Sapkaroski v Capital Concreting & Formwork Pty Ltd & Konstantinou Developments Pty Ltd [2006] ACTSC 4 (3 February 2006)

Last Updated: 6 April 2006

NICK SAPKAROSKI v CAPITAL CONCRETING & FORMWORK PTY LIMITED and KONSTANTINOU DEVELOPMENTS PTY LIMITED

[2006] ACTSC 4 (3 FEBRUARY 2006)

NEGLIGENCE - personal injury - duty of employer to employee - workplace hazard - no risk assessment - breach of duty to warn - no contributory negligence - mere inattention or inadvertence.

EMPLOYMENT - whether worker employee or independent contractor.

DAMAGES - personal injury - head and neck injury - chronic pain - anxiety and depression - no issue of principle.

Workers Compensation Act 1951

Giljevic v Yaraka Holdings Pty Limited [2005] ACTSC 19

Hollis v Vabu Pty Limited [2001] HCA 44; (2001) 207 CLR 21

Abdalla v Viewdaze Pty Limited (2003) 122 IR 215

Husher v Husher [1999] HCA 47; (1999) 197 CLR 138

Humberstone v Northern Timber Mills [1949] HCA 49; (1949) 79 CLR 389

Stevens v Brodribb Sawmilling Company Pty Limited [1986] HCA 1; (1986) 160 CLR 16

O'Connor v Commissioner for Government Transport [1954] HCA 11; (1954) 100 CLR 225

Raimondo v State of South Australia (1979) 23 ALR 513

Sarvanidis v Chicago Bridge and Iron Constructors (1989) Aust Torts Reports 80-292

Nair v Health Administration Corporation (1994) Aust Torts Reports 81-312

McLean v Tedman [1984] HCA 60; (1984) 155 CLR 306

Sungravure Pty Limited v Meani [1964] HCA 16; (1964) 110 CLR 24

No. SC 509 of 2002

Judge: Master Harper

Supreme Court of the ACT

Date: 3 February 2006

IN THE SUPREME COURT OF THE )

) No. SC 509 of 2002

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: NICK SAPKAROSKI

Plaintiff

AND: CAPITAL CONCRETING & FORMWORK PTY LIMITED

Defendant

AND: KONSTANTINOU DEVELOPMENTS PTY LIMITED

Third Party

ORDER

Judge: Master Harper

Date: 3 February 2006

Place: Canberra

THE COURT ORDERS THAT:

Judgment be entered for the plaintiff in the sum of $195,500.

1. The plaintiff was born on 1 June 1949 in Macedonia. He migrated to Australia in 1971 and has lived and worked here since, except for short periods overseas. He married his Macedonian fiancé in 1973 and they have four children, one of whom still lives at home. The plaintiff trained and worked as a chef as a young man, but for more than twenty years has worked as a concreting labourer in the building industry in Canberra. He is now 56 years of age.

2. He claims damages consequent on a work injury on 20 December 2001 at Hume, where he was working for the defendant on a building site. The action is pleaded as a claim by an employee against an employer, but the defendant denies the employment relationship and submits that I should find that the plaintiff was an independent contractor.

3. The defendant's claim against the third party was discontinued by consent during the hearing, with no order as to costs.

The accident

4. On the day of the accident, the plaintiff arrived on site at about 6.30 am. He had been at the site a couple of days earlier. The main job for the day was the pouring of a concrete floor in a large steel-framed shed or warehouse. The formwork was in position, and part of the floor had already been poured. The concrete arrived on site by truck soon after the plaintiff. As he explained, once the concrete is poured it is necessary for the workmen on site to move very quickly to attend to their duties. The plaintiff's task was to screed or level the floor surface of the concrete following the pour.

5. He was in the process of levelling the surface in an area where the freshly poured concrete joined the edge of the concrete which had previously been poured and had set. He was working in the vicinity of a large vertical beam or girder on the line between the old and new concrete. He was on his knees working with a large straight-edged screeding tool in his right hand, leaning with his left hand on a wooden float designed to distribute his weight.

6. There were protruding from the girder at right angles at least two short steel bars. The plaintiff was injured when he stood up suddenly and hit his head on one of the bars. There may have been more bars higher up the beam, at regular intervals, but any higher bars are not relevant for present purposes. The bar on which the plaintiff struck his head was described by the plaintiff's solicitors in particulars as horizontal and perpendicular to the edge of the concrete slab, 35 cm in length and 134 cm above the floor surface of the concrete slab, or 157 cm above ground level. The bar was made from square-section right-angled steel, 5 cm on each base. These figures are consistent with the photographic and other evidence. I infer that the purpose of the bars was to anchor the walls of the building.

7. There was a lower bar, identical in dimensions to the one with which the plaintiff came into contact, which appears from the photographs to have been perhaps 20 to 25 cm above the floor surface of the slab, or 45 to 50 cm above ground level.

8. The accident happened after the plaintiff had been working on the site for about fifteen minutes. He had not been provided with, and was not wearing, any form of headwear.

9. Although the negligence pleaded against the defendant included failing to supply appropriate headwear and failing to cover the bar with a protective buffer, the plaintiff's case was confined in closing addresses to one of failing to warn the plaintiff of the presence of the bar and of the danger presented by it.

10. The defendant company was incorporated in 1995. Its directors are Ordan and Steve Nikoloski. Ordan Nikoloski was born in Macedonia in 1953; Steve Nikoloski was born at Queanbeyan in 1975 and is Ordan's son. Ordan Nikoloski and the plaintiff had known each other for some twenty-five years and were friends.

11. Until about the end of 1997 the plaintiff had worked as an employee. From about the beginning of 1998, he ceased to work for a single employer and decided to undertake casual concrete labouring work as it became available. He obtained work from a number of employers, including the defendant. He explained that the nature of the work is that there are days when the services of a labourer are required urgently, and other days when there is no work. The plaintiff was paid an agreed daily rate, by the defendant and by other employers. Group tax was not deducted and indeed the plaintiff, after the introduction of GST in mid-2000, was paid an additional 10% to cover GST, though he does not seem to have kept proper business records or to have lodged business activity statements. His understanding of business matters is unsophisticated and it did not seem to me that he had much concept of the difference between income tax and GST.

12. The plaintiff had his own tools, which he used privately or if doing a smaller job, but when he did work for the defendant company the latter provided all of the necessary tools. The plaintiff was told what to do by Ordan Nikoloski. There were numerous tradesmen and other workers on site including plumbers and steelworkers. No one on the site was wearing a helmet. The defendant's team consisted of about six to eight people, most of whom seem to have been related to the Nikoloski family. Ordan Nikoloski was the "boss" of the concrete team on site and was present most of the time the plaintiff was there, including at the time of the injury. He gave the plaintiff no warning about the projecting steel bar. There had been earlier jobs where the defendant had provided the plaintiff and other workers with a helmet, but this was not designated as a "hard hat" site.

13. The plaintiff agreed in cross-examination that he must have seen the lower steel bar though he had no specific recollection of it. He agreed that it was likely that he had had to work around it. He explained that once the concrete truck arrives on site, everyone panics, and commences to attend to their work duties at a rapid pace. His evidence was that he had not seen or noticed the steel bar on which he hit his head, and was unaware that it was there.

14. It is apparent from the photographs that the beam from which the bars projected is a short distance from the perimeter of the building site, which can be identified in the photograph by a retaining wall of about waist to chest height, with earth behind it and a cyclone fence on the boundary. The bars point in the direction of the boundary, that is away from the interior of the building. There is no evidence as to the direction from which the plaintiff approached the area where he was to work, either on the day of the injury or on the earlier days when he had been at the site.

15. The plaintiff also agreed in cross-examination that whilst he was directed in general terms where to undertake his levelling, he did not need to be told precisely what to do or what tools to use as he had considerable experience.

16. I am satisfied that the bar on which the plaintiff struck his head was dangerous, the risk being the very injury which the plaintiff suffered. It might be said that it carried with it some risk that a person on site not looking where he was going might walk into it, but that seems much less likely, at least in respect of a person keeping a proper lookout. However, I am satisfied that there was a real danger that a person working on his knees at ground level might hit his head on the bar if he stood up suddenly.

17. I must, of course, also take into account the fact that there are many static dangers on a building site. There is a temptation to focus, after an injury of this kind, on the risk which materialised, to an extent which may be out of proportion to the other potential risks. On reflection, nevertheless, I am satisfied that a bar at the height I have mentioned constituted a real danger.

18. There is no evidence that Mr Ordan Nikoloski was personally aware of the danger, or indeed of the existence and position of the bar. He did not give evidence. I accept that he is the person to whom I should look in relation to the duty of care owed by the defendant to the plaintiff and to any breach of the duty. I must also take into account the fact that the defendant was itself a subcontractor on the site, and had not put the beam or bar in place. The defendant was not in overall control of the building site.

19. The defendant's case is that the plaintiff was not an employee but an independent contractor, and that the duty of care owed by a company in the position of the defendant to a contractor is very much less stringent than the duty it would owe to one of its own employees.

20. It is clear from the photographs in evidence that the area to be concreted was a very substantial rectangle, which was to become the floor of the building. Most of it was simply open space, with no obvious dangers, but the beam was one of a number around, and just inside, the perimeter of the concrete. The defendant must be taken to have known that persons doing levelling work, whether employees or subcontractors, would be levelling to the edges of the concrete and thus around the beams, including the beam in question. It seems to me that the defendant must be taken to have had a duty to carry out an assessment of any risks to its workers in the areas where they would be working directly. Such a risk assessment would have identified the bars on the beams, and the risk that a man of the plaintiff's height might hit his head on a bar, if he stood up from his normal working position while he was underneath it.

21. I infer from the lack of evidence on behalf of the defendant that no such risk assessment was undertaken. If it had been, the defendant through Ordan Nikoloski, would have been in a position to warn of the danger those of its workers who would be likely to be kneeling while working on the concrete surface. A responsible employer in his position would have done so. I am also satisfied that if the bar had been pointed out to the plaintiff, he would have appreciated the risk it presented and would have been careful to avoid it. The scope of any duty of care owed by the defendant to the plaintiff may well be different depending upon whether the plaintiff is properly characterised as an employee or an independent contractor.

Was the plaintiff an employee?

22. In Giljevic v Yaraka Holdings Pty Limited [2005] ACTSC 19, Connolly J was required to determine an appeal from the Magistrates Court on the issue of whether or not the appellant was a worker employed by the respondent for the purposes of the Workers Compensation Act 1951. The appellant was a builders' labourer, engaged at the time of his injury in the demolition of a steel shed on a building site. He was working for the respondent on the day. He worked frequently for the respondent, not every day but most of the time. He also worked at times for other building contractors. His work generally involved labouring and concreting on building sites. The respondents' manager would telephone him when there was work available. It was up to the appellant to accept or reject the offer. He would be told where they were working and what time they would start. He was paid for the number of hours he worked. It appeared from his tax returns that he generally worked between forty per cent and eighty per cent of his time for the respondent. He lodged tax returns on the basis that he was conducting his own business, and claimed depreciation for some tools. After making reference to the decision of the High Court in Hollis v Vabu Pty Limited [2001] HCA 44; (2001) 207 CLR 21 and a decision of the Australian Industrial Relations Commission in Abdalla v Viewdaze Pty Limited (2003) 122 IR 215, his Honour noted a number of the conventional indicia of employment, and concluded that the appellant was an employee of the respondent at common law. It may be helpful if I list the indicia, summarise his Honour's comments upon them and set out my own remarks for the purposes of the present case.

Whether the putative employer exercises, or has the right to exercise, control over the manner in which work is performed, place of work, hours of work and the like.

23. His Honour found that the respondent exercised control over the manner of the appellant's labouring work and had the right to do so. He acknowledged that in the modern workplace few employees have an employer constantly looking over their shoulder, and that the appellant was a skilled and experienced labourer. He thought it relevant that the appellant was not a tradesman, and that the respondents' manager visited most work sites each day and was generally on site when the appellant was working. It seems to me that almost precisely the same observations apply to the present plaintiff.

Whether the worker performs work for others or has a genuine and practical entitlement to do so.

24. His Honour said that it was clearly the case that the appellants did labouring for others, but in the modern labour market of increasing part-time employment, it does not follow that multiple casual employment does not remain employment. This observation is equally applicable to the present case.

Whether the worker has a separate place of work and/or advertises his services to the world at large.

25. Neither the appellant in Giljevic nor the present plaintiff had a discrete place of work or advertised.

Whether the worker provides and maintains significant tools or equipment.

26. The appellant provided some of his tools but, his Honour said, that they could hardly be described as significant and were comparable to the bicycles provided by the couriers in Hollis v Vabu. Significantly, his Honour said, the appellant did not provide consumables, and when he needed materials he would purchase them on the respondent's trade account at a hardware store. The present plaintiff had some of his own tools but did not use them when working for the defendant and there is no evidence that he had any authority to make purchases.

Whether the work could be delegated or subcontracted.

27. In both Giljevic and the present case, there was no element of subcontracting. In neither case could the worker quote on jobs and assume the risk of a loss if he under-quoted or a profit if he over-quoted. Neither ever engaged any assistance, rather each sold his labour by the hour or the day.

Whether the putative employer has the right to suspend or dismiss the person engaged.

28. His Honour noted that the respondent could have ceased to engage the appellant at any time, but equally he could have ceased to re-engage any subcontractor and this indicator was to be regarded as neutral. The same applies in the present case.

Whether the putative employer presents the worker to the world at large as an emanation of the business.

29. As his Honour said, this is a significant issue in industries where it is common practice for employees to wear uniforms, as was the case in Hollis v Vabu. It is of less relevance in the building industry. His Honour mentioned that it is common practice for contractors to be identified on building site signs. In neither Giljevic nor the present case was there any prospect of that happening in relation to the worker.

Whether income tax is deducted from remuneration paid to the worker

30. In Giljevic tax was not deducted, and indeed the appellant operated for taxation purposes in a partnership with his wife, but his Honour regarded this as not decisive, referring by analogy to the approach adopted by the High Court in calculating damages for loss of earning capacity in Husher v Husher [1999] HCA 47; (1999) 197 CLR 138. The reality, his Honour said, was that the appellant was selling his labour by the hour to the respondent. The same may be said in the present case, where the plaintiff sold his labour by the day.

Whether the worker is remunerated by periodic wage or salary or by reference to completion of tasks

31. In both cases the worker was paid by reference to time worked rather than completion of tasks.

Whether the worker is provided with paid holidays or sick leave

32. These were not provided in either case, but as his Honour said, were generally not provided by employers to casual employees, who were compensated by a higher hourly rate.

Whether the work involves a profession, trade or distinct calling on the part of the person

33. In both cases the workers were skilled and experienced, but essentially were working as labourers.

Whether the worker creates goodwill or saleable assets in the course of his or her work

34. In both cases, any goodwill would flow to the putative employer.

Whether the worker spends a significant portion of his or her remuneration on business expenses

35. The appellant in Giljevic made modest tax claims for depreciation for tools and motor vehicle, and for other motor vehicle expenses. The present plaintiff did the same thing. In neither case could the expenses be described as a significant portion of remuneration.

36. It seems to me, consistent with his Honour's application of the indicia extracted by the Australian Industrial Relations Commission in Abdalla, inevitable that I find that the present plaintiff was at common law an employee of the defendant.

37. For the sake of completeness, I should refer to two decisions of the High Court where workers have been held not to be employees, Humberstone v Northern Timber Mills [1949] HCA 49; (1949) 79 CLR 389; and Stevens v Brodribb Sawmilling Company Pty Limited [1986] HCA 1; (1986) 160 CLR 16. In both of those cases, the injured worker was a person who supplied his own heavy truck. The present plaintiff is clearly not in that category.

38. If I am in error in finding that the plaintiff was employed by the defendant, it seems to me that the scope of the duty of care owed by the defendant to the plaintiff was almost identical to the scope of the duty owed to an employee. Where an independent contractor meets so many of the indicia of an employee as are met in the present case, then it seems to me that the duty of care owed by the putative employer must be very close to the duty owed to an employee.

Was there a breach of the duty of care?

39. Counsel for the defendant referred me to a number of decisions in which employees had failed to establish a breach of duty. Whilst the cases are helpful to the extent that they set out or explain the principles to be applied, they need to be viewed from the perspective that each case depends on its own facts. In O'Connor v Commissioner for Government Transport [1954] HCA 11; (1954) 100 CLR 225, the plaintiff's deceased husband was an experienced plumber who was killed when a rotten awning gave way under him. The case was not one of a defect in premises provided by the employer in which the employee was to do his work. Rather, the awning was the very thing to be worked upon. Further, the question of how the deceased was to perform the work was an ordinary one for an experienced man to decide and hence the employer had not failed in its duty to warn him of the condition of the awning. I think that this decision is inapplicable to the present circumstances, firstly by reason of the fact that the deceased was a qualified and experienced plumber, and secondly because there have been changes in expectations within the community as to the scope of the duty of care in the half-century since it was decided.

40. The plaintiff in Raimondo v State of South Australia (1979) 23 ALR 513 was an experienced painter who was injured when a plank fell from two trestles. He was standing under the plank while moving one trestle closer to the other, an unsafe practice commonly used by employees to the knowledge of the employer. The High Court dismissed an appeal from the Full Court of the Supreme Court of South Australia by majority, on the basis that the risk of injury was slight and there was no recorded instance of injury having previously occurred. In the circumstances there was no necessity for a warning.

41. The plaintiff also failed before the South Australian Full Court in Sarvanidis v Chicago Bridge and Iron Constructors (1989) Aust Torts Reports 80-292 where he had hurt his back while lifting boxes in an awkward position. The position was awkward because of clutter which the plaintiff could readily have cleared for himself before undertaking the lifting task. It was found on the facts that he was hastening unreasonably. The Full Court thought it likely that even if he had been specifically warned he would not have observed the warning.

42. The New South Wales Court of Appeal dismissed an appeal from a jury verdict in Nair v Health Administration Corporation (1994) Aust Torts Reports 81-312. The plaintiff was travelling in the course of her employment on a boat, and when alighting she struck her head on a canopy, something she could have avoided if she had crouched or bent. The Court held that the jury were entitled to find that the accident occurred without fault on the part of the employer or the operator of the boat, the plaintiff having travelled on the boat on a number of previous occasions.

43. It seems to me that the facts in the present case are of a different order to any of the facts situations in the decisions relied upon by counsel for the defendant. As I have said, the steel bar protruding from the beam represented a hazard to persons working for the defendant, a hazard which could and would have been identified by a proper risk assessment. I am satisfied that the risk of injury would have been removed if such an assessment had been carried out and the hazard pointed out to the plaintiff.

44. In the circumstances, the defendant was in breach of its duty of care to the plaintiff, and the necessary causal connection between the breach and injury is established.

Contributory negligence

45. The test for contributory negligence on the part of an employee was explained by Mason, Wilson, Brennan and Dawson JJ in their joint judgment in McLean v Tedman [1984] HCA 60; (1984) 155 CLR 306 at 315. As their Honours expressed it, the issue of contributory negligence is to be approached on the footing that the employer failed to discharge its obligation to take appropriate precautions against the risk of injury arising from the presence of the hazard and the failure of the employee to observe it. The question is whether the employee's failure should be characterised as mere inattention or inadvertence or whether it amounts to negligence, there being a well-recognised distinction between the two. The circumstances and conditions in which the employee was required to do his work must be taken into account, and the issue of contributory negligence is essentially a question of fact. Their Honours quoted the observation of Windeyer J in Sungravure Pty Limited v Meani [1964] HCA 16; (1964) 110 CLR 24 at 37 that regard may be had to "inattention bred of familiarity and repetition, the urgency of the task, the man's preoccupation with the matter in hand, and other prevailing conditions". It is for the tribunal of fact to determine whether any of those things caused some temporary inadvertence, inattention or the taking of a risk which was excusable in the circumstances because it was not incompatible with the conduct of a prudent and reasonable man.

46. It appears to me that, taking account of the context of the urgency of the levelling work once the concrete was poured, the failure of an employee in the position of the plaintiff to notice the protruding bar was excusable in the circumstances. It follows that the plaintiff was not guilty of contributory negligence.

47. In case my finding that the plaintiff was an employee of the defendant is subsequently seen to have been mistaken, it is appropriate for me to consider whether his conduct would have amounted to contributory negligence had he been an independent contractor. It does not seem to me that it follows merely from the fact that a man hits his head on a protruding object when standing from a kneeling position, that he has necessarily been guilty of a failure to take reasonable care for his own safety. In the present circumstances, the distinction for the plaintiff between the status of an employee and that of an independent contractor is a relatively technical one dependent upon a number of indicia, as set out above. The finding is one of fact upon which judicial minds might conceivably differ. If the plaintiff was technically an independent contractor, nevertheless he was working at the direction of the defendant in a situation of urgency requiring his preoccupation with the task on which he was engaged. Had I found him to be an independent contractor, I would still not have found that his failure to notice the bar amounted to contributory negligence.

The plaintiff's evidence as to damages

48. The plaintiff's evidence in chief was that he stood up quickly from a kneeling or squatting position and hit his head on the top of the left side. He did not lose consciousness, but was stunned for some time and noticed some bleeding from the wound. He felt dizzy and did not immediately know where he was. After some little time he went and sat in his car. A feeling of nausea overcame him and he thought that he was about to vomit. After about five minutes, work colleagues came to check on him. He went back to a work shed intending to wash the wound with water, but Ordan Nikoloski told him not to do that in case he made it worse. He arranged for his son Steve to take the plaintiff to Queanbeyan Hospital. By the time he got there, he was still feeling shaky and unwell. Medical staff gave him painkillers and cleaned the wound. Steve waited at the hospital with him, and took him back to the building site afterwards. The plaintiff thought that he was away from the site for probably about two or three hours, perhaps four. When they got back more than half of the concreting was completed. He attempted to do some work but was still feeling unwell. He had been advised by a doctor at the hospital to go home but there was no one at home and he thought he was well enough to go back to work. He spent two or three hours at work. His headaches and giddiness continued, and he went home early. He continued to take painkillers.

49. The next morning he was feeling much the same but decided to go back to work believing that his condition would improve. He attended work, doing the same kind of tasks, levelling and screeding. He needed to take short breaks from work from time to time, and was unable to work for the whole day. He went home early, and did not return to the building site. There was a great deal more concreting work to be done on the site in the following days, including a large car parking area, but the plaintiff was unable to assist.

50. He spent the next two weeks at home with pain in his neck, and thought he was getting worse. His wife made an appointment to see the family general practitioner, Dr Rasaratnam, who arranged radiological investigations and prescribed tablets. The plaintiff at this time also developed altered feeling on the left side and in the left arm down to the fingers. He said that he also had some pain from the left hip down the leg. He was referred in March 2002 to Dr Newcombe, neurosurgeon, who arranged further radiological studies, and in June 2002, Dr Rasaratnam sent him to Dr Cassar, a specialist physician with a particular interest in pain management. With Dr Cassar, he had laser treatment and acupuncture over a period of six to eight months. This gave him some relief, but he remained in a poor condition and unable to return to work. He said that by the time of the hearing he was in much the same condition as when attending Dr Cassar's program. He complained of pain in the head, left side of the neck, left arm, left leg and right shoulder. Dr Cassar prescribed strong painkillers in the form of Neurontin which provided some relief. Some of the medication caused intestinal spasms as side-effects.

51. The plaintiff was referred during 2002 to Dr Andrews, neurologist, and Dr Chandran, another neurosurgeon. He was also sent to the pain management clinic at the Canberra Hospital where he had hydrotherapy. This relieved the symptoms in the lower part of his body but not in his neck. In late 2003 he was prescribed Zoloft, and other tablets, but he said that all of the medication created side-effects.

52. At the end of March 2004 he had surgery for the repair of a hernia at the Canberra Hospital, unrelated to the accident. He had had previous hernia surgery fifteen or twenty years earlier.

53. In mid-2004 he was referred to another neurosurgeon, Dr Fuller, who offered surgery but was unable to provide any guarantee that it would be successful. The plaintiff said that rather than improving, his condition had worsened over the years, up to the time of the hearing. His worst problems were with his neck, hip and left arm. By the time of the hearing he was taking digesic tablets which relieved the symptoms in the lower part of his body but not the upper part. He was in pain twenty-four hours a day and any kind of activity aggravated the pain. His sleep was badly affected: he was unable to sleep for more than an hour or two, and disturbed his wife's sleep. He had been a handyman about the house but was unable to perform these activities, relying on his wife to do everything around the house. After the short return to work the day after the accident, he had not attempted work since. He said that he had also developed stress and depression, which he attributed to the constant pain which he was unable to control.

54. Evidence was led from him in chief that he had had a problem with alcohol during the 1990s. Even a small amount of alcohol would increase his blood pressure, sometimes causing pain. There were occasions when he went to hospital. He thought that it might not have been necessary but he went anyway. The problem usually arose on weekends. He reduced his alcohol intake which was by the time of the hearing nowhere near what it had been before the accident.

55. The plaintiff was extensively cross-examined as to his past medical history. It became apparent that his past alcohol abuse was far more substantial then he had volunteered. A substantial volume of medical records was tendered during the course of the cross-examination, which generally I accept as accurate. There is mention in a report by Dr AC Clarke, gastroenterologist, as long ago as April 1982, of a heavy alcoholic binge followed by severe and persistent abdominal pain. The plaintiff told Dr Clarke that he normally drank three or four beers each evening and would drink heavily once or twice a week. Liver function tests conducted at Dr Clarke's request were conducted early in 1983 were abnormal. Dr Clarke described the plaintiff at that time as an extremely angry and slightly anxious man, to such an extent as to amount to a personality disorder.

56. The plaintiff had numerous attendances, including some admissions, and including a number where he was bought by ambulance, in which there is mention of alcohol in the records. In March 1993 he was seen at the Queanbeyan District Hospital following a lifting injury, and complained of neck and left upper arm pain. He smelt strongly of alcohol and said that he had been drinking the previous night. In April 1994 he attended the emergency department at the then Woden Valley Hospital, complaining of severe abdominal pains. He had drunk up to a litre of wine the night before. An enlarged fatty liver was noted, and the diagnosis was of alcohol-induced pancreatitis. In April 1995 he attended at the same hospital complaining of right upper quadrant pain and severe cramps. He had been on a drinking binge the night before, drinking up to twenty glasses of red wine. He was diagnosed as suffering from alcoholic liver disease. Later the same month he presented complaining of dizziness, heaviness and paraesthesia of the left arm, among other things.

57. By November 1995, the hospital seems to have developed a standard template for its records of his attendances, including his name, address, date of birth and other details, and including mention of alcoholic liver disease. In October 1996 he attended the hospital complaining of pain in the right upper quadrant following a drinking session where he estimated that he had drunk nineteen stubbies of beer. He presented again in February 1997 with similar complaints. He was apparently asked at the hospital to blow into an alcometer but was unable to blow for long enough to give a reading, and refused to permit the taking of a blood sample for testing. He was at the emergency department again in June 1997, brought by ambulance after a lengthy drinking session, with similar complaints.

58. In June 1998 he was refused insurance, presumably disability cover, because of a history of obesity and uncontrolled hypertension.

59. He was taken by ambulance to the hospital again in August 1998 after a drinking binge estimated at three to four litres of wine the previous day. It was noted that he worked as a concreter but was currently having difficulty finding work. His next attendance was in July 1999: he had drunk a large amount of alcohol because he was upset after his car was hit by a kangaroo. He was said to be unemployed. His symptoms were as before.

60. He presented again some four weeks later with similar symptoms after an alcoholic binge of two to three litres of wine plus twenty-four cans of beer. His symptoms were attributed to alcoholic hepatitis. He was recommended to abstain from alcohol and lose weight. He was described as a poor historian. His complaints included chest pain radiating to the left arm.

61. In May 2000, Dr Rasaratnam referred him for an X-ray of the lumbosacral spine. This disclosed osteophytes arising from the margins of all lumbar discs, particularly L4. The referral followed a complaint of low back pain radiating down the leg.

62. In September 2000 he attended the emergency department complaining of constipation. He had previously seen his general practitioner who had prescribed suppositories but the plaintiff said that these were not working. He had some rectal pain and was found to have a small anal fissure. He attended again in October 2000 with complaints of constipation and abdominal pain. He had three attendances at the emergency department at what was by then the Canberra Hospital, at Woden: in May 2001 he complained of vomiting, constipation and leg pain. The doctor who saw him offered to contact Alcoholics Anonymous on his behalf but the plaintiff declined this. He was advised to stop his alcohol intake. The next month, June 2001, he presented with symptoms of shortness of breath and left arm pain, complaining of dizziness and anxiety. It was noted that his abdominal pain had followed his drinking a litre of wine. He was back at the hospital on 6 December 2001, two weeks before his accident, with chest pain and shortness of breath. He admitted to three glasses of wine the night before, and the attending doctor attributed his symptoms to alcoholic hepatitis.

63. The plaintiff was also cross-examined at some length about his pre-accident working history. His tax returns showed his taxable income for the years leading up to the accident at the following amounts:

1994-95 $8,211

1995-96 $13,804

1996-97 $27,004

1997-98 $5,443

1998-99 $5,323

1999-00 $17,258

2000-01 $17,028

It is apparent that it was during the 1996-97 year that the plaintiff moved from the status of an employee with group tax deducted (at least for tax purposes) to that of a self-employed person.

64. The plaintiff's evidence when cross-examined was that he did not lodge a tax return for 2001-02: he telephoned someone at the tax office who told him that because of his low income, under $5,000, he was not required to lodge a return. I infer from this that his taxable income for the period from 1 July 2001 to the accident in December 2001 was something less than $5,000.

65. After the accident, there are two recorded instances of attendances at the emergency department at the Canberra Hospital. The first was on 6 July 2002, with the familiar complaint of right upper quadrant pain, following heavy drinking all of the previous day of wine and vodka. The other occasion was on 31 October 2004 with a similar complaint and a history of drinking too much the night before. The plaintiff had been unwilling to quantify the amount he had drunk.

The post-accident medical evidence

66. No doctors were called to give oral evidence, and hence there was no opportunity for explanations as to differences of opinion between them.

67. The Queanbeyan Hospital records include handwritten notes of the plaintiff's attendance on the morning of the accident, which read as follows:

History of hitting his head on metal construction - stood up underneath metal bar and struck head. Dizzy - neck sore - vomiting = nil. On inspecting scalp discovered small stellate wound on crown of head. Not wearing safety hat.

It was noted that there had been no loss of consciousness but there had been bleeding, which had ceased by the time of the examination. The patient complained of left-sided headache. He was given Panadeine and advised to consult his local doctor. Otherwise he was advised to rest at home and given a standard instruction relevant to a history of head injury.

68. The plaintiff saw Dr Rasaratnam on 27 December, a week after the accident, complaining of persistent headache, insomnia, neck pain and shoulder pain, and numbness of the hand. He was referred for a CT brain scan which was normal. The plaintiff returned to see Dr Rasaratnam on 3 January and saw him again on 25 January, 20 February and 22 February. He was then seen on three occasions during March and twice in April and May, and twice in June. This pattern continued at roughly similar intervals up to the hearing.

69. At the end of January 2002, as the complaints of neck pain continued, Dr Rasaratnam referred the plaintiff for an X-ray of the cervical scan and a month later for a CT scan. The latter confirmed osteophytes at the C6 and C7 levels and some narrowing of the central canal at C5-6 and C6-7. Dr Rasaratnam accepted that the plaintiff had had no neck symptoms of significance before the accident and that his pre-existing spondylitic changes in the cervical spine had become symptomatic as a result of it. He referred the plaintiff, as previously mentioned, to Dr Newcombe, after which the plaintiff was seen by a number of specialists, including Dr Cassar, Dr Chandran and Dr Andrews.

70. Dr Rasaratnam reported that the plaintiff had been attending his surgery since 1994 and had had an instance of lower back pain in 1995 but no complaint of neck pain before the 2001 accident.

71. Dr Newcombe saw the plaintiff in March 2002 and recorded complaints of low back pain in addition to the headaches and neck and left arm pain. He referred the plaintiff for an X-ray of the lumbar spine which revealed moderate spondylosis at L3-4 and L4-5, with facet joint osteoarthrosis. MRI of the low back was recommended but not carried out because in Dr Newcombe's view it would be difficult for the plaintiff. Dr Newcombe formed the opinion that the changes in the low back were of long standing but had been aggravated by the accident. In April 2002 Dr Newcombe referred the plaintiff for an MRI of the cervical spine. This confirmed moderate cervical spondylosis with potential compromise of the central core and of the right and left C6 and the left C7 nerve roots.

72. Dr Rasaratnam referred the plaintiff to Dr Chandran, at the suggestion of Dr Cassar, in September 2002. Dr Chandran thought that surgery to the cervical spine might prove beneficial but did not recommend it because of associated risks.

73. In May 2002 Dr Rasaratnam referred the plaintiff to Dr Cassar's multi-disciplinary pain management program which the plaintiff attended over an extended period. The treatment included acupuncture, hydrotherapy and medication. It was ultimately not particularly successful and Dr Cassar in a final report to the plaintiff's solicitors in June 2004 expressed the view that the plaintiff's condition was stable and that he would continue to suffer from his then symptoms in the cervical and lumbar spines permanently. Some relief might be obtained from medication in the form of Tramal, a narcotic pain reliever, and Neurontin, a neuralgic agent, which he would need to take indefinitely. He expressed the opinion that on the balance of probabilities the plaintiff suffered cervical spine injuries in the accident of 20 December 2001, with aggravation of pre-existing degenerative cervical and lumbar spondylosis and sciatica on the left side, and that the plaintiff's continuing complaints were attributable to the injury.

The medico-legal evidence

74. The solicitors for the defendant sent the plaintiff to Dr FH Roldan, a clinical psychologist in Sydney, in October 2002. Dr Roldan took a detailed history and carried out psychological testing. He had been provided with a number of medical and hospital reports. He thought that the history and complaints were inconsistent with any brain injury, and that the described difficulties with memory and concentration were more likely to be associated with the plaintiff's pain levels. The plaintiff scored six out of fifteen on the Rey memory test, which Dr Roldan described as within the range consistent with feigned cognitive incompetence. He did not express the opinion that the plaintiff was feigning the test results but he did say that such a score had been found to be possibly associated with poor motivation - presumably poor motivation to score well in the test, but perhaps poor motivation generally. He concluded that if one were to accept the plaintiff's complaints of severe physical discomfort and restrictions, it would be reasonable to conclude that his psychological symptoms were part of an adjustment disorder with mixed anxiety and depressed mood, reactive to the physical problems. The psychological symptoms were not in themselves disabling: if the plaintiff had no physical difficulties, he would be capable of employment from a psychological perspective. Dr Roldan accepted that the plaintiff's obvious irritability and impatience were apparently reactive to his pain.

75. In March 2003, the plaintiff was seen, also for the purposes of a report to the solicitors for the defendant, by Associate Professor RJ Oakeshott, who has qualifications in surgery and rehabilitation medicine. Professor Oakeshott took a detailed history. He noted that the plaintiff was obese and suffered from diabetes. It does not appear that he was given any history of the plaintiff's alcohol problems. He conducted a physical examination. The plaintiff did not give him the impression of being a person with significant pain or discomfort in any part of the body. He appeared to sit comfortably during the consultation, and to have no problem moving his neck when talking to an interpreter who attended with him. He reacted inappropriately to extremely light skin touch to the neck and low back, describing pain caused by the touching which Professor Oakeshott said was anatomically and physiologically impossible. He thought that the plaintiff was markedly exaggerating his response. He concluded that from the information available to him the injury of December 2001 had been a minor injury. He accepted that the plaintiff had a permanent constitutional degenerative condition of the neck and back and was in a generally deconditioned state, his symptoms being accentuated by his attitude and other non-organic factors. The plaintiff should avoid heavy manual work, heavy lifting, pushing and pulling objects and using his arms in a repetitive fashion. Whilst it is a little unclear from the way Professor Oakeshott expressed his conclusions, I understand his opinion to be that the plaintiff is unfit for the kind of work he was doing before the accident but that his unfitness is not causally related to the injury of 20 December 2001. That is, he take issues with the plaintiff's case on the question of causation rather than the plaintiff's physical condition at the time of the consultation.

76. There is no evidence as to Associate Professor Oakeshott's experience in specific specialist fields of medical and surgical practice. I am unable to infer from his post-nominal letters that he has any particular expertise in neurology or neurosurgery, or specifically in the diagnosis and treatment of head or neck injuries.

77. A few days after he had been seen by Professor Oakeshott, the plaintiff was seen at the request of his own solicitors by Dr OB White, neurologist. He seems to have given Dr White the same history he gave Professor Oakeshott. Dr White also carried out a physical examination. He concluded that the plaintiff appeared to have suffered aggravation of pre-existing cervical spondylosis, and to a lesser degree lumbar spondylosis, as a result of the accident. He thought that low back problems had probably resulted from the plaintiff's changed physical activities rather then any direct effect of the injury at the time. He had extensive degenerative disease and the injury had produced a deterioration in his functional stability. It was unlikely that he would experience amelioration of his pain. Dr White did not believe he would be capable of returning to any kind of work.

78. Dr White reviewed the plaintiff in July 2004. He accepted that the plaintiff had significant pain in the cervical spine region. He accepted that the plaintiff was suffering from lumbar pain which had "no clear new causation on the basis of that injury". The lumbar pain might be related to the plaintiff's changed mobility and to his discomfort in general terms. There might be some cultural element in the plaintiff's perception of and response to pain. There was no likelihood of significant improvement. There was an element of depression and a significant element of anxiety which were related to the organic pain and amplified by cultural factors and by fear that the plaintiff might be expected to return to work, the latter being subconscious. Dr White thought that the plaintiff might respond to an exercise program and that he should continue with analgesic and anti-depressant medication. However, any recovery would be incomplete and might not occur at all.

79. In September 2004 the plaintiff was seen by Dr William Knox, consultant psychiatrist, pursuant to arrangements made by his solicitors. He admitted to abusing alcohol occasionally, when particularly troubled or in pain. He complained of poor concentration and frequent irritability and anger. His self-esteem had dropped and he had lost his identity as a worker. Dr Knox formed the opinion that he met the diagnostic criteria for major depressive disorder of chronic type. His condition was stable and likely to continue indefinitely. A tricyclic anti-depressant drug, Amitriptyline, at low dosage might relieve the pain and improve his sleep to a degree. Dr Knox thought that the depression was largely the consequence of pain and the loss of his role as an active worker. He did not believe that psychiatric or psychological treatment was likely to be of any benefit.

80. The plaintiff was also seen on behalf of the defendant by a Dr Davies and a Dr Fitzsimons. The latter is a neurologist: the speciality of the former does not emerge from the evidence. To the extent that it may be of any weight, I draw the available inference that the evidence of Dr Davies and Dr Fitzsimons would not have assisted the defendant's case.

81. As counsel for the defendant submitted, in evaluating the medical evidence, it is essential to examine assumptions accepted by the expert witnesses as forming the basis for their expressions of opinion. Where an expert's opinion is based upon a set of assumptions which are at odds with what the court finds to be the facts, the opinion may be of little or no assistance. Actions for damages for personal injury are characterised by expressions of opinion by a number of medical experts which are based on different sets of assumptions. Sometimes one set of assumptions will be found by the court to have been factually accurate. More often, the facts when determined by the court turn out to depart, to varying extents, from the assumptions made, so that there is no expert whose opinion was based precisely on assumptions established to be accurate. In addition, it is a regular occurrence for findings of fact to be influenced by evidence (of fact rather than opinion) which emerges from the medical reports. Examples include such things as words spoken by the plaintiff to an expert medical witness who is taking a history, and direct observations made by the expert of the plaintiff. It is, of course, quite impractical for the court to arrive at its findings of fact, and for the facts as found to be put to the experts so that they can be asked whether this causes them to change their opinions in any way.

82. The task of the tribunal of fact becomes somewhat circular when expert opinion evidence is led with a view to influencing the findings of fact which will form the basis of the expert opinion evidence. For example, in the present case, the defendant relies on the opinion of Associate Professor Oakeshott in seeking to persuade me that I should not accept much of the plaintiff's evidence.

Factual findings in relation to the plaintiff

83. As I have said, I generally accept as accurate the records of the plaintiff's medical, ambulance and hospital attendances prior to the accident. To the extent that the factual material emerging from those records was denied by the plaintiff or his wife, I prefer the contemporaneous written records. Thus I accept that the plaintiff had a long history of sporadic binge-drinking, interspersed with regular drinking at a level which could probably be accurately described as moderate to heavy. I accept that this caused chronic liver disease, and led from time to time to his need for an ambulance to take him to hospital for treatment. Whilst there is no evidence of the effect this had on his working capacity, I note and accept the figures set out in his tax returns, and infer that his earning capacity must have been substantially impaired by his drinking during the years leading up to the accident. The other medical conditions from which he suffered from time to time seem to me to have been relatively minor and unlikely to have had any significant or permanent effect on his earning capacity.

84. I accept that whilst the plaintiff was reluctant to accept that he was an alcoholic or needed outside help in coping with his binge drinking, he had made an attempt before the accident to impose some self-discipline with a view to reducing his alcohol intake and the frequency of his bouts of heavy drinking. I find, in particular, that the plaintiff was generally able to work as a manual labourer when called upon. Taking account of his drinking and his obesity, it seems to me very unlikely that he would have been able to work much beyond the age of sixty.

85. I accept that his head injury was of sufficient severity to cause his previously asymptomatic cervical spine to become symptomatic. I accept that the headaches and neck pain have been severe and that their effect has been to prevent him from returning to work as a labourer. Having regard to his age, physical condition and fluency in English, I am satisfied that there is no other work of which he is reasonably capable. I am also satisfied that his complaints of psychological symptoms are for the most part genuine.

86. I prefer the evidence of Dr White to that of Professor Oakeshott. Dr White has seen the plaintiff on two occasions and is a very experienced neurologist with extensive experience in head and neck injuries. Professor Oakeshott's opinion suffers, for me, from the difficulty that he accepts that the plaintiff is physically disabled from working, but does not accept that the injury of December 2001 is to any extent the cause of his disability. There has been no evidence of any later traumatic incident which might be the cause, and Professor Oakeshott does not suggest a cause.

87. Dr White's opinion is supported by Dr Newcombe, a very experienced neurosurgeon, and also by Dr Rasaratnam, who has been the plaintiff's general practitioner for some twelve years and has seen him on many occasions both before and after the accident.

88. As to the plaintiff's psychological symptoms, there is, as I read the reports, no real issue between Dr Knox and Dr Roldan. I would tend to prefer the evidence of Dr Knox as a very experienced psychiatrist, to the extent that there is any disagreement between them. However, both seem to accept that if one assumes that the plaintiff's physical complaints are genuine, then he is suffering from a genuine and permanent psychological condition.

89. I accept Dr White's opinion that the plaintiff's physical condition is permanent, and that he suffers from levels of pain which can be partially but not fully relieved by medication, the pain being of sufficient severity to interfere significantly with his sleep. I accept that secondary to the pain, the plaintiff has developed permanent anxiety and depression, which again may be partially controlled by medication but not completely so.

90. I accept that the plaintiff's earning capacity has been totally destroyed by the accident.

Damages

91. On the basis of those findings I assess general damages for pain and suffering and loss of enjoyment of life at $65,000, of which I apportion $30,000 to the past. I award interest on the past component of $2,500.

92. Treatment expenses are claimed in the sum of $17,150.99 up to the date of hearing. I can reasonably assume that, with general practitioner consultations and medication, this will have increased to $18,000. I accept that some of this amount must relate to treatment for the low back. The plaintiff has not been able to establish to my satisfaction a causative connection between the injury and his low back problems, and I am satisfied that the low back treatment expenses would have been incurred by him in any event. It is not possible to identify particular amounts. Doing the best I can, I propose to reduce the amount claimed by $2,000, and to allow $16,000 for past treatment expenses. The plaintiff has himself paid about $2,000 of this, the balance being unpaid or covered by Medicare. On that $2,000, I allow interest of $500.

93. By way of future treatment expenses, taking account of the plaintiff's age, the lower rate of expenditure in the last year or two, and also the likelihood of some deterioration with advancing years, I allow $10,000.

94. The plaintiff is entitled to damages for loss of earning capacity for the past and for the future. He has not worked since the day after his accident. His earnings for the years leading up to the accident had been variable and, I have no doubt, were affected by his alcohol abuse as well as by variations in the availability of work. Counsel for the plaintiff submitted in address that I should find that he would probably have continued to earn something over $200 a week net, perhaps a little more after a further surgical procedure to repair a hernia. It was submitted that the plaintiff would have worked to about age 60 or perhaps a little beyond, gradually tapering off due to age and his pre-existing medical problems.

95. Counsel for the defendant submitted that I should take a figure based on an average of his good and bad years in the past, of about $150 per week for a period of about five years.

96. The plaintiff was aged 52 at the time of the accident and is now 56. The figures proposed by counsel for the parties lead to a range of about $30,000 to $40,000 for the past. I award $35,000, plus interest of $6,500.

97. In arriving at a figure to compensate the plaintiff for his loss of earning capacity for the future, it is difficult to be precise. There is no doubt that the plaintiff had medical problems quite unrelated to the accident. He was obese and suffering from diabetes. There is no reason to suppose that his alcohol abuse would not have continued, though perhaps at a reduced level as he got older. Concrete labouring work is hard physical work and it was accepted by counsel for both parties that it is not work that many people continue with until the traditional retiring age for white collar workers. It seems to me that the plaintiff would probably have continued to work for about another five years into the future (from the date of judgment), though probably at a reducing rate. The amount calculated must be discounted to arrive at its present value and further reduced to take account of the ordinary vicissitudes of life as well as the particular disadvantages to which the plaintiff was already subject prior to the accident. For future economic loss I award $30,000.

98. Notwithstanding my finding that the plaintiff was an employee at common law, I am satisfied that for tax purposes he was not, so that those employing his services were not obliged to make contributions to a superannuation fund on his behalf. I make no allowance for loss of superannuation benefits.

99. A claim is made for the commercial value of services provided to the plaintiff by his wife, and also for the value of services undertaken by his wife around the house which were previously his province. Understandably, the evidence given by the plaintiff and his wife was in broad and general terms. Whilst the evidence of both was probably a little expansive in this area, I am satisfied that there are many household tasks the plaintiff can no longer cope with, and there must be many things which his wife must do which previously she could have relied upon him to attend to. It is inappropriate to attempt a mathematical approach to the task, and as much is acknowledged by counsel for the plaintiff who seeks a rounded sum for the past and for the future. Counsel for the defendant submits that this component of the claim is not made out at all, but as I have said, I am satisfied that some award should be made.

100. Adopting the conventional hourly rate of about $17, I am satisfied that the satisfaction of the plaintiff's need caused by the accident requires the provision of services for an average of three hours per week, past and future. I allow $10,000 for the past, plus interest of $2,000. For the future, it is inappropriate to base a calculation continuing for the rest of the plaintiff's life: having regard to his other medical problems, such a need would probably have arisen as he got older in any event. I make an allowance for an average of three hours per week for ten years, which again must be discounted to arrive at a present value figure, and further reduced for vicissitudes. For the future I allow $18,000.

101. The total of the individual components is as follows:

General damages:	$65,000
Interest thereon	$2,500
Treatment expenses:
Past	$16,000
Interest thereon	$500
Future	$10,000
Economic loss:
Past	$35,000
Interest thereon	$6,500
Future	$30,000
Griffiths v Kerkemeyer:
Past	$10,000
Interest thereon	$2,000
Future	$18,000
	$195,500

102. Whilst this may appear a substantial award for what seemed at the time to be a relatively minor head injury, I am satisfied that the total properly reflects the effects of the injury and its consequences upon the plaintiff. There will be judgment for the plaintiff for $195,500. I shall hear the parties as to costs.

I certify that the preceding one hundred and two (102) numbered paragraphs are

a true copy of the Reasons for Judgment herein of the Master.

Associate:

Date: 3 February 2006

Counsel for the plaintiff: Mr RL Crowe SC

Solicitors for the plaintiff: Maliganis Edwards Johnson

Counsel for the defendant: Mr GA Stretton

Solicitors for the defendant: Dibbs Barker Gosling

Date of hearing: 26, 27, 28 April 2005

Date of judgment: 3 February 2006