Akker v Padbury Nominees Pty Ltd - [2002] WADC 67

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: AKKER -v- PADBURY NOMINEES PTY LTD [2002] WADC 67

CORAM: COMMISSIONER REYNOLDS

HEARD: 19-21 MARCH, 24-26 OCTOBER 2001

DELIVERED : 9 APRIL 2002

FILE NO/S: CIV 3172 of 1999

BETWEEN: DANNY AKKER
Plaintiff
AND
PADBURY NOMINEES PTY LTD
Defendant

Catchwords:

Personal injuries - Liability and provisional assessment of damages - Sledgehammer used to clean concrete off metal fence poles - Low back injury and associated leg symptoms - Plaintiff's work history includes heavy labouring work - Pre-existing back condition unknown by employer - Injury not foreseeable

Legislation:

Evidence Act 1906

Workers' Compensation and Rehabilitation Act 1981
Workers' Compensation and Rehabilitation Amendment Act 1999
Superannuation Guarantee (Administration) Act 1992

Result:

Plaintiff's claim dismissed
Damages provisionally assessed in the sum of $291,151

Representation:

Counsel:

Plaintiff: Ms P J Giles
Defendant: Mr M L Greenland

Solicitors:

Plaintiff: Chapmans
Defendant: Greenland Brooksby

Case(s) referred to in judgment(s):

Blackman v Commonwealth 20 ACTR 33
Bowen v Tutte (1990) A Tort Rep 81-043
Brkovic v J O Clough & Son Pty Ltd (1983) 57 ALJR 834
Council of The Shire of Wyong v Shirt & Ors (1980) 146 CLR 40
Fox v Wood (1981) 148 CLR 438
Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18
Jongen v CSR Ltd (1982) A Tort Rep (81-192) 61,706
Pitsiavas v John Lysaght (Aust) Pty Ltd [1962] NSWR 1500
Thomas v O'Shea (1989) A Tort Rep 80‑251
Wylde v Aristondo 'Arriaza, unreported; FCt SCt of WA; Library No 970359; 23 July 1997

Case(s) also cited:

Bailey & Anor v Baltoro Holdings Pty Ltd, unreported; FCt SCt of WA; Library No 980564; 25 September 1998
Jones v Dunkel (1959) 101 CLR 298
Mount Isa Mines v Pusey (1970) 125 CLR 383
Watts v Rake [1961] ALR 333

COMMISSIONER REYNOLDS: The plaintiff was born on 7 December 1964 and is 37 years of age. At all material times the defendant carried on the business of manufacture and repair of fibreglass products, a hire service and reticulation service from premises in Katanning. The plaintiff commenced employment with the defendant in about November 1997 as a factory hand/labourer.
The plaintiff claims damages against the defendant in relation to back injuries that he alleges he sustained on 1 July 1998 while constructing a cyclone mesh fence around the boundary of the defendant's business premises. In particular, he alleges that he injured his back as a result of using a sledgehammer to break concrete off the base of old fence poles which were then used in the construction of the new fence.
The plaintiff's claim is based on negligence and/or breach of contract and/or breach of statutory duty. The defendant by its defence denies that it is in any way liable and that the plaintiff suffered any injury as alleged. It has further pleaded that if the plaintiff was injured as alleged then such injuries were caused and/or contributed to by the plaintiff when he used a sander while employed by the defendant on or about 4 July 1998. The defendant has also pleaded that if it was negligent then the plaintiff was contributorily negligent. The defendant has counterclaimed that if it breached its contract of employment with the plaintiff then the plaintiff breached an implied term of such contract by failing to take reasonable care not to injure himself in the course of his employment by the defendant. The defendant has also pleaded that the pathology of the plaintiff's lower back on and before 1 July 1998 was such that he was pre‑disposed to low back injury and therefore unsuited to manual labour and would not have continued to perform manual work beyond the age of 45 years.
At the conclusion of all of the evidence counsel for the defendant accepted, and properly so in my view, that the plaintiff injured his back when using the sledgehammer. The defendant thereby abandoned its pleadings that the plaintiff was not injured and that if he was then it happened when he was sanding. Whether or not the defendant was negligent and/or breached any contractual duty and/or breached any statutory duty remains very much a live issue. In relation to that the parties are in dispute on a number of key factual issues including when and how much of the fencing work was done by the plaintiff, the total number of old fence poles that the plaintiff broke concrete off by using the sledgehammer and the total amount of time that it took him to do so. If the defendant is found to be liable then it will be necessary to determine whether or not the plaintiff contributed to his injuries. Key issues to be determined to assess damages include the nature and extent of any residual disability and any residual earning capacity of the plaintiff and whether or not he had any pre‑accident condition and if so the nature and extent of it and its potential consequences particularly in relation to future earning capacity.

The plaintiff's particulars of alleged breaches by the defendant

The amended statement of claim sets out particulars of negligence and particulars of breach of the contract of employment in identical terms. It is alleged that the defendant was negligent and/or in breach of contract by:
"(a)Requiring the plaintiff to carry out duties which exposed the Plaintiff to risk of injury.
(b)Failing to provide the Plaintiff with equipment that was required to enable the Plaintiff to carry out the duties in a safe manner.
(c)Failing to supervise the Plaintiff adequately or at all to ensure the Plaintiff was not exposed to hazards.
(f)Failing to provide enough employees to enable the Plaintiff to carry out the duties in a safe manner.
(e)Failing to warn and/or communicate to the Plaintiff adequately or at all about the hazards associated with the duties he was directed to perform.
(f)Failing to warn and/or communicate to the Plaintiff adequately or at all about the hazards associated with the equipment with which he was directed to perform the duties.
(g)Requiring the plaintiff to carry out the duties on an uneven surface constituted by a pile of dirt."
The plaintiff alleges that the defendant breached its statutory duty by:
"(a)failing to provide and maintain a working environment in which the Plaintiff was not exposed to hazards, contrary to Section 19(1) of the Act.
(b)failing to provide such information, instruction and training to, and supervision of the Plaintiff to enable him to perform his work in such a manner that he was not exposed to hazards, contrary to Section 19(1)(b) of the Act.
(c)failing to provide and maintain plant and/or a safe system of work such that the Plaintiff was not exposed to hazards, contrary to Section 19(1)(a) of the Act.
(d)failing to identify, and/or assess and/or control and/or reduce hazards to which the Plaintiff was exposed, contrary to Regulation 3.1 of the Regulations.
(e)failing to identify each hazard likely to arise from manual handling, assess the risk of injury or harm resulting from such hazards, and reduce the risk of harm or injury contrary to Regulation 3.4(2) of the Regulations.
(f)Requiring the plaintiff to carry out the duties on an uneven surface constituted by a pile of dirt."

The evidence

The plaintiff was born in South Australia and moved to Western Australia sometime early in his childhood. He undertook his primary and secondary schooling in Perth. He left school at the end of Year 10 when he was 15 years of age. Thereafter he worked for a number of different employers. While the precise nature of his work varied from one workplace to another it essentially all involved labouring work. The plaintiff commenced work as a roof carpenter in about 1989. He was familiar with this type of work because his father and brothers were roof carpenters. He worked on and off as a roof carpenter for the next seven years or so depending on the state of the building industry. He found alternative employment when there was no work available as a roof carpenter.
In about 1996 the plaintiff moved to Katanning with his wife and children. The plaintiff and his wife thought that they would have a better chance of owning their own home in a country town. The plaintiff commenced work in Katanning with Milne Feeds which manufactured stock feed. The plaintiff's duties involved operating machinery, mixing and bagging feed and loading trucks with the bags of feed. He gave evidence that on an average day he would lift about 200 bags of feed each weighing 50 kilograms. The plaintiff ceased work with Milne Feeds in about November 1997 and then went to work for the defendant. The plaintiff said that he came to be working long hours and on weekends with Milne Feeds and wanted some alternative employment which allowed him to spend more time with his children.
The defendant is a family company of which Andrew Paul Blyth ("Mr Blyth") is a director and manager. It operates a number of businesses known as Great Southern Fibreglass, Katanning Handy Hire and Katanning Reticulation and Pump Supplies. In 1998 Great Southern Fibreglass was the defendant's main business. It manufactured components for bushfire equipment, tanks and lockers. The plaintiff was employed by the defendant as a factory hand/labourer and for most of the time at least worked for Great Southern Fibreglass. His duties included heavy lifting. He described working on tanks as being "fairly heavy work". As at 1 July 1998 the defendant employed an office manager, the plaintiff and another labourer. Mr Blyth used to be a fencing contractor and he helped out with all of the duties including labouring duties in the operation of the various businesses.
The plaintiff gave evidence that prior to 1 July 1998 he was not aware that he had anything wrong with his back that would have made him more vulnerable to injury from heavy labouring work. He could not recall ever injuring his back at work. Investigations carried out after 1 July 1998 including x‑rays showed that the plaintiff had a "fairly remarkable" degree of inborn spinal stenosis ie, narrowing of the spinal canal, in at least the lower levels of his back. This increased the chance of any disc prolapse rendering the plaintiff symptomatic because the lesser amount of space in the spinal canal increased the chances of compression of some sort.
I am satisfied that on 4 June 1997 the plaintiff made an application for workers' compensation in relation to an incident on 2 June 1997 when he was employed by Milne Feeds. The plaintiff stated in his application that he slipped on wet concrete and strained his lower back and wrenched his right shoulder. On 4 June 1997 Dr Henderson of Katanning issued a first medical certificate stating that the plaintiff was totally unfit for work for one week because of a low back strain injury. Dr Henderson gave a final medical certificate on 10 June 1997 in which he stated that the plaintiff had wholly recovered from the effects of the disability and was fit to return to work as from 10 June 1997. In cross‑examination the plaintiff gave evidence that it was possible that he had had minor back pain before 1 July 1998 but he did not recall sustaining a back injury when employed at Milne Feeds. While I accept that this prior back injury was minor and of no real significance I do not accept the plaintiff's evidence that he could not recall it or making an application for workers' compensation in respect of it.
Mr Blyth gave evidence that as at 1 July 1998 he had no knowledge that the plaintiff had any back weakness or disability.
The plaintiff gave evidence that he did not receive any instruction on safe lifting from the defendant. He added that most of it was just common sense and that if anything was too much to handle alone then he would always call an extra man in for assistance. Mr Blyth gave evidence that it was his practice to help his workers carry out heavy work when required.
In 1998 the defendant was expanding its business and Mr Blyth decided to replace an old existing fence with a new one which fenced in a greater area of the defendant's premises. The eastern boundary of the defendant's premises fronted a roadway known as Daping Street. The new fence was designed to fence in a greater part of the south east area of the defendant's premises. The eastern side of the fence near the south east corner was slightly inside the boundary of the defendant's premises to preserve a tree on the boundary line in that area. A pole was put in the ground at the south east corner to indicate the boundary at that point. This pole lined up with the other poles along the southern boundary and the cyclone mesh attached to the poles ran along the southern boundary from the south east corner of the premises to the start of a pine and ringlock fence.
The old fence consisted of metal poles and cyclone mesh. Mr Blyth gave evidence that he was involved in taking it down. He gave evidence that some of the material in the old fence was in good condition and that he salvaged it for use in the construction of the new fence. Those parts of the old fence which consisted of materials that Mr Blyth thought could not be re‑used were knocked over with a front end loader and deposited in a pile on the defendant's premises. Other means and greater care was taken in removing fence poles that Mr Blyth thought might be needed for the new fence. Once removed they were put together in a separate location to the other old fencing material on the defendant's premises.
The plaintiff gave evidence that on the two days, Monday and Tuesday, before 1 July 1998 he did a small amount of work on the new fence erecting poles and stringing barbed wire across the top. His time sheet for the week ending 3 July 1998 shows that he worked on the fence for 350 minutes on Monday and 440 minutes on Tuesday. He said that up until Tuesday new materials were used to erect the fence. He gave evidence that on Wednesday morning he helped Mr Blyth build shelves in the factory for about 40 minutes. He then spent about an hour digging holes for the fence posts using a shovel. He added that he occasionally used an electric Kanga jackhammer ("the jackhammer") to dig holes for fence poles if the ground was hard but that he did not use it on 1 July 1998. The plaintiff said that he then worked on a tank until lunchtime at midday. The plaintiff's timesheet for 1 July 1998 shows that he worked for 40 minutes on a tank. The timesheet also shows that he started work on Wednesday at 8.00 am. Lunchtime was between midday and 1.00 pm.
The plaintiff gave evidence that after lunch it was realised that there were not enough new poles to complete the fence and so Mr Blyth told him to take the concrete off the old fence posts so that they could be used to complete the new fence. The plaintiff says that the poles were grouped together indiscriminately in a tangled mess on top of dirt which formed a pile of about 4 to 5 foot high. He added that although a lot of the poles were bent the majority of them were straight and each of them had a big pile of concrete attached to its base.
The plaintiff gave evidence that prior to 1 July 1998 he had not cleaned any concrete off any poles and that he had not seen anyone else do so at the defendant's premises. He said that Mr Blyth told him that he wanted the concrete taken off the poles so that all of the fence posts would be erected by the Friday (two days later). The plaintiff gave evidence that he approached Mr Blyth and asked him if he could use the jackhammer to break the concrete off the poles. The plaintiff said that Mr Blyth turned down this request and said that he was going to borrow a sledgehammer from a neighbouring business. In due course the sledgehammer was given to the plaintiff to knock the concrete off the poles. The sledgehammer actually used was never produced at the trial. However, the plaintiff described a sledgehammer, which is Exhibit 4, as being exactly the same size as the one he used on 1 July 1998. There is no issue that the sledgehammer, Exhibit 4, weighs 14 pounds. This equates to 6.35 kilograms.
The plaintiff gave evidence that for about one and a half hours between about 1.30 pm and 3.00 pm he used the sledgehammer to break concrete off old poles. He said that he could not pull the poles one by one from the tangled mess to clean each one in turn because of the presence and the weight of the concrete. He said that he therefore found it necessary to stand on the top of the pile to break the concrete off each pole. During examination-in-chief he said:
"It took time because of the position I was in, like, trying to, you know, straddle a pole so you could get a decent swing at it. I couldn't swing the sledgehammer over my head because of the way I was standing, it was uneven ground, and I needed to just get the concrete off so I was swinging mainly, like, taking side swings at the sledgehammer, like, swinging it from one side to the other."
The plaintiff gave evidence that Mr Blyth told him that he would get another worker to help him clean the concrete off the poles but no‑one came to help. There is no issue between the parties that on 1 July 1998 Mr Blyth left work early to take his daughter to Perth to catch a plane overseas. The time that he actually left work is in issue. The plaintiff says that he left at about 3.00 pm. Mr Blyth says that he left at 2.00 pm. There is no issue between the parties that before Mr Blyth left work on 1 July 1998 he wanted to and did weld cleats onto the remainder of the poles needed to complete the fence. How many poles Mr Blyth so welded on 1 July 1998 is in issue. The plaintiff gave evidence that he cleaned the concrete off about 10 poles. His evidence is to the effect that after he cleaned each pole Mr Blyth was then able to weld a cleat onto it.
It is not possible to conclude the precise amount of time that the plaintiff took to clean each pole. He said that it varied according to the amount of concrete on the pole. Strainers, ie poles that are put at corners or angles of a fence and take most of the strain from the cyclone mesh and wiring of the fence, have more concrete on them than in‑line poles that are positioned between the strainers. While the in‑line poles take some strain it is nowhere near as much as the strainers. The in‑line poles provide lateral support for the cyclone mesh and wiring between the strainers.
During examination‑in‑chief the plaintiff was asked and said:
"How long would you estimate it took you to clean each particular pole?---Maybe – it really did vary, like, because the concrete – the amount of concrete on the poles varied. There were some that had a lot more concrete than others on it. Around five or six minutes, I'd imagine."
During cross‑examination the plaintiff was asked and said:
"Are you able – thinking about it now – are you able to estimate how many swings of the sledgehammer per minute you were able to undertake, on average during that one and a half hour period?---Half a dozen.
Per minute?---Yes."
Later in cross‑examination the plaintiff was asked and said:
"How long did it take you to knock the concrete footings off the strainers?---I can't recall how long it took to take the concrete off the strainers
Was it longer than 5 minutes?---Possibly, yes.
Was it longer than 1 minute?---Yes.
Do you think it was possible that you were able to do those strainers in between 1 and 5 minutes?---I don't think so, no
To do the in‑lines, which have smaller footings, don't they?---Generally, yes.
It took less than it took to do the strainers?---It would all depend.
Well, on what?---Just the amount of concrete that was around them.
But the in‑lines have less concrete than the strainers, don't they?---It's just hard to judge how long it would take to remove the concrete off the posts.
You could do an in‑line in anything from one to half a dozen blows, couldn't you?---Yes, possibly.
I mean, that would take a matter of seconds, wouldn't it?‑‑‑For a half a dozen blows?
Yes?‑‑‑With the sledgehammer?
Yes?‑‑‑No, I don't believe so.
Are you saying that it would take longer than 1 minute ‑ ‑ ‑?‑‑‑Yes.
‑ ‑ ‑ to knock the concrete footing off an in‑line?‑‑‑Yes.
What's the most time it took you to take the concrete off an in‑line‑‑‑I don't know.
Look, it couldn't be as much as 5 minutes, could it?‑‑‑I wouldn't know.
It would have to be less than 5 minutes?‑‑‑I wouldn't know.
It would have to be less than 10 minutes‑‑‑I'd imagine so, yes."

The plaintiff gave evidence that although the way he had to swing the sledgehammer was uncomfortable he felt okay when doing so. He said that it was not until afterwards when Mr Blyth asked him how it went that he told Mr Blyth that his back was "pinging a bit". The plaintiff's application for workers' compensation set out that he first told Mr Blyth that he had injured his back at 2.00 pm on 1 July 1998. In cross‑examination the plaintiff sought to explain this by saying that he suffered his injury at 2.00 pm but continued to hammer until 3.00 pm. When asked what had made him select 2.00 pm as the time of his injury, he said, "I honestly don't know". The plaintiff said that Mr Blyth left work later than 2.00 pm.
Mr Blyth produced a sketch plan of the business premises ("the plan") which forms part of the evidence. It shows a large part of the block which adjoins Daping Road on the eastern side, part of the northern and southern boundaries, the relative positions of an office and a factory on the block and the line of the new fence on the block.
The office is on the eastern side of the factory and near the north east corner of the block close to Daping Street. The new fence runs from the south east corner of the office out towards Daping Street and then generally parallel to and near Daping Street and along the eastern boundary to the southern boundary near the south east corner of the block. A gate is positioned at about the middle of the eastern fence line. The new fence incorporates an old strainer pole on each side of the gate. From the office to the pole on the south side of the gate inclusive, the new fence has five new strainer poles, five new in-line poles and the two old strainer poles that I have just mentioned. There is a small angle in the fence at the position of the gate. From the old strainer pole on the south side of the gate the fence runs south to another strainer which doubles as a street sign and there are three new in-line poles in between. There is no issue on the number and position of poles but there is on whether poles were new or old.
The plaintiff said that the street sign/strainer pole is the old street sign that had been taken out of the ground earlier when site works were carried out. He said that it was still used as a street sign when it was incorporated into the new fence. The plaintiff also said that he had to clean concrete off both the base of the street sign pole and the base of an old strut pole or support bar that was connected to the street sign pole when it was incorporated into the new fence. Mr Blyth gave evidence that the street sign pole had not been used as a strainer before and that when it was taken out of the ground at the time of the site works it had no concrete on its base.
Mr Blyth numbered some of the street poles as shown on the plan. He numbered the street sign pole number 11. It is a strainer pole in the new fence because as already mentioned the fence angles slightly from this point to a point on the southern boundary a couple of metres or so from the south east corner to preserve a tree on the eastern boundary line near the south east corner. Mr Blyth has shown the strainer pole at the intersection of the eastern and southern sides of the fence as pole number 6. Between pole number 11 and pole number 6 Mr Blyth has shown three new in-line poles and numbered them 10, 9 and 8 from north to south.
Mr Blyth has numbered the old strainer pole used in the new fence at the south east corner number 7. From and including the south east corner and along the southern boundary Mr Blyth has shown seven poles in the new fence. They are number 7 at the south east corner and from that point and moving along the southern boundary the poles are numbered 6, 5, 4, 3, 2 and 1.
Mr Blyth has shown poles number 7 and number 1 as old strainer poles from the old fence, number 6 as a new strainer pole, numbers 5, 4 and 2 as old in‑line poles from the old fence and number 3 a new in-line pole.
The plaintiff gave evidence that he had to clean concrete off every one of the poles numbered 1 to 7 inclusive and 11 on the plan. If he also had to clean concrete off the struts on poles 1 and 11 then that would produce a total of 10 poles that he had to clean concrete off. He also gave evidence that he put all of the fence poles numbered 1 to 11 inclusive on the plan in the ground after Mr Blyth left work on Wednesday, 1 July 1998, and before he finished work on Friday, 3 July 1998.
Mr Blyth gave evidence that when he left work for Perth at about 2.00 pm on Wednesday, 1 July 1998 the strainers numbered 11, 7, 6 and 1 on the plan were already in the ground and the only poles that needed to be put in the ground were in‑line poles numbered 2, 3, 4 and 5 on the southern side of the fence and 8, 9 and 10 on the eastern side of the fence as shown on the plan. Mr Blyth said that of the seven in‑line poles four, namely 3, 8, 9 and 10 were new and had no concrete on them and that only three, namely 2, 4 and 5 were old poles and needed concrete cleaned off them.
The plaintiff was questioned at length on how he went about erecting the fence after Mr Blyth had left for Perth. His responses contain a number of significant inconsistencies.
Initially in examination-in‑chief the plaintiff gave evidence that he put in the southern part of the eastern fence line from and including the street sign/strainer pole numbered 11, the in-line poles numbered 10, 9 and 8, and the strainer pole numbered 6 at the point where the eastern fence line intersects the southern fence line, on Wednesday afternoon. It is difficult to understand how he would have had time to do all of this between 3.00 pm when he says he finished cleaning concrete off the poles and 4.00 pm when he finished work. In cross‑examination he said that he put in the street sign/strainer pole numbered 11 on Thursday. He also said in cross‑examination that he put in the strainer pole numbered 6 on the Thursday as well and used a string line between the poles numbered 11 and 6 to fix the position for the in-line poles numbered 10, 9 and 8 on the plan. He also said that he put in strainer poles 7, 6 and 1 early on Thursday morning. He said that he did not put in any strut poles. At sometime or sometimes strut poles were connected to the strainer poles numbered 11 and 1.
In cross‑examination the plaintiff also gave evidence that he did not recall what order and on what day he put the poles in. Having said that, he later said in cross‑examination that he "vividly" remembers and that he had "no doubt at all" that he put in all of the poles numbered 11 to 1 inclusive on Thursday. He added that Thursday was devoted to getting as many poles in as he possibly could so that he would be able to finish the job by stringing barbed wire on the fence on Friday.
This evidence is inconsistent with the plaintiff's initial evidence that he put some poles in the ground on Wednesday. It is simply impossible to reconcile it with entries on the plaintiff's time sheet for the week ending 3 July 1998, which was completed by the plaintiff himself, that he worked on the fence for 80 minutes on Thursday and 120 minutes on Friday.
The plaintiff could not give the cubic capacity of the defendant's cement mixer used in the construction of the fence. He also could not give the volume of the concrete mix needed to help secure each strainer and in‑line pole in the ground. He agreed that Mr Blyth's method was to wait until the next day for the concrete to cure before putting any strain on the poles because a string line could move strainers if they were positioned in wet concrete. However, the plaintiff said that he waited only two to three hours for the concrete to go off and that he did not use any additives for it to cure quickly. He accepted that the defendant's cement mixer took about 10 to 15 minutes to complete a cycle. He could not recall anything about digging any of the holes for the poles. This was the first fence that the plaintiff had played any part in constructing. The plaintiff later accepted in cross‑examination that 80 minutes was not enough to complete all of the work necessary to put in the poles numbered 11 to 1 inclusive on Thursday.
Mr Blyth gave evidence that between 1976 and 1980 he worked full time as a fencing contractor. He presented as being a very meticulous type of person at least in relation to work. He gave evidence that he was the one who took the street sign out of the ground before the new fence was constructed. He said that it did not have any concrete footings on it when it was taken out. He also said that he was involved in putting the street sign/strainer pole numbered 11 in the ground as part of the new fence and that he also put in the strut that was connected to it. He also said that the strut was "an old one" and that "we would have knocked concrete off the bottom of it".
Mr Blyth gave evidence that prior to going to Perth in the afternoon of 1 July 1998 he and the plaintiff had helped each other put up sections of the fence. He said that the strainers numbered 11, 7, 6 and 1 were all in the ground before he left for Perth on 1 July 1998. He also said that he put in the strainer pole numbered 7 to show the outer boundary of the block (at the south east corner).
Mr Blyth gave evidence that he recalls having to dig a trench at the position of the strainer pole numbered 6 to displace water which had pooled in the hole. The plaintiff gave evidence that he had no problem making the hole for this strainer pole. Mr Blyth also gave evidence that he recalls grinding paint off the strainer pole numbered 6. When Mr Blyth was asked whether anything stuck in his mind about putting in the strainer pole numbered 1 he said "Yes" and explained that it was necessary to leave a gap of about 1 foot between this strainer pole and the end of the Neeta screen fence on the southern boundary because the termination post on the Neeta screen fence had a concrete footing around it.
I repeat Mr Blyth's evidence that the only poles that were not in place when he left for Perth were the in‑line poles numbered 10, 9 and 8 on the eastern fence line and the in‑line poles numbered 5, 4, 3 and 2 on the southern fence line. He said that the in‑line poles numbered 10, 9 and 8 were new. He also said that the in‑line pole numbered 3 on the southern fence line was not an old in-line pole from the old fence. He said that he made the in‑line pole numbered 3 on the plan out of pieces of scrap pipe. He added that it can be distinguished from the old in‑line poles from the old fence because it is made of a new galvanised material, it has no excess holes in it, it has no rust stain on it and it has a welded section at the top to make it the right height. Mr Blyth said that this in‑line pole numbered 3 did not have any concrete footing on it that needed to be cleaned off by the plaintiff before it was used in the new fence. Mr Blyth gave evidence that the only poles the plaintiff needed to clean concrete off on 1 July 1998 were the three in‑line poles numbered 2, 4 and 5 that were eventually positioned on the southern boundary of the fence.
Mr Blyth gave evidence that when he demolished the old fence he separated the damaged material from the poles that could be re‑used. He said that the re‑usable poles "were just laying on the ground; there was no pile. They were just scattered on the ground." He described the ground as being "relatively level … sandy soil".
Mr Blyth identified the photograph, Exhibit 15, as showing the area on the defendant's premises where the re‑usable poles with concrete on them were placed. The photograph shows the area to be flat. The photograph was taken a few weeks after 1 July 1998 by an insurance investigator. I am satisfied that the surface of this area of ground did not materially change within this time. It also shows a pile of pieces of broken concrete of varying shapes and sizes. The amount of concrete shown in the photograph is clearly more than the amount of concrete off three old in‑line poles. Some pieces are clearly too large to have been cleaned off old in‑line poles.
Mr Blyth's evidence is that the sledgehammer was borrowed from a neighbouring business "quite a time before 1 July 1998" when they first started cleaning concrete off the old poles. He gave evidence that the strainer poles on both sides of the gate to which I referred earlier, the strainer poles numbered 7 and 1, the struts used on the street sign/strainer pole numbered 11 and the strainer pole numbered 1 were all old and needed to have concrete cleaned off them.
Mr Blyth's original timesheet for the week ending 3 July 1998 is Exhibit 19. He gave evidence that he left work early on 1 July 1998 to bring his daughter to Perth to catch a plane to Europe. He said that it takes three hours to drive from Katanning to Perth. He also said that he completed his timesheet progressively during the day and explained why the original of his timesheet for 1 July 1998 was completed using different coloured ink. He said that the black ink entries represent the morning and the red ink entries represent the afternoon. His timesheet shows that on 1 July 1998 two time periods one of 40 minutes and one of 30 minutes were worked in the morning in connection with the fence and that he finished work at 2.00 pm. He cannot recall the morning in any detail but agreed that he welded cleats on poles as the plaintiff broke concrete off them.
On Monday, 6 July 1998, Mr Blyth and the plaintiff worked together at a meatworks factory in Katanning. The plaintiff operated a sander on the floor of the factory. Mr Blyth said that when the plaintiff reported for work on Tuesday, 7 July he told him that he could not work because he had a sore back from the previous Wednesday and that he had reported it to him on the Wednesday before he went to Perth. Mr Blyth gave evidence that he told the plaintiff on 7 July 1998 that he did not recall the plaintiff telling him anything about the accident on the Wednesday afternoon. On 13 July 1998 Mr Blyth signed a workers' compensation form relating to the plaintiff's use of the sledgehammer on 1 July 1998 which stated that the plaintiff told Mr Blyth about the accident at 2.00 pm on 1 July 1998.
I received a video into evidence as part of the defence case. The video shows a male friend of Mr Blyth breaking concrete off the base of six concrete poles. Mr Blyth said that the poles were all in‑line poles. Four were from the old fence across the front of the premises and two were from the old fence on the northern boundary. He said that he progressively erected both of those fences in about 1982/1983 and that when he did so he would have used a cement mixer to mix a standard concrete mix of four parts of aggregate, two parts of sand and one part of cement. He said that the cement mixer gave the concrete mix a good consistency. It took nine blows of the sledgehammer in a time of about 16 seconds to clean the concrete off the pole with the most amount of concrete on it. The plaintiff gave evidence that the in‑lines he cleaned had three times the amount of concrete on them compared to those in the video. Mr Blyth gave evidence that when the video was being recorded he said that the sledgehammer being used by his friend weighed 3.6 kilograms but now he could not recall the basis for saying so and he could not say how much it actually weighed.
I accept Mr Blyth's evidence relating to the poles and the concrete mix as shown in the video. I do not accept the plaintiff's evidence that the poles he cleaned had three times more concrete on them. There is no reliable evidence that the sledgehammer used in the video weighed 3.6 kilograms and so I make no finding that it did.
If the sledgehammer used in the video did weigh 3.6 kilograms and not 6.35 kilograms (14 pounds) then it would have been easier to swing but less effective on impact with the concrete. The weight of the sledgehammer unknown and the fact that a person other than the plaintiff was swinging it significantly diminish the evidential value of the video. However, nothing turns on the video given my assessments of the plaintiff and Mr Blyth on the rest of the evidence and my finding that the plaintiff only cleaned three poles on Wednesday, 1 July 1998.
The plaintiff attended on Dr Mellick, a general medical practitioner in Katanning, on 7 July 1998. On examination Dr Mellick found a decreased range of movement of the lumbar spine, no tenderness and no neurological damage. He certified the plaintiff to be unfit for work and since then the plaintiff has not returned to work. Dr Mellick referred the plaintiff to a neurosurgeon, Richard Vaughan ("Mr Vaughan"). On 15 October 1998 Dr Sweeney reported to Mr Vaughan on the results of an MRI of the plaintiff's lumbar spine. At L4/5 there was disc desiccation associated with a left postero‑lateral annular tear and a shallow broad based disc bulge. The central spinal canal was congenitally quite small and the shallow disc produced a moderately severe central canal stenosis. The left L4 nerve root passed above and lateral to the bulging disc and there was no evidence of any neural impingement. At L5/S1 there was no desiccation associated with a posterior annular tear. The disc contour was normal and there was evidence of neural impingement. In summary the central spinal canal was congenitally quite narrow and there was a moderately severe central canal stenosis at L4/5 secondary to a shallow broad based disc bulge.
The level of concern for Mr Vaughan was L4/L5 rather than L5/S1 although there was a tear at L5/S1. He said that a normal disc does not have a tear in it. He added that the existence of a tear does not necessarily mean that it would be painful. Dr Sweeney referred to significant degeneration at L4/L5. Mr Vaughan said that desiccation meant lack of water which in general terms meant degeneration.
The plaintiff complained of back pain and referred hip/leg pain when examined by Mr Vaughan on 5 October 1998. Mr Vaughan also noted that the plaintiff walked with a mild stooped posture. The plaintiff decided to undergo surgery and in or about late October/November 1998 Mr Vaughan successfully performed a laminoplasty on the plaintiff. The operation enabled Mr Vaughan to confirm that the plaintiff was born with a congenitally small spinal canal. It was less in volume than would be the norm for a person of his age in the community. Mr Vaughan also noted that a partial disc extrusion was superimposed on this at L4/L5 and had torn through the outer layers in the central part of the canal and off to the left compromising the fifth nerve root. Mr Vaughan also noted that the fourth nerve root was partially displaced. He described the fifth nerve root as being "jammed" which he attributed to the plaintiff having a shortened canal which meant that there was little space to accommodate the extrusion and so it pushed the nerve root onto the bony structures of the area.
Mr Vaughan was asked whether it was normal when operating to find the fifth nerve root jammed as the plaintiff's was and responded that there are many variations but it was a normal finding in people who have a small canal with an extruded disc but it was not normal in people who have a normal sized canal. Mr Vaughan was satisfied that the surgery successfully relieved the effect of the plaintiff's stenosis at the L4/L5 level.
Mr Vaughan gave evidence that he could not be certain whether the disc bulge at L4/L5 was caused by gradual degeneration or trauma. He said that the degeneration in the plaintiff's case had been occurring for a time well before 1 July 1998 but on his understanding it has not been painful. Mr Vaughan expressed the opinion that the disc bulge at L4/L5 was consistent with the plaintiff's history of using a sledgehammer but he added that he could not say if the injury occurred on day 1 or day 2 or whenever.

Mr Vaughan gave evidence that post‑surgery the plaintiff showed some improvement but not to the level expected. In a non‑workers' compensation case he would have expected a graduated return to work within six to 12 weeks. However, save for a brief work trial the plaintiff has not returned to work since the surgery. Mr Vaughan indicated that while in most cases nerves recover and function normally when an external force is removed from it, in about 10 per cent of cases people continue to suffer pain. He said that permanent nerve damage caused by the compression of the nerve was a possible explanation for the continuation of pain. In a report dated 30 April 2001 he stated that the plaintiff's ongoing pain state was likely the result of a multiple number of factors namely the disc, possibly the joint and ligamentous and soft tissue origin all aggravated by stress, anxiety and gross uncertainty about the future. He also stated that the plaintiff had not given him any inconsistent descriptions of pain and disability.
The plaintiff attended on Harold Schaeffer ("Mr Schaeffer"), a consultant neurosurgeon, on 9 September 1998 at the request of the defendant's insurer. In a report dated 14 September 1998 Mr Schaeffer stated that his examination of the plaintiff did not reveal any objective evidence of discogenic disease or injury and that the plaintiff had full lumbar mobility with no root tension. He gave a diagnosis of soft tissue muscular strain. Mr Schaeffer expressed these views without the benefit of any x‑rays or CT and MRI scans of the plaintiff's lumbar spine. The plaintiff later attended on Mr Schaeffer on 13 April 1999 and at that time Mr Schaeffer viewed a CT scan taken on 23 September 1998 and an MRI scan taken on 15 October 1998. On further examination of the plaintiff and on viewing the scans Mr Schaeffer revised his earlier views and concluded that the plaintiff was born with an abnormal spinal canal with short pedicles and a degree of narrowing of the canal which was enhanced by the gradual development of degenerative change of the lower lumbar discs, and in particular substantial degenerative change at the L4/L5 level. He considered that this was likely to have acted as a contributory factor to the development of the plaintiff's low back symptoms which were associated with left‑sided sciatica. In a report dated 21 April 1999 he stated that the plaintiff's back condition was substantially the result of developmental and degenerative factors and that the use of the sledgehammer was an aggravating factor of lesser importance. He added that the surgery carried out by Mr Vaughan essentially related to the plaintiff's pre‑existing condition of spinal canal stenosis and involved widening the plaintiff's spinal canal at the L4/L5 level by disc removal and laminectomy.
The plaintiff was reassessed by Mr Schaeffer on 1 November 1999. In a report dated 6 November 1999 Mr Schaeffer stated that the plaintiff presented with a considerable degree of inconsistency with the left straight leg raising test and with tests of the lumbar spinal mobility. He also stated that the plaintiff's failure to indicate any clinical improvement following the surgery by Mr Vaughan showed that many aspects of his then current condition were not specifically related to the spinal canal stenosis. This opinion was no doubt based on an understanding that Mr Vaughan had successfully relieved the plaintiff of the effects of spinal stenosis at the L4/L5 level. Despite having expressed this opinion Mr Schaeffer gave evidence that persisting symptoms could result if a nerve root had been compressed for long enough or severely enough. He also gave evidence that surgery of the type performed by Mr Vaughan on the plaintiff normally produced a moderate improvement but that was not universally the case.
In a report dated 16 October 2000 Mr Schaeffer stated that 25 per cent of the plaintiff's current condition could be reasonably attributed to the injury of 1 July 1998 and the remaining 75 per cent of his symptoms were attributable to an underlying condition which was non‑work related.
On 14 October 1998 the plaintiff attended on Franklyn Bell ("Mr Bell"), a consultant orthopaedic surgeon, at the request of the defendant's insurer. Mr Bell had the advantage of viewing x‑rays of the plaintiff's lumbar spine taken in July 1998 and the CT scan taken on 23 September 1998. In a report dated 20 October 1998 he expressed the opinion that the degree of stenosis at the plaintiff's L4/L5 level was fairly remarkable for a man of the plaintiff's age and would undoubtedly produce significant problems as the plaintiff aged. He also expressed the opinion that in due course the plaintiff would require the compression of those lower stenotic segments. As mentioned, Mr Vaughan performed this surgery in or about late October/November 1998. In the same report Mr Bell expressed the view that the plaintiff became symptomatic as a result of the short period he spent wielding the sledgehammer.
In a report dated 15 February 2001 Mr Bell stated inter alia that because the plaintiff had a congenital stenotic condition of the fifth lumbar vertebrae there did not need to be a lot of swelling as the result of traumatic changes in his disc to make him become significantly symptomatic. The CT scan of the plaintiff's lumbar spine taken on 23 September 1998 showed some bulging of the L4/L5 and L5/S1 discs. Mr Bell also indicated in his report that the plaintiff may have some degree of ongoing nerve pain notwithstanding the satisfactory surgery performed by Mr Vaughan. Mr Bell agreed with Mr Schaeffer that 75 per cent of the plaintiff's problem was caused by the underlying stenosis of his fifth lumbar vertebrae and perhaps to a lesser extent the fourth lumbar vertebrae segment and that 25 per cent was caused by the trauma superadded to such predisposing condition.
On 16 September 1999 the plaintiff attended on Michael Bowles ("Mr Bowles"), an occupational physician. Mr Bowles diagnosed an L4/L5 disc prolapse superimposed into a congenitally stenosed spinal canal resulting in a left L5 radiculopathy. He noted that the plaintiff's stenosis had been surgically decompressed by Mr Vaughan and as such there was no evidence of ongoing L5 nerve root compression. Mr Bowles also noted degenerative changes at the lumbar and lumbosacral discs and an annular tear in the L5/S1 disc. In a report dated 16 September 1999 Mr Bowles stated that the plaintiff's condition sustained on 1 July 1998 had been dealt with and as such that condition was no longer a restrictive factor for him returning to work as a factory hand/labourer. However, Mr Bowles expressed the opinion that the plaintiff was not fit to return to such work because one predictor of future back problems is a previous episode of back pain and the plaintiff having sustained a back injury on 1 July 1998 he now presented as a person of high risk of sustaining further injury or re‑aggravation of his back complaint. Mr Bowles gave evidence that for a previous episode of back pain to be taken into account it needed to be a reasonably significant episode of back pain in terms of lost time or other factors involved. He added that a minor sprain or strain resulting in a day or two off work or for which no treatment was required would not be a prognostic feature.
Mr Bowles gave evidence that the plaintiff's ongoing symptoms could not be fully explained by the use of the sledgehammer on 1 July 1998. He believed that the surgery performed by Mr Vaughan dealt with the plaintiff's nerve root impingement problem by freeing the nerve and making more room in the spinal canal. He explained the difference between being disabled, having an impairment and having pain. For example, he said that on a medical basis it was not possible to differentiate someone having back pain and undertaking activities or going to work from someone having the same symptoms and not working. He pointed out that in such a case there were non‑medical factors influencing the outcomes. He believes that there are psychosocial and work related factors influencing the plaintiff's presentation including a feeling of social isolation, conflict with his employer, reluctance to continue with a rehabilitation programme, fear avoidance behaviour and the need to prove a disability. Mr Bowles added that the resolution of this litigation would remove a barrier to furthering the plaintiff as a person and improving his function. In essence Mr Bowles spoke of the need to adopt a "wholistic approach" ie, the need to identify and deal with all of the factors influencing a successful outcome. He said that it is not just a physical-based issue.
On 17 April 2000 the plaintiff attended on Peter Woodland ("Mr Woodland"), a spinal surgeon, at the request of Mr Vaughan to advise on the proper course of treatment for the plaintiff. Mr Woodland advised that conservative treatment was preferable to surgery involving interbody fusion at the L4/L5 and L5/S1 levels. He recommended that the plaintiff continue with some type of regular exercise programme to maintain general aerobic fitness, muscle strength and spinal mobility.
Mr Woodland reviewed the plaintiff on 18 April 2001. In a report dated 23 October 2001 Mr Woodland stated that the plaintiff had pre‑existing degenerative changes in his lower back associated with lumbar spine stenosis. He also stated that one explanation for the plaintiff's ongoing symptoms was that pre‑existing changes had been rendered symptomatic by a superadded disc bulge/protrusion at the time of the injury on 1 July 1998. Mr Woodland also stated that the purpose of a laminectomy as performed on the plaintiff by Mr Vaughan was to relieve leg pain rather than back pain. Based on his experience there was a 15 per cent chance that such a procedure would produce no improvement or make the symptoms worse.
Mr Woodland noted some inconsistencies when he examined the plaintiff on 17 April 2000 and 18 April 2001 in relation to straight leg raisings measurements. However in light of such testing being only one of several tests to determine an individual's consistency he did not think that such inconsistencies were significant in the plaintiff's case.
On 26 May 2000 the plaintiff attended on Z. Stan Wisniewski ("Mr Wisniewski") and complained of bladder problems. In particular the plaintiff complained of frequency of voiding, intermittent stream, episodic urge, slow stream and occasional dribbling. I am not satisfied that the plaintiff's urological problems relate to his use of the sledgehammer. I will deal with this issue in more detail later.
I will now refer to the evidence of medical practitioners on the plaintiff engaging in the activity of swinging a sledgehammer.
Mr Schaeffer was asked in examination‑in‑chief what advice he would have given if asked by an employer with no knowledge of the plaintiff's stenosis whether it was appropriate for the plaintiff to use a sledgehammer. He replied that absent any knowledge of the plaintiff's spinal canal stenosis he would have been quite sanguine about the plaintiff's ability to use a sledgehammer and would not have imposed any time limit on such use.
In cross‑examination the same question was put to Mr Schaeffer but further qualified such that he was also asked to take into account the weight of a 14 pound sledgehammer lifted by him when he was in the witness box, that the plaintiff was standing on a tangled mess of poles and concrete on top of a 4 foot pile of dirt and sand at the time, that the plaintiff asked if he could use a light jackhammer instead of the sledgehammer and that the plaintiff was required to clean the concrete off about 10 poles in about one and a half hours. Mr Schaeffer replied that he would not offer any advice to an employer on whether it was appropriate for the plaintiff to use a sledgehammer because it was not a medical question and it was not in his area of expertise. He also said that his initial opinion was not an expert opinion because it was not a neurological issue. Mr Schaeffer gave evidence that people with spinal canal stenosis are more vulnerable to back strains than the average individual because of the narrowing of the spinal canal and the roughening of the joint surfaces at the stenosis level.
Mr Bell gave evidence that if he was asked by the employer before the accident for advice on whether the plaintiff was fit to use a sledgehammer to break cement on the ground and without knowing about the stenosis he would have said that the use of the sledgehammer was "fair game" even for up to 90 minutes. Mr Bell gave evidence that if he was asked for such advice knowing about the plaintiff's stenosis then he would have advised that the plaintiff was taking a risk because the stenosis provided the conditions for any little bit of degenerative change to become symptomatic.
In a report dated 23 October 2001 Mr Woodland set out questions put to him by the plaintiff's solicitors and his opinions as follows:
"(i) Whether the swinging of a weight of 14lbs, over the head and away from the body places stress on the lumbar spine;
Yes.
(ii)Whether the effect of the impact of the sledgehammer head against the concrete would exacerbate the stress on the lumbar spine;
Yes.This activity as reported would certainly place stresses on the lumbar spine. Obviously all individuals experience some degree of stress on his/her lumbar spine on a daily basis. If indeed Mr Akker was required to use a 14lb sledgehammer for 90 minutes and particularly if he had to maintain an awkward posture whilst working on an uneven surface, this certainly could cause significant stresses on the lumbar spine, indeed enough to cause disc injury, in my opinion. Again, it has to be said that this man definitely did have pre‑existing lumbar spine degenerative changes involving the lower discs and facet joints and also there was definitely the condition of stenosis (canal narrowing).
(iii)Whether the same or similar stress would have been placed on the lumbar spine, while performing this task on an even surface;
In my opinion, theoretically the stress on the lower back would be less in this situation but I am unable to comment as to whether this would be a significant factor in the causation of his back pain.
(iv)Whether it would have been probable that a spinal injury would have occurred while performing this task over a shorter time, eg: 15 minutes …;
If Mr Akker did indeed sustain significant spinal injury on the injury date carrying out sledgehammer work, I believe it is reasonable to conclude that the injury could have occurred from either a 15 minute period or 90 minute period."
In examination‑in‑chief after Mr Bowles was shown and lifted a 14 pound sledgehammer he was asked and said:
"Assume that Mr Akker was there with this sledgehammer and was asked to do some sledgehammering with it to break concrete on the ground. Also assume that he has had no previous back trouble and that – not that it would matter to you, but you don't know – he has a stenotic condition in his back. So with all of those assumptions, he's just basically a normal bloke of 33 being asked to carry out some sledgehammering with that sledgehammer. If the employer then turned to you and said, 'Look, is this all right?' what would you say?‑‑‑If I've seen his work history as it's put forward by the rehabilitation provider, no past history, he's being doing manual work, I couldn't see anyone would say, 'No.' You know, if he wants to do it, he can do it. I mean, there's no basis for making a prediction that he would have a problem doing that. When he was roof carpentering for 5 years, which is pretty arduous, as well as the Milne Feed carrying 50 kilograms on his back – and looking back at those, and say, 'Look, he's a fit' – like you say, a normal person, and what's unreasonable? I mean, I do that myself, breaking – I'd be a bit stiff and sore because I haven't done it for a while, but that's a separate issue."
In cross‑examination Mr Bowles was asked and said:
"So what about the other circumstances, the uneven work surface, for example? Would you consider that to be an adversive situation?‑‑‑Again, in terms of – are we talking about knowledge of the problem or – he's a fit, healthy man, so people do this. Brickies labourers do it, anyone undertakes these things from time to time, and if we're going to stop someone from doing it we're going to stop most manual workers from doing activity."
Later in cross‑examination Mr Bowles was asked and said:
"In this case where you have a lengthy handle 3 and a half feet long or thereabouts, combined with a very heavy head, you have a number of risk factors there, don't you?‑‑‑Well, undertaking physical activity is a risk factor, but most back pain is spontaneous, so again ‑ ‑ ‑
I understand your position on that, but I'm not asking about any physical activity ‑ ‑ ?---Sure, it's a risk. It's a risk for anyone to undertake.
Yes, and the longer the period over which the task is done – is it a risk factor?---No, there's no evidence that you wear yourself out at work. There's no evidence that disc degeneration is worse in manual workers than it is elsewhere."
Mr Bowles agreed that it would have been easier and less risky to clean the concrete off the poles by using a small jackhammer instead of a sledgehammer. It is clear from his evidence that he recognised the need to minimise risk of injury and thought that risk minimisation should be considered within the bounds of what was practicable in the circumstances. He gave the following evidence in relation to the use of a jackhammer:
"Well, I would see risks in setting it up, carrying it, moving it around, lifting it. I mean, everything is inherent. There's a risk attached to it. Again, it's the quantification of the risk and the magnification of the hazard that would lead you to make some changes in a practical basis which I think is limited by resources in most cases."
and
"I would like to see safety footwear and goggles and other type of personal protective equipment in use, and also if they're going to be using devices like that, the expectation is people have been trained and have some instruction in their use and they're not just handed an implement and told to go and use it without having any instruction. I think that's probably a big issue in using these mechanical devices."

Conclusions on liability

I find that as at 1 July 1998 the plaintiff was 33 years of age and until then had a long history of continuous employment with various employers and in various positions all of which involved labouring and at times heavy labouring duties. I also find that the plaintiff's only prior history of any back injury was in June 1997 when he was employed as a labourer with Milne Feeds in Katanning. The medical certificates of Dr Henderson support the plaintiff's evidence that he only needed to take two days off work for what Dr Henderson described as a low back strain injury. I accept Mr Bowles' evidence that an episode of back pain of this sort is not significant for the purpose of making a prognosis on a person's vulnerability to injury.
I do not accept Mr Schaeffer's evidence that the plaintiff became symptomatic on 1 July 1998 as a result of further degenerative changes in his lumbar spine giving rise to a shallow broad‑based bulge at the L4/L5 disc rather than as a result of trauma. Accepting that a degenerative disc may not necessarily need trauma for bulging to occur the evidence shows that Mr Schaeffer arrived at this opinion by placing great reliance on the fact that he found inconsistencies in the plaintiff's responses when he conducted straight leg tests. I accept the evidence of Mr Woodland in his report dated 23 October 2001 that straight leg testing is only one of several tests to determine an individual's consistency. Further, I note that even though Mr Bell noted inconsistencies in straight leg testing he was nevertheless of the opinion that if the plaintiff's history of no prior back injury was accepted then the plaintiff's use of the sledgehammer on 1 July 1998 caused his injury and symptoms. Further again, I wish to make the point that even if inconsistencies are present on straight leg testing that does not of itself necessarily mean that a plaintiff has no symptoms.

Mr Vaughan decided that it was best to continue with conversative treatment.
In his report dated 30 April 2001, Mr Vaughan stated inter alia:
"I am of the view that any further major intervention for stabilising the lower back is unlikely to improve the position but he must continue with an appropriate exercising programme and may be helped by further pain relieving procedures such as stimulating devices. That is also uncertain."
Consistent with my earlier comments in relation to attendances on medical practitioners and medication there is a chance that the injury on 1 July 1998 may have done no more than accelerate the plaintiff's need for a spinal fusion.
Mr Vaughan gave evidence that commonly in a one or two level fusion using the latest hardware the all‑up costs would be close to $20,000.
I find on the evidence that there is a chance that the plaintiff will need a spinal fusion at some time in the future. When quantifying this chance it is necessary to take into account the evidence of both Mr Vaughan and Mr Woodland that conservative treatment is appropriate for the time being, the evidence of Mr Vaughan that it is unlikely that a fusion would improve the plaintiff's situation and that there is a chance that the injury on 1 July 1998 may have done no more than accelerate the plaintiff's need for a spinal fusion.
Doing the best I can I award the plaintiff damages for future medical expenses in the global sum of $6,000 made up by $1,000 for future attendances on medical practitioners, $2,000 for future medications and $3,000 for the chance of requiring a spinal fusion.
This action is subject to the provisions of s 93D(2) of the Workers' Compensation and Rehabilitation Act 1981 ("the Act") as they were before being repealed by s 32(5) of the Workers' Compensation and Rehabilitation Amendment Act 1999 ("the Amending Act"). Section 32(7) of the Amending Act preserved the provisions of s 93D(2) of the Act for the awarding of damages in proceedings commenced before 5 October 1999. This action was commenced on 23 August 1999. Pursuant to s 93D(2)(b) of the Act as it then was damages can only be awarded in favour of the plaintiff if the future pecuniary loss resulting from his disability is of an amount that is at least equal to the prescribed amount. For the purposes of this case the prescribed amount is $126,145. The plaintiff's future pecuniary loss is the sum total of his losses of future earnings, superannuation and medical expenses which amount to $130,736. This amount exceeds the statutory minimum and so I will now proceed and consider the other heads of damage.
The plaintiff's past economic loss needs to be considered taking into account the taxation paid on his workers' compensation payments since 1 July 1998 in accordance with the authority of Fox v Wood (1981) 148 CLR 438.
The plaintiff's past economic loss on the basis of his gross earnings per week from 1 July 1998 to the date of trial, a period of approximately 168 weeks, totals $75,768 (ie $451 gross per week x 168 weeks). The plaintiff has received weekly payments of workers' compensation from 2 July 1998 to trial and in particular 26 October 2001 in the gross amount of $76,032.
I therefore award the plaintiff past economic loss in the total sum of $75,768 all of which needs to be repaid.
The plaintiff has not received the benefit of compulsory superannuation paid by an employer pursuant to the Superannuation Guarantee (Administration) Act 1992 from 2 July 1998 to the date of trial. The percentage rates prescribed under the Act for the years 1998/1999, 1999/2000, 2000/2001 and 2001/2002 are 7 per cent, 7 per cent, 8 per cent and 8 per cent respectively. Using the plaintiff's gross weekly earnings as at 1 July 1998 of $451 or $23,452 per annum his past loss of superannuation benefits amounts to $1,641 in 1998/1999, $1,641 in 1999/2000, $1,876 in 2000/2001 and $562 from 1 July 2001 to the date of trial. These amounts total $5,720. After 30 per cent is deducted from this total sum as per Jongen v CSR Ltd ((supra) the resultant figure is $4,004.
I award the plaintiff damages for past loss of superannuation in the sum of $4,004.
The plaintiff is entitled to interest on his past loss. I exclude the amount he received by way of workers' compensation when making this assessment. I calculate the loss as follows:
$4,004 x 3.23 years (168 weeks) x 6 per cent ÷ 2
ie, $776 ÷ 2
ie, $388
I award the plaintiff damages for interest on past economic loss and past loss of superannuation in the sum of $388.
The plaintiff gave evidence that he has travelled from Katanning to Perth and return on about 16 occasions to attend on medical practitioners.
I award the plaintiff damages in the sum of $1,000 for travelling expenses.
Subject to the issue of liability the parties have reached agreement on damages for gratuitous services in the sum of $3,000. Accordingly I assess damages for gratuitous services in the sum of $3,000.
The parties have agreed quantum only of past medical expenses in the sum of $23,763 and past rehabilitation expenses in the sum of $12,757 totalling the sum of $36,520.
The plaintiff is entitled to general damages for the injury itself and for the pain, inconvenience and other matters generally referred to as the loss of amenities.
The plaintiff sustained a low back injury as a result of using the sledgehammer. He was only 33 years of age and so relatively young at the time. While he would have been vulnerable to injuring his back after 1 July 1998 the fact of the matter is that he was injured on 1 July 1998 and is now suffering as a result.
The plaintiff's treatment has included a laminectomy in about October/November 1998 which necessitated 10 days in hospital. His treatment has also included physiotherapy, taking analgesics and undergoing facet joint injections/fluoroscopy in October 1999.
The reason the plaintiff changed employment and started working for the defendant in about November 1997 was to give him more time to spend with his children. As a result of the injury he is less mobile and has continued to suffer from pain in his lower back, down his backside, in both hips and down his left leg. He has muscle wasting of his left leg and walks with a slight limp. As a consequence he cannot enjoy playing with his children as he could before. He is also unable to take them out for social occasions as he could before. He does not play sport anymore. He can no longer enjoy visiting farms and cutting firewood and koonacking as he did before.
Since 1 July 1998 and particularly soon thereafter pain has prevented the plaintiff from getting a good night's sleep. He now no longer sleeps in the same room as his wife. Although their sexual relationship has been adversely affected they have a good, albeit it at times strained, relationship. Mrs Akker said that the plaintiff is no longer the happy person he used to be. He now has arguments with the children which did not happen before.
The plaintiff's financial position is not good and understandably his injury has caused him real concern on his ability to care for his family. He no longer does work about the house as he did before. Such work is now being undertaken by Mrs Akker.
While I accept that the plaintiff was injured as a result of using the sledgehammer and has been rendered symptomatic as a result, I am nevertheless of the view that at times at least he has exaggerated his symptoms. I do not wish to be too critical or place too much weight on that observation because the last few years have clearly been very difficult for the plaintiff, and indeed as a consequence, his wife and children. The plaintiff has generally felt a great deal of pressure in relation to his future.
The plaintiff's urological problems, which in my view should not be taken into account, have at least contributed to his depression and low level of self‑esteem. Hopefully, with some rehabilitation and continued encouragement, he will attempt and succeed in exploiting his retained capacity to a greater degree in the future.
Section 93E of the Act applies to the assessment of the plaintiff's damages for non‑pecuniary loss. It provides that the amount of damages for non‑pecuniary loss is to be a proportion, determined according to the severity of the non‑pecuniary loss, of the maximum amount that may be awarded. The maximum amount may be awarded only in a most extreme case. The maximum amount is the sum of $264,903.
I assess the plaintiff's case to be 15 per cent of a most extreme case which equates to $39,735.

Conclusion on provisional assessment

I provisionally assess the plaintiff's damages as follows:
Future economic loss  $116,069.00
Loss of future superannuation payments                  $8,667.00
Past economic loss  $75,768.00
Past loss of superannuation payments  $4,004.00
Interest on past economic loss and
loss of past superannuation payments  $388.00
Loss for travelling expenses  $1,000.00
Gratuitous services  $3,000.00
Past medical and rehabilitation expenses               $36,520.00
Future medical expenses  $6,000.00
General damages  $39,735.00
Total$291,151.00
I provisionally assess the plaintiff's damages in the sum of $291,151 which includes workers' compensation and past medical and rehabilitation expenses which need to be repaid.

Conclusions

For all these reasons I find that the plaintiff's claim should be dismissed and I provisionally assess damages in the sum of $291,151.