Acir v Frosster Pty Ltd
[2009] VSC 454
•7 October 2009
| Do Not Send for Reporting | ||
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
No. 10314 of 2008
| CEMAL ACIR | Plaintiff |
| v | |
| FROSSTER PTY LTD (ACN 006 925 346) | Defendant |
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JUDGE: | FORREST J | |
WHERE HELD: | Melbourne | |
DATES OF HEARING: | 4, 5, 6, 8, 12 & 25 May; 14 & 15 July; 11 & 12 August 2009 | |
DATE OF JUDGMENT: | 7 October 2009 | |
CASE MAY BE CITED AS: | Acir v Frosster Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2009] VSC 454 | |
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NEGLIGENCE – Industrial accident – Negligence – Whether statutory duty pursuant to Manual Handling Regulations – Breach of statutory duty – Contributory negligence - Damages – Causation – Supervening event between injury and trial - Relationship between effects of workplace accident and plaintiff’s cirrhosis of liver – Whether subsequent shoulder injury at work related to subject back injury - Serious injury under Accident Compensation Act 1985 (Vic) – Determination of “without injury” earnings pursuant to s 134AB(38)(f) of the Accident Compensation Act 1985 (Vic).
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P. Jewell SC with Mr M. Ruddle | Clarke, Toop & Taylor |
| For the Defendant | Mr G. Lewis SC with Ms F. Ellis | Thomson Playford Cutlers |
HIS HONOUR:
Introduction
The plaintiff, Mr Cemal Acir, is gravely ill as a result of end stage cirrhosis of the liver. Absent a liver transplant, he will die within two years. Mr Acir sues his employer, Frosster Pty Ltd, in negligence for, he contends, causing him two discrete injuries, one to his back in January 2005 and one to his right shoulder which manifested itself in March/April 2006. He also argues that, by reason of his excessive consumption of alcohol, caused by the effects of one, or both of the injuries, his underlying cirrhotic liver condition was accelerated or aggravated and rendered symptomatic.
Mr Acir was given leave by an Associate Justice of this Court on 19 January 2009 to bring this claim as permitted by s 135BA of the Accident Compensation Act 1985 (Vic) (“the Act”).[1] At the commencement of the trial, I determined that the matter be heard without a jury and the question of serious injury be determined at the same time as the trial of liability and quantum.[2]
[1]Section 135BA(6) requires a determination of serious injury within the meaning of s 134AB(38) to be made prior to “recovery of damages”.
[2] [2009] VSC 173
I am required to decide whether the injuries sustained by Mr Acir in the course of his employment with Frosster gave rise to a serious injury within the meaning of s 134AB(38) of the Act. If one or both did, the next issue is whether such injury or injuries arose as a result of Frosster’s negligence. If that question is answered affirmatively, then Mr Acir’s damages are to be assessed in accordance with s 134AB of the Act.
The issues
Mr Acir argues that on 19 January 2005, in the course of his employment as a truck driver, he was required by Frosster to remove a crate from the box[3] truck to fill an order placed by a customer. In doing so, he suffered a significant injury to his back (“the January accident”). He contends that the system of work was unsafe, and that he was not trained or appropriately instructed as to the way in which to carry out the task. He also asserts that Frosster was in breach of the manual handling regulations, and breached its statutory duty.
[3]“Box” refers to the metal and sheet frame that encloses and sits on the tray of the truck as is typical of the fit-out on the rear of goods trucks. When I refer to the rear of the box, I mean the area close to the rear doors and the front refers to the area directly behind the cabin and located to the left of the passenger side door of the box.
Frosster maintains that it was not in breach of any common law duty. It disputes the existence of a statutory duty. Further, if it was in breach of any such duty, then it says that Mr Acir’s damages should be reduced on account of his contributory negligence.
It was not in issue that Mr Acir suffered an injury to his back. What was hotly in issue were the consequences of that injury and, particularly, whether it could be said to have contributed to the symptomatic liver condition, as well as the nature and extent of the back injury.
It is alleged that the further injury sustained by Mr Acir was to his right shoulder as a result of carrying out light duties after his return to work. Mr Acir contends that between May 2005 and May 2006, he was required to use a hook type device to pull down empty pallets which were stored at some height at Frosster’s warehouse. This placed pressure on his arm and it is said ultimately resulted in the development of an “in substance” tear of the rotator cuff. Mr Acir says that removing the pallets in this way constituted an unsafe system of work. Alternatively he says that it was caused by the January accident which resulted in him carrying out this work which led, in turn, to the shoulder injury. Frosster argues that the work was light and no breach of duty has been established. Further, it says that the shoulder condition is related to Mr Acir’s underlying diabetes and not the work process.
The issue of the relationship between the back injury and Mr Acir’s liver condition is important to both the question of serious injury and the assessment of damages. If the injury has materially contributed to Mr Acir’s liver condition by reason of the excessive consumption of alcohol as a response to the symptoms, then it is argued that it has produced causally related consequences in the form of the liver damage both for the purpose of the serious injury determination and the assessment of damages. On the other hand, if Mr Acir does not establish that his liver condition is related to the back injury, then it is an independent intervening event that circumscribes his damages claim, and may affect the determination of whether he has sustained serious injury within the meaning of s 134AB of the Act.
One other issue emerged midway through the trial. Mr Acir’s lawyers had thought that Mr Acir had been placed on a waiting list at the Austin Hospital for a liver transplant. When Dr Gow, consultant gastroenterologist and hepatologist and physician in charge of the liver transplant team at the Austin Hospital, was called, it became apparent that Mr Acir was not on such a list and that he was awaiting a determination by the psychiatric unit at the Austin Hospital as to whether he was fit to be placed on the list. The trial was adjourned so the position could be clarified. Dr Gow subsequently reported that, on 17 July 2009, Mr Acir had been placed on the list.[4]
[4] Exhibit P35.
The trial
Mr Acir, his wife Selma and son Bercil gave evidence viva voce. Mr Acir’s general practitioner Dr Munir, his orthopaedic surgeon Mr Chris Haw, and gastroenterologist Dr Gow each provided reports and gave evidence viva voce. Reports of medico-legal specialists Mr Schofield, an orthopaedic surgeon, and Dr Wall, a consultant gastroenterologist, were tendered and their deponents cross-examined. Psychiatrists Dr Kwong and Dr Epstein both gave evidence viva voce and their reports were tendered. In addition, the reports of the following medical and para-medical practitioners were tendered:
(a) Dr Testro.[5]
[5] Exhibit P12.
(b) Dr Clough.[6]
[6] Exhibit P13.
(c) Dr Sewell.[7]
[7] Exhibit P14.
(d) Dr Linton.[8]
[8] Exhibit P16.
(e) Dr Kanapathipillai.[9]
[9] Exhibit P17.
(f) Mr J. O’Brien.[10]
[10] Exhibit P23.
(g) Mr Takyar.[11]
[11] Exhibit P15.
(h) Dr Horsley.[12]
[12] Exhibit P24.
(i) Mr Jones.[13]
[13] Exhibit P25.
(j) Dr Colman.[14]
[14] Exhibit P26.
(k) Ms Durmaz.[15]
[15] Exhibit P22.
(l) Dr Goonetilleke.[16]
(m) Ms Parrett-Abrahams.[17]
Their authors were not required for cross-examination.
[16] Exhibit P28.
[17] Exhibit P29.
A report of a Mr Dohrmann, engineer and ergonomist, was tendered. Mr Dohrmann was not required for cross-examination. Several reports containing calculations and opinions relevant to economic loss were also tendered.
Frosster called Mr Caligari, an inquiry agent, Ms Kanaan a drug and alcohol counsellor, and two witnesses employed by Frosster in 2005 and 2006, Mr Peter Comfort and Mr Victor Marangos. Frosster also tendered medico-legal reports of Dr Wyatt,[18] Dr Lloyd[19] and Dr Chamberlain.[20]
[18] Exhibit D4.
[19] Exhibit D5.
[20] Exhibit D6.
Background to the claim
The following summary of facts is, I think, uncontroversial. If there is any issue this constitutes my findings.
Mr Acir was born on 1 January 1968 and is married with two children aged 21 and 16. He had limited high school education in Turkey and, in 1986, immigrated to Australia.
Mr Acir initially worked for six years at Ford as a process worker and then took a retrenchment package in 1992.[21] Later that year, after a holiday in Turkey, he commenced work as a taxi driver, ultimately owning his own taxi and contracting other drivers to drive his vehicle.
[21] T60.
In November 1995, Mr Acir was diagnosed as a Type 2 diabetic and prescribed medication and recommended alterations to his diet. He was treated by his local general practitioner and referred to a gastroenterologist, Dr Taft.[22]
[22] T249-T250.
The taxi venture proved unprofitable. In 1997 Mr Acir was involved in an altercation at the Melbourne Airport and decided to give up taxi driving.[23] He was then unemployed for a lengthy period, but engaged in some courses to improve his English and his computer skills. In 2002, he obtained work with East Street Upholstery as a truck driver and worked part-time with that company until early 2004. Towards the end of that period, he obtained his rigid truck licence, which enabled him to drive a variety of different heavy vehicles.[24]
[23] T76.
[24] T64.
Prior to 2004, Mr Acir’s general health appears to have been good; he saw his local general practitioner, Dr Munir, on a few occasions in relation to his diabetic condition.[25] Dr Munir said that he did not notice anything untoward in relation to Mr Acir’s consumption of alcohol during this period.[26]
[25] T237.
[26] T239.
In April 2004, Mr Acir obtained employment with Frosster as a truck driver.[27] In October 2004, after an altercation away from work, he damaged his patella and was off work for nine weeks.[28]
[27] T64.
[28] T67.
Mr Acir resumed work in December 2004 with Frosster. Then, on 19 January 2005, whilst engaged in the “Brunswick run”, he sustained the injury to his back. He saw a doctor at a local clinic the next day, and went to the Royal Melbourne Hospital on the weekend.
Mr Acir went back to work in May 2005 on a limited return to work programme. He carried out light duties, which increased from four hours per day, three days a week[29] to six hours per day, five days per week.[30]
[29] T101-102.
[30] T104.
On 5 August 2005, after working a half day at Frosster, Mr Acir drove to Mildura. A licensed inquiry agent, Mr Caligari, followed him on that trip and video of some aspects of it was tendered.[31]
[31] Exhibit D3.
On 19 August 2005, Mr Acir saw Mr Chris Haw on a referral from Dr Munir. Mr Haw continued to manage his orthopaedic condition up to 18 July 2007.
Mr Acir’s psychological condition was managed by Ms Semra Durmaz, a Turkish speaking psychologist who first saw him on 3 January 2006 and has seen him many times since.
In February 2006, liver function tests arranged by Dr Munir revealed a severe abnormal liver function, and Dr Munir noted that Mr Acir’s diabetes control was “not the best”.[32] In April 2006, Mr Acir attended Moreland Hall for treatment for his alcohol consumption.[33] He initially saw Ms Dianne Kanaan, a drug and alcohol counsellor.[34]
[32] T238.
[33] T110.
[34] T507, Exhibit D8.
Mr Acir’s right shoulder problems commenced in late March 2006 whilst working on light duties.[35] He finished work with Frosster on 31 May 2006 and has not worked since.
[35] T107.
Between March and November 2006, he and his wife separated after Mr Acir became verbally abusive toward family members. His wife took out an intervention order and went to live, with the children, at her mother’s house.[36]
[36] T272-273.
On 4 August 2006, Dr Munir certified Mr Acir as fit to work as a taxi driver.[37]
[37] T244, 246, Exhibit D2.
On 24 October 2006, Mr Haw manipulated Mr Acir’s right shoulder under anaesthetic.
During 2007, Mr Acir was referred to Ms Kwong, psychiatrist, for treatment and she saw him on nine occasions between 8 February and 16 July. In June, Ms Kwong increased his medication from one to two anti-depressant tablets per day.[38]
[38] T397-T398.
In May 2007, Mr Acir was referred to the Austin Hospital.[39] By October 2007, when his treatment was managed by the Gastroenterology Clinic, Mr Acir underwent an operation to remove his gall bladder. Since then, he has continued to have regular build-ups of fluid in his stomach which requires fluid tapping on a monthly basis.[40]
[39] Exhibit P28.
[40] T115.
In early December 2007, Mr Acir was seen by Dr Testro, a gastroenterologist at the hepatitis clinic at the Austin Hospital. He noted that Mr Acir was a type 2 diabetic with hypertension and hypercholesterolaemia. At that time, he had significant muscle wasting.[41]
[41] Exhibit P12.
Mr Acir has continued to be managed at a general practitioner level by Dr Munir[42] and Ms Durmaz, the psychologist. Since April 2008, his liver condition has been managed by Dr Gow at the Austin Hospital.[43] As I have said, he was, in July of this year, placed on the liver transplant waiting list.
[42] T106.
[43] T334.
The credit of Mr Acir
Counsel for Mr Acir and for Frosster devoted considerable time to the issue of Mr Acir’s credit. It was conceded by Mr Acir’s counsel (as it had to be) that there were inconsistencies and contradictions in his client’s evidence.
It suffices to say that I have formed the clear impression that Mr Acir was prone to exaggeration and denial wherever he perceived that such an approach would assist his claim. The following illustrate this tendency:
(a) Inconsistencies in his sworn evidence of his drinking habits before and after the back injury;
(b) Inconsistencies between his sworn evidence and other out of court statements as to his drinking habits before the back injury;
(c) His false description of a trip to Mildura on 5 August 2005 after he had finished a half-day’s work;
(e) His recollection of the events surrounding his two drunk and disorderly charges in 1991 and 1994;
(d) His evidence relating to when he actually ceased consuming alcohol.
I have set out subsequently and in greater detail my reasons in relation to each of these matters.[44]
[44] See [102] [117]
However, I did not regard the taxi cab licence application lodged in August 2006[45] as being relevant to Mr Acir’s credit. He did not complete the form – Dr Munir did, and it reflects adversely on Dr Munir’s credit. The form completed by the doctor certified Mr Acir as fit to work as a taxi driver – at the same time as he asserted that he was “unfit for any work” for workers compensation purposes.[46] I have accordingly treated Dr Munir’s opinions with some reservations.
[45] Exhibit D2.
[46] Exhibit P2 – Report of 2 August 2006.
In matters where Mr Acir’s credit is in issue, it is necessary to look for other evidence which may support his account. An example of this is his account of sustaining injury whilst working on the back of the truck. I accept that he suffered such injury and generally (at least as to the immediate events of the accident) in the circumstances he describes. On the other hand, where there is a conflict between his evidence and that of another witness, I have, generally, preferred the evidence of the other witness.[47] For instance, on the issue of contributory negligence I have preferred Mr Comfort’s account of the configuration of the crates in the box of the truck.
[47] The evidence of the two Frosster employees, Mr Marangos and Mr Comfort.
Mr Acir’s employment with Frosster
Duties
Frosster provides goods delivery services throughout the Melbourne metropolitan area. Mr Acir was engaged as a driver and his job was to deliver milk products to retail outlets. A driver was allocated a particular run (e.g. Brunswick, Melbourne, South Melbourne) with a number of regular customers along the route.[48] Mr Acir worked nightshift, six days per week, including Saturdays, commencing at 11.30pm and finishing at about 9.30 or 10.00am the next morning. He was required to load an Isuzu truck at the Campbellfield depot with milk products stored in crates. The crates were stacked upon each other up to about five high and positioned throughout the box. The driver would usually have a manifest of orders provided to him at the depot which had to be filled and then delivered to the customers. In addition, there were verbal orders placed by customers during the course of the particular run which were filled by the driver, where possible, from products stored in crates in the box.
[48] T65-66.
The uncontested evidence was that the milk products were within both plastic containers and cartons, and were loaded into plastic crates.[49] A maximum of 18 litres could be accommodated in a crate (6 x 3 litre containers), which had a weight of 20 kilograms.[50] The crates were stacked five high. Each crate is 32 centimetres high, so with five stacked upon each other, the overall height was about 160 centimetres.[51]
[49] Exhibit P1, photographs 3 and 5.
[50] T67.
[51] T81.
Within the box, a crossbar ran laterally across the storage area and was used to prevent rows of filled crates from falling.[52] As the box had two metal rails running down each side, the crossbar could be fitted at an appropriate point into the two rails. It was located at about the height of the fourth stacked crate.[53]
[52] T519.
[53] T84.
During the course of the run, empty crates accumulated and were placed to the rear of the box.
Mr Acir estimated that the proportion of written orders (usually placed by facsimile) to verbal orders given by customers in the course of the run was about half and half.[54]
[54] T66.
Training and induction
Mr Acir described his training as being rudimentary. At the commencement of his employment he worked for two weeks with another driver, who demonstrated the loading and unloading of the box, servicing the customers and how to deal with the crates.[55] Mr Acir denied ever receiving any training about the lifting of crates, the removal of the crossbar or as to how injuries might occur when handling crates.[56] This evidence was not challenged and was confirmed by Mr Marangos in a general sense.[57]
[55] T65.
[56] T91.
[57] T547-549.
Circumstances leading up to the January accident
After the two weeks training, Mr Acir worked on the Port Melbourne run, he then worked on the city run until October 2004. At that time, he sustained a non-work related injury to his patella.[58] When he returned to work, his run had been taken by another driver and he became, in effect, an interchange driver for others who were unable to work their particular run. To learn this job, he had to accompany other drivers performing their runs. It was in the course of working with a fellow employee, Mr Peter Comfort, on 19 January 2005 on the Brunswick run that he sustained the injury to his back.[59]
The back injury
[58] T65.
[59] T78-79, T84.
Facts
Mr Acir denied having any prior back symptoms. His treating general practitioner, Dr Munir, confirmed that there was no history of back complaints made to him.[60]
[60] T236.
Mr Acir said that the low back pain occurred as he stretched over the bar to lift up a crate:
“So I have to go and try to lift it up with one hand. When I do that, I tend to do that, I lift it up half way – almost half way down but at the same time. I feel something happen low back. It didn’t hurt me but I just feel something happen, like click sort of thing and then …”.[61]
He then completed the order, but when the truck reached the next customer, he could not move from the truck.[62] He told Mr Comfort of his injury.[63] However, he did complete the other orders on the round.
[61] T88.
[62] T89.
[63] T90.
Mr Acir was unable to work the next day and attended the Coburg Family Medical Centre.[64] At that time, examination showed tenderness in the lumbar spine, but no neurological deficit. He was treated with Panadol Forte and Naprosyn.
[64] Exhibit P17.
In the early hours of 24 January 2005, Mr Acir attended the Royal Melbourne Hospital seeking analgesia at the emergency department. He was noted to have significant spasm of the erectus spine muscle. The diagnosis was of mechanical back pain and he was prescribed a number of painkillers and anti-inflammatories and suggested that he undertake physiotherapy.[65]
[65] Exhibit P16.
On 28 January 2005, after attending the Royal Melbourne Hospital, Mr Acir then went to see, Dr Munir, his general practitioner. A CT scan was organised and it revealed:
“A small right paracentral disc protrusion is present at L5-S1 indenting the right anterior aspect of the thecal sac and touching the right S1 nerve root at its origin. The L5 nerve root exits normally above this level.”[66]
The radiologist concluded:
“Small right paracentral posterior disc protrusion at L5-S1”.[67]
[66] Exhibit P2.
[67] Exhibit P18.
A subsequent MRI carried out on 1 September 2005 confirmed the presence of an abnormality at L5/S1. Dr Deany, the radiologist, noted:
“A mild diffuse annular disc bulge is noted at L5-S1 with no neural compression”.
He concluded:
“Diffuse annular disc bulge at L5-S1, without neural impingement”.[68]
[68] Exhibit P19.
Mr Acir’s back pain continued notwithstanding treatment in the form of medication and physiotherapy. He was able to return to work at the end of May 2005, performing light duties for half a day a number of days per week.
Mr Acir was first seen by Mr Haw on 30 November 2005, after he had returned to light duties. Mr Haw discussed two forms of surgery with Mr Acir during the period in which he treated him, 30 November 2005 to 18 July 2007. The first option was a lumbar spine fusion. The second was a less invasive piece of surgery which involved the use of a prosthesis to stabilise the lumbar spine. Neither was proceeded with.
When Mr Acir returned to work, Dr Munir placed restrictions preventing him carrying out any heavy lifting, bending or turning of the back and limited his working hours, initially set at four hours a day, three days a week.[69]
[69] T101.
Mr Acir has not worked since May 2006. At that time, he was on light duties, working five days a week on a six hour basis. He ceased work, not because of his back condition, but because of the disability of his right shoulder.
Since last seen by Mr Haw on 18 July 2007, Mr Acir has continued to suffer ongoing back pain which limits his ability to carry out many tasks. To some extent, the problems with the back (although by no means insignificant) have been subsumed by the life-threatening cirrhotic condition of his liver.
Medical opinion
Mr Chris Haw, treating orthopaedic surgeon, provided a number of reports and gave evidence viva voce. He formed the view that Mr Acir suffered significant instability of the back caused by a disruption of the annulus of the disc at L5 and S1.[70] He attributed this to the work incident. He was of the view that, given the circumstances surrounding Mr Acir’s endeavour to retrieve the crate, there were fairly significant forces placed on the L5/S1 disc at that time. He thought that as a result of the back injury, he was a likely candidate for a spinal fusion at L5/S1, but that depended upon recovery from the liver problem.[71] In relation to his ability to carry out work, Mr Haw felt that Mr Acir was not fit for his pre-injury employment and that the prognosis for the future “wasn’t particularly good”.[72]
[70] Exhibit P11 – Report of Mr Haw of 30 November 2005, T438.
[71] T440.
[72] T440.
This opinion sits comfortably with those provided in the medical reports of Mr Ian Jones[73] and Mr John O’Brien,[74] specialist orthopaedic surgeon.
[73] Exhibit P25.
[74] Exhibit P23.
Mr O’Brien concluded:
“Indeed, both injuries[75] in isolation would prevent this patient from returning to any form of manual employment. Both injuries in my opinion have resulted in significant disability which would preclude this patient from normal full-time employment. Given his employment background I would therefore consider that each injury separately would preclude this patient from returning to gainful employment.”
[75] Mr O’Brien was here referring to the back injury and the shoulder injury.
Mr Jones agreed with Mr O’Brien that by reason of the lower back complaint Mr Acir did not have the capacity to undertake his previous employment, and particularly that Mr Acir could not return to work requiring repeated bending or lifting. Mr Jones did, however, feel that Mr Acir had “the capacity to drive a taxi or small van”.
Mr Schofield also concluded that Mr Acir had sustained a disc prolapse at L5/S1 and noted, at his last examination in April of this year, that there were clinical signs of ongoing central prolapse which had not improved. He, like Mr Haw, was of the view that Mr Acir could not return to his pre-accident work, stating in his report:
“Taking into account his age, injuries, education skills, work experience and place of residence I do not consider that Mr Acir is presently capable of undertaking suitable employment”.[76]
[76] Exhibit P5 – Report of 20 April 2009. See the definition of “suitable employment” at [ 184].
Although Mr Schofield was cross-examined concerning the contents of a video of Mr Acir, there was no serious challenge to his opinion as to the work capacity of Mr Acir.[77]
[77]The challenge based on the video was, in any event, factually incorrect. T359. Cf the evidence of Mr Caligari, T467-472.
Mr Schofield[78] was also of the view that Mr Acir was significantly restricted by his back injury, but thought that he may be able to perform 15 hours per week taxi driving. Mr Schofield qualified this opinion in saying:
“He may be able to do it for a short period” and “so it’s constant getting in and out of the vehicle and lifting any objects that your clients have, would make it difficult”.[79]
[78] T363 – 364.
[79] T364.
I note that both the general practitioner, Dr Munir,[80] and the physiotherapist, Mr Takyar, were also of the view that the back injury precluded Mr Acir from returning to his pre-injury work.[81]
[80] T244.
[81] Exhibit P15.
Conclusion
I accept that Mr Acir, in the course of his employment on 19 January 2005, suffered an injury to his back which resulted in a disc disruption at L5/S1 as described in the evidence of Mr Haw.
I also accept that, irrespective of the shoulder injury and liver condition, this injury to his back has had a significant effect on the plaintiff’s lifestyle and work capacity.
Each of the four orthopaedic surgeons were in agreement that he could not return to his pre-accident employment. The only real area of dispute is what residual capacity for employment he now possesses. I do not accept the opinion of Mr Jones that Mr Acir could carry out work driving a taxi or van. Mr Schofield’s explanation of the difficulties associated with such jobs are convincing and accord with the views of Mr O’Brien and Mr Haw.
For practical purposes, given Mr Acir’s background and education, I think that the injury to the back alone has rendered him close to unemployable in the future.
The disability of the right shoulder
Facts
There was real controversy in the course of the trial as to the cause of the right shoulder symptoms experienced by Mr Acir since March/April 2006. Mr Acir’s case is that the injury to his rotator cuff was caused by carrying out particular aspects of the light duties employment with Frosster. In particular, he identified the task of removing pallets from a stack with a hook type device.
Frosster contended that such work was intermittent and unlikely to cause such an injury. Instead, Frosster postulated another potential cause for the condition, namely, Mr Acir’s diabetes which can, of itself, produce a frozen shoulder.
It was not disputed by Frosster that Mr Acir was engaged in using the hook to remove the pallet. He engaged in this task, it would seem, for a year after his return to work in May 2005. A video of the light work duties was tendered in the course of the trial.[82]
[82] Exhibit D1.
Mr Acir agreed that the video showed aspects (but not all) of the duties he was involved in.[83] In particular, it showed the use of the hook to move pallets; the video did not show the pallets being pulled from a stack, however, as I understand it, the hook would be attached to part of the pallet and then pulled, causing the pallet to fall to the ground. There was considerable debate concerning the height from which this activity would occur. Mr Acir was adamant that the pallets were stacked up to 15 pallets high; “very high”; “up to 1.5 metres”.[84] He described the task as requiring him to pull the pallet, at times from a considerable height, onto the loading dock floor and then to drag the pallet with his right arm. He said that the task was particularly difficult when the stack was high and, at times, the hook would become stuck and cause pain in his shoulder when he pulled on it. He estimated that this occurred seven out of ten times.[85]
[83] T287.
[84] T102-103.
[85] T103.
On the other hand, Mr Marangos, whose office was located close to the pallet stack,[86] gave evidence that the pallets were usually stacked three to four high, and up to ten high, but rarely, if ever, up to 15 high.[87] He said that the pallets were very light and easily lifted by one person, and hence stacked by hand and invariably no more than ten high.[88] Indeed, Mr Marangos said he recalled Mr Acir telling him that the pallets were too high, and that it was then arranged that they would be stacked three to four high.[89] He did not agree that after this complaint the pallets were ever up to ten high again.
[86] T553.
[87] T543–544, T550-551.
[88] T551.
[89] T552.
Whilst accepting that Mr Acir had complained of the hook getting stuck in the pallet and hurting his shoulder,[90] Mr Marangos maintained that the task was simple and one he had performed himself.[91]
[90] T553.
[91] T553-554.
For reasons that I have already identified, I think that Mr Acir is given to exaggeration, particularly when it is in his interests to do so. Mr Marangos was forthright and made concessions against Frosster’s interests in the course of his evidence. I see no reason not to accept his evidence, and prefer it to that of Mr Acir in relation to the number of pallets which might be stacked, namely, three to four and up to ten at times. However, it does seem likely that at times when stacked, rather than free-standing, there was a greater chance of the pallets being stuck and therefore requiring more effort in removal.
At least in relation to the question of cause and effect, whether the height of the pallets was three or four or ten high is not overly important. The real question is whether that exercise, namely, the use of the right arm to pull the pallet from the stack (whatever the height) was productive of the shoulder injury. Having seen the video, which only shows the use of a hook on a pallet at ground level, I am satisfied that the force involved in pulling a pallet from a height of between three to four high to ten high on a regular basis would put real pressure on his shoulder and arm, particularly if the pallet became stuck.
Mr Acir said that his right shoulder continued to get worse with the light duties in March of 2006 and that every time he went to his general practitioner, he told him of the problem.[92] On his account, by the end of May 2006, he could not move his right arm at all and had to use his left arm.[93] He ceased work on 31 May 2006 because of both the shoulder and the back, but the “shoulder was the big problem”.[94]
[92] T106.
[93] T109.
[94] T110.
In his claim for compensation, filed in June 2006, Mr Acir attributed the injury to “pulling pallets with hook, tightening rope using my right arm strength”.[95] Frosster accepted this claim and he was paid compensation for the shoulder injury.[96]
[95] Exhibit P30.
[96] Exhibit P30, T462.
On 9 June 2006, Mr Haw performed a hydrodilation and on 24 October 2006, Mr Haw manipulated Mr Acir’s shoulder. He last saw Mr Acir in July 2007.
Medical opinion
In determining whether the carrying out of this task repetitively over nearly one year could account for his symptoms, one has to bear in mind Mr Acir’s underlying diabetic condition which could, as Mr Haw explained, make him vulnerable to this type of injury:
“This patient, in addition to having an earlier prolapsed intervertebral disc injured his right shoulder whilst involved in heavy work pulling pallets and tying ropes. However, the presence of diabetes is also a factor that is associated with capsulitis of the shoulder and a frozen shoulder. Nevertheless, given the nature of his employment, his employment would appear to be a significant contributing factor in as much as the activities of the worker outside of the workplace and his lifestyle are not implicated but there is hereditary risk in the form of diabetes that may have predisposed him to developing a frozen shoulder.”[97]
[97] Exhibit P11, report of 28 July 2006.
Mr Haw re-affirmed this opinion when he gave evidence. He described the injury as an “in substance” tear.[98] Although he accepted that diabetes may be a cause of the frozen shoulder condition,[99] I did not understand him to shift from the opinion expressed in his report.[100] He has seen Mr Acir on a number of occasions and had monitored his progress. Given Mr Haw’s familiarity with Mr Acir and his own experience as an orthopaedic surgeon, I think his opinion is of considerable value. Insofar as it relates the shoulder injury to his work, it is shared by Mr O’Brien and Mr Schofield. Indeed, both Mr Schofield and Mr Haw thought that there may be a tear of the rotator cuff, although not discernible on ultrasound.
[98] T445, 453.
[99] T450.
[100] T456-457.
Both Mr Schofield[101] and Mr O’Brien[102] supported Mr Haw’s view as to the connection between work and the development of the right shoulder condition.
[101] T360.
[102] Exhibit P23.
On the other hand, Mr Jones[103] and Ms Wyatt,[104] a rehabilitation expert, are of the view that the shoulder condition is related solely to Mr Acir’s diabetes. The general practitioner, Dr Munir, also thought that the shoulder condition was connected to Mr Acir’s work, but acknowledged that it was not possible to choose between the two potential causes.[105]
[103] Exhibit P25.
[104] Exhibit D4.
[105] T243, 248.
Conclusion
If it was accepted, as I do, that Mr Acir carried out activities that placed pressure on his shoulder regularly throughout the period of one year, then I find it difficult to ignore that as being a cause of the shoulder condition, particularly given Mr Haw’s evidence of a predisposition, created by his diabetes, to such an injury. Given the timing of the onset of symptoms and the nature of the work, when combined with the medical opinions of Mr Haw and those doctors who support his opinion, I have come to the conclusion that Mr Acir’s work materially contributed to his shoulder injury. I think this is particularly so when, in light of the nature of the underlying condition, it may not have taken any major trauma or force to produce this result.[106]
[106] See Mr Haw’s evidence, T452.
The liver condition
Mr Acir suffers from decompensated cirrhosis of the liver.[107] Cirrhosis means a scarring of the liver which, at post-mortem, may take a tawny appearance.[108] There are a number of causes of this condition, two of which are relevant in this case. The first is the consumption of alcohol at a high level. Alcohol is toxic to the liver cells and destroys them to the point of interfering with the function of the liver.[109] The scarring that is laid down is a consequence of that toxicity. The second is diabetes type two, which can produce a condition known as fatty liver[110] or NASH.[111] It also affects the liver cells and may result in liver dysfunction. According to both Dr Wall and Dr Gow, the two causes can act synergistically and produce devastating consequences for the liver.[112]
[107] T345, decompensated means the liver is not doing its day-to-day function.
[108] T305.
[109] T306.
[110] T307.
[111] T341 – Dr Gow – Non-alcoholic steatohepatitis (NASH).
[112] T308, T341.
Dr Gow said that for a person to develop chronic liver disease it is necessary to have a consumption of more than 100 grams of alcohol a day for ten years, which approximates to about six cans of beer per day for ten years.[113] There was a comforting note in Dr Gow’s evidence to the effect that most people who drink excessively do not progress to chronic liver disease.[114] Dr Gow explained that the minimum period for the development of symptoms is a period of ten years’ heavy drinking, but it could take up to 30 years or, indeed, there may never be a manifestation of symptoms.[115]
[113] T340.
[114] T340.
[115] T340.
It was not in issue that Mr Acir’s liver condition remained, in effect, undetected and asymptomatic until it was identified after tests ordered by Dr Munir in February 2006.[116] At that time, it does not appear that Mr Acir had any symptoms relevant to the liver disease.
[116] T238.
Mr Acir was referred to the Austin Hospital gastroenterology clinic in May 2007. In October 2007, under a laparoscopic cholecystectomy, his liver was directly examined, and his gall bladder removed. Examination demonstrated established cirrhosis and fatty tissue changes. The medical opinion is that the damage to the gall bladder resulted from the liver condition.
As far as I can tell, the first overt symptom of his cirrhotic liver was the development of excessive abdominal fluid which became frequent, and has continued to the present time.
Mr Acir suffered considerable weight loss, ultimately plummeting from approximately 90 kilograms to 60 kilograms with considerable muscle wastage. In addition, he has some mild ankle swelling and disturbed sleep patterns consistent with advanced liver disease.[117] Dr Gow stated that these were typical symptoms for someone with cirrhosis of the liver.[118]
[117] Exhibit P 3
[118] T346.
In April 2008 Mr Acir was transferred from management in the gastroenterology clinic at the Austin Hospital to its liver transplant clinic, managed by Dr Gow.[119] The liver transplant clinic has managed his treatment since then. At the commencement of the trial, I was told that Mr Acir was on the waiting list at the Austin Hospital for a liver transplant. As I said earlier, on day four of the trial (11 May), counsel for Mr Acir told me that this was not correct and that, in fact Mr Acir had not yet been accepted for the waiting list for a liver transplant. After the case was adjourned to enable further evidence to be obtained, a further report from Dr Gow was produced which noted that Mr Acir has now been accepted onto the waiting list.[120] Dr Gow said that once on the waiting list, the mean delay is about one year, but the severity of the patient’s illness dictates when a transplant may become available.[121] At present, there are 50 patients on the waiting list.
[119] T334.
[120] Exhibit P35
[121] T336.
Mr Acir’s current pattern of treatment at the Austin Hospital is periodic endoscopical appraisal of his oesophagus and stomach, draining of the fluid in the stomach (on a monthly basis), liver function tests, a suite of medications and dietary advice.[122]
[122] T345-346.
Dr Gow’s evidence as to the beneficial effects of the liver transplant is extraordinarily heartening. He told me that 75% of people placed on the transplant waiting list receive transplants. Having received the transplant, approximately 95% will survive for one year and 75% for ten years.[123] Those who undergo a transplant will undergo a difficult recuperation, but should be in a position to return to full-time work after six months.[124] He did not suggest that Mr Acir would be precluded from returning to full-time work as a driver.
[123] T336.
[124] T348.
Mr Acir has a very limited life expectancy absent a liver transplant - Dr Wall thought a 30% chance of surviving to 12 months.[125] Dr Gow provided a “best guess” of 70% chance of Mr Acir seeing out a year and 40% to 50% chance of seeing out two years.[126]
[125] T301.
[126] T338.
I accept the evidence of Dr Gow as to all of the above matters. No-one could be in a better position to offer such opinions and his evidence was not challenged on these issues.
The relationship between Mr Acir’s injuries and his liver condition
Expert opinion
Both gastroenterologists, Dr Gow and Dr Wall, expressed an opinion about the causal connection between the asserted excessive drinking after the January accident and Mr Acir’s liver condition. Each based their opinion upon the proposition that, prior to 19 January 2005, Mr Acir was a modest drinker, to Dr Wall – seldom exceeded two six packs of beer per week,[127] to Dr Gow – six to ten cans of beer per week,[128] and that subsequent to and within weeks of the injury, he drank excessively (on his account eight to ten stubbies each day and half a bottle of whisky per day) for approximately 1¾ years (i.e. to October 2007 when the gall bladder was removed).[129]
[127] Exhibit P3.
[128] T339.
[129] T339.
Dr Gow was asked the following questions: [130]
[130] T342/343.
COUNSEL: “Now, in relation to the history you took in that first report and on that first occasion, do you have any view as to the importance in relation to the development of the disease of the drinking to excess for approximately two years, as you describe?”
WITNESS: “I think the cause of his underlying liver disease was NASH, and that the presentation with liver failure was accelerated by his alcohol.”
HIS HONOUR: “All right, just if I can make a note of that, the cause of the underlying disease was NASH, that is the fatty liver condition?”
WITNESS: “Yes.”
HIS HONOUR: “And that was accelerated, that is the onset of symptoms were accelerated by his excessive drinking over that period of two years?”
WITNESS: “Yes.”
HIS HONOUR: “Is that a fair summary, Doctor?”
WITNESS: “Yes.”
HIS HONOUR: “That's accepting his history?”
WITNESS: “Yes.”
COUNSEL: “And are you able to say in terms of time or not by (indistinct) acceleration may have occurred?”
WITNESS: “There’s no data in which to give you a good time cause.”
HIS HONOUR: “Does that mean that you cannot say when, absent the alcohol consumption at that level, he would have come to this condition?”
WITNESS: “Yes.”
HIS HONOUR: “Would he have come to this condition in any event?”
WITNESS: “Yes.”
HIS HONOUR: “But as to whether it’s two years or five years later, you cannot say?”
WITNESS: “Correct.”
Dr Gow was then asked by counsel for Mr Acir to accept a different factual scenario:[131]
COUNSEL: “Perhaps I’ll put the question in a slightly different way. If you assume, for the purpose of answering the question, he was a heavy drinker right up - from the age of 20 right up until January 2005, and then he has a back injury, and then from about February, early February 2005, he increased that alcohol consumption considerably. Are you able to say whether or not the increase that might have gone on for about two years had any role to play in the development of his end stage liver disease?”
WITNESS: “He would have, so if he was a long term heavy drinker, yes, the likely cause of his liver disease would be more likely to be alcohol than NASH related, but it doesn’t change the effect that if he's drunk heavily for those preceding two years that it would accelerate his presentation with liver failure.”
[131] T343-344.
Dr Gow also said that whatever the cause of the pre-existing damage to the liver (be it diabetes or alcohol), one could not say when symptoms referable to that condition would have emerged.[132] This was premised upon his assumption as to the post-January accident increase in drinking.
[132] T344.
Dr Wall saw Mr Acir at the request of his solicitors on 13 March 2009. In his report,[133] based in general terms on the history I have set out in [93], he provided the following opinion:
“Having regard to this information and instructions I would indicate as follows:
(i) The sharp exacerbation of his liver disease was employment related through the entities of pain, isolation and inability to work, and a feeling of worthlessness and rejection, and was a change from his previous social pattern of drinking which was insufficient to have caused his advanced liver disease,
(ii) The alcohol excess causing the liver impairment related to the work related injuries for the above reasons, but in particular he was drinking early to relieve the pain as he was intolerant of a number of different analgesics which because of his liver disease cause side effects or were inappropriate. I would indicate that alcohol alone was unlikely to be the cause of his presentation of advanced liver disease within 2 years of his original injuries but without an alcohol exposure in this high amount the liver disease that was pre-existing perhaps on the basis of non-alcoholic fatty liver disease, would have been unlikely to lead him to this acute deterioration in this short period of time. In my mind there is no doubt that the advanced presentation and irreversible nature of his liver disease relates directly to the influences from his occupational injury and disability.”
[133] Exhibit P3.
Both Dr Gow and Dr Wall were impressive witnesses, with a wealth of clinical experience behind them. Dr Gow is an acknowledged expert on liver transplantation. Each were of the view that if Mr Acir consumed alcohol for a period of around 1¾ years in significantly and markedly excessive quantities (in contrast to an established mild drinking pattern prior to the January accident), then there was a causal connection between the consumption of alcohol over that period and the liver condition. Each also expressed the view that Mr Acir would have ultimately been in the same position at some time in the future, notwithstanding the asserted heavy drinking. Dr Wall was prepared to provide an estimate of five to ten years, whilst Dr Gow said it could not be estimated.
Dr John Colman, gastroenterologist, examined Mr Acir on behalf of Frosster and was also asked to comment on the opinions of Dr Gow and Dr Wall. Dr Colman also relied on the history given to him by Mr Acir of a massive increase in his consumption of alcohol after the back injury. He concluded:
“As I previously stated, there is a connection between his back injury, as this caused depression and a severe increase in his alcohol intake which quite possibly unmasked a previous liver condition (NASH with progression to cirrhosis).”[134]
[134] Exhibit P26.
Acceptance of Mr Acir’s account of his alcohol consumption – both before and after the January injury, is fundamental to the opinions expressed by Drs Gow, Wall and Coleman connecting his liver disease to his alcohol consumption post-accident. It is axiomatic that, to use the words of Anderson J in Pollock v Wellington:[135]
“Before an expert medical opinion can be of any value the facts upon which it is founded must be proved by admissible evidence and the opinion must actually be founded upon those facts.”
[135] (1996) 15 WAR 1, 3.
In the oft-cited decision of Makita (Australia) Pty Ltd v Sprowles,[136] Heydon JA said as follows:
“… and so far as the opinion is based on ‘assumed’ or ‘accepted’ facts, they must be identified and proved in some other way; it must be established that the facts on which the opinion is based form a proper foundation for it; and the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached”.
[136] (2001) 52 NSWLR 705 [85].
Facts
In opening the case on behalf of Mr Acir, his counsel described him as a moderate drinker prior to the January accident who generally consumed alcohol on weekend social occasions and, on average, about a six pack of beer per week; [137] the equivalent of less than one can of beer a day. He was, it was said, transformed into a reckless heavy drinker within weeks of the back injury.
[137] T36-37.
In evidence-in-chief, Mr Acir was asked the following questions by his counsel:[138]
[138] T75.
COUNSEL: “Did you enjoy drinking alcohol?”
WITNESS: “I drink occasionally, like the weekends sort of thing.”
COUNSEL: “What sort of drink did you consume?”
WITNESS: “Like weekend if we were at barbecue or we go to visit friend house, six pack to eight cans, something like that, you know.”
COUNSEL: “How regularly would you have drunk that type of alcohol?”
WITNESS: “Not every week, sometime even at my place I had a barbecue, I had a six pack and then I'd have a couple of beers and then I'd stop drink, you know, because I don't feel right.”
COUNSEL: “Can you recall whether in the past you've had any trouble with police in relation to drinking?”
WITNESS: “Yes, I have, a couple of times.”
COUNSEL: “Can you remember when that was?”
WITNESS: “There was 1993, 1995, if I'm not wrong.”
He was here referring to two prior convictions in the 1990s for being drunk in a public place.[139] I shall return to this issue in a moment. Mr Acir then described his increase in drinking alcohol subsequent to the January accident in the following terms:[140]
[139] Exhibit D7.
[140] T100-101, interruption by trial judge excised.
COUNSEL: “All right. You indicated before this date, 19 January 2005, you drank, sometimes you have a six pack, sometimes you might have eight, not every week. Did you continue to have some alcohol when you were at home off work?”
WITNESS: “The - when I injured my back, I increased the alcohol.”
COUNSEL: “How soon after you injured the back did you start increasing?”
WITNESS: “A couple of weeks later I started to drink very heavily.”
COUNSEL: “What type of - how much did you drink?”
WITNESS: “I drink minimum 12 cans, three-quarter – maybe three-quarter of whisky, maybe two bottle of wine, whatever I find just – sometime I take all the painkillers. I have a lot of different – different type of painkillers, I take with them and then I just want to froze my body not to feel that pain.”
COUNSEL: “How regular, yes, I was coming to it Your Honour, yes, you said you had 12 cans - - -“
HIS HONOUR: Twelve cans.”
COUNSEL: “- - - sometimes whisky, wine, how often?”
WITNESS: “Every day.”
COUNSEL: “It may be clear from what you said as to why you take it, but why were you taking – why did you start increasing the alcohol?”
WITNESS: “Because the – in the beginning I got a lot of pressure from the employer, I didn't get pay right, I didn't get – nobody didn't believe me in the work place.”
COUNSEL: “Did pain have anything to do with increasing alcohol?”
WITNESS: “Everything make me uncomfortable, like of course the pay is important, and then another thing the bosses and supervisors was treating me like you're nothing and then - - -“
COUNSEL: “You say you started about a couple of weeks after the injury?”
WITNESS: “Yes.”
COUNSEL: “You were still off work then?”
WITNESS: “Yes.”
COUNSEL: “Did you remain off work until – it's not clear, but would it have been about May 2005?”
WITNESS: “I believe so, I'm not really good with the date.”
COUNSEL: “Over that period whilst you were off work how was your alcohol consumption?”
WITNESS: “That was the same.”
COUNSEL: “You mean the daily consumption you just spoke of?”
WITNESS: “Yes.”
Mr Acir confirmed again in evidence-in-chief that he was drinking every day, consuming at least 12 stubbies or cans and then three quarters of a bottle of whisky or whatever he could find, as well as a couple of bottles of water or wine.[141] Mr Acir said that he ceased drinking when he left Moreland Hall[142] in April 2006.[143]
[141] T107.
[142] T111.
[143] T110.
When Mr Acir was tackled about his drinking in cross-examination, his account of his very modest level of pre-injury consumption of alcohol fell apart:[144]
[144] T169-170.
COUNSEL: “So you say up until three weeks after the back pain, you had been drinking just on weekends at barbecues and social events. Is that how your life had been?”
WITNESS: “Yes.”
COUNSEL: “You'd never drunk any more heavily than that until you had the back problem. Is that correct?”
WITNESS: “Heavily, not every day. Like if I - if I go out with the friends, like, not at our place. Like, go out to some sort of pub or some sort of, you know, men can go, I have a bit more drink than as usual, like, you know, like - - -“
COUNSEL: “Mr Acir, you told us that, in answer to your own counsel, that before the back pain caused you trouble, you would drink on weekends with friends and at barbecues. Do you remember telling us that?”
WITNESS: “Yes, that's regular. I'm talking about the regular places.”
COUNSEL: “Yes?”
WITNESS: “But also I'm talking about one in a blue moon, like if I go out with a couple of friends, and then we go to a pub or somewhere, then I have more - more drink. I'm not - - -“
COUNSEL: Well why didn't you offer that to us when you told us about the drink beforehand. You just told us about - - -?
WITNESS: “Nobody - nobody asked me. Everybody asking me what's a regular drink, a regular drink and I'm talking about the regular drink.”
Mr Acir then gave extraordinarily confusing and conflicting evidence about drinking during the week at hotels in the Brunswick and Coburg area:[145]
[145] T186.
COUNSEL: “In 1988 onwards you drank regularly at the Post Office Hotel in Brunswick didn't you?”
WITNESS: “1988?”
COUNSEL: “Yes, in that and the following years you were regularly drinking there weren’t you?”
WITNESS: “No.”
COUNSEL: “You know the Post Office Hotel in Brunswick don't you?”
WITNESS: “Yes.”
COUNSEL: “And you've been there drinking haven't you?”
WITNESS: “No.”
COUNSEL: Do you say you've never consumed any alcohol at that hotel?”
WITNESS: “I did drink a couple of times in that hotel, but that hotel doesn't call - what do we call the name on it - the Moreland Hotel is not a Post Office Hotel or anything.”
Then shortly afterwards:
COUNSEL: “Those occasions when you drank there were during the week weren't they?”
WITNESS: “Maybe and I say yes.”
Having accepted that he would go to hotels “sometimes” during the week, Mr Acir gave the following answers to counsel:[146]
COUNSEL: “But sometimes during the week you would get drunk, is that correct?”
WITNESS: “Depends what you call for drunk. I mean, if you had a few - four - three or four beers, if you think that person is drunk, I accept that. If you had a couple of beers and then you just normal - a little bit of tipsy, then I don't call a drunk person, I mean - - -“
COUNSEL: “And you're quite confident that your drinking was limited to three or four beers on these occasions at the hotels, is that right?”
WITNESS: “Mainly, yes.”
[146] T188-189.
I regarded Mr Acir’s evidence as to his consumption of alcohol prior to the January accident and his rapid uptake of alcohol after the January accident as being totally unreliable. On its own, I would have had grave reservations, given the shifting sands of his evidence. In addition, there are other matters which result in my rejection of his evidence as to his level of consumption of alcohol either prior or subsequent to the accident. They are as follows.
First, the two convictions for being drunk in a public place, namely in September of 1990 at the Preston Magistrates’ Court and July of 1993 at the Broadmeadows Magistrates’ Court. Whilst I accept that one needs to be careful before drawing too powerful an inference from these two separate convictions, it is Mr Acir’s direct evidence concerning those matters that affects his reliability. Mr Acir asserts that he was not drunk on either occasion, but “had a drink”.[147] On the second occasion in 1993, he was arrested because, he says, he would not provide police with identification.[148] He could not tell me what day of the week these events occurred, nor where he had been prior to the events occurring. He could not say what he had been drinking or where he had been drinking.[149] I found these answers totally unconvincing. Being arrested and brought before a Magistrates’ Court is not something which can be forgotten easily, and one would have thought he would have at least some idea as to the circumstances which brought him to the attention of the police.
[147] T292.
[148] T293.
[149] T293.
Second, Mr Acir has, on several occasions, given very different accounts of his drinking habits in out of Court statements to those involved in his treatment.
Ms Dianne Kanaan, a counsellor, was involved in Mr Acir’s treatment at Moreland Hall in April 2006. Ms Kanaan interviewed Mr Acir on 4 April and recorded the answers given by him in a “Module 1: Assessment Form”.[150] Ms Kanaan noted Mr Acir’s average daily alcohol use as 12 to 18 cans of beer daily during a period of “six to seven years”. Under the heading “Pattern of use” she recorded:
“Alcohol – 10 year history of use, past 6 to 7 years use has increased (re: personal and financial stressors).
Currently ingesting 12 to 18 cans of beer daily. Commencing use 1.30pm (after work only).”
Ms Kanaan also recorded a history of type 2 diabetes and a back injury “one and a half years ago work injury currently on WorkCover. Chronic pain reported”.[151]
[150] Exhibit D8.
[151] Exhibit D8.
In her evidence, Ms Kanaan made it clear that the information recorded came from Mr Acir[152] and that his history of alcohol consumption at a rate of 12 to 18 cans was, on his account to her, for a period of six to seven years,[153] preceding the interview. Mr Acir denied giving Ms Kanaan that history.[154] I reject his evidence as it is consistent with his determination not to admit any matter that might affect his case. More importantly, Ms Kanaan made a contemporaneous note and affirmed the contents of that note in evidence-in-chief. There is no reason to disbelieve her.
[152] T508.
[153] T510.
[154] T180.
Dr Testro, a consultant gastroenterologist at the Austin Hospital Gastroenterology Clinic, saw Mr Acir on 3 December 2007. He obtained the following history:
“He certainly had some heavy past alcohol abuse. He began drinking at the age of 20 and drank heavily up until approximately one year ago, at which stage he became aware of some liver dysfunction. At that stage he was drinking every day and was intoxicated on a daily basis. He has now had no alcohol for one year.”[155]
Dr Testro’s report was tendered by Mr Acir.
[155] Exhibit P12.
In my view, these admissions are important. It is patently in Mr Acir’s interests, given the way in which the case is now cast, to minimise his consumption of alcohol prior to the January accident and maximise it thereafter. Any statement made by him as to his alcohol consumption in a non-litigious context is, I think, significant.
Third, Mr Acir was an unreliable witness in relation to another aspect of his evidence. Frosster adduced evidence of a car journey made by Mr Acir from Melbourne to Mildura after he had worked a part-time shift on Friday 5 August 2006. Video of parts of the trip were shown[156] and Mr Acir accepted that he was depicted in the video. Frosster also called Mr Caligari, the inquiry agent, who conducted the surveillance on that day. Mr Acir swore that “The only time that I went to Mildura it was with my son”,[157] and on that trip he and his son shared the driving.[158] He said that he had to take over the driving when it became dark.[159] However, the video and the evidence of Mr Caligari paints a distinctly different picture. Mr Acir, according to Mr Caligari,[160] drove by himself to Mildura and stopped voluntarily on three occasions, shortly after the turn-off to Mildura just south of Bendigo, then at a roadhouse at Charlton. Mr Caligari subsequently observed Mr Acir’s vehicle to be apprehended by the police south of Ouyen; Mr Acir agreed that he was “caught” travelling at a speed in excess of 130 kilometres per hour.[161] He then stopped, again, north of Ouyen and drove on to Mildura. Mr Caligari’s evidence that Mr Acir travelled alone is confirmed by the video, which showed Mr Acir taking a break at the roadhouse at Charlton and then getting into his vehicle alone. Mr Acir consumed a meal in the open, and one would have thought that if his son was with him, he would have been seen on the video. I accept Mr Caligari’s evidence that on 5 August Mr Acir, after finishing work, travelled by himself for just over six hours to Mildura. In fact, it is corroborated by the evidence of Mr Acir’s son, Bercil, who also contradicted Mr Acir’s version. He said he had gone to Mildura with his father in April, not August.[162] Mr Acir’s assertion that his son was with him in the vehicle on this trip to Mildura, was, in my view, false. I infer that he provided this account so as to minimise the criticism that could be mounted of him in engaging in such a lengthy journey with a significant injury to his back. There is one other aspect of the video that is somewhat relevant to credit. After watching the 5 August video of Mr Acir’s activities at the service station prior to the Mildura trip, Dr Munir noted inconsistency with his presentation at the surgery.[163]
[156] Exhibit D3.
[157] T223.
[158] T222.
[159] T225.
[160] T468-471.
[161] T224.
[162] T376.
[163] T258-259.
Fourth, there were inconsistencies in relation to the time at which Mr Acir said that he ceased his consumption of alcohol. He swore that he did not drink alcohol after attending Moreland Hall in April 2006.[164] However, his wife said that when she returned home in November 2006 after their separation, he was still drinking “constantly”[165] and his son, Bercil, said that he was still drinking “heavily” at that time.[166] When he saw Dr Testro in December 2007, he told him that he had not drunk alcohol for one year.[167]
[164] T111.
[165] T273.
[166] T373.
[167] See [116].
Finally, I reject the submission made on Mr Acir’s behalf that, owing to his liver condition, his memory had been deleteriously affected. This submission relied upon the evidence of Dr Wall as to the effects of cirrhosis of the liver.[168] No evidence was led from his treating general practitioner or gastroenterologist as to any specific memory defect that could be linked to his liver condition. It can readily be inferred, I think, that if there was such an association, then such evidence would have been led, particularly in the light of the attack on Mr Acir’s credit in cross-examination.
[168] T300-324.
Therefore, I have reached the conclusion that Mr Acir’s account of his drinking as opened by his counsel and provided by him in evidence-in-chief is, to put it kindly, revisionist and cannot be relied on.
Even though I have rejected Mr Acir’s evidence as to his drinking habits, it does not mean, per force, that his account of his changed drinking history is not established. It is necessary to look at the other evidence led on his behalf to see whether it is sufficiently persuasive to establish, on the balance of probabilities, the factual scenario contended by Mr Acir.
The only evidence which could corroborate his account of his drinking habits was given by his relatives, his estranged wife and his son. Mrs Acir gave evidence in general terms supportive of Mr Acir’s version, namely, drinking a six pack[169] or so on the weekend at social events prior to the accident “he did used to drink casually”[170] and thereafter within a short period of time, regular consumption of excessive amounts of alcohol, a slab of beer a day.[171] Her evidence must be treated carefully. Mrs Acir knew nothing of Mr Acir’s attendance at hotels, which he admitted to, and she appeared to treat his two drunk in a public place convictions as something that went hand in glove with social drinking. Mr Acir’s counsel placed reliance on the marriage disintegration in March 2006 as a result of Mr Acir threatening his wife and her subsequent taking out an intervention order. This, it seems to me, is equally as consistent with a lengthy history of alcohol consumption as it is with a short term history.
[169] T278.
[170] T269.
[171] T271.
Mr Acir’s son, Bercil, is now 21 years of age and lives with his father and mother. He told me that, prior to the workplace injuries, his father was “just a casual drinker, I guess, just here and there”, and that he would drink at “barbies, you know, just family events”.[172] Bercil Acir also gave evidence that after the back injury, his father started drinking quite heavily within weeks, to the extent of drinking a slab of beer (24 cans) in a session, as well as Johnnie Walker whisky on occasions.[173] Bercil Acir accepted in cross-examination that he did not know whether his father was drinking during the week at hotels before the January accident.[174]
[172] T371.
[173] T372.
[174] T377.
Overall, I gained very little assistance from the evidence of either Mrs Acir or her son. Mrs Acir did not, I think, give frank evidence about her husband’s drinking prior to his accident. It is inconceivable that she was not aware that he was drinking more than just socially at weekend barbecues, particularly if she was aware, as she said she was, of his two convictions. Bercil Acir’s evidence was also of dubious quality, but I think on his account it is simply from lack of knowledge as a young boy and a teenager in the years leading up to his father’s injury. He could not be expected to know his father’s drinking habits in any detail.
I do not accept the contention made on behalf of Mr Acir that his work record counts against a high consumption of alcohol prior to his back injury. As I understand his evidence, between 1997 and April 2004, he did not work full-time. For five years he was unemployed, and for the two years between 2002 and 2004, he worked part-time. Whilst it is true that he worked for six months full-time for Frosster, he was then off work for nine weeks and then had only returned to Frosster for two to three weeks before he suffered the back injury. That work history does not, in my view, demonstrate an inconsistency with a high consumption of alcohol. That is particularly so given that the work at Frosster involved working on night shift, usually finishing at about 10.00am.
Ultimately, the person who best knows his true level of consumption of alcohol prior to the January accident is Mr Acir himself. The other evidence must be examined in that context. I am not persuaded that the evidence of either of his relatives corroborates either his asserted pre-accident low alcohol intake or his post-accident “binge” drinking. It is impossible, in my view, to have any confidence in his estimate as to his increase in drinking after the accident (as both these witnesses depose to) when their evidence, and, indeed, the evidence as a whole, is totally unpersuasive as to his level of alcohol consumption prior to the January accident.
Moreover, there is a perfectly acceptable explanation for the development of his cirrhosis of the liver absent an upsurge in drinking after the back injury, namely, his consumption over a relatively lengthy period of time of excessive amounts of alcohol[175] combined with his underlying diabetes and his fatty liver or NASH.
[175] T344.
Conclusion
In summary, when the evidence is reviewed as a whole, I am not persuaded that there was any increase in Mr Acir’s consumption of alcohol after the January accident. I reject his account of his level of consumption of alcohol post-accident which both Drs Gow and Wall relied upon. I am therefore not satisfied that his liver condition is related to the effects of the back injury. I should add that there was no evidence to suggest that the shoulder condition played any part in his increase in drinking – as his case was that it was the back condition that triggered his response.
It follows that the most likely cause of his cirrhosis of the liver was either his drinking of alcohol throughout his life, his fatty liver condition or a combination of both. I am not satisfied that the condition is related to his workplace injuries, back or shoulder.
Psychiatric condition
Mr Acir’s case is that he has sustained a significant psychiatric reaction as a result of the injury to his back and cirrhosis of the liver. As I have concluded that his liver condition is unrelated to his back injury, it is necessary to endeavour to identify, as best one can, any employment-related psychiatric condition attributable solely to his back injury or the shoulder injury which I have, subsequently, concluded is causally related to the back injury.
Medical opinion
Ms Semra Durmaz, his treating psychologist, has provided several reports.[176] Ms Durmaz first saw Mr Acir on 3 January 2006 and has managed his psychological state since that time. Mr Acir has been seen by her on many occasions in a depressed and anxious state. He has reported problems with his arm and shoulder, as well as his back. Ms Durmaz identified the following symptoms:
[176] Exhibit P22.
· Depressed mood most of the day, including suicidal thoughts.
· Markedly diminished interest in pleasure in almost all activities.
· Insomnia.
· Fatigue and loss of energy.
· Diminished ability to concentrate and make decisions.
On 12 April 2009, Ms Durmaz concluded Mr Acir was “suffering from major depressive disorder which, in my opinion, resulted directly from the injury and the treatment he had received from his workplace. No pre-existing emotional problems were identified which could explain the presence of the disorder as identified in the assessment”.
I pause here to remark upon the extraordinary nature of this opinion. Notwithstanding that Ms Durmaz was aware that Mr Acir had lost a significant amount of weight, including muscle tone; attended Moreland Hall rehabilitation centre; had advanced cirrhosis caused by excess alcohol intake; developed excessive abdominal fluid which had disturbed him a great deal; and was awaiting a liver transplant, she attributed the major depressive disorder to the injuries sustained in the workplace (back and shoulder).
I assume that when Ms Durmaz, in her report of 12 April 2009 referred to Mr Acir as “struggling with the severe changes in his life and his quality of life has diminished immensely”, she was aware that his potentially terminal liver disease and the prospect of a liver transplant were playing a part in his condition. To ignore these issues altogether in her conclusion (as she does) is, to put it mildly, extraordinary and inexplicable, and I put her opinion to one side.
Nor was I particularly impressed with the evidence of Dr Kwong.[177] Dr Kwong treated Mr Acir in 2007 and concluded that Mr Acir had a major depressive illness related solely to his work injury. She diagnosed a moderately severe depressive illness: “It is my opinion that Mr Acir is suffering from an adjustment disorder with suppressed mood (DSMIV309.00) as a result of his chronic pain and perceived abuse from his employer.” In fact, she had not been told by Mr Acir of any problem with his liver.[178] Nowhere in her report is there a reference to his cirrhosis of the liver, notwithstanding that the severity of the disease had been diagnosed by this time and he was undergoing treatment at the Austin Hospital. Her opinion that when she last saw him in June of 2007 he was, because of the work injury, incapable of working into the foreseeable future, needs to be examined in this light.[179] I think her evidence is of little assistance.
[177] Exhibit P6.
[178] T404.
[179] T398.
Dr Michael Epstein reviewed Mr Acir recently and provided a medico-legal opinion. He had a full history concerning Mr Acir’s cirrhotic liver condition. He diagnosed a major depressive disorder related to his work injuries and aggravated by his end stage liver failure. He concluded that Mr Acir’s concern about the terminal liver condition, the prospective transplant and its complications were at least equal and perhaps of greater significance in his psychological condition than that of his concerns about his back and shoulder impairment. In his evidence, he said that the diagnosis of the terminal liver disease, the gall bladder surgery and the loss of weight played a real part in his psychiatric condition, and he agreed that it was “a very significant factor”.[180] He originally attributed 30% of his psychological condition to his back injury and 70% to his other issues.[181] In the course of cross-examination, he revised that to 50%-50%.[182] Whichever apportionment is chosen, his is the most realistic assessment of the causes of Mr Acir’s psychological condition.
[180] T425-426.
[181] T428.
[182] T431.
Contrary to Frosster’s submission, there is sufficient evidence to relate part of Mr Acir’s psychological impairment to his work injuries, even allowing for his unreliability as an historian. It is quite natural, I think, for a man faced with chronic back pain aggravated by his shoulder condition to become anxious and depressed as Mr Acir says he has.
Conclusion
I conclude that there was a level of anxiety, stress and depression consequent upon the back injury which was compounded by the shoulder injury. Whether it is properly categorised as a major adjustment disorder or depressive condition is simply a question of labelling: what is clear is that the mechanical problems with the back and the shoulder have caused moderate psychological sequelae. However, I also think both as a matter of commonsense and relying upon Dr Epstein’s evidence, that the primary problem over the past three years is that related to the liver condition, its potential life-threatening consequences and the drastic treatment necessary to alleviate his condition.
Summary of findings
Before I turn to an analysis of the serious injury provisions of the Act and the questions of damages and liability, I should set out in summary my findings to date:
(a) Mr Acir sustained an injury to his lower back on 19 January 2005 in the course of his employment with Frosster. That injury comprised of damage to the L5-S1 disc in the form of a tear of the annulus as described by Mr Haw.
(b) That injury has continued to affect Mr Acir in his day-to-day activities and in his ability to engage in work. He is incapable of returning to work as a driver and undertaking manual labouring activities.
(c) The injury to the right shoulder, which manifested itself in June 2006, is related to his employment on light duties. The evidence given by Mr Schofield and Mr Haw and the actual nature of the work satisfies me that the right shoulder disability has a relationship to his employment.
(d) The back injury and the shoulder injury have produced psychological consequences for Mr Acir of a moderate degree. However, the predominant cause of any current psychological disability is the liver condition and its effects.
(e) Mr Acir’s cirrhosis of the liver is not related to his back injury or, for that matter, his right shoulder injury.
Has Mr Acir suffered serious injury within the meaning of s 134AB(38)?
Generally
Section 134AB(19)(a) of the Act requires, as a precondition to the institution of common law proceedings, that a worker such as Mr Acir[183] demonstrate that he or she has sustained a serious injury within the meaning of the Act. The provisions of s 134AB(38) set out a scheme for determining what constitutes a serious injury. The provisions have attracted considerable judicial attention since their introduction in 1998.[184] The scheme requires a step-by-step analysis of the impairment or loss of use produced by the asserted injury.
[183] There was no issue that Mr Acir was a worker within the meaning of s 5 of the Act.
[184]Barwon Spinners Pty Ltd v Podolak (“Barwon Spinners”) (2005) 14 VR 622; Mutual Cleaning & Maintenance Pty Ltd v Stamboulakis (2007) 15 VR 649; Dwyer v Calco Timbers Pty Ltd (2008) 234 CLR 124; Church v Echuca Regional Health [2008] VSCA 153; Jayatilake v Toyota Motor Corporation Australia Limited [2008] VSCA 167; Doolan v Rayners Sawmills Pty Ltd & Anor [2008] VSCA 219; Sejranovic v Berkeley Challenge Pty Ltd [2009] VSCA 108 and Sabanovic v Atco Controls Pty Ltd [2009] VSCA 143.
Mr Acir asserts that:
(a) The back injury constitutes a serious injury, being a “permanent serious impairment or loss of a body function”.[185]
(b) The shoulder condition amounts to a separate serious injury or, alternatively is a consequence of the back injury and is therefore to be taken into account in assessing the impairment produced by that injury.
(c) His psychological condition amounts to a serious injury, being a “permanent severe mental or permanent severe behavioural disturbance or disorder”.[186]
[185] Section 134AB(37) of the Act, definition of “serious injury” – para (a).
[186] Section 134AB(37) of the Act, definition of “injury” – para (c).
It was accepted by counsel for both Mr Acir and Frosster that if Mr Acir demonstrated that the back injury was a serious injury within the meaning of s 134AB of the Act, then it was not necessary to consider any mental impairment. It was also accepted that if the shoulder injury was to be regarded as causally related to the back injury,[187] then it was not necessary to analyse whether it, separately was a serious injury within the meaning of s 134AB(38).
[187] See [244]-[254].
The starting point of the serious injury exercise is the identification of compensable injury – that is, an injury linked or related to employment after 20 October 1999.[188] In this case, it was conceded by Frosster that the back injury was a compensable injury. The focus then shifts to the impairment or loss caused by the injury and the consequences which flow from that impairment.
[188] Barwon Spinners [11]-[13].
Where, such as in this case, a worker makes a claim based upon a physical injury (a serious injury application under paragraph (a) of the definition – s 134AB(37)) a Court is required to separate the psychiatric or psychological consequences of an impairment from those that are organically based.[189] So, as a starting point, a Court is required as best it can, in this artificial exercise, to distinguish between consequences which are physically based and those which have a psychological or psychiatric basis; such consequences are to be ignored for the purpose of a serious injury under (a) and to be considered as part of any application under (c) of the “serious injury” definition within s 134AB(37).[190]
[189]Barwon Spinners [70], Mutual Cleaning & Maintenance Pty Ltd v Stamboulakis (2007) 15 VR 649 [9], [43], [45], [51], [61].
[190]Barwon Spinners, Mutual Cleaning & Maintenance v Stamboulakis [2007] 15 VR 649, 652-653, Jayatilake v Toyota Motor Corporation Australia [2008] VSCA 167 [18] and [19].
Where a worker alleges a claim based on a physical impairment, the Act requires a Court to not only put to one side any consequential psychiatric or psychological impairment, but to also examine the consequences of a physical impairment in the separate contexts of
(a) pain and suffering; and
(b) loss of earning capacity.
The provisions of s 134AB(38) provide a narrative test for determining whether a worker may make a claim for damages for pain and suffering and/or loss of earning capacity;[191] the sub-section then imposes additional tests which must be satisfied in determining whether a worker may make a claim for damages for loss of earning capacity.[192]
[191] Section 134AB(38)(b) and (c).
[192] Section 134AB(38)(b), (c), (e), (f) and (g).
Ultimately, a worker may be limited to suing for damages for pain and suffering if serious injury under that head only can be established. On the other hand, if a worker satisfies the tests laid down by the Act in relation to loss of earning capacity, then he or she is at large to make a claim for damages (i.e. both for pain and suffering and loss of earning capacity).[193]
[193] Advanced Wire & Cable Pty Ltd and VWA v Abdulle [2009] VSCA 170 [63].
It was accepted by the parties that it was appropriate, in the context of this case, to look firstly at the various tests for loss of earning capacity which must be satisfied by Mr Acir.
The narrative test: Loss of earning capacity
Section 134AB(38)(b) requires the term “serious”:
“to be satisfied by reference to the consequences to the worker of any impairment or loss of a body function … with respect to
(i) pain and suffering; or
(ii) loss of earning capacity – when judged by comparison with other cases in the range of possible impairments or losses of a body function, disfigurements, or mental or behavioural disturbances or disorders, respectively.”
Section 134AB(38)(c) then provides:
“An impairment or a loss of a body function or a disfigurement shall not be held to be serious for the purposes of subsection (16) unless the pain and suffering consequence or the loss of earning capacity consequence is, when judged by comparison with other cases in the range of possible impairments or losses of a body function, or disfigurements, as the case may be, fairly described as being more than significant or marked, and as being at least very considerable.”
[248] [1999] VSC 543.
[249](1937) 56 CLR 464, 478. See also Glass, McHugh, Douglas “Liability of Employers” 2nd edition Law Book Company p 110-114.
[250] [1999] VSC 543, [25].
In jury trials both in this Court and in the County Court, it has been accepted that the Regulations create such a duty. In Martin v Henderson Industries Pty Ltd[251] at first instance, the County Court judge charged the jury on the basis that the Regulations created such a duty. No issue was raised on the appeal as to the correctness of that aspect of the charge. Indeed, the challenge on appeal by the plaintiff was as to the adequacy of the charge on that issue, not the application of the Regulations. More recently in this Court, in Papadopoulos v MC Labour Hire Services Pty Ltd (No. 1),[252] the jury was charged by Beach J on the basis that the Regulations conferred a private right and correlative duty, the only argument put by the employer being directed to its applicability, not the existence of the duty.[253]
[251] [2004] VSCA 19 [44]-[48].
[252] [2009] VSC 175.
[253] [2009] VSC 175 [5].
I respectfully agree with Harper J in concluding that the Regulations create a statutory duty and adopt his Honour’s reasoning. There is a long line of authority of statutory instruments in occupational health and safety circumstances being construed as conferring a private right upon an injured worker.[254] It is the relationship between the employer and employee and the clear Parliamentary intention to promote occupational health and safety that underpins those decisions.
[254]Commencing with Connor v S.P. Bray Ltd (1937) 56 CLR 464, 478, see for example Dunlop Rubber Australia Ltd v Buckley (1952) 87 CLR 313, T.A.L. Structural Engineers Pty Ltd v Vaughan Constructions & Anor [1989] VR 545.
The repeated manoeuvring, lifting and carrying of crates of milk, albeit assisted by hooks and trolleys, involved, in my view, characteristics of repetitive or sustained awkward posture and repetitive or sustained movement. As such, it constitutes “hazardous manual handling”.
Once the task is identified as falling within the Regulations, r 13(3), an employer is obliged to undertake a risk assessment, r 14. The critical part of the Regulations insofar as an employer is concerned is that contained in r 15, which requires an employer to ensure that any risk of a musculoskeletal disorder affecting an employee occurring “(a) is eliminated; or (b) if it is not practicable to eliminate the risk, is reduced so far as is practicable”. The employer is then directed to consider practicable alternatives for altering the workplace, the systems of work and to consider the use of mechanical aids, in addition to training or instruction in manual handling techniques, r 15(2).[255]
[255] See now Part 3.1 Occupational Health and Safety Regulations 2007.
Given the conclusions I have reached in relation to negligence, it is clear, I think, that Frosster breached the duty imposed upon it under the Regulations. It was implicit from the answers given by Mr Marangos, relating to the Occupational Health & Safety Manual Handling Regulations, that no assessment of the risks posed by Mr Acir’s tasks were carried out by Frosster.[256] Notwithstanding that those particular Regulations had been in force for over five years, it failed to carry out any form of risk assessment of the work undertaken by its employees. If Frosster had carried out such an assessment, it would have been alerted to the risks posed by the manoeuvring of the crates in the rear of the box.[257] Frosster should have appreciated the need to devise a system of work responsive to those risks; including instruction and training of workers on the most practicable and safe manner in which to handle crates, particularly when excessive stretching with lifting was required.
[256] T548.
[257] See [203]-[212].
It can be assumed that if trained in specific techniques to avoid putting pressure on his back, Mr Acir would have complied and the risk of injury would have been significantly reduced if not eliminated. Similarly, if instructed as to the proper way to move the crates, it can be assumed he would have complied. The failure to comply with the Regulations was a cause of the injury sustained by Mr Acir to his back.
Contributory negligence
Section 26(1) of the Wrongs Act 1958 (Vic) provides:
“If a person (a claimant) suffers damage as the result partly of a claimant’s failure to take reasonable care (contributory negligence) and partly of the wrong of any other person or persons –
(a) …
(b) the damages recoverable in respect of the wrong must be reduced to such extent as the Court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage”.
Frosster bears the burden of proving, on the balance of probabilities, that Mr Acir has been guilty of contributory negligence.[258]
[258] Joslyn v Berryman (2003) 214 CLR 552 [18].
In Commissioner of Railways v Ruprecht,[259] the High Court emphasised the necessity to examine the entire circumstances surrounding the injury to the worker, and particularly the nature of work in which the employee was engaged. Gibbs J said that
“In deciding whether the [employee] was guilty of contributory negligence, one may consider as part of all the circumstances such things as inattention born of familiarity and repetition and that man’s preoccupation with the matter in hand”.[260]
[259] (1979) 142 CLR 563.
[260] (1979) 142 CLR 563, 568. See also Mason J at 572 and Murphy J at 576 to 577.
The decision of the High Court (Gibbs CJ, Mason, Brennan and Deane JJ) in Podrebersek v Australian Iron & Steel Pty Ltd[261] is important in this regard:
“It was correctly submitted that the issue of contributory negligence had to be approached on the footing that the respondent had failed to discharge its obligation to take reasonable care, and that in considering whether there was contributory negligence on the part of the appellant, the circumstances and conditions in which he had to do his work had to be taken into account. The question was whether in those circumstances and under those conditions the appellant’s conduct amounted to mere inadvertence, inattention or misjudgement, or to negligence …[262]
The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, ie of the degree of departure from the standard of care of the reasonable man and of the relative importance of the acts of the parties in causing the damage. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case; for example, the circumstances of some cases may be such that a comparison of the relative importance of the acts of the parties in causing the damage will be of little, if any, importance.” (Citations omitted).[263]
[261] (1985) 59 ALJR 492.
[262] (1985) 59 ALJR 492, 493.
[263] (1985) 59 ALJR 492, 494.
In the event that the Court is persuaded that there has been contributory negligence on the part of the plaintiff, then the Act requires a reduction “to such extent as the Court thinks just and equitable having regard to the claimant’s share in responsibility for the damage”. As Podrebersek demonstrates, this involves consideration of two issues –
· the degrees of departure from the respective standards of care[264] (level of culpability) and
· “the whole conduct of each negligent party in relation to the cause of the injury”[265] (causal potency)
[264] Liftronic Pty Ltd v Unver (2001) 75 ALJR 867 [28].
[265] See Wynbergen v Hoyts Corporation Pty Ltd (1997) 72 ALJR 65, 68.
Frosster contends that Mr Acir’s damages should be reduced by reason of his own contributory negligence. It is argued that he failed to take adequate care for his own safety when he reached over the crossbar to retrieve the subject crate. It argues that he should have removed the crossbar and moved the first row of crates blocking access to the subject crate. It contends that this was an easy and readily apparent exercise, which would have reduced the risk of injury.
Mr Acir contends that, in the circumstances, it was not possible to carry out the task as suggested by Frosster because the rear of the truck was overloaded with empty and full crates, and manoeuvring the crossbar was, on his account, a particularly difficult exercise.
It is first necessary to resolve the differences between the evidence of Mr Acir and Mr Comfort as to the difficulties associated with the task on the day. Mr Comfort was an impressive witness. He no longer works for Frosster and was, in my view, completely independent in his assessment of the manner in which the run was operated and the difficulties associated with the various tasks. As I have said, Mr Acir’s evidence on any matter that may prejudice his claim is to be treated with caution.
Mr Acir told me that the empty crates had been stacked up towards the rear of the box (i.e. towards the back doors). He said that the crossbar would only be removed if there was a large order and that it was not a simple job to remove it. It was not removed for smaller orders. In any event he said that on the day there was no room to move it because there were empty crates at the back of the truck.[266] He also maintained that moving the crates would have required a significant amount of bending.[267]
[266] T93.
[267] T286.
Mr Comfort described the manner in which access would be gained to crates blocked by another row of crates. The crossbar would be removed and the hook used to pull out the stack blocking the way – it could be slid out whilst the bar was placed vertically between the roof and the floor.[268] He did not accept that the job was carried out “non-stop” and said that “you always have plenty of time”.[269] He thought that it would be impossible to have the rear of the truck full with empty crates[270] and there was always room in the rear of the truck to manoeuvre empty ones.[271] He said there was always a gap between crates on one wall and the other.[272] Whilst he could not remember the exact configuration on the day of the accident, I do not think that this precludes reliance upon his testimony, particularly given the defects in Mr Acir’s credit. I do not accept the submission put by Mr Acir’s counsel that the “puttage” in the cross-examination of Mr Acir in some way reflects on Mr Comfort’s credit or reliability as a witness.
[268] T523.
[269] T525-526.
[270] T530.
[271] T531.
[272] T520.
Mr Comfort had worked for Frosster for a number of years and had an intimate familiarity with the use of the trucks, the shifting of crates and the removal of the bar. I accept his evidence that (a) the crossbar was easy to remove; (b) the first row of crates could be removed without difficulty; (c) there was sufficient space for those crates that blocked Mr Acir’s access to be removed; and (d) there was no time pressure.
Whilst it is true that Frosster had not laid down a system of work as to filling of orders,[273] there still remains an obligation upon an employee, notwithstanding the employer’s negligence, to take adequate care for his own safety. Mr Acir knew that he was endeavouring to remove a fully laden crate by stretching across a row of crates (three full crates). It would have been a relatively easy task to remove the crossbar and then use the hook or individually remove the crates blocking his access to the subject crate. He should, I think, have appreciated such an approach would have reduced the risk of injury. He would not have had to stretch across the row of crates which blocked his path. If he had done so, he would have been able to remove the crate containing the items for the order by either taking these products out of the crate individually or moving the crate onto the floor so that he could do so. In failing to remove the crates blocking his access, he was guilty of contributory negligence.
[273] See McClean v Tedman (1984) 155 CLR 306.
In making the comparison between the employer’s negligence and Mr Acir’s contributory negligence, I take into account the fact that Mr Acir was performing the task without any instruction or training from his employer and, as I have said, was left to his own devices. This was not, however, a case of momentary inattention or inadvertence. It was something that could have been thought about and undertaken. However, whilst Mr Acir should have thought more carefully about what he was doing, the employer, Frosster, must bear the lion’s share of the responsibility as it was its system (or lack of it) that was the primary cause of the back injury. The appropriate reduction for contributory negligence is 10%.
Assessment of the plaintiff’s damages
Pain and suffering
Mr Acir is entitled to damages for pain and suffering and loss of enjoyment of life as a result of the back injury and its effects. I have already analysed the lay and medical evidence in relation to the effects of the back injury.[274] The back condition, which affects Mr Acir in his daily activities, will continue to afflict him into the foreseeable future. It affects sitting, standing, walking, bending, lifting and twisting, and pain is aggravated when carrying out these tasks. The condition has also had a limited affect on his social activities.
[274] See [43]-[67].
I need now to turn to the question of the shoulder injury in the context of the common law claim.
The placing of a plaintiff in a position where he may suffer further injury does not, of itself, establish a causal link between the negligent act and the subsequent injury. In Lindeman Ltd v Colvin,[275] Latham CJ said:
“Where a second injury follows upon an original injury it may be causally connected with the original injury, as in cases of injury directly due to medical treatment of the injury. But not everything that happens during a period when a man is undergoing medical treatment can be regarded as part of the medical treatment so as to be causally connected with the injury for which he is being treated. A man undergoing medical treatment must have meals, and in one sense the eating of food may be described as an integral part of his medical treatment. But if these meals consist of normal food and he happens to choke himself and die, and the choking had nothing to do with his original injury, there would be no evidence to justify a finding that the death resulted from the original injury and so arose out of his employment. In this case the cause of the fracture was quite independent of the original injury. The bone condition of the respondent was not due to or aggravated by or otherwise affected by the original injury. The act of walking was not necessitated by the head injury. Walking is a normal activity of ordinary life, and when the respondent was walking in the hospital grounds he was only resuming his normal life. There was no causal connection between the fracture and the original injury …”.[276] (Citations omitted).
[275] (1946) 74 CLR 313.
[276](1946) 74 CLR 313, 317 (Latham CJ); see also Brocker v Roscoe Transport Pty Ltd (1985) Aust Torts Reports ¶80-750 (NSW CA); Vieira v Water Board (1988) Aust Torts Reports ¶80-166 (NSW CA).
Subsequently, in Nader v Urban Transit Authority of New South Wales,[277] Mahoney J distinguished between events that merely create “the occasion of” the further injury and events that constitute the “reason or the opportunity” for the further injury.
[277] (1985) 2 NSWLR 501, 517 – 518.
In March v Stramare,[278] the High Court said:
“Generally speaking that causal connexion is established if it appears that the plaintiff would not have sustained his or her injuries had the defendant not been negligent.”[279]
[278] (1990) 171 CLR 506.
[279] (1991) 171 CLR 506, 514.
Of course, the High Court went on to emphasise that causation:
“is all ultimately a matter of commonsense … and not susceptible of reduction to a satisfactory formula”.[280]
[280] (1991) 171 CLR 506, 515.
Mason CJ said, and relevantly to this case:
“Thus, a factor which secures the presence of the plaintiff at the place where and at the time when he or she is injured is not causally connected with the injury unless the risk of the accident occurring at that time was greater”.[281]
[281] (1991) 171 CLR 506, 516.
It is generally accepted that there is a link for the purpose of causation, both under the Act and at common law, where a worker places additional stress on one limb to compensate for the disability of the other; that is because it has been placed at greater risk. At a more distant level is the fact situation in Metron Medical Australia Pty Ltd v Windahl[282] in which the plaintiff suffered a work injury and then in the course of physiotherapy treatment for that work injury received an electric shock which caused him profound disability. The County Court judge concluded that there was a causal link as the worker had been placed in that position by reason of the negligence of the employer. The Court of Appeal affirmed that conclusion and special leave to appeal to the High Court was refused.[283]
[282] [2007] VSCA 40.
[283] [2007] HCAT trans 394.
But for the injury to the back, Mr Acir would not have been placed in the position where his vulnerable shoulder was subjected to the stresses and strains which eventually rendered it symptomatic. What is critical is that these tasks were not the usual duties of Mr Acir. A job had, in fact, been designed for him which was totally different to that which he normally carried out.[284] But for the back injury, he would not have been performing the tasks. It provided the occasion of the further injury, as well as the reason and opportunity for it. This injury is to be contrasted to, say, Mr Acir simply falling over at work and suffering injury.
[284] T546.
Ultimately, in the course of discussion with counsel in closing submissions, Senior Counsel for Frosster did not demur from the proposition that if it was established that the shoulder injury was linked to the relevant work activities in 2006, then it was properly regarded as a consequence of the back injury.
Finally, I note that no argument was addressed to me as to reasonable foreseeability preventing the causal link being established.
Therefore, the shoulder injury is a further impairment that I must take into account both in terms of general damages and damages for loss of earning capacity. Mr Acir is limited in this ability to use his arm above shoulder height and has difficulty rotating it.[285] It clearly compounds problems occasioned by his back injury. However, I also accept the evidence of Mr Haw[286] and Mr Schofield[287] that in due course it will improve to some extent, albeit that its natural course to date has not seen such improvement.
[285] T243, T448.
[286] T454.
[287] T368-369.
I also take into account the psychological sequelae of the injuries, although as I have said,[288] I regard their impact as being relatively moderate, given the other issues in Mr Acir’s life.
[288] [131]-[138].
There are several other specific matters which I should now address. I do not accept that the back or shoulder injuries have played any real part in Mr Acir’s matrimonial difficulties. I have concluded that he was a heavy drinker for a number of years prior to the back injury and that there was no significant increase in his drinking habits. This alone would account for difficulties. The time at which the major breakdown in his relationship with his wife occurred was when he attended Moreland Hall for treatment of his alcohol consumption. Although he said that he had stopped drinking at this time, it seems clear that he did not stop until late 2007. There are, therefore, other explanations for the breakdown in his relationship.
The video taken on 3, 5 and 25 August 2005,[289] whilst Mr Acir was working on part-time light duties demonstrated that he was, at that time, capable of carrying out other activities apart from his work. He was observed to drive a van and carry items into his home, and on 5 August was filmed preparing for a trip to Mildura and then driving to that town.
[289] Exhibit D3.
However, I do not regard the film of Mr Acir’s trip to Mildura on 5 August as being destructive of his credit in relation to the effects of the back injury. The evidence of Mr Caligari that Mr Acir stopped on some four occasions (three voluntary and one involuntary), tallies, generally speaking, with appropriate breaks to accommodate his back condition. On the other hand, I do take into account the fact that he was able to engage in such a trip after working half a day and was seemingly unimpeded in carrying out activities seen on video, particularly at the service station prior to the trip. This seems to me to not necessarily undermine his claim, but to demonstrate that he had a capacity to perform at least light activities without any significant disability. There is also the evidence of Mr Schofield that there are clinical signs of deterioration in his back condition since that time.[290]
[290] T362, 365, 386.
The video taken in February 2007 showed Mr Acir driving a van. He was not, in my view, carrying out any activities inconsistent with his back condition.
Overall, I remain of the view that the back and shoulder injuries have impaired, to a significant extent, Mr Acir’s ability to carry out moderate to heavy activities.
The figures submitted by the parties each reflect their submissions as to the credit of Mr Acir. Counsel for Frosster suggested a figure of $90,000 and counsel for Mr Acir the sum of $290,000. I regard the latter figure as entirely out of proportion to the real effects of the injuries. I think an appropriate allowance is $140,000 for general damages, particularly given that there is a risk that Mr Acir’s life will be cut short as a result of his liver condition.[291]
[291] See [281].
Loss of earning capacity
Mr Acir is entitled to be compensated for loss of earning capacity caused by Frosster’s negligent acts. That loss of earning capacity has been produced by the injury to his back, compounded by the subsequent injury to his right shoulder and accompanying psychological sequelae. However, in determining that amount (in both assessing loss from the date of injury to the date of trial and into the future), a Court is required to take into account other events unrelated to the subject injuries which would have, regardless of the subject injuries, limited or eliminated the capacity of Mr Acir to earn income.
The approach to be taken to this issue is that stated by the High Court in Malec v Hutton:[292]
“When liability has been established and a common law court has to assess damages, its approach to events that allegedly would have occurred, but cannot now occur, or that allegedly might occur, is different from its approach to events which allegedly have occurred. A common law court determines on the balance of probabilities whether an event has occurred. If the probability of the event having occurred is greater than it not having occurred, the occurrence of the event is treated as certain; if the probability of it having occurred is less than it not having occurred, it is treated as not having occurred. Hence, in respect of events which have or have not occurred, damages are assessed on an all or nothing approach. But in the case of an event which it is alleged would or would not have occurred, or might or might not yet occur, the approach of the court is different. The future may be predicted and the hypothetical may be conjectured. But questions as to the future or hypothetical effect of physical injury or degeneration are not commonly susceptible of scientific demonstration or proof. If the law is to take account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring. The probability may be very high - 99.9 per cent - or very low - 0.1 per cent. But unless the chance is so low as to be regarded as speculative - say less than 1 per cent - or so high as to be practically certain - say over 99 per cent - the court will take that chance into account in assessing the damages. Where proof is necessarily unattainable, it would be unfair to treat as certain a prediction which has a 51 per cent probability of occurring, but to ignore altogether a prediction which has a 49 per cent probability of occurring. Thus, the court assesses the degree of probability that an event would have occurred, or might occur, and adjusts its award of damages to reflect the degree of probability. The adjustment may increase or decrease the amount of damages otherwise to be awarded. The approach is the same whether it is alleged that the event would have occurred before or might occur after the assessment of damages takes place. (Citations omitted).
[292] (1990) 169 CLR 638, 642-643.
Subsequently, in Poseidon Ltd & Sellars v Adelaide Petroleum NL,[293] the High Court said:
“In Malec v JC Hutton, this court drew a distinction between, on the one hand, proof of historical facts – what has happened – and, on the other hand, proof of future possibilities and past hypothetical situations. The civil standard of proof applies to the first category but not to the second, particularly when it is necessary to determine future possibilities and past hypothetical situations for the purpose of assessing damages.”
[293] (1994) 179 CLR 332, 350.
In Seltsam Pty Ltd v Ghaleb,[294] Ipp JA (with whom Mason P agreed) held that Malec required the application of the following principles:
[294] [2005] NSWCA 208 [103].
(a) In the assessment of damages the law takes account of hypothetical situations of the past, future effects of physical injury or degeneration, and the chance of future or hypothetical events occurring.
(b) The Court must form an estimate of the likelihood that the alleged hypothetical past situation would have occurred.
(c) The Court must form an estimate of the likelihood of the possibility of alleged future events occurring.
(d) These matters require an evaluation of possibilities and are to be distinguished from events that are alleged to have actually occurred in the past, which must be proved on the balance of probabilities.
One other issue of principle arises, namely, how to treat the independent supervening illness in the form of Mr Acir’s cirrhosis of the liver. In Jobling v Associated Dairies Limited,[295] Lord Bridge said:
“But when the supervening illness or injury which is the independent cause of loss of earning capacity has manifested itself before trial, the event has demonstrated that, even if the plaintiff had never sustained the tortious injury, his earnings would now be reduced or extinguished”.[296]
[295] [1982] AC 794.
[296] (1982) AC 794, 820. See also 809.
In Australia, the application of that principle is not doubted. In D & M Mining Pty Ltd v Barwick,[297] Giles JA (with whom Santow JA and Windeyer J agreed) said:
“Since the Court acts on facts rather than speculation where it can, if prior to the hearing there has been an event which would independently have caused loss in whole or part of the lost earning capacity, that event must be taken into account in determining the duration or extent of the exercise of a lost earning capacity and so in arriving at the plaintiff’s damages”.[298]
[297] [2004] NSWCA 137, [39].
[298] See also K-Mart Australia Ltd v McCann [2004] NSWCA 283.
With these principles in mind, I turn to the question of assessment of Mr Acir’s damages for loss of earning capacity.
Past economic loss
The parties were agreed that Mr Acir’s earnings at the time of injury was $730.30 net per week and that superannuation should be calculated at 7% of the gross figure.
Frosster contended that the damages should be circumscribed until February 2006 when the diagnosis of a severe liver condition was made. I do not accept this position, as Mr Acir would have had an economic imperative to continue working for as long as he could. Indeed, he worked on until May 2006 when his shoulder condition precluded him from working part-time. Dr Wall’s evidence, relied upon by Frosster,[299] is that once the excessive fluid in the abdomen set in with the noted muscle wasting, then it would not have been possible from the “liver point of view” for him to keep working. Whilst I accept that during this period Mr Acir sustained a significant loss of weight and was requiring regular medical attention, he had, however, attended the course at Moreland Hall and, one assumes, would have done his best to stay at work, particularly given his young family.
[299] Exhibit P3, Report of 14 March 2009.
It was submitted on behalf of Mr Acir that the appropriate way in which to assess his damages for the past was to allow his total loss of wages up until October 2007 when he underwent the cholecystectomy. It was conceded that at that point of time, the liver condition would have precluded him from working. In my view, there was a significant likelihood that Mr Acir would have worked on to that time.
Therefore I accept the calculations submitted on behalf of Mr Acir (subject to a mathematical correction):
· 20.1.05 – 1.5.05, 14.29 weeks total incapacity @ $730.30 net per
week plus superannuation (7% of $959) $67.13 per week, total
$797.43 per week $11,395
· 1.5.05 – 2.7.06, 61 weeks @ 50% capacity being net per
week plus superannuation per week, total $417.07 per
week $25,439
· 3.7.06 – 30.9.07, 64.71 weeks @ $800.40 per week
plus superannuation $72.69 per week, total $873.09 per week $56,497
$93,331
The Malec principles must be applied in evaluating damages for past hypothetical events. I have accepted that, but for the back and shoulder injuries, it is likely that Mr Acir would have worked to October 2007. However, this was by no means certain. Other possibilities need to be taken into account, such as his worsening cirrhotic symptoms and the risk that he would have had to cease work earlier or that his other underlying condition, the diabetes, may have affected his earning capacity during this period. A discount of about 15% should be applied and therefore an allowance of around 85% of the total sum. It is appropriate to round this out and allow a figure of $80,000 under this head.
Future loss of earning capacity
Mr Acir’s counsel contended that Mr Acir would have worked from mid 2010 to age 65 and that a deduction of 40% should be made for “the vicissitudes”. It was computed in the following way.
“mid 2010 to aged 65 total incapacity @ $924.90 net per week, plus
$82.29 superannuation per week, total $1,007.19 net per week
computed by the delayed 6% multiplier (661.1 x .943) less 40%
for present payment and vicissitudes $376,740”
The capital figure without reduction is $628,000 approximately.
Frosster adopted two differing positions. The first contending that no economic loss should be allowed at all after February 2006. This was put on the basis that a combination of the cirrhosis of the liver and the diabetes eliminated for good Mr Acir’s earning capacity. There was no realistic prospect of him returning to the workforce as a result of these conditions irrespective of the effects of the back injury. The second position was, I think, premised on the basis that the work injury had materially contributed to the liver condition which I have rejected. It can be put to one side.
Absent a liver transplant, Mr Acir’s earning capacity almost certainly has been destroyed. However, Dr Gow’s evidence concerning the liver transplant, which I accept, is critical. I have set it out at [92]-[93]. His unchallenged evidence was that within six months of the transplant the patient would have been able to return to work. He did not distinguish between types of employment and no challenge was mounted by Frosster to this evidence. The estimate by Mr Acir’s counsel of a return to work in mid 2010 is problematic, given Dr Gow’s evidence that it would take, on average, a year after being placed on the waiting list to receive a liver transplant and then six months recuperation before returning to work. This would make the likely date of return to work as early 2011.
The figure of $924.90 net and $82.29 superannuation relied upon by Mr Acir as representing the current applicable remuneration for a driver was derived by applying increases in the average weekly earnings for Victoria (as compiled by the Bureau of Statistics) to his agreed wage in 2006.[300] The determination of the current wage was the subject of a somewhat strange and unhelpful dispute between the parties. Frosster refused, notwithstanding an adjournment for over a month, to adduce wages of a comparable employee or even an indication of the level of wages. I was told that the responsible person was “overseas”. This approach was most unhelpful, particularly when Frosster produced and solely relied upon a schedule asserting without any foundation a 3% per annum rise in earnings and no more. It was said that use of the average earnings index was inappropriate as it would be advantageous to Mr Acir by encompassing a broad range of occupations. Of course, the answer to Mr Acir’s contention was to adduce evidence of current wages, there being no evidence that the job had disappeared. In that way, any complaint about generality would have been avoided. I am, to put it mildly, surprised by Frosster’s approach. In litigation such as this, it should be expected that an employer can, without compulsion, adduce evidence that can assist the Court in fixing an appropriate figure. Simply leaving the Court without any real assistance is not acceptable. Of course, it may be said that Mr Acir, who bears the onus, could have called a representative of Frosster to give relevant evidence. This, I anticipate, would have simply led to more confusion and extended the course of the trial, particularly given the absence of the responsible person. It is difficult to see, considering the protracted course of this trial, why this matter could not have been resolved.
[300] Exhibit P34.
The exercise of determining future loss of earning capacity does not turn on mathematical precision and the Court’s task is in fixing a sum using multipliers and calculations as a guide. Bearing this in mind, I think that the reasonable course, with one exception, is to accept the calculations put forward on behalf of Mr Acir, acknowledging that, given the way average weekly wages are calculated by the Bureau, it may somewhat inflate the true position. The exception relates to the date on which, absent the back injury, Mr Acir would have hypothetically returned to work.
I think $610,000 (reflecting, roughly, a putative return to work in early 2011) should be accepted as the starting point for the calculation of Mr Acir’s future loss of earning capacity – this being the capitalisation of the total loss of wages if he had worked unimpeded through to age 65.
The application of the Malec principles requires allowances to be made for a range of possible eventualities, independent of the back and shoulder injuries, which would have either terminated or restricted Mr Acir’s ability to earn income.
First, Mr Acir’s liver condition. I have summarised Dr Gow’s evidence as to the various risks involved in Mr Acir’s treatment.[301] There is a 25% risk that Mr Acir will not receive a transplant. In that event, the condition will be terminal, probably within two to three years, leaving Mr Acir with no capacity to engage in work until the time of death.. Assuming, however, that he receives a transplant, there is still a 5% risk that Mr Acir will not survive one year and a 25% risk that he will not survive for ten years.
[301] [92]-[93].
Second, Mr Acir’s underlying diabetic condition is a relevant factor, particularly given his involvement in manual work. It, of itself, may have caused him to cease work.
Third, Mr Acir’s record of past unemployment and part-time employment does not suggest long-term full-time employment to retirement age. Whilst it is only an indicator, the fact that he was employed on a full-time basis for roughly six months out of the five years prior to the January accident must be taken into account. His consumption of alcohol prior to the January accident also needs to be considered in this context.
Finally, there is the question of the usual vicissitudes of life. I think that most of these are catered for by the three items I have identified, but there is also the risk that some other event (such as an accident, separate illness or early retirement) may have affected his work capacity.
In my view, an appropriate discount of the capital sum reflecting the risks posed by the above factors is 70%. This would produce a capital sum to compensate Mr Acir for loss of earning capacity, referable to the back and shoulder injuries, of approximately $183,000 (being 30% of $610,000).
Fox v Wood
The total amount of taxation paid on worker’s compensation payments is approximately $15,000. This figure was not in issue. Given that I have assumed that Mr Acir would have worked until October 2007, there is no reason to adjust this figure.
Summary
(a) General damages $140,000
(b) Loss of earning capacity - past $ 80,000
- future $183,000
(c) Fox v Wood component $ 15,000
Total damages $418,000
Conclusion
I have reached the following conclusions in relation to Mr Acir’s claim:
(a) Mr Acir’s back injury is a serious injury within the meaning of the Act.
(b) Mr Acir’s shoulder injury is causally related to the back injury, for the purpose of the assessment of damages.
(c) Mr Acir’s liver condition is not related to his back injury.
(d) Frosster was negligent and in breach of its duty of care to Mr Acir. It was also in breach of its statutory obligations under the Manual Handling Regulations. Those breaches were a cause of the back injury and the subsequent shoulder injury.
(e) Mr Acir’s damages are to be assessed at $418,000.
(f) There was contributory negligence on the part of Mr Acir.
(g) Mr Acir’s damages are to be reduced by 10% on account of his contributory negligence.
(g) Mr Acir is entitled to judgment in the sum of $376,200.
Subject to hearing from counsel, I propose to give judgment in favour of Mr Acir in the sum of $376,200, being $126,000 for pain and suffering damages and $250,200 for pecuniary loss damages.
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