John William Dowse v Concrete Holland Joint Venture and Master Builders Construction and Housing Association (ACT) Group Apprenticeship Scheme of the Australian Capital Territory Incorporated [1993] ACTSC 82 (31 August 1993)

SUPREME COURT OF THE ACT

JOHN WILLIAM DOWSE v CONCRETE HOLLAND JOINT VENTURE and MASTER BUILDERS
CONSTRUCTION and HOUSING ASSOCIATION (ACT) GROUP APPRENTICESHIP SCHEME FOR THE
AUSTRALIAN CAPITAL TERRITORY INCORPORATED
No. SC 450 of 1989
Number of pages - 18
Personal Injuries

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
HIGGINS J

CATCHWORDS

Personal injuries - industrial accident - spinal injuries - cause of L3/L4 defects - whether accident or exacerbation of existing sporting injuries - extent of incapacity - participation in a high level of sporting activity - no new issue of principle.

HEARING

CANBERRA, 5, 6, 7 and 15 July 1993
31:8:1993

Counsel for the Plaintiff: Mr G. Lunney

Instructing Solicitors: Pamela Coward and Associates

Counsel for the Defendants: Mr R. Vincent

Instructing Solicitors: Macphillamy Cummins and Gibson

ORDER

The Court Orders that there be judgment for the plaintiff in the sum of $234,448.55.

DECISION

HIGGINS J On 11 March 1985, the plaintiff was employed on the site of new Parliament House at Canberra. His employment situation was somewhat complex. At the time he was an apprentice carpenter employed by the secondnamed defendant. That corporation had the responsibility to provide training and employment for apprentices in various building trades. It had made the plaintiff's services available to the firstnamed defendant which was carrying out building work on the Parliament House site. The plaintiff was, at the time, carrying out work under the control and direction of the firstnamed defendant.

2. He was directed to place formwork for the erection of certain columns. The place where he was to do this was a series of excavated square shaped holes between 1.5 and 1.75 metres deep. A crane had positioned a "cage" or "mat" of reinforcing steel in the base of each hole. The steel mat (as I will call it) was supposed to have been positioned so that it was in the centre of the hole. When so positioned, there was a gap of 100-150mm between the edges of the mat and the walls of the excavation.

3. In relation to one particular mat, the plaintiff noticed that it was not placed in the centre of the base of the hole. He was, at the time, being assisted by a labourer employed by the firstnamed defendant. The plaintiff and the labourer decided to attempt to re-position the mat. The mat had to be re-positioned before they could complete their task in relation to that particular hole. The plaintiff estimated that the mat weighed between 300 and 400 kilograms. They could not lift it entirely by themselves. They decided to lift one side of the mat and drag it into position.

4. According to Dr Oxenburgh, a consultant in occupational health and safety, that action would have required each man to bear one quarter of the total weight of the mat. It was his opinion that the mat, as described, would have weighed about 450 kilograms. In Dr Oxenburgh's opinion, safe lifting limits would have been exceeded even had the task been undertaken as originally intended. That lack of safety was exacerbated by the cramped conditions under which the lift was conducted which prevented the use of safe lifting techniques.

5. The situation was, in fact, further exacerbated by the fact that the labourer assisting the plaintiff suddenly released his side of the mat. This threw all, or nearly all, of the shared load onto the plaintiff quite suddenly. The load on his back then very substantially exceeded safe lifting limits.

6. In my view, the task undertaken was, in the circumstances, seriously hazardous. A misalignment of the mats was clearly foreseeable. Indeed, it should have been noticed and rectified before the plaintiff was assigned to his task. To enable the plaintiff and the labourer with him to proceed with safety it would have been simple to check the alignment of the mats before the crane which had placed them there was dismissed.

7. Even if that had not been done, the plaintiff should have been warned not to attempt the re-alignment of any mat without mechanical assistance.

8. In any event, the sudden release by his co-worker of his side of the mat was the proximate cause of injury to the plaintiff. If that person had felt his grip slipping, he should have warned the plaintiff. If he had decided deliberately to release his grip, for instance, believing the mat to be accurately aligned, again, he should have warned the plaintiff of his intentions before releasing his grip.

9. There was no issue as to which of the defendants was primarily responsible for the plaintiff's safety. It is enough to say that the negligence I have identified is negligence for which the defendants are liable. That negligence caused an injury to the plaintiff's back.

10. The defendants do not suggest that the plaintiff was guilty of contributory negligence. There must, accordingly, be a verdict for the plaintiff against the defendants.

Damages
11. The plaintiff was born on 12 June 1964. He finished year 12 in 1981. Thereafter he spent one year at Bruce TAFE before commencing his apprenticeship. From February 1983 he was placed with the firstnamed defendant as his "host" employer. Except for a brief placement with another building during a strike he remained with the firstnamed defendant performing general duties.

12. Before the lifting incident, the plaintiff had played both cricket and Australian Football at first grade level. He was an opening bowler for the South Woden team. He played centre, centre half forward, and full forward for Manuka in the ACT Australian Football League at senior level.

13. The plaintiff participated also in other sporting activity. He participated enthusiastically in track and gym work.

14. Before the accident there is evidence of only one prior episode relating to the plaintiff's back. On 8 March 1985, a Friday, the plaintiff was weight-lifting in a gym. He over-extended on an overhead lift and felt pain in his lower back. By next day, he deposed, the pain had resolved. He played first grade football as usual and returned to work on Monday, 11 March 1985.

15. Some question was raised as to whether the weight-lifting incident had fully resolved as the plaintiff claimed. However, his evidence that he played football and worked normally between then and the happening of the accident persuades me that it is unlikely that the plaintiff suffered any noticeable after-effect from the weight-lifting incident. The final and most convincing indicator to me is the very fact that, until his co-worker let go, the plaintiff managed a very heavy and awkward lift without apparent discomfort.

16. If follows that I approach the task of assessment of damages accepting that, prior to 11 March 1985, the plaintiff had experienced no significant disability or injury to his back. That does not, of course, exclude the possibility of asymptomatic defects having been present in the plaintiff's back before 11 March 1985.

17. A question was raised, on behalf of the defendants, as to the true degree of disability which the plaintiff has had since the accident.

18. The plaintiff said that, immediately following the lifting incident at work, he experienced severe pain. He could not straighten up. He attended the site first aid office. On the way he told the foreman what had happened. He was rubbed with analgesic by the nursing sister on duty and advised to attend his general medical practitioner.

19. He saw Dr John Howe who ordered x-rays and told the plaintiff to rest for two weeks. He did so.

20. On returning to work, the plaintiff had improved but pain was still present. It was exacerbated by lifting and bending and by climbing scaffolding.

21. After a further two weeks, the plaintiff returned to Dr Howe. Because of continuing pain he was referred to a specialist, Dr Robert Still, who prescribed physiotherapy treatment. That treatment did not result in improvement. A back brace was then prescribed. It relieved pain when worn.

22. The plaintiff was referred to Dr John Calder who offered him various options including surgery. The option taken was to continue to wear a brace and to avoid exacerbating activity. The plaintiff returned to work on 11 March 1986.

23. He kept up a regime of exercises, including swimming and cycling. He maintained physiotherapy treatment. Dr Calder felt he was fit to return to work. The plaintiff said, however, that he had represented to Dr Calder that he was more recovered than he was in order to get back to work.

24. The reason for this lack of candour was, the plaintiff explained, so that he could resume the progress of his apprenticeship. He was, nevertheless, required to refrain from work involving repetitive bending or the lifting of substantial weights. He was, notwithstanding these restrictions on his activities, kept on by the first defendant until his apprenticeship was completed. Pain continued to be exacerbated by any activity involving lifting or bending and by climbing scaffolding.

25. Subject to one incident, the plaintiff continued on light duties without any significant change in his back symptoms. On 18 June 1986, the plaintiff was supervising the carrying from one place to another of a number of steel door frames. The weight of each frame was not, per se, excessive. The plaintiff carried one for a short distance. He felt a significant increase in pain in his lower back. He was obliged to absent himself from work for 1 1/2-2 weeks as a result. Thereafter the back symptoms settled back to their former level.

26. The back condition did not physically prevent the plaintiff from any task that he had, before 11 March 1985, been able to perform. However, increased physical activity caused, or resulted later in, increased lower back pain which would then limit or deter such activity.

27. It was apparent to the plaintiff that he could not carry out the "hands-on" carpentry work he would need to undertake to progress as a carpenter. Indeed, he was advised against it by his treating doctors. He was unemployed for a time after his apprenticeship finished. He then looked carefully at his future options.

28. He qualified for university entrance and, in 1987, commenced a degree course in Building Management at the University of Canberra. The course was to be three years full-time study with one years work experience.

29. He then obtained a cadetship with a building company, Mantina Pty Ltd. It was an administrative job. It did not involve manual labour. It did involve driving to and walking around building sites and other places but that did not exacerbate the plaintiff's back symptoms.

30. Lectures, after sitting for 1-1 1/2 hours, would lead to some increase in back pain but this would be relieved by walking about.

31. The plaintiff did concede that during the time he was studying full-time he took a job as a carpenter with Lumo Constructions Pty Ltd, a building and engineering company, for 4-6 weeks. He was, however, assisted by a labourer who was assigned to him. He said that he could not have handled that level of activity on a continuing full-time basis.

32. In 1990, the plaintiff returned to playing Australian Rules football. He was tempted into that activity by a friend who, knowing of the plaintiff's talents, invited him to coach a lower grade team. He was importuned to play and did so. He did find that the activity resulted in considerable back pain. However, his devotion to football was such that he was prepared to put up with it.

33. He played up to mid-1992 when he ceased football because of an unrelated injury. He had already been advised by his general medical practitioner, Dr Howe, that he should not play.

34. In October 1990, the plaintiff obtained a job with Playoust Constructions Pty Ltd as a Contracts Administrator. His duties were to draw up quotations for building work, assess quotations from trades persons and to program work. He graduated in 1991, having completed two years of part-time study in addition to the full-time study he had already completed.

35. Recently, he has resigned from Playoust to take up a position at a higher rate of pay with the Department of Administrative Services (DAS) managing a real estate team. He now receives a base salary of $43,500.00 per annum plus performance pay of $1,000-3,000.00 and allowances of about $1,000.00 per annum.

36. Dr Howe referred him to Dr McNicol, a specialist orthopaedic surgeon. Operative treatment was canvassed but rejected. The plaintiff decided to have such treatment only if the level of pain and disability became unbearable. He had also consulted Dr Newcombe, a neurosurgeon.

37. The present duties performed by the plaintiff do not seem to be causing any exacerbation of his symptoms. He sees his future as staying with that career path or undertaking similar work in private enterprise. Had he not been injured, he had seen himself as becoming a building foreman and then a project manager with the option of starting his own company.

38. In cross-examination, the plaintiff conceded that he had, since the accident, built a pergola. He could touch his toes and run, although he suffers discomfort after a time. He had played social cricket, including bowling, although, he said, he no longer bowled above medium pace. He also agreed that he had played a couple of seasons with an indoor cricket team up to, but not including, 1993.

39. He also agreed that he had not told any examining doctor that he had returned to playing of football, albeit at a lower grade than before.

40. The plaintiff agreed that he had, since the accident, engaged in triathlons. It was suggested that he had consciously failed to inform examining doctors of his more vigorous activities to exaggerate his level of disability.

41. Indeed, the plaintiff's participation in football was far from nominal. He was captain of the University of Canberra Australian Rules team in 1992. He had been a coach in 1990 and 1991 and played a full season in 1991. He had on a number of occasions been named as the best and fairest player on the ground.

42. He has not played in 1993, due to a fracture to his cheek bone sustained in about September 1992. He had also sustained a broken thumb playing indoor cricket.

43. There was a video film showing the plaintiff participating in a football match. He agreed it was a fair presentation of that participation, which was, certainly, quite active. However, he did say that during half-time, he rested flat on his back to gain relief. It may be corroborative of the plaintiff's assertion that the standard of play was much lower than in 1st Division of ACTAFL that the team which he captained was known as "the Wombats".

44. His participation in triathlons and the ongoing training associated with preparation for them and for general fitness is also considerable. He does 10 laps or so of cycling each week. He runs 6-8 kilometres up to two mornings weekly. He works out with weights in a gym at least weekly. He does only bench presses, albeit up to 80kg. He has played touch football with a team during 1993.

45. It is clear that the plaintiff had, before the hearing, been less than frank with a number of examining doctors to whom he gave a history of his activities.

46. To place the criticisms levelled at the plaintiff's candour in context, reference should be made to a number of lay witnesses who gave evidence about their observations of the plaintiff.

47. Mr Garry McDonald (no relation to "Norman Gunston") used to play cricket with the plaintiff. For three years following 1989 he shared a house with the plaintiff. He was aware that the plaintiff had played for the Wombats. Mr McDonald preferred to play Rugby League so he did not see the plaintiff play. He was aware of the plaintiff returning home after playing complaining of pain and lying down to relieve it.

48. Mr Chris Thompson was the coach of the Wombats. He had played 1st Grade for Manuka (the Bullants) between 1981 and 1988. He knew the plaintiff when he had played under 19's and senior grades. He described the plaintiff's standard of play then as "very, very good". Before the accident, he said, the plaintiff would have been welcomed to any 1st grade ACT side. He had represented the Territory and had the potential to play at even higher levels.

49. When playing for the Wombats, notwithstanding the lower standard of play, the plaintiff still complained of back pain. He needed to have his back rubbed and stretched during breaks and would lie down to get pain relief. He missed some (though not many) games after complaining of back pain.

50. Detective Superintendent Ray Sweeney attested to the plaintiff's pre-accident talent and enthusiasm in the sporting area.

51. It seems to me that the level of disability claimed by the plaintiff to be present is corroborated by the evidence of these witnesses.

52. Two witnesses, Mr Mark Shannon and Mr Rodney Mitton had both worked with the plaintiff. Mr Mitton worked with him at Mantina Pty Ltd and Mr Shannon at Playoust Pty Ltd. To an extent the career profiles of those persons paralleled that of the plaintiff had he pursued his pre-accident career.

53. The primary issue, however, was the cause and extent of the disabilities of which the plaintiff complained.

54. No evidence was given by or reports tendered from Dr Howe.

55. Dr Robert Still's report of 23 October 1985 was tendered. He had first seen the plaintiff on 9 April 1985. He obtained a history that the plaintiff "had injured his back while lifting some weights on 8 March, 1985 but this had subsequentley (sic) settled entirely and he had again injured his back at work on 11 March, 1985".

56. Low back pain increasing with walking, prolonged standing and sitting was noted.

57. It was Dr Still's opinion that the plaintiff was "suffering from a spondylolysis with a resulting minor spondylolisthesis of L4 on L5".

58. Dr John Calder, orthopaedic surgeon, wrote reports dated 27 May 1986 and 2 September 1986. He first examined the plaintiff on 27 May 1985. He was given a description of the previous weight lifting episode. The plaintiff said that the pain experienced lifting weights "settled over two days". The incident at work he described as causing "an exacerbation" of the plaintiff's low back pain.

59. He said then,

"This settled in approximately two and a half weeks and then he
went back to work for a further week, but whilst at football
training, he went to kick the ball and developed severe low
back pain yet again."

60. It was suggested that this history was inconsistent with the plaintiff's evidence. It is, but the plaintiff denied that it accurately reflected the purport of the history he gave. He did say that his condition had worsened at training but that worsening followed a lap of running. He said that he might have mentioned trying to, but being unable to, kick a football.

61. There is, I think, always a risk with medical histories being used to found suggestions of inconsistency. The medical practitioner is not taking a statement to be used in evidence. Very rarely are details, later seen to be forensically significant, verified with the patient in any acceptable way. Quite properly many details seen at trial as significant have no real medical significance and can be incorrectly or insufficiently recorded as a result.

62. In this case I did not find the inconsistency in the history, compared with the plaintiff's evidence, to be significant. It does not persuade me to doubt that evidence. In any event, in his report of 2 September 1986, Dr Calder reported the incident at football training in the following terms,

"... he had only run one lap and had been there for
approximately five minutes when there was an exacerbation of
his back pain".

63. Dr Calder did not seem to attach any significance to this apparent variation. Nor do I.

64. As at 27 May 1986, it was Dr Calder's opinion that,

"... he first injured his back lifting weights but that it was
significantly exacerbated by his work injury a few days later".

65. He did not expect "long-term functional deficit".

66. Nevertheless, as at 2 September 1986, Dr Calder, whilst advising a "return to full activities" in the light of reported improvement, was "pleased" that the plaintiff did not intend to pursue carpentry because of likely continuing back problems.

67. Dr Calder's comments cannot be construed as suggesting that the plaintiff had become symptom-free and had no ongoing back disability. The plaintiff had, of course, claimed a greater degree of improvement than he had experienced in fact.

68. As at 24 February 1989, Dr Andrews reported, "... continuing low back pain in the mid to lower lumbar region". The injury he described as "a permanent aggravation of a pre-existing asymptomatic condition in his lumbar spine". The level of disability was "moderate". It was Dr Andrew's view that "... if he looks after his back the risk that he will require a spinal fusion in the next ten years is probably in the order of 20%".

69. The extent to which there was a pre-existing condition unrelated to the trauma of 11 March 1985 is illuminated, to some extent, by a number of CT Scans. On 4 September 1985 defects in the pars interarticularis of L3 and L4 vertebrae were noted. The L3/4 level defect was found to be closing "consistent with healing of a fracture". The L4/5 level defect was noted to be "less obvious ... again consistent with healing". As at 21 January 1986, L3 was still noted on CT Scan to be healing. L4 was "unchanged". As at 1 July 1986, a CT Scan was reported as showing that,

"There is a little irregularity of the vertebral end plates in
the T12, L1/2 area. There is a mild roto-scoliosis convex to
the right and spina bifida occulta of S1 but no other bony
abnormality is seen."

70. On 17 July 1990, the plaintiff was seen by Dr Arnold Mann, a surgeon. He was still complaining of recurring backache aggravated by any kind of moderately heavy work or bending over. It was Dr Mann's opinion that the plaintiff had either aggravated a previously asymptomatic congenital condition or created a new condition. Either way, the heavy lifting incident of 11 March 1985 was responsible and without it, the plaintiff might well never have developed symptoms. If he had congenital spondylolisthesis he would have been more prone to injury than an unaffected person. He was advised not to undertake heavy work, body contact sports or bowling.

71. Dr Mann did, however, find that the plaintiff could engage in "... A gentle social game of cricket or tennis ... but non-competitive sports would be the best (e.g. swimming if tolerated)".

72. In a later report (1 November 1991), Dr Mann described the plaintiff's spine in the following terms,

"... From a practical point of view, Mr Dowse has a spine as
prone to develop backache as the average person has when he
reaches, say, 50 years of age."

73. Whether that observation was of the plaintiff's then current state or his pre-accident spine is unclear. It is also unclear whether the average 50 year old person has severe and/or chronic backache.

74. Dr Mann was not called as a witness.

75. There was also a report tendered from Dr David Roebuck (19 November 1991), orthopaedic surgeon. He reported the plaintiff's disability in terms that "... any severe exercise such as gardening, aggravates his pain and causes him to have to rest".

76. Dr Roebuck attributed the ongoing symptoms to a lesion of L4. There is a "significant permanent residual disability". He is restricted to "medium sedentary type work".

77. Reports from Dr Raymond Newcombe, neurological surgeon, were also tendered. Dr Newcombe examined the plaintiff on 28 November 1992. He noted that the plaintiff told him that he was able to engage in activities such as touch football, cycling and swimming despite the pain. He reviewed a CT scan of 24 June 1992 and an MRI (Magnetic Resonance Imaging) of 6 July 1992. These showed disc herniation at the L5/S1 level. It was Dr Newcombe's opinion that,

"...the injury of 11.3.85 resulted in L5-S1 disc protrusion and
also aggravation of spondylolisthesis at the L4-5 level. There
is disc bulging at the L4-5 level which may have been also a
result of the injury."

78. As to the future, Dr Newcombe considered the plaintiff's then current participation in cycling, swimming and touch football to be reasonable. Return to carpentry, Australian Rules Football or cricket was not recommended.

79. Dr Ronald Wells, a medico-legal consultant and physician, submitted two reports. He also gave oral evidence.

80. In his report of 9 July 1992, Dr Wells considered that, given the plaintiff's active sporting participation up to 11 March 1985, it was unlikely that any congenital spinal defect at L4 would have contributed significantly to the effects of the injury suffered that day. In his report of 18 July 1992, Dr Wells addressed the possibility of the weight lifting incident on 8 March 1985 causing or contributing to the disabilities following 11 March 1985. Given the plaintiff's participation in sport on 10 March 1985 and his fitness for work on 11 March 1985, Dr Wells rejected that hypothesis.

81. In his evidence, Dr Wells emphasised the importance of signs of healing of defects noted on CT scans. He made the very persuasive point that if the defects, as originally noted, had been congenital, they would not heal. He considered the disc bulges also noted as being both consistent with the plaintiff's symptoms and permanent. In cross-examination, Dr Wells agreed he had no history of the plaintiff's return to playing Australian Rules Football or cricket. He would not recommend such activities as they would exacerbate his symptoms and put him at risk of further injury.

82. On behalf of the defendants, a report was tendered from Dr Keith Lethlean, a consultant neurologist. Dr Lethlean was of the opinion that there had been an aggravation of spondylolisthesis causing ongoing low-back pain. He found the plaintiff's description of his disabilities consistent with that condition.

83. Dr James Nield, a surgeon, in his report of 29 May 1990, tendered on behalf of the defendants, suggested that x-rays and CT scans viewed by him showed,

"...congenital changes with lumbarisation of the 1st sacral
vertebrae, pars interarticularis defects and a retro-listhesis
of L4."

84. It should be noted that no other medical practitioner on either side found a retro-listhesis. Indeed all others found the exact opposite, a spondylolisthesis. Further, Dr Nield had not been shown a CT scan of 4 September 1985 which had demonstrated healing at the L3 and L4 levels. He agreed, in cross-examination that the existence of healing made it possible that the lesions at those levels had been acquired rather than congenital. He was not aware of reports of actual disc herniation.

85. Dr Keiller also gave evidence for the defendants. He reported, on 5 March 1991, that the plaintiff had suffered back strain due to the lifting incident. He had no history of the weight lifting incident. He found spondylosis at both L3 and L4. Those conditions, in his view, had been rendered symptomatic by the lifting episode at work. He also said,

"I believe the effects of the lifting strain have now ceased
and that any continuing symptoms are due to the basic
condition."

86. In his evidence, Dr Keiller noted that spondylosis can be caused not only by congenital defects but also by fast bowling at cricket and, in taller Australian Rules footballers, by playing Australian Football.

87. It was his opinion, however, that defects in the pars articularis are, mostly, traumatic in aetiology. He considered it unlikely that the defects noted after 11 March 1985 were caused in the accident. He felt that they were likely to have been due to sporting activities such as fast bowling. He agreed there was a bulge shown at L5/S1 but noted that this did not "necessarily" imply a disc herniation.

88. Nevertheless, Dr Keiller agreed that, but for the incident of 11 March 1985, the plaintiff might have remained symptom free.

89. It is, I think, a fair conclusion that there is a difference of medical opinion as to the cause of the L3 and L4 defects. However, if they were not caused on 11 March 1985, they would have been aggravated by the events of that day and rendered symptomatic. If the defects had been merely sport related, it is less likely that symptoms would come on so suddenly and so severely. Had such sport related defects become symptomatic without the trauma of 11 March 1985, I would have expected a period of rest to allow healing to have solved that difficulty without ongoing problems.

90. Dr Keiller denied that any retro-listhesis could be seen.

91. The defendants offered reports from Dr John Korber, a specialist radiologist. Dr Korber reviewed various x-rays, CT scans and MRI scans.

92. From those records Dr Korber, in his report of 19 November 1992, concluded that,

"... this patient had pars interarticularis defects at the L3/4
and L4/5 levels in 1985. These are stress fractures and are
said to be found among the taller players, known as ruckman
(sic), who play in the AFL. These players suffer hyperextension
injuries to the back."

93. A slight posterior bulging of the L5/S1 disc was later identified as a posterior central disc protrusion. That protrusion, Dr Korber considered, "may have been present for some time".

94. If those conditions were pre-existing on 11 March 1985, it was his opinion that they could have been aggravated by the incident on that day.

95. In oral evidence, Dr Korber agreed that the stress fractures, might well have been present on 11 March 1985 but have been asymptomatic. Those fractures could also have healed if the relevant activity causing them had ceased (or been modified). Even a disc protrusion might well have been asymptomatic if present. Dr Korber also confirmed that there was no retro-listhesis shown as present at any time.

96. It may be concluded from all this material that there was no relevant symptomatology before 11 March 1985. It is possible, even likely, that the plaintiff had some stress fractures at the L3 and L4 levels. They were asymptomatic and, but for the incident of 11 March 1985, would either have continued to be asymptomatic or have caused mild symptoms enforcing rest. It is likely they would have then healed without long-term effects. I accept Dr Korber's view that there is a good correlation between a defect which heals and a cessation of symptoms. Given that healing of the relevant defects has taken place, it is unlikely they are the source of the ongoing back symptoms of which the plaintiff complains, although it is possible that L4 has not healed completely and may be contributing to the plaintiff's symptoms.

97. It is possible, but, in my view, less likely, that there was a disc protrusion before 11 March 1985. A disc bulge might well have been present without protrusion and, in any event, without symptoms. I think that it is more likely than not that the disc protrusion later found was caused by the incident on 11 March 1985. There was certainly a protrusion after that incident. There is no real evidence of its presence beforehand. That disc herniation is, in my view, the major cause of the plaintiff's ongoing back problems.

98. It was suggested that the plaintiff had been less than candid about his level of disability. I think it is fair to conclude that he was less than candid with examining medical practitioners about his level of sporting activity. I do not, however, think that he deliberately sought to mislead them. I rather think he knew that strenuous physical activity, particularly football, was not good for him and would be viewed unfavourably by the doctors. I am persuaded that the plaintiff was fully candid in his evidence before me. The lengthy video of the plaintiff playing for the Wombats reinforces that view.

99. Of course, there is a need to assess the level of the plaintiff's disability objectively. He does not claim either to be crippled or to be in constant pain. He is prevented by onset of pain from engaging in strenuous physical activity. He can tolerate quite a bit of pain and, hence, strenuous activity, before he has to stop.

100. The disability has meant that he can no longer aspire to be a carpenter or a top-level competitor in cricket and football. I have the impression that the latter loss is that which the plaintiff feels most keenly.

101. Contrary to medical advice, the plaintiff has engaged in football and indoor cricket, albeit at a lower level than before. He has suffered pain as a result, more pain than he would have suffered had he followed medical advice. He does not seem to have aggravated or prevented the healing of the underlying condition. That is going to be permanent. For the purposes of assessment of damages, I disregard episodes of pain caused by activities deliberately undertaken in contravention of medical advice. I also discount the effect of the risk of future deterioration in the plaintiff's back condition for the same reason. He cannot ask the defendants to pay for that part of the risk of deterioration in his back condition caused by his decision to ignore soundly based medical advice. I add that my conclusion is no criticism of the plaintiff's decision to engage in activities despite his injury. Indeed, up to a point, his level of physical fitness retards deterioration in his back condition. Body contact sports, however, are clearly ill-advised, though I understand why the plaintiff is reluctant to give up playing Australian football.

102. I consider that general damages are to be assessed at $30,000.00. I attribute $22,500.00 to the past, mainly for the period from 1985 to 1987. I award $5,500.00 for interest on past non-economic loss assessed on the conventional basis having regard to that weighting.

Loss of Earnings
103. It seems to me to be reasonable that the plaintiff should refrain from heavy physical work as a consequence of his injury. He had to give up carpentry as a trade. He also lost the chance of reasonable earnings as a professional footballer.

104. Of course, the latter chance is one difficult to quantify. The plaintiff may have become an AFL player with high earnings for a long time. He may have achieved that level but suffered injury shortly after he started. He could have made only a district or State based competition. Even so, the loss of earnings from the loss of that chance cannot be disregarded.

105. What is to be compensated for, of course, is the loss of earning capacity. The loss that results from a diminution in earning capacity will, of course, vary from one individual to another. If an individual has skills fitting him or her for various occupations, each carrying the same likely remuneration and is debarred from some but not all of such occupations, it cannot be concluded that there is no diminution of earning capacity. However, the sum to be awarded may be relatively nominal.

106. Where, as here, an individual decides to re-train so as to enliven a dormant capacity to earn, the loss of time and seniority and the cost of re-training provide a means of assessing the loss in question.

107. The plaintiff finished his apprenticeship without further real loss of earnings. I consider Mr Mitton to be reasonably comparable as indicating a career and earnings path the plaintiff would probably have followed but for his injury. The information concerning the other employees referred to also provides some relevant guidance.

108. For the period 11 March 1985 to 30 June 1985 the plaintiff earned $2,469.56 net. The net earnings of a comparable apprentice (Brendan Costello, ex 3) were $3,466.01. For 1985/86, Costello earned $12,253.57 net. The plaintiff received $10,515.95 net for 1986/87, Costello earned $15,652.00 net. The plaintiff received $8,209.28. He had, of course, by then taken up his course of re-training. For 1987/88, Costello earned $25,471.20 net. The plaintiff received only $5,744.77. Mitton earned $20,740.00 net.

109. To date, the difference between what the plaintiff would probably have earned but for the accident and what he might have earned had he followed a career path similar to that followed by Messrs Costello, Shannon and/or Mitton, so far as they are able to be compared, is approximately $110,000.00. That is, in any event, a median rather than an optimum assessment. To choose that figure incorporates some discount for unfavourable contingencies.

110. I have no information as to whether any of the plaintiff's actual earnings are subject to an obligation to refund them in the event of recovery. I acknowledge the unfavourable contingency that they may be. That contingency, however, is more than offset by the loss of the chance to earn money from playing sport professionally.

111. I cannot conclude that the career decisions taken by the plaintiff following his injury were, in any sense, unreasonable. He could have undertaken part-time study and found employment sooner but I do not think the net effect would have been any different.

112. Accordingly, I would award that median figure of $110,000.00 for past loss of earnings.

113. The interest payable on that figure I will calculate at an average rate of 14%pa. I award a further $64,450.00 for interest thereon.

114. For future loss of earnings, I consider that in terms of actual earnings the plaintiff has approximately now caught up to his peers. He has, however, a diminished range of employment open to him and some risk of further physical deterioration. There is also the loss of the chance of future earnings from professional sport. I consider that a sum of $20,000.00 is adequate to reflect that loss, including those possible earnings from sport played at a professional level, taking account, of course, of the discount factors to which I have already made reference.

Other
115. Out-of-pocket expenses have been agreed at $4,498.55.

116. No evidence was called to support any other head of damage.

Summary
117.

General Damages $30,000.00
Interest thereon 5,500.00
Loss of earning capacity
- past loss 110,000.00
Interest thereon 64,450.00
- future loss 20,000.00
Out-of-pocket expenses 4,498.55
TOTAL $234,448.55

118. That seems an appropriate award viewed globally. I direct the entry of judgment accordingly.

119. I propose to hear the parties as to costs.