Morales v Marjen Enterprises Pty Ltd t/as Discount Tyre Service ( Belconnen) [2004] ACTSC 66 (6 August 2004)

Last Updated: 17 September 2004

MATTHEW MANUEL MORALES v MARJEN ENTERPRISES PTY LIMITED T/AS DISCOUNT TYRE SERVICE (BELCONNEN)

[2004] ACTSC 66 (6 August 2004)

NEGLIGENCE - claim against employer - unsafe system of work - failure to provide suitable equipment

DAMAGES - personal injury - rupture to L5-S1 disc - sciatica - permanent loss of capacity as tradesman

Supreme Court Rules, Order 36A Rule 3

Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298

Fox v Wood [1981] HCA 41; (1981) 148 CLR 438

No. SC 214 of 2002

Judge: Master Harper

Supreme Court of the ACT

Date: 6 August 2004

IN THE SUPREME COURT OF THE )

) No. SC 214 of 2002

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: MATTHEW MANUEL MORALES

Plaintiff

AND: MARJEN ENTERPRISES PTY LIMITED

ACN 097 269 335

T/AS DISCOUNT TYRE SERVICE (BELCONNEN)

Defendant

ORDER

Judge: Master Harper

Date: 6 August 2004

Place: Canberra

THE COURT ORDERS:

1. That judgment be entered for the plaintiff in the sum of $133, 250.82.

1. This is a claim for damages arising out of a workplace injury on Friday 14 July 2000. The plaintiff was born on 9 November 1976. He was aged 23 at the time of injury, and is now 27.

Previous employment history

2. He left school after year 9, and commenced an apprenticeship to a motor mechanic at Queanbeyan, where he worked for the next four years. He changed employment towards the end of his apprenticeship to Discount Tyre Service, Braddon. Copies of the plaintiff's pre-accident tax returns were not in evidence and there was some confusion about the dates of his periods of employment. He agreed in chief that he worked at Discount Tyres at Braddon "until 1999, or thereabouts". He agreed in cross-examination that he left that employment during 1998. Details of other employers from then until he started with the defendant were not led from him, or included in a chronology which formed part of the opening of his case. It was submitted by counsel for the defendant that this was a deliberate omission and reflected on the plaintiff's frankness and thus his credibility.

3. The plaintiff was required by Order 36A Rule 3 to file and serve a statement of particulars at the time of filing of the certificate of readiness. Such a statement must include, inter alia, the name and address of each employer during the twelve months preceding the accident, together with details of the periods of employment, capacity in which employed and earnings during each period of employment: subrule 3(1)(d)(i). The statement filed on the plaintiff's behalf disclosed employment as a motor mechanic by Formach Pty Limited from 22 November 1999 to 7 April 2000; as a motor mechanic by Office Overload Pty Limited (through Drake) from 4 May to 29 June 2000; and from 5 July 2000 to the date of injury by the defendant. It disclosed no employment prior to 22 November 1999. One could reasonably infer that the plaintiff's instructions to his solicitors were that he was unemployed from 14 July 1999 to 22 November 1999. The employment dates were not supported by documentary evidence, and the plaintiff's recollection as to dates, perhaps not surprisingly after more than three years, was poor.

4. He agreed in cross-examination that the work arranged through Drake was not as a motor mechanic but comprised sorting and delivering mail for Australia Post. The dates in the statement of particulars suggest that he was engaged in that employment for about two months. He gave a history in October 2000 to a psychologist, Ms Wilson, that he had been employed with Formach in 1998-99 and with Australia Post from February to June 2000. There was no suggestion by the plaintiff himself or by anyone else that he had had a pre-accident history of lengthy periods of unemployment, and it seems to me likely that he began with Formach soon after he left Discount Tyres at Braddon, and that any gaps between employment were relatively short.

Pre-injury treatment

5. Not long before he began work with the defendant, the plaintiff had had occasion to seek medical treatment for low back pain. On 29 March 2000, he saw Dr La at Florey Medical Centre, primarily because of vomiting and abdominal pain. In the course of the consultation, he informed the doctor that he had been suffering from recurrent low back pain on the left side for more than eighteen months. There had been no particular incident causing this, and the plaintiff attributed it to heavy lifting at work. Dr La referred him for an x-ray, which revealed that the L5-S1 disc space was slightly narrower than average. There was no other abnormality. Dr La recommended that the plaintiff take up swimming, and avoid heavy lifting. There is no evidence that he sought any further treatment during the next three and a half months leading up to the incident at the defendant's workshop. It is submitted on behalf of the defendant that the incidents of late March 2000 are relevant to damages and also to contributory negligence.

The claimed work injury

6. The defendant company trades as Discount Tyre Service Belconnen. Discount Tyre Service is a franchise operation, though presenting itself to the public as a single business. The plaintiff's previous employer, which traded as Discount Tyre Service Braddon, was an unrelated company. The plaintiff started his new job on Wednesday 5 July 2000, and the incident giving rise to this action happened at the end of the following week. The defendant was primarily engaged in selling and fitting tyres and carrying out wheel balancing and wheel alignment, but also offered a general mechanical service. The plaintiff was the only qualified motor mechanic on the staff.

7. On the day in question, Friday 14 July, there were two jobs requiring his attention. The first was the replacement of the rear main oil seal on a Toyota Camry station sedan, and the second was the replacement of the cylinder head on a Mitsubishi van. To replace the oil seal on the Camry, it was necessary to raise the vehicle on a hoist and to work from underneath it. The plaintiff had to unbolt the transmission and move it away from the engine to obtain access to the seal. Although there was some conflicting evidence about it, I am satisfied that the dry weight of the transmission was 71kg, and that at the time it contained oil which weighed a maximum of five kilograms.

8. For similar jobs at Discount Tyre Service Braddon, the plaintiff had had the benefit of a transmission jack. This is a freestanding piece of equipment on wheels or castors which can be positioned under a transmission to take its weight and raise, lower or move it. A jack lever mechanism is used for raising and lowering. To move a transmission without changing height, the entire device is moved on its castors at floor level.

9. The defendant did not have a transmission jack. The plaintiff made enquiries with a view to borrowing a transmission jack from a number of neighbouring workshops but to no avail. He reconciled himself to replacing the seal without the assistance of a transmission jack. He drove the vehicle onto the hoist and elevated it to working height. He loosened and removed the bolts and dowels holding the transmission in place. He then asked two fellow employees to help him manoeuvre the transmission backwards away from the engine. His evidence was that the three of them moved the transmission about a foot.

10. The plaintiff was unable to complete the replacement of the oil seal until some additional parts were delivered. He left the Camry on the hoist, and went to work on the van. The engine of the van was located under the front seats. The replacement of the cylinder head required a degree of bending into the engine compartment. In the course of this work, the plaintiff said that he noticed stiffness and aching in his lower back. He continued with the job until the parts for the Camry arrived. He went back to the Camry and replaced the oil seal, a task he was able to complete without assistance. It was then necessary to move the transmission back into its correct position, and bolt it back into place. He asked the same employees to help him. Replacing the transmission was more difficult than removing it, because it required the alignment of two dowels and a spline, which may be described as protrusions from the transmission which fit into corresponding spaces in the engine. The plaintiff's evidence is that he and the two assistants took up the weight of the transmission and moved it into place. This involved moving the transmission backwards and forwards and sideways until the dowels and spline were in the correct position. Whilst engaged in this task, the plaintiff says that he felt pain in his back.

11. They succeeded in getting the transmission into its correct position, and the plaintiff replaced the bolts. This was his last job for the day, and he went with others to a local bar for a drink after work. On his way there, he says that he was limping slightly on his left side, and that his left leg was beginning to ache. After a few drinks, he went home. His evidence is that when he woke up the next morning he was a bit stiff and sore in the low back and left leg. He went back to work. He was expected to work on Saturday mornings and there was some urgency about completing the cylinder head replacement on the Mitsubishi van. This involved bending over the engine bay and lifting and moving a cylinder head of 20 to 30kg. He finished the job and went home, feeling sore in the low back and the left leg, and says that he spent the rest of the weekend quietly at home, still in some pain.

12. He got up on Monday morning to go to work but collapsed on the floor next to his bed, with a sharp pain at the top of the lower back and down the outer aspect of the left leg. He had a hot shower, dressed and went to work. He was concerned that he had been in the job for less than two weeks, and he wanted to make a good impression. He was unable to last the whole day. At about lunchtime he told the proprietor, Mr Marcus Watkins, that he could not continue working because of back and leg pain, and he went home.

13. The plaintiff was extensively cross-examined as to the events of 14 July 2000, and in particular the weightbearing and moving of the transmission. It was put to him that the fellow employees, Mr Patrick Sykes and Mr Robert Gunther, lifted and moved the transmission without any assistance from him, and replaced it at his direction but again without his physical involvement. The plaintiff vehemently denied this. It was also put to him that he made no complaint of any injury on the Friday or Saturday. He denied this also.

14. It was put to the plaintiff that there were inconsistencies between his oral evidence and the version he gave in his workers' compensation claim form, completed on 16 August 2000. That document included a typed description of the accident, which on the evidence I find was completed by the plaintiff or at his direction. I shall set out the description verbatim, correcting spelling and punctuation errors to assist in comprehension.

The accident occurred while working on a vehicle which required bending and lifting of heavy equipment. Due to this I had no choice but to be bending over for a substantial amount of time. While working I started to feel slight back pain but due to deadlines I had no choice but to continue my duties. Later that evening I was complaining of lower back pain and stiffness, and put myself to rest hoping the following day would ease the pain. Saturday morning due to my duties, I had to return to work to finish my duties. After work on my way home I experienced pain that shot down my left leg, so I rested for the weekend and tried to do as little as possible due to the pain. Monday morning as I woke up and prepared for work, I went to get into the shower, as I did this I experienced excruciating pain and collapsed to the floor unable to carry my own weight on my left leg. Then I reported the incident to Marc Watkins, and did not attend work for that week. Feeling a little less tight the following Monday I thought I would return to work on light duties but unable to complete a full day of work and had to go home early. The following week the pain got worse and it was then I got a second opinion as to what the pain was and was told by my doctor and physio not to return to work for that week.

It was put to the plaintiff in cross-examination that this description was of his work on the cylinder head of the Mitsubishi van and made no reference to the moving of the Camry transmission. He denied this, pointing to the phrase "lifting of heavy equipment".

15. Also in evidence was a typed statement taken by an investigator for the workers' compensation insurer, and signed by the plaintiff on 25 October 2000. That statement included the following paragraphs:

5. My first indication of a back problem would have been on Thursday 13 and Friday 14 July 2000. I can recall that on those two days I was involved in replacing a motor seal in a front wheel drive Toyota Camry and putting a reconditioned head back on a Mitsubishi van. In order to replace the Toyota seal, I had to remove the gearbox. This is fairly heavy work and requires working in a confined space. I remember when I was replacing the gearbox I had to get assistance from Patrick Sykes and Robert (I don't know his surname). They both work for Discount Tyre Service and gave me a hand to lift the gearbox back into place. The motor in the Mitsubishi van is under the floor in the cabin and when working on this motor, I was continuously bent over. I cannot recall ever actually causing an injury to my back when working on either of these motor vehicles but I remember that after work on the Friday, I went with some friends to the "Boardroom" pub in the Belconnen Churches Centre. During the course of having a few drinks and playing pool, I was aware of a sort of tight feeling in my lower back and I realised I was walking with a slight limp.

6. On Saturday 15 July 2000, I went back into work to finish off the Mitsubishi van. I was aware that there was an urgent need to complete the work on the van that day. I worked on the van until about 12 noon and then drove home. I can recall that on that day, I was driving Danielle's car which has a manual transmission. During the journey home, I noticed that when I was changing gears, I experienced pain shooting down my left leg. I have never had this problem on any other occasion. During the rest of the weekend, I stayed around the house and took it easy. I was still aware of a bit of tenderness in my back but it wasn't too bad.

It was put to the plaintiff that this statement was inconsistent with his oral evidence, in that it made no mention of stiffness or aching while working on the Mitsubishi, or the commencement of pain while replacing the transmission in the Camry. It was put to the plaintiff that he had embellished his evidence to improve his case. His evidence about this inconsistency was not particularly satisfactory. He sought to attribute the omissions in the written statement to the fact that he was very vague at the time the statement was prepared, because he was on drugs and not thinking straight. The five-page statement is detailed and is not suggestive of vagueness or muddled thinking.

16. Mr Sykes and Mr Watkins were called in the defendant's case. Mr Sykes had been working with Discount Tyre Service Belconnen for two or three months by July 2000. He had known the plaintiff for about two or three years before that. He was employed as a trades assistant and wheel aligner. He recalled the plaintiff asking him and a fellow employee, Robert Gunther, to give him a hand lifting the transmission out, and then some time later putting it back in place. He said that he and Mr Gunther were at the rear of the transmission. The plaintiff was at the front, using a screwdriver to separate the transmission from the engine. The three men had both hands above their heads, with palms flat and outstretched, pushing upwards, using their legs and trying not to bend their backs. He described the motion as "basically lifting up and shaking at the same time". He and Mr Gunther were hanging onto the gearbox, and the plaintiff was also hanging onto it, trying to work it off the engine by instructing them how to move it, as he used the screwdriver to pry the engine and transmission apart. He said that the plaintiff was manoeuvring the transmission but not taking the full weight of it as he and Mr Gunther were still holding onto it.

17. He described the replacement of the transmission as a similar process in reverse. The three men adopted the same positions, the plaintiff grabbing the front of the gearbox and manoeuvring it so that the spline and then the dowels lined up. He was asked who was bearing the weight of the gearbox, and his answer was "basically, me, if you really put it to, because where I was positioned was where all the actual gears of the gearbox and the weight of it is. But all three of us were underneath it, basically. So it was all spanned out into three." He agreed that it was necessary to move the gearbox backwards and forwards and up and down, to get it back into position. He was asked who was doing the manoeuvring backwards and forwards, and his answer was "Basically, all three of us because Mattie [the plaintiff] was at the front of the gearbox which he's a director and we're just pushers and wrigglers at the back, if you know what I mean by that... He's got the visual part because we can't see what we're doing. We're basically going off his words."

18. He was asked whether he would describe the job as a particularly heavy one, or relatively easy. He said that it was easy in the sense that there were two other people helping take the weight, but very awkward because it involved lifting a heavy weight above head height. Unlike Mr Sykes and Mr Gunther, the plaintiff was weightbearing with one hand and using the other, during the removal, to pry the transmission apart from the engine with a screwdriver, and during the replacement to place a bolt through a space in the transmission into a threaded hollow in the engine block.

19. Mr Watkins is a director of the defendant company, which is the franchisee of Discount Tyre Service Belconnen. He saw the plaintiff at work on Friday 14 July 2000, working generally in the mechanical area of the workshop. He did not notice specifically what the plaintiff was doing that day and could not recall any event of significance. After checking business records, he recalled that the Toyota Camry was in for gearbox repairs, and was the major job booked in for the day. He explained that the business employed a mechanic, who was expected to manage his own work as appropriate. Mr Watkins was unaware of any injury to the plaintiff until the Monday morning when he was told that he had injured his back at work on the preceding Friday, and presented with a doctor's certificate. Mr Watkins had completed the employer's section of the workers' compensation claim form, which included an item for details of other circumstances which might assist the insurer in assessing the validity of the claim. Mr Watkins completed this item "employee informed me on 17/7/00 that he had hurt his back `over the weekend'". This was not pursued by either side during Mr Watkins's oral evidence. Counsel for the defendant put it to the plaintiff in cross-examination and the plaintiff denied any incident over the weekend in question in which he might have injured his back away from the workplace.

20. There was an issue as to whether the plaintiff complained to anyone of injury prior to the Monday after the incident. The plaintiff was not asked about this in chief. In cross-examination, he agreed that he did not tell anyone at work on the Friday that he had hurt his back. He did not realise that he had hurt his back at that stage. He put the pain down to the normal pain one might expect after a regular hard day's work. It was also put to him that he did not tell anyone at work on the Saturday that he had hurt his back. He denied this, and said that he had told Patrick Sykes's stepbrother Carl, and another tyre fitter who worked there briefly. `Carl' was later identified by Mr Sykes as Karl Klinka or Klenka, though his address and contact details do not emerge from the oral or documentary evidence. No other tyre fitter was identified. Thus the plaintiff's evidence in this regard is neither confirmed nor contradicted. To the extent that this permits an inference to be drawn, it is in the plaintiff's favour.

21. Mr Sykes made a handwritten witness statement which was attached to the workers' compensation claim form. This statement is dated 4 September 2000. The form asks how the injured person said the accident occurred, and Mr Sykes wrote "by having to lean into the van to do the head - and the rear main oil seal on the Camry." Asked for a full description of the events leading to the accident, Mr Sykes wrote "...on the days before the day Matt showed up limping his back he carried out normal work like a head on a van a rear oil seal on a Camry but he was walking and talking fine - so I can't say I seen any accident at work."

22. In oral evidence, Mr Sykes said that he did not recall the plaintiff saying anything on the Friday about having hurt himself at work. He and the plaintiff both went to the Boardroom Tavern for a drink after work. The plaintiff's girlfriend and a couple of other friends were there. He did not notice anything unusual about the plaintiff, who was standing next to his girlfriend having a beer and a chat. Mr Sykes stayed for only one drink because he had to catch a bus. He was there probably no more than five minutes. He saw the plaintiff the following morning at work. The plaintiff said nothing about any injury, and appeared "not too bad". He spent the morning working on the replacement of the cylinder head on the van, and was finishing this job when Mr Sykes left work. Asked whether he noticed anything wrong with the plaintiff, he said that he could not really say that he took much notice of him. Mr Sykes first became aware that the plaintiff was complaining of having been injured on the Monday morning when he came in "clenching" his back. Mr Sykes asked him what was the matter and the plaintiff said his back was giving him trouble after working on the van on Saturday. The plaintiff did not make any reference at that time to one of the causes of the injury being the work on the Camry, but he did mention this subsequently, probably a couple of days later.

23. At the time of the injury, the plaintiff was living with his girlfriend, Danielle Hilyard. She completed in handwriting a witness statement form as part of the plaintiff's claim for workers' compensation. The statement is dated 7 September 2000, a little over seven weeks after the incidents giving rise to the claim. She gave the date of the accident as Friday 14 July 2000, time unknown, at Discount Tyres Belconnen. Her description was as follows:

Matt arrived home from work on 14.7.00 and complained of pain to his lower back, this continued throughout the weekend although it was rested. On Monday morning (17/7) at approximately 7.15 am Matt got up from work and fell to the ground with an apparently excruciating pain from his back limiting the use of his legs. I assisted him back into bed and Matthew consulted a doctor after resting seemed to not alleviate his pain.

He was working at Discount Tyres - I was not there at time of injury but was witness to the after effects.

Stiffness and pain prior to the culmination of injury; i.e. inability to walk without assistance and or limping. Matthew complained of intense pain to his lower back and a continuance of said pain down his left leg. Matthew continued to work periodically due to his belief that it would get better (as per the doctor's advice) upon the injuries lack of healing and consulting another doctor Matt took leave.

Whilst this could not be described as a contemporaneous statement, it was made within weeks of the injury and provides some degree of corroboration of the plaintiff's evidence that he complained of low back pain on the evening of 14 July 2000. Ms Hilyard was not called in the plaintiff's case. The plaintiff gave evidence that their relationship had come to an end in acrimonious circumstances a few months after the injury and that he had not seen her for some years prior to the trial. I accept this as a reasonable explanation for the fact that she was not called. Counsel for the defendant submitted that I should draw an inference that if Ms Hilyard had given oral evidence, her evidence would not have assisted the plaintiff's case: Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298. Having regard to the plaintiff's evidence about the ending of the relationship, I refrain from drawing that inference.

Post-injury treatment

24. After finding himself unable to cope with work on Monday 17 July 2000, the plaintiff went home and made an appointment at the Kippax Family Practice the following day. He chose the Kippax practice, rather than his family doctor, Dr Berensen, because it was a bulk-billing practice and he could not afford to pay Dr Berensen's fees.

25. The plaintiff was seen by Dr Wong, whose notes include reference to back pain for a few years previously, with worsening of back pain on waking up the morning before and a new shooting pain to the left leg. Dr Wong prescribed rest, analgesics and Celebrex, and asked the plaintiff to return for review in two days. The notes make no reference to any work injury on the previous Friday or Saturday. The notes also make no reference to the provision to the plaintiff of a certificate for time off work, though I am satisfied that such a certificate was provided. Dr Wong was not called to give oral evidence, and I would not place much weight on the absence in his notes of any reference to a work accident. The plaintiff's evidence is that he told Dr Wong about the incidents of the past few days. It is hardly to be expected that a general practitioner in a group bulk-billing practice will record everything that is said during the course of a consultation.

26. The plaintiff's evidence is that he was not particularly happy with the diagnosis and advice he had been given by Dr Wong. He did not return, and went instead to see Dr Langsford at the Capital Medical Centre. He first saw Dr Langsford on 31 July 2000, and saw him again on three occasions over the next week or so. Dr Langsford referred him to Dr Newcombe, neurosurgeon, for assessment, and also to Ms O'Donovan, a physiotherapist. He arranged a CT scan which showed some bulging and protrusion of the L4-5 disc and herniation of the L5-S1 disc compromising the L5 nerve root.

27. Dr Newcombe saw the plaintiff on 9 August 2000. Dr Newcombe recorded a history of a work injury on 21 July 2000, when the plaintiff developed low back pain whilst stripping a gearbox out of an engine, and could not walk by the following Monday, when left sciatica had developed. I am satisfied that there was a misunderstanding about the injury date. The plaintiff told Dr Newcombe that after a week of bed rest he still had considerable pain but returned to work for a week. He developed right sciatica to the ankle, as well as left leg pain and numbness of the fourth and fifth left toes. He had been unable to work since then. He admitted to some backache from time to time prior to the injury, but no previous sciatica. Dr Newcombe formed the opinion that the plaintiff had what he described as aggravation of lumbar spondylosis with intervertebral disc extrusion. He recommended microsurgical discectomy, which he thought would produce significant relief of pain, though heavy lifting and bending would remain unacceptable. The plaintiff might need to be trained for some other occupation.

28. The plaintiff was not attracted to the idea of surgery. He arranged to see his family general practitioner, Dr Berensen, on 11 August. Dr Berensen found that the plaintiff was bent over and unable to stand up. He prescribed Prednisone, and referred him to a different physiotherapist, Mr Rumore. He reviewed the plaintiff on 30 August 2000, and noted a significant improvement in his physical symptoms, but signs of post-traumatic depression, for which he prescribed Zoloft.

29. On 7 September 2000, the plaintiff received a letter from Mr Watkins on behalf of the defendant, terminating his employment.

30. It emerged in cross-examination that the plaintiff travelled to Western Australia, probably in late September 2000, causing him to miss a vocational assessment appointment arranged by the workers' compensation insurer. His girlfriend was required to travel to Western Australia as part of her employment, and the plaintiff took the opportunity to accompany her. It was the first time he had been on an aeroplane. He disagreed that the eight-hour flight caused him no particular difficulty, but conceded that he did not need to obtain medical attention as a result of any aggravation caused by the flight, either in Western Australia or on his return to Canberra.

Post-injury employment

31. The plaintiff's claim for workers' compensation was accepted in due course, and he received compensation equivalent to his base pre-accident pay for six months, that is until 17 January 2001. The workers' compensation payments were then reduced by half. The plaintiff continued to receive compensation until he commenced work as a ride attendant with Superkarts Pty Limited on 7 May 2001. He worked there for three months, earning considerably less than before. His evidence was that he had applied unsuccessfully for a number of other jobs before that. Superkarts Pty Limited operated a go-kart track at Hume, and the plaintiff's work there included opening and closing the premises, taking bookings, selling tickets, timing and coordinating races, mechanical work on the go-karts, and cleaning. The proprietor of the business recalled that the plaintiff on occasions complained of back pain, but generally coped well with the requirements of the job. There were some issues about the plaintiff's punctuality and commitment, and eventually it was agreed amicably that it was not working out, and that the employment would be terminated.

32. The plaintiff's evidence was that it was not really much of a career at Superkarts, and he found another job as an assistant manager at Bridgestone Tyre Centre. He commenced there the day after leaving Superkarts. His understanding was that the job would involve customer service, invoicing and ordering, but no mechanical work. As the job went on, he found that he was required from time to time to fit tyres, do wheel alignments, and undertake mechanical work. He said that he resigned in early November 2001, after three months, because the employer continually asked him to undertake heavier work which he could not perform. He conceded that he had not disclosed any pre-existing back condition when applying for the job. He found that the work aggravated his back pain. He agreed that he took an average of a day a week off as sick leave, and was regularly late for work, resulting in his pay being docked on occasions. A director of the employer company gave evidence that the plaintiff undertook mechanical work including brake repairs, changing of tyres and servicing of vehicles, without any apparent restriction. The only problem with the plaintiff as an employee was his continual lateness for work and his casual attitude towards the job. Apart from that he was a very competent mechanic. Ultimately, the plaintiff took a week's sick leave for which produced a medical certificate, and resigned at the end of that time.

33. The plaintiff was next employed about a month later at the Aree Bar, a bar associated with the Waldorf on London Hotel in Canberra City. He worked there up to April 2002 as a casual bar attendant, working a variety of shifts.

34. The plaintiff next found employment in June 2002 with Melrose Hyundai as a service adviser, for a trial period of three months. The plaintiff's evidence was that at the end of that time, the service manager told him that things were not working out, and his employment was not confirmed. The plaintiff put this down to a disagreement with the head mechanic, who did not appreciate the plaintiff expressing opinions to customers on mechanical issues which were at times critical of other staff.

35. Evidence was given by the plaintiff's supervisor at Melrose Hyundai. He said that the plaintiff was capable of doing the work but did not appear interested in it. He was late regularly, and often appeared tired. He spent a lot of time on personal telephone calls. The service manager decided that the plaintiff was not worth keeping on. During his time there, the plaintiff was not obviously restricted in his movements or his working ability, and the supervisor was unaware that he had suffered any previous back injury.

36. From the termination of that employment in September 2002 until April 2003, the plaintiff was unemployed, though his evidence was that he continued to apply for jobs. In April 2003, he obtained a casual position with West Belconnen Magpies Football Club. In October 2003, the position was made permanent, and since then the plaintiff's earnings have been at least equal to his pre-accident income, so that he claims no continuing loss of earnings.

37. His evidence in chief was that he was in pretty much constant pain, some days more than others, and needed to wear a thermo-skin elastic wrap around his waist to provide heat to his lower back.

38. He agreed in chief that before the accident, he had undertaken mechanical work on cars for family and friends, and that he had undertaken work of that kind since the accident, and was able to cope with it, though he regarded himself as unable to return to full-time work as a mechanic.

39. It was put to him in cross-examination that there were a lot of cars at his residential address, to the extent that it looked like a used car yard at times. The plaintiff initially sought to give the impression that any mechanical work he undertook on those cars was for his family members and personal friends, but he was unable to name any of the friends, and eventually he admitted that he had charged for his labour as well as parts, and that he had kept no records although he had earned money from the activity. He was unable to give any estimate of the number of vehicles he had worked on at home. He agreed that he had never mentioned this to any of the doctors who had seen him for the case, his explanation being that he had not specifically been asked about it. It was put to him that he chose to keep secret from the doctors the fact that he was doing mechanical repairs for cash at home. His answer was "I had to make money somehow". He agreed that he had been undertaking the activity during the period from July 2000 until at least the end of 2002. I was left in no doubt that the plaintiff had no intention of volunteering the existence of this source of income, and that his damages would have been assessed in ignorance of it were it not for his admissions in cross-examination. It will be necessary for me to take this into account in assessing his damages by way of past loss of earnings. His lack of candour and failure to keep records may work to his detriment in this regard, as I will have to perform the assessment on the basis of my general impressions rather than precise figures.

The specialist medical evidence

40. The plaintiff continued to attend Dr Berensen fairly regularly until the end of April 2001. He was seen by a number of doctors on behalf of the employer's insurer during that period. As the present action was not commenced until April 2002, I would see those assessments as having being carried out for the purposes of the workers' compensation claim rather than this action. On 16 October 2000, he was seen by Dr L A Le Leu, specialist in occupational medicine. He explained to Dr Le Leu that the employer, in addition to selling tyres, offered a full mechanical service which was rarely advertised. The plaintiff was employed as mechanic. There was not enough equipment supplied and the job required a lot of lifting. He said that he was putting a transmission into a car in circumstances which required a lot of lifting above his head, for which he had help from two fellow employees. On the afternoon of the incident, he noticed an ache and some tenderness in the mid-lower back, but said that it was common in his job to have a sore back at the end of the day. He had to work on the same day, and again on the following morning, on another job which involved bending over the engine of a van, mounted under the seats. He noticed a limp on going for a few drinks after work on the Friday night. On the Saturday afternoon, after working for four hours, he developed a pain down the left leg while driving. He had never experienced such a pain before and rested for the balance of the Saturday and Sunday. On Monday morning, he took two steps on getting out of bed and collapsed in agony from the centre of the low back to the toes of the left foot. He obtained no relief from his initial medical treatment, medication or physiotherapy, and first experienced relief with Mr Rumore, the second physiotherapist he had seen. He continued with Mr Rumore two or three sessions a week.

41. Dr Le Leu's prognosis was for recovery with conservative treatment, including physiotherapy and exercise. He thought that the plaintiff should avoid heavy lifting, probably permanently, and that appropriate alternative work should be found for him, with retraining if necessary.

42. He was next seen by Dr D McGrath, musculoskeletal and occupational physician, in December 2000. He gave Dr McGrath a similar history. Dr McGrath thought that he had probably suffered a disc prolapse at L5-S1. He thought that the prolapse might have been precipitated by the activities described, or may simply have been the result of past traumatic events or repetitive spinal trauma, which is relatively common for mechanics. He said that there was a substantial improvement for most people suffering from disc prolapse over twelve months, though it was to be expected that some weakness of the left leg would remain.

43. It emerged in evidence that the plaintiff was also seen for the employer by the late Dr Robert Scott, rehabilitation physician, in July 2001, and by Associate Professor Oakeshotte in November 2001. Counsel for the defendant cross-examined the plaintiff as to elements of the history he had given to each of those doctors, but their reports were not tendered (Dr Scott's report was at one point marked for identification) and I must infer that neither report would have assisted the defendant's case.

44. The plaintiff was referred by his solicitors to Dr G G Griffith, consultant surgeon, for assessment and report. Dr Griffith saw the plaintiff on 5 June 2002. His report was tendered and he gave oral evidence. He gave a helpful explanation of the likely mechanism of the injury. He explained that a lumbar disc has no nerve or blood supply, and functions as a shock absorber. The loading on a low back disc is greater than on discs higher up the spine because of the proportion of the body it is required to support. The nucleus of the disc is fluid, and diffuses force in all directions. The nucleus desiccates with age, and becomes relatively immobile and less liable to rupture and protrude. For this reason, one would not expect to see major disc ruptures in individuals aged fifty or over; major disc ruptures are most often found in individuals in their twenties and thirties. The classic disc injury is caused by a combination of lifting and twisting. The disc is not concentric, and the weakest parts are to the rear and sides, corresponding with the position where the nerve root exits the spine via a bony canal through the vertebrae. Any protrusion in that area is very likely to produce symptoms of nerve root irritation and compression. The overhead lifting and movement of the transmission was precisely the kind of activity which would be expected to cause a disc injury. Such an injury would not be reflected immediately in gross symptoms. Dr Griffith compared the process to the collapse of a suspension bridge, where a cable slowly gives way but nothing appears to be wrong externally, and it is not until the final strand snaps that the bridge collapses into the river. He said that it was frequently the case that the triggering factor could be quite trivial. The weight being lifted would not need to be unusually heavy. The initial injury would be in the form of an annular tear which would progress over a period of hours, or perhaps a couple of days, to a frank protrusion producing the objective symptoms of which the plaintiff complained. The development from the tear to the protrusion might well be aggravated by a non-ergonomic activity such as the work on the motor of the van.

45. Dr Griffith also explained that the absence of ankle jerk was significant, and would usually be an objective sign of interference with the function of the sciatic nerve.

46. Dr Griffith was asked to comment on the relevance of the plaintiff's complaints of low back pain at the end of March 2000, and the findings on x-ray at that time. His view was that this history was indicative of pre-existing degenerative change in the disc of minor degree, predisposing the patient to the likelihood of an injury leading to disc protrusion at some future time.

47. Dr Griffith viewed video film of the plaintiff taken on 26 October 2000 at a bar in Belconnen, showing the plaintiff playing pool with friends. He said that superficially, the video gave the impression that the plaintiff was able to move freely, but when examined carefully, it could be seen that the plaintiff was instinctively moving in such a way as to minimise the movement of his back. For example, on stooping behind the table to retrieve pool balls, he did not bend but kept his back straight. When he did flex his back forward from the hips, he generally moved no more than 30 degrees from the upright, an angle which Dr Griffith had measured from the screen with a protractor. By contrast, his opponents played their shots with their backs at angles of 80 to 90 degrees. To Dr Griffith, this indicated that the plaintiff was probably in some discomfort short of major sciatic pain. When Dr Griffith saw the plaintiff at his surgery, he measured the degree of flexion at a maximum of 40 degrees, pointing out that this was almost two years after the video film was taken.

48. Dr Griffith said that later x-rays showed a regression of the disc protrusion, which was to be expected as part of the normal healing process. A natural process of desiccation takes place, resulting in a marked reduction in the degree of disc bulging. He said that discs do not heal like normal tissue, because of their lack of blood supply, but shrink and desiccate in the way that a grape becomes a raisin. The structure remains but will never become normal. A damaged disc will remain defective permanently, but the protrusion will reduce as the disc desiccates. It was entirely consistent that in the early days the patient would adopt a bent posture and would have difficulty straightening and walking.

49. Dr Griffith did not agree that the findings on x-ray at the end of March 2000, of slight narrowing of the L5-S1 disc space, necessarily meant that the plaintiff was likely to develop symptoms in the low back in the absence of trauma. Spinal degeneration of that kind was extremely common and it by no means necessarily followed that it was likely to lead to clinical disease.

50. Dr Griffith was referred to a report of Dr G Danta, neurologist, of March 1985. The plaintiff had been referred to Dr Danta for a facial tic. In a postscript, Dr Danta mentioned that the left leg appeared to be smaller than the right, and the girth of the left calf 0.5 centimetres less than the right. At the date of that report, the plaintiff was eight years of age. Dr Griffith measured the right calf as 2 centimetres greater in girth than the left in June 2002, and the right leg as 0.5 centimetres shorter than the left, a matter he described as of minor consequence. Dr Griffith agreed that the leg length disparity could predispose the plaintiff to accelerated degeneration in the lower back. Overall, he expected that the plaintiff's range of movement in the back would improve over time, other things being equal. Dr Griffith's conclusion was that the plaintiff was likely to continue improving, but that he would never be fit to work again in the full range of duties of a mechanic. If he did so, he was almost certain to suffer recurrence of symptoms and possible recurrent prolapse. Apart from this, his pain was likely to continue to improve and to resolve slowly over time.

51. Counsel for the plaintiff called for a report dated 4 July 2002 by a Dr Craven, which was produced by counsel for the defendant and marked for identification but not tendered. The plaintiff was not cross-examined on the report. I formally draw the inference that Dr Craven's evidence would not have assisted the defendant but regard this as a matter of minor significance.

52. Dr Newcombe saw the plaintiff again in March 2003, for a report to the plaintiff's solicitors. Dr Newcombe was shown a copy of the report by Dr Griffiths, and was in substantial agreement with it. In particular he agreed that the plaintiff should not return to work as a motor mechanic, and should avoid repeated lifting and bending. He hoped that the plaintiff's pain would continue to improve. He recommended further physiotherapy but thought that surgery was no longer indicated in the absence of sciatica. Dr Newcombe agreed with Dr Griffith that there might well be a time lapse between a frank incident causing damage to the lumbosacral disc, and the onset of symptoms. Dr Newcombe had the opportunity to view the video film seen by Dr Griffith, and his evidence was that he did not see any restriction of movement, but that the plaintiff demonstrated a limited range of movement during the video. He thought that if one accepted that the plaintiff had developed limping on the late afternoon of Friday 14 July 2000, this would indicate that it was more likely than not that the events of that day had caused the disc protrusion and hence the limping.

53. The plaintiff was referred by the defendant's solicitors to Dr W M Wearne, orthopaedic surgeon, who saw him in Canberra on 19 March 2003. Dr Wearne's opinion was that the plaintiff's back condition was caused by intervertebral disc pathology, particularly at the L5-S1 level, and a pre-existing degenerative condition aggravated by the heavy work in which he was involved in on 14 and 15 July 2000. He was of the view that the L5-S1 and L4-5 intervertebral discs must have been areas of longstanding change preceding the incident of July 2000, but he pointed out that it was possible for such degenerative changes to be virtually asymptomatic until brought to light by injury. He did not think that any further treatment was indicated, though there was a remote possibility that surgery in the form of discectomy might be required in the long term, in the event of a flare-up of symptoms. The plaintiff was in his opinion unfit to return to work as a motor mechanic or to any work which required heavy lifting, frequent or sustained bending, or working in cramped conditions. He remained fit to undertake a wide field of light to moderate manual work at bench level with a weight-lifting limit of 20 kilograms and minimal bending.

54. Following the report, Dr Wearne was provided with an opportunity to view the video before giving oral evidence. He believed that the range of movement shown on the video was greater than he had observed on examination, but conceded that he did not measure this and relied on his eyesight. He agreed that a person with the degenerative changes which would be assumed from the x-ray of March 2000 was predisposed to injury which might be precipitated by lifting, playing sport, or involvement in a motor accident, and could occur without any obvious injury, although usually there was some reason for it. Dr Wearne thought that the two centimetres of calf wasting referred to previously was probably within experimental error and thus insignificant. He also accepted that the overhead work described by the plaintiff in removing, lifting and replacing the transmission on 14 July 2000 was consistent with the classical development of an L5-S1 disc protrusion.

Rehabilitation

55. The plaintiff was referred by the employer's insurer to a rehabilitation management service firm, Donna Trevenar and Associates. He was seen on two occasions, in September and October 2000, by Ms Olivia Wilson, a psychologist employed by that firm as a rehabilitation consultant. The vocational assessment involved a structured interview and the administration of psychometric assessments. The plaintiff told Ms Wilson that he had a long-standing ambition to leave the mechanical trade and retrain as a computer programmer. He was under the impression that he was entitled to be placed in a retraining programme at the insurer's expense, in his chosen field of information technology. Ms Wilson's opinion was that he did not have the skills to justify this, and said that he did not meet the criteria for retraining because he already had the requisite skills and physical capacity to achieve employment as a service manager in an automotive dealership or service outlet at his pre-injury income. She thought that the plaintiff could also consider obtaining entry to the computer industry as a computer sales assistant or a computer hardware repairer and assembler. The plaintiff was not happy with Ms Wilson's report or recommendations. The recommendations were presumably accepted by the insurer, and no retraining programme was offered to the plaintiff.

Findings

56. Whilst it is clear that the plaintiff has been untruthful about some matters, I am satisfied, after considering the evidence of Mr Sykes, that the plaintiff shared in the bearing of the weight of the transmission of the Camry station sedan on 14 July 2004, both when separating the transmission from the engine block, and later when replacing the transmission. I accept the evidence of Dr Griffith as to the likely mechanism of injury and I am satisfied that the plaintiff ruptured his L5-S1 disc in the course of that activity, though I am unable to say whether the rupture occurred during the separation or the replacement. The latter seems more likely because of the movement backwards and forwards and from side to side required to line up the spline and dowels. The work on the Mitsubishi van, requiring a prolonged period with the back bent on the Saturday morning, probably aggravated the condition. The same work on the Friday afternoon, between the two movements of the Camry transmission, may also have played a role but I am satisfied that there was a specific moment during the course of moving the transmission when the rupture occurred.

57. The medical attendances by the plaintiff three months earlier must be seen in context. The plaintiff was working in an occupation where back pain at the end of the working day is common. He had had such pain from time to time for some eighteen months, but it had not been sufficiently bad until then to send him to a doctor. Even on that occasion, it may be recalled that the reason the plaintiff went to Dr La was because of abdominal pain and vomiting, and that he took the opportunity to mention the back pain in the course of the consultation. He saw Dr La only twice, a few days apart. The second appointment was primarily to discuss the x-ray findings. The plaintiff did not require further medical treatment from then until his injury, and was able to work for the first week and a half in his new job with the defendant without any suggestion of back pain or restriction of movement.

Negligence

58. I am satisfied that the system in place at the defendant's premises for movement of the transmission of a vehicle on a hoist was unsafe. A transmission jack should have been made available by the employer. I accept the plaintiff's evidence that Discount Tyre Service Braddon had a transmission jack when he worked there, and that it was a piece of equipment one would expect to be available in a mechanical workshop providing a service to the public such as that offered by the defendant. I am satisfied that if a transmission jack had been available, the injury would not have occurred. The defendant as the plaintiff's employer owed him a duty to provide him with a safe system of work, and in this respect failed to do so. It follows that the defendant was negligent.

Contributory Negligence

59. Counsel for the defendant submits that there should be a finding of contributory negligence, by reason of the plaintiff's election to participate in the moving of the transmission three months after having being warned by Dr La to avoid heavy lifting. It is submitted that the plaintiff had a responsibility when applying for his position with the defendant to disclose his previous episodes of back pain and the advice he had been given by Dr La. I do not accept that the plaintiff should be expected to have disclosed the prior back pain when applying for employment. He regarded back pain as unavoidable in mechanical work. He had not been advised to give up work as a mechanic, but merely to avoid heavy lifting. There is no suggestion that he had ever been warned that he was at risk of a disc rupture. It is probable that he interpreted the advice as a warning that heavy lifting would be likely to result in episodes of backache such as had troubled him in the past. I do not accept that the plaintiff's conduct on 14 July 2000 amounted to a lack of reasonable care for his own safety. He was not guilty of contributory negligence.

Damages

60. I am satisfied by the video evidence and admissions made by the plaintiff in cross-examination that his history and presentation to some of the doctors, and his evidence in chief, contained a degree of exaggeration as to the severity of his symptoms and his level of incapacity. At the same time, I am satisfied that the injury was a serious one and that it has destroyed his capacity to work as a mechanic, a field in which he has qualifications and experience.

61. I have some difficulty in assessing the present level of his disability. He is now engaged in full-time employment as a bar attendant. He says that he still has low back pain, though the sciatica has almost completely resolved. His back pain varies in intensity and is aggravated by physical activity. Dr Griffith takes the view that his symptoms are resolving and slowly improving over time, but that he may require prescription medication from time to time. His post-injury depression has resolved completely. Dr Wearne, the specialist principally relied on by the defendant, generally agrees with Dr Griffith's prognosis, as does the treating neurosurgeon, Dr Newcombe. I have the impression from observing the plaintiff in the witness box that any continuing disability is relatively mild.

62. It seems to me on reflection that a proper sum to compensate the plaintiff for pain and suffering and loss of enjoyment of life is $60,000.00. The worst of the pain and interference with normal activities is now behind him, but he is a young man with a lifetime of restriction in activities ahead of him, and the remote possibility of future surgery in the form of a discectomy. I apportion $40,000.00 to the past and $20,000.00 to the future. The past component is weighted more heavily to the months immediately after the accident, rather than being spread evenly over the entire period. I award interest of $4,000.00.

63. The treatment expenses were paid by the workers' compensation insurer in the sum of $4,586.55 up to 25 March 2003, the date of a schedule of payments tendered in evidence. Since then it is likely that the plaintiff has been put to some expense for general practitioner consultations and analgesics. I allow $4,800.00 for past expenses. As virtually all of this sum has been paid by the insurer, there will be no allowance for interest.

64. An allowance is warranted for future treatment expenses. The plaintiff is now twenty-seven, and likely to live another fifty-six years based on the Australian Life Tables. The appropriate multiplier, assuming an interest rate of 3%, is about 1,425. Taking account of vicissitudes, it seems to me that an appropriate sum is $6,000.00.

65. The calculation of an award for past loss of earnings is a little more complex. After an initial delay in payment, the plaintiff received workers' compensation equivalent to his pre-injury earnings for six months, up to 17 January 2001, and I think it unlikely that he had the capacity or the need to earn additional income through mechanical work at home during that time. From 18 January 2001, his workers' compensation dropped by half, and thereafter I suspect that his increasing capacity and admitted need for money led him to undertake some productive work. His workers' compensation payments ceased when he started work at Superkarts in May 2001. He worked in shifts during the next three months, earning considerably less than prior to the injury, and would have been motivated to supplement that income in the time he had available.

66. In August 2001 he started work at Bridgestone Tyre Centre, earning about $80.00 less than prior to his injury, and during his time there, again he would have had some motivation to supplement his income. He was unemployed for about a month in November 2001. He then worked for four months at Aree Bar, doing casual bar work, and during this period earned less than half of his earnings with the defendant. He was then unemployed for about two months. In June 2002 he found work for three months with Melrose Hyundai, earning $86.00 less a week than with the defendant. He was then unemployed for seven months until he found casual work with the Belconnen Magpies Sports Club. For the first four months, he earned about $200.00 per week less than with the defendant, but in October 2003 his employment became permanent and since then his earnings have been no less than he would have earned in his job with the defendant.

67. A mathematical calculation of the plaintiff's loss arrives at a figure of about $60,000.00. I am not satisfied that the plaintiff has made out his case for this amount. The claim assumes that the plaintiff would have remained in his job with the defendant for the entire period of the four years since the injury. I am not satisfied that this would necessarily have been so. He had been in the job less than two weeks and had a pattern of broken employment before that. I am satisfied that he was already looking for opportunities to move out of mechanical work into a cleaner and less physically demanding form of employment. He seems to have lost his jobs with Bridgestone and Melrose Hyundai for reasons unrelated to his injury, and having more to do with his attitude and application to his duties. He concedes that he earned income by carrying out mechanical work at home, something he intended to keep secret until forced into admissions during cross-examination. His claim is not assisted by his failure to keep any records and his inability to provide the Court with any estimate of the number of jobs he undertook or the amount he received. I am not satisfied that the admissions he eventually made were frank or complete. In the circumstances, the assessment of a sum to compensate the plaintiff for his past loss of earnings cannot be undertaken with anything approaching mathematical precision and requires a broad exercise of discretion. I allow $30,000.00. The calculation of interest on past loss of earnings must reflect the plaintiff's receipt of workers' compensation payments of $17,802.28 after tax. As I have mentioned, the workers' compensation payments covered his entire loss for the first six months up to 17 January 2001 and half of his loss up to 5 August 2001, the date of the last payment. The loss is then notionally spread evenly until October 2003 when it ceased. I allow $2,000.00 for interest on the past loss.

68. I allow the sum of $3,450.82 being the total tax deducted by the workers' compensation insurer and paid to the Tax Office on the plaintiff's behalf, on the basis that he will be required to give credit for this amount out of his damages although he has not received it: Fox v Wood [1981] HCA 41; (1981) 148 CLR 438.

69. The plaintiff has suffered a notional loss of superannuation benefits related to his past loss of earnings. His employer would have been required to contribute 8% of his wages to a superannuation fund for his eventual benefit up to 30 June 2002 and 9% thereafter. I allow $3,000.00 for loss of past superannuation benefits.

70. A claim is made for loss of earning capacity for the future, to compensate for the loss of the capacity to work as a mechanic, and in other occupations involving heavy lifting or prolonged sitting or bending, and also the contingency that the plaintiff may need to take time off work in the future. The 3% multipliers for a man aged 27 are about 1,100 to age 60 and 1,190 to age 65. I allow $20,000.00, including any consequent loss of superannuation benefits, to compensate the plaintiff for the prospect that his impaired earning capacity may be reflected in the future in loss of income.

71. The individual components of the award are:

General damages $60,000.00

Interest on past component $4,000.00

Out of pocket expenses

Past $4,800.00

Future $6,000.00

Economic loss

Past $30,000.00

Interest thereon $2,000.00

Fox v Wood $3,450.82

Loss of past superannuation including interest $3,000.00

Loss of earning capacity $20,000.00

Total $133,250.82

72. The total appears to me to represent a proper reflection of the consequences of the injury for the plaintiff. There will be judgment for the plaintiff for $133,250.82. I shall hear the parties as to costs in case there is any reason they should not follow the event in the normal course.

I certify that the preceding seventy-two (72) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master.

Associate:

Date: 6 August 2004

Counsel for the plaintiffs: Mr G A Stretton

Solicitor for the plaintiffs: Snedden Hall & Gallop

Counsel for the defendant: Mr J Pappas

Solicitor for the defendant: Dibbs Barker Gosling

Date of hearing: 25, 26 June; 10, 11, 12 November 2003

Date of judgment: 6 August 2004