Robert Forrester v Harris Farm Pty Limited (In Liquidation), Tungsten Investments Pty Limited (In Liquidation) and Galnom (No 7) Pty Limited (De-Registered) [1996] ACTSC 1 (2 February 1996)

SUPREME COURT OF THE ACT

ROBERT FORRESTER v. HARRIS FARM PTY LIMITED (In liquidation), TUNGSTEN
INVESTMENTS PTY LIMITED (In liquidation) and GALNOM (NO. 7) PTY LIMITED
(de-registered)
No. SC178 of 1991
Number of pages - 14
Tort - Expert Witnesses - Damages

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
MILES CJ

CATCHWORDS

Tort - personal injuries - employee suffered injury while stacking potatoes for various defendant employers over the course of many years - whether any employer breached duty of care in requiring plaintiff to work excessive hours and lift excessive weights - no evidence of particular injury - no claim for contribution among defendants - no reliance on cause of action outside limitation period - all defendants liable.

Expert Witnesses - assumed facts as basis of expert's opinion - need for proof of assumed facts - function of expert - whether advisable for expert to interview lay witnesses in order to obtain factual basis for opinion.

Damages - discount applied because of plaintiff's pre-disposition to degenerative change in the spine.

Limitation Act 1989.

Cartledge and Others v. E. Jopling and Sons Ltd (1963) AC 758

Footner v. Broken Hill Associated Smelters Pty Limited (1983) 33 SASR 58
Adams v. Ascot Iron Foundry Pty Limited (1968) 72 SR 120
Clarke v. Ryan [1960] HCA 42; (1960) 103 CLR 486
Miletic v. Capital Territory Health Commission (1995) 69 AUR 675

HEARING

CANBERRA, 8 and 9 March 1995
Date of order: 22 December 1995
2:2:1996

Counsel for the Plaintiff: Mr. R. Mildren

Solicitors for the Plaintiff: Legal Aid Office (ACT)

Counsel for the Defendants: Mr. A. Black

Solicitors for the First Defendant: Hunt and Hunt

Solicitors for the Second and
Third Defendants: Sly and Weigall

ORDER

THE COURT ORDERS THAT:
There be judgment for the plaintiff in the sum of $331,637.13

DECISION

MILES CJ On 22 December 1995 I ordered that the plaintiff have leave to enter judgment for $331,637.13 against all the defendants. I said that I would give reasons later and I do so now.

2. This was an action for damages for personal injuries by a worker against his employers. The facts alleged to give rise to liability are of a familiar kind, but in the application of legal principle to the facts various difficulties emerge. The plaintiff worked as a labourer between 12 October 1983 and 3 November 1988 at a warehouse in Fyshwick in which the defendants carried on a wholesale fruit and vegetable market. He worked all that time in the same job, but the identity of his employer changed from time to time as the business changed hands. During the whole of the period he worked for one or other of the three defendants in the following sequence:

1 July 1983 to 20 December 1983 - 2nd defendant
21 December 1983 to 30 June 1987 - 3rd defendant
1 July 1987 to 12 September 1987 - 2nd defendant
13 September 1987 to 3 November 1988 - 1st defendant

3. The following facts are either undisputed or clearly established. The plaintiff's work was heavy. It involved the carrying and stacking of bags and boxes containing fruit and vegetables, the loading and unloading of trucks carrying produce and the packing of boxes with fruit and vegetables from a conveyor-belt. His back became increasingly troublesome and by November 1985 he was taking time off work on sick leave for lower back pain. On 3 November 1988 he was helping to unload a sack of potatoes from a truck. During the course of that operation he felt back pain. He continued working that day and the next day but was off work for a couple of days and returned to work the following Monday or Tuesday. On Tuesday, 8 November 1988 he was lifting and moving sacks of potatoes when his back gave way and he collapsed. He has not worked since. Surgical procedures to the lumbar and cervical spines have been unsuccessful.
The plaintiff claims that he continues to be unfit for work and is unlikely ever to work again.

4. The causes of action against each defendant are rolled up into one paragraph in the statement of claim, para.9, which alleges that the plaintiff's injuries were due to breach by each of the defendants of the plaintiff's contract of employment and/or breach by each of the defendants of the duties of care which each as his employer from time to time owed to the plaintiff, and/or the negligence of its servants or agents.

5. The statement of claim does not identify any incident or incidents in the nature of an occurrence which caused injury. Nor is there anything in the statement of claim to isolate any particular cause of action against one defendant from any cause of action against another.

6. Particulars of "negligence and/or breach" are alleged in para.9 as follows:

"(a) Permitting sacks of fruit and/or vegetables to be dropped on to
the plaintiff's shoulders and neck in the course of unloading
vehicles;
(b) Permitting sacks of fruit and/or vegetables to slip from the hands
of those handling them so that they struck the plaintiff, or imposed a
sudden load on the plaintiff.
(c) Permitting and/or requiring the plaintiff to lift and handle
weights which were too heavy and/or awkward to be handled by the
plaintiff in safety.
(d) Failing to provide any or any adequate assistance.
(e) Failing to devise a safe method of unloading, loading and handling
sacks, boxes and other containers of fruit and vegetables.
(f) Failing to warn the plaintiff of the danger of lifting or
attempting to lift and handle weights which were too heavy and/awkward
to be handled with safety.
(g) Failing to properly supervise the plaintiff to ensure that he did
not lift or attempt to lift and handle weights which were too heavy
and/or awkward to be handled with safety.
(h) Failing adequately or at all to educate and train the plaintiff in
safe lifting and handling techniques and maximum loads.
(i) Permitting the plaintiff to undertake repetitious tasks involving
heavy lifting and handling which involved an unreasonable risk of
injury.
(j) Failing to permit or require the plaintiff to take adequate rest
breaks.
(k) Failing to take any or any adequate care for the safety and
physical integrity of the plaintiff."

7. It is necessary to examine the evidence with some care. The plaintiff's description of the work he carried out for the defendant is as follows. When he began working at the market on 1 July 1983 his working day began at 3 a.m. packing potatoes. The potatoes were delivered to him in batches by a conveyor-belt. He had to pack each batch into plastic bags which when full weighed either 2.5 kilograms or 4 kilograms each. When each bag was full he had to lift it and move it to a bin alongside the conveyor-belt or a few metres away.

8. The plaintiff claimed in his evidence that the conveyor-belt delivered the batches of potatoes so fast that it was necessary to pack each bag "every couple of seconds". Moreover, so he claimed, there were two or three machines operating at the same time, so that he was "constant rotating all the time".

9. Whatever the workload, the plaintiff endured it for some four years during most of which the business was controlled by the third defendant. When the second defendant resumed control on 1 July 1987 the time for commencing work was put back to 4 or 6 a.m. However, the hours of work increased. According to the plaintiff in his evidence, he had to work until at least 4 p.m. each day and on occasions until 1.30 a.m. the following day. Somewhere during this time the nature of duties was extended to include assisting to unload sacks of potatoes brought to the market on trucks. On a semi-trailer there were enough potatoes to fill 40 bins, or between 450 and 760 bags. The plaintiff's evidence at first was that the bags weighed 50 kilograms each. During the course of his evidence the weight increased to 60 or 70 kilograms.

10. I have no doubt that the plaintiff exaggerated both the hours and the weight, but on the balance of probabilities, I accept that he was working long hours. Both counsel agreed that 55 hours work per week should be accepted for the purpose of calculating loss of earning capacity. Although there were conflicting submissions about how this figure should be treated (see later), I take it that that figure bears some relationship of approximation to the hours the plaintiff was actually working, on some average standard, at the time he ceased work, By any standard, 55 hours is a very long working week, and particularly so where the work is of a heavy physical nature.

11. I also accept in general the plaintiff's evidence as to the physical manoeuvres involved in the unloading of bagged potatoes from the trucks. I do not accept the plaintiff's claim that the man on the truck would drop each bag so that it was in virtual free-fall for some 6 to 12 inches before it landed on the plaintiff's shoulder. It is sufficient to accept that the height of the tray of the truck was at least on some occasions some such distance above the shoulder of the plaintiff and that the man on the truck was not always able to slide the bag onto the plaintiff's shoulder in a smooth or even manner. The plaintiff had to carry each bag on his shoulder to be stacked on a pallet or tipped into a hopper. There was no evidence as to the distance in either case. The plaintiff said that there were up to four truckloads a day for two or three days a week. Occasionally the consignor would have the bags already stacked onto pallets on the truck, in which case they were unloaded at Fyshwick by forklift.

12. Sometimes during the illness or absence of the employee regularly employed for the purpose, the plaintiff delivered bagged potatoes to retail outlets in suburban Canberra. He drove the truck and unloaded it without assistance. Although practically illiterate, he devised for himself a means of identifying and remembering the various premises to which the potatoes had to be delivered.

13. The plaintiff said, and I accept, that he spent 90 percent of his time with the various defendants "working with potatoes". Even allowing for his exaggeration and my rejection of certain parts of his evidence, the conclusion is irresistible that the plaintiff was subjected to extraordinarily arduous work which was likely to affect his spine, particularly if persisted in after the experiencing of symptoms which went beyond ordinary physical fatigue.

14. The plaintiff did not experience symptoms which, in my view, went beyond the ordinary until March 1985, for it was on 26 November 1985 that he went to his general practitioner, Dr Phillip, complaining about lower back pain first experienced some six months previously. Dr Phillip noted "muscular spasm", that the plaintiff was "packing spuds" and that the plaintiff should try to resume duty on 4 December. The plaintiff began taking sick leave for back pain. At one stage in his evidence he said that he took three months of sick leave in a period of twelve months, but he seemed to retract this when questioned further. The independent records of Dr Phillip show that the plaintiff saw him on 29 April 1986 for recurrence of lower back pain and again on 26 November 1986, noting that on the latter occasion the plaintiff was "lifting bags". It is also noted that in November 1986 Dr Phillip thought that the problem was muscular and would settle in a few days. Dr Phillip's records show nothing further until April 1988 when he saw the plaintiff for symptoms of nausea, unrelated to work, It is likely, in my view, that the plaintiff took some sick leave for his back symptoms during the years 1986 until towards the end of 1988, related to his back, but it is impossible to say how much.

15. On the balance of probabilities, I am convinced (and only just convinced) that, although the plaintiff gave no evidence of any complaint to his employer either about back symptoms or about the arduousness of the job, the employer knew that the plaintiff took sick leave and should have known by November 1985 that the plaintiff was suffering from lower back pain from time to time and that the pain was associated with the work which the employer required of him. What a reasonable employer would have done about it is another question to which I shall return.

16. On Thursday, 3 November 1988 the plaintiff started work at the usual hour of 5 a.m. and spent the morning packing, delivering and stacking potatoes. At about 2.30 p.m. he was helping unload a semi-trailer on which bagged potatoes had arrived on pallets. The pallets had been unloaded by forklift, but some bags had been displaced during the operation and remained on the tray to be unloaded manually.

17. The plaintiff said in his evidence that the driver of the truck "dropped some on my shoulder" from a distance of four to six inches, and that he felt a " sharp pain" on the top of his shoulder to the bottom of his back. He said that the pain continued but that he kept on working until Tuesday, 8 November 1988 when he had to "throw" bags of 50 to 60 kilograms in weight on to his back. During this, or one of these manoeuvres, he felt a sharp pain, lost all the strength in his body and dropped to the ground. Nevertheless, he was able to pick the bag up and place it on the tray of the truck. The plaintiff also said in evidence that he told his boss, a man called Silk (whether first name, surname or nickname, I do not know), that he had a pain in his back and wanted to ring his wife to arrange to see the doctor. Silk told him that he could not see a doctor and had to finish his job. The plaintiff, nevertheless, went to see Dr Phillip at Downer at about 11.30 a.m. Dr Phillip recorded "pain in lumbar region (packing spuds)" (emphasis in doctor's notes).

18. The statement of claim was endorsed on the writ issued on 19 March 1993, Any cause of action upon which the plaintiff relies presumably accrued on or after 19 March 1987, otherwise the defendant would have a defence under s.11 of the Limitation Act 1989. Mr. Mildren for the plaintiff, submitted that the plaintiff had a single cause of action which accrued when he first started work with the second defendant on 12 October 1983, or alternatively by May 1985 at the latest in the light of the complaint to Dr Phillip in November of having suffered back pain whilst packing potatoes six months earlier. Mr. Mildren submitted in the alternative that the whole of each day's employment involved a failure on the part of the then current employer to provide a reasonably safe system of work.

19. Because of the imprecision in the pleadings and in the plaintiff's own evidence, and because of the lateness of the commencement of the action, I am not prepared to regard the plaintiff's cause or causes of action as accruing prior to 19 March 1987, although evidence of the system of work before that date is no doubt relevant. Furthermore the period between 20 March 1987 and 3 November 1988 includes periods of employment by all defendants. It follows on the state of the evidence that if there was negligence on the part of one, there was negligence on the part of the others.

20. Although there was no evidence to contradict that of the plaintiff, I gained the firm impression that he was inclined to exaggerate the hours and heaviness of his work and the extent of his present and recent disabilities and symptoms. At the most obvious level I simply do not accept as he put it in evidence that he was working about 15 hours a day, seven days a week. In fact his lawyers limit the claim for future loss to 55 hours work per week and the defendant accepts that figure as a reasonable inference from the evidence.

21. Furthermore, I do not accept that on 3 November 1988 the truck driver dropped a bag or bags of potatoes onto the plaintiff's shoulder in the way he described. I do accept that at about that date, or on 8 November 1988, or both, the plaintiff's work involved loading and unloading bags of potatoes some 50 kilograms in weight, but that there was nothing in the nature of anything unusual in the way of an incident or frank injury. I reach this conclusion bearing in mind the length of time since the alleged incident and its effect on the plaintiff's memory, the fact that the plaintiff did not cause a writ to issue until 19 March 1993, the unsatisfactory nature of much of the plaintiff's evidence and in particular the inconsistent accounts given to the several doctors by the plaintiff. The reports are in evidence and it is not necessary to set out in detail the inconsistencies. It is sufficient to say that the plaintiff's accounts at the earliest times ranged from telling Dr Phillip on the very day he ceased work that he was "packing" potatoes, and telling Ms. Keddie, a physiotherapist who first saw him soon after, on 17 November 1988, that he had lifted a 50 kilogram weight at work on 3 November to telling Dr Newcombe, on 15 December 1988, that on 3 November a bag of potatoes was dropped on his right shoulder.

22. I am not convinced that the plaintiff has proved what caused him to go off work with undoubted low back pain on 8 November 1988 was more than a usual incident of his work or that there was anything on that day or any previous day that could be described as a discrete injury which led to the incapacity and other matters for which he claims damages. In all probability it was repeated activity to which he was subjected at his work over the years that was responsible for such results.

23. As there is no specific injury or injuries upon which the plaintiff is able to rely, the case become one which, I understand, is called in the world of workers' compensation a "nature and conditions" claim. However, to so categorise the case is not to solve the problems that it raises. Counsel was not able to refer me to any authority of assistance nor have my researches yielded anything of particular assistance.

24. There are a number of cases in Australia and England dealing with the notion of damage for the purpose of deciding when the limitation period begins. The seminal case of Cartledge and Others v. E. Jopling and Sons Ltd (1963) AC 758 has been criticised by academic writers, one of whom concludes in an article in (1989) 105 LQR 19 that none of the English cases assist in the formulation of a coherent doctrine and that in the United States, where there has been much asbestos and related litigation, there is no consistent rule. In the South Australian case of Footner v. Broken Hill Associated Smelters Pty Limited (1983) 33 SASR 58, Jacobs J held that pathological changes leading to the mesothelioma would have been so slight that they would not have been detectable by known medical techniques until a certain date and that it was not until that date that the cause of action accrued. In Adams v. Ascot Iron Foundry Pty Limited (1968) 72 SR 120, Sugerman J said in a claim arising out of a condition of silicosis that the plaintiff could not recover for any damage sustained outside the limitation period but could recover for aggravation of the condition within the limitation period which went beyond what would have occurred naturally as long as the aggravation was caused by further want of due care on the part of the defendant. Fortunately, in the present case the defendants no longer seek an order for contribution among themselves. It is inappropriate for the Court to give judgment for an injury which is established to have occurred only outside the limitation period and I will proceed on the basis that it is common ground that on whatever date or dates the plaintiff received injury, it was within six years preceding the commencement of the action even if such injury was an aggravation of earlier injury within the test applied by Sugerman J. It is not entirely satisfactory to have to proceed on this basis, but there is no alternative.

25. The question in this case is whether any of the employers failed in their duty of care to the plaintiff in requiring him to carry out the range of physical activities involved in the packing and stacking, loading and unloading of potatoes and permitting him to work at those activities for about 55 hours per week.

26. I think that the question has to be answered in the same common sense sort of way which a jury would bring to bear on the matter but for which a judge has to give reasons. On my findings of fact so far, it is of little use to attempt to isolate specific incidents as being of particular significance.

27. Although there was in evidence a report by Dr Neil Adams, an ergonomist, it is of little or no assistance, although it is desirable to say something about it.

28. Dr Adams has a lengthy and impressive curriculum vitae. He has a first degree in Applied Psychology and a Ph.D. It is not clear in what area of research or scholarship his doctorate was taken. According to his letterhead he provides services in "analytical product and legal liability evaluation". Dr Adams is a Visiting Fellow at the University of New South Wales in the Department of Safety Science, a fact which is probably sufficient to establish that there is a recognized branch of organized knowledge that goes by the name of "Safety Science". Under the heading "Current Appointment" he states that he is a "consultant in ergonomics and occupational safety management, systems safety; organizational communication". He lectures in ergonomics and "management for safety". Under the heading "Professional Membership" he lists a number of miscellaneous organizations in the fields of occupational health, safety risk management, training and education and psychology. He has published 60 papers and the like, mostly in ergonomics and accident research. Yet it is not clear to me exactly what field of expertise it is in which Dr Adams is qualified to give opinion evidence for the purposes of the present case. I must say at this point that whatever the first part of this description of services may mean, "legal liability evaluation" is not a field of expertise which entitles the expert to give opinion evidence about his or her view on the strength or otherwise of a legal claim.

29. Some things are clear. Dr Adams is not a medical practitioner, nor an engineer, nor a tribunal. Yet, his report ranges so far and wide that at worst it reads as if he were an advocate for the plaintiff and at best an arbitrator called upon to decide the case on liability. To his eight page report there are added another eight pages of extracts from various sources of a technical or academic nature. These are no doubt of considerable interest but I find them of dubious probative value. Some are in the nature of selective self-corroboration, others are simply confusing. They are embarrassing to a court charged with the duty of finding the facts because it is impossible to know how far the court is expected to evaluate and analyse them or to master them or to discuss them in any reasons for decision in respect of which they may be relevant.

30. It is a trite principle of evidence law that the opinion of an expert, whatever the field of expertise, is worthless unless founded upon a sub-stratum of facts, which facts are proved by the evidence in the case, exclusive of the evidence of the expert, to the satisfaction of the Court according to the appropriate standard of proof. Whether or not the expert believes in that sub-stratum of facts or knows them to be true or is satisfied that they are true, is completely beside the point. The expert's function is to express an opinion based on assumed facts, not to express a view on whether the assumptions are justified. (See Clarke v. Ryan [1960] HCA 42; (1960) 103 CLR 486.)

31. In the present case, Dr Adams interviewed the plaintiff in 1993 in the plaintiff's solicitors' offices in order to obtain from him the factual sub-stratum upon which he could form his opinions. There was no impropriety in that course being taken. Consultant medical practitioners in their consulting rooms do it all the time. But it is not necessary and sometimes it is inadvisable. A competent solicitor can put to the expert the relevant facts which it is expected can and will be proved, thereby equipping the expert to express a relevant opinion. The danger of allowing the expert witness to interview the lay witness in order to establish the facts on which the opinion is to be based is that the expert tends to think that he or she has "established" those facts and to treat them as proved rather than assumed.

32. What happened in the present case is that Dr Adams obtained from the plaintiff a somewhat dramatic account of the events on 3 November 1988 which varies from the evidence given by the plaintiff to the Court. According to the account given to Dr Adams, the driver was attempting to lower bags on to the plaintiff's shoulder when "unfortunately, whether through lack of strength or lack of skill" the driver was unable to retain his grip and lost control, dropping the bag on to the plaintiff's shoulder on a number of occasions. The plaintiff told Dr Adams that he was forced to take a couple of days off work because of pain in the neck and shoulder.

33. The plaintiff also told Dr Adams that on his return to work the plaintiff lifted a bag on to his shoulder but felt such pain that he was unable to continue work. That also is contrary to the plaintiff's evidence. However, it was from the hypotheses contained in these accounts that Dr Adams concluded that the repeated dropping of the bags on 3 November was what he called the "culminating incident" resulting in the plaintiff's injuries. The significance of the term "culminating incident" appears to be that a number of incidents took place in the context of the plaintiff's usual duties of lifting and carrying which Dr Adams considered "too demanding for a person to perform safely" (emphasis in original) and that both the ordinary duties he had to perform and the culminating incident (Dr Adams may have meant either) could have caused significant injuries to the shoulder, cervical spine and lower spine.

34. Dr Adams expressed the further view that no employer in the 1980's should be unaware of the risk of back injury from extensive and heavy lifting. He thought that the employer could have taken "reasonable or alternative actions" to avoid imposing excessive demands on the plaintiff. He thought that those alternatives "would include":

(a) Requiring the potatoes to be delivered on pallets so that they
could be unloaded by forklift. (Dr Adams understood that that was the
system in use at the time of hearing.)
(b) Requiring the potatoes to be delivered on trucks equipped with
mechanical hoists with the potatoes bound together to be hoisted clear
of the truck.

35. Dr Adams concluded his report in the manner of a judgment, finding for the plaintiff on the three issues of causation, foreseeability and preventability.

36. At the threshold Dr Adams' conclusions may be considered unhelpful or even irrelevant in the light of my own finding that the plaintiff did not sustain injury on 3 November 1988 as Dr Adams, by his examination of the plaintiff in the office of the solicitors, assumed or concluded. But even if his opinions are to be read as applicable to the general nature of the plaintiff's work, then I think that his decision as to preventability is to be rejected. There was no evidence that the defendant had changed the system, as Dr Adams said it had, to require all potatoes to be delivered on pallets. There was no evidence that the defendant could "require potatoes to be supplied on pallets or trucks equipped with hoists". The defendant was in the business of buying and selling potatoes. I am not prepared to assume that supplies of potatoes were readily available by the means envisaged by Dr Adams or that if they were it was not at significantly greater cost to the wholesaler, the retailer and ultimately the consumer. I am not prepared to assume that selling potatoes in the Canberra district in 1986 to 1988 was not a competitive business or that a reasonable employer in the business could afford to absorb the cost of having potatoes delivered on pallets or by a specially equipped truck without attempting to pass that cost on. I am aware that two of the defendants went into liquidation, a fact which carries with it at least a suggestion that the business of wholesale marketing of fruit and vegetables at the time was not necessarily profitable.

37. However, as the High Court has recently held in very clear terms, where there is a reasonably practicable alternative available to the employer which will minimise or obviate the risk of foreseeable injury to an employee, then provided the alternative can be implemented simply and inexpensively to the employer, the employer cannot be heard to say that it is reasonable not to use the alternative means: Miletic v. Capital Territory Health Commission [1995] HCA 13; (1995) 69 ALJR 675.

38. In the present case common sense and experience dictates that a simple means available to the defendants was not to require (or perhaps allow) the plaintiff to work such long hours. Another was to have provided him with the assistance of another employee. It is trite economics that if the plaintiff had been relieved of the very long hours, then the defendants would have been relieved of the need to pay penalty rates for overtime and funds would have been released thereby which could have been used to pay someone else to help the plaintiff. Whether or not such assistance could have come from a person already engaged by one or other of the defendants or whether it would have been necessary to add a further employee to the staff, I do not know. Perhaps the cost of an extra employee would have been greater than the saving on overtime, but I am not prepared to assume this, and no one gave evidence on the defendants' behalf to explain why the plaintiff was never given assistance. However, I reject the case of the plaintiff that he should have been instructed in the techniques of lifting and warned of the dangers of lifting bags of potatoes. By the time he started to have back symptoms, the plaintiff would have known as much about lifting bags of potatoes as anybody in Canberra. If he did not know of the dangers, he should have. This latter scenario raises the spectre of contributory negligence which was pleaded. The plaintiff was not cross-examined on the issue and it was not argued on behalf of the defendants. The onus lies on the defendants. I would not reduce the damages to be awarded to the plaintiff on account of his failure to take care for his own safety.

39. I turn now to damages.

40. There is no doubt that following his cessation of work, the plaintiff's lifestyle underwent a sudden and dramatic change. Physiotherapy seemed to aggravate his lumbar pain. X-rays showed a lumbar deformity in the nature of a congenital sacralization or fusion of the lowest lumbar vertebra which probably pre-disposed him to early degenerative change in the spine and therefore to symptoms induced by the heavy nature of his long hours of work. Dr Newcombe considered that there was a disc protrusion at level L4/5 and performed a discectomy on 8 February 1989. However, the plaintiff did not improve. Although there was no sciatic type pain immediately before or after his cessation of work, the plaintiff began to experience symptoms of radiating pain in the right leg. Furthermore cervical problems became apparent after the first operation. A CT scan showed bulges at C4/5 and C5/6. Dr Newcombe performed a Cloward's procedure surgery on 23 January 1990. Still the plaintiff's pain continued and indeed progressed to various parts of his body. He became angry with his lack of success at the hands of the doctors and with his employers for putting him in his condition. He has received worker's compensation ever since he ceased work (on behalf of which employer, I do not know). He developed bizarre symptoms of pain such as pain radiating up the back and travelling up one leg and down the other. Other problems such as diarrhoea and gastric reflux cannot possibly be due to his work injury in any physical sense, although the psychological consequences of his condition may contribute to his perception of such problems. In any event I think that there is an element of exaggeration and indeed gross exaggeration in his description of all symptoms both to the Court and to various doctors.

41. However, the fact remains that as a result of the system of work to which the plaintiff was subjected, he has been converted from a hardworking and indeed over-worked man to a chronic invalid. He does not enjoy family life and has been precluded from the ordinary activities of a father with his young children who are now aged 7, 9 and 11 years. There is no reasonable prospect of a resumption of employment. That is not to say that he is totally physically incapacitated. He helps do the housework out of necessity because his wife herself is also chronically ill. He has no employment skills and is virtually illiterate. Despite this he has shown a certain level of initiative demonstrated by his capacity to find his way to the various addresses to deliver potatoes during his employment. His answers in cross-examination about tax matters indicated that he has a grasp of financial matters, although he was concerned to conceal it when he saw that it might not favour his case. Since ceasing work he has tried, unsuccessfully, to organize the hiring out of ponies which he manages to ride. He was firm but not entirely convincing in his denials of the suggestion that he carries out renovation of fast cars. He managed to resist police who wanted to search his house without a warrant.

42. Regard must also be had to the plaintiff's degenerative spinal condition as a discounting factor on the assessment of damages. There was, in my view, a substantial likelihood that, if he had continued after 1986 in the only sort of work that was within his capacity, namely heavy labouring work, but had confined the hours to a normal working week, or even if he had received some assistance in such work, he would nevertheless have undergone at some stage changes which would have led to symptoms in his spine either at the cervical or lumbar level or both. Such symptoms were likely to have prevented him from carrying out that sort of work. Moreover his personality was such that it was likely to have contributed to the disabling effect of the symptoms. The total effect would have been that he stood a good chance of being effectively totally disabled from remunerative employment in any event and he would have finished up much like he is, although less angry or at least with less cause for anger. There is a chance that with the litigation behind him, the plaintiff may take a more positive attitude to life and that in time there will be a diminution in his perception of pain, particularly in the more bizarre symptoms already mentioned.

43. Bearing all those factors in mind, I award $40,000 for pain and suffering and loss of enjoyment of life, as to which I assign $25,000 to the past. Having regard to the unexplained and inordinate delays from the accrual of the cause or causes of action to the date of hearing, I decline to award interest, but I fix $4,000 in lieu of interest to be added to the damages.

44. Out-of-pocket expenses are agreed at $20,240.93. The Fox v. Wood factor is agreed at $20,630.20.

45. I deal now with the more difficult aspects of past and future loss of earning capacity.

46. Mr. Black for the defendants, relied heavily on a tax assessment for the year ended 30 June 1988, which showed that the plaintiff's taxable income for that year was $26,678. His net income after tax was about $20,000, or in practical terms $400 per week. Mr. Black submitted that if the gross figure were divided by the appropriate rates current at the time, then it was demonstrated that the plaintiff was paid weekly the equivalent of 59 hours ordinary time. This arithmetic was not disputed.

47. A letter written on behalf of the first defendant dated 17 April 1989 and signed by an accountant in reply to a letter from the Welfare Rights and Legal Centre Limited on behalf of the plaintiff, furnishes the following details in respect of the plaintiff's employment:

. "Weekly wage before overtime": $298.90
. "Usual hours of work each week before overtime ": 38 hours
. "Usual weekly wage including regular overtime": $521.60
. "Usual hours of work each week including overtime": 55 hours
. Basis on which "overtime calculated": 12 hours at time and a half,
5 hours double time.

48. Mr. Mildren for the plaintiff relied heavily on this letter as an admission as to the likely rate of pay which the plaintiff would receive if he had not been incapacitated and more importantly as to the number of hours the plaintiff was working immediately before he was incapacitated and was likely to continue working if he had not been incapacitated. Mr. Mildren submitted that it showed that if the overtime rates are converted to ordinary time rates, the plaintiff was in fact remunerated for 66 hours at the ordinary time rates.

49. It must be observed that the average figure should be approached with care. The plaintiff might have worked particularly long hours in certain weeks so that the overtime rates were disproportionately high. He might have worked longer hours during the latter part of the tax year, when he was working for the first defendant than when he was working for its predecessor. However, his evidence was that overall the hours worked were much the same throughout the period since 1 July 1987.

50. In the light of the tax assessment, the letter from the accountant needs to be approached with some care also. The letter does not indicate (the question was never asked) as to what the period was during which "usual" hours and the like were calculated. It does not state whether the figures for wages are gross or net after tax. The letter is not a formal admission and is only evidence to be taken into account. I think that the approach urged by Mr. Black is appropriate, making some allowance for the likelihood that between the end of the financial year and the date of cessation of work the actual rate of pay had increased.

51. Mr. Black made a further calculation in which the award rates from time to time since 4 November 1988 to the date of hearing were applied to 59 hours per week and the estimated weekly tax deducted. The result is a figure of $143,460.40, which Mr. Black submitted is a maximum notional figure for loss of earning capacity to the date of hearing and before discounting for the various factors, which I shall mention.

52. Mr. Mildren submitted, not unexpectedly, that the approach should be on the hypothesis that the plaintiff was working 55 hours a week and after taking into account penalty rates, being paid for 66 hours at the ordinary hourly rate. On that hypothesis it was submitted that the award rates from time to time would have yielded the plaintiff a sum of $160,125.

53. I prefer the approach put on behalf of the defendants.

54. There are substantial discounting factors in this case, even as far as past loss of earning capacity is concerned and separate from the question of residual earning capacity. I have already referred to the contingency of the degenerative condition in the plaintiff's spine which may have led to his incapacity prior to the date of hearing. Furthermore, there is the substantial unlikelihood that the plaintiff could have continued to work the long hours that he was working whether or not he remained with the first defendant or went to work elsewhere. The plaintiff was therefore likely and very likely, in my view, in whatever work he did, to have suffered the further aggravation which he did suffer at some indeterminate time which could have well been prior to the date of hearing. I would therefore heavily discount the notional maximum figure for loss of earnings. Indeed I had in mind to award $115,000 for past loss of earning capacity, but I note that it is agreed that the plaintiff received $116,766 by way of worker's compensation and as a matter of discretion I do not think it appropriate to discount the figure for past loss of earning capacity to one below the amount actually paid to the plaintiff in this respect.

55. As far as future loss is concerned, I regard it as virtually certain that despite the plaintiff's intention as expressed in the witness box, he could never have remained in the workforce beyond age 60. Indeed it is highly likely that well before that age he would have been on some sort of pension or other. Further, if he had not become incapacitated by March 1995, it is likely that injury to his lumbar or cervical spine or both would have rendered him partially or totally incapacitated at some time thereafter, whether or not he had ever lifted a sack of potatoes whilst in the employ of any of the defendants. The plaintiff's rate of pay, if he had continued in a similar position for 40 hours per week, was about $348 net per week. I do not think overtime should be allowed in respect of the future because it is likely to have been cancelled out by interruptions to the plaintiff's employment from time to time and because it can no longer be assumed in the foreseeable economic climate with substantial unemployment that even healthy workers in the workforce will continue to be employed to work long hours attracting overtime and penalty rates.

56. The present value at a 3 percent discount rate of $348.00 per week to plaintiff's age 60 is $193,000. I would reduce this by some 40% to allow for ordinary vicissitudes and contingencies particular to the plaintiff and allow a round sum of $120,000 for loss of earning capacity in the future.

57. There is also a question of future out-of-pocket expenses. The plaintiff uses various medications which appear to have been paid until now by the workers compensation insurer. I am not convinced that he will continue to take all such medications in the future when he has to pay for them. It is likely that at some stage they will be provided to him at public expense. I allow $10,000 under this head.

58. In summary then the plaintiff's damages are to be awarded as follows:

General damages $40,000.00
Sum fixed in lieu of interest 4,000.00
Out-of-pocket expenses - past 20,240.93
Out-of-pocket expenses - future 10,000.00
Fox v. Wood 20,630.20
Future loss of earning capacity 120,00.20
Past loss of earning capacity 116,766.00
Total: $331,637.13

59. Viewed as a global sum I think that this is within the bounds of a reasonable award to the plaintiff and he is to have judgment for that amount. Unless the parties wish to be heard, I propose that the defendants pay the plaintiff's costs on a party and party basis, with the exception of the costs of obtaining the advice and report of Dr Adams, for which the plaintiff is to bear the costs.