Barry Donovan v Koppers Australia Pty Limited [1992] ACTSC 106 (22 October 1992)

SUPREME COURT OF THE ACT

BARRY DONOVAN v. KOPPERS AUSTRALIA PTY LIMITED
No. SC 422 of 1990
Number of pages - 15
Negligence

COURT

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

CATCHWORDS

Negligence - Personal injury - Injury to back whilst lifting logs - Unsafe system of work - No new issue of principle.

HEARING

CANBERRA
22:10:1992

Counsel for the Plaintiff: Mr M Inglis

Instructing solicitors: Messrs Scott Sheils and Glover

Counsel for the Defendant: Mr G Gregg

Instructing solicitors: Messrs Macphillamy Cummins and

Gibson

ORDER

The Court orders that:
1. There be judgment for the plaintiff in the sum of

$187,571.00.

DECISION

HIGGINS J. The plaintiff claims damages for injury to his back whilst lifting logs at the defendant's premises on 25 May 1989. At that date, the plaintiff was employed by the defendant as a sawmill hand. The defendant's business was the treatment, and cutting to appropriate lengths, of logs of wood. The plaintiff had been engaged by the defendant on 28 March 1989.

2. There was some dispute as to how the accident happened.

3. The plaintiff gave evidence that there was, at the defendant's premises, a docking saw within an open-sided shed. The docking saw could receive treated logs usually about 4.8m (or 15.7ft) long and 20-25cm (or 8"-10") in diameter, tapering at one end to 13-18cm (or 5"-7"). The logs would be bundled in a "sling" held together by wire bands. When the sling was positioned by a forklift truck on a bench designed to receive it and to feed the logs to the docking saw, the wire straps would be cut by bolt-cutters. The logs would then feed into the saw and be cut into preset lengths. The cut lengths would then be stacked onto cradles to be taken away for further fabrication.

4. That formed part of the duties the plaintiff performed.

5. On 25 May 1989 the plaintiff commenced work about 6.00am. He went first to the docking section. He was with two other mill hands he knew as "Darren" and "Lucas".

6. Before morning tea time (10.00-10.30am) probably about 8.00am, the docking saw broke down. The plaintiff said that this information was then conveyed to "Barry", whom he described as "the foreman".

7. A sling of logs was then deposited in the vicinity of the docking shed, but outside of its perimeter. The plaintiff says that the foreman then directed them to cut those logs manually. The logs were dumped in a sling on the ground about 5 metres away from the concrete apron that was the floor of the docking shed.

8. The plaintiff says that the sling was "busted open" by use of bolt cutters. First, two logs were laid parallel to act as skids, being about 1.2 metres or 4ft apart. Logs were then placed at right angles to those logs for use as "skids". The remaining logs were then marked and cut with a chain saw to the appropriate lengths after being positioned on the skids. Lucas was cutting and marking whilst Darren and the plaintiff lifted, carried and positioned the logs on the skids.

9. After lifting 4-5 logs, the plaintiff says that he felt pain in his back. Darren had been lifting the narrower end of the log then being carried. It had been lifted to knee-high. The pain was felt by the plaintiff in his lower back, in the centre just below his belt line.

10. He says that he put the log down at that point. He then took over marking and cutting the logs. It had been a very sharp pain but the plaintiff says that he thought it was a kidney pain, possibly a chill as a result of the cold weather.

11. After two slings were processed the plaintiff and his fellow workers were, he said, sent down to a more open area in the yard. The plaintiff's back was still sore but he continued marking and cutting.

12. In this area, 50 or 60 metres from the docking shed, there were bigger logs to be cut. The plaintiff did not have to lift any of those logs. They were placed directly on skids that were permanently in place, by a forklift.

13. Later, the plaintiff was told by the leading hand, whom he knew as "Wayne", to go to the Fabrication Shed. He says that he complained to Wayne that he had hurt his back. Wayne told him "It's alright, its a light job".

14. The duties in the Fabrication Shed involved feeding logs through a saw. Lifting and bending was not required.

15. The plaintiff says that the next day his back was still painful. He saw his doctor. He attended with a letter from his doctor corroborating his unfitness. The date on which he did so, he could not fix with certainty. He returned to work on 31 May 1989 but remained unfit. He was put off work forthwith. He was told, he says, by the foreman (Barry Cuzner) to go home and return the following Monday. His employment was formally terminated on 5 June 1989.

16. He obtained a compensation claim form from the employer's insurer but, he says, he got no co-operation in completing it from employees of the defendant. He then took it directly to the insurer's office.

17. It was put to the plaintiff that he had been directed by a supervisor identified as "Murray" to go to the area in the yard where the larger logs were situated. The plaintiff recalled a person named Murray but denied that Murray had been involved in the task described.

18. It was also put to the plaintiff that on the day of his injury he had gone to see a fellow employee named Darren Salerno at the latter's home. This was, it seems, the "Darren" previously referred to. The plaintiff agreed he may have seen Mr Salerno a few days after the accident, with a view to Mr Salerno being "a witness". He agreed Mr Salerno had refused to assist him saying "I don't want nothing to do with it". Indeed the plaintiff at one stage suggested that the conversation referred to may have been some months after his injury. In any event, he said that it was after he had obtained a compensation claim form and after he had consulted a solicitor about the matter.

19. It appears, I note, that the claim form was, in fact, signed on 14 June 1989. It follows, I think, that the plaintiff must have spoken to Mr Salerno before that date. The plaintiff's recollection was faulty in this respect. It seems to be common ground, however, that he spoke to Mr Salerno generally along the lines suggested to him.

20. It was also suggested to the plaintiff that Mr Salerno had said to him "I won't lie for you". The plaintiff denied that but said that he told Mr Salerno "Hope it doesn't happen to you some day. You'll be left in the cold same as me". The plaintiff denied that he had complained of pain in his back prior to the date of his alleged injury and in the course of his employment by the defendant. It was suggested that he had so complained "regularly", to Mr Salerno. It was also suggested that the plaintiff had not been working with Mr Salerno at the docking shed on the day of his alleged back injury. He denied that but did agree that, when working in the yard with the larger so-called "rural" logs, the slings of such logs were lifted by the forklift onto the skids which were permanently located there.

21. There was nothing in the demeanour of the plaintiff to suggest that he was not doing his best to tell the truth. Of course, that does not end the matter. A witness, though honest, may simply be wrong. Further, the impression given by a witness may be misleading, particularly where the evidence given by that witness is shown to be at variance with other evidence which is accepted. There was a suggestion that the plaintiff's credit was adversely affected by his inconsistent or exaggerated account of his disabilities. For reasons which I expand upon later, I am not persuaded that this suggestion should be accepted.

22. Of more significance is the testimony of those persons who, if the plaintiff's evidence is to be accepted, should have been eye-witnesses. Some of them were called by the defendant.

23. The first such witness to give evidence was Mr Salerno. He had worked with the plaintiff at the defendant's premises for a couple of months. He had left the defendant's employ about three years ago. He confirmed that, on 25 May 1989, there was a task being performed of cutting 4.8m logs to 2.4 and 2.1m lengths. He recalled that the belt on the docking saw broke. A chain saw was then used.

24. He said that he was performing those duties at the docking shed with the plaintiff and Lucas Lovelock. The latter was, I infer, the same person as the "Lucas" referred to by the plaintiff. The logs were set up on beams used as skids. Lucas cut the logs after he and the plaintiff had set them up and marked them. He said that after finishing at the docking shed, they went down to the other site where the larger "rural" logs were marked and cut.

25. His account differed from that of the plaintiff in that he said that the skids used at the shed, whilst they did run onto the concrete, were only 10 feet long, that is, only 3.05m long. He denied that they were part of the slings of logs awaiting cutting. He also denied that he had ever lifted a 4.8m long log with the plaintiff or with anyone else. He said that the only lifting was of the cut logs of 2.4m or 2.1m length. They were lifted onto the cradles provided. It was his recollection that Lucas had the chain saw and that the task was not "that long" (whatever that meant).

26. He did say that whilst they were working that day at the docking shed, the plaintiff complained of a sore back. That was "the day before he went off". The plaintiff, of course, had "gone off" on 26 May. What Mr Salerno meant was not entirely clear but I take him to confirm that the complaint of pain was made on the day the docking saw broke down which was the day before the plaintiff went off work. That is, at least, consistent with the sequence of events the plaintiff deposed to.

27. Mr Salerno was asked about the visit to his home made by the plaintiff. He alleged that the plaintiff put it to him that he (Mr Salerno) had seen the plaintiff hurt his back. His evidence was, "I said I didn't and I wouldn't lie for him."

28. He then asserted that he had lifted 4.8m logs (contrary to his evidence given on the previous day) but maintained his denial that he had done so with the plaintiff.

29. Contrary to the suggestion put to the plaintiff, Mr Salerno could identify only one occasion when the plaintiff complained of a sore back. He also agreed that the plaintiff did "straighten" the logs on the skids set up at the docking saw shed but denied that he lifted them.

30. Skids were not usually necessary on the docking saw shed floor or apron. Mr Salerno could not recollect how or when they were placed down after the docking saw broke or where they had come from.

31. In cross-examination, Mr Salerno conceded that his memory was "a bit hazy". However, he was "positive" the first group of logs were not placed on the ground adjacent to the skids. He also agreed there were 20 logs in a sling. He also agreed that, if the logs got "jumbled" on the skids, it would have been necessary to lift them to enable them to roll easily along the skids to be marked and cut.

32. There is a difficulty with Mr Salerno's account of events at the docking saw shed. If the "skids" at the docking saw shed were only 10 feet long, it is difficult to see how they could accommodate 20 logs after the straps confining them were cut, even if some remained stacked on top of others. If they could not, some would need to be lifted onto the skids. It also seems to me more likely than not that, skids being required, they would more conveniently come from the first sling cut open and the remaining logs would be placed onto them.

33. Mr Barry Cuzner was foreman for the defendant at the time of the plaintiff's reported injury. He gave evidence that during May 1989 there was an occasion when the docking saw broke down. He deposed that he then told the plaintiff to go with Murray Fleming (the leading hand) to the stacks of "rural" logs with Darren Salerno and Lucas Lovelock. There the plaintiff was engaged in marking, cutting and stacking those logs.

34. He denied that the plaintiff had ever complained to him of any back injury. He did, however, recall being given a letter from the plaintiff's doctor after the date of the alleged injury. He did agree, however, that before he went off work, the plaintiff had enquired whether he would be retained in the defendant's employ after his "Job-Start" placement finished. Mr Cuzner had told him that he would. Since 1989, however, the number of workers employed by the defendant had fallen from about 26 to 6 due to a decrease in demand. Mr Cuzner deposed that the plaintiff, even if he was fully physically fit, would not have been likely to have been one of those retained.

35. Whilst Mr Cuzner emphatically denied that the plaintiff had told him that he had hurt his back, he was obliged to concede, in cross-examination, that he had previously made a statement in writing agreeing that the plaintiff had come to him with a medical certificate from his doctor following his alleged injury and had, at least then, told him that he had hurt his back on or about the date referred to in the certificate.

36. That there was such a medical certificate is corroborated both by the defendant's answers to interrogatories and a note by Dr De Sailly, the plaintiff's general practitioner, dated 26 May 1989.

37. On 14 June 1989, the plaintiff left a note with the office of the defendant's insurer complaining that the defendant had refused to complete the compensation form he had previously obtained from the insurer. He also complained that he went to see one of the witnesses (presumably Mr Salerno) for his name and address "but he would not give it to me". That is a contemporaneous record tending to corroborate the plaintiff's version of events.

38. His complaint to his doctor on 26 May 1989 had been of an injury at work to his back whilst "working pick up logs for Koppers". That, again, is a contemporaneous record tending to corroborate the plaintiff's account.

39. There was tendered in evidence a report from Boris Osman and Robert Nicholson of Boris Osman Pty Ltd, Consulting Engineers. They estimated the weight of a 4.8m log as described, if dry, as being approximately 125lb or 275kg. If the timber had been wet, the weight would have been up to 20% greater, depending on the extent of moisture present.

40. The generally accepted industry standard for lifting and carrying objects, they said, would have been 32-50kg for an adult male. This proposition was not challenged by the defendant.

41. It is clear, therefore, that lifting a 4.8m log of the diameter described, even if no significant moisture was present, particularly on the "heavy" end, would have significantly exceeded the industry safety standard.

42. The answers to interrogatories make it clear that the defendant was aware that it should not permit workers to lift 4.8m logs. Even two persons lifting a 2.4m log would be lifting somewhat in excess of the industry standard unless the log was both dry and narrower than 22.5cm in diameter.

43. I note that Mr Lovelock was not called. This is despite the fact that as soon as the plaintiff indicated that he had been injured lifting logs the defendant's supervisory staff exhibited an attitude of hostile scepticism. It may be inferred that all witnesses would have been consulted. Mr Lovelock's absence was not explained.

44. Mr Murray Fleming, the leading hand, was not called by the defendant. His absence was also unexplained.

45. The account given by Mr Salerno was internally inconsistent. It conflicted in important respects with that of Mr Cuzner.

46. Whilst Mr Salerno did, as I have noted, confirm that the complaint of pain made by the plaintiff was the day before he went off work, he also stated at another stage of his evidence, that the complaint of back pain had occurred a "couple of days" before the plaintiff went off work. That assertion is not consistent with the plaintiff's consultation with Dr De Sailly on 26 May 1989. It is also inconsistent with his evidence confirming the complaint was the day before the plaintiff went off work. I have also noted that Mr Salerno also contradicted his own assertion that he never manually lifted 4.8m logs.

47. Mr Cuzner denied that any work was carried out at the docking shed after the saw broke down. This denial is contradicted by the evidence of Mr Salerno.

48. Given the absence, not only of Mr Lovelock, but also of Mr Murray Fleming, I consider it more likely than not that the events happened as described by the plaintiff. I have to say I did not find either Mr Salerno or Mr Cuzner impressive as witnesses. Insofar as their evidence differs from that of the plaintiff, I prefer the latter's account with the proviso that he was not accurate as to times which elapsed between the various events he described.

49. It follows that I am satisfied that the plaintiff suffered a back injury on 25 May 1989 at the defendant's premises. I am also satisfied that the injury was caused by the defendant failing to ensure that logs were not lifted manually. I am satisfied that such manual lifting was done by two men only, one of them being the plaintiff until he suffered pain in his back. That lifting could have been avoided by discontinuing the cutting of those logs until repair of the docking saw was effected. It was also possible to position the logs by forklift rather than manually.

50. I am satisfied the plaintiff was neither warned of the risk nor was he relevantly instructed to avoid it.

51. It follows that the defendant is liable for the injury to the plaintiff. I find that there was no contributory negligence on the part of the plaintiff. He simply worked as directed.

Damages
52. The plaintiff says that after he hurt his back he continued to feel considerable pain in that area. It continued to be sore though he did no more lifting or bending. He was still in pain the next day. That was Friday, 26 May 1989, the day that he went to Dr De Sailly.

53. He remained off work until 31 May 1989, the following Wednesday. I infer that the medical certificate made out by Dr De Sailly on 26 May 1989 would have been given to Mr Cuzner sometime between 26 May 1989 and 31 May 1989.

54. The plaintiff's employment was, it is not disputed, formally terminated on 5 June 1989. It also appears that the plaintiff was unable to work on 31 May 1989 because of his painful back.

55. Thereafter, the plaintiff was referred to Dr Newcombe, a neurosurgeon, to Dr Corry, a rehabilitation specialist and to Dr Garrick, a neurologist.

56. Dr Newcombe saw the plaintiff on 23 June 1989. The plaintiff was then complaining of low back pain. X-rays were taken. They revealed

"... lumbar spondylolisthesis Grade 1 at the lumbo-sacral
level with defects of the pars interarticularis involving the L5
neural arch."

57. After review on 9 February 1990, Dr Newcombe considered surgery to be indicated. He felt that surgery would give the plaintiff a chance of relief from the chronic low back pain and of a return to work.

58. Dr Corry first saw the plaintiff on 1 August 1989. He noted a complaint of the sudden onset, on 25 May 1989, of acute lower back pain whilst lifting logs. Physiotherapy and rest had failed to correct those symptoms. The plaintiff gained some relief from medication and steroid injections prescribed by Dr Corry. An ongoing exercise program and vocational counselling was recommended.

59. Dr Corry also noted that the plaintiff had limited literacy and numeracy skills. He did not have much to offer in lighter but unskilled employment fields. He was reviewed on 25 February 1992. Dr Corry noted that the plaintiff's condition had deteriorated. Lower back pain continued and limited the plaintiff's tolerance for various physical activities. Dr Corry noted that the plaintiff had not, however, been actively seeking light duties.

60. Dr Corry also found numbness in the foot on walking. That, with the distribution of pain, he thought, suggested S1 nerve root compression.

61. A detailed assessment was performed on 19 March 1992. It was a physically demanding test but Dr Corry noted that the plaintiff co-operated despite inappropriate "grimacing" and back rubbing. However, the plaintiff reported residual pain following these procedures as moderate. There was found to be a loss of stability at the L5/S1 level. The degree of disability found was consistent, in Dr Corry's opinion, with

... chronic, recurrent low back symptoms. Consequently, unless
his spine can be stabilised either through strengthening, and if
that fails, surgery, he is in my opinion unfit for any
employment."

62. Although the plaintiff did not try as hard as he might and, perhaps, at times exaggerated his difficulties, the genuine level of difficulty was perceived by Dr Corry to be sufficient to warrant the conclusion so expressed.

63. Dr Raymond Garrick examined the plaintiff at Dr De Sailly's request on 12 March 1991. He is a neurologist. Dr Garrick confirmed Dr Corry's opinion that the plaintiff would continue to be unfit to return to his previous employment. He was fit only for "light" or sedentary duties.

64. More recently, on 11 February 1992, Dr David Roebuck, an orthopaedic surgeon, examined the plaintiff at the request of his solicitors. Dr Roebuck noted that the plaintiff had a spondylolisthesis of L5 on S1 before the accident he described but was without symptoms until that event. Dr Roebuck concluded that the accident at work was responsible for the plaintiff's present symptoms. He said

"He is unfit to return to his pre-accident occupation as a
labourer and permanently so because of his accident.
He has an 18% permanent impairment of his back as a result of
his accident at work of May 1989 and there is no treatment
including surgery that would significantly alter his condition
nor improve his symptoms nor reduce his disability."

65. The defendant's case was twofold on the issue of damages. It was suggested that the plaintiff's back was in fact symptomatic before the lifting episode of which he complained. It was also contended that he had exaggerated the degree of his disability.

66. It is true that, if taken literally, the plaintiff asserted a degree of disability not supported by the medical evidence or his own description of his post-accident activities. He said, for example, he could only lift a half-full bag of groceries. However, he also conceded that he can lift and use a vacuum cleaner, albeit with painful after-effects on following days. He has lifted a television set and assisted to move a refrigerator. He described his limping as constant but subsequently modified that description to "most of the time".

67. I have to say that I accept the description of disabilities recorded by the plaintiff's doctors as more representative of the true extent of the plaintiff's perception of his level of disability. His tendency to exaggerate is not, in my opinion, occasioned by a desire to deceive but rather is a reflection of his lack of verbal skills.

68. The plaintiff's efforts to find work were criticized as being less than enthusiastic. However, the plaintiff does not deny that he has the physical capacity for light duties such as courier work. He says that he can drive a motor vehicle.

69. Again, I believe that the assessment given by the plaintiff's doctors accurately reflects the plaintiff's perception of his level of incapacity. Allowance needs to be made for the residual capacity the plaintiff possesses.

70. None of the plaintiff's doctors were cross-examined. The defendant tendered reports from Doctors Still, Hughes and Skapinker. The plaintiff had also attended a Dr Fowler at the defendant's request. No report from that doctor was tendered. I make the conventional assumption that his or her report would not have assisted the defence case. It might be thought surprising, in view of the opinions expressed in the reports which were tendered, that there was no cross-examination of any of the plaintiff's doctors. There was no cross-examination either of any of the defendant's doctors. I am, as a result, left to assess the medical evidence on the material in the reports and the plaintiff's own evidence.

71. Dr Still examined the plaintiff on 19 July 1989. His history and examination is consistent with that of the plaintiff's doctors. However, Dr Still, whilst accepting that the symptoms of which the plaintiff complains may have been precipitated by the accident of 25 May 1989, felt that the cervical pain was unrelated to it or was a mere temporary aggravation. The low back pain he felt was precipitated by the accident. Dr Still is in agreement with the plaintiff's doctors in viewing the lumbar symptoms as precipitated by the lifting episode operating on a congenital defect rather than itself being causative of a discrete lumbar disc injury.

72. He concluded that the plaintiff remained unfit for heavy work but might gain some benefit from exercise programs. Dr Still specialises in the treatment of sports injuries. There is nothing in his report at variance with the opinions expressed by the plaintiff's doctors.

73. Dr Lloyd Hughes, an orthopaedic surgeon, examined the plaintiff on 5 October 1990. Dr Hughes noted complaints of back pain and observed that the plaintiff had apparent difficulty in moving. Dr Hughes differed from the plaintiff's doctors in that he expressed the opinion that the continuing symptoms of which the plaintiff now complains are due to the pre-existing degenerative condition rather than the lifting incident.

74. If that opinion is intended to indicate that the plaintiff would be as disabled by reason of back pain as he is now, even if the lifting episode had not occurred, it is not supported by any reasoning process medical or factual. It is contrary to the opinions of the plaintiff's treating doctors as well as that of Dr Roebuck. It seems to me that Dr Hughes is merely drawing attention to a possibility which he has, I think, inappropriately expressed as an opinion. Given the continuous history of symptoms since the accident I consider that the only rational conclusion is that the lifting episode rendered the pre-existing back defect permanently symptomatic. Insofar as Dr Hughes is to be taken as suggesting otherwise, I believe he is wrong.

75. Dr J J Skapinker, a neurosurgeon, also examined the plaintiff. He did so on 2 March 1992. Miraculously, if Dr Skapinker's account of his examination is to be believed, the plaintiff had by this date been restored to full health. He walked "well with no signs of discomfort and no limp". His back movements were unrestricted. Whilst occasional neck pain was complained of, there was, happily, no disability noted. Whilst the X-ray did show a "bilateral Pars defect with Grade 1 spondylolisthesis, Schmorls nodes and narrowing of the L5/S1 space", there was, nevertheless, "no disability".

76. Dr Skapinker was prepared to concede a "muscular ligamentous strain" had occurred on 25 May 1989. After 6-12 weeks, according to Dr Skapinker, there should have been full recovery, including a return to work. Although the defendant did not rely on it, I was concerned to note that Dr Skapinker appeared to rely on the soles of the plaintiff's shoes showing equal wear as support for a conclusion that the plaintiff did not usually have a limp. He conceded that the plaintiff "showed a limp" at the beginning of the examination but asserted that the limp was not shown when the plaintiff walked away.

77. Dr Skapinker did, nevertheless, support a restriction on the plaintiff lifting heavy weights but only because of his congenital defect.

78. This account of the plaintiff's presentation is quite perplexing. If the plaintiff was skilled at exaggeration and at practicing an appearance of disability, it is strange that he dropped that pretence as soon as he saw Dr Skapinker. On the other hand, if he presented to Dr Skapinker as he presented to every other doctor whose reports or notes have been tendered, it must follow that Dr Skapinker's account of his presentation is false. I consider that the latter proposition is the more probable, having seen and heard the plaintiff in the witness box. Whilst I accept that the plaintiff does, verbally and by gesture, attempt to convey that he is in pain in a manner that objectively exaggerates it, he really does have severe pain and disabilities. It follows that I do not accept Dr Skapinker's premises or conclusions where they are at variance with the medical practitioners whose reports were tendered for the plaintiff.

79. I accept that the lifting episode of 25 May 1989 rendered the plaintiff's lower back symptomatic. Those symptoms vary in severity from time to time but are sufficiently severe to exclude the plaintiff from his previous employment. He has no clerical skills. As a result he is able to perform only light manual labour. On that, at least, there is unanimity. He has also had neck symptoms but those seem to have been of secondary importance, probably related to postural changes flowing from the lower back and leg symptoms.

80. It is possible that the lower back would have become symptomatic even without the excessive load the plaintiff was subjected to on 25 May 1989. However, it must be accepted that he had done similar work over many years, absent the excessive load, without any apparent symptoms. Despite the suggestion to the contrary made to the plaintiff in cross-examination, the defendant could point to no evidence of time lost for, or previous complaints of, low back pain.

81. For general damages I award the sum of $40,000.00. That is a figure which has been discounted to reflect the possibility that the back condition might have become symptomatic in any event. It is difficult to quantify that chance. It would have been slight at the time of the accident on 25 May 1989, but increasing as the plaintiff approached retirement.

82. I would attribute 50% of the award to the past for the purpose of assessing interest thereon. Over the period since 25 May 1989, at 2% on the total, I award $965.00 (in rounded figures).

83. As to loss of earning capacity for the past, it must be noted that the plaintiff had a history of occasional unemployment. There was one occasion when that period was of two years duration. Another occasion was approximately one year in duration. That, however, is not the only side of the picture. The plaintiff also has had periods of 8-10 years and 8 years continuous employment respectively, ending, in each case, only when the business he was working for closed down. He was probably out of work for no more than a total of four years out of the 26 years preceding his injury. I accept, of course, that with age, some physical degeneration and a tighter employment market that favourable ratio would have declined somewhat in the future, even without the injury he suffered.

84. Indeed, the defendant's declining employment needs since 1989, as deposed to by Mr Cuzner, clearly illustrate the difficulty which a person such as the plaintiff would have had even if fit.

85. Had the plaintiff been employed from 25 May 1989 to the present he would have earned, it is conceded, at the rate of not less than $315.98 net per week. The loss would have been (the parties agree) $52,452.68 net. I discount that by approximately 30% to take account of the balance of the unfavourable contingencies over those more favourable. I also take account of the possible availability of light duties, although I consider that prospect to have been relatively improbable in view of the plaintiff's history of injury, as it would have been perceived by an employer, the notoriously tight job market and the lack of skills the plaintiff has to offer. I award $36,500.00 for the past loss of earnings. There has been no compensation or other payment on account of that past loss. I therefore award interest on that sum at 14% averaged over the period since 25 May 1989. That is approximately $6,175.00 and I award that sum.

86. So far as the future is concerned, I assume the plaintiff would have worked until age 60 if he had been physically able to. I accept that he would have been more at risk of disability in the future, particularly from back pain, and of unemployment either generally or following the onset of disabilities. There must also be brought into account the plaintiff's residual earning capacity. If there had been a total loss of earning capacity, the loss would be valued at approximately $200,000.00. I consider that a net discount of 50% reflects the balance of the residual capacity and of the various contingencies. I award $100,000.00 for loss of earning capacity in the future.

87. The plaintiff presently expends $10.00 per fortnight on medication. Allowing for contingencies, I award $3,000.00 for future medical expenses.

88. The out-of-pocket expenses to date are agreed to be $931.00. I see no reason not to award that sum and I do so.

89. No other heads of damage were suggested as relevant.

90. The award should therefore be as follows:-

General Damages $40,000.00
Interest thereon for the past
component thereof 965.00
Past loss of earnings 36,500.00
Interest thereon 6,175.00
Future loss of earning capacity 100,000.00
Future medical expenses 3,000.00
Out-of-pocket expenses incurred 931.00
Total $187,571.00

91. I consider $187,571.00 to be appropriate viewed globally and I direct judgment for the plaintiff accordingly. I will hear the parties as to costs.