Mate Kuran v Ropaks Developments Pty Limited [1992] ACTSC 59 (19 June 1992)

SUPREME COURT OF THE ACT

MATE KURAN v. ROPAKS DEVELOPMENTS PTY LIMITED
No. SC 1399 of 1987
Negligence - Damages - Lower Back Injury

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Master A. Hogan(1)

CATCHWORDS

Negligence - Industrial accident - Lifting formwork - Instructions to worker - No issue of principle

Damages - Assessment - Personal injury - Industrial accident -

Lower Back Injury - Pre-existing degenerative disease - Aggravation - No issue of principle

HEARING

CANBERRA
19:6:1992

Counsel for the Plaintiff: R.E. Williams QC and B. Hull

Instructing Solicitors: Higgins Solicitors

Counsel for the Defendant: G.W. Neilsen

Instructing Solicitors: Hunt and Hunt

ORDER

THE COURT ORDERS THAT:
1. Judgment be entered for the plaintiff in the sum of $334,000.

2. I order the defendant to pay the plaintiff's costs.

DECISION

This is an action for damages for personal injury received by the plaintiff at work on 14 August 1985.

2. The plaintiff was employed by the defendant as a carpenter engaged in the construction and erection of formwork at the site of the new Parliament House. He injured his back while he and another worker were lifting into place a heavy formwork shutter. It was common for shutters of the type and size of the one that he was handling to be bolted together. With bolts in them they could be lifted into place by a crane.

3. The Statement of Claim alleges that the defendant, by its agent, directed the plaintiff that he should not put lifting bolts into the formwork shutter, but that he should lift it into place manually with the assistance of another employee.

4. It also sets out that the plaintiff's injuries were occasioned to him by breaches of the duties that the defendant owed to him as his employer, and by the negligence of the defendant's agents.

5. The particulars of negligence set out in the Statement of Claim are:

"(a) Failing to ensure the use of the safe system for lifting
such form work, namely, a crane or other lifting device.
(b) Failing to ensure in the absence of the use of a crane or
other lifting device that sufficient number of workers
were present to adequately cope with the weight of the
form work when lifting it.
(c) Requiring the plaintiff to put himself in a position of
danger without having provided adequate assistance to
enable the plaintiff to carry out the said work in safety
thus exposing him to an unnecessary risk of injury.
(d) Directing the plaintiff to lift an object that was too
heavy to lift.
(e) The plaintiff relies upon the doctrine of res ipsa loquitur."

6. The last particular may easily be disposed of. Neither the law nor the practice of litigation in the area of employers' negligence has yet arrived at the stage where the mere fact that a worker injures his back while lifting raises an inference that the injury was due to the negligence of the employer.

7. The plaintiff was born on 10 August 1951 in a village in Croatia. He went to high school and then spent three years as an apprentice in the building industry. After service in the army he obtained employment in various activities in the building trade. He came to Australia in 1977 and worked at first as a painter. After he acquired some facility with the English language he obtained work as a formwork carpenter. He obtained employment in that capacity with the defendant company in about 1980.

8. He was a hard worker. For sometime, while he was building his house, he had a second job as a cleaner at the high school in Phillip. He is married and has two children aged about 13 and 5.

9. One of the principals of the defendant was a man by the name of Antti Roppola. The other principals were his brother, Raimo Roppola, and a Mr Asko Aksila. The plaintiff was working with an apprentice carpenter, Mr Gary Aksila, who was the son of Asko Aksila. There was another workman employed on site, Mr Ulo Kirss. There is a dispute about whether Mr Kirss was the plaintiff's foreman or not.

10. The plaintiff's evidence in chief was that on Monday 12 August 1985 he and Gary Aksila had finished stripping form work off a wall and he asked Antti Roppola what job to do next. He said Mr Roppola told him to construct a shutter, flat on the concrete, near to the wall where it was to be erected. He said that Mr Roppola instructed him not to put any lifting bolts in it.

11. During the Monday afternoon he and Gary assembled the timber and plywood needed to construct the shutter. On the Tuesday they put the materials together.

12. A model of the shutter is in evidence. The first members laid down were two beams 4.9 metres long, made of oregon about 12.5 centimetres x 7.5 centimetres in cross-section. Across them were laid 18 bearers about 1.65 metres long of the same size timber.

13. On the bearers, in the position that would be at the bottom of the shutter when it was erected, were affixed plywood panels .45 of a metre wide. A further series of joists were then fixed to the bearers to enable another series of panels 1.2 metres wide to be separated from the other panel by a step of about .1 of a metre.

14. The plaintiff said that he and Mr Aksila constructed the shutter, fixing it together with 3 inch nails. The basic construction was finished during the Tuesday. The plaintiff also said that on the Tuesday afternoon he spoke to a dogman employed by the principal contractor on site, to arrange for a crane to lift the shutter. He said that the response that he received was that a crane would not be allowed to do the lift because the shutter did not have bolts in it.

15. On the Wednesday morning the work of preparing the shutter for erection was completed. Holes were drilled through the panels, to take the bolts that would hold the shutter in position against the weight of the concrete when it was poured, and the surface of the plywood was oiled. That work was finished by morning tea time. The plaintiff and Gary Aksila had morning tea together, but they were not joined by any of the other workers.

16. After morning tea the plaintiff asked Gary Aksila to look for someone to help them lift the shutter into position. He also went to look. They each searched on different floors. He could not find anyone to help. He came back to where the shutter was, to find that Gary had not found anyone either. The plaintiff decided that he and Gary would have to lift it into position unaided. His evidence was that he said to Gary, "If we don't do it we must go home. They give you the sack."

17. Because he was older and stronger he took up a position towards the middle of the shutter, while Gary was a little closer to the end of it. Some of the bearers at each position had been cut a little shorter so as to enable them to take hold of the longer ones, as one would take the handles of a wheel barrow, in order to commence the lift. They commenced the lift with bent knees and straight backs. When the shutter had been lifted to an angle of about 45 degrees, the plaintiff felt a pain in his back. He called out to Gary to stop. They stopped for some little while and then completed the lift.

18. The plaintiff went to sit down. He saw stars. He rested for a while and then finished work. He worked through the Thursday and the Friday and was present when the concrete was poured on the Saturday morning. During that time he felt pain but he thought that he had simply pulled a muscle.

19. Essentially, the defendant did not deny that the plaintiff was physically injured in the way that he described. It alleged however that the plaintiff had been expressly told not to lift the shutter into place by Mr Ulo Kirss, who was his foreman at the time. Its case also was that there was no crane available to do the lift, but the reason was that there was an industrial dispute going on at the time which involved the crane drivers. Mr Kirss proposed to get a sufficient number of men to help with the lift, and told the plaintiff to wait until he did so. He claimed that the plaintiff disobeyed his express instruction, and lifted the shutter while he, Kirss, was looking for the other men to help.

20. In cross-examination the plaintiff denied that Ulo Kirss was his foreman at the time. He denied that Mr Kirss had given him instructions not to lift the shutter. It was put to him, "Didn't he say to you words to the effect, 'Leave it alone, and I will grab some more Indians?'" He replied, "No, that's not true." It was put to him that Mr Kirss came back ten minutes later with three other men in order to try to help with the lift and he denied that.

21. Mr Kirss was called by the defendant. He said that he remembered the day of the accident. He did not see Mr Antti Roppola at work on that day. He said that he was the foreman in charge of the plaintiff and Gary Aksila. He could not remember whether he had been the person who had given the plaintiff instructions about the dimensions of the shutter to be made.

22. He said that at the time there was an industrial dispute involving crane crews and a crane was not available on the day of the accident. He could not remember how long the dispute had been going on before that day.

23. When first asked in evidence whether he had a conversation with the plaintiff before the accident, but on the day of the accident, he answered, "I can't recall it, unfortunately, no." When asked, "Was there any discussion about the shutter?". He replied, "I asked them not to lift it, not to position it until I go and get some more help." He said he told that to the plaintiff and Gary Aksila and that he used the words, "Don't lift it, I will go and get some more Indians." His evidence was that he then left and about ten minutes later came back with another three men to find the shutter erected.

24. In cross-examination it was his recollection that the shutter had not been built as an original, but had been repaired by the plaintiff over the previous day and during that morning. He said it had previously been lifted by a crane and that it had been bolted. He agreed that Mr Antti Roppola was probably the person who had given instructions about the work that was to be done on the shutter. He had not been asked to remember the events until about five years later, in 1989, when he was interviewed by an investigator. He could not recall the names of the three men whom he had brought back with him to help with the lifting.

25. Mr Kirss was cross-examined about a statement that he had made to the investigator, in a document signed by him on 11 July 1989, which is in evidence. It is clear from his cross-examination that it was the investigator who informed him that the accident had happened on 14 August 1985.

26. Gary Aksila was called by the defendant. He confirmed that he had been working with the plaintiff for the defendant company at the Parliament House construction site and that he was involved with the plaintiff in erecting formwork shutters. He remembered the occasion on which Mr Kuran injured his back, but he could not remember the day on which it had occurred.

27. He said that Mr Ulo Kirss was his foreman on that day, and that he saw a conversation taking place between Mr Kirss and Mr Kuran. He did not hear what the conversation was and he could not remember whether Mr Kirss came back sometime after leaving the place where he and the plaintiff were working. He could not remember anyone telling him to lift the shutter nor could he remember where he stood and where the plaintiff stood while they were lifting. He did not remember seeing Mr Roppola at the site. When asked, "Before the lift of the shutter, did Mr Kuran ask you to go and find somebody to go and help with the lift?" He replied, "I can't remember."

28. He could not remember whether they were constructing a shutter from new materials or repairing a previously existing one, nor could he remember whether there were bolts in the shutter.

29. He had been interviewed for the purposes of giving a statement only in February 1992. He agreed in cross-examination that he did not really have very much to recall at all about the period in August 1985. He did not remember Mr Kirss coming up to him personally before the lift and giving him any particular instructions. When asked, "And indeed as best you can recall now, he didn't come up to you and say anything to you in relation to the lifting of the shutter, did he?" He replied, "No."

30. Mr Antti Roppola was also called by the defendant. He confirmed that the plaintiff's foreman at the time of the accident was Mr Ulo Kirss. He could not remember giving the plaintiff any instructions about the construction or repair of the shutter. He believed that he was in Sydney on the day of the accident. He said that he did not ever tell the plaintiff to built a formwork shutter without bolts, nor did he ever tell him to lift a shutter by hand.

31. In cross-examination he could not remember the date of the accident. He had not been asked to recollect the occasion until the day before he gave evidence. He commented that it was so long ago that he could not remember, "all those little details". He did not know what shutter was being spoken about, and as far as he knew he never saw it. He conceded that it was possible that he might have given the plaintiff some instructions from time to time. Nevertheless he very much doubted whether he had given any particular instructions to him at about the time of the accident, because at that time he had a site foreman who would normally have given the necessary instructions.

32. One part of his evidence during the cross-examination did have the ring of truth to me, namely, that the practice was for heavy shutters to be lifted by crane. Any small formwork would be built in place. If any were large enough to need lifting by a crane they had to be bolted so that they would not come apart.

33. Enough has been said about the evidence to demonstrate that a central difficulty in deciding liability arises from the fact that the accident was not properly investigated within a sufficiently short time after it occurred.

34. I have approached the evidence of the plaintiff with considerable caution. I hope I have made appropriate allowance for cultural and linguistic difficulties. But the plaintiff was excitable and voluble and his counsel found it difficult to keep his answers to the point. I have found it more than usually necessary to test what he said against the inherent probabilities.

35. In that context I think that it is highly unlikely that Mr Roppola told him to construct the formwork shutter without any bolts in it. There is no suggestion of any reason why he would want to do so. It is quite apparent from its size and construction that it would be quite likely to come apart if any attempt were made to lift it, whether by crane or by hand, if it were not bolted together. It is even more likely that it would come to pieces when being stripped off the concrete after setting. The only evidence is that a crane did strip it off, and there is no suggestion that it then fell apart.

36. In fact, I think the most likely version of the work done on the shutter was that given by Mr Kirss, namely, that it was a shutter of a particular size and shape that had previously been constructed and used in other places on the site, and that the work that the plaintiff and Gary Aksila had done on it had not been to construct it from new, but merely to repair it. Part of the value of such an item would be that it could be used more than once, with only some slight repair or modification. It would not have that value if it were not bolted.

37. On the evidence therefore the plaintiff has not persuaded me that either Mr Kirss or Mr Roppola directed him not to put lifting bolts into the formwork shutter.

38. That finding however does not determine the action adversely to the plaintiff.

39. I am not satisfied that the defendant was in any way culpable in failing to have a crane available for lifting the shutter into place. That was the result of the industrial dispute. The plaintiff can not succeed, therefore, on the basis of the particular of negligence pleaded in paragraph 5(a) of the statement of claim.

40. The real point of the case is whether it failed to ensure, in the absence of the availability of a crane, that sufficient fellow workers were present to enable it to be lifted without danger to the plaintiff.

41. I make the specific finding that I am not satisfied that any agent of the defendant expressly directed the plaintiff to lift the shutter. The negligence alleged in paragraph 5(d) is therefore not made out either.

42. On the other hand, the evidence of Mr Kirss did not strike me as being at all times completely trustworthy, especially in the light of the length of time that had elapsed between the happening in question and his being asked to cast his mind back to it.

43. The incident itself was not dramatic. Kirss was not there when it happened. The plaintiff stayed at work for the rest of that day, and until the end of the week. Kirss says that he remembered the plaintiff telling him that he had hurt his back on the day that the accident happened, but I think that it is highly likely that his recollection was corrupted, however inadvertently, by the process of the taking of the statement by the investigator.

44. Not only does he admit that he got the actual date from the investigator, but the statement contains the assertion that on that day he instructed the plaintiff and Gary Aksila to construct the shutter. In his evidence in chief he could not remember whether it was he who told the plaintiff what to make.

45. In his cross-examination he said that it was a shutter that had been repaired, over the previous day and that morning. I think that is the more likely version of the facts. But under further cross-examination he moved to assert that it must have been Mr Roppola who had given any instructions to the plaintiff about work on the shutter.

46. On page 1 of the statement he said that it was standard practice for shutters to be lifted into position by crane, and that this was always done because of their weight. On page 3 he alleged that the plaintiff was aware of the procedure used to manually lift shutters into position, and what he and Aksila did on that occasion did not comply with that procedure. What procedure would that be, if they were always lifted by crane?

47. He insisted that he gave the instruction not to lift to the plaintiff and Gary Aksila. Such an instruction, followed shortly afterwards by a lifting in contravention of it, during which the other person involved was hurt, would probably be remembered. Gary Aksila has no recollection of any such instruction, though he does not have much memory of anything else either.

48. An accident to the plaintiff would be perceived by Mr Kirss to be his responsibility. The statement that he specifically forbade the plaintiff to lift the shutter was self exculpatory.

49. Despite the criticisms I have made of the plaintiff's evidence, and his embroidering of his version with the allegation that he was told not to put bolts in the shutter and other matters, I find that when I look at the whole of the evidence, I come to the conclusion that Mr Kirss did not give to the plaintiff the express prohibition that he claims to have done.

50. I am aware that the scenario that seems to me most likely is not one that accords entirely with the evidence of any one of the witnesses. Yet its essential elements are gleaned from the totality of the testimony.

51. I think that the shutter was one that had previously been constructed, with bolts in it, and that the plaintiff and Gary Aksila repaired it, probably beginning on the Tuesday, and finishing the repairs by morning tea time on the Wednesday.

52. The plaintiff was not instructed to lift it into position without help. He was not forbidden to do so either. There were in fact no cranes available on that day to help with the lift. I think the plaintiff knew that fact.

53. I accept that he and Gary Aksila looked for somebody to help with the lift, but did not find any helpers, and the plaintiff decided that the two would do the job themselves, shortening some of the bearers to make the job easier.

54. I do not accept that he was under any actual threat of dismissal, or that he even thought that he would get the sack if the lifting was not done immediately. I think he simply perceived the task as being a job that the two of them were capable of doing. He was a strong and willing worker, so he just got on with the job without any thought of danger.

55. It follows that the negligence alleged in paragraph 5(c) of the statement of claim is not made out, in that there was no actual requirement imposed on the plaintiff to do the lifting without sufficient assistance.

56. In the light of those findings the only particular of negligence which has been pleaded and on which the plaintiff can succeed is that set out in paragraph 5(b) of the statement of claim, namely, failing to ensure in the absence of a crane that a sufficient number of workers were present to cope adequately with the weight of the shutter when erecting it.

57. It is implicit in that allegation that the plaintiff should know that sufficient fellow workers were going to be provided.

58. It is quite possible that Mr Kirss did go to look for more men to help him, and arrived with them, only to find the shutter already up and in position. I do not think I need to come to a concluded decision about that, because I accept the plaintiff's evidence at least on this point, that he was not told, by Kirss or by anyone else, that help was on the way.

59. Having sought help himself and not having found it he simply proceeded to do the lift. He was a willing worker, but I cannot imagine any reason why he would have taken on the job of lifting if he had been told to wait, and knew that help was on its way. He would also not have shortened the cross-members in the way that he did if more people than two were going to do the lift.

60. This is not really a case of failing to institute and enforce a safe system of work. This situation was unusual, and not one calling for the institution of a system. Shutters like this one were always lifted by crane. Only on this day, so far as the evidence goes, were there no cranes available when there was a shutter to be lifted.

61. In those circumstances there was an obligation on the employer to ensure that lifting was done only by a sufficient number of workers. Without that sufficient number there was an obvious risk of injury. If the plaintiff was not told that help was to be provided I think that it was also foreseeable that he would do what he did and attempt to lift it himself with the aid of only one fellow worker.

62. In my opinion that failure to communicate constituted a failure to ensure the provision of the assistance that was reasonably required. I therefore find in the plaintiff's favour on the issue of negligence.

63. By its Amended Defence the defendant raised the issue of contributory negligence, particulars of which were that the plaintiff:

(a) failed to obey instructions;
(b) failed to utilise the manual assistance available;
(c) failed to ensure that a sufficient number of workers were
present before attempting to lift the formwork shutter; and,
(d) placed himself in a position of danger.

64. At the commencement of the hearing counsel for the defendant announced that the defendant's case was that there was a strike on, so that a crane was not available, that the foreman told the plaintiff not to lift, and that when the foreman returned with help the shutter had already been lifted.

65. So far as the defence depends upon the failure to obey instructions, I have already found that no such instruction was given to the plaintiff. Particular (a) is therefore not made out.

66. It is also obvious that at the time he was injured there was no manual assistance available to him that he can be said to have failed to utilise. Particular (b) therefore also fails.

67. In my opinion it was not the plaintiff's duty to ensure that sufficient numbers of workers were present before attempting the lift, that was the obligation of the defendant. Particular (c) of the contributory negligence alleged is therefore not made out.

68. It may be said perhaps that in carrying out the lift his commonsense and experience should have told him that it was a dangerous thing to do without help. However I am not satisfied that he appreciated that risk sufficiently to require me to make a finding of contributory negligence against him. Even though I do not think that he really anticipated any disciplinary action against himself if he did not do the job then and there, I think that he was motivated, having looked for assistance and not found it, to simply get on with the job, without adverting to the danger.

69. There will therefore be no deduction from his damages on account of contributory negligence.

70. The first pain that the plaintiff felt he described as being as if someone had put a knife in his back. He asked Gary to stop and the shutter stayed in the same position for some minutes, the plain cleared to some extent and they then continued the lift to the vertical position. He then went down onto his knees and saw stars. After a while he went for a drink and then came back to work. He continued work for the rest of Wednesday and worked through Thursday and Friday and on the Saturday when the concrete pour took place. He thought he had simply pulled a muscle.

71. Over the weekend he felt pain and spent most of the time lying down, having taken a tablet. He went back to work on the following Monday, Tuesday and Wednesday, when he was persuaded to go to the first aid centre. The nurse there sent him to see his general practitioner, Dr Marinos, whom he first saw on 23 August 1985.

72. Dr Marinos notes that he had seen the plaintiff previously with complaints of low back pain on 27 January 1978. He had stated at that time that he had had a similar episode of pain about one a half years before, whilst still in Yugoslavia, and that at that time x-rays had apparently been taken. The plaintiff denied having suffered any episode in Yugoslavia, but agreed that he had seen the doctor about low back pain in 1978. However his evidence that he suffered no long term effects from that episode is consistent with Dr Marinos' note that he has no record of any complaints of low back pain between 1978 and the visit on 23 August 1985.

73. On examination Dr Marinos noted that the pain appeared to be localised over the lower lumbar spine, but back movements were only slightly restricted. He prescribed an anti-inflammatory analgesic and a muscle relaxant, and arranged an x-ray of the lumbo sacral spine.

74. The x-ray showed a disc bulge with probably no root compression at the L4-5 level and a large central disc legion at the L5-S1 level. Dr Marinos therefore referred the plaintiff to a specialist, Dr Andrews, and certified that he was unfit for work until the end of August.

75. Dr Andrews saw him on 17 September 1985. His impression was that the plaintiff had a fairly significant pre-existing L5-S1 disc degeneration which had been aggravated by the lifting incident. He suggested that the plaintiff stay on light duties and thought he would probably benefit from physiotherapy and back strengthening exercises.

76. On 19 September 1985 Dr Marinos saw him again, and arranged for a CT scan. This confirmed the significant disc lesion at L5-S1, and Dr Marinos referred the plaintiff to a physiotherapist. On 23 September 1985 he advised the plaintiff that he would probably need to change from a heavy type of work to lighter duties.

77. The plaintiff stayed off work for about two weeks and then returned to light duties giving assistance to the surveyor. He persisted at that job and other light duties for about ten months. He was in some pain but continued to take medication and to attend the physiotherapist.

78. In about July 1986 he was asked to do some work which involved his going up and down ladders. He suggested that he was not able to do it and requested lighter work, but instead he was dismissed.

79. On 24 March 1986 he had been seen by Dr Chandran, neuro surgeon, at the request of Dr Marinos. Dr Chandran found no neurological deficits. There was mild tenderness at the L5-S1 level, and spinal movements were unrestricted. He referred the plaintiff for a course of hydrotherapy.

80. Dr Marinos saw him on 22 May 1986 following an injury to his left forearm as a result of which he certified the plaintiff unfit to work from 23 May 1986 until 6 June 1986. He next saw him on 21 July 1986 because of the back pain. He did not see him thereafter.

81. At about this time the plaintiff changed his general practitioner to Dr Houstein who referred him to Dr Newcombe, neurosurgeon. Dr Newcombe saw the plaintiff on 17 September 1986. He found that the plaintiff had a loss of lumbar lordosis, limitation of straight leg raising on both sides, with a positive sciatic stretch test and absent ankle jerks. He recommended surgery, to which the plaintiff consented.

82. On 28 October 1986, at John James Hospital, Dr Newcombe excised the large disc protrusion at L5-S1. The plaintiff said that the operation did not help. Dr Newcombe noted that there seemed to be good early response to the operation but that some back ache continued when he saw the plaintiff on 11 December 1986. At that time there was a good range of lumbar spinal movement but the back muscles were weak. He prescribed the appropriate exercises. He found no evidence of nerve root compression, a finding which was consistent with a further CT scan on the lumbar spine.

83. The plaintiff did not feel that he was improving and in August 1987 he was seen again by Dr Chandran. He was having pain in the lower back extending into the left leg. With physical activity the pain extended into both legs and was severe. A CT scan showed slight narrowing of the L4-5 and L5-S1 disc space. Dr Chandran also performed a myelogram as a result of which he advised further operation.

84. On 9 November 1987 Dr Chandran performed an interbody fusion at L4-5 with disc excision, Alar transverse fusion of L4-5 and L5-S1 on the right and Alar transverse fusion of L5-S1 on the left.

85. To Dr Chandran the plaintiff seemed to progress well after that operation and in March 1988 admitted to him a considerable improvement in his symptoms. X-rays showed satisfactory progression of fusion at the Alar transverse level, but not at the interbody level of L4-5. He was wearing a corset which he was advised to use less. Dr Chandran referred him for rehabilitation at Woden Valley Hospital.

86. The plaintiff's evidence was that for about three months after Dr Chandran's operation he felt better. He claims that in April 1988 when he was trying to swim in the therapy pool at Woden Valley Hospital, he felt something snap in his back after which he felt pain. He was also given a Tens machine which he used for sometime without success.

87. A CAT scan which Dr Chandran arranged in May 1988 showed no evidence of any nerve root compression or scarring to explain the occasional pain that he was feeling in the legs.

88. The pain and limitation on his activities made him feel unhappy. The solicitors for the defendant referred him to Dr Truman, psychiatrist, for an opinion. Dr Truman saw him on 18 May 1988. He was assisted by an interpreter from the Telephone Interpreter Service.

89. The plaintiff's complaints to Dr Truman were of feelings of depression and nervousness, anger and frustration. The pain was causing problems with sleep. He was forgetful and losing concentration. He had lost some interest in sexual activity.

90. Dr Truman's conclusion was that there was no evidence that he was suffering from any significant psychiatric disability, apart from what he would classify as minor frustration and irritation caused by the pain and associated with restriction of activities. There was no psychiatric factor influencing the plaintiff's employability.

91. On 29 June 1988 Dr Cairns, orthopaedic surgeon, examined him at the request of the defendant's solicitors. Dr Cairns reported that the plaintiff gave his history without the assistance of an interpreter, and with some moderate degree of language difficulty. Nevertheless the history that he gave to Dr Cairns was reasonably consistent with what he had told other doctors and with the evidence.

92. Dr Cairns noted tenderness throughout the lumbo sacral area and marked restriction of all ranges of movement, complaints of pain and marked reversal of spinal rhythm on attempting to resume an upright position.

93. Dr Cairns' opinion was that the plaintiff suffered from pre-existing degenerative disc disease at both the L4-5 and L5-S1 levels, which was provoked and aggravated by the accident and which failed to respond to conservative treatment or otherwise appropriate surgery. He noted, "His clinical presentation at this time reflects a significant degree of psychogenic magnification in his presentation." Dr Cairns thought that he might well require further investigation and possible revision of the attempted fusion at least at the L4-5 level. He said that the plaintiff was then unfit to pursue gainful employment and that he would remain so indefinitely. Further treatment might render him fit to resume light work, but he would never be able to resume heavy manual work.

94. Radiological investigation by Dr Davis on 7 March 1989 suggested that the interbody grafts were not then yet solid.

95. Dr Chandran saw him again on 6 April 1989. Flexion was limited to seventy five percent of normal range. Dr Chandran commented, "I feel that this man is now fit for light duties but given his educational background this may not be possible."

96. He continued to suffer pain, and after further discussions Dr Chandran arranged for a further discogram on 15 September 1989. It showed that the L4-5 level had not fused and entry into it was painful.

97. In November 1989 therefore Dr Chandran performed another operation, to revise the fusion and add a metal plate.

98. Although Dr Chandran noted that in January 1990 he reported that he was getting better and that symptoms were improving these words are relative. I think it is quite understandable that after three operations and the length of time since the accident it is not realistic to expect a person of the plaintiff's background to think of himself as fit for work in the near future.

99. A further examination by Dr Cairns on 14 June 1990 did not disclose any significant change. He regarded the plaintiff's prognosis as extremely poor. He had significant functional and emotional overlay which reflected a belief on the plaintiff's part that he had suffered permanent and irreversible injury to his spine which would prevent him from ever resuming gainful employment or from enjoying his leisure.

100. The plaintiff returned to Dr Chandran who in August 1990 found extensive sensory loss in the right leg and patchy sensory loss in the left leg which did not fit any dermatomal pattern. He could not find any organic basic for the symptoms and felt that there was an exaggeration of mild symptoms in the back. Nevertheless he advised against any heavy physical work and thought that the plaintiff would have to be retrained to consider lighter work.

101. The examination by Dr Arnold Mann at the request of the plaintiff's solicitors, on 9 October 1990, did not really add anything to the general picture.

102. His solicitors referred the plaintiff for a psychiatric assessment to Dr Mickleburgh, who saw him about 10 October 1990.

103. In Dr Mickleburgh's opinion the plaintiff was not malingering nor were his symptoms due to hysterical conversion. He thought his symptoms consistent with the back lesion, remembering the wide variation in individual thresholds to pain and tolerance of pain. The consequence has been severe disability in his personal, marital, family, work and social roles.

104. At about the same time he was also examined by Dr Corry, rehabilitation consultant.

105. Dr Corry was the only doctor called by the plaintiff who was required to give evidence and be cross-examined. His conclusion was that the plaintiff suffers from degenerative lumbar disc disease the acute pain symptoms of which were precipitated in the accident at work. Despite the considerable surgical and other treatment he had progressed to a high level of disability. He was angry, frustrated and despondent. He exhibited a number of pain behaviours. Dr Corry had no reason to doubt the genuiness of his complaints. The disability had been in existence for five years and the behaviours associated with it had become well entrenched. He felt that at the age of 39 some attempt at rehabilitation should be made, but it would need to be fairly intensive. At the time of his examination he believed the plaintiff to be unemployable, and likely to remain so permanently unless his response to his injury could be modified.

106. During cross-examinationDr Corry commented that he would not recommend a course of rehabilitation unless he thought it had some hope of success. He thought however that in the plaintiff's case the chances of success were poor because of the operations, the psychological and cultural issues and the length of time over which the plaintiff had been disabled.

107. As a matter of commonsense it seems obvious to me that there is practically no chance in present day conditions of finding a job that would be suitable for a carpenter with the plaintiff's language skills. A person from his cultural background whose back has been injured and who has been required to undergo three operations on it is quite likely to have a less than optimistic view of his own chances of rehabilitation. I did not understand Dr Corry to give evidence to the contrary.

108. On 13 May 1991 Dr Wearne, consultant surgeon, examined him for the defendant. He reported that it was very difficult to define the objective signs of disability, as the plaintiff demonstrated a huge functional component in his presentation. He found inconsistency in the range of movement of the lower back and in awareness of touch. He thought that the plaintiff had a lower back vulnerability and should avoid bending, lifting with other than the correct technique and any other undue stress on the lower back. He thought that he was fit for duties which filled those criteria and that he should not lift more than say twenty kilos.

109. Dr Wearne also gave evidence and was cross-examined. In his evidence, bearing in mind the pre-existing condition and possible injury to the back, Dr Wearne thought that even had the accident not happened he would have been at risk of some incident at some time causing him acute symptoms and disabilities. He thought that on the balance of probabilities that the plaintiff would have had a problem at sometime. He was not able to put any time frame upon that occurrence.

110. In cross-examination it is quite clear that Dr Wearne did not accept the plaintiff as having given him an accurate description of his condition.

111. On 10 October 1989 a private enquiry agent observed the plaintiff hanging washing on his clothes lines and took a video tape of the activity. The segment lasts less than five minutes and it is very difficult to see what the plaintiff was doing through the shrubbery that hid him from the camera.

112. There was a further period of surveillance on 11 October 1989, again for a period shortly over five minutes, while the plaintiff was gardening. The video tape shows him carrying a bucket of water, bending over while he planted small shrubs and watered them, crouching and throwing soil and leaves onto the garden, and bending while watering the garden with a hose. Exhibit "4" consists of four photographs which show the positions typically taken by him during that activity.

113. During those periods of surveillance there was no visible sign of pain or discomfort. The range of movement that the plaintiff displayed was obviously greater than what he demonstrated to some of the doctors. Dr Wearne specifically said that when he was examining the plaintiff he did not display the range of spinal movements depicted in the photographs, Exhibit "4". The doctors however, and in particular Dr Corry, were not asked to comment upon the difference between his presentation to them and the activities seen on the film.

114. The plaintiff does not claim to be completely disabled. I can well understand some dramatisation by him of restriction of movement when he visits a doctor. I approach his evidence about his disabilities with the same caution that I adopt when considering the circumstances of the accident. But his principal complaint is not of restriction of movement, it is of pain. The film and the photographs do not demonstrate in any way that he does not suffer the pain of which he complains. They cover such a short time that they do not raise any doubt about Dr Corry's conclusion concerning his employability.

115. In summary therefore I find that the plaintiff, before the accident, had a degenerative disease of the lower spine. He had suffered two minor incidents of trauma which had caused symptoms some years before the subject accident, but he was symptom free at the time of the accident, and had for years been carrying out the heavy physical work of a formwork carpenter without any pain or restriction.

116. The accident caused that condition to become symptomatic. It is possible that some other trauma might have done the same at some time had there been no accident. He was in an occupation where some such trauma was possible. It is possible that he could have lived the rest of his life without symptoms. It is likely that at some time he would have suffered some symptoms. It is also on the cards that he might never have suffered so much as to be disabled from work.

117. As a result of the accident it became necessary for him to undergo three operations, in 1986, 1987 and 1989. Those operations relieved the pain in some parts of his body, but left pain in others. The fusions themselves caused some restriction of movement. That restriction and the pain led to loss of function in the use of his back. Because of his educational and cultural background and experience that succession of events led to considerable functional overlay. On any view of the medical evidence he will never be fit for the only sort of work he knows how to do, namely heavy carpentry work. Some light tasks might be within his physical capacity, but with his background and perception of pain and limitation there is no realistic chance that he will find suitable work in any market reasonably available to him. He is relatively young, with a young family. I agree with Dr Corry that it is not possible to say with any confidence that the end of this litigation will make any significant difference to his condition.

118. For his pain and suffering and loss of amenity I award $45,000, of which I would attribute $15,000 to the future.

119. I assess interest on the past component on the basis that his suffering has been relatively constant over the period, and award $4,300 for interest.

120. The out of pocket expenses are agreed at $24,169.37. I take them to have been paid by the insurer, and no claim for interest is made regarding them.

121. The Fox v Wood component is agreed at $10,429.

122. I accept Dr Corry's view that substantial retraining would be necessary to fit the plaintiff even for light work within the plaintiff's capacity. It follows that in considering the claim for past loss of wages I do not agree with the submission that he has till now had any income earning capacity that should have produced income for him.

123. His dismissal from the defendants employment was the result of his condition. There is no evidence to suggest that had he not been injured work would not have been available to him with the defendant for as long as the defendant continued in business. But that company ceased trading in 1989. The work associated with the construction of Parliament House came to an end. Building activity requiring formwork carpenters has declined markedly in recent years. There would almost certainly have been some period during which he would have been looking for work.

124. I think it is appropriate to discount the total figure for past wage loss after the end of 1988 by about 20 percent on that account. I take as the starting points the amounts claimed in the plaintiff's submissions. The arithmetic is agreed between the parties, but the way in which the figures should be used is not. I do not accept the defendant's submission that there should be any other specific discount after August 1990.

125. The wage loss to 31 December 1988 is therefore $51,233. The total loss claimed from 1 January 1989 to the date of this judgment, on the basis of the nett wage claimed, I calculate at $67,358, which, discounted by 20 percent, yields the sum of $53,886. The discounting figure I have used is not a precise one, and there may be reason to make a further discount for the usual contingencies and the slight chance that his back may have been hurt in that relatively short period. As a matter of judgment therefore, I award the rounded sum of $100,000 for past wage loss.

126. Over that period the plaintiff has been receiving compensation payments which would now be of the order of $70,000. Because of the discretionary nature of the past wage loss calculation I do not think it appropriate to award interest on the difference.

127. There was some contention about the calculation of the base figure for calculating loss of income, especially with regard to various over award payments. But again, there are so many imponderables in this case that the award for future economic loss is much more a matter of judgment than calculation. I take as a starting point therefore a weekly loss of the order of $400.00 a week. Assuming a retiring age of about 60, and a 3 percent discount rate, that gives a lump sum of $303,334.

128. In addition to the normal contingencies, I think that there must be further substantial discounts on account of the probabilities that the plaintiff would from time to time be looking for work, as economic conditions and the building industry waxed and waned, and also for the possibility that his back, with the pre-existing degenerative conditions, may not have enabled him to work till the age of 60 in any event.

129. As a matter of judgment I award the sum of $150,000 for future economic loss.

130. The total award is therefore made up as follows:

Pain and suffering $45,000.00
Interest 4,300.00
Out of pocket expenses 24,169.37
Fox v Wood 10,429.00
Past loss of income 100,000.00
Future loss of income 150,000.00
TOTAL $333,898.37

131. I would round that figure up to $334,000, which appears to me to be appropriate as a global figure.

132. I direct the entry of judgment for the plaintiff in the sum of $334,000.