Wayne Edward David Blanchfield v Commonwealth of Australia [1988] ACTSC 59 (20 October 1988)

SUPREME COURT OF THE ACT

WAYNE EDWARD DAVID BLANCHFIELD v. COMMONWEALTH OF AUSTRALIA
S.C. No. 29 of 1986
Industrial Accident

COURT

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

CATCHWORDS

Industrial Accident - Damages - Negligence - Breach of contract of employment - Contributory negligence - Whether travelling allowance part of damages.

The Council of the Shire of Wyong v. Shirt & Others [1980] HCA 12; (1980) 146 CLR 40

The Insurance Commissioner v. Joyce [1948] HCA 17; (1948) 77 CLR 39

Cleaning Contractors Ld v. Christmas (1953) AC 180

Sungravure Pty Ltd v. Meani [1964] HCA 16; (1964) 110 CLR 24

Commissioner of Railways v. Ruprecht [1979] HCA 37; (1979) 142 CLR 563

HEARING

CANBERRA
20:10:1988

ORDER

FINDINGS:

If the plaintiff had not been at fault the total damages recoverable by him would have been $148,322.65.

The plaintiff's share of responsibility for his damage is assessed at 15%.
THE COURT ORDERS THAT:

There be judgment for the plaintiff for $126,074.25.

The defendant pay the plaintiff's costs of and incidental to the action, those costs to be taxed.

DECISION

This is a claim for damages for breach of contract and for negligence brought by the plaintiff against his employer, the defendant. Details of the negligence and breach of contract alleged appear sufficiently from paragraphs 3 and 4 of his statement of claim. So far as is relevant, they read:-

"3. On or about the 26th day of April, 1983
the plaintiff in the course of his employment
was engaged in assisting his fellow employees
to clean debris from the foreshores of Lake
Burley Griffin. He was asked to remove a
pitchfork ("the fork") from the bottom of the
back of a truck on the site. The fork was
covered with wet debris which had been placed
in the back of the truck. He stood on the
said tray of the truck and pulled the fork.
Whilst so engaged the fork suddenly came free
and he slipped on the tray and fell to the
ground, whereby he was injured and suffered
loss and damage.
. . .
4. The injuries, loss and damage suffered by
the plaintiff were caused by the negligence
and/or breach of duty and/or breach of . . .
contract on the part of the defendant, its
servants or agents.
PARTICULARS
(a) Failing to take any or any adequate
precautions for the safety of the
plaintiff whilst he was engaged in the
said work.
(b) Exposing the plaintiff to a risk of
damage or injury of which it knew or
ought to have known.
(c) Failing to provide and maintain safe and
adequate plant for the plaintiff to work
with.
(d) Failing to take reasonable care to
ensure that the places which the
plaintiff carried out his said work were
safe.
(e) Failing to provide any or any adequate
supervision of the work on the site.
(f) Failing to provide and maintain a safe
and proper system of work.
(g) Employing an unsafe system of work.
(h) Failing to employ an alternative method
of storing the fork on the said truck.
(i) Causing or permitting the fork to be
stored in the bottom of the back of the
said truck when it knew or ought to have
known that wet debris would be placed on
top of the fork.
(j) Causing or permitting the plaintiff to
attempt to remove the fork from the back
of the said truck when it knew or ought
to have known that wet debris had been
placed on the top of the fork.
(k) Failing to make proper provision in the
said truck for the storage of the fork
so that it could be removed from the
truck in safety.
(l) Failing to make provision for a ladder
on the said truck so that items could be
removed from the truck in safety."

2. By its defence the defendant admitted employment, that on 26 April 1983 the plaintiff was engaged in his employment with the defendant on the foreshores of Lake Burley Griffin, that it was one of his duties to assist his fellow employees to clean debris from the foreshores and that there was a truck on the site of the alleged accident. It traversed the remaining allegations in paragraph 3 of the statement of claim, denied that the plaintiff's injuries, loss and damage were caused by its negligence or breach of contract and claimed that any loss, damage or injury sustained by the plaintiff was caused by or contributed to his negligence. The following particulars of the plaintiff's alleged contributory negligence were given:-

"(a) failing to keep a proper lookout;
(b) failing to clear, or sufficiently clear
the debris or other matter from the
pitchfork before attempting to remove it
from the back of the truck;
(c) climbing onto the truck to obtain the
pitchfork when it was not necessary to
do so;
(d) failing to maintain a hold on the truck
whilst attempting to remove the
pitchfork;
(e) attempting to remove the pitchfork in an
over-vigorous manner in all the
circumstances;
(f) failing to seek assistance to remove the
pitchfork after the plaintiff knew or
should have known that the pitchfork
could not be easily removed."

3. The plaintiff was born on 26 August 1954, is married and has four children. On the morning of 26 April 1983 he was working as a member of the Lake (Burley Griffin) Maintenance Crew, a unit of the Department then known as the Department of Housing and Construction. He started work at 7.30 a.m., reporting first to the office at the boatharbour at Kingston. His first task that day was to set up a 40ft landing barge so that it might be taken out. That took about 20 minutes. He was then told by his superior, Mr Jimmy Brown, to go to the northern shore of the East Basin of the Lake to help in cleaning its foreshores. He and Mr Brown travelled by boat to the worksite. When they got there the plaintiff went to a Toyota truck which was already there to get a pitchfork so that he might get on with the job of cleaning. The truck was used for the collection of rubbish and debris from the beaches or stone walls around the foreshores of Lake Burley Griffin and Lake Ginninderra. It had a steel body. The sides of the body were approximately 45 centimetres high and were hinged so that they could be lowered outwards and downwards. As appears from the photograph, Exhibit 1, each side of the truck could be locked in position by a securing device at each end. The tailgate of the truck was hinged too but so that it could be lifted from the bottom, upwards and outwards. This design obviously facilitated the removal of loads from the truck by tipping. The sides had flanged tops which provided a flat surface about 4-5cm wide.

4. When the plaintiff got to the truck he noted that it contained debris up to the height of the sideboards. The debris consisted of weeds, sticks, sand which had stuck to the weeds, bottles and things like that. The pitchfork which he went to get was jammed in the debris. It was lying generally along the long axis of the truck with the tines pointing towards the cabin. The pitchfork was at an angle so that the end of the handle was about 2ft above the floor of the body of the truck. The plaintiff could see two or three feet of the handle sticking out from underneath the debris.

5. Standing on the ground on the left hand side of the truck, he reached over the tray and tried to free the pitchfork. He used both hands but could not. Then, using the wheel, he climbed up the side of the truck and stood with his left foot on the flange, which was wet and slippery, and his right foot on the debris about 2 ft from the side. The debris, as could be expected, yielded to the weight of his right leg a little and gave him a somewhat insecure footing for that leg. He described the debris also as being wet and slimy but by contrast, although the flange was wet and slippery, it provided a firm contact for his foot, not something which was likely to slide away or "squash" beneath his foot as debris would.

6. The plaintiff said, and I accept, that when he was standing on the ground he tried for quite a time, he could not say exactly how long, to wrench the pitchfork free. He was unable to reach in to free its tines because the weed in which it was buried twisted around everywhere like seaweed and he said you could not just pull things out like that.

7. When the pitchfork finally gave way the plaintiff slipped and fell to the ground, landing on his feet, twisting and then falling on his buttocks. He left the freed pitchfork in the truck.

8. In cross-examination it was put to the plaintiff that his getting up on the back of the truck in the way he had was obviously at the time a risky venture. He replied,

"I would not say it was a risky venture, it
is a thing that we had to do every day to
retrieve tools and that. You might be doing
that 30 times a day."

He was then asked the following questions and gave the answers recorded:-

"Standing up on the back of the truck the way
you were? --- Yes.
That is standing on the . . . ledge of . . . the
side wall of the truck? --- It is something
that you have to climb up to to retrieve
tools or to level out the debris in the back.
I was asking you about the task you were
performing at the time you slipped. That is
not something you do 30 times a day, is it?
--- No, that is not, retrieve a tool that is
buried like that, no.
Yes. Well, that is what I am asking you
about. Standing in the position you stood
with one foot on the top edge of the tray of
the truck and another foot on the debris, as
you say, and . . . attempting to (free) a fork
that was caught in the debris was a risky
venture, wasn't it? --- I cannot say that it
was risky.
You do not think . . .? --- At the time it just
looked to be a normal procedure to try and
free a wedged tool.
You put one foot on a piece of metal about
1 1/2 to 2 inches thick, didn't you? --- Yes, in
width, yes.
Which was wet? --- That is right.
And slippery; is that so? --- That is
correct.
And you knew that when you put your foot on
it? --- That is right.
And you put another foot, you say, in debris
the substance of which you were unsure of in
terms of its stability? --- That is correct.
And which was wet and slippery? --- That is
correct.
And you attempted to force a fork, the extent
to which it was jammed you had no idea? ---
That is right. I knew that I had to get that
fork out . . . to carry on with my work.
That was a risky thing to do, wasn't it? ---
I would not say that it was risky, no.
You do not consider you took a risk when you
got up there? --- You take a risk every time
you climb up like that on a wet truck.
You do not consider you took a risk that in
trying to (free) it, it might suddenly come
free in your hands and cause you to lose your
balance? --- Yes, but you do not know that
until you try.
It was a risk, wasn't it? --- There is a risk
with everything, I could not tell you that it
was a risky position to be in at that time.
Did you think about it before you got up
there? --- I thought about how I was going to
free it, yes.
Yes, and what options did you think you had?
--- That it was the safest option. There was
no other option that I could do without
tipping the truck up or something like that
and unloading all the debris off the back.
And then the fork would be underneath the
debris anyway.
What about climbing into the truck and
freeing the fork from the debris by lifting
the debris off it? --- I tried to free it by
lifting the fork up and freeing the debris
off it.
Yes, I know that, Mr Blanchfield, but what
about freeing it at the other end? --- I had
no implement to do that.
Did you go and get an implement? --- There
was no implement there, the fellas were down
the other end of the beach (about 40-50 feet
away).
Yes. Why didn't you go down to the fellow
workers and obtain an implement to assist you
to free the fork? --- Because, to me, the
fork looked like it would come out easily,
pulling it backwards like that.
But you tried that when you were standing on
the ground, didn't you? --- Yes, but I could
not get the leverage on it to lift it up.
You knew when you stood up on the truck, as
you have described it, that you had to apply
additional leverage to that which you were
attempting to use when you were standing on
the ground? --- Yes, because it was a
different angle.
Yes. You knew that you were standing on a
potentially slippery surface? --- That
surface, you are standing on every day.
You knew there was a risk associated with
doing it, didn't you? --- With that position,
yes, there is a risk all the time because of
the wet conditions.
Why didn't you get inside the truck to
attempt to free it? --- Inside the truck?
Yes? --- Because of the debris.
If you were able to put one foot on the
debris, why didn't you put both feet on the
debris? --- Because I wanted something firm
underneath me foot, so I could use it as a
leverage to lift the handle.
Well, did you try the debris inside the truck
to see whether that was firm enough to get a
foothold on? --- It was not firm.
Did you try it? --- As soon as I put my right
foot on to the debris I noticed that it
squashed below me feet.
So when you put your right foot on the debris
you were conscious of the fact that it was
unfirm? --- It was unfirm, yes.
Yes. So you were depending, for your
leverage, on putting your foot on the metal
rim of the side section which was wet and
slippery? --- For support.
There was not much support, was there? . . . ?
--- No, there was not much - there was enough
support to free the fork.
And . . . to cause you to lose your balance?
--- That is correct."

9. The plaintiff's evidence was not challenged. He impressed me as a witness of truth as will, I think, be apparent from the answers he gave in the cross-examination just recorded. That cross-examination sets out, as it seems to me, the basis upon which the defendant seeks to establish either that it was not negligent at all or that, if it were, the plaintiff was guilty of contributory negligence.

10. In The Council of the Shire of Wyong v. Shirt & Others [1980] HCA 12; (1980) 146 CLR 40 at pp 47-8, Mason 4, as he then was, said:-

"In deciding whether there has been a breach
of the duty of care the tribunal of fact must
first ask itself whether a reasonable man in
the defendant's position would have foreseen
that his conduct involved a risk of injury to
the plaintiff or to a class of persons
including the plaintiff. If the answer be in
the affirmative, it is then for the tribunal
of fact to determine what a reasonable man
would do by way of response to the risk. The
perception of the reasonable man's response
calls for a consideration of the magnitude of
the risk and the degree of the probability of
its occurrence, along with the expense,
difficulty and inconvenience of taking
alleviating action and any other conflicting
responsibilities which the defendant may
have. It is only when these matters are
balanced out that the tribunal of fact can
confidently assert what is the standard of
response to be ascribed to the reasonable man
placed in the defendant's position.
The considerations to which I have referred
indicate that a risk of injury which is
remote in the sense that it is extremely
unlikely to occur may nevertheless constitute
a foreseeable risk. A risk which is not
far-fetched or fanciful is real and therefore
foreseeable. But, as we have seen, the
existence of a foreseeable risk of injury
does not in itself dispose of the question of
breach of duty. The magnitude of the risk
and its degree of probability remain to be
considered with other relevant factors."

11. I make the following findings of fact, the more readily because the defendant called no evidence to challenge what was said by the plaintiff.

(a) It was a common and frequent incident of the work
carried out by the lake maintenance gang of which
the plaintiff was one that members of it climbed
onto the back of the truck to retrieve tools and,
no doubt, to do other things. The plaintiff's
evidence as to the number of times that he would
get up on the back of the truck in the way he
described was not challenged. Even allowing for
some pardonable exaggeration, it is clear, I
think, that such actions were part of the ordinary
system of work which had in fact been adopted by
the gang.
(b) The pitchfork which the plaintiff sought to
retrieve had been placed in the truck by one
member and partly covered by debris by one or,
possibly, more members of the gang before the
plaintiff came on the scene on the morning of 26
April 1983.
(c) The plaintiff tried first to retrieve the
pitchfork when standing on the ground at the side
of the truck but was unable to do so because of
the way in which it was caught in and the angle at
which it was held by the debris.
(d) The plaintiff thereupon climbed onto the truck in
the way he described and stood with his left foot
on the top flange of the side of the truck and his
right on the heaped up debris.
(e) he managed to free the pitchfork but in doing so
lost his balance and fell as he described causing
himself injury.

12. I think that the system of work adopted under which men frequently climbed onto a truck which was often laden with wet and slippery, not to say slimy, debris gave rise to a foreseeable risk of injury to the plaintiff or to members of the maintenance gang who would be likely to climb on to the truck. The risk of injury was all the greater because it must have been obvious that loads of the kind which the truck was used to carry would wet the surfaces of the back of the truck including the flange to which I have made reference.

13. In my opinion a reasonable man would have responded to the risk that the plaintiff or other workers in his position might slip or fall by the installation of a bar of some kind which could have acted as a hand hold for those climbing onto or working on the back of the truck. Such a bar could have been readily fabricated and installed so that it would not interfere with the truck's efficient functioning. Two such bars might have been necessary, one attached to each of the sides of the truck. Alternatively, a ladder such as that shown in the photograph (Exhibit G) of another truck used within the Department might have been installed. Such a ladder would have enabled safe and easy access to the body of the truck and have provided a hand hold for persons moving around within it. It would certainly have afforded a reasonably safe hand hold for the plaintiff while he was engaged in trying to free the pitchfork. Indeed, if he could have stood on one of the lower rungs of such a ladder, it may not even have been necessary that he should have got within the body of the truck at all.

14. Taking into account all the considerations to which Mason C.J. referred in the passage from Shirt's Case quoted above, I think that the risk which the plaintiff underwent was real and foreseeable and that it was great enough and probable enough to require action to be taken by the defendant to obviate it. The steps which might have been taken to obviate it were, in my opinion, well within the response to be ascribed to a reasonable man in the defendant's position in the circumstances.

15. I think, therefore, that the defendant was negligent.

16. I turn to the question of contributory negligence. I think the plaintiff appreciated the risk which he underwent when he got onto the truck. This seems to me to appear clearly from his evidence which I have set out at length. In dealing with contributory negligence, I am concerned not with the negligence of the defendant but with any careless conduct on the part of the plaintiff in failing to prevent or avoid the consequences of the defendant's breach of duty to take care or, as Dixon CJ (as he then was) put it in The Insurance Commissioner v. Joyce [1948] HCA 17; (1948) 77 CLR 39 at p 54, whether the plaintiff "was guilty of some want of common caution by which he would have avoided the injury". The onus of proof of contributory negligence lies on the defendant and circumstances to show that the plaintiff was guilty of some such want of common caution must be proved to the satisfaction of the Court.

17. In my opinion, the plaintiff was guilty of contributory negligence but the extent of that negligence is to be calculated by reference to a number of factors.

18. The first of these is that the plaintiff in climbing into the back of the truck and adopting the stance which he did was not going outside a commonly used system of work which obviously had at least the tacit approval of the defendant. The second is that, as appears from his evidence, he was concerned to get done the task which had been given him. He was obviously, I think, a conscientious worker. The third is that, although he appreciated that there was a risk, familiarity bred of much use of the means of access to the back of the truck adopted seems to have caused him to underestimate its degree.

19. In General Cleaning Contractors Ld v. Christmas (1953) AC 180 at pp 189-190, Lord Oaksey said:-

"It is the duty of an employer to give such
general safety instructions as a reasonably
careful employer who has considered the
problem presented by the work would give to
his workmen. It is, I think, well known to
employers, and there is evidence in this case
that it was well known to the appellants,
that their work people are very frequently,
if not habitually, careless about the risks
which their work may involve. It is, in my
opinion, for that very reason that the common
law demands that employers should take
reasonable care to lay down a reasonably safe
system of work. Employers are not exempted
from this duty by the fact that their men are
experienced and might, if they were in the
position of an employer, be able to lay down
a reasonably safe system of work themselves.
Workmen are not in the position of
employers. Their duties are not performed in
the calm atmosphere of a boardroom with the
advice of experts. They have to make their
decisions on narrow windowsills and other
places of danger and in circumstances in
which the dangers are obscured by
repetition."

20. In Sungravure Pty Ltd v. Meani [1964] HCA 16; (1964) 110 CLR 24, Windeyer J said at p 37:-

"Whether a person was negligent in that sense
must be determined in every case in the light
of all the circumstances. When a worker in a
factory is alleged to have been wanting in
care for his own safety, the jury may, of
course, as part of the totality of
circumstance, have regard to such things as
inattention bred of familiarity and
repetition, the urgency of the task, the
man's preoccupation with the matter in hand,
and other prevailing conditions. They may
consider whether any of these things caused
some temporary inadvertence to danger, some
lapse of attention, some taking of a risk or
other departure from the highest degree of
circumspection, excusable in the
circumstances because not incompatible with
the conduct of a prudent and reasonable man.
. . . In the press of affairs anywhere a need
to act promptly may sometimes lead to
something being done, which has unfortunate
results, but which is attributable to an
error of judgment rather than a blameworthy
want of due care. These things were for the
consideration and valuation of the jury."

See also Commissioner of Railways v. Ruprecht [1979] HCA 37; (1979) 142 CLR 563 at p 568.

21. Taking all these matters into account I think the proper finding is that the plaintiff was responsible for his own damage to the extent of 15%.

22. Following the fall the plaintiff suffered severe low back pain. He consulted his physician, Dr Beckett. On examination he found tenderness and painful movements around the plaintiff's L4-5 disc and ligament. He prescribed non-steroidal anti-inflammatory drugs and physiotherapy and eventually ordered an x-ray on which no abnormality was detected.

23. Over the next few days the plaintiff was feeling, as he put it, "not too good" and had difficulty sleeping because of the pain. He spent one or two weeks at home just resting. He was not able to look after himself. His wife helped dress him (he could not, for example, put on his socks), bathed him and fed him.

24. After a week or so he went back to work but the pain worsened. He had physiotherapy for about three weeks altogether in the initial stages. Over the following few months, despite therapy which included the injection of local anaesthetic and cortisone into his L4-5 ligament, he failed to progress. He was treated with acupuncture and by a chiropractor whom he consulted without success. He was referred to Dr Andrew Brook, a rheumatologist, on 19 September 1983 and was seen again by Dr Brook on 17 October 1983. His pain had then settled to a dull pain. He found it difficult to extend from a flexed position. The pain was confined to the legs without sciatic symptoms except occasional numbness in the feet. He could stand and work hard all day but heavy physical work made his back ache that night and next day and he was unable to sit for too long.

25. Dr Brook thought the onset of the pain to be much like that of a disc and subsequent progress suggested a central prolapse. He arranged a CT Scan which showed a large protrusion of disc posteriorly at L4-5. Dr Brook thought that lesion responsible for the plaintiff's symptoms but the scan also showed a significant protrusion of disc material at L5-S1 encroaching on both exit foraminae and there were degenerative changes to quite a marked extent in the apophyseal joints at that level bilaterally suggesting that this was an old lesion. Reporting on 6 March 1984, Dr Brook considered that the plaintiff had lumbar disc disease at two levels with the L5-S1 probably old and the L4-5 attributable to the accident in April 1983. He felt that the plaintiff was fit for his job which involved driving a boat and for modest manual work in which he was able to move at his own pace.

26. However, it appears that the results of the CT Scan caused the Commonwealth Medical Officer some perturbation because the plaintiff was instructed to stop work and sent home.

27. On 14 February 1984 he was examined by the Commonwealth Medical Officer who considered him unfit for the duties of the position which he had occupied and that he should be redeployed to other duties. However, there was no position to which he could be redeployed and eventually he was retired from the Public Service.

28. On 17 August 1984 Dr Brook learnt that the Commonwealth Medical Officer had said that the plaintiff was not fit to lift more than 5 kilograms and at that point the plaintiff suspected that he would be pensioned off. His principal problems on that date were that at least once a week he got a very severe attack which caused his lower back to be weakened painfully and it was difficult to move about. The attacks lasted until he could have a long rest. If he lived very quietly he was troubled only by a mild aching. Prolonged bending for as long as an hour caused severe attacks of pain and the maintenance of any one position for long caused discomfort. As a result he could not sit happily for longer than an hour, stand for more than 10 minutes in one place or drive for more than half an hour. Dr Brook thought that clinically there was a significant change in the plaintiff's condition in August 1984 and that, while in 1983 he had thought that the plaintiff would be able to continue to cope with modest physical labour, it was clear in August 1984 that he was unable to do so. He then thought that he was fit for light work which offered some opportunity to change his position from standing to walking to sitting during the day and did not involve heavy lifting.

29. It was not suggested that the history given Dr Brook did not accurately reflect the plaintiff's condition.

30. The plaintiff consulted Dr John Corry, a specialist in rehabilitation medicine, on 1 October 1985. At that point the plaintiff stated that he had a pain in his back which he described as a dull constant ache, aggravated by certain activities, particularly by the jolting of driving a truck or in moving from a sitting to a standing position. He was then at home and able to do light housework, although his pain was aggravated by vacuuming and ironing. He was having physiotherapy on three or four occasions each week and was receiving acupuncture treatment. He was unable to engage to any significant degree in his major hobbies of camping, motorbicycle riding and martial arts. Dr Corry concluded that whether surgery was performed or not the plaintiff was permanently restricted in his ability to carry out heavy labouring activity. He thought the restriction on lifting of weights beyond 5 kilograms probably excessive.

31. Dr Coyle, an orthopaedic surgeon, first examined the plaintiff on 12 November 1985. Reporting on 15 January 1986, he advised that the clinical picture had changed considerably since 12 November 1985. The plaintiff had been suffering from severe low back pain, without sciatic radiation, historically related to the injury on 26 April 1983. In December 1985 he had an acute lumbo-sacral disc prolapse which resulted in severe irritative and compressive right sciatica but which also completely relieved his back pain. Dr Coyle interpreted that to mean that the lumbo-sacral disc was the offender all along and that it had eventually ruptured thus decompressing its annulus and so relieving the back pain but causing sciatica. The plaintiff underwent surgery at the hands of Dr Coyle on 9 January 1986 when a lumbar laminectomy and excision of his lumbar-sacral disc was performed.

32. In his report of 21 July 1988, Dr Coyle said that he had last reviewed the plaintiff on 7 April 1986. His severe right leg irritative and compressive sciatic symptoms had been completely relieved but he still complained of some low back pain and stiffness on first getting up in the morning and at the end of an active day. The plaintiff did not feel that there was any improvement occurring in his condition at that time. Apart from minor restriction of the lumbar spinal movements Dr Coyle could detect no abnormality on examination. He considered the plaintiff to be then fit for clerical duties and discharged him from further review. He expected that, in the absence of other information, the plaintiff would remain free of lower limb pain and would have a serviceable back which would give him little trouble with normal daily activities. He would, however, he thought, remain permanently unfit for heavy manual work.

33. Dr Coyle last examined the plaintiff on 13 September 1988. At that time the plaintiff was working regularly at the airport, loading and unloading passengers' luggage onto planes and had no great difficulty with this although sometimes he found that working in cramped positions as he was sometimes required to do was a bit difficult for him. His back pain had got a little worse since April 1986 but remained of nuisance value only. He had some recurrence of right lower limb pain over the last five months. He described that as an ache felt in the ham and the calf unassociated with any sensory changes in the foot. He did not then believe that either the back pain or the leg pain were progressing. He said that both problems remained of nuisance value only but that he was still "100% better than he was before his operation".

34. On examination he looked well and moved reasonably freely. His lumbar spinal movements were a little restricted but were synchronous and apparently painless. Straight leg raising was restricted bilaterally more on the right side than on the left by "pulling" discomfort in the low back. Dr Coyle concluded that he had residual symptoms which did not interfere with his employment but did detract from his enjoyment of life to a certain extent. He considered no further specific treatment to be indicated at the moment although he thought that the plaintiff should make an effort to lose weight and remain physically fit. He thought the prognosis fairly good in that deterioration in the future was not very likely but it could occur. If it did further decompression of the right first sacral nerve root which he believed must be entrapped by bone where the lumbo-sacral joints base had narrowed plus, possibly, spinal fusion at that level might be indicated. X-rays of the lumbo-sacral spine showed considerable narrowing of the lumbo-sacral disc space where the disc was enucleated. He concluded by saying that it was more likely than not that the plaintiff would be able to continue until normal retiring age in the position that he presently held or in a similar position.

35. Dr Coyle was cross-examined by counsel for the defendant as to the opinion expressed by Dr Brook that the lumbar disc disease which the plaintiff had at the L5-S1 level was older than that at the L4-5 level which he attributed to the accident in April 1983. As I have already indicated, Dr Brook reached his conclusion based on the CT Scan and I have made reference to his findings in that regard. Dr Coyle said that it could only be speculation but in retrospect, having regard to the way things developed, he thought it much more likely that the plaintiff's symptomatic problem was at the lumbo-sacral level despite what Dr Brook had said. He said the plaintiff had low back pain which was non-specific and which could have been at any level. He did not agree that the symptoms emanated from the L4-5 level disease and thought it more likely that it emanated from the lumbo-sacral level. He put his theory as follows:-

"He had largely low back pain which changed
to largely right sciatica. He had
radiological evidence in 1985 - the CT Scan,
which showed disc bulges at least, abnormal
discs at 2 level and one or both of these may
have been symptomatic. The situation changed
about Christmas 1985 when his leg pain got
much worse and his back pain got much
better. . . . That is a common syndrome with
progression, a disc which is bulging gives
way. The disc which is under tension is
painful, causes back pain, it gives way like
a tyre gives way, like a blowout on a tyre.
The disc contents (are) prolapsed out of the
disc, which is immediately decompressed. The
back pain in relieved but the contents of the
disc then press on, or can impinge on, a
nerve root which it did here on the first,
right sacral nerve root, causing pain and
decreased function in the distribution of the
right first sacral nerve root."

36. He could not say whether the L5-S1 was an old or new injury but in the way the problem had developed he thought it more likely that the problem came from the lumbar-sacral disc and that it was a progression of damage to that disc. If the incapacity derived from the injury in 1983 it was due, he said, to the lumbar-sacral disc.

37. I find Dr Coyle's reasoning convincing and am satisfied that the low back pain from which the plaintiff suffered after the incident on 26 April 1983 and the subsequent sciatic pain which was relieved by surgery were due to the incident. Significantly, there is no suggestion that the plaintiff had earlier suffered any serious back injury although, on two occasions, he appears to have suffered minor strains. Significantly again, Dr Brook was not called to give evidence in support of the theory advanced in his reports.

38. I am satisfied that the plaintiff has made a good recovery. However, he still has pain from time to time and his evidence satisfies me that there is a tendency for that pain to increase from time to time although not to an incapacitating degree. I accept, with some reservations, the evidence of Dr Coyle that the plaintiff is likely to be able to carry on the work he is presently doing for an ordinary working life but I think some regard has to be had to the fact that he has had some increase in pain since the accident and since he has been working as a baggage handler with his present employer and to Dr Coyle's own view of the possibility that further treatment may prove necessary. On the evidence it does not seem to me to be likely that he will be further incapacitated from the injury of 16 April 1983 but as a matter of commonsense it seems to me that there is a possibility that some incident may worsen his present symptoms and lessen his capacity for work. His capacity for work is already limited since he cannot do the heavy labouring work which he would have been able to do but for the injury. He is a man of particularly strong physique and one would have expected that he would ordinarily work as a labourer or on heavy work all his working life. This, of course, would have carried with it the risk of unfavourable contingencies. I am not able to fix with any degree of confidence any figure which would represent the possibility of future economic loss. I think the appropriate way to deal with the matter is to make some allowance in general damages for the future in that regard.

39. I take into account that the plaintiff required physiotherapy in 1988 because his back was starting to become more painful since he transferred from working in the freight department of his airline employer to its passenger luggage department. As I have already indicated, when he is inside the belly of an aircraft on his knees and bent over his injury seems to be aggravated a little more, bringing pain back. He has lost no time from work in respect of any such increase of pain.

40. I accept the evidence of the plaintiff concerning the limitations imposed upon him in respect of a number of pastimes and activities in which he engaged before the accident. He referred particularly to martial arts, squash, golf, touch football, rugby league, gardening, cycling and motorcycling. I accept that for a time there was a deal of friction in the family because of the pain which he was suffering which caused him to become, as he put it, "cranky very quick". This led to a separation from his wife for a few months but everything is now, he said, "sort of back to normal".

41. I also accepted the evidence given by the plaintiff's wife concerning the care which she gave him following the accident. This evidence accorded with his and forms the basis of a small claim under the principles of Griffiths v. Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161. I allow $350 under this head.

42. The plaintiff claims for past economic loss a total of $45,886.01. This includes an amount claimed in respect of a travelling allowance of $16.00 per week which he would have received had he continued to work. The plaintiff used ride his pushbike to work 2 or 3 times a week, it would seem more nearly 3 times a week on average. I gather he used his motorcycle on other says. Use of a motorcycle would have involved some but obviously not much expenditure. I think I should allow a loss of $12.00 per week for 174 weeks. I allow therefore for past economic loss a total of $45,190.00.

43. Out-of-pocket expenses are agreed at $4,609.94. The Fox v. Wood ((1981) [1981] HCA 41; 148 CLR 438) component of the plaintiff's damages is agreed at $6,743.41.

44. I think the proper amount to allow for general damages for pain and suffering, past and future, loss of amenities of life, the risk that he may in the future suffer further disabling pain as a result of the injuries he sustained on 26 April 1983 and loss of his capacity to engage in the heaviest manual work, I think the appropriate sum to allow is $70,000. He is a relatively young man with a long life of at least continuing discomfort ahead of him.

45. For future medication I allow the sum of $2 per week (I think the plaintiff's recollection as to the amount of analgesics he takes was not accurate), a total of $2,000. For future physiotherapy I allow $256.

46. For interest I allow $19,173.30 made up as follows:-

$2,827.00 - 7% on $12,112.41 ($5,369.00 +
$6,743.41) from 3 October 1983 to 1
February 1987
$2,908.30 - 14% on $12,112.41 from 2 February
1987 to date
$13,438.00 - 7% on $35,000.00 from 26 April
1983 to date.

47. The plaintiff's damages therefore amount to $148,832.65 but in accordance with my finding on contributory negligence I think it just and equitable that that amount should be reduced by 15% to $126,074.25.

48. There will be judgment for the plaintiff in the sum of $126,074.25.