Dr Niewiadomski or apparently to those at the Royal Canberra Hospital is of any particular significance in view of the communication difficulties to which I have referred. Further, it is not unlikely that the plaintiff was primarily concerned with the site of direct injury to the ribs.

29. The plaintiff was referred by Dr Niewiadomski, on what particular date I am not aware, to Dr Newcombe, a neurosurgeon. Dr Newcombe saw the plaintiff for the first time on 18 January 1979. Bearing in mind the intervening Christmas and New Year period I do not consider that there was any delay on the part of the plaintiff which requires explanation. The plaintiff's complaint then was of "left chest wall pain and also mid dorsal spinal pain towards the left side". On examination there was pain on rotation of the thoracic spine and x-rays taken on 1 December 1978 (presumably at the instance of Dr Niewiadomski) showed thoracic disc degeneration with some calcification in the mid thoracic area.

30. The plaintiff's evidence was that he experienced pain in the upper back from the time of the injury onwards, as well as pain in the immediate area of the chest injury. I accept that evidence. I also accept Dr Newcombe's initial diagnosis that the injury was responsible for the pain in a degenerating back which was previously entirely asymptomatic.

31. After physiotherapy and analgesics Dr Newcombe noted that by 21 March 1979 the plaintiff appeared to have improved considerably, but Dr Newcombe's provisional opinion at that stage was that the plaintiff was not fit to return to heavy work. It is notable that Dr Newcombe's attention was directed towards the spine rather than to the immediate area of injury on the chest. Dr McGonigal, who saw the plaintiff on behalf of the defendant on 14 June 1979, formed the view that the plaintiff was suffering from a contusion of the left chest wall and that any long-term impairment was to be regarded as due to his obesity and thoracic spondylosis. Dr McGonigal did not give evidence and, in my view, the opinion expressed is consistent with the view that at the time of consultation there was a persisting aggravation of the spondylotic condition in the thoracic spine. Dr McGonigal's report also carries the implication that the plaintiff was still unfit for work, at least partially. The reference to obesity, however, assumes some significance because in July 1979 the plaintiff was complaining to other doctors of pains in the chest. Eventually a diagnosis of myocardial infarct was made and the plaintiff was admitted to the Royal Canberra Hospital on 23 July 1979 for treatment for a cardiac condition. He was discharged on medication on 7 August 1979 with a recommendation, according to the hospital records, that he was fit to return to work. None of the doctors who have treated the plaintiff over a considerable period of time for his cardiac problems were called to give evidence and again I have to do the best I can on documentary material. It was suggested in a report by Dr Nogrady that the plaintiff was fit to return to work by 18 September 1979, but in my view that expression of opinion relates only to the cardiac condition and it takes into consideration nothing in relation to the plaintiff's spinal condition.

32. The plaintiff saw Dr Newcombe on 8 January 1980 when he was still complaining of pain in the lumbar and dorsal areas of the spine. At this stage Dr Newcombe was appraised of the cardiac problem and the treatment that the plaintiff had received for it. The plaintiff at that stage was complaining of pain in the chest when walking some three or four hundred metres. Dr Newcombe's view then was that the plaintiff was unfit for work by reason of the combination of the thoracic disc degeneration aggravated and induced by his fall at work together with what he considered to be a relatively minor cardiac problem. Dr Newcombe felt that without the cardiac situation the plaintiff would have been fit to do light work.

33. In my view, Dr Newcombe did not appreciate the seriousness of the cardiac problem at that stage for the plaintiff was re-admitted to the Royal Canberra Hospital on 15 February 1980 for observation as to his cardiac condition. The records indicate that consideration was given at that stage to a coronary bypass operation, but the decision was deferred. He was discharged on 6 March. By 10 March it was noted that although the plaintiff could walk up to half a mile without pain in the chest surgery was still regarded as a possibility.

34. Dr McGonigal examined the plaintiff for the defendant again on 23 April 1980 and reported that his opinion remained unchanged. However Dr McGonigal had very little knowledge of the situation regarding the plaintiff's cardiac problems and refers only cursorily to investigation in hospital "apparently for abdominal and circulatory symptoms".

35. The plaintiff remained under observation for his heart condition. It appears to have deteriorated. On 8 July 1980 it was recorded that there were angina symptoms after walking one hundred metres. On 14 January 1981 a decision was made to recommend a bypass operation. The operation took place at the Royal Prince Alfred Hospital on 2 February 1981. The operation was a successful one and the plaintiff appears to have recovered well. Nevertheless, the plaintiff continued to complain of pain in the back. Dr Newcombe referred him to the pain clinic at Woden Valley Hospital where he was seen by Dr Lithgow on 9 July 1981. Efforts were made to relieve the pain by transcutaneous nerve stimulation, but this had no apparent affect after two weeks and the plaintiff was referred back to Dr Newcombe. Dr Newcombe performed a myelogram on about 28 July 1981 but nothing abnormal was revealed.

36. During the year 1982 the records show that the plaintiff had a variety of complaints. He continued to complain of chest pain but doubts were expressed as to whether this was due to the heart condition or as to whether it was post-operative in origin. The plaintiff was noted as attending physiotherapy for the chest pain. In September 1982 the plaintiff was admitted to the Woden Valley Hospital for treatment for haemorrhoids. On 29 November 1982 he was admitted to the same hospital for an operation in relation to varicose veins. On Christmas eve of the same year he received treatment at the Royal Canberra Hospital for injuries sustained in an assault, although these do not appear to have been serious.

37. In the year 1983 the plaintiff was kept under review for his cardiac problem. There were complaints of chest pain which were regarded as angina symptoms when seen by Dr Peak on 3 November 1983. The plaintiff also returned to Dr Lithgow towards the end of 1983 for pain which was observed on examination to be localised over the length of the thoracic spine. Cortisone injections were administered without relief. The plaintiff, however, was prescribed tablets to assist him in sleeping and this continued until April 1984 when the plaintiff was referred for further physiotherapy at the Woden Valley Hospital.

38. The plaintiff was referred to Dr Corry, a rehabilitation specialist, by his solicitor for medico/legal purposes. The plaintiff's complaints at that stage on 25 November 1983, which accord with the plaintiff's evidence to the Court, were that he had back pain which came and went, becoming acute with certain movements and in cold weather and which made it difficult for him to sleep. Any bending or lifting caused an aching in the chest but by and large the chest symptoms had settled. It is significant, however, that the plaintiff's complaint then was of pain which was "like a heavy weight in the lower back" and that movements of the lumbar spine were markedly restricted. Dr Corry's opinion, in my view, accurately summarises the situation at that stage as follows:

"It would appear that he sustained some form of
injury to his mid dorsal region in the accident
described. Following this he developed ischaemic
heart disease unrelated to the fall. Presumably
the combined effects of these two disabilities led
to him being granted an invalid pension. He has
had extensive rehabilitation at the Woden Valley
Rehabilitation Unit without significant benefit.
It would now appear that he suffers chronic
invalidity and chronic pain and is very limited in
his activities. He has limited education and
intelligence and lack of skills in the work area
do not make him a suitable candidate for sedentary
employment. It is possible that if a work
adjustment centre were available he could be
assisted into unskilled process work, but neither
the adjustment nor process work are available in
the region. I think that the prognosis is poor
and that he will require to remain on the invalid
pension indefinitely."

39. There was no change from that situation through 1984 except that it is possible that the plaintiff started to develop aggravated symptoms in the lower back as contrasted with the thoracic region. Evidence of this is very meagre but what is clear is that by the beginning of March 1985 the plaintiff, who had been seeing a Dr Jamieson of Dickson, was once again referred to Dr Newcombe, this time complaining of low back pain said to have started about three months previously and which was radiating over the left buttock and down the leg. A CT scan showed a large disc protrusion at the L5/S1 level and Dr Newcombe excised the disc and performed a laminectomy at the Royal Canberra Hospital on 29 April 1985. According to Dr Newcombe the operation was a successful one and there are no continuing problems in the lumbar area, although the plaintiff, as at 2 April 1986, continued to have pain "as expected" in the thoracic area due to disc degeneration aggravated by the injury of 1978.

40. Dr Geoffrey Stubbs, an orthopaedic specialist, examined the plaintiff on reference from his solicitors on 29 May 1985 and although Dr Stubbs saw the plaintiff only once, his report is a helpful one. It is curious that the plaintiff complained to Dr Stubbs that his low back pain commenced in 1982, although Dr Stubbs accepted that as being accurate for the purposes of his report, I do not think that it makes any difference to his ultimate opinions. The history given to Dr Newcombe, of course, which I find likely to be the more accurate, was that low back pain did not commence until the beginning of 1985. Dr Stubbs had the opportunity to review the CT scan of February 1985 and x-rays of 22 January 1985. Dr Stubbs' conclusion with which I would agree, is as follows:

"Whilst there is no doubt that he is now
completely disabled and unable to do any work at
all, there are two extraneous reasons that could
account for all of this. Firstly that he has had
open heart surgery and secondly that he has
developed spinal stenosis. On looking at his
plain x-rays and his CT scan it is clear that he
has had a degenerative condition in the spine for
many years and that even seven years ago in 1978
that degenerative condition would have been fairly
advanced. Nevertheless, in October 1978 he
suffered an accident which produced mid-thoracic
back pain which has persisted ever since. I
believe this is probably because of the rotary
movement placed on the thoracic spine and causing
an injury in the mid-thoracic region where the
degenerative process was fairly advanced and where
the joints would have become stiff and immobile.

Mr. Krznaric says that he has never recovered from
this and has been unable to work since this
episode.

His degenerative condition has however continued
and resulted in spinal stenosis, requiring
surgery. This latter would seem to be a normal
progression of degenerative condition of his spine
as he had no low back pain at the time of his
accident . . ."

41. Dr Chandran, another neurosurgeon, also saw the plaintiff on behalf of the defendant. Dr Chandran gave evidence. His view was that the plaintiff is fit for light duties and was so fit when he first saw the plaintiff on 25 June 1984. I feel, however, that Dr Chandran has given insufficient attention to the cardiac condition which, of course, lies outside the field of his speciality. However I would otherwise agree with his conclusion that disability from aggravation of the spinal condition in 1978 was by mid 1984 minimal by which time the underlying degeneration was responsible for the incapacity.

42. A report was tendered from Dr Brian Andrea, who also gave evidence, but insofar as Dr Andrea rejects any suggestion that the plaintiff's symptoms in the thoracic region were in any way attributable to his injury, I reject that opinion.

43. I summarise my findings on the medical issues in the case as follows:

1. As a result of the injury on 24 October
1978 the plaintiff suffered bruising of the
chest wall and possibly a fracture of the
eighth left rib, the effects of which were
still felt as at May 1979.

2. As a result of the injury the plaintiff
also suffered an aggravation of a pre-existing
degenerative condition in the
thoracic spine which gave rise to
symptoms. As a result of the two injuries
the plaintiff was totally unfit for work
until 21 March 1978 and fit for light
duties only from then until about July
1979. He was, however, unable to find
suitable light work during that period and
should be regarded as almost totally
incapacitated for the purpose of loss of
earnings.

3. At the time of injury or within several
months after it the plaintiff suffered from
a cardiac condition which gave rise to
chest pain by about July 1979. The injury
neither caused nor contributed to that
cardiac condition. It is possible that in
the latter stages the plaintiff mistook
chest pain as being related to the injury
when in fact it was related to the cardiac
condition.

4. From July 1979 to about July 1982 the
plaintiff was totally unfit for work by
reason of a combination of his cardiac
condition, unrelated to the injury, and
symptoms in the thoracic spine which were
related to the injury. I am of the view
that the cardiac condition overwhelmed the
effect of the injury from about February
1980 to about February 1981 at least as far
as fitness for work was concerned. I think
that the plaintiff ought to be awarded
about two-thirds of his wage loss for the
total period. As far as damages for pain
and suffering are concerned, I am of the
view that the plaintiff is entitled to
compensation for his symptoms during the
total period.

5. From about July 1982 to date the plaintiff
has been totally unfit for work because of
a combination of the cardiac condition,
unrelated to injury, and of his general
spinal condition. The spinal condition has
increasingly given rise to symptoms in the
lower back to which the injury did not
contribute. Although the symptoms in the
lower back were relieved by surgery in
March 1985, the plaintiff's spinal
condition generally, including the
condition in the thoracic spine are due to
degenerative causes and any such symptoms,
in my view, ceased to be attributable to
the injury by about mid 1984. I would award
the plaintiff about one-third of his wage
loss during this period.

44. From the above findings I conclude that for the purposes of loss of earning capacity the plaintiff is entitled to his loss of wages from the time of the accident until July 1979. Agreed figures put before me as to wage rates enable me to assess that loss at about $5,600. For the period July 1979 until July 1982 I would award $20,000 and from July 1982 to July 1984 $8,000. Since then the plaintiff's disabling symptoms are not attributable to injury. I would award damages for loss of earning capacity at $33,600. For the purposes of damages for pain and suffering and loss of amenities of life the plaintiff is entitled to be compensated on the basis that all his spinal symptoms were attributable to injury up until July 1982, and that his symptoms in the thoracic region only were attributable to injury from July 1982 until the beginning of 1985, by which time I regard the condition as having been wholly overtaken by degeneration which would have ensued in any event. I award general damages of $20,000. Medical and hospital expenses are agreed at $309.50.

45. Total damages are rounded out to $54,000. The statement of claim was amended to include a claim for interest. I have not been informed of any payments made in relation to worker's compensation and will refrain from assessing interest until I am so informed. Interest is, however, to be awarded on the whole of the sum for pain and suffering and loss of enjoyment of life. The parties may be able to agree on interest in the light of my findings. I shall also hear the parties on costs, and make formal orders later.