Kevin John Delaney v ACT Industrial Cleaning Services Pty Ltd [1993] ACTSC 107 (13 December 1993)

SUPREME COURT OF THE ACT

KEVIN JOHN DELANEY v. ACT INDUSTRIAL CLEANING SERVICES PTY LTD
No. SC696 of 1990
Number of pages - 13 Negligence

COURT

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

CATCHWORDS

Negligence - Work accident - Employee - Contractor - Scaffolding - No safety rail - Duty of care - Failure to supply safe scaffolding - Mobile Scaffolding - Brakes not applied - Contributory negligence.

Scaffolding and Lifts Act 1912 (NSW)

Scaffolding and Lifts Regulations Reg 73(3)

HEARING

CANBERRA, 8-10 June and 17 November 1993
13:12:1993

Counsel for the Plaintiff: R. L. Crowe

Instructing Solicitors: Gary Robb and Associates

Counsel for the Defendant: G. Lunney

Instructing Solicitors: Crossin Barker Gosling

ORDER

THE COURT ORDERS THAT:
Judgment be entered for the plaintiff for $376,470.

DECISION

MASTER A. HOGAN This is an action for damages for personal injury sustained by the plaintiff in an accident at his place of work on 18 October 1989.

2. The plaintiff is a plasterer. He was working on the refurbishment of the building formerly occupied by J B Young in Garema Place in Civic. His task was to perform finishing work on the eaves running around the outside of the building.

3. The first issue relates to the nature of the relationship between the plaintiff and the defendant.

4. The plaintiff's evidence in chief was that he was asked to work on the site by a Mr Nemes. There was no direct evidence that Mr Nemes was an officer or servant of the defendant. Mr Nemes paid him each Friday on an hourly rate, according to records kept by the plaintiff in a docket book, Exhibit "C". The work that he carried out was specified by Mr Nemes. There were no records of the defendant tendered by either party. Mr Nemes was not called by either party.

5. The relationship between the parties and the circumstances of the accident were the subject of litigation, or, more accurately, arbitration, in the Magistrates' Court, pursuant to the Workers Compensation Act 1951. The Magistrate in those proceedings did not make a specific finding about whether the plaintiff was employed by the defendant in the common law sense. He found that, on whichever version of the evidence was accepted, the plaintiff was deemed to be an employee within the meaning of the Act by the operation of s.6(3).

6. The formal finding expressed in the award was that the respondent was at all relevant times deemed to be the employer of the plaintiff pursuant to s.6(3) of the Act.

7. I do not agree with the submission of counsel for the defendant that the award of the Magistrate raised an estoppel by force of which I would be obliged to hold that the relationship between them was one of contractor and subcontractor.

8. But it is necessarily implicit in the award that there was a relationship between the plaintiff and the defendant relating to his employment.

9. I am not satisfied on the evidence that the plaintiff has demonstrated that the relationship between them was one of employer and employee.

10. I am satisfied, on the balance of probabilities in the light of the evidence, rather than on the basis of any estoppel, that the relationship was that of contractor and subcontractor.

11. The Amended Statement of Claim alleged such a relationship.

12. The pleading set out the resulting duties as being terms or implied terms of the contract between them. I think that it is preferable to state them as duties arising out of the proximity between them in the light of the particular circumstances of what he was employed to do.

13. The eaves on which the plaintiff was required to work were at a height of about 12 feet above the ground. During the 3 weeks before the accident the plaintiff had been working from a mobile scaffold. That was constructed of aluminium pipes, with planks forming the deck, and which moved on wheels fitted with brakes.

14. It was also fitted with a safety rail at about thigh height.

15. When the plaintiff came to work on the morning of the accident that scaffold was being used by carpenters who were also working at the site. They declined to make it available to him. One of them brought scaffolding materials from behind the building, and, with some assistance from the plaintiff, constructed a mobile scaffold for his use. It had wheels fitted with brakes. It did not have a safety rail. The two planks forming the platform were the same width as the two planks on the previous scaffold, but there was room for a third, which was not supplied.

16. He said that he thought it was unsafe, and he wanted the previous scaffold, but those in possession declined to deliver it up. He began work using what was available.

17. He had to work on about 20 feet of eaves, the gyprock lining of which he was required to sand smooth with a hand sander, to prepare it for painting.

18. During the course of the morning he needed to get down from the scaffold and move it along to a different position. He had done that about 6 times. The surface was rough and had some slope in it, from the building down to the footpath.

19. He said in his evidence in chief that he used the brakes on the scaffold. On occasions it was necessary to adjust the height of the legs because of the uneven ground. When asked whether, on every occasion that he dismounted, he used the brakes, he replied, "I can't recall."

20. He had arrived at a point near the corner of the building. He was on the scaffold, sanding overhead with his left hand. He was supporting himself with his right hand against the wall of the building. The scaffold moved from underneath him, away from the wall, and he fell to the concrete below.

21. He claimed in evidence that if there had been a safety rail on the scaffold he would not have needed to lean against the wall, he would have been able to support himself by leaning his legs against the rail. I think he conceded that the absence of the third plank played no part in causing the accident.

22. In cross examination the plaintiff conceded that he knew that there was a risk involved in using the scaffold without a safety rail.

23. There was no witness to the actual fall. Mr Woods, a carpenter, who was fixing the gyprock at the site, heard him fall, and heard the scaffold collide with his utility. He said that he had, earlier that day, seen the plaintiff move the scaffold along whilst on it, by placing his hands on the ceiling and pulling the scaffold along without the wheels being locked. He had also seen him get down off the scaffold and move it while he was on the ground. He had sometimes applied the brakes.

24. Mr Woods also said that when he moved the scaffold away from his utility the brakes were not on.

25. In cross examination the plaintiff conceded that he might have pushed the scaffold along by placing his hands on the ceiling and pushing, but he could not recall doing so. When asked whether he locked the brakes every time he went up on the scaffold he said, "I can't recall. I'm not sure." He conceded that if the brakes were on properly the scaffold could not have moved to such an extent to cause him to fall off balance.

26. I am comfortably satisfied, the onus being upon the defendant, that at the time the plaintiff fell the brakes were not locked on the wheels of the scaffold.

27. Even on the basis that the plaintiff was a contractor to the defendant, it was the defendant which undertook to supply the scaffolding from which the plaintiff was to work. That means that the defendant was under a duty to supply scaffolding that was reasonably safe. It was not a compliance with that duty to have supplied a reasonably safe one previously if it, or one just as safe, was not available to him on the day of the accident.

28. Mr Woods had helped to erect the scaffold. He said that there were safety rails available. He could not be sure that a safety rail had been erected. I accept the plaintiff's evidence that there was no safety rail provided. There is no evidence that he knew that any were available, or where to go to get them.

29. Even without the scaffolding legislation, I would hold that the failure to provide a safety rail on that scaffold for the job the plaintiff was to do constituted a failure to take reasonable care for the safety of the plaintiff.

30. But it is also clear that the defendant was carrying out building work within the meaning of Regulation 73 of the Scaffolding and Lifts Regulations made pursuant to the Scaffolding and Lifts Act 1912 (NSW) in its application in the Territory, and that it failed to provide means, by fencing or otherwise, for securing the safety of the plaintiff, who when he was on the scaffold was working at a place from which he would be liable to fall a distance of more than six feet, in breach of Subregulation 73(3).

31. I should make it clear that I am not holding that the defendant was vicariously liable for any failure to take care on the part of Mr Woods. There is no evidence about the relationship between Mr Woods and the defendant. I am holding simply that it was the defendant's duty to provide reasonably safe scaffolding, which complied with the Regulations. Whether it chose to do so by its employees or by contractors does not matter. The scaffolding that was supplied was not reasonably safe, and did not comply with the Regulations, and the relationship between the defendant and Mr Woods did not matter. Nor did the activities of Mr Woods and any others constitute an independent activity which relieved the defendant of its duty in that respect.

32. The defendant is not being held liable because by its agent, Mr Woods, it supplied a scaffolding which was unsafe. It is being held liable because it did not, by any means available to it, provide scaffolding that was safe. In the absence of safe scaffolding the plaintiff used what was available to him which was not safe.

33. There will therefore be judgment for the plaintiff.

34. The contributory negligence alleged against the plaintiff is that he knew that the scaffolding had no safety rail, that there was a risk involved in using it, that he did not ensure that the brakes were on, and that he stood with his hand against the wall, exerting pressure so that the scaffolding moved away from the wall, the brakes being off.

35. As matters of fact I am satisfied that the defendant has demonstrated each of those matters, and that the plaintiff's injuries were caused partly by his own fault.

36. The primary responsibility was on the defendant to supply proper scaffolding. When it was not provided the plaintiff proceeded to do the job with what was available. Knowing that there was a risk he should have been careful to apply the brakes, and the application of brakes was entirely a matter for him. Exerting pressure against the wall was precisely the sort of activity that a worker in his situation would be expected to do, and I do not think that matter is of any great moment. If there had been a safety rail, even had the brakes been off, there would probably have been no accident. If the brakes had been on, there might well have been no accident, despite the absence of the safety rail. But again the job he was employed to do entailed a need to move the scaffolding along from time to time, and a failure by the plaintiff to lock the brakes every time he moved it was an eventuality that might well be expected to happen.

37. In apportioning the fault I would judge the plaintiff to be responsible for his own damage to the extent of 20 percent, and his damages will be reduced accordingly.

38. The plaintiff was born in Canberra on 18 March 1959.

39. He has always suffered from asthma from time to time. From his childhood he also suffered severely from eczema. When he was young he underwent a number of distressing episodes caused by the treatment of the eczema, as a result of which he has developed an intense dislike of hospitals and treatment in them.

40. He left school at the age of 15, without acquiring any real skills in reading or writing. He began work as a plasterer, although he did not undergo an apprenticeship. Apart from short periods of work as a storeman and reconditioning furniture he had always worked as a plasterer. He undertook alternative work at times when there was no plastering work available.

41. He did not marry, but in 1987 began to live with Mrs Gwen Morris, who was then separated from her husband. They have not had children.

42. His asthma and eczema did not have any effect on his capacity for work, and he was otherwise fit and strong. When work was not available in Canberra he was prepared to travel to find it. He enjoyed fishing, cycling, shooting and mechanical work on his car or motorbike.

43. When he fell his hands were outstretched. He struck his head, and was dazed, but did not lose consciousness. He immediately felt pain in his hands.

44. He was taken by ambulance to Royal Canberra Hospital, where he was recorded as suffering very painful forearms, moderate pain in the right lower ribs, and a small bruise above the right eye.

45. X-rays demonstrated bilateral Colles fractures, comminuted. No abnormality was shown on the skull or chest x-rays.

46. He was admitted, and Dr Morris, orthopaedic surgeon, operated to reduce the fractures under general anaesthetic. When he woke in hospital both his forearms were immobilised in plaster from the elbows over the hands. His fingers were free to move. He felt pain in the arms and in his chest.

47. Because of his dislike of hospitals he left after one day, and went home, where he was cared for by Mrs Morris.

48. On 1 November 1989 he consulted a general practitioner at Narrabundah Health Centre. In addition to the wrist and rib pain he was complaining of tenderness over the cervical and thoracic spine. He was prescribed heat and gentle massage for the neck and spine, and encouraged to move the wrists. He returned there on 8 and 14 November.

49. On 15 November 1989 Dr Morris checked with further x-rays, which showed satisfactory alignment of the wrist fractures. There was no evidence of spinal fractures, but the neck was still tender.

50. On 29 November 1989 Dr Morris removed the plaster, and referred the plaintiff for physiotherapy.

51. Further review on 10 January 1990 showed the left wrist was still tender, and there was a decreased range of movement. He had been undergoing physiotherapy to the wrists and the back, which was still sore. The physiotherapy continued.

52. On 28 February 1990 Dr Morris recorded ongoing wrist, neck and back pain. The plaintiff was unable to drive a car, and was becoming depressed because of his immobility.

53. In March 1990 Dr Morris found continuing pain, and significant restriction of supination of the left wrist. He thought then that the pain overall should gradually improve, but that it was likely he would have permanent restriction of movement in the left wrist. He advised conservative treatment with continuation of the physiotherapy.

54. In April 1990 he was visiting Woden Valley Hospital Rehabilitation Unit with Mrs Morris, who had an appointment there, and asked whether the Unit could assess him. Dr Farnbach informed Dr Morris, who sent him a copy of his report and asked that the plaintiff be entered into a rehabilitation program. The therapist recorded him as a very anxious man, who claimed to be having difficulty with most self care activities. The records do not disclose (to me at any rate) how often he attended initially, but there is a notation that he failed to attend further appointments after 23 April 1990.

55. He was still unable to return to work when Dr Morris saw him in July 1990.

56. On 25 September 1990, Dr Roebuck had examined him at the request of his solicitors. His conclusion was that there was significant permanent residual disability in both arms. He urged him to resume the physiotherapy which he had discontinued. The plaintiff told him that he could not afford it. However, Dr Roebuck concluded:

"One thing that is obvious is that he will never be able to return to his
previous occupation as a plasterer no matter how well he recovers."

57. On 2 October 1990, also at the request of his solicitors, he was examined by Dr Corry, rehabilitation specialist. He presented with a lot of pain behaviour. Dr Corry thought the degree of disability greater than would be anticipated for the injuries so far identified. He thought the plaintiff needed encouragement to use his hands more functionally if chronic sympathetic dystrophic changes were to be avoided. He recommended that he commence a rehabilitation program as soon as possible. The plaintiff was then unfit for any form of employment, in Dr Corry's view.

58. In October 1990 Dr Morris referred him to Dr Chandran, neurosurgeon, for review of his neck injury, and to assess whether the arm pains were due to any cervical injury. The wrist pain seemed to Dr Morris disproportionate to the type of fracture that he had sustained.

59. Dr Chandran saw him on 3 December 1990. X-rays of the lumbar and cervical spine were normal. There were no neurological deficits. There was some tenderness of the top of the cervical spine and in the lower thoracic region. The skin of his hands was blotchy, and there was excessive sweating. Both wrists showed marked restriction of movement. Dr Chandran suspected sympathetic dystrophy, and referred him to Dr Lithgow for a sympathetic block injection. The neck symptoms were from soft tissue injury only, for which conservative treatment was appropriate. The plaintiff declined to undergo the block injection procedure, because of his dislike of hospitals, and asked to be referred back to the rehabilitation unit.

60. Dr Chandran commented that the sympathetic dystrophy might eventually settle, but could take years to do so. The sympathetic block injection would make it possible to give more relief and control symptoms.

61. Dr Farnbach's own letter to Dr Chandran stated that he felt that the probability of his pain being sympathetically maintained and responding to blockade was quite low.

62. In all those circumstances I do not think that the plaintiff acted unreasonably in declining that procedure, nor am I persuaded that he would have been significantly better off, or that his recovery would have been significantly advanced had he undergone it.

63. Dr Corry re-examined him on 22 July 1991. He had not had any further specific treatment. He had attended Woden Valley Hospital Rehabilitation on 30 November 1990. He said that he could not afford treatment. In February 1991 he saw the social worker, wanting to look at other job options. There were further interviews at the Rehabilitation Unit, but his complaints of continuing pain and lack of literacy skills were a serious problem. A TAFE course in literacy was suggested, but it was noted that he would seem to have learning difficulties.

64. His principal complaint to Dr Corry was of pain in his left wrist, though pain in the right wrist, back and headaches persisted. There had been no significant improvement since Dr Corry's last examination, but no significant treatment either.

65. He urged that the plaintiff pursue a comprehensive exercise program at Woden Valley Hospital.

66. The defendant's solicitors referred him for medico legal opinion to Dr Melville, surgeon, of Sydney, who saw him on 31 July 1991. He noted recent x-rays, which showed some ossicle formation at the tip of the right radial styloid, and an ununited fracture of the tip of the ulnar styloids in both wrists.

67. On examination Dr Melville found great tenderness over the cervical spine, though no restriction of movement or muscle spasm. There was some tenderness over the thoracic spine, but again no restriction of movement or muscle spasm. There was complaint of pain at extremes of movement, in both spinal areas.

68. The wrists were very tender, and movements, though full, caused pain. Dr Melville found his symptoms grossly exaggerated. He assessed him as fit to perform any of his normal duties. Dr Melville was not required to attend for cross examination.

69. Dr Cairns, orthopaedic surgeon, also examined him for the defendant, on 5 August 1991. He also found the plaintiff emotional and hyper-reactive. He thought the soft tissue injury to the spine should by then have resolved. There was significant functional overlay in respect of complaints about the wrists. He advised strongly against any operation to remove the loose bone fragments, as it would only reinforce the plaintiff's belief that he had significant ongoing residual disability. How much of his disability was organic and how much functional Dr Cairns thought it impossible to assess. He also was not cross examined.

70. On 11 September 1991 the solicitors for the defendant had him examined by Dr Roberts, psychiatrist. In November 1991 Dr Veness, psychiatrist examined him at the request of the plaintiff's solicitors, and in his report referred to opinions expressed by Dr Roberts. Although Dr Roberts was not available for cross examination I admitted his report into evidence, noting that counsel for the plaintiff had no opportunity to test his opinion.

71. Dr Roberts does not seem to have had the benefit of reading any reports from any of the other doctors. He interviewed the plaintiff at length, and, though he did not conduct a full physical examination, he did carry out a number of tests, which indicated to him that the plaintiff was not reacting honestly. He thought that the wrists had healed well. There were no clinical signs or symptoms of any nervous condition. There was no evidence of heightened anxiety or depression. He could not see any reason why he could not return to work, and considered that he had not done so because his union had forced his employer to pay him a salary for doing nothing, and he had a prospect of obtaining further compensation.

72. When Dr Veness saw him two months later he also received reports from Drs Wardman, Roebuck, White, Morris, Corry, Melville and Cairns.

73. The plaintiff told him the details of his injury and treatment. He said he felt frustrated and was short tempered, but did not reveal to Dr Veness any substantial symptoms of depression or anxiety. He was no longer living with Mrs Morris, two of whose children were now with her, although the relationship remained close.

74. The reports that he had read and his interview with the plaintiff raised squarely for Dr Veness the issue whether the plaintiff was malingering or suffering from a functional disorder. He agreed with Dr Roberts that there were no substantial signs of anxiety or depression.

75. He was not so certain that he was malingering. It seemed to him that, rather than directly faking his symptoms, he had adopted the role of an invalid following the accident and had never recovered from it. His background and personal resources were consistent with that hypothesis. He concluded:

"I see this period of enforced dependency as much more significant than
any psychological or physical trauma experienced in the accident itself.
His outlook for recovery is not good, firstly because he has no insight
into his emotional problems and secondly because he is distrusting of
medical assistants and inadequate in his compliance with treatment, again
because of psychological reasons that date back to his childhood".

Dr Veness gave oral evidence and was cross examined. After his report of January 1992 he had seen the plaintiff again in April 1993.

76. That further interview, and other material put to him in evidence, confirmed him in his view. Confronted in cross examination with admittedly present factors that tended to point to malingering, he adhered to it. He would recommend psychological treatment, but without holding out a lot of hope that it would substantially improve his condition. Constant treatment over a period of about 3 years would, on reasonable assumptions, be needed to return him to some sort of useful work.

77. It was also part of his evidence that, on his hypothesis, any life event that had adversely affected the plaintiff's ability to work as a good plasterer would have had the capacity to damage his fragile self image.

78. Dr Morris also examined the plaintiff in January 1992, when he attributed his condition to a reflex sympathetic dystrophy, rather than to the direct traumatic results of the fractures.

79. He saw him again on 19 April 1993, when he was much the same as before. He summarised his views in his report as follows:
"Overall, this man's situation remains as before. He has sustained a fall

from about six feet onto his wrists, breaking both wrists and has
subsequently developed, I believe, a chronic pain syndrome in which he
subjectively feels real pain without there being physically major
disorganisation in his wrists or neck. At the same time, there does seem
to be exaggerated sympathetic response in the wrists with excessive
sweating, hypersensitivity and major discomfort with changes in
temperature. All these are hallmarks of a reflex sympathetic dystrophy
situation and as far as his prognosis is concerned, I think it is going

to

be a long time until this sympathetic disability is likely to settle.
I do not believe that further surgery is indicated for this man as far as
his wrists or forearms are concerned in the foreseeable future. He,
however, remains unsuitable to return to his previous heavy work as a
plasterer."

80. Dr Morris also gave oral evidence and was cross examined.

81. In his evidence in chief he described those conditions as follows:
"Well, chronic pain syndrome is I guess a basket of a term that is used for

conditions such as reflex sympathetic dystrophy where patients have
on-going severe pain and it is out of proportion to the apparent injury
that has been sustained. Reflex sympathetic dystrophy is a condition

where

the nerves - and this is the only real way that the brain can tell if a
limb has been injured - that the nerves are for some reason getting the
wrong message and they respond by the patient experiencing severe pain

but

also that there are changes, physical changes, which can be seen and can
be measured as far as their skin temperature, discolouration, lots of
factors that are outside the patient's real control but the nerves are
feeding back and if you like they are getting the wrong message in that
situation. That's the best way I can describe a reflex sympathetic
dystrophy and chronic pain syndrome really is part of that basket. The
terms are somewhat interchangeable."

82. That description, and the diagnosis, were not challenged in cross examination.

83. What was suggested was that if he had undertaken the rehabilitation and physiotherapy offered by Dr Farnbach it was unlikely that he would have developed the condition. Dr Morris did not concede that.

84. He did agree that if the plaintiff's emotional state were dealt with effectively, his capacity for a return to work would be increased, and that there was no certainty that the reflex sympathetic dystrophy would be permanent.

85. In preparation for the hearing Dr Cairns re-examined him on 18 March 1993. He reviewed other doctor's reports, and discussed his own previous reports with the plaintiff. On examination he was much as before, though with less emotional overlay.

86. In his opinion the complaints of disability and emotional overlay indicated that the major component in his ongoing disability was emotional. Physically he was fit for work.

87. Having read the reports of Dr Roberts and Dr Veness he commented:

"I would tend to agree with Dr Veness's assessment that the claimant
believes that he has suffered a physical injury which has rendered him
incapacitated, but there is the possibility that Dr Roberts is correct in
his assessment that the claimant is malingering."

88. Dr Cairns was not required to attend for cross examination.

89. Dr Roebuck re-examined him on 16 April 1993. He concluded:

"Mr Delaney has a significant permanent residual disability in both his
neck and both arms as a result of the fall at work on 18th October 1989
in which he sustained fractures of both wrists and injured his neck at

the

same time.
He has a 15% permanent impairment of his neck as a result of
the musculo-ligamentous injury he sustained at the time of the accident.
He has a 15% permanent loss of efficient use of the right arm below the
elbow and a 13% permanent loss of efficient use of the left arm below the
elbow as a result of the fractures he sustained in the accident of 18th
October 1989.
This is sufficient to give him a permanent restriction to his
employability making him fit only for light sedentary work permanently.
His total condition is a direct result of the fall at work on 18th

October

1989 and would not be helped by any treatment including surgery, nor is
such treatment indicated at this stage."

90. Dr Roebuck was not required to attend for cross examination.

91. Dr Corry re-examined him on 17 May 1993. He noted that there was no improvement in his complaints. Examination showed some early signs suggestive of sympathetic hyper-activity in both arms, but also suggested some magnification and over protection.

92. He advised again that he should be encouraged to use his arms more actively if long term disability is to be avoided. He was not fit to return to work as a plasterer. A search of his database suggested some type of security occupation.

93. Dr Corry did not give oral evidence and was not cross examined.

94. Mrs Morris also gave evidence. She described the plaintiff's enjoyment of physical recreation and pride in his workmanship before the accident, and his pain and limited capacity since. Her evidence on that point was not challenged or contradicted.

95. The defendant's principal submission is that Dr Veness is simply wrong and that the plaintiff is grossly and deliberately exaggerating his complaints, and has refrained from taking reasonable steps in relation to rehabilitation and getting another job, in order to extract the most out of this litigation.

96. I am persuaded that that submission is not correct.

97. The factual basis about his background and life experience on which Dr Veness founded his assessment of his personality is unchallenged. In September 1990 Dr Roebuck said he had significant permanent residual disability, and was not likely to work again as a plasterer, which was the only skilled work that he knew and in which he took pride.

98. In October 1990 Dr Corry assessed him as then unfit for any work.

99. In December 1990 Dr Chandran observed physical signs that indicated sympathetic dystrophy, which was later positively diagnosed and described by Dr Morris, in terms which make it clear that it can not be simulated.

100. Yet it was in April 1990 that he had initiated contact and sought help from the rehabilitation Unit, whom he saw in November 1990 and February 1991. He responded to their contact with him in March 1991, attending in April and May. It is by no means clear from the records that the Unit could really help him. I do not think that he was unreasonably refusing to accept treatment that would probably have helped him.

101. It is clear from Dr Corry's evidence that without it he would probably finish up in the condition in which he now is. But being physically in the condition described at the time, without receiving any confident prediction of being made better by a rehabilitation program, and with his lack of clerical skills, he did not persist with it for reasons associated with his personality as described by Dr Veness.

102. That course of conduct seems to be quite consistent with Dr Veness's diagnosis, which I am persuaded probably holds the key to explaining the plaintiff's condition.

103. I do not accept the assessment by Dr Roberts, who I think came too readily to a conclusion that he was malingering on the basis of insufficient information. He had no hint of the possibility of dystrophy. He disbelieved the plaintiff on the basis of some simple false responses and the absence of depression or organic explanation.

104. Dr Veness's opinion is not really excluded by Dr Cairns, who described functional overlay as symptoms arising "from within the suffer's mind, resulting in magnification or creation of physical disability which lacks organic basis, and may be of either a voluntary or involuntary nature".

105. Although he agreed with that there was a possibility that Dr Roberts might be right, he tended to agree with Dr Veness's assessment.

106. In summary therefore the plaintiff fell about 6 feet, and suffered a blow on the head, probably a fractured rib, and comminuted Colles fractures of both forearms. He also sustained soft tissue injury to the cervical and thoracic spinal areas.

107. The contusion to the head and the rib fracture healed reasonably quickly and without lasting effects.

108. The wrist fractures also largely healed in good position, with some loose minor fragments.

109. The soft tissue injuries have also probably healed, organically speaking.

110. Because of his background, lack of formal education and personality the plaintiff has not functionally recovered. He is still troubled by neck and back pain and headaches, associated with some muscular tension. He has sympathetic dystrophy following from disuse of his wrists and forearms and genuinely perceives pain in them.

111. It is possible, but not probable in my view, that the dystrophy will recede. I do not think it possible that he will ever again work as a plasterer. He is unsuited for any type of clerical or intellectual occupation. He has no manual skills except plastering, and the same disability that prevents him from doing that would prevent him from doing most of the other types of jobs that might be available to him. His is only 34 years of age.

112. For his pain and suffering and general damages I award $60,000, of which $20,000 would relate to the future.

113. For interest on the past component I award $3,300.

114. The out of pocket expenses are agreed at $3,777.50. No interest is sought on that item.

115. The plaintiff's submissions about past wage loss started from an amount calculated on the basis of the award rates, including overtime and site allowances, which gave a total of $92,098.47 to 8 June 1993, continuing at $495.00 a week. That would give a total to the date of judgment of $105,394.

116. The figure was adjusted by reference to evidence called, through Mr Zeltner, which could justify a capacity in the plaintiff to earn about $587.00 a week. That would give an up to date figure of about $125,000.

117. But, as counsel for the defendant rightly pointed out, the plaintiff was not working as an employed plasterer with a secure job working continuously with overtime and site allowances. He was subcontracting at an hourly rate about double the award rate, but without the additional benefits that working under an award would give him.

118. In fact, in the previous year, he had earned $27,595 gross, on which he paid tax of $6,449, giving a net figure equivalent to about $403.00 a week. On that basis his past loss would be of the order of $87,335.

119. He was however in regular work, and prepared to go looking for it when it was not available locally, and some allowance must be made for increases in the rate over the period.

120. As a matter of judgment I award $100,000 for past wage loss.

121. In fact he received total net compensation of $61,098 to 30 November 1993. I award $12,000 interest on the difference.

122. The Fox v Wood allowance was agreed at $13,351.92 to 30 November 1993, and bringing that up to date and rounding it gives an amount of $13,400.

123. An allowance for the value of the voluntary services provided by Mrs Morris is justified on the evidence at $3,100.

124. When looking at the future one indicator of the area of discourse is the present value at 3 percent of $403.00 a week for 31 years, which is $426,724.

125. The figures for $495.00 a week and $587.00 a week are $524,140 and $621,557 respectively.

126. Any starting figure must be substantially discounted, first on account of the normal contingencies. Then there is the possibility, though on the medical evidence that I accept it is no more than that, that he may get some employment in the future. That chance is affected not only by his condition, but also by the narrow range of suitable jobs and the numbers of others fitter and more employable than he would be who are seeking those sorts of jobs.

127. Next there is the casual and intermittent type of employment that he had chosen.

128. Lastly there is the increased chance that some other adverse life event may have adversely affected him.

129. In the exercise of discretionary judgment I award $275,000 for loss of future income earning capacity.

130. A full compensation would therefore be made up as follows:

General damages $ 60,000
Interest 3,300
Out of pocket expenses 3,778
Past wage loss 100,000
Interest 12,000
Fox v Wood 13,400
Griffiths v Kerkemeyer 3,100
Future wage loss 275,000
_______
TOTAL $470,578

131. Reducing that sum by 20 percent on account of contributory negligence gives a result of $376,470.

132. I direct the entry of judgment for the plaintiff for $376,470.