Dane Stephen Zunic v Hans Schmidt and Partners (Canberra) Pty Limited (In Liquidation) [1993] ACTSC 100 (17 November 1993)

SUPREME COURT OF THE ACT

DANE STEPHEN ZUNIC v. HANS SCHMIDT AND PARTNERS (CANBERRA) PTY LIMITED (IN
LIQUIDATION)
No. SC727 of 1991
Number of pages - 26
Negligence - Damages

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
MASTER A. HOGAN

CATCHWORDS

Negligence - Employer - Formwork on scaffolding - No guardrails - Fall by employee - No issue of principle.

Damages - Assessment - Personal injury - Employment - Dislocated shoulder - Carpenter - Functional aspects - No issue of principle.

Mansfield v Harrison (ACT Supreme Court, 9 November 1993, unreported)

HEARING

CANBERRA, 2-4 March and 21-23 June 1993
17:11:1993

Counsel for the Plaintiff: D. Wheelahan QC and G. Lunney

Instructing Solicitors: Crossin Barker Gosling

Counsel for the Defendant: D. Nock

Instructing Solicitors: Hunt and Hunt

ORDER

THE COURT ORDERS THAT:
1. Judgment be entered for the plaintiff for $553,000.

2. Costs reserved.

DECISION

MASTER A. HOGAN This is an action for damages for personal injury sustained by the plaintiff in an accident at work on 30 October 1984.

2. The plaintiff was born in Belgrade, in what was then Yugoslavia, on 15 December 1948. He finished school at the age of 15, and worked as a carpenter in Yugoslavia and France. He came to Australia in 1967, where at first he had a number of labouring jobs. He came to Canberra, and began to work again as a carpenter, in about 1973.

3. In 1975 he married, and he and his wife have 2 sons, born in 1978 and 1991.

4. In September 1984 he obtained work as a formwork carpenter with the defendant at the site of the new Parliament House. In a number of different work accidents he had suffered injuries to his thumb, left middle finger, left foot and right knee. He received compensation for the hand injuries, but there is no evidence that before the subject accident he was anything other than a fit, strong, capable and willing carpenter.

5. On 30 October 1984 formwork was being constructed on top of scaffolding to enable a concrete beam to be poured on the site. The base of the formwork consisted of pieces of ply 1800 by 1200 millimetres, laid end to end, resting on the scaffolding at a height of about 5 metres above the floor.

6. The sides of the formwork consisted of formwork shutters, 400 millimetres apart and 700 to 900 millimetres high, extending the length of the plywood platform.

7. In order to stop the side shutters from moving apart when the concrete was poured into the channel that they formed and to enable the end plates to be fitted to the channel, it was necessary to fix bolts through from one side to the other at the end of the channel, where the end plates were to be fixed.

8. He was instructed to drill the holes through the shutters at the site of the end plates, with a portable electric drill, fitted with a bit long enough to pass through both shutters. The drill was 300 to 400 millimetres long, and the bit about 600 to 700 millimetres. The whole instrument was about a metre in length.

9. The plaintiff made one pass with the drill, making a hole towards the top of the shutters, at about mid thigh height. He then began to drill a hole beneath it, at a height of about 8 inches from the platform base.

10. He was standing with both feet on the platform, outside the shutter. The whole platform was only 1200 millimetres wide. 400 millimetres was the space between the shutters. There was an equal space on the outside of both shutters. The stringers at the outside base of the shutters were about 100 millimetres thick. There was therefore less than 300 millimetres, or about one foot, of platform available for him to stand on. There were no guardrails around the platform, or any toe boards or kick boards.

11. Separated from the scaffolding on which the platform was resting was another scaffold, to about the same height, and a little more than a metre away.

12. He drilled the lower hole. His evidence was that he began to withdraw the bit from the hole that he had drilled, and while doing so lost his balance and fell towards the scaffolding that was beside him.

13. As he was falling he put out his right hand, in which he was holding the drill, and was caught under the right elbow by one of the pipes on the other scaffold. As he was going down he turned and caught a cross brace of that scaffold under his left armpit. He felt pain in his right upper arm and elbow.

14. A stepladder was brought by fellow workers, he was helped down on to the floor, and taken to the first aid nurse.

15. This version of the incident was challenged by the defendant.

16. There was no other witness to the actual fall called by either party. There was no evidence called by the defendant to controvert the plaintiff's description of the site and the platform, and it was not suggested to him that the model tendered gave anything other than a fair representation of the platform. There was no evidence to deny that he had been instructed by the defendant to do the work that he was doing in the place that he was doing it.

17. There was a clear and obvious danger that a worker doing that work at that place might fall and be injured. Even without the evidence of Dr Adams I would have come to that conclusion without any hesitation.

18. Evidence was given by Dr Adams that the danger could have been averted by the installation of commonly used protective devices, such as a wider platform fitted with toeboard or kickboard and safety rails. If they were not suitable, or uneconomic for some reason, then the plaintiff should have been required to wear a suitable harness and lanyard to prevent him from falling. That evidence was neither challenged nor contradicted.

19. It is clear that the defendant failed to exercise reasonable care for the safety of the plaintiff.

20. The defendant's real contention was that the plaintiff did not fall in the way that he described, and that he received the undoubted injury to his shoulder because the drill bit caught as he was withdrawing it from the hole, and the torque of the drill motor, which was still running as he was withdrawing the bit, caused the injury to his shoulder. On the defendant's hypothesis, he did not fall at all, and the defendant's failure to take care for his safety by guarding him against falling had nothing to do with the injury that he sustained.

21. The Workers Compensation form that the plaintiff signed on 30 October 1984 had the following description of the accident:

"DRILLING STOP END and SLIPPED DRILL TWISTED AND PULLED BODY and
SHOULDER."

22. The plaintiff said that he did not fill in the form himself. He signed it. It was witnessed. The witness was not called.

23. Cross examined about it, the plaintiff explained as follows:

"MR NOCK: Well, you were asked there to say how the injury
occurred, were you not?
MR ZUNIC: Yes, I was probably asked how to - how the injury
occurred and I explained it when I was asked very
short way by someone how it happened and I told
them I was drilling and I got twisted by the drill
and, you know, because it wobbles and I just went
off the platform and they didn't asked me anything
else.
MR NOCK: Do you agree with me that the form that you have
there mentions nothing at all about having fallen
off a scaffold?
MR ZUNIC: Nobody asked me to explain anything. They just
said, to me, 'What happened to you?' I told them
I was drilling a stopend and I don't remember
anybody asking me in greater detail than that
otherwise I would have explained to them in the
way that they wanted to know. That's all I was
asked, that's all I probably told them."

24. Mrs Perussich, who worked for the defendant and for another firm which took over its contract when it went into liquidation, submitted a claim form on behalf of the defendant to its workers compensation insurer (Exhibit "D"). In it she described the accident as follows:

"He was drilling a stopend and the drill twisted and pulled his
shoulder."

25. She gave evidence, but had no memory of where she had obtained the information to fill in the form. No inference adverse to the plaintiff should be drawn from her choice of words.

26. The accident report form, Exhibit "F", which was filled in by the Joint Venture Occupational Health Sister, Sister M. Mannion, contained no description of the accident. Sister Mannion was not called to give evidence.

27. The referral to Dr Dawson from the construction site, which is Exhibit "E", also contained no description of the accident. Looking at Exhibits "E" and "F" I think it likely that Sr Mannion also wrote out the referral to Dr Dawson, which has the same note of the injury.

28. The plaintiff's description of the accident that he gave in the Magistrates' Court in the course of workers compensation proceedings, on 13 March 1987, was as follows:

"MR LUNNEY: So the drill was about 18 inches to two feet long,
was it?
MR ZUNIC: The drill was about this long, maybe 700, maybe 800
or something, and both drills are not very stable
on the drills you know, they keep wobbling around.
Anyhow, when I was pulling the bit out and I had
nowhere to stand to, you know, get the bit right
out and when I got the .......... out my foot
slipped on the end of the platform, got me off
balance and I was on my way down to the concrete,
which was about 10 metres down, and the best thing
I could do was just to swing and jump towards -
and fall towards one of the scaffolding pipes and
I got hooked on to my elbow like this with this
hand and I had - - -
MR LUNNEY: Which - with your right hand, you are indicating?
MR ZUNIC: - - - With my right hand and I had the drill in my
hand like this and my shoulder just went up - up
like this, the opposite way, and I was in very bad
pain and my partner panicked, you know, and I just
hold on with my left hand round the pipes like
this and the drill was still working in my right
hand so I released the trigger and I let the
drill, you know, hang over the - over the pipes
like this and then I leaned back on to the
platform and my partner said to me, he said,
'Jesus Christ, you nearly went down' and then I
walked down to, you know, with him and I - - -
MR LUNNEY: Well, can I just interrupt you there. You
indicated that your right arm was pulled up so
that the upper part of it was almost vertical. Is
that right?
MR ZUNIC: Yes.
MR LUNNEY: And did you feel any sensation when that happened?
MR ZUNIC: - - - At first ........... wanted to do it again.
MR LUNNEY: I am sorry?
MR ZUNIC: - - - It was painful, you know - - -
MR LUNNEY: Where was the pain?
MR ZUNIC: The pain was here in the shoulder.
MR LUNNEY: On the top of the shoulder?
MR ZUNIC: Yes.
MR LUNNEY: An extending down into the muscle at the top of
the arm. Is that right?
MR ZUNIC: Yes.
MR LUNNEY: And you were able to clamber on to the - back on
to the platform, were you?
MR ZUNIC: Yes, I had to do my best, you know, what I can
with my left hand to hold on to those scaffolding
pipes and climb back on the platform because - - -
MR LUNNEY: Right. And when you got back on the platform was
your arm still painful?
MR ZUNIC: It was very very painful.
MR LUNNEY: And did you go somewhere for treatment?
MR ZUNIC: I went to the nurse's quarters - there was shed
over there - and told - - -
MR LUNNEY: And did you get any treatment there?
MR ZUNIC: Well, they did not treat me or anything, you know,
they just send me to the hospital."

29. In his evidence in this case, when asked how he got down from the position where he was hanging he replied,

"My recollection is I heard people yelling from behind me and
someone come up with a stepladder, put it close to the me and kept
saying to me, 'Hold on, hold on, I'm coming.' So I was holding as
much as I can and then one of the workers come and held me by the
waist and walked me slowly down to - from the ladder, you know,
down on to the floor."

30. In his description of the accident to many doctors the plaintiff consistently described the accident as one in which he fell from the scaffold.

31. Dr Coyle, who was given a history consistent with that version, found it quite consistent with the injury to the shoulder. He conceded that the forces generated by a jamming of a drill bit could cause a tear of the rotator cuff, but thought it unlikely that it would cause a dislocation of the shoulder.

32. Dr Morris, who repaired the tear in the rotator cuff, thought the injury consistent with the accident described by the plaintiff. He said that there would have had to be considerable force to have disrupted the rotator cuff to the extent that it was and also to have dislocated the shoulder. He commented that it was one of the largest tears that he had seen at that time.

33. I do not regard the absence of injury to his left arm or shoulder as demonstrating that he did not fall as he described. Taking into account his command of the English language, and the condition he was in at the time someone filled in the form for him, I think it is understandable that the form did not contain a full and detailed description of the accident. The description is also defective, not so much in what it contains, as in what it omits. It does not lead me to disbelieve him.

34. While there were sufficient gaps in the material available, and possible discrepancies in some of the detail, to arouse the suspicions of the defendant's advisers, so that the hypothesis propounded by counsel for the defendant was not completely without foundation, it was not supported by any positive evidence called by the defendant or concessions made by the plaintiff.

35. Having seen and heard him giving evidence, and in the light of the type of injury that he sustained, I am comfortably satisfied that the accident happened as he described it. The fall and the injury were therefore the result of the defendant's failure to take care for his safety, and there will be judgment for the plaintiff.

36. It was not argued that the plaintiff was doing anything other than what he had been directed to do, and there will be no reduction in his damages on account of contributory negligence.

37. As the plaintiff fell he put out his right hand, which still had the drill in it, and his elbow was caught on one of the scaffolding pipes. He heard a crack in his right shoulder, and felt a lot of pain in that shoulder.

38. He was saved from falling further by his left arm. I think it is quite understandable that he is not now very clear about what exactly happened immediately afterwards. He was assisted down from the scaffolding somehow, and shortly afterwards Mr Novakovic saw him being helped by other workers, his right arm appearing to him to be twisted in some fashion.

39. He was taken to the site first aid station, where Sr Mannion noted an injury to the right shoulder, possibly a torn ligament.

40. His evidence is that he went to Royal Canberra Hospital, but there is now no record of his attendance there. He says that x-rays were taken and he was sent to Dr Dawson.

41. Dr Dawson reported that he saw him on the day of the accident. On examination he had pain in his right deltoid and supraspinatus region especially with abduction, which limited all movements of his right shoulder joint. He did not note any other injury. He arranged an x- ray of the shoulder, which did not demonstrate any abnormality in the right shoulder region.

42. Dr Dawson diagnosed a right rotator cuff injury and treated it conservatively with rest, ice, compression, immobilisation, sling and analgesics. He referred him for physiotherapy.

43. The plaintiff underwent the physiotherapy and continued to consult Dr Dawson regularly. His progress was slow, and on 27 November 1984 Dr Dawson gave him a local injection of hydrocortisone.

44. On 15 January 1985 Dr Dawson referred him to an orthopaedic specialist, Dr Morris. Dr Dawson gave him certificates for absence from work to 1 March 1985.

45. On 7 March 1985 Dr Morris examined him. He found abduction power markedly limited and extensive pain on any movement of the shoulder. On 9 April 1985 he performed an arthrogram at John James Hospital which revealed that there was a tear in the rotator cuff close to the lateral attachment. He advised an operation.

46. On 30 May 1985 at Royal Canberra Hospital Dr Morris operated to repair the torn rotator cuff under general anaesthetic. He found a postero lateral tear which was approximately 10 centimetres in diameter. He repaired it and immobilised the arm in a plaster cast called an aeroplane abduction splint, which kept his arm at right angles to his body, with the forearm and upper arm at a 90 degree angle. The arm was supported in place by props between the splint and a plaster cast on his trunk. He remained in hospital for about four or five days and returned home to be cared for by his wife. His recollection is that he wore the splint for about two months.

47. Dr Morris reports that gradually the arm was returned to the side after removal of the splint, and, although he attended physiotherapy regularly for the following several months, he continued to have shoulder pain.

48. Dr Morris referred the plaintiff for a second opinion to Dr Stubbs who saw him in October 1985. For some reason which does not appear in the evidence, Dr Stubbs was not available for cross examination during the hearing, and without the opportunity of cross examining him counsel for the defendant was not prepared to permit his reports to be tendered. Dr Morris received advice from Dr Stubbs that the plaintiff probably had inflammation in the supraspinatus tendon and that his condition might be improved by an anterior acromioplasty to decompress the tendon.

49. In his report dated 3 February 1986 Dr Morris expressed the opinion that it was not then possible to state whether there would be permanent disability in the shoulder, but felt it unlikely that in the near future the plaintiff would be in a condition to return to his previous occupation. In his evidence Dr Morris said that in light of his own findings and investigations, and the opinion that he had received from Dr Stubbs, he then thought it likely that further surgery would be called for.

50. It is necessary to examine the validity of that opinion with some care and caution, because at about this time the defendant's insurer caused the plaintiff to be placed under surveillance by Mr Tierney, a licensed private investigator, who had also investigated the facts of the accident, so far as he was able. Mr Tierney gave evidence, and his six reports to the insurer of the surveillance form Exhibit "8".

51. Surveillance was carried out on 8 September 1985 and 11 September 1985, but the videotape on those occasions was not in evidence. Other dates on which the investigator attempted to observe the plaintiff's activities were 10, 18 and 20 January 1986, 15, 19, 20 and 23 February 1986, 21, 22 and 23 March 1986, 3 April 1986, 31 July 1986, 3 August 1986, 14 and 27 May 1987 and 20, 21, 23, 25 and 28 June 1987.

52. On many occasions there was simply no activity by the plaintiff to be observed or recorded. The incidents recorded on 20 and 23 February and 31 July 1986 were so short and the activities so light that they had no significance, to my mind.

53. The segments recorded on 11 and 20 January 1986 require more careful consideration.

54. On the first of those dates, about 45 minutes of activity are recorded on the videotape. There are three stages in the plaintiff's activities. The times are recorded in Mr Tierney's second report.

55. The first stage depicts the plaintiff weeding in his garden and loading weeds and branches into a box trailer attached to his car. The activity is timed from 12.50 pm to 3.10 pm. During it he used both his arms to chop branches with a hoe, to force material down into the trailer, and to tie it down with a rope.

56. He then drove the trailer to the tip, where for about 10 minutes he was observed to unload the material from the trailer, again using both hands.

57. Next he drove home again, where he proceeded to place more articles in the trailer. Then, over a period of about half an hour, he is shown to be fairly constantly and vigorously digging in the garden, bent over, using a hoe with both hands.

58. On the second occasion, about 30 minutes of activity is recorded. According to the report the activity took place over the period from 3.20 pm to 6.05 pm. He was, for most of the time recorded, making some adjustments inside a motor boat parked in the driveway, particularly to the steering mechanism.

59. In none of the recorded activity was it possible to detect any restriction of movement, or any indication that the plaintiff was suffering any pain or discomfort.

60. On the other hand, most of the activity could be described as relatively light, and it is not the plaintiff's case that he was unable to use his arm at all at that time. The most strenuous part of what was recorded was about half an hour of using a hoe to dig up the ground beside the trailer.

61. When cross examined the plaintiff said that he tried to use his arms and hands to the best of his ability, but that his shoulder hurt a lot, and, in effect, that was what he told his doctors, if they asked.

62. During the early part of 1986 Dr Morris reviewed the plaintiff. Eventually, due to the lack of abduction range, he recommended and performed a right acromioplasty at John James Hospital on 3 July 1986. In his evidence he said that the purpose of the operation was to give the plaintiff an increased range of pain free movement. He also commented that in the light of experience and hindsight, a tear of the size suffered by the plaintiff was probably not completely repairable in the way that he had performed the first operation.

63. When asked whether, assuming that first operation had been successful, he was hoping that the plaintiff could get back to unrestricted work, he replied,

"I might have been hoping that, but realistically I don't believe
that with the sort of tear that he had, that he would get back to
full physical heavy work for the right shoulder."

64. Dr Morris agreed that when he examined the plaintiff he behaved histrionically, which made it difficult to examine him at times. There is no doubt that the video demonstrated that the plaintiff was able to use his right arm through a much greater range of movement than he demonstrated to Dr Morris at about the same time.

65. However, Dr Morris, when advising the operation, was satisfied that there was genuine pain, though the reaction seemed extreme at times. The procedure of using a local anaesthetic in the subacromial bursa, which increased the range, tended to confirm his view that an operation was justified.

66. Dr Morris was shown the video. He agreed that there was no observable restriction of movements of the shoulder. The video did not demonstrate movement in the particular range that was relevant to an operation of acromioplasty. It also showed a right handed man doing a number of things with his left hand that would normally be done instinctively with the left. To my observation also the plaintiff appeared to be using the hoe as would a left handed person.

67. However, Dr Morris did concede that the range of movement demonstrated by the video did tend to indicate that his previous repair of the rotator cuff had been successful.

68. During this period also, on 24 March 1986, the plaintiff was examined for the defendant by Dr Alexander, a Sydney surgeon. Dr Alexander reported that the plaintiff appeared to hold his right arm almost immobile during most of the consultation. With persuasion he was able to perform a full range of extension, flexion and rotation of the right shoulder, although initially he stated that he was unable to move it because of the extreme pain. Ultimately he appeared to carry out all the movements without any visible evidence of his being in pain.

69. Dr Alexander noted the absence of muscle wasting, and reported that he could find no organic basis for the plaintiff's symptoms. He thought that there had been a partial tear of the right rotator cuff, which had been successfully dealt with, and he had no reason to believe that the plaintiff could not return to work.

70. Dr Alexander has suffered a stroke, and was not available for cross examination, and his report was admitted by consent on that basis. He was not aware of the details of the repair operation. His opinion, of course, was not communicated to Dr Morris.

71. On the basis of Dr Stubbs's opinion, his own tests with the injections, and the plaintiff's complaints of pain, Dr Morris advised the plaintiff to undergo further surgery in the form of acromioplasty, to relieve the pain.

72. The precise question that must be addressed is whether it was reasonable for the plaintiff to undergo that operation. Other evidence is relevant to answering that question, which I defer till later in these reasons.

73. At some time, probably during 1984, the plaintiff had been approached by Mr Georgevski to become involved in a business of a tavern in Garema Place called the Subway Tavern. Mr Georgevski needed the plaintiff's carpentry skills to fit out the premises, but the plaintiff told him he had an injured arm. It appears that his part in the fitting out was mainly planning and supervisory, while the physical work was done by Mr Georgevski and Mr Prineas. Mr Georgevski and Mr Prineas both gave evidence, confirming the plaintiff's evidence to that effect.

74. Dates of the various stages of the project are difficult to fix. The books of account for the business begin in January 1985, and show purchases from places such as the Timber Centre and BBC Hardware.

75. There was no formal agreement entered into between the plaintiff and Mr Georgevski. Mr Georgevski had contributed an initial amount of about $8,000, and thereafter they contributed equally to the expenses. It is not clear how much capital the plaintiff initially contributed to the venture. On 27 November 1984, only a month after his accident, he applied to Custom to Credit Corporation for a loan of $17,400, and the advance was made on 10 December 1984. He contracted to repay the loan with interest by 120 monthly instalments of $302.40. His loan application stated that he intended to continue to work at the New Parliament House.

77. In evidence he said that not all of the $17,000 went into the Subway business, but he did not say how much of it did. No detailed records were kept of partnership accounts. The partnership was to be an equal partnership.

76. When the fitting out work was finished and the tavern was operating, the plaintiff attended regularly, doing work of a light physical nature.

78. The venture was not very successful, and Mr Georgevski eventually offered to buy out the plaintiff for $70,000. The plaintiff agreed. He was paid $20,000 but Mr Georgevski later told him the business was not succeeding well enough to enable him to pay the balance to the plaintiff. The business finally closed in 1988. The account books Exhibit "C", which cover the period 12 January 1985 to 30 June 1987, do not disclose the drawings by either partner, or even the wages, if any, paid to Mr Prineas and other people who worked in it. Another book, Exhibit "6", which covers the period for 29 June 1987 to 30 June 1988 shows wages paid to the partners by cheque. In thirty one of the weeks to 20 March 1988 they each are shown as having received $150.00. In each of the others weeks there are no drawings shown. Often enough over the period the cost of stock and outgoings exceeded the sales income. There were no drawings over the last 3 months of that financial year.

79. An accountant prepared the partnership's, and the plaintiff's, taxation returns.

80. For the year ended 30 June 1985 the partnership return shows partner's drawings of $5,278. That is reflected in the plaintiff's return for the same year, which disclosed $2,753 as income from the Subway Tavern.

81. For the 1986 year both returns show that the plaintiff received $14,400 from the business.

82. For the 1987 year they show his income from that source as $14,536.

83. The partnership return for 1988 is not in evidence, but the plaintiff's personal return shows income of $15,297 from the business. The cash book shows cheque payments to him of $4,650 (31 payments of $150.00). No attempt was made to reconcile these figures. I would assume that both partners made cash drawings. Such a system lends itself readily to an understatement of income for taxation purposes. But I am not persuaded that the plaintiff's taxation returns are inaccurate, and I also accept his evidence about the sort of work that he did in the tavern, both while it was being fitted out and when it was in operation.

84. After the decompression operation on 3 July 1986 the plaintiff continued to complain of severe shoulder pain and weakness. His arm was fixed in position in a sling for about a month. He then undertook another course of physiotherapy, which he said was painful, but not much use.

85. In January 1987 Dr Morris referred him for an opinion to Dr Sonnabend, a Sydney orthopaedic surgeon who specialises in shoulder injuries. He saw the plaintiff first on 13 March 1987. The plaintiff was now complaining of a different problem. He described the block to shoulder abduction as having been somewhat relieved by the 1986 operation. The pain was less at night, but was troublesome on active abduction, and he felt that his shoulder strength was slowly diminishing.

86. Dr Sonnabend found gross wasting of both spinati, and tenderness over the acromioclavicular region. He suspected a suprascapular nerve palsy, rather than recurrent rotator cuff pathology. He advised a repeat arthrography and electrical studies of the nerve function. He also commented on how difficult it was to assess the plaintiff's condition.

87. In April 1987 Dr Morris had received that advice from Dr Sonnabend, but had not seen the plaintiff. He felt that further surgery would have limited chance of significant improvement.

88. When he did see him, he referred him to Dr Andrews, who conducted electrical studies, and found no evidence of any entrapment of the suprascapular nerve.

89. An arthrogram on 30 July 1987 also indicated that the rotator cuff was intact.

90. Dr Morris advised against further operation, and prescribed more physiotherapy. He reviewed the plaintiff in August 1988. He was working at the tavern, but still complaining of discomfort and weakness of the shoulder. He was not taking medication.

91. At the end of 1988 a Mr Stefanovski and three partners were planning to set up in business as proprietors of a nightclub, to be known as Smokeys. They were seeking a fifth person to be involved in the enterprise as a carpenter. Mr Stefanovski approached the plaintiff, who agreed to become involved. The plaintiff drew up plans for the fitting out of the premises, and supervised the carpentry work, but did not do any of the physical work himself. The premises opened for business in April of 1989. The plaintiff was involved in the paperwork and light duties, such as restocking refrigerators, cleaning ashtrays and similar work. His partners found that he did not spend as much time in the business as they did, and it was sometimes necessary for them to pay someone else to work in his stead. Mr Stefanovski gave evidence of observing the plaintiff and noticing his complaints of pain.

92. The business did not prosper. After about 10 months the partners were excluded from the premises for non payment of rent.

93. In November 1989 Dr Morris received complaints of ongoing night scapular pain. There was a full range of shoulder movement, but tenderness over the right lateral epicondyle, indicating inflammation, which he treated with injections of local anaesthetic. They did not give long lasting relief. The elbow was still troubling him in June 1990, but he declined further injections and was fitted with a tennis elbow splint. X-rays did not reveal any abnormality of the elbow.

94. The elbow discomfort continued, and on 14 August 1990 Dr Morris performed a lateral epicondyle release and arthrotomy of the elbow. The plaintiff made an uneventful recovery from that operation.

95. In October 1990 there was still an ongoing feeling of cramping around the right shoulder, and the plaintiff was unable to lift heavy weights.

96. At first Dr Morris thought that the pathology at the elbow was caused in some way by the limitation of shoulder movement, but in his evidence he did not think that the causal connection could be sustained. I am not persuaded that the epicondylitis or the operation to relieve it were caused by the accident for which the defendant was responsible.

97. On 4 December 1990 Dr Dawson referred the plaintiff to Dr Coyle for his opinion. Dr Coyle elected to refer him on again to Dr Sonnabend, because of his special expertise in shoulder injuries. But in March 1991 he reported his own findings to the plaintiff's solicitors. The most significant to my mind was that the plaintiff was able to demonstrate a subluxation of the shoulder joint with heavy lifting. There was about 75 percent of all normal movement, but the movements were uncomfortable and allegedly associated with muscle spasm. The inferior subluxation was demonstrated by traction on the arm. In his opinion he thought that at that time the plaintiff still had significant rotator cuff pathology.

98. Dr Coyle had some knowledge of the plaintiff, as in October 1988 he had performed an arthroscopy on his knee, which demonstrated a tear of the medial meniscus, which he then operated on to repair. On review on 19 December 1988 the plaintiff seemed to have recovered from that operation, and made no further complaint about his knee.

99. Dr Coyle gave evidence. He considered that the accident as described could well have caused a dislocation as well as a rotator cuff injury. The statement by the plaintiff, repeated on a number of occasions, that when his arm was caught and forced upwards he heard a crack, was consistent with a dislocation.

100. Dr Coyle also saw the video. He agreed that it did not indicate any disability of the right shoulder at the time that it was taken.

101. Dr Sonnabend saw the plaintiff at Dr Coyle's request in February 1991. His complaints were that he was uncomfortable with most shoulder movement, and was experiencing inferior subluxation of the joint. He complained of a burning sensation down the medial border of the right scapula, and recurrent apparent locking of the arm in approximately 120 degrees of flexion. He advised further investigation.

102. On 23 May 1991 he examined the shoulder under general anaesthetic. He found that it could easily be subluxed. Arthroscopy showed that the rotator cuff repair was intact.

103. In evidence he said that with that pathology he thought that the plaintiff would have been able to lift his arm above shoulder height in forward flexion, but not with his arm to the side.

104. On 31 July 1991, under general anaesthetic, he carried out open anterior capsulorrhaphy. He described what was involved as follows:

"MR WHEELAHAN: Now doctor, you helpfully define that as a
capsular shift for us. Just what is involved?
DR SONNABEND: At the time that he had his initial injury it would
appear that he either dislocated or almost
dislocated his shoulder and the two injuries that
were sustained, one was his rotator cuff tear
which had been repaired. The other was a stretch
of the capsule, the envelope around the shoulder
and as a result of its being stretched and
distorted it no longer contains the shoulder and
when it gets in certain positions it slides out of
joint or partly out of joint so the - perhaps the
shift is, if you like, a double breasting
replication of the capsule - the membrane at the
front of the shoulder.
MR WHEELAHAN: The object of the exercise being to provide a firm
snug capsule from which the ball will not slip
when the plaintiff puts that part of his anatomy
under stress?
DR SONNABEND: That's correct."

105. At operation he found the capsule was thin and lax. There was a small area of almost full thickness cartilage loss in the antero-inferior portion of the glenoid.

106. The plaintiff's post operative convalescence was slow. By mid September he had approximately half normal shoulder range.

107. Dr Sonnabend attributed both the rotator cuff tear and the subluxation to the accident. Both injuries have been repaired surgically, but in October 1991 he had made only a partial recovery. He could not then predict how complete his recovery might be.

108. In his evidence he gave the following answers,

"MR WHEELAHAN: Doctor, in your report of 25 January 1993 - and
I'm directing your attention to about the last
half dozen lines of that report - you were unable
to suggest any further treatment, correct? Unable
to express a view as to the likelihood of any
spontaneous recovery?
DR SONNABEND: That's correct.
MR WHEELAHAN: Now doctor, from your point of view, in light of
your examination of him and subsequent treatment,
what would be your view as to the likelihood of
this man returning to manual work?
DR SONNABEND: He certainly does have significant organic
pathology. He has had some recurrence of
difficulty with certain movements. If we ignore
the personality and his expression of discomfort
and so on I see no reason for him not to work at a
bench top and I cannot imagine him doing the sort
of heavy manual work that might require day after
day after day of heavy lifting or overhead lifting
or working on scaffolding as he was. I see no
organic reason for him not to work at a bench top
level but I can see good reason for him not to
work in jobs which require strenuous or repetitive
overhead activity.
MR WHEELAHAN: Is that likely to remain the position, in your
view?
DR SONNABEND: I thought so."

109. In cross examination Dr Sonnabend also described the plaintiff as one who complained inordinately of extraordinary symptoms and pains for which he could not find any organic basis.

110. He also watched the video, and agreed that the plaintiff appeared to be behaving normally on it.

111. Further answers that he gave in cross examination were as follows:

"MR NOCK: So, assuming that you, as a surgeon, had seen a
patient complaining to you of the pain that we
just talked about, you would have, perhaps, gone
on to consider further investigations and so
forth. Is that right?
DR SONNABEND: I think that the bit that is most important in what
you are saying is whether he has pain with his arm
by his side, and I can't give you a straight
answer because of that. If he is complaining of
discomfort up here, then I would think it was
consistent with what we saw. If he is complaining
of pain such as he needs to keep his arm by his
side, I would see them as being inconsistent. You
would have to ignore it.
MR NOCK: But just dealing with the question of operations
if I can, if you have got someone coming in to you
with massive restriction and complaining, as I
have indicated to you, then you as a surgeon would
attempt to have a look to see if there was a cause
for it, isn't that right?
DR SONNABEND: Yes.
MR NOCK: If, on the other hand, you'd seen that film, of the
same man who comes to you complaining he can't
move it but you knew from the fly on the ceiling
that he was able to move it, then I suggest to
you, you would not have considered any further
surgery?
DR SONNABEND: I think that is correct.
MR NOCK: Really, what you come down to with this man is
whether or not you accept his complaints of pain,
is that right, as to whether he has got anything
objectively wrong with him at the present time?
DR SONNABEND: I think there is physical evidence of something
being wrong, but what he complains of doesn't
match what we have seen today."

112. Later he stated that he could only suppose that if Dr Morris had seen the plaintiff in the activities shown on the video he probably would not have performed the operation in May 1985.

113. On 6 June 1991 the plaintiff's second son, Jamie, was born. He had a heart defect and Down's Syndrome. The plaintiff had difficulty coping with that happening. Surgery for the heart defect was successful. The plaintiff obviously loves his son tenderly, and showed unfeigned emotion as he spoke about him.

114. On 29 July 1991, only 2 days before Dr Sonnabend's operation, the plaintiff had been examined by Dr Wearne in Sydney, at the request of the defendant's solicitors.

115. After Dr Sonnabend's operation the plaintiff spent 3 or 4 days in hospital, and for about a month thereafter his arm was immobilised in a sling. After the arm was released from the sling the plaintiff said he did not notice much improvement. He had regained only half the range of movement when Dr Sonnabend reviewed him in September 1991.

116. In that same month he was seen again by Dr Stubbs, who referred him to Dr Lithgow for management of his pain.

117. He was also examined for the defendant by Dr Goldrick in September and re-examined by Dr Wearne in December. No reports were tendered from Dr Goldrick or from Dr Wearne.

118. Dr Lithgow first saw him on 10 February 1992 and then on four other occasions over the next month. After setting out the history, his report dated 11 June 1992, continues:

"Mr Zunic's presenting complaints were --
Chronic pain in his right shoulder, upper arm, base of neck
and right scapular region since being injured in 1984
A tight feeling in the right forearm
A clicking sound on moving the right shoulder
Stomach irritation and constipation from medication taken
for pain relief
Frustration and anger at the way he has been treated
Sleep disturbance because of pain.
Mr Zunic stated that he sleeps face down on the floor with a small
pillow under his right shoulder. The pattern of his pain is such
that his pain is often at its lowest in the morning, but then
tends to build up during the day.
On examination --
There were three surgical scars in relation to the right
shoulder
Shoulder movement was limited to less than about 30 degrees
in all directions
There were no autonomic changes in the right arm or hand
There was decreased grip strength in the right hand
There were audible and visible "clunking" sounds and jerking
irregularities of movement observed on movement of the right
shoulder
There was a painful trigger spot in the right scapular
region.
I have no specific treatment to offer Mr Zunic, however an attempt
was made to improve sleep and give better pain relief by advising
medication be taken on a time contingent basis. A trigger spot
injection done on 13 March was not helpful. As the major part of
management, Mr Zunic was referred to clinical psychologist Tom
Sutton for assessment and counselling in pain management
strategies but this proved unproductive as Mr Zunic is not yet
ready to accept this approach. Mr Zunic has also seen
psychiatrist Dr Hugh Veness.
In summary, Mr Zunic suffers from chronic pain and loss of
function of the right shoulder and arm as a result of an injury to
the right shoulder and elbow in 1984. There appears to have been
little change over the last year with little prospect of
improvement in function of his shoulder in the future. It is
probable that he will never again be able to perform the full
duties of a carpenter. One area where there is a prospect for
improvement however is in the manner in which he manages his pain
and continuing disability thereby reducing it to a minimum. At
present Mr Zunic is experiencing a lot of unresolved anger and
frustration relating to the chronicity of his pain, his inability
to provide for his family, his reduced domestic and financial
situation, his social isolation, and his continuing attempt to
obtain some form of compensation."

119. Dr Lithgow was not required to attend for cross examination.

120. Dr Sutton, clinical psychologist, saw him at Dr Lithgow's request on 14 and 27 February 1992. Sleep was described to him as being a big problem. Dr Sutton's attempts to manage his pain were activity oriented, as the plaintiff had relatively poor insight. He was not responsive to the usual imaginal, relaxation or hypnotic procedures. He had also identified with his baby son's disability, which prevented him from focussing on appropriate actions to manage his own chronic pain and disability.

121. Dr Sutton was not required to attend for cross examination.

122. On 25 March 1992 the plaintiff was examined for the defendant by Dr Bryan, in Sydney. On examination he looked miserable. He had obvious drooping of the right shoulder girdle, and he was holding his right arm rather uselessly by his side. There was very limited movement of the shoulder joint, with pain on abduction and elevation. His grip was poor. In his report dated 27 March 1992 Dr Bryan stated that he had no reason to doubt the plaintiff's complaints. There was nothing to suggest to him that he was exaggerating. He believed that the outlook was poor. He could never see the plaintiff returning to work as a carpenter.

123. It appears from his later report, dated 14 August 1992, that he was then shown the video. It indicated to him that there was nothing to suggest that the plaintiff had any difficulty with his shoulder at the time the videotape was recorded, and the plaintiff's visible activity led him to question the need for the further surgery in 1991. He suggested the possibility of some further injury.

124. He noted a report from Dr Sonnabend, but found it hard to believe that a person carrying out the activities seen on the video could be having so much trouble with his shoulder.

125. Dr Bryan's reports were served on the plaintiff's solicitors, and counsel for the plaintiff tendered them. He was not cross examined.

126. But I would note that Dr Sonnabend found actual pathology on operation. The video was recorded in early 1986, and a lot had happened to the plaintiff in the intervening six years, including Dr Sonnabend's operation. Dr Bryan himself commented that that operation did not appear to have improved the problem, and may in fact have increased it. When the plaintiff was seen in 1992 Dr Bryan felt that he had considerably more problems with his shoulder than would have been evident in January 1986.

127. Dr Veness had first seen the plaintiff for a lengthy consultation on 6 April 1992 and then for about an hour each on 25 August and 21 October 1992.

128. His report to the plaintiff's solicitors was dated 27 October 1992. Subsequently Dr Dawson referred the plaintiff back to him for treatment, and until May 1993 he had seen the plaintiff on about six occasions.

129. Dr Veness detailed the course of the plaintiff's life after the accident. His involvement with the tavern had been unsuccessful. He was relying on his wife for support. His relationship with his wife had broken down. There had been the emotional trauma following the birth of his younger son. Throughout it all he had been suffering pain and difficulty in sleeping. Dr Dawson had prescribed the anti depressant drug Prozac and a steroidal anti inflammatory drug.

130. The plaintiff's wife had refused to become involved in Dr Veness's therapy.

131. In his report of 27 October 1992 Dr Veness summarised his conclusions by saying that the plaintiff was a very depressed man with good reason. He still thought of him as a strong suicidal risk. The anti depressants might have been helping, and the plaintiff showed a willingness to continue with therapy and to follow advice, but his future certainly looked bleak. Dr Veness had no doubts in attributing the origins of his mental state to the accident. The longer the situation remains unchanged the more chronic will become his mental and physical condition and the less successful any attempts at treatment for rehabilitation.

132. Dr Veness was so concerned about the plaintiff's situation that he took steps to refer him to the Mood Disorders Unit at Prince Henry Hospital.

133. When asked about the plaintiff's tendency to exaggerate his symptoms he commented:

"I have come to expect that that's the way patients of his ethnic
background communicate. I have seen lots of patients from the
Baltic States and I don't think I can remember one who has not
been rather histrionic in his/her presentation."

134. In cross examination it was put to Dr Veness that the plaintiff's depression was the result of many causes, including the failure of the tavern as a commercial enterprise and the birth of a Down's Syndrome baby, which of course were not effects of the accident. He was asked:

"MR NOCK: So aren't we building up a situation with this man,
doctor, where you've got multiple causation
situation in any event?
DR VENESS: I don't think I've denied that right from the start
that it is multiple, I think the big question is
connected with the pain in his shoulder and that
is, if you believe that he has the pain levels
that he has, then that goes a long way towards
explaining the depression.
MR NOCK: It comes back does it not, doctor, to whether you
really believe him and his complaints to you about
pain?
DR VENESS: Yes."

135. In re-examination he was asked:

"MR WHEELAHAN: Dr Veness, notwithstanding the addition of some
possible aggravating episodes in this man's life
since 1984, has anything that Mr Nock put to you
led you to conclude that your diagnosis is
incorrect?
DR VENESS: No."

136. On 27 August 1992 the plaintiff was examined by Dr Shoulder, a consultant psychiatrist to the Royal North Shore Hospital and to the Repatriation Hospital at Concord.

137. Dr Shoulder did not find on his examination any signs of re-active depression. He was not inclined to accept the statements by the plaintiff about his symptoms as truthful. He stated in his report that the plaintiff did not have the signs of a major depression, and indeed all signs of energy and ferocity were clearly evident and directed outwards to many and specific objects. He stated that this is not what happens in depression where the aggression is turned in and is often not able to be easily identified as to the object of direction. In his opinion the plaintiff was exaggerating for clear financial gain by the compensation system. In his evidence he appeared to place emphasis on the fact that the plaintiff did not describe himself as suffering from depression. Dr Veness did not agree with Dr Shoulder's hypothesis about depressive patients directing their anger internally. I think in this case it is significant that Dr Veness has seen considerably more of the plaintiff than Dr Shoulder, and that he is sufficiently convinced of his diagnosis to refer him on to the Mood Disorders Unit for treatment. I prefer to accept the evidence of Dr Veness.

138. In September 1992 the plaintiff's solicitors referred him for an opinion to Dr McGrath, a specialist in rehabilitation and occupational medicine. He read many of the medical reports tendered in evidence.

139. The plaintiff presented to him as a "down trodden" depressed man, who rarely used his right arm and avoided moving his shoulder through a significant range even when undressing. He exhibited a very poor active range of shoulder movement, and passively Dr McGrath was not able to achieve much more without complaints of pain and muscular protection. In his report he stated that despite the valid surgeries that had been carried out the plaintiff still has a dysfunctional shoulder complex with a very poor active range of movement. He found it difficult to give a precise biodynamic explanation for the dysfunction but stated that the dynamics of his shoulder complex were highly irregular and abnormal. He agreed with the opinion of Dr Stubbs that the plaintiff had lost of the order of 50 percent function of his right arm. Even if the shoulder complex were treated so that it settles down with respect to pain he would still be likely to be left with a movement disability. From a physical point of view the plaintiff might become fit for sedentary occupations in the course of time. In evidence Dr McGrath stated that his present condition was the result not only of the original injury but of the operations that have since taken place. He said:

"The way I see it, your Honour, it was one failed operation after
another. I can't say how he was prior to the operations, but
certainly the operations didn't help and they may have made it
worse."

140. Dr Morris reviewed the plaintiff on 7 December 1992. He was told that the plaintiff had had increasing pain around his shoulder and into his neck since October 1990, when he had last seen him. Active movements of the right shoulder and neck were limited and passive movement revealed some limitation of shoulder movement at the extremes.

141. Overall he thought that the plaintiff presented with a somewhat exaggerated affect, but he believed that he had genuine right shoulder problems. He thought there was ongoing rotator cuff irritation, even though it was objectively intact. He did not believe that further surgery was indicated, but nor did he think that he would ever get back to physical work involving his right shoulder or right arm.

142. On 22 December 1992 he was reviewed by Dr Coyle. He had not seen him since early 1991. The plaintiff told him that many of his shoulder symptoms had been relieved or improved by Dr Sonnabend's operation, and that the shoulder had at least been stabilised, no longer subluxing inferiorally. However as he recovered from the operation other problems in the general region developed or became more severe or relatively more important. On examination he commented that Mr Zunic, who had always appeared to be rather unusual, now appeared to be an emotional wreck. He was obviously depressed and agitated. He could not or would not move his neck in any direction at all and right shoulder movement was also grossly restricted, and associated with some palpable cracking in the region of scapular, which is probable a muscle snap of some kind. There was also local muscle wasting, no doubt the result of disuse. Dr Coyle believed that the plaintiff did have a significant right shoulder injury, although his emotional reaction to it was unusual and extreme, and the physical problem would appear to have been dealt with successfully. Nevertheless he concluded that whatever his primary injury was the plaintiff's problem now was a mental or emotional illness which was at least as much a result of personality type as of physical injuries.

143. Dr Dawson, his general practitioner, reviewed the history and clinical findings and re-examined the plaintiff on 7 December 1992. His summary was that the plaintiff was a severely depressed patient in considerable pain from his shoulder, who will need long term pain management. In evidence Dr Dawson said that the first documentation he had of any symptoms of anxiety or depression was on 11 July 1991. I note that Jamie was born on 6 June 1991.

144. I also note that the video was recorded in early 1986, and the plaintiff had not consulted Dr Dawson from 24 January 1985 until 9 August 1988, according to his clinical notes.

145. Dr Sonnabend reviewed the plaintiff's condition in December 1992. He reported that the right shoulder is clearly not normal. Although not grossly unstable it can still be subluxed inferiorally indicating at least some persistent organic abnormality in the soft tissues of the shoulder. Mr Zunic was able to exhibit subscapular crunching and clunking, which Dr Sonnabend was unable to explain. He also had the impression that the plaintiff's behaviour exhibited features of a chronic pain syndrome.

146. Dr Dawson gave evidence on 4 March 1993. He had referred the plaintiff for assessment by the Department of Anaesthesia and Pain Management at Royal North Shore Hospital, but had not then received a report from that Unit.

147. When the hearing resumed in June a report by Dr Molloy of that department, dated 18 March 1993, was tendered.

148. On examination the plaintiff appeared to be significantly depressed. He had a marked drooping of his right shoulder and appeared to have an immobile right arm. Mobility of the shoulder was greatly restricted. There were multiple trigger points in the muscles around the right scapular.

149. Dr Molloy expressed his conclusions as follows:

"I feel that this gentleman has significant depression which is
complicating a picture of chronic pain in his right shoulder. He
also has a number of trigger points in his right parascapular
muscles which can in themselves cause marked pain. This gentleman
has considerable deactivation and will require long term extensive
rehabilitation ideally in the form of an in-patient operant
programme. He is presently at an early stage of treatment, and I
have arranged from him to see the Pain Centre's psychiatrist,
physiotherapist and our social worker. I feel that with full
assessment and with ongoing treatment he has a good prognosis.
I think it is more probable than not that the injuries detailed in
earlier correspondence were caused by the accident. Unless this
patient receives prompt and appropriate treatment, it is likely
that his condition will deteriorate due to further deactivation.
It is difficult to know if there will be any residual disability
until he has completed his course of treatment. I feel that this
gentleman requires assessment by one of the in-patient programmes
such as the Sydney Pain Management Centre or the North Side
Programme. They will be able to give you an indication of the
costs. At present, this gentleman is unfit for the work involved
in his previous employment and it is difficult to know what other
sort of work would be suitable. I feel that this gentleman is
unfit for work due to significant depression, chronic shoulder
pain and general deactivation."

150. Dr Molloy was not required to attend for cross examination. Dr Dawson also referred the plaintiff for an opinion to Dr Bokor, orthopaedic surgeon of Western Sydney. His report shows that he found the plaintiff distressed because of pain. There was tenderness to palpation throughout the neck and around the shoulder. Objective neurological examination did not show any abnormality.

151. In Dr Bokor's opinion the plaintiff has chronic cervico-brachial irritation, associated with severe depression. He could see no indication for any surgical intervention.

152. Dr Bokor was not required to attend for cross examination.

153. The plaintiff's wife gave evidence. Mrs Zunic is personable, articulate and intelligent. She is employed in the Australian Public Service as an Executive Officer, ASO6, in the Fisheries Management Authority.

154. Until the accident the plaintiff was a very active, happy, easy going person. With the two of them working they were comfortably off, and contemplating additions to their home, into which the plaintiff had put a lot of work.

155. After the accident he did less and less work in the home. He slept on the floor because he could not get any sleep in bed. She had to care for him extensively in the period immediately after the first operation.

156. Then he gradually began to be able to do more for himself. Her perception while giving evidence was that perhaps she pushed him to do things, despite his complaints of pain, thinking that he was recovering. During the first six months of 1986 he was doing mostly housework, occasionally doing some weeding in the garden.

157. She was not aware of any incident in which he hurt himself between the first and the second accident.

158. She was not asked to view the video or comment on the specific occasions when he was observed in January of 1986. She did recall in her evidence in chief an episode when she had been complaining about the garden, and he lost his temper and went out and did some clearing out and digging. Her description of the activity was consistent with the video, but there is some doubt whether it was the specific occasion. She recalled it as having been in Autumn.

159. After the second operation also she needed to care for him, for about 6 weeks, but perhaps not to the same extent as after the first, because his arm was in a sling, and not fixed to a plaster cast.

160. In cross examination she was asked about the day she recalled his working in the garden. She was asked:

"MR NOCK: ... Was he in pain that day?
MRS ZUNIC: He was putting up a brave front and of course he
was mad as hell so yes, he did - he was in pain.
MR NOCK: What did you notice about him? What did you
notice about him that gave the indication to you
that he was in pain, apart from the fact that he
was cranky with you?
MRS ZUNIC: After doing the gardening he was in extreme pain."

161. It was not put to her in terms that by the time of the second operation he had really recovered to such a stage that an operation was not called for, or that in the second quarter of 1986 he was not suffering much pain at all.

162. The enterprise of the Subway Tavern and Smokeys were not remunerative. Over most of the period he was not receiving either a pension or workers compensation. She was effectively the breadwinner. Their finances deteriorated. They sold their home at Evatt in early 1992, mainly to pay debts they had incurred.

163. In cross examination she would not concede that the troubles between her and the plaintiff arose out of the changed life style resulting from his working at the tavern, or their financial difficulties.

164. There was no suggestion in her evidence that at any time he suffered any incident that could have explained the dislocation of his shoulder posited by Dr Sonnabend.

165. The objective physical signs that Dr Sonnabend observed, of muscle wasting and cartilage loss, demonstrate pathology in the shoulder. I am also satisfied on the evidence that the description of the accident by the plaintiff and of his treatment at Royal Canberra Hospital are consistent with his having suffered a dislocation in the accident as well as a rotator cuff injury.

166. I accept that he exaggerated his symptoms to various doctors, and that his behaviour as shown by the video is quite inconsistent with those exaggerations. But it is still possible that he was suffering such discomfort that when Dr Morris advised a further operation it was reasonable for him to undergo it.

167. Counsel for the defendant suggested that the subluxation could be explained by some other incident. There is no evidence of any other incident that might have caused it, and it was the sort of injury that might well have been caused by the accident. I think on the balance of probabilities that it was.

168. I think it is also significant that Dr Sonnabend draws the distinction between raising his arm forwards and raising it sideways. An inability to raise the arm sideways is consistent with the pathology that he observed, and was not inconsistent with any of the activities seen on the video.

169. An inability to raise the arm forwards would not be explained by the pathology, and is visibly inconsistent with his behaviour on the video. That complaint, when made, may be accepted as an exaggeration. But that demonstrated exaggeration is not inconsistent with persistent discomfort in the joint resulting from the pathology observed by Dr Sonnabend.

170. Despite all his histrionic behaviour, it is also significant that the plaintiff suffered a number of other injuries, to his hand, his knee and his elbow, none of which he made any attempt to exaggerate, and from all of which he recovered without significant complaint.

171. Again, this is not a case where, in early 1986, the plaintiff was relying on exaggerated symptoms to justify a decision, for example, not to go back to work. He was deciding whether or not to undergo an operation.

172. Again, the question is not whether Dr Morris's advice was really justified on the basis of objective indications, had he been given accurate and moderate descriptions of them by the plaintiff. It is whether in all the circumstances it was reasonable for the plaintiff to undergo the operation.

173. I am satisfied that he was at the time suffering discomfort. He had been to see Dr Stubbs as well as Dr Morris. Dr Morris was telling him that both he and Dr Stubbs thought an operation could help. Despite his exaggeration of his symptoms I think that it was reasonable for him to undergo that operation.

174. In summary I find that the plaintiff suffered a frightening and painful injury to his right shoulder, which involved both a dislocation and a tear of the rotator cuff. The dislocation was reduced at Royal Canberra Hospital.

175. When conservative treatment did not deal with the pain, he underwent an arthroscopy in April 1985 and the repair operation by Dr Morris of the rotator cuff in May 1985.

176. Despite the exaggeration of his symptoms to doctors he was still suffering pain, and was unable to return to work as a carpenter, in early 1986, and he reasonably underwent the acromioplasty operation by Dr Morris in July 1986.

177. Probably because the damage done by the dislocation had not been detected, that operation did not solve the problem and he continued to suffer pain. There was a further arthrogram by Dr Morris in July 1987.

178. Then he underwent the subluxation and arthroscopy at the hands of Dr Sonnabend in May 1991, and the capsulorrhaphy by the same doctor in July 1991.

179. As a result of the continuing pain and disability, the financial strains, the trauma of his child's disability, and the breakdown in the relationship with his wife, he developed a severe and continuing depression, which adversely affected his ability to deal with the physical pain. He has therefore used his arm less and less, and its physical condition has deteriorated further as a result.

180. The defendant is not to be made to compensate the plaintiff for the suffering that resulted, for example, from his son's disability, nor was it or his injury responsible for the failure of the Subway Tavern or Smokeys. But the injury and its consequences affected his ability to cope with those stresses. Had he not been injured I do not think those pressures would have resulted in his suffering a clinical depression.

181. In assessing this aspect of the case, I would respectfully adopt the approach taken by Miles CJ in Mansfield v Harrison (ACT Supreme Court, 9 November 1993, unreported) where at pp 10 and 11, he said, of not dissimilar considerations:

"However, all these matters are, in my view, well within the
stresses and strains of ordinary living and are not to be excluded
from the foreseeable circumstances in which the plaintiff has had
to live out the results of the injury for which the defendant is
responsible. The defendant is not responsible for any of these
matters of aggravation. What the defendant is responsible for are
the foreseeable consequences of the injury unabated by events
which cannot be extricated from the web of circumstances which lie
within the range of foreseeability and which are seen to follow
the injury with the passage of time."

182. It is quite possible, but by no means certain, that with the end of this litigation and the bettering of his family's finances as a result, and with appropriate psychiatric and pain management treatment, his emotional health may improve. I do not think that after the lapse of so many years of illness he will ever be again the sort of person that he was before the accident.

183. There is nothing that can be done to substantially improve the physical condition of his shoulder. Again, after so long a period of disuse, even extensive treatment and rehabilitation could only improve it, not restore it.

184. It is completely unrealistic to expect that he will ever again be able to work as a carpenter. He is only 45 years of age.

185. For his pain and suffering I award $90,000, of which I would attribute $25,000 to the future.

186. Interest on the past component, on the conventional basis, amounts to $11,750.

187. Exhibit "J" shows the calculation of the claim for the value of the services provided voluntarily by the plaintiff's wife, which are reasonable. I exclude the consequences of the elbow operation, and allow $1,750 for that item.

188. On the basis of the earnings disclosed by the plaintiff in his tax returns, the loss of income in the past has been agreed at $136,686 to the date of the conclusion of the hearing, 23 June 1993.

189. I have already decided that I accept those figures as accurate. That sum must be adjusted by the addition of $407.32 per week for the period since, which would give an additional $8,554, leading to a total of $145,240.

190. It is now 9 years since the accident, and he was working as a formwork carpenter, when the building industry was healthy in Canberra. There must be some discounting of that figure for the contingencies of occasional lack of employment opportunity, and the possibility of other accidents.

191. I allow $130,000 for past loss of income.

192. There is no evidence that he was paid substantial weekly compensation, and I allow interest on that sum at 8.7 percent from the date of the accident, which is, in round figures, $100,000.

193. The out of pocket expenses are agreed at $19,500, on which interest is not claimed.

194. The outer limit of the award for future loss of income is the present value of 3 percent of a loss of $407.32 for 20 years, which is $320,825.

195. That sum must be substantially discounted, for a number of factors, including the ordinary contingencies of life, and the nature of employment as a carpenter in the building industry. There is also the possibility that he might be able to work again, at some type of light bench work. But that depends on his emotional recovery as well as his physical strength. I take into account that at last he will have received compensation, and the worry of litigation will have finished. But substantial emotional recovery is now a possibility than a probability. It is now so long since he has used his right arm that his physical rehabilitation must also be problematical. As a matter of judgment I award $200,000 for loss of future income earning capacity.

196. The claim for additional economic loss on account of the sale of the house was not pressed, and in any event I would not have held that it was caused by the consequences of the accident, at any rate as calculated in the Statement of Particulars.

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

Pain and suffering $ 90,000
Interest 11,750
Griffiths v Kerkemeyer 1,750
Out of pocket expenses 19,500
Past loss of income 130,000
Interest 100,000
Future loss of income 200,000
TOTAL $553,000

198. I direct the entry of judgment for the plaintiff for $553,000.

199. Unless counsel wish to be heard to the contrary, I propose to order that the defendant pay the plaintiff's costs.