Harrington v Almar Industries Pty Ltd & Anor [2006] ACTSC 51 (29 May 2006)

Last Updated: 9 February 2007

GREGORY MICHAEL HARRINGTON v ALMAR INDUSTRIES PTY LTD & ANOR [2006] ACTSC 51 (29 MAY 2006)

NEGLIGENCE - personal injury - workplace injury - unsafe place and system of work - application of settled principles

DAMAGES - personal injury - injury to vulnerable lumbar spine - impairment of earning capacity - no issue of principle

TNT Australia Pty Ltd v Christie [2003] NSWCA 47

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

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

Podrebersek v Australian Iron and Steel Pty Ltd [1985] HCA 34; (1985) 59 ALR 529

Bankstown Foundry Pty Ltd v Braistina [1986] HCA 20; (1986) 160 CLR 301

Andrikis v The Nominal Defendant (2004) 190 FLR 136

Allianz Australia Insurance Ltd v Insurance Australia Ltd [2006] ACTSC 35

No. SC 305 of 2004

Judge: Master Harper

Supreme Court of the ACT

Date: 29 MAY 2006

IN THE SUPREME COURT OF THE )

) No. SC 305 of 2004

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: GREGORY MICHAEL HARRINGTON

Plaintiff

AND: ALMAR INDUSTRIES PTY LTD

First Defendant

AND: MHS SOLUTIONS PTY LTD

Second Defendant

ORDER

Judge: Master Harper

Date: 29 MAY 2006

Place: Canberra

THE COURT ORDERS THAT:

Judgment be entered for the plaintiff in the sum of $582,000.

1. The plaintiff in this action claims damages for personal injuries which he suffered in two separate incidents during the course of his employment.

2. For tax purposes, the plaintiff was an employee of the second defendant, a labour hire company which provided his services exclusively to the first defendant. The reality is better expressed in a reference dated 17 June 2002, a few weeks before the earlier incident, by Mr Rohan Arnold, managing director of the first defendant, in which he stated that the plaintiff was an employee of the first defendant but was "paid by MHS Solutions Pty Limited, who process our payroll." Although neither defendant admitted employment on the pleadings, counsel for neither defendant submitted in closing addresses that the plaintiff should fail because of any technical issue as to his employment status. There is no question that the non-delegable duty of care owed by an employer to an employee attaches not only to the company which engages the employee in a formal contract of employment, but also to another company which regularly uses the services of that employer for the provision of labour: TNT Australia Pty Ltd v Christie [2003] NSWCA 47 at para 41 per Mason P.

3. Notices claiming contribution has earlier been exchanged between defendants but I was informed during the hearing that they had resolved their differences and agreed on the proportions in which they would contribute to any judgment in the plaintiff's favour.

The plaintiff

4. The plaintiff was born on 9 September 1979 and is now twenty-six. He lives at Yass in New South Wales with his wife and two-year-old son. His father still lives at Bowning, where the plaintiff grew up and attended primary school. His father is employed by Yass Valley Council.

5. After completing year twelve at High School in Yass, the plaintiff undertook an apprenticeship as a boilermaker and welder with Robert Corcoran in Yass. After completing his apprenticeship and obtaining his trade certificate, he left Mr Corcoran, who did not have enough work to keep him on. In the final year of his apprenticeship, he was also employed for about seven months with the first defendant doing casual nightshift work. After working for a short time with a construction company at Murrumbateman, the plaintiff began full-time employment with the first defendant in late May 2002, being confirmed as a permanent employee from 1 July in that year. The first defendant conducts a substantial steel fabrication business at Mitchell in the north of Canberra. The company has about thirty employees, including steelworkers, painters, forklift drivers, truck drivers and clerical staff. The factory in which the plaintiff worked is a very large open steel-framed building with a concrete floor.

The first injury

6. The plaintiff's first work injury occurred on 30 July 2002. He had been sent to a residential construction site at Nicholls with instructions to install a steel beam, about 2.7 metres in length and weighing about 100 kilograms, above a bay window where it would act as a lintel. There was no lifting equipment provided. There were ladders available. The plaintiff's evidence is that he was sent out to the site by Mr Warren Towse, whom he described as his foreman but who was in fact production manager for the first defendant. As soon as he got to the site, the plaintiff realised that the beam was too large and heavy for one man. He said that he went back to the workshop at Mitchell and informed Mr Towse that a crane would be needed to lift the beam into position. Mr Towse refused this request and told the plaintiff to get back to the site and perform the task he had been directed to perform. After some argument, the plaintiff went back to Nicholls, where his earlier view, that he was quite incapable of raising the beam himself, was quickly reinforced. He went back to Mitchell again and spoke to Mr Towse, who agreed to send another employee, Chris Maley, out with the plaintiff. Mr Maley went to the site in the plaintiff's truck and inspected the job. He came to the same view as the plaintiff, and telephoned Mr Towse. He told Mr Towse that it was a crane job and that he and the plaintiff could not handle it on their own. Mr Towse told him that the job was urgent and that crane hire would be too expensive. He directed the employees to attend to the task.

7. Mr Towse drove out to the site himself a little later, assessed the job and, according to the plaintiff, told the men that they had to put the beam into position by the end of the day and that otherwise their employment would be at risk. After some further protestations by the employees, Mr Towse left the site. The plaintiff and Mr Maley decided to try to get the beam up and in position. They moved the beam to the front of the house and set up two ladders to form a rudimentary scaffold. They succeeded in lifting the beam to the top of the ladders, and the next step was for them to get the beam onto their shoulders and to climb the ladders with a view to lifting the beam into position. After some time manoeuvring the beam in this way, the plaintiff's foot slipped off the step of the ladder and he fell to the ground with the weight of one end of the beam still on his shoulder. Immediately he felt pain in his low back. After a short break, the two men resumed and eventually succeeded in their endeavours to lift the beam into position and to bolt it to the structure of the house. They did some further work at the site, and left as it was getting dark.

8. The plaintiff had a bad night and still had a backache the next morning but he went to work and attended to his normal duties. He did not report the incident to his employers and he did not seek any medical treatment. He said that he told his wife on the night of the incident that he had hurt his back but did not talk about it with her again and at no stage told his father about it. He continued to work for another eleven months, until the second accident. His explanation was that he thought that the injury to his back was a temporary one and that he would soon make a complete recovery. This did not happen: his backache continued, though not at a level which caused him to take any time off from the heavy work of a steel welder and fabricator, or indeed from the regular servicing which he was in the habit of undertaking, in relation to his and his wife's motor vehicles. The plaintiff did have a short time off work in late February 2003 when he suffered an eye injury at work. He attended on three consecutive days at the emergency department at Calvary Hospital where small metal fragments were removed from his eye. Perhaps unsurprisingly, there is no reference to back pain in the records of that treatment.

9. It is apparent from clinical notes produced by the plaintiff's general practitioner, Dr Owen Graham of Yass, that he saw the plaintiff on only one occasion between the two work incidents. This was in April 2003 when the plaintiff presented with a skin rash. He did not mention any back problems.

The second injury

10. The second injury occurred on 11 June 2003 in the workshop at Mitchell. The plaintiff's evidence is that he was working on a piece of steel weighing about fifteen kilograms. He carried the piece of steel on his shoulder about twenty metres to a guillotine machine in another part of the shed. He used the machine to cut pieces from the steel. He put the piece of steel down, and walked around the side of the guillotine machine. As he did so, he trod on a metal offcut on the floor. He lost his footing, fell and landed on his tailbone.

11. There was considerable inconsistency between the evidence of the plaintiff and that of Mr Arnold, the managing director of the first defendant, as to the state of the shed generally, and in particular the floor, and also as to the lighting. The roof of the shed appears, from photographs, to be of corrugated iron or similar material, with, about every six or eight metres, a panel the full width of the roof of clear corrugated plastic. Mr Arnold's evidence was that the electric lights are turned on at the beginning of the working day, but once the sun is well up, almost every day these skylights provide enough natural light in the shed and the electric lights are turned off. This generally accorded with the plaintiff's evidence, except that he said that when the lights were turned off it was almost pitch dark in the shed.

12. There was one independent witness on the lighting issue, Dr David McGrath, one of the plaintiff's treating doctors. Dr McGrath is a musculo-skeletal and occupational physician. In November 2003, about five months after the incident, he undertook an appraisal of the worksite at the request of a rehabilitation consultant engaged by the workers' compensation insurer. He was shown over the site by Mr Towse. He reported that the lighting was more than adequate. Unfortunately, his report is silent as to the time of day when he carried out his appraisal. Dr McGrath gave evidence over the telephone but could not remember whether there were electric or fluorescent lights on at the time, or whether the lighting was natural. He had a vague recollection that the light "seemed a bit inadequate".

13. I reject the plaintiff's description of the lighting as almost pitch dark, as not credible. I infer that the purpose of the management in turning the lights off was to reduce expense, but I am not satisfied that any inadequacy of lighting played any part in the plaintiff's fall.

14. The plaintiff also gave evidence, which I think was greatly exaggerated, although probably not deliberately so, about hazards in the workshed. He painted a picture of constant phrenetic activity which included cranes moving in unpredictable directions about the workshed at some speed, a large circular saw which sent small and red-hot metal fragments flying about the work site; and blinding flashes caused by welding equipment. Perhaps inconsistently with this image, his evidence was that at the time of his fall, nearly all the staff were outside enjoying a "smoko" break, and that at most there was only one other person in the shed, a painter who was some considerable distance away. To the extent that any of these matters mentioned by the plaintiff might have been hazardous from time to time, I am satisfied that they played no part in his fall.

15. There was additionally a significant difference between the plaintiff and Mr Arnold as to the cleanliness of the floor of the workshop, and the presence or absence of steel offcuts and other loose pieces of metal. The plaintiff's evidence was that the floor of the workshed was littered with such debris, to the extent that it presented a constant problem in moving about the shed when he needed to do so. The problem was compounded by inadequate and poorly managed storage and stacking of steel beams such that frequently they would jut out across a pathway presenting a hazard at head height. He said that the floor of the workshop had painted yellow lines intended to designate walkways but that these were generally ignored by staff so that a walkway could not be assumed to be clear or safe to walk on. He said that the culture in the factory was that staff were actively discouraged from spending time cleaning up after dropping steel offcuts and other items on the floor, being told by supervisors that there were cleaners employed to attend to that task and that the overriding consideration was to get their tasks completed and the fabricated steel items out of the workshop as quickly as possible. He said that he tried to make a practice of cleaning up after himself, and even of cleaning up after people, but that he had been disciplined for doing so and threatened with the loss of his job if he continued.

16. Mr Arnold's evidence was completely at odds with that of the plaintiff. He said that the company's policy was that all employees were required to clean up their own mess, and where necessary to clean up other mess generally, with a view to ensuring the safety of the workplace. He said that it would be unusual for there to be offcuts and other loose pieces of metal lying about the floor of the workshop.

17. Counsel for the first defendant sought to gain a degree of comfort from the fact that the plaintiff when he commenced employment with the first defendant signed a statement certifying that he had read the company's occupational health and safety policy and employment policy and declared that he understood both of them and agreed to adhere to both policies. The OH&S policy was set out in a three-page document attached to the certificate, also signed by the plaintiff. The plaintiff's oral evidence was that he had no recollection of signing the document though he conceded, somewhat reluctantly, that the documents bore his signature.

18. The policy document is couched in somewhat formal language and is in broad and general terms. I quote by way of example from the document:

The health and safety duties of management at all levels will be detailed, and company procedures for training and backup support should be followed. In fulfilling the objectives of the policy, management is committed to regular consultation with employees to ensure that the policy is operated effectively, and that health and safety issues are regularly reviewed

...[employees] should comply with the safety procedures and directions agreed between management and employees with nominated or elected health and safety functions ...

19. It seems to me inherently unlikely that the plaintiff read the documents in detail. If he did so, he is unlikely to have understood the language. It is clear from the way he expressed himself when giving evidence, and from accident report forms and other forms in evidence which he filled out from time to time, that he is not particularly skilled at expressing himself either orally or in writing. On one form he spelt his own middle name, Michael, incorrectly (Micheal). The documents signed by the plaintiff come across to me as designed to satisfy the employer's legislative obligations rather than to convey information in a meaningful fashion to employees. They contain in any event nothing specific about cleaning up offcuts which may fall to the floor during processing of steel.

20. Mr Arnold's evidence was that he worked in an office away from the workshed, but had occasion to walk through the workshed regularly, sometimes many times a day. He knew what was going on on the factory floor. Mr Warren Towse was production manager at the time and reported to Mr Arnold. Mr Towse was directly responsible for the factory or workshop area. Mr Towse was no longer with the company and had moved to Queensland. Cross-examined, Mr Arnold said that he was aware that Mr Towse had moved to Ashmore in Queensland but did not have his address. He did, however, have his telephone number. (He was also asked about Mr Maley, the fellow employee at the Nicholls site at the time of the 2002 injury. Mr Maley had also left the company and moved, coincidentally, to Queensland. Mr Arnold did not have any contact details for him).

21. Mr Towse, despite having left the company, is a person one would have expected to be in a position to give evidence in support of the first defendant's case, particularly in relation to those issues about which the plaintiff was cross-examined and in relation to which it was put to him that his evidence was exaggerated or false. Mr Arnold's evidence does not provide a satisfactory explanation for his absence. There was no evidence that there had been any attempt on behalf of the first defendant to contact Mr Towse, to take a statement from him or to endeavour to arrange his attendance to give evidence. In the circumstances, it seems to me that the conditions envisaged in Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 are applicable, and I draw the inference that Mr Towse's evidence would not have assisted the case of the first defendant. Whilst that might appear a little unrealistic, I am comfortably satisfied that a forensic decision must have been taken on behalf of the first defendant that any support for the first defendant's case which might have emerged had Mr Towse given oral evidence did not justify the expense of locating him and bringing him to Canberra to give evidence. (I do not draw the same inference in relation to Mr Maley. He was a more junior employee, not identified with management, and it does not seem to me that any such inference would arise in relation to him. He is also likely to have proved much more difficult to locate, and less likely to be prepared to assist).

22. As to the state of the floor in the vicinity of the machine where the plaintiff fell, it seems to me that the reality was probably somewhere between the impressions which arise from the evidence of the plaintiff and of Mr Arnold. I think that the plaintiff greatly exaggerated the messy and dangerous condition of the floor, but I think it also likely that Mr Arnold gave the Court an ideal rather than a practical picture. I accept that there were occasions when there were deadlines to be met and it was more important to finish the job than to stop and clean up. I do not accept that this was constantly the position, but I find that it was not unusual for there to be offcuts and pieces of metal on the floor of the factory constituting a danger to those moving from one area of the floor to another.

Conclusions as to liability

23. In relation to the 2002 incident at Nicholls, I generally accept the plaintiff's evidence. I am satisfied that it was unsafe and dangerous for the employer to require the plaintiff, even with the assistance of Mr Maley, to lift a 2.7 metre steel beam weighing 100 kilograms while climbing and standing on a ladder, in the manner described by the plaintiff. I need not decide whether he lost his footing on the ladder because of the unusually heavy weight he was manoeuvring, though that does seem quite likely. I am far from satisfied that the loss of his footing was due to any carelessness on his own part which might be capable of amounting to contributory negligence. I am satisfied that when he lost his footing he fell to the ground, the severity of his fall being exacerbated by the weight of the beam on his shoulder. The injury was caused by the unsafe place and system of work imposed upon the plaintiff, and both defendants are liable to the plaintiff in respect of it.

24. In relation to the incident on the factory floor in June 2003, I find that the plaintiff lost his footing and fell because he inadvertently stepped on a piece of metal which had been cut from a length of steel by another employee, and left lying on the floor. I find that the safety policy of the company as articulated by Mr Arnold was not always adhered to in practice, and that this was known to superiors of the plaintiff at least of the level of Mr Towse, who as production manager was his immediate superior. Mr Towse must be taken to have had responsibility for implementation of the policy of the company in relation to picking up metal offcuts from the floor and placing them into bins: I accept that on occasions he placed the urgency of completion of tasks on behalf of customers ahead of the safety of employees. Both defendants had a duty of care to the plaintiff as an employee to ensure his safety in the workplace: his fall happened in circumstances amounting to a breach of that duty by both defendants. I am supported in these conclusions by reports in evidence by Ms Marcia Lusted, a physiotherapist and certified professional ergonomist who supplemented her reports in oral evidence.

25. Counsel for both defendants submitted that I should find the plaintiff guilty of a degree of contributory negligence arising from his failure to keep a proper lookout. It was submitted that he should have looked down at the floor to make sure that he was not about to step on a piece of metal.

26. It is clear from the plaintiff's own evidence, though as I have said I found it rather exaggerated, that he was aware that from time to time there would be pieces of metal offcut on the factory floor which might constitute a hazard. I accept his evidence that he had on other occasions stepped inadvertently on pieces of steel. He had not previously lost his footing or fallen. This may well have been because he had previously stepped on offcuts of flat rather than cylindrical steel. In any event, it does not seem to me that he could be found guilty of anything more than momentary inadvertence. It must be remembered that he was working, probably under some time pressure, to complete tasks in a busy factory. His inadvertence was not in my opinion of such an order to amount to contributory negligence: see McLean v Tedman [1984] HCA 60; (1984) 155 CLR 306; Podrebersek v Australian Iron and Steel Pty Ltd [1985] HCA 34; (1985) 59 ALR 529; Bankstown Foundry Pty Ltd v Braistina [1986] HCA 20; (1986) 160 CLR 301.

27. It follows that the plaintiff is entitled to succeed against the defendants in respect of both incidents without reduction.

Medical evidence

28. The plaintiff gave evidence that after his fall, he picked himself up and got himself to an office where he reported his fall to Mr Towse. He then drove himself to Dr Graham's surgery in Yass. Dr Graham was unable to see him immediately. He drove home and rested on his bed, returning to see Dr Owen later on the same day. The doctor took a history and referred him for physiotherapy. He prescribed painkillers and anti-inflammatory medication. The plaintiff did not improve. He saw the physiotherapist on more than twenty occasions, and continued to see Dr Graham regularly. He did not return to his place of employment and has not worked since.

29. Dr Graham referred the plaintiff for an x-ray of the lumbar spine about a week after the accident. This failed to detect any abnormality. A week later, he referred the plaintiff for a CT scan of the lumbar spine which revealed damage at L4-5 and L5-S1, in the form of disc bulges at both levels with the possibility of impingement upon and irritation of nerve roots.

30. In mid-July 2003 Dr Graham referred the plaintiff to Dr David McGrath, whom I mentioned earlier in connection with his appraisal of the first defendant's premises at Mitchell. Dr McGrath initially thought that the plaintiff would recover with a programme of regular exercise. When his progress was not as positive as Dr McGrath hoped, he referred the plaintiff for an MRI scan of the lumbosacral spine. This confirmed the posterior disc bulges at L4-5 and L5-S1, and also showed desiccation of the discs at both those levels, with "high intensity zones" also at both levels. The latter sign, Dr McGrath explained, was strongly associated with a diagnosis of grade four internal disc disruption and was likely to produce pain.

31. Dr McGrath was thus satisfied that there was a sufficient physical explanation for the plaintiff's symptoms. The natural history of the condition was for slow resolution over several years, depending on good care and on avoiding any further significant strains to the spine. Physical treatment was unlikely to improve matters but might help psychologically. Dr McGrath thought that the plaintiff had some psychological symptoms resulting from his pain condition, and noted that he was angry with his employer whom he blamed for the problem. He thought that the plaintiff had probably had some physical trauma in his youth which had left him vulnerable to the injury (the plaintiff in his evidence recalled an incident when he was at school, where he stepped into a pothole while cross-country running. He recalled that Dr Graham had referred him to a chiropractor and that after a couple of sessions with the chiropractor his symptoms had resolved). Dr McGrath acknowledged that there would be problems in finding a suitable job for the plaintiff in light industrial work having regard to his preference for physical activity and dependence on his physical capacity. It was apparent to me during the plaintiff's oral evidence that he is a man whose interests in life tend to the sporting and physical rather than to intellectual or cultural pursuits.

32. Dr McGrath continued to see the plaintiff during the rest of 2003. During this period, the workers' compensation insurer engaged a firm of rehabilitation consultants to assess the plaintiff and attempt to get him back to work. An attempted graduated return-to-work programme with the first defendant, working during restricted hours at light work, did not attract itself to the plaintiff and was not pursued.

33. In November 2003, Dr Graham referred the plaintiff to Dr Michael Biggs, a neurosurgeon in Sydney. After conducting a physical examination and looking at the radiological reports, Dr Biggs concluded that there was no surgery which could assist, and that the plaintiff would need to retrain in order to rejoin the workforce in a role with no lifting at all. Until then he needed physiotherapy and hydrotherapy.

34. At about this time Dr Graham sent the plaintiff to see Dr Alastair Taylor, who had seen the plaintiff previously about a foreign body in his right index finger, quite unrelated to the incidents the subject of this action. Dr Taylor carried out surgery which, the plaintiff says, was completely successful and has left him without any after-effects.

35. Early in 2004, the plaintiff developed Bell's Palsy, for which Dr Graham referred him to Dr Colin Andrews, neurologist. This was unrelated to his injuries and appears to have recovered spontaneously after a few weeks.

36. In mid-May 2004, the plaintiff received a letter from the second defendant formally terminating his employment. He had been, and remains, on workers' compensation benefits, although according to his evidence there was some delay in commencing payments.

37. During 2004 the plaintiff put on about twenty kilograms in weight, but by the time of trial had succeeded in reducing his weight to about its pre-accident level.

38. From late 2004, he engaged in hydrotherapy at Gold Creek Health Club at Nicholls, in a heated pool with some supervision. He found this enjoyable and beneficial. He could afford to do it only because the workers' compensation insurer paid for it. After some time, the insurer informed him that it would not pay for this programme any further, and the plaintiff did not continue with it. He was disappointed about this and would like to have done so. His evidence is that if as a result of this judgment he is able to afford such a programme, he will resume it.

39. During 2004 and 2005, the rehabilitation consultants continued with their efforts to try to get the plaintiff back into the workforce but without any success. The plaintiff himself applied for jobs from time to time, including, in December 2005, one which he thought would suit him well, a position as transfer station operator with Yass Valley Council. His application was unsuccessful.

40. His evidence was that when interviewed for a job, he disclosed his back injury, believing that it was important that he be honest with a prospective employer. His evidence was that he was counselled against this by his case manager, an employee of the workers' compensation insurer. It is, of course, common experience that, given a choice, many employers will avoid taking on a new employee known to have disabilities resulting from injury.

41. In July 2005, Dr Graham sent the plaintiff to see Dr Justin Pik, a Canberra neurosurgeon. Dr Pik thought that surgery might be of assistance and recommended a lumbar discogram as a preliminary investigation. The plaintiff did not pursue this recommendation.

42. The plaintiff was referred for assessment to a pain management clinic conducted by Dr E J Cassar in Canberra. There was no report from Dr Cassar in evidence. He referred the plaintiff to Mr Marshall O'Brien, a psychologist and counsellor. Mr O'Brien found the plaintiff highly reactive to stress, which exacerbated his physical symptoms. The results also revealed a lack of sophistication and a lack of projection of a positive self-image. Mr O'Brien thought that the plaintiff would benefit from a course of three sessions of pain management training. This has not taken place but the plaintiff may pursue it if he can afford to do so following this judgment. Neither Mr O'Brien nor Dr William Knox, psychiatrist, who reported to the plaintiff's solicitors, suggested that the plaintiff suffered from any recognised psychological disorder.

43. Over the last few months, the plaintiff has undertaken and completed a course in responsible service of alcohol and responsible gambling, with a view to obtaining work in the hospitality industry, preferably at one of the clubs in Yass. His evidence is that he engages in an exercise programme at home including walking, cycling, using a gymnastic walking machine and lifting light weights. To control his pain he needs to take an average of two to three Panadeine Forte tablets a day. This medication tends to cause him constipation.

44. The plaintiff has been seen by a number of doctors for the purpose of reports for this case. Dr P Endrey-Walder has fellowships in surgery and describes himself as a Workers' Compensation Commission approved medical specialist for assessment of permanent impairment. He saw the plaintiff in January 2004 at the request of his solicitors. He accepted that the plaintiff suffered some injury to his lumbar spine in the Nicholls injury in July 2002, and that he remained symptomatic, with frequent aggravations at the workplace, until the second accident. His opinion was that the plaintiff did not suffer from any back pathology of consequence prior to those incidents, and that the damage to his discs at L4-5 and L5-S1 would have to be considered a result of the injuries in the course of his employment. The plaintiff would benefit from a concentrated pain management programme, taking about six months, at a cost of $3,000 to $4,000, with input from a psychologist. He would never again be able to work full-time as a boilermaker but should eventually be able to undertake light work, perhaps as a process worker. Surgery was not currently recommended but might come to pass in the future, at a cost of about $15,000.

45. Reports were in evidence from three specialists who saw the plaintiff at the request of the defendants. Dr W M Wearne, orthopaedic surgeon, saw the plaintiff in December 2004. He accepted the history of the two injuries and noted the radiological evidence of damage to the two discs. There was an almost total lack of clinical findings notwithstanding what Dr Wearne described as "the behaviour of this agitated and angry young man". He had a normal range of movement and no evidence of any neurological deficit in the legs. Dr Wearne accepted that he was probably experiencing some low back pain but thought from the contrast between his complaints and the paucity of clinical signs that there was some functional involvement. He expressed the opinion that the plaintiff might never be able to undertake work involving repetitive heavy lifting and bending, but that he was capable of commencing a graduated return to light to moderate work and training for some alternative type of employment. He should not be required to lift loads of more than ten kilograms. He would require rehabilitation in the form of retraining. I do not take Dr Wearne to be suggesting that the plaintiff is in any sense a malingerer: rather, that his functional reaction to his injuries is a genuine one but is psychologically rather than physically based.

46. Dr Gordon Stuart, neurosurgeon, also saw the plaintiff in December 2004. He thought that the low back pain and left-sided sciatica were genuine and due to degenerative disease of the lumbosacral spine aggravated by workplace injury. He noted a variety of symptoms in a distribution which could not be anatomically related to a low back injury, and thought that the plaintiff had developed a chronic pain syndrome. Any aggravations of the injuries of 2002 and 2003 should, in his opinion, have resolved. He considered the plaintiff a candidate for review at a multi-disciplinary clinic for pain management techniques, a review of analgesic requirements, and commencement of rehabilitation accompanied by an active exercise programme. He thought that the plaintiff was capable of progressing towards resumption of full duties. He accepted that the plaintiff had a decreased ability to perform household duties, gardening and lawn mowing. Prognosis in the short term was poor and in the long term was uncertain. As with Dr Wearne, I do not take Dr Stuart to be accusing the plaintiff of malingering. I read his report as accepting that the injuries have been instrumental in the development of the plaintiff's chronic pain syndrome.

47. Dr Anthony Smith, orthopaedic surgeon, saw the plaintiff in January 2005. Dr Smith came to a different conclusion from all of the other specialists who had seen the plaintiff. He diagnosed the plaintiff as suffering from Scheuermann's Disease. This is a disease which commonly affects adolescent males. It can occur without symptoms at all, and most who develop it eventually make a spontaneous recovery. Dr Smith does not accept that any of the plaintiff's symptomatology is causally related to either of the work injuries of which he complains. Whilst I accept that the plaintiff may have had evidence of Scheuermann's Disease as a teenager, I cannot accept Dr Smith's opinion that the injuries, in particular the injury of 2003, have nothing to do with his symptoms. The coincidence between the date of the second incident and the onset of his symptoms in the absence of any causal connection would strain credulity too far. Where Dr Smith's opinion departs from the opinions upon which the other treating and assessing specialists generally agree, I prefer their opinions and reject that of Dr Smith.

Damages

48. The combined effect of the two injuries has been devastating for the plaintiff and calls for a significant award of general damages. The earlier injury was minor by comparison with the later one. Nevertheless the plaintiff suffered for about a year from a niggling backache which contrary to his expectations did not improve. Primarily for the calculation of interest, it is desirable for me to apportion the plaintiff's general damages into three components: the period from the first to the second injury; the period from the second injury to date; and the future. Acknowledging that the symptoms of the first injury were not sufficiently severe to lead to any need for medical treatment or time off work, and were generally controlled by medication available from the chemist without prescription, I apportion $10,000 as the component to cover the first period.

49. Since the second accident, the plaintiff's life has been completely changed. He has been unable to work. He has been generally unable to attend to the heavier tasks around the house and garden. He has been unable to engage in any physical, recreational or sporting activities. He has been in constant pain, relieved but not removed by medication. In addition to the back pain he has suffered from neck pain and headaches which may be secondary to a chronic pain syndrome but which are undoubtedly causally related to the injuries. His sleep has been interfered with and he has had to take anti-depressant medication to deal with this. He has regularly suffered from constipation caused by his medication, in particular Panadeine Forte. Most of the therapy prescribed for him has been of little help, the exception being hydrotherapy which seems to have been of considerable benefit but which he could not afford to continue. He has experienced problems in lifting his young son and on at least one occasion dropped him because of back pain. He has become moody and short-tempered. His previously active sexual relationship with his wife has been greatly reduced. His attempts to find work have been unsuccessful and this has caused him considerable frustration.

50. There is some hope on the medical evidence for continuing improvement over time but I am satisfied that the plaintiff will suffer permanently from a degree of low back pain and will never get back to heavy work involving lifting and bending. This means that he will be unable to return to the occupation for which he spent four years qualifying through apprenticeship and technical college examination.

51. For general damages from the date of the second injury, I award $70,000, half of which I apportion to the past and half to the future. There will thus be a total award of $80,000 by way of general damages. The past components attract interest for which I allow $4,000.

52. In respect of treatment and other out-of-pocket expenses, the workers' compensation insurer had paid up to 5 May 2006 a total of $34,535.30. In addition, the plaintiff has claimed about $1,000 on Medicare, which he will be obliged to refund to the Health Insurance Commission. He has also been put to expense, as I have mentioned, for non-prescription medication. I allow $36,000 in all, for past expenses. This takes account of a small component for interest on the amount the plaintiff has paid out of his own pocket, and expenses since 5 May.

53. According to the schedule of payments made by the workers' compensation insurer up to 5 May 2006, the insurer has paid rehabilitation expenses of $9,164.66. The plaintiff does not claim this amount as part of his damages, no doubt for the reasons which I articulated in Andrikis v The Nominal Defendant (2004) 190 FLR 136, recently endorsed by Gray J in Allianz Australia Insurance Ltd v Insurance Australia Ltd [2006] ACTSC 35.

54. In arriving at a figure for future treatment expenses, it is necessary for me to take account of the degree of likelihood that the plaintiff will elect to spend part of his damages on further rehabilitation services. I think on balance that this is somewhat unlikely but I make some allowance for the possibility. I think it highly likely that he will decide to spend some money on hydrotherapy. I must make some allowance for the possibility, which I regard as low, that he will eventually come to surgery. He will need to see his general practitioner perhaps half a dozen times a year for general monitoring and repeat prescriptions, and he will incur continuing chemist expenses. I also take account of the fact that he may need to see specialists in the future, and that this is likely to require travel from Yass to Canberra. I must also take into account that the plaintiff is now only twenty-six years of age and has a life expectancy of almost sixty years. Taking all of these factors into account, I allow $25,000 for future treatment expenses.

55. In respect of past economic loss, I note that the plaintiff had received, up to 28 April 2006, periodical payments of workers' compensation in a gross amount of $102,257.42, covering the entire period from the date of the second injury. The defendants concede that, assuming that the plaintiff had continued to earn income at the same rate as his average rate during the year ending 30 June 2003, his past net loss would have been $101,068. Counsel for the second defendant submitted that I should reduce this amount by ten percent to take account of the vicissitudes of life and the fact that the plaintiff would have had to take time off work in any event because of his Bell's Palsy and his hand surgery. I am not satisfied that so large a reduction is justified. The plaintiff's evidence is that he would not have had the hand surgery if he had had to take time off work and lose income. If he had not been injured, he would have had the usual entitlements to sick leave which would probably have been enough to cover his absences. Any reduction for vicissitudes is effectively set off by the likelihood that his earnings would have increased over the last three years. His master during his apprenticeship, Mr Corcoran, gave evidence that he employs a welder of about the plaintiff's experience on a present gross annual salary of $50,000. I am satisfied that an award of $100,000 is warranted in respect of past loss of earnings. Most of this has been covered by workers' compensation, but there is a differential of about $17,000 between the net compensation received and the full loss. The plaintiff is entitled to interest of $2,000 on this differential.

56. In relation to future economic loss, I accept that, were it not for his injuries, the plaintiff would now be capable of earning $50,000 a year before tax. After tax and Medicare levy, at present tax rates this represents $732.26 net per week. Tax in future years may be expected to reduce, thus increasing the net weekly rate, although it must be recognised that tax rates change from time to time and that the rates announced by the Treasurer on budget night earlier this month will not necessarily remain in place indefinitely.

57. Counsel for the plaintiff submits that I should calculate the plaintiff's loss of earning capacity for the future on the assumption that if it were not for the injuries he would have worked to age sixty-five. Counsel for the defendants submit with some force that the plaintiff already had a vulnerable back prior to the injuries and that it would have been very unlikely that he could have continued indefinitely in an occupation requiring the heavy work of a steel fabricator and welder. Dr McGrath accepted in cross-examination that the plaintiff may not have got past the age of about forty in heavy steel fabrication work, having regard to the radiological evidence of the state of his spine prior to the injuries. From general experience it seems to me that it is more reasonable to take age sixty as the likely retiring age for a worker in such a heavy occupation, rather than sixty-five. As a point of reference, the present value of a loss of $732.26 per week in respect of a man aged twenty-six to age sixty, applying a discount rate of three percent, is almost $800,000, which may be seen as the upper limit of the value of his notional pre-injury earning capacity. Counsel for the plaintiff in his closing address submitted that an appropriate figure for future economic loss would fall within a range of $300,000 to $350,000, though without adopting a mathematical approach to arrive at those figures.

58. It was put to the plaintiff during cross-examination that his prospects of obtaining work within his capacity would be enhanced if he were prepared to move from Yass. I am not persuaded that this is a reasonable expectation. The plaintiff's family live in the Yass area. His father, at Bowning, has provided considerable physical assistance around the house and, I have no doubt, much moral and psychological support. The plaintiff's wife also has her family in Yass. The couple have a young son with significant health problems which raise, I gathered from the evidence, doubts about his life expectancy. He will never be able to walk. It seems to me that the plaintiff and his wife reasonably need the support of their extended family which is available to them in Yass. Subject to a mortgage, they own their modest home. House and land prices elsewhere, for example in Canberra, are very much higher than in Yass. The plaintiff sees himself as a country man. He has neither the desire nor the confidence to live in a large population centre.

59. On the other hand, the plaintiff is not the kind of man who would accept unemployment for the rest of his life. He has worked hard since he left school, and has been regarded by his employers as a reliable and hard working man. I have no doubt that he will make efforts, within his capacity and as his physical condition improves over time, to qualify for re-entry to the workforce. I am sure that he will in due course find work within his capacity. At times he may have to settle for part-time rather than full-time work. He is probably more vulnerable to downturns in the economy than would be the case if he had not been injured, and he may be more susceptible to periods in the future when he will be out of work. Counsel for the second defendant submitted that his damages for future economic loss should be calculated on an assumption that he would be out of the workforce for two to three years, and that thereafter it was appropriate to award what counsel described as a modest buffer for reduced employability. The figure posited by counsel was $188,200. The defendants led no evidence of the availability of any employment for which the plaintiff would be suited.

60. In the assessment of a figure for loss of earning capacity for the future in a case of this kind, it is neither possible nor appropriate to attempt any degree of mathematical precision. One can do no more than arrive at a general figure which takes account of the factual position at the date of assessment, and the many imponderables in the future. It seems to me that a fair figure to compensate the plaintiff for future economic loss is $250,000.

61. There was general agreement between counsel that the amount awarded for loss of superannuation benefits should be about nine percent of the amounts awarded for economic loss. I award $9,000 for the past and $22,500 for the future.

62. The plaintiff is entitled to recover an amount equivalent to the tax he has paid on his workers' compensation, which he is nevertheless required to repay to the insurer. In that respect I allow $22,000.

63. A large claim has been mounted by the plaintiff's solicitors for the value of services provided by family members, in particular his wife and his father, mostly relating to activities which the plaintiff would have been expected to carry out himself if he had not been injured. These included cutting and carting firewood, gardening including the establishment of the garden, servicing of motor vehicles, painting and housework. I thought that the plaintiff's father's evidence was a little expansive; his wife was, I thought, more realistic. I allow $10,000 for the past Griffiths v Kerkemeyer component plus $1,500 for interest. For the future I allow $20,000.

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

General Damages:		$80,000.00
	- interest	$4,000.00
Out-of-pocket expenses	- past	$36,000.00
	- future	$25,000.00
Loss of earning capacity:	- past	$100,000.00
	- interest	$2,000.00
	- future	$250,000.00
Loss of superannuation benefits	- past	$9,000.00
	- future	$22,500.00
Fox v Wood		$22,000.00
Griffiths v Kerkemeyer:	- past	$10,000.00
	- interest	$1,500.00
	- future	$20,000.00
		$582,000.00

65. This amount appears to me to represent a proper reflection of the impact of the plaintiff's injuries upon him, and to serve the purpose of placing him, as far as money can do, in the position he would have been in if he had not been injured. There will be judgment for the plaintiff for $582,000. I shall hear the parties as to costs.

I certify that the preceding sixty-five (65) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master.

Associate:

Date: 29 May 2006

Counsel for the plaintiff: Mr F J Purnell SC

Solicitors for the plaintiff: Blumers

Counsel for the first defendant: Mr L V Gyles

Solicitors for the first defendant: Moray & Agnew

Counsel for the second defendant: Mr R L Crowe SC

Solicitors for the second defendant: Sparke Helmore

Date of hearing: 15, 16, 17, 18 May 2006

Date of judgment: 29 May 2006