Thomas Loftus Mcdowell v Dolso Constructions (ACT) Pty Limited [1990] ACTSC 40 (30 October 1990)

SUPREME COURT OF THE ACT

THOMAS LOFTUS McDOWELL v. DOLSO CONSTRUCTIONS (ACT) PTY LIMITED
S.C. No. 132 of 1985
Negligence - Damages

COURT

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

CATCHWORDS

Negligence - Scaffolding and Lifts Act 1912-1945 (NSW) regulations - duty to provide safe means of access.

Damages - effect of Magistrate's award upon proof of incapacity - defendant estopped from denying incapacity.

Australian Paper Manufacturers Pty. Ltd. v. Conyers (1962) 62 SR (N.S.W.) 682

Liability of Employers 2nd ed., p 159

Fox v. Wood [1981] HCA 41; (1981) 148 CLR 438

HEARING

CANBERRA
30:10:1990

Counsel for the plaintiff: Mr A. Whitlam, QC with Mr Wilcox

Solicitors for the plaintiff: Crossin Power Haslem

Counsel for the defendant: Mr M. Robinson

Solicitors for the defendant: Macphillamy Cummins and Gibson

ORDER

There be judgment for the plaintiff in the sum of $163,670.75.

DECISION

This is an action for damages for personal injury sustained by the plaintiff on 15 August 1983 when he was employed as a formwork carpenter by the defendant at the Parliament House site.

2. Paragraph 3 of the statement of claim, as filed on 6 February 1985, was in the following terms:
"On or about the 15th August 1983 in the course of

his employment with the defendant the plaintiff was
climbing scaffolding. In order to climb the
scaffolding the plaintiff was required to place his
feet on lugs projecting from the scaffolding. In
the course of climbing his right foot slipped from
one of the lugs causing his right knee to strike a
lug projecting from the scaffolding. The plaintiff
thereby injured himself."

3. In its defence filed on 14 May 1985 the defendant denied, inter alia, the whole of paragraph 3. In his amended reply dated 12 April 1990, the plaintiff alleged that as to so much of the defence as denied the plaintiff's capacity to work between 5 November 1983 and 14 May 1984, the defendant was estopped from making such denial, the issue having been determined by the then Court of Petty Sessions in an award dated 5 July 1984.

4. No rejoinder or further pleading was filed on behalf of the defendant and it was not disputed at the hearing that the estoppel alleged by the plaintiff operated not only to prevent the defendant from denying the incapacity in the period in question but also from denying that the plaintiff had suffered injury in the course of his employment with the defendant on 15 August 1983, although the plaintiff's contention as to the estoppel as set out in the amended reply did not extend so far.

5. The plaintiff's claim was framed in negligence and breaches of statutory duty imposed by regulations made pursuant to the Scaffolding and Lifts Act 1912-1948 (NSW) in its application to the Australian Capital Territory. The statement of claim (or more precisely, the further amended statement of claim dated 12 April 1990) was defective in that it did not plead the facts in relation to which it was alleged that the duty arose to comply with the regulations. Regulation 73 imposes duties on persons carrying out building work which are to be discharged for the protection of persons engaged in such building work. It was not contested and the evidence clearly establishes that the defendant was carrying out building work and the plaintiff was engaged in such building work. Accordingly the defendant was obliged to comply with Regulation 73 and the plaintiff was entitled to rely on any failure of compliance resulting in injury to constitute a cause of action for damages. The breaches relied upon by the plaintiff were, first, breach of Regulation 73(1) which imposes a duty to provide suitable and safe scaffolding for all work which cannot be done safely by a person standing on permanent or solid construction and, secondly, breach of Regulation 73(2) which imposes an obligation to provide and maintain safe means or access to every place at which any person has to work at any time.

6. Because of the view I have ultimately taken on the facts, it is not necessary to deal at length with the allegations of negligence or failure to provide suitable and safe scaffolding. Sufficient to say, that for the plaintiff to succeed on either or both of those allegations, it was in the factual circumstances of the case necessary for him to prove that the defendant failed to provide access by means of a ladder to the deck of the scaffolding on which he was to work on the day in question. I am not positively convinced on the balance of probabilities that, at the time of the plaintiff's injury, access by means of a ladder was unavailable.

7. The plaintiff was an experienced formwork carpenter aged 42 years at the time of the injury. He commenced employment with the defendant at the Parliament House site in 1982. The injury was sustained on the western or Senate side of Parliament House, more precisely, in an area between the western car park and Parliament House itself known as the link. The link was a sort of tunnel without a roof, the concrete walls of which were under construction at the time of the plaintiff's injury. The plaintiff said that he spent two to six months working in the area of the western car park, but it is not clear whether the whole of that period was before his injury. In any event, at the time of his injury work had developed to the stage where it was necessary to complete the installation of formwork for the pouring of concrete on the southern side of the link tunnel. The formwork itself appears to have been in position and the plaintiff's task was to drill holes in the formwork for the placement of bolts. About two weeks before his injury, according to his evidence, scaffolding had been erected adjacent to the formwork to give access to the plaintiff and his workmate for the purpose of drilling the bolt holes. It appears that scaffolding was erected both on the interior and exterior side of the wall to be poured. The inference which I draw from the plaintiff's evidence about the lack of space between the wall and an adjacent earth embankment is that the particular scaffolding in question was on the exterior of the wall (and not on the interior), but again because of the ultimate view I take of the facts, nothing turns on this. The scaffolding consisted of metal tubular members, each end of which fitted into a lug or bracket on another member. There were varying descriptions of the size of the scaffolding in evidence. The plaintiff said that it was about six metres in length, "four by four" wide. There was a deck or working platform about three hundred centimetres from the ground and another working platform about two metres above that. There was, according to the plaintiff, no ladder at all to give access to the upper deck. According to the plaintiff, in order to gain access to the upper deck it was necessary to climb up the scaffolding itself, using as appropriate one or more of the lugs or brackets on one of the vertical members as a foothold. The lugs or brackets were spaced at approximately sixty centimetre intervals.

8. The plaintiff said that on the day of his injury he and his workmate were going to work on the face of the formwork from the upper deck of the scaffolding. For that purpose it was necessary for him to climb the scaffolding from the inside because of the lack of space outside it. He said that he was climbing the scaffolding, using the lugs "as stepping-stones to get up to that decking" and had reached the fourth lug at a height of about 2.4 metres when his right foot slipped and the inside of his right knee came down and hit the lug directly underneath. This caused him to fall to the ground. He felt pain in his right knee, and after resting for an hour or so, resumed work and continued for the rest of the day working at ground level.

9. The plaintiff's workmate, Mr. Neville Young, has since the date of the plaintiff's injury, suffered serious injury himself with apparent brain damage and was unable to give evidence. No inference then is to be drawn against or in favour of either party because of Mr. Young's absence.

10. The plaintiff continued at work during the days following injury. Because of increasing pain in the knee, the plaintiff reported the injury to the site nurse on 24 August 1983. The nurse's notes indicated that he reported his right knee "hit against scaffold". There is no mention in the nurse's notes of any reference to absence of ladders. In a written report of injury for the purpose of worker's compensation made on 5 September 1983, the plaintiff's description of the incident is as follows:

"While climbing on scaffolding I received a blow to
the right knee. The pain was quite severe for
approx 10 mins. I continued working so as not to
stiffen the knee joint. Over the period of the next
week the pain became worse and I contacted the First
Aid and then my family dr."

11. There is no evidence of any complaint or allegation by the plaintiff of the absence of ladders prior to the issue of the writ on 6 February 1985.

12. Mr. Archibald Jack, a safety officer employed by Concrete Holland Joint Venture, was called to give evidence on behalf of the plaintiff. He said that he visited the link car park area in mid-August 1983, on the same day as he heard that the plaintiff had been involved in an incident. When he visited the area, the plaintiff was not to be seen, and he left after being told by Mr. Neville Young that the plaintiff was all right. Mr. Jack said in his evidence that he saw scaffolding in the area, held rigid by planks, and without ladders, kick-rails or guardrails. He considered that the scaffolding was unsafe, but said that he did nothing about it because it was not in his "bailiwick". He was definite that there was no ladder in sight at all either at the end or ends of the scaffolding or in the middle. He said that if there had been access to the scaffolding by ladder then he would have used it and gone up on top. What his purpose would have been in so doing he did not say.

13. Three witnesses gave evidence for the defendant which tended to support the allegation made on behalf of the defendant that there was ladder access to all scaffolding in the link area at the time of the plaintiff's injury. Mr. Thomas Roy Morgan, the site foreman of the defendant, said that there was an access tower at each end of the scaffolding, that is to say, a section of scaffolding with a ladder or ladders built into it. Mr. Morgan said it was the practice of the defendant not to permit work to be done from scaffolding unless approved ladder access was available. He spoke of the practice of the defendant engaging scaffolding sub-contractors to erect scaffolding, from which work would not be permitted until the scaffolding crews cleared it as safe and ready to be used. Mr. Henrik Raja, the defendant's building supervisor, said that at the time of the plaintiff's injury there was in the link area scaffolding with "normal access ladders" at the end, the ladders being incorporated into the scaffolding. He said that he never saw men working from that scaffolding when there was no ladder access. He said that it was the practice during the erection of scaffolding to put up signs prohibiting its use until completion and that employees were not directed to go on to work on incomplete scaffolds. Mr. Brian Roland McLeod, the senior safety officer for Concrete Holland Joint Venture at the time, gave similar evidence about the practice on the Parliament House site of prohibiting the use of scaffolding without safe access. Such access was usually comprised by a set of stairs incorporated into a scaffolding tower. Mr. McLeod said that the use of ladders (in contrast to stairs) was most unusual, unless there was a particular lack of space. The use of the word "ladder" by the previous two witnesses for the defendant may have been somewhat loose, in my view, and they may have been referring to what Mr. McLeod called a set of stairs. These witnesses also spoke of the union activity on the site which was directed towards prevention of injury and insistence on safe work practices, including the prohibition of work on scaffolding which lacked proper access by either stairs or ladders.

14. The defendant's witnesses' evidence suffered from the handicap that none of them had any precise memory of the situation on the day of the plaintiff's injury and none had been asked to turn his mind to the precise question until years after that injury. Indeed, it seems that none of them had heard of the plaintiff's injury until years afterwards. The best that they were able to do was to give evidence of practice and whilst I accept that none of them was aware of a situation where there had been an exception to the practice when persons (other than scaffolders) worked from scaffolding without access ladders or stairs, the possibility that something along those lines had occurred without the knowledge of the witness could not be excluded.

15. On the other hand, I do not think that the evidence of Mr. Jack goes to strengthen the plaintiff's case. Even assuming that the evidence given by Mr. Jack is accurate, I have considerable hesitation about whether what he saw was the scaffolding upon which the plaintiff received his injury. It was identified only by a vague statement made to him by Mr. Neville Young, which is at best hearsay. To argue that it would be highly unlikely that other scaffolding in the area lacked ladder access is, in my view, merely to beg the question which is of course whether the scaffolding on which the plaintiff was injured in fact lacked such access. Mr. Jack's own attitude to the safety situation is curious. He was a safety officer. On the one hand he said that he regarded the scaffolding he saw as unsafe and on the other he said that he did not regard it as part of his duty to tell anybody about it. His description of the scaffolding indicates that it was unsafe not only because it lacked ladder access but also because it lacked toe boards and kick-rails, something about which no complaint was made by the plaintiff or on his behalf. I regard Mr. Jack's evidence with considerable scepticism.

16. Finally, I have to have regard to the demeanour of the plaintiff and the overall impact of his evidence. His memory with regard to many matters was vague and full of references to impressions and probabilities. It is strange that he has such an accurate memory as to the absence of ladders on the day in question. It is also curious that the evidence is quite deficient about the state of the scaffolding during the week or so prior to the injury during which time the plaintiff was presumably working from it. The plaintiff's evidence is also deficient with regard to the state of the scaffolding after his injury. According to his evidnce, he continued to work in the area for about nine days afterwards before reporting to the nurse and the tenor of the rest of his evidence is that he continued to work in the area from time to time thereafter. When asked by his own counsel whether he noticed anything about the state of the scaffolding after his return to work, his answer was "No, why should I?. No reason".

17. My conclusion is, therefore, that I am not convinced on the balance of probabilities that the plaintiff's allegation has been made out that there was a lack of ladder access to the scaffolding on the day of the plaintiff's injury.

18. However, apart from the question of the provision of a ladder, the plaintiff has convinced me that on the probabilities he received his injury much in the way he described. That is in accordance with the statement he made to the nurse, his report of injury and the statements he made to doctors over the years. In other words, I am satisfied that he received his injury when he slipped whilst climbing the scaffolding in order to get to the working platform. In my view, the working platform was his place of work, and the structure of the scaffolding was a means of access to the working platform and hence to the place of work. That means of access was unsafe, in that there was a foreseeable risk of injury by slipping or falling on the part of anybody who like the plaintiff sought to climb it using the brackets or lugs as footholds. The obligation under Regulation 73(2) is to provide safe means of access, not a safe means of access as was pleaded. The obligation to provide safe means of access is the obligation to secure the safety of the means of access which is in fact utilised: Australian Paper Manufacturers Pty. Ltd. v. Conyers (1962) 62 SR (NSW) 682. It is not necessary for a plaintiff who proves that the means of access chosen by him was unsafe to prove that no safe route in fact existed. According to Glass and McHugh, Liability of Employers 2nd ed., p 159, the employer may not be liable if the employee chooses a route which it was not reasonably foreseeable would be used as a means of access to a place of work. However, the possibility that employees like the plaintiff would use the scaffolding itself for the purpose of access to and from the working platform was a real one and not a remote or fanciful one. Mr. Morgan said that he had seen men climbing on scaffolding instead of using the end ladders. He claimed to have seen employees of the defendant and indeed claimed to have spoken to the plaintiff on one occasion after such an incident and told him to use the ladders. The plaintiff was not cross-examined on that precise point, nor did he choose to give evidence in reply to rebutt Mr. Morgan's evidence. I do not find it necessary to make a finding on that precise issue. However, I am satisfied that the plaintiff was injured as a result of the defendant's failure to provide suitable and safe access to a place at which the plaintiff had to work. No defence was raised under Regulation 74 that the special nature or circumstances of the work rendered impracticable compliance with the provisions of Regulation 73, and I find in favour of the plaintiff that the injury occurred as a result of the defendant's failure to comply with Regulation 73(2).

19. The duty imposed by Regulation 73(2) is, apart from the provisions of Regulation 74, an absolute one, and no question of the reasonableness or otherwise of the defendant's conduct is called into question. On the allegation of negligence, however, I find that the defendant's failure to comply with Regulation 73(2) did not amount to an unreasonable failure to take care for the plaintiff's safety in all the circumstances and I find for the defendant on the issue of negligence. On the allegation of breach of Regulation 73(1) again I find that the plaintiff has not discharged the onus of proof in establishing that the defendant failed to provide suitable and safe scaffolding insofar as I am not satisfied that the defendant failed to incorporate access stairs or ladders in the scaffolding.

20. On the question of contributory negligence, the onus is of course on the defendant. Again I find that the onus has not been discharged. I am not convinced that, despite the general practice relating to incomplete scaffolding or scaffolding in the course of erection, any notice was attached to or displayed on the scaffolding on which the plaintiff was injured which prohibited climbing upon it. I am not convinced that any precise instruction was given to the plaintiff to not climb on the scaffolding. I am not positively convinced that the scaffolding upon which the plaintiff was injured was equipped with stairs or ladders, I am simply unable to determine that question on all the evidence. No doubt if the plaintiff chose to climb the scaffolding when an access ladder was available, then he may well have been acting without due regard for his own safety. However, on my findings of fact that has not been shown. All that the defendant can rely upon is a finding that the plaintiff was climbing the scaffolding when there is no finding that there was an alternative available to him. Accordingly the defendant has not made out a case of contributory negligence. I turn now to damages.

21. The plaintiff was born on 5 July 1941 in Ireland and was 42 years of age at the time of his injury. He finished school at the age of 15 and became an apprentice carpenter. He completed his apprenticeship after he migrated to Australia in 1961. He married here in 1962. He and his wife have two adult children. He worked as a carpenter ever since his arrival in Australia. He was in good health except for a problem with his middle ear. He was operated on for that condition in 1965 although it continued to trouble him afterwards. He commenced employment with the defendant on the Parliament House site in 1982.

22. The plaintiff said that he saw his local practitioner, Dr Dawson, within 10 days and took a couple of days off work. Thereafter he said that the pain in his right leg grew progressively worse whilst he was at work. The pain was initially in the right knee area, but it grew more diffuse and moved upwards into the hip as well as downwards into the foot. The record of the nursing sister on the work site indicates that the plaintiff complained to her on 24 August 1983 of his injury and was referred to Dr Dawson the following day. However, the record also shows that the plaintiff reported to the sister on 2 September 1983 claiming to have struck his left knee against a scaffolding (it was noted that he was unfit to work until 8 or 9 September 1983). On 13 September 1983 the plaintiff was again complaining to the sister about his right knee and said that it was so troublesome that he was unable to work. The plaintiff was referred again to Dr Dawson and then to Dr Coyle, an orthopaedic surgeon.

23. In the meantime, the plaintiff had remained off work from 13 September to 24 October 1983. Dr Coyle, who saw the plaintiff on 20 October, was unable to find anything wrong with him and considered that he was fit to return to work.

24. However, the plaintiff went off work again on 1 November, had his employment terminated on 25 November and remained off work altogether until 14 May 1984. In the meantime he had seen Dr Danta, a neurologist, and Dr Lithgow who is an anaesthetist but who conducts a pain clinic at the Woden Valley Hospital. A TENS machine was prescribed and the plaintiff said that he was able to handle his pain at that stage with the use of the machine. The plaintiff's initial resumption of work on 14 May 1984 was at the Australian Defence Force Academy. By that time, work on the Parliament House site had ceased due to a strike. The strike ended some two weeks later and the plaintiff resumed employment with the defendant on the Parliament House site on 28 May 1984. The plaintiff says that at that stage he was able to cope well with his work. However, in July 1984 he quit work with the defendant, and said in his evidence that this was because by then his right knee had become too painful and he was unable to work at heights. He did not resume work again until February 1985 when he had found a job with the Master Builder's Association as a Field Officer. That work involved visiting work sites in the ACT in order to check the situation regarding apprentices. He was retrenched from that position in January 1986 because the Master Builder's Association's funds had become depleted. In March 1986 he commenced work in a supervisory capacity with the Concrete Holland Joint Venture at Parliament House but said that by July 1986 he could not cope with that job because of pain in the right knee. By that time he was under the regular attention of Dr Lithgow who administered a lumbar sympathetic block injection in August and September 1986. The plaintiff said that he was pain free after that second injection. At the end of 1986 he went on a trip overseas but when he was in Ireland the pain in his knee and adjacent areas returned. He was, of course, subject to the northern hemisphere winter, and he considers that the climatic conditions had something to do with the return of his symptoms.

25. The plaintiff returned to Australia and to work in February 1987. His condition grew worse. He developed, for the first time, pain in the lower back, which is first recorded in the medical evidence by Dr Danta in August 1987. At that stage, according to the complaints made to Dr Danta, the pain was moving from the right knee to the right hip. Dr Danta prescribed pain-killers, but the plaintiff became depressed, possibly as a side effect, and he ceased taking the pain killers. In the first half of 1988 the plaintiff was taking time off sporadically from his work, and in July 1988 his employer terminated his employment. Dr Lithgow stepped up the treatment for what he diagnosed as right lumbar sympathetic dystrophy. The plaintiff went into Woden Valley Hospital in August 1988 for five days and was subject to an epidural block under general anaesthetic twice. The following month, he submitted to a CAT scan at the John James Hospital. In October he underwent another epidural block as well as a myelogram at Woden Valley Hospital. In early 1989 he received three or four further epidural blocks. He underwent acupuncture on four occasions. In June 1989 a magnetic resonance scan was ordered by Dr Newcombe as a result of the plaintiff's complaints of low back pain and pain radiating into the right leg. A previous CT scan on 13 September 1988, also ordered by Dr Newcombe, showed a disc prolapse at L5/S1.

26. The emergence of the disc prolapse, not noted until more than three years after the injury on 15 August 1983, introduces a new element into the case. Dr Newcombe considered that the prolapse was responsible for the pain rather than other causes. Indeed, Dr Newcombe considered that it was likely that the plaintiff had twisted his back in the fall in 1983. By 10 August 1989 Dr Newcombe considered that the plaintiff was suffering from a chronic pain state although at that stage the pain was not in the lower back, rather extending from the buttock down the whole of the right leg. In any event, Dr Newcombe operated on 1 February 1990, performing a discectomy at the L5/S1 level. Although Dr Newcombe considered the prognosis good on the operative findings, the plaintiff was back again on 6 March 1990 complaining of pain which Dr Newcombe considered indicated persistent sciatica.

27. Dr Lithgow, on the other hand, was firm in his evidence that the plaintiff's problems derived from the lumbar sympathetic dystrophy. Dr Lithgow first saw the plaintiff on 1 May 1984 on reference from Dr Danta and has seen the plaintiff some thirty or more times since. Up until late 1987 the several lumbar sympathetic blocks administered by Dr Lithgow had resulted in temporary relief only over a period of 48 hours or so. Nevertheless, Dr Lithgow at that stage was optimistic that the plaintiff's condition would finally settle and he noted that the plaintiff was free of pain in the last six months of 1987. However, from Christmas onwards when the plaintiff was in Ireland, the pain reasserted itself and it was noted by Dr Lithgow for the first time as extending to the lumbar area. Dr Lithgow has more recently resiled from the use of the term "lumbar sympathetic dystrophy" which he says has now been renamed "chronic neuropathic pain with a sympathetically mediated component". However, this is a change in terminology only.

28. There is a good deal of other medical evidence which, however, is either inconclusive or unconvincing. Dr Danta saw the plaintiff early, on 1 December 1983, on reference from a rheumatologist, Dr Brook. Dr Danta found tenderness at the back of the right knee but found that tenderness difficult to explain and suggested that it might have been due to small haemorrhages and scarring. Dr Danta saw the plaintiff on 12 August 1987 when the plaintiff was back at work as a supervisor at Parliament House. At that stage he found that there was no tenderness and was unable to find anything abnormal at all on examination. According to the plaintiff's history he was free of pain by July 1986 but became worse when he went to Europe at the end of the year. In a report dated 18 April 1988, Dr Danta expressed the view that the plaintiff's condition was a soft tissue injury complicated by reflex sympathetic dystrophy but was not a condition of sciatica. At subsequent examinations on 14 December 1988 and 9 March 1990, Dr Danta noted the symptoms as the plaintiff deposed to them in his evidence, and maintained his opinion that the diagnosis was lumbar sympathetic dystrophy. Dr Danta noted that Dr Newcombe had operated to decompress the S1 nerve root, but does not comment otherwise on the significance of that procedure or on the CT scan showing the lumbar prolapse.

29. Dr Fearnside is equivocal about whether the plaintiff's symptoms firmly suggest reflex sympathetic dystrophy. Professor McLeod disagreed with the diagnosis of reflex sympathetic dystrophy but nevertheless considers there is a clear relationship between the injury to the plaintiff's knee and his persisting condition. Professor McLeod considers the condition is a chronic pain syndrome, and that Dr Newcombe's findings at operation explain only some of the characteristics of the leg pain. Dr Andrews is of a similar view. Dr Stubbs, an orthopaedic surgeon, doubts whether the plaintiff's condition is one of reflex sympathetic dystrophy but concedes that is not his speciality and his view appears to be based largely on the conclusion that the plaintiff was strongly exaggerating his symptoms.

30. In his amended reply of 12 April 1990 the plaintiff alleges that the issue whether he was incapacitated for work between 5 November 1983 and 14 May 1984 as a result of the injury in question has been determined by a Magistrate sitting as an Arbitrator under the Workmens Compensation Act in an award made on 5 July 1984. The defendant does not, and cannot, contest that it is estopped from denying that the injury resulted in incapacity during that period. However, there is no estoppel on the question of what it was that constituted the medical basis for the incapacity.

31. A strong attack on the plaintiff's credit was made on behalf of the defendant. The plaintiff was indeed not an impressive witness and his memory appears to be selectively vague. The injury to his right knee appeared to be almost trivial at the time and overshadowed in the first few days by the injury soon after to the left knee. The pattern of pain distribution which radiated up and down away from the site at the right knee is unusual and one not commonly encountered. In contrast, the complaints of pain radiating down the right leg from the lumbar area where subsequent radiological investigation indicated a disc prolapse presents a coherent picture. On the other hand, despite these curiosities, the plaintiff's complaints of pain in the right leg and hip area have been consistent over a considerable period of time, and he has subjected himself to a very prolonged course of treatment which has undoubtedly been unpleasant in itself. The plaintiff's evidence to some extent is corroborated by that of his wife and I have no reason to reject her evidence.

32. Although there is considerable doubt about the matter I am in the end convinced on the probabilities that the plaintiff has been incapacitated for work from time to time for the periods to which I have referred because of a debilitating condition in the right leg and on occasions extending into the right foot, the right hip and the buttock and lumbar areas. On the whole I think that the most likely cause is the reflex sympathetic dystrophy, to which has been added a factor which, for want of a better term, may be called chronic pain syndrome. I reject the view that he suffered a low back injury when he fell from the scaffolding. The plaintiff's disability has been complicated by what appears to be a real lumbar disc prolapse, for which the defendant is not responsible, and the damages will exclude an award for loss of earning capacity for the period in hospital and several weeks thereafter. At the present, and for the future, I think that any aggravation or contribution by virtue of the sciatica or lumbar disc problems has not been proved. The condition, however, does not prevent the plaintiff carrying out all forms of remunerative work and in my view he has a substantial residual earning capacity. He is, in my view, quite capable of carrying out the sort of work he carried out as a Field Officer with the Master Builder's Association, that work becoming unavailable to him because the employer was no longer in a position to supply it. I think that work of that nature is available in the Canberra area from time to time, but allowance has to be made for the possibility that it is not readily available and is not permanent. I think when this case is finished the plaintiff may be emboldened to try harder to find some suitable work for himself. On the assumption that the plaintiff's lost earnings and absences from work are caused by the 1983 accident, it is agreed that the plaintiff's loss of income is $49,150.00. However, that figure must be reduced to take into account the fact that for a period the plaintiff was in hospital through no fault of the defendant. Consequently, I award the plaintiff $47,000.00 for past loss of income.

33. I think the plaintiff should be regarded as having a working capacity for the future which could yield him the income he obtained as a field officer. Relying upon a pro rata calculation based upon his earnings for 1985-1986, I find that the difference between the likely wage of a field officer and a comparable award for a carpenter is $102.00 per week net and I use that as an initial basis for assessing the present value of the plaintiff's loss of earning capacity into the future. The prognosis for the future from a medical point of view is poor, but it is also vague and uncertain. The likelihood, in my view, is that it will continue for a couple of years or so, but after that it is quite unrealistic to speak in terms of probabilities. All that can be said about that period of time from a couple of years hence is that something should be awarded to the plaintiff as a hedge against the contingency that his present condition might continue. Approached in this way, other factors which the defendant relied upon do not appear to be of any real significance. These included the plaintiff's susceptibility to chronic ear infections with deafness in the left ear and a tendency to dizziness which gives rise to the suggestion that it is dangerous for him to work at heights. There is also the contingency that if in fact the plaintiff's present condition was caused or contributed to by a twisting injury to the spine when he fell, then it would have been likely that he would have suffered some similar trauma to the spine at some time during the course of his working career. When that would have happened is, of course, impossible to say, but it is a factor which cannot be ignored. Nevertheless those are matters that although they have to be taken into account are of such imprecision and vagueness that it is inappropriate, in my view, to try to fit them into any mathematical formula. I take them into consideration in arriving at the figures which comprise the various components of the award of damages.

34. For the past loss of earning capacity I award $47,000.00. For future loss of earning capacity I award $102.00 per week for two years which gives a figure of $8,500.00 after allowing for appropriate discounting and I would award a further $20,000.00 on top of that as a hedge against the plaintiff's continuing capacity beyond a period of two years and to allow for the fact that field officer work is more difficult to obtain than work in his pre-injury capacity as a carpenter. That makes a total of $28,500.00 for loss of future earning capacity. Past out-of-pocket expenses are agreed at $20,941.97. Pain and suffering and loss of enjoyment of life, including a component for future out-of-pocket expenses, I assess at $30,000.00 as to which I award $20,000.00 for the past. Interest will be awarded on that past component on the usual basis, and I fix that interest at $11,000.00. The difference between net worker's compensation paid of $5,756.80 and the award for past loss of earnings is $41,243.20. Interest is likewise awarded on that past component on the usual basis and I fix that component of interest at $24,500.00. The Fox v Wood [1981] HCA 41; (1981) 148 CLR 438 aspect is agreed at $1,728.78. Total damages are $128,170.75 plus interest of $35,500.00 which, when viewed globally, appears to be an appropriate award. I therefore direct the entry of judgment in favour of the plaintiff in the sum of $163,670.75. On the claim under Regulation 73(2) made pursuant to the Scaffolding and Lifts Act 1912-1948, I direct judgment for the defendant on the claim of negligence, and in the claim under Regulation 73(1) made pursuant to the Scaffolding and Lifts Act 1912-1948. Unless the parties wish to be heard, I propose to order that the defendant pay the plaintiff's costs.