David Gordon Fleming v Concrete Constructions Pty Limited and Concrete Holland Joint Venture [1989] ACTSC 64 (22 December 1989)

SUPREME COURT OF THE ACT

DAVID GORDON FLEMING v. CONCRETE CONSTRUCTIONS PTY LIMITED and
CONCRETE HOLLAND JOINT VENTURE
S.C. No. 50 of 1985
Negligence

COURT

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

CATCHWORDS

Negligence - Employer-employee - Breach of statutory duty - Damages - No new question of principle involved

Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; (1986-1987) 162 CLR 479

HEARING

CANBERRA
22:12:1989

Counsel for Plaintiff: Mr T Higgins QC

Mr R Crowe

Solicitors for Plaintiff: Mesdames Pamela Coward &
Associates

Counsel for Defendant: Mr A Whitlam QC
Mr R Williams

Solicitors for Defendant: Messrs Sly & Weigall

ORDER

There be judgment for the plaintiff in the sum of $430,854.27.

DECISION

The plaintiff claims damages from the defendant (a firm) in respect of injuries sustained by him in an accident which occurred on 8 November 1982. He was then employed by the defendant at the new Parliament House construction site.

2. Giving evidence, the plaintiff referred to two earlier incidents where he had suffered damage to his right knee. The first occurred when he was climbing down a fairly steep batter, some 40-50 feet deep and while doing so slipped on some rocks and twisted his knee. He thought he had had about three days off work as a result. The second incident occurred when he was unloading a crane on top of some decking. As he was walking on the decking he slipped on some substance which was on top of it and fell, again injuring his right knee. Following that incident, he was, he said, off work for about a week but returned to his ordinary duties which he continued to carry out as before. He noticed no difficulty in carrying out those duties as a result of the second injury nor had he had any ongoing disability with the knee as a result of the first injury.

3. On 8 November 1982, he was working as a dogman directing the operation of a crane which was being used to load some scaffolding. He was walking across a raised footing and across a plank onto the other side of the footing when he fell through a gap in the concrete which had been covered by plastic and of the existence of which he was not aware. He described the route which he had been taking prior to his fall as virtually the only way to get to where the scaffold had to be landed. The footing was about a metre and a half wide. It was shaped like a "V" with a column about 20 foot high in the middle of the "V" and there was some plastic around the column going up the batter. The plastic spread out across the footing and then up the nearby batter.

4. When the plaintiff took the step which would, he assumed, be supported by concrete his leg went straight down the hole which had been covered by the plastic and the plank. His right knee stayed up and he "kneed (him)self in the chest and in (his) jaw". He went over backwards and he could not remember much immediately after the incident except trying to get out of the hole as quickly as he could because he had scaffolding coming down on top of him. He saw reinforcement steel bars sticking out of the plastic.

5. James Martin Keavney, a safety supervisor, gave evidence that on 8 November 1982 he was employed on the new Parliament House site in Canberra as a scaffolder. On that day he said the plaintiff was actually bringing down a pallet of ledgers. The plaintiff came over to see where the scaffolders, of whom Mr Keavney was one, wanted the ledgers landed. Mr Keavney was waiting for the gear which Mr Fleming's crane was bringing down. He said that when he first saw the plaintiff he was at the top of the embankment and then he came down and walked across to where Mr Keavney was. He saw the plaintiff tread on a piece of plastic that was covering a hole which he described as about .5 of a meter. He said that the plastic was lying between that and some planks that were set up over a corner piece of footing. He said that if one kept on the planks there was no difficulty but the plastic was black, not transparent. He saw the plaintiff tread on the plastic and go down on one knee breaking his fall with his arm. He said the plaintiff did not fall flat on his face or go over onto his back or anything like that. He went across to the plaintiff to ask him whether he was all right. The plaintiff got up rubbing his knee. Mr Keavney then pulled the plastic out of the way so that no one else would do what the plaintiff had done.

6. I find that there was a hole as the plaintiff alleges and that it was covered by black plastic in such a way as to disguise its existence.

7. The plaintiff alleges that his fall was the result of the negligence of the defendant or, alternatively, as a result of a breach of its duty to him as his employer. Amongst the particulars of negligence alleged were:-

(a) allowing an open hole to be covered with a sheet
of black plastic in such a way as to make it a
trap;
(b) failing to fence or cover the hole with something
safe;
(c) failing to remove the plastic so that the hole
was obvious.

8. The plaintiff also claimed that the defendant was an occupier and had similar duties in respect of what he described as a hidden trap. I do not think that that allegation adds anything to the claim for damages for negligence having regard to the present state of the law in Australia regarding occupier's liability. See Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; (1986-1987) 162 CLR 479.

9. The plaintiff also alleged that the defendant was in breach of the provisions of regulations made under the Scaffolding and Lifts Act of the State of New South Wales in its application to the Territory. Regulations 73(2) and 73(8) and 95(10) were particularised.

10. Regulation 73(2) provides that any person who directly or by his servants or agents carries out any building work shall take all measures that appear necessary or advisable to minimise accident risk and to prevent injury to the health of persons engaged in such building work and for this purpose, without limiting the generality of the foregoing, shall provide and maintain safe means of access to every place at which any person has to work at any time. I think the defendant was in breach of that regulation but that it was not in breach of regulation 73(8) and 95(10) because I am not satisfied that the hole down which the plaintiff fell was of the necessary depth to attract the operation of those regulations.

11. The defendant should, in my opinion, have foreseen by its servants or agents, that a person working in the vicinity of the hole might readily walk on the plastic which hid it. The danger ought to have been obvious and I am satisfied that the defendant was negligent both at common law and by virtue of its breach of regulation 73(2). There must, therefore, be a verdict for the plaintiff.

12. After the fall, the plaintiff was very stiff and a bit shocked. One of the scaffolders who had seen what had happened came and gave him a hand to land the scaffolding. (I assume that by that he meant to guide the scaffolding to the ground.) The plaintiff got out of the hole and went to the crane driver and the other dogman and told them what had happened. They told him to go to see the nurse. He started walking to see the nurse but by the time he got to the place where she was he found that his leg had become swollen and he could not walk any further. He described the impact between his knee and his chest as having been very heavy. The accident happened, he said, as he was transferring his weight onto his left foot. He had no weight on his right one at the time so that all of his then weight, some 14 stone, came on top of his knee. He gave the names of the other dogman and the crane driver. He also gave the christian name only of the scaffolder who had come to his assistance and whose name he could not remember although he had, since the accident, been told it.

13. He noticed that the knee was throbbing and that he had a sharp pain inside it and severe pain in the back of it. He felt very bruised and sore. His hip, chest, ribs, neck and groin were a bit sore too.

14. He consulted the nurse who sent him off to see Dr Eather, a general practitioner who was practising in nearby Kingston. Dr Eather told him to take a couple of aspirin and a couple of days off work but by the end of that two days his condition seemed to be getting worse. His back was getting worse, much stiffer, with a lot of pain going down his legs and his knee was very stiff and painful. His ribs were sore and he had a pain which he described as

"generating sort of half-way up my back round to
the front of my ribs into the spine".

The pain had a semi-circular path. His neck was stiff and he had pain going down into his hand. His right shoulder was a little bit stiff also. After the couple of days had passed he went to see his own general practitioner, Dr Webber. Dr Webber checked his knee. Moving it around created a great deal of pain in it and Dr Webber recommended that he consult a specialist.

15. This he did, attending on Dr Stubbs, an orthopaedic surgeon, whom he had earlier seen about an earlier injury to his knee and who had him admitted to Calvary Hospital where he performed an arthroscopy. That was done a week before Christmas 1982. To that time the condition of the knee had remained the same. His back had got worse but everything else remained at about the same level of discomfort and pain.

16. The arthroscopy was painful.

17. He had some physiotherapy but that did not improve his condition more than a little bit. The pain caused by the arthroscopy did not increase the general level of pain in the knee. His general practitioner then referred him to Dr Cairns, another orthopaedic surgeon, for a second opinion.

18. Early in 1983 Dr Cairns had him admitted to Woden Valley Hospital for another arthroscopy. He was hospitalised thereafter for the purpose of a knee reconstruction carried out by Dr Cairns. Up to the time of the operation, the knee had not improved and had started to get a little bit worse. His other symptoms remained the same. After the reconstruction, there was a period of a couple of months during which there was improvement in the knee. He was immobilised for about three months. The knee was in plaster. Then he started physiotherapy. It took about a month to straighten his leg out. He had a lot of physiotherapy but he could not do too much because it started to upset his back. Three months after the operation when the anaesthetic had worn off and the numbness had gone, the knee started to get painful again.

19. On 15 March 1983 he consulted Dr Newcombe, a neurosurgeon, about the pains going down his legs from the pain in his back. Dr Newcombe had him undergo a myelogram at the Woden Valley Hopsital, some scans and a discogram. He found the myelogram quite painful but he could bear it. The discogram he found very painful. Up to this point his back had continued to get worse. He found, for example, that he could not put a two litre carton of milk out on the table without hurting his back. General movements caused him pain and he could not sleep. The trouble with the chest started to fade away. The neck gave him a lot of trouble with pain still going down into his right hand. The condition of his shoulders was such that he could not put his right hand behind his back. He used to get a lot of headaches. He described them as "something like an electric shock going up and hitting me in the back of the brain when I bent over to, say, turn the TV on or pick something up". The pain, he said, would extend into the cranium as well as down the arm and the shoulder area. He had not had anything like that before and the first time he did he thought he was having a stroke. It shocked him a bit.

20. In November 1983 he had another discogram and finally came to surgery in November 1983. The discogram had, apparently, shown a ruptured disc and the surgery was undertaken to deal with that problem. The surgery took place on 29 November 1983. After the operation he had no pains going down his legs anymore but a lot of pain in the back from the operation. He was in bed for three days. The condition of the knee remained the same after the operation but he did not notice any improvement in the neck and shoulder area. He continued to attend upon Dr Newcombe.

21. It was during this period, on 14 March 1984, that his wife gave birth to twin sons.

22. In about May 1984 he underwent treatment at the Woden Valley Hospital Rehabilitation Unit. He had hydrotherapy and physiotherapy and performed rehabilitation exercises in the gymnasium to mobilise his back and leg. He had, before the accident, undertaken weight training at a fairly high level for the purposes of body building. When the accident happened he weighed 14 stone and his general level of fitness was what he described as fairly athletic fitness of a very high standard. At the time he gave evidence he weighed 11 - 12 stone. About four or five months after the accident his weight, as he put it, just started to fall off him. Until he began the rehabilitive training he had not been doing any weight training because of the difficulties he was having with his back and leg. At the time he began the exercises, his back was still painful and rehabilitive treatment had no effect on his back at all. He underwent an examination at the hands of a surgeon acting on behalf of the defendant. The examination he found to be fairly rough and caused him a lot of back pain and he needed an epidural injection to "calm (his) back down". It was administered in December 1984 approximately but had no beneficial effect on his back.

23. He was discharged from the Rehabilitation Unit in April 1985. By that time he and his wife had separated.

24. He then began some part-time work. His back was still painful when he did any exercise or movements with it. He still had bad pains in his neck and his shoulders seemed to be getting stiffer. The neck pain had the same character as it had earlier had so that occasionally he got the shock effect to which I have earlier referred.

25. He then began to work as a door supervisor at an establishment known as the Eureka Stockade at Braddon. He took money from customers as they came in and stamped what appear to have been pass-out tokens for those who went out but wished to return without paying another entrance fee. He had other duties, to make sure that there was no trouble inside, that everybody was doing the right thing and not, for example, throwing glasses around, and things like that. If it became necessary to ask someone to leave he would get the other doorman before the request was made. Most people complied and left upon such a request. He was not involved in any incident while he was working there which required him to grapple physically with or to throw customers out. He used to start work at about seven and finished usually at about 12 to 12.30 one day a week. At the end of each night of work his knee and his back would start to get very painful because of the amount of time during which he had to stand up and walk around. He found that after a night's work he had to have a pretty good rest because his back and neck were too painful for exercises. He would completely relax on the next day.

26. During this time he continued to attend upon Dr Cairns and also upon Dr Webber.

27. In August 1985 he found that his shoulder was getting very painful. Dr Webber, whom he consulted, gave him a steroid injection into his shoulder to see if it would settle it down but it did not.

28. His employment as a doorman ceased in about October 1985. At that point he was still separated from his wife. A daughter was born in November. He and his wife continued to associate together from time to time, notwithstanding the separation. He continued to attend upon Dr Cairns but that was in relation only to the knee. He had another arthroscopy performed on the knee because it was giving him a lot of pain and kept giving way on him. Dr Cairns sent him back for physiotherapy. He also consulted Dr Cairns about his right shoulder but received no treatment for that. He then began employment on 1 July 1986 as a doorman with JDs Tavern. Again he worked one night a week, this time from 8.30pm to 3.30am. The duties were basically the same as those which he had had at the Eureka Stockade. However, he did have to deal with at least two fights. One was a fight inside in which two people were involved. The plaintiff, acting apparently with one or more colleagues, had to break it up and he ejected one of the combatants. He and another doorman had to break up another fight outside involving three men who attacked the plaintiff and his colleague. During that incident, his knee gave way. Following that incident his back was very painful as was his knee and he had to spend the next day in bed. He ceased work at JD's on 1 September 1986 and then again for about six weeks until 19 November 1986. He was concerned that he might become involved in incidents which would cause his knee and back more damage. On 29 September 1986 he began to work at the Tradesmen's Union Club where one night a week he supervised the conduct of the snooker room. He worked on Friday nights for about a year until the end of 1987.

29. Following further investigations he underwent further surgery, on his shoulder, at the hands of Dr Sonnabend in January 1988. Thereafter he was unable to move his right shoulder for about three months but could use the lower half of his arm. After continued physiotherapy, however, the pain which he had been suffering in the shoulder and neck disappeared and mobility returned to his arm and shoulder except that there was a slight limitation on lateral movement of his arm away from his body. He says that so far as his shoulder and neck are concerned, that is the only disability he now has.

30. The plaintiff has worked at various other places since the accident, chiefly at clubs and nightclubs and at one hotel. Details of his employment since the accident were set out in a Statement of Particulars dated 24 February 1989 which became Exhibit "B". I accept those details as accurate. More details of his employment and earnings since the accident were set out in exhibits.

31. The plaintiff had previously had experience in the trade of carpet laying but he gave evidence that he would not now be able to do that because it involves a lot of heavy lifting, a lot of bending and requires use of knees on a knee kicker or stretcher to hook carpet onto a smooth edge and stretch it. He said that he would be unable to do the work of a dogman because it involves a lot of climbing up the sides of scaffolds, a lot of heavy lifting to be able to get chains around loads that have to be lifted, the placing of concrete buckets by hand and holding them. Tunnelling would be a problem because of the confined space and a lot of heavy lifting. Tree trimming or tree felling would not be possible because he would not be able to hold a chainsaw out from his body. He does not know any job in the construction industry for which he would be fit. He has no clerical skills. He would be unable to drive a motor vehicle as an occupation because he finds that sitting in a car for long makes his back start to ache so that he is unable to drive for a time.

32. For some two to three months after the accident he was impotent and very depressed. An anti-depressant drug, tryptanol, was prescribed and he still takes that drug every now and then.

33. He gave evidence that he used to ride his push bike every day to work and to the gymnasium and would spend two and a half to three hours at the gymnasium five days a week engaged in body building. He also engaged in water skiing, squash, snow skiing, touch football and things of that kind. He used run before he went to bed and used also swim. He has attempted to play squash, to ski and to play football since the accident but has been unable to continue with those sports. The common problem is that his knee and back cause him too much pain.

34. Before the accident he did a lot of work around the house, mowing the lawns, washing up, hanging out clothes and gardening. He did some washing and vacuuming. He said that since the accident he is unable to do that sort of work as regularly as he used to be able to. He leaves the lawns until they have to be mowed. He now has a dishwasher. He is able to handle a half filled laundry basket rather than a full one. Standing over a sink causes him a lot of back pain and he cannot do the physically heavy lifting work in the garden. He said that every now and then if he gets a good day he will go out in the garden and if something has to be done he will do it but will probably be sore after having done it.

35. Before the accident he used to repair and service his own motor vehicle. Twice since the accident he has attempted to work on his car. On one occasion he had to pull the motor out of a car and replace it. He said that that took him nearly two and a half weeks to do when it should have taken him only about two and a half days. This was because of the stops which he had to make and the rests he had to have. As well, in about December 1988 he had to do some work on a utility changing a sump gasket. The job should have taken about an hour but took about two. Following both those jobs he found that his back started hurting. He would work through until he could not stand it any more and then would stop. After stopping, the pain would, as he said "dull a little bit", then he would start again and when he could not stand going back to work he would just give up entirely.

36. He made a number of applications for various jobs but was unsuccessful. The plaintiff also gave evidence on attempts he had made to obtain work.

37. When the hearing resumed after an interval of some months, the plaintiff gave further evidence in chief. He described some work which he had carried out on his driveway involving the laying of sleepers. He said that he did very little of the physical work involved, being helped by others, and I accept the evidence on that point. I should add that I accepted the plaintiff as a witness of truth.

38. In January 1989 he had replaced the clutch cylinder on his car. He took his time doing that and was able to work to his limit but after a while started to hurt a little. He was doing rehabilitation exercises at the Deakin Health Spa for some four or five weeks and this helped to improve his knee strength but it caused him pain in the back and inhibited his working at the same time. He chose to continue to work because he was getting money for that. He described the exercises in which he took place.

39. He said that in February 1989 a boarder moved into his house. He assisted the boarder in carrying in a waterbed bladder and a TV set. In carrying in the TV set he strained his back and had to go straight in to have a hot bath and lie down as a result. He did odd jobs around the house, painting etc and generally, working slowly and within his limits, was able to do most jobs without getting too much pain although he did get some.

40. He also gave evidence of two occasions when he had to deal with recalcitrant guests at the Raiders Leagues Club following which he had severe back and knee pain and was unable to resume work on the following day. In the second incident he sustained a black eye, a broken knuckle, very bad back pain and his knee was very sore because it gave way on him and he had to take a week off from work. His right shoulder which had been all right to that point was hurt during the course of the action but that cleared up.

41. He gave evidence of his aim to compete in a body building competition just before the accident and for the title of the strongest man in the Australian Capital Territory. He wears a knee brace all the time now.

42. The plaintiff also gave evidence that he had hoped to become a leading hand dogman and a crane supervisor progressing to the position of crane driver. Each of those changes in status would involve an increase in renumeration. He also gave evidence that before the accident he was planning to earn enough money to go into business in partnership with his mother in the operation of a small motel.

43. Although senior counsel for the defendant sought in cross-examination to establish that Mr Fleming would have been able to do more work than he did, I am satisfied that his condition was such that he was inhibited from doing more work as a doorman than he actually did. His former wife gave evidence which supported the evidence given by the plaintiff. She gave evidence to his increased drinking which she thought he was engaging in to ease the pain and his depression. I accepted Mrs Fleming as a witness of truth. No serious challenge was directed to her evidence in cross-examination.

44. No medical evidence was called but a number of medical reports were tendered.

45. Dr Cairns, reporting on 30 March 1983, described the derangement of the knee following the accident and the initial operation on 15 February 1983. He thought at that time that the plaintiff would go on to enjoy a satisfactory outcome from the knee surgery as a result of the stabilising procedures which had been carried out. He thought the plaintiff's spinal condition was in a state of flux and that he was far from stable in that regard.

46. Reporting on 12 November 1985 he advised that on 4 July 1985 the plaintiff was referred back to him by Dr Webber because of ongoing pain behind his knee. On 19 December 1985 he reviewed the plaintiff's condition. He was then complaining of ongoing pain over the medial aspect of the knee joint, increased by walking down stairs. On 18 April 1986 an arthroscopy revealed minor residual signs of antero-lateral rotatory instability with normal meniscal structures. There were diffuse early changes of deterioration over the articular surfaces with grade 1-2 degenerative changes over the articular surfaces of the patella. Dr Cairns advised the plaintiff subsequently that the findings suggested that he had early degenerative changes within his knee consistent with its past history but that the changes would not cause the level of symptoms of which he was complaining. He thought that level of symptoms was due to the lumbar spinal pathology.

47. Finally, reporting on 16 September 1986, he expressed the opinion that the injury to the right knee had been satisfactorily stabilised by the surgery but, as in many instances of this kind, the plaintiff had been found to have developed "wear and tear" changes of articular cartilage deterioration as a consequence of those injuries which predisposed him to the future development of degenerative osteoarthrosis. He thought, however, that in the presence of functional stability this did not present as a major likelihood. For the present he thought that the plaintiff's knee condition was stable but that there was a possibility of further deterioration in the long term with the passage of time. He thought that he had been left with minor residual disability, predominantly medial knee discomfort relating to the negotiation of stairways. He did not believe that any treatment other than oral anti-inflammatory agents and possibly intermittent periods of physiotherapy was indicated. He thought that the probable outcome of such treatment would be alleviation of his symptoms. He thought that the plaintiff was fit for light manual activities and certainly sedentary type activities so long as they did not involve negotiation of stairs.

48. Dr Knox, a psychiatrist, reported on the plaintiff on 3 July 1985. He concluded that the plaintiff would continue to have a permanent physical incapacity to some degree but he did not attempt to assess the extent of that incapacity. He thought that he would continue with some reactive depression and insecurity for the course of the next one or two years until he was re-established in the work force. He did not expect any major psychiatric disturbance in the plaintiff beyond that point. I am, however, satisfied that some elements of his depression have continued, although not seriously.

49. Dr Newcombe, a neurosurgeon, reported on 23 May 1983 concerning his initial investigation when he formed the opinion that the plaintiff was suffering from a musculo- ligamentous strain of the neck and back and that there may have been a lumbar disc protrusison. At that point he found him unfit to return to work. He could not determine the long term prognosis for the spinal injury at that stage. Eventually, on 21 September 1983, a discogram showed a ruptured intervertebral disc protrusion at L5/S1. Surgery for the excision of the disc was performed on 29 November 1983. Typical degenerate disc was found and Dr Newcombe thought this to be the consequence of the injury. He reviewed the plaintiff on 20 January 1984 when he had some low back ache and some pain behind the left heel. Overall there was improvement. Straight leg raising was marginally impaired on both sides. Further physiotherapy was arranged. The plaintiff, he thought, remained unfit for work.

50. He reported finally on 7 January 1986. He saw the plaintiff on 14 November 1984 when he was accompanied by his wife. Both were angry that he still had pain and the plaintiff, in particular, felt that examination for insurance purposes in August had aggravated his pain. On examination, pressure was applied to the centre of the lumbar spine. While he had pain before this he complained of more low back pain now and some pain and hyperesthesia behind the right knee. He said that he had some swelling to the left of the lumbar spine which his wife had noted but which was not present when Dr Newcombe saw him. Lumbar spinal movements were moderately restricted. Straight leg raising was possible to 70` on the right if taken slowly. He seemed to have a hyperesthetic area behind the right knee. There were no sensory motor reflex changes except for right sided S1 sensory loss.

51. A further CT scan had been performed on 2 November 1984. It showed no disc protrusion or other abnormality. There was some increased density at the L5/S1 level thought to be due to scarring. An epidural steroid injection was arranged in December 1984 and this relieved the pain. When seen on 12 March 1985 the plaintiff was continuing with daily rehabilitation, mainly remedial gymnastics. He had low back pain at times. He hoped in the long-term to become a safety inspector. Dr Newcombe thought there was a distinct improvement following the interview of 14 November 1984.

52. He saw him again on 18 December 1985 when he said that from March he had had some intermittent pain. Episodes would last for two or three weeks and then there would be intervals of about two or three weeks duration. When he fell asleep pain often occurred. There would be low back pain with right sciatica expending to the knee. The pain, when present, would stop him sitting for long. He had been unable to get work because of the history of low back problems. He concluded by saying that he thought that the plaintiff had improved following treatment of the lumbar disc problem and anterior cruciate rupture following the fall at work on 8 November 1982. He said that the plaintiff was not likely to become fit to return to work as a plant operator, scaffolder or dogman. He thought that he might well be fit for supervisory work such as that of a safety inspector or in some other alternative occupation not requiring heavy lifting or bending. He saw no need for further neurosurgical care. He said that it was recognised that work as a safety officer might involve climbing into difficult situations and some work in that field would not be suitable. He also thought that there would be some difficulty with appropriate pre-employment medical examinations.

53. Dr Corry, a consultant in rehabilitation medicine, took a history from the plaintiff and examined him. He reported on 22 April 1988 and reached the following conclusion:-

"Mr Fleming sustained an acute flexion injury of
the knee joint in the accident described as
occurring on 29 November 1982 and it appears he
aggravated previous injuries to that knee joint
and possibly, as a new injury, obtained damage to
the anterior cruciate ligaments. Extensive
treatment was required and this has resulted in
considerable improvement. The knee still remains
a little unstable and gives way after prolonged
standing and aches with constant use. There is
still some quadriceps wasting and possibly the
stability of the knee would improve further if
this muscle could be further developed. As a
result of this injury, however, the knee is not a
safe one and would exclude him from doing work in
dangerous situations such as required of a
dogman. Although his symptoms are not severe, he
does develop pain with use and this would limit
his capacity for walking and climbing up and down
stairs. It does not preclude him from other
activities.
Investigations have shown evidence of lumbar disc
disease which has only partially responded to
surgical treatment. The relationship of this
problem to the injury to (sic) 29 November 1982
is not clear. The fall, as described to me, is
not one involving forces which would normally
seem to produce disc tearing or prolapse unless
there were more twisting forces involved than the
description suggests and there were pre-existing
degenerative change. If, however, the symptoms
did become apparent within about a month
following injury, I think one would have to accept
some form of causal association or aggravation."

(I pause here to indicate that I do not doubt that the back condition from which the plaintiff suffers was due to the accident.)

"He has moderate, continuing symptoms related to
this disability and appears to have some
difficulty in controlling behaviour that will
cause significant aggravation of symptoms. It is
possible he would benefit from a back education
program. On his description, he has problems
with bending and lifting activities. Accepting
the described level of disability, he would not
be fit for doing labouring tasks but should be
able to cope with light manual activities.
In conclusion, he is fit for a wide range of
lighter, manual duties. He is having some
problems obtaining suitable employment and may
need specific assistance in this regard through
one of the disabled persons training programs."

54. I have omitted reference to Dr Corry's conclusions concerning the damage done to the plaintiff's shoulder.

55. Dr Sonnabend reported on 22 April 1988. He thought the violent nature of Mr Fleming's work injury of 1982 was sufficient to cause the condition which he found in the plaintiff's shoulder, subluxation and dislocation of the long head of the biceps, in the presence of a normal bicipital groove with associated bicipital tendonitis and chronic shoulder pain. The pathology was confirmed at surgery. I am satisfied that the surgery was successful although a slight problem in rotation remains. On 31 May 1988, Dr Sonnabend thought that Mr Fleming was fit, at least as far as his shoulder was concerned, to return to reasonably heavy work although he would probably be well advised to avoid the heaviest manual work.

56. The only other medical evidence tendered on behalf of the plaintiff was that of Dr Webber who gave a history of his condition. Dr Webber reported first on 30 March 1983. He described the accident of November 1982 as occurring when the plaintiff's left leg went through a hole covered by plastic sheeting causing a hyperflexion injury to his right knee. He said that he also injured his lower back in the fall. He said that the fall caused him tremendous pain in the knee, particularly medially, in the right gastrocnemius muscle, hamstrings and in the popliteal fossa. He had limited flexion of the knee, slight swelling and tenderness medially. Dr Webber treated him with rest and physiotherapy but after three weeks he had not improved and accordingly was referred to Dr Stubbs whom he had previously consulted following the second injury to his knee referred to above and who, having performed an arthroscopy, did not find anything significant. By early December 1982 the plaintiff, reported Dr Webber, began to notice increasing pain in his lumbar spine. Dr Webber reported on the reference to Dr Cairns. He said that he subsequently saw the plaintiff on 14 March 1983 when he was a very depressed man, the pain in his back was much worse and he was complaining of impotence. His surgical wounds to the knee had healed well but in view of the complaints of sciatica for over three months Dr Webber thought it advisable to have Dr Newcombe review his back. He described the knee injury as a "particularly nasty accident" and considered that it was that accident which had caused the anterior cruciate rupture. He made no reference to neck or shoulder problems at that stage.

57. However, by report dated 24 November 1985 he said that as at 30 March 1983 the plaintiff was being treated conservatively for injuries to his neck and lumbar spine which the neurosurgeon thought were musulo-ligamentous strains and possibly a lumbar disc protrusion. When seen on the 18 October 1985 the plaintiff was found to be tender in the C6-C7 region of his neck and still to have reduced extension, flexion and right lateral rotation of it.

58. Reporting on 3 April 1988 Dr Webber said,

"(the plaintiff) injured his shoulder in the
accident in November 1982 when he fell though a
hole covered with plastic. As he fell he
attempted to save himself by grasping the sides
of the hole with his arms and in the process
internally rotated and strained his right
shoulder.
Initially he was not terribly concerned about
this injury... However, on the 21/8/85, he
complained of pain in the right bicep tendon
region of the shoulder. He could not externally
rotate the shoulder and he had tenderness over
the tendon of the biceps."
Dr Webber also had this to say of the plaintiff:-
"As the year (1984) progressed, the constant pain
began to tell on him. He became very angry and
dissatisfied with the neurosurgeon and
physiotherapy. He had always been a very active
individual and the prolonged inactivity was
frustrating him. He became quite depressed and I
found it necessary to start him on an
antidepressant, tryptanol, in November 1984. He
needed this therapy again in February 1985. I
discussed his situation with the rehabilitation
registrar, Dr Garry McLaren, and he described it
as a Chronic Pain Syndrome."

He noted that favouring his right leg was causing the plaintiff inflammation in his right achilles tendon and he advised him to use heel wedges to reduce this.

59. Dr Newcombe, reporting on 23 May, 1983, having first seen the plaintiff on 15 March 1983, said,

"Further there was neck pain associated with
crepitus and restriction of movement which he
dated since the injury. There was in particular
restriction of lateral flexion towards the right
and of extension of the neck."

60. Although they did not give evidence, Dr Burniston and Dr Edwards, respectively a consultant physician in rehabilitation medicine and a general surgeon, had made reports and these were tendered. They had also been examined in proceedings under the Workmen's Compensation Act 1951 and a transcript of their evidence in those proceedings was tendered.

61. Dr Burniston summarised his findings in his report of 2 May 1986 as follows:-

"I consider Mr David Fleming demonstrated no
significant signs to support his claim of neck
and low-back pain; and I found no abnormality of
his right knee to support his claim of pain
behind his knee which he claimed to be present on
palpation. However, accepting that he does
experience this somewhat bizarre pain, I do not
believe it disables him significantly and would
not prevent him working. In this regard it is
important to note that he advised me that he has
been attending a "body-building" gymnasium (since
the surgery on the right knee) to do exercises to
strengthen his legs. He has been successful in
this regard, and one would expect that, if he
experienced the pain in his right knee that he
claims, he would not have been able to pursue
his gym work.
I found Mr Fleming to be a very healthy and
strong young man, and despite his claimed pains,
he is capable of resuming employment commensurate
with his vocational skills. Attendance at the
Illawarra Rehabilitation Centre is unlikely to
alter his present situation, or to make him more
employable than he presently appears to be."

62. I do not think it could be said of Dr Burniston's evidence in the Workmen's Compensation proceedings that he resiled from the position which he had adopted in his report as just set out.

63. Dr Edwards said that he found it difficult to associate the plaintiff's shoulder condition with the accident in November 1982 and found it difficult to comment on the relationship between his knee injury and that accident. In respect of Dr Edwards also, I do not think it can be said that he resiled from the position which he adopted when giving evidence in the Workmen's Compensation proceedings.

64. However, on the whole of the evidence I am satisfied that the plaintiff did suffer a shoulder injury as he claims and that it was eventually necessary for it to dealt with surgically. It is significant that he complained of neck pain to Dr Webber right from the beginning and was certainly complaining of neck difficulty to Dr Newcombe in March 1983. The surgery carried out on the shoulder seems also to have healed completely successfully the neck condition. One cannot help but be impressed by the fact that the neck condition cleared up completely after the shoulder surgery.

65. I am therefore satisfied that the plaintiff sustained injury to his shoulder, injury to his lumbar spine and injury to his right knee in the accident which took place on 8 November 1982 and that the sequeal of the lumbar spine and knee injuries continue.

66. I am also satisfied that he is not capable of carrying out the full duties of a dogman, involving as they do the necessity from time to time to manoeuvre heavy weights and to walk on uneven surfaces and to climb. These disabilities are due, I think, to the affects of the lower back injury and the knee injury.

67. I turn to the question of damages.

68. I am satisfied on the evidence of Mr Stephen Anthony King an organiser with the Federated Engine Drivers and Firemens Association, that the plaintiff was a very skilled dogman and may have well attained the position of leading hand dogman in the years following his accident. He said that there was a shortage of positions for dogmen at the moment in the Australian Capital Territory due to a slump in the industry, but that there was plenty of work in Sydney, Melbourne and on the Gold Coast. He said that it was possible for a dogman to earn $70,000.00 dollars gross and more per annum in Sydney and $55,000.00 approximately in either Melbourne or on the Gold Coast. At present taxation rates the net income of men receiving gross incomes of that order would be approximately $52,152.00 and $35,200.00 per annum respectively.

69. Counsel for the plaintiff submitted that I should make an allowance for future economic loss on the basis that the plaintiff's capacity to earn has been reduced by some $450.00 per week. This assumes that the plaintiff would never have any difficulty in obtaining work as a dogman, but it is well known that there is a building slump in Canberra with building construction workers having difficulty in finding positions. It is possible that he might go to Sydney, Melbourne or the Gold Coast to seek employment but I put that as no more than a possibility and not as a probability. I take into account that he did not plan to continue in construction work for the rest of his working life. It was his ambition to go into the motel business on a small scale. Of course, this does not mean that regard does not have to be had to the fact that he has lost the capacity to work as a dogman. I note also that despite his injuries the plaintiff remains a very powerful young man and I am satisfied that he could engage in manual work which generally does not require bending and particularly heavy lifting and would not require him to walk on uneven surfaces or climb stairs.

70. I think he is capable of earning more than the $250.00 per week which his counsel submitted was the appropriate figure for his residual economic capacity. Bearing in mind also that the plaintiff had suffered two knee injuries in a relatively short period before the accident, as appears from the report of Dr Webber and from his own evidence, I think the appropriate amount to allow for future economic loss is $150.00 per week. In fixing upon that figure I have aready made considerable discounts for the unfavourable contingencies which a man working in the construction industry might be expected to face throughout his working life. I accept than he would have expected to work until he was sixty years of age. For future economic loss, therefore, I allow a gross amount of $147,000.00. I do not think it necessary to discount this further than I have already done. I have had, I think, sufficient regard to the possibility of early death and all other unfavourable contingencies balancing against them the possibility that the plaintiff might have received promotion. I have taken into account the possibility, I see that it is no more than that, that he might have obtained some sort of supervisory position.

71. I am satisfied that his out-of-pocket expenses, including the sum of $3,382.00 relating to expenses incurred in connection with his shoulder injury, amount to $15,529.00. For past wage loss I allow $150.000.00. This figure, which discounts that claimed has regard to the vicissitudes which would have affected a construction worker in the Australian Capital Territory during the past 7 years. The Fox v Wood component is agreed at $7,976.27. For general damages I think that the appropriate figure is $50.000.00.

72. For interest I award $60,349.00 representing 7% on $30,000.00 general damages for 7.125 years and 7% on $91,000.00 past wage loss for the same period.

73. There will be judgment for the plaintiff for $430,854.27.