Allen v Bennett

[2008] NSWDC 119

CITATION:	Allen v Bennett [2008] NSWDC 119
HEARING DATE(S):	22-23 October 2007, 27-29 February, 3 March 2008
JUDGMENT DATE:	1 August 2008
JURISDICTION:	Civil
JUDGMENT OF:	Sidis DCJ
DECISION:	1 Verdict and judgment for the plaintiff in the sum of $644,165.53. 2 The defendant is to pay the plaintiff’s costs of the proceedings. 3 The exhibits are to be retained for 28 days.
CATCHWORDS:	TORT NEGLIGENCE - tree lopper - Credit - multiple prior injuries - injury in course of employment involving motor vehicle - whether to be dealt with under legislation providing compensation for motor vehicle accident or work place injury
LEGISLATION CITED:	Motor Accidents Compensation Act 1999
CASES CITED:	Fox v Wood (1981) 148 CLR 438
PARTIES:	Michael ALLEN (Plaintiff) Ian BENNETT (Defendant)
FILE NUMBER(S):	Newcastle 21/05
COUNSEL:	C A W Hart (Plaintiff) A P Capelin (Defendant)
SOLICITORS:	Bale Boshev (Plaintiff ) TL Lawyers (Defendant)

JUDGMENT

1 Michael Allen claimed that he suffered injuries to various intestinal structures when his torso was compressed against the trunk of a eucalypt. At the time of his injury the plaintiff was working as a tree climber on a property at New Lambton. The plaintiff claimed that his injuries were the result of the negligence of his employer, Ian Bennett. The defendant denied negligence and did not accept the plaintiff’s claims of loss and injury.

2 The issues involved in deciding the plaintiff’s claim were:

1 The circumstances in which his injuries occurred.

2 Whether those circumstances involved negligence on the part of the defendant.

3 Whether the claim was appropriately brought pursuant to the provisions of the Motor Accidents Compensation Act 1999.

4 The nature and extent of the injuries suffered by the plaintiff.

5 The extent to which the plaintiff was to be compensated, in particular for loss of income earning capacity.

ISSUE 1 – Circumstances of the Injury

3 The plaintiff’s accident occurred on 25 July 2001.

4 The plaintiff’s purpose at the time of his accident was to cut down a large eucalypt, variously described as 30 to 35 feet tall, with a trunk 2 feet in diameter. The configuration of the tree was such that it leaned towards a fence on the property. In order to protect the fence, the plaintiff tied a rope at the top of the tree. The other end of the rope was tied to the bull bar of the Toyota Land Cruiser owned and operated by the defendant. The defendant reversed the Land Cruiser to place tension on the rope.

5 The system proposed was that the plaintiff would make the necessary cuts to the tree to enable the defendant to reverse the Land Cruiser and pull the falling part of the tree to the ground and away from the fence.

6 There was a dispute between the plaintiff and the defendant concerning the precise nature of the task to be undertaken. The plaintiff said his task was to cut through the trunk of the tree at a height about three metres above ground. The defendant said the plaintiff was to cut through a limb of the tree at a point above a fork in its trunk.

7 On the plaintiff’s version, he placed a cut on one side of the trunk and was in the process of making a further cut on the opposite side of the trunk. The plaintiff claimed that the defendant reversed the Land Cruiser before he had completed the second cut with the result that the trunk split and one part of it fell to the ground. The part that fell placed pressure on the safety harness that was strapped around his body so that his torso was pressed against the remaining section of the trunk of the tree. The plaintiff produced his safety harness and pointed out that the weight placed upon it was such that parts of the metal reinforcement of the belt were fractured.

8 The plaintiff said that at the time the defendant reversed the Land Cruiser he was in the process of making what is known as a back cut, having already placed what is known as a scarf cut on the opposite side of the trunk of the tree. He said the defendant did not wait for his signal before reversing the Land Cruiser and pulling on the rope. The plaintiff said that the signal that he used as a matter of practice was a shrill whistle.

9 The defendant agreed that he did not wait for a signal from the plaintiff before reversing the Land Cruiser. He said that it was not his practice to do so. He denied that the plaintiff adopted a practice of whistling to signal when he was ready. The defendant said that he started to reverse his vehicle because the limb of the tree to which the rope was attached started moving towards the fence.

10 The claim was made pursuant to the provisions of the Motor Accidents Compensation Act 1999. The plaintiff did not claim that the system adopted to fell the eucalypt was unsafe.

11 The issues on liability were:

1 The credit of the plaintiff, the defendant and the witnesses called in support of the plaintiff’s claim.
2 Having regard to the issue of credit, which of the parties was to be accepted concerning:
(a) the risk management procedures adopted by the defendant before the task of felling the tree was undertaken;
(b) the nature of the cuts made by the plaintiff before the defendant reversed the vehicle; and
(c) the need for a signal.

Credit

12 The plaintiff relied upon his own evidence and that of two eye witnesses who were also employees of the defendant.

13 The plaintiff's general credit put was in issue. Reference was made to his extensive prior history of work and assault related injury. In some cases, the assault was said to have had criminal consequences, although the plaintiff's criminal history was not in evidence. It was suggested to the plaintiff that he exaggerated the consequences of his injury and embellished both the injuries suffered and his ongoing disability.

14 There was evidence that the plaintiff on many occasions misreported the nature of his injuries and the treatment provided to him. Medical reports referred to a history of fracture of the L1 and L2 vertebrae in the accident. The plaintiff was also reported as claiming that the subsequent splenectomy was the result of his internal injuries when medical evidence was clear that this surgery was required because of an unrelated genetic condition.

15 On the other hand, there were a number of reports in which it was remarked that the plaintiff presented positively and with symptoms that were consistent with the nature of his injury.

16 My assessment of the plaintiff was that he was not totally frank in all respects in what he told the Court and that he engaged in a moderate degree of exaggeration and embellishment. The challenges put to the plaintiff concerning the circumstances in which he suffered injury therefore depended upon my assessment of the extent to which his evidence was supported by the evidence of the witnesses called in support of his claim.

17 Mr Melmouth and Mr McKeown were present on the site when the accident occurred. They were also employed by the defendant.

18 Mr Melmouth was taken to two documents that were inconsistent with his evidence. The first was a statement dated 13 December 2003. The second was a statutory declaration dated 21 April 2004. He denied that he signed either of these documents. He could not explain how a signature, looking very much like his, appeared on them.

19 The subsequent evidence of Mr McKeown made it clear that he and Mr Melmouth were interviewed together on 13 December 2003 by investigators retained for the defendant and that they both signed statements on that date.

20 Mr Melmouth did subsequently remember attending before a Justice of the Peace at Warners Bay to sign the statutory declaration although he denied reading it before it was signed. He denied that its contents were true. They were entirely inconsistent with his evidence.

21 Mr Melmouth agreed that various disputes arose between himself and the defendant after he signed the documents in question.

22 I assessed Mr Melmouth as a witness upon whom no reliance could be placed except where his evidence was consistent with that of other creditable witnesses.

23 There was no basis upon which it could be said that I should not accept Mr McKeown’s evidence. He acknowledged that he signed a statement on 13 December 2003. He signed a further statement on 20 October 2005. There was one inconsistency between Mr McKeown’s evidence and the statement of December 2003. In that statement he said that he did not see the Land Cruiser. He told the Court that he saw the Land Cruiser and he saw the defendant reverse the vehicle before the plaintiff signalled that the back cut was complete. He said he did not read the statement before signing it, not having been invited to do so, and that it was wrong. Mr McKeown’s evidence on this aspect was of no relevance to the outcome, since the defendant conceded that he did in fact reverse the Land Cruiser and that the plaintiff gave no signal before he did so.

24 The credit of the defendant was undermined in a number of significant respects. He produced a work safety method statement dated 25 July 2001 bearing the signatures of himself, the plaintiff, Mr Melmouth and Mr McKeown. The plaintiff and Mr Melmouth denied having ever seen the document. Mr McKeown was not asked to verify his signature on the document. The authenticity of this document is dealt with in more detail later in these reasons.

25 The plaintiff said that the defendant immediately after the accident directed him not reveal that the rope was attached to the car. The defendant denied that he did so. Documents in evidence indicated that the defendant did not report the to the workers compensation insurer or to WorkCover that the Land Cruiser was in use or that he was driving it at the time of the accident. I infer that he suppressed this information in order to avoid the possibility of prosecution.

26 Further, the defendant attempted to minimise the consequences to the plaintiff of the accident in the face of medical evidence that he suffered significant internal injuries.

27 As with the plaintiff, therefore, the evidence of the defendant will be assessed by reference to the support provided by other witnesses.

Risk Management

28 The defendant was in the business of tree lopping and removal. He said that at the time of the plaintiff’s accident it was his practice when given a job to attend on the site and:

… organise everything there, we do a statement, run through the whole thing, set up, put barricades up, things like that, organise the work and I either stay or I don’t, depending on who’s doing the job.

29 The statement he referred to was a job site analysis or work safety method statement.

30 The defendant said that the job at New Lambton was started on 24 July 2001, that a tool box meeting was held and a work safety method statement was signed by himself, the plaintiff, Mr Melmouth and Mr McKeown on the morning of that day before work started. He said the same procedure was followed on the morning of 25 July 2001.

31 The purpose of this procedure, he said, was to go through what had to be done on the day. It was not a daily procedure. It was adopted on some days only. The defendant produced a document that he said was a copy of the work safety method statement for 25 July 2001.

32 The authenticity of this document was challenged. It was not produced to the plaintiff in response to a subpoena that clearly covered its content. The defendant said he gave the original to the workers compensation insurer. The original was called for but not produced.

33 The defendant was unable to produce the work safety method statement for 24 July 2001, stating he did not retain it.

34 The plaintiff denied that he signed a work safety method statement on the morning of 25 July 2001 or on any morning when he worked for the defendant. He denied that any toolbox meetings were ever held and said his instructions as to the work to be done were delivered by telephone. The plaintiff said that the defendant was not present at the start of the day’s work on 25 July 2001 and that he arrived later in the day after he, Mr Melmouth and Mr McKeown cleared the site of smaller trees so that two larger trees could be felled.

35 The plaintiff agreed that the signature on the work safety method statement appeared to be his but denied ever having seen the document.

36 Mr Melmouth denied that any toolbox meeting took place on the morning on 25 July 2001 or ever while he worked for the defendant. He denied that the signature on the work safety method statement dated 25 July 2001 was his, stating that it was too neat.

37 Mr McKeown was not questioned on this topic.

38 How the three signatures came to be on the document could be explained only by speculating about the extent to which these three semi-literate employees questioned any document placed in front of them for signature by the defendant.

39 I was left with the gravest suspicion that the proposition put to the defendant by the plaintiff, and denied by him, was correct. That proposition was that the work safety method statement had been manufactured for the purpose of protecting the defendant from prosecution.

40 The work safety method statement had no effect on the ultimate outcome of the plaintiff’s claim. The circumstances in which it was produced to the Court and the absence of confirmation by any of the plaintiff, Mr Melmouth or Mr McKeown that they signed it before starting work on 25 July 2001 further undermined my confidence in the credit of the defendant.

The nature of the cuts used

41 It was agreed between the parties that the use of a rope to pull down a tree was a practice adopted in the tree felling industry at the time of the plaintiff’s accident.

42 It was also agreed that the tree climber was responsible for deciding which of various types of cuts was to be used in the course of lopping or felling a tree. It was agreed that, for the task that the plaintiff was undertaking at the time of his accident, the appropriate cuts were a scarf cut on that part of the tree that faced the direction in which it was to be pulled by the rope and a back cut on the opposite side.

43 A scarf cut involved cutting out a wedge shaped section of timber that would act as a hinge after a straight cut was made on the opposing side. This procedure allowed the structure to fall in the direction planned and to separate cleanly from the remainder of the tree.

44 The plaintiff claimed that he made the appropriate scarf cut in the trunk of the tree. The defendant claimed that the cause of the plaintiff’s injury was his failure to make a scarf cut.

45 The defendant said that the plaintiff was not felling the whole of the tree. He said that the tree branched into two limbs and that immediately prior to the accident the plaintiff was working in the fork of the tree with the intention of cutting down one of the limbs.

46 He observed the plaintiff lean around the front of the limb to make what he believed was a scarf cut. At that point he looked away momentarily to check the wind that was moving the top parts of the tree. When he looked back the plaintiff was finished at the front of the limb. The plaintiff signalled with his thumb that he had finished that part of his task. The defendant agreed that he did not look to see if a scarf cut was made. He had no doubt that it was intended that a scarf cut be used.

47 The plaintiff then moved to the back of the tree and motioned by lifting his chainsaw that he was going to make the back cut. The defendant said he signalled to the plaintiff that he understood what he was doing. He could not remember how that signal had been delivered but said he could have nodded his head or indicated with his thumb.

48 At that point the wind started to move the limb of the tree towards the fence. The defendant put the car into reverse gear and accelerated to bring the branch back onto the site. At this time he was not looking at the plaintiff. His concern was that the branch would strike the fence. The branch came down and landed on the ground with part of it still attached to the tree.

49 The defendant drove forward and heard Mr McKeown call out. He then saw the plaintiff suspended by his safety harness from some bark that was still attached to the tree. He said the plaintiff must have slid down the fork in the tree to have been suspended in that fashion.

50 The defendant said that he, Mr Melmouth and Mr McKeown lifted the branch off the plaintiff and dropped it to the ground. This allowed the plaintiff to unclip his safety harness and lower himself to the ground.

51 The defendant denied that the plaintiff needed assistance to walk to the Land Cruiser so that he could be taken to the John Hunter Hospital.

52 He said that, when he returned to the site, Mr Melmouth called him to look at the branch in its position on the ground. Mr Melmouth pointed out that there was no scarf cut but only a single cut through the bark and that extended barely into the timber.

53 The defendant relied on the statutory declaration, already referred to, signed by Mr Melmouth on 21 April 2004 in which he stated:

There was no front “scarf” cut as was required, but only a single attempted cut which only went through the bark section.

…

After the accident, Michael Allen walked down the block to get into the 4WD to get checked out at the hospital.

54 The defendant said that this statutory declaration was typed by his mother from notes he prepared after talking with Mr Melmouth. He said that Mr Melmouth read the document and that he took him to a Justice of the Peace at Warners Bay. The Justice of the Peace read the document and asked Mr Melmouth if he agreed with its contents. Mr Melmouth then signed the statutory declaration.

55 The defendant agreed that Mr Melmouth signed the statutory declaration at a time when he was working for him as a subcontractor and was renting a house from him.

56 I have already referred to my assessment of the defendant’s credit. There were a number of difficulties with the evidence of the defendant concerning the circumstances of the plaintiff’s accident.

57 It was clear that his evidence concerning the signing of Mr Melmouth’s statutory declaration was untrue. Mr Cupples, the Justice of the Peace involved, denied that he adopted any practice of reading the contents of a statutory declaration that he was asked to witness. His concern was to check the identity of the person signing the document and to point out the consequences of swearing a false declaration.

58 The December 2003 statements made by Mr Melmouth and Mr McKeown contained no reference to the absence of a scarf cut or to Mr Melmouth’s drawing the defendant’s attention to the nature of the cut at the front of the branch involved. These were significant features of the incident that one would expect to appear in the documents. Both Mr Melmouth and Mr McKeown said that a scarf cut was definitely made. Mr McKeown said that, after the plaintiff was taken to the hospital, he and Mr Melmouth raked up parts of the tree and put them in a wood chipping machine. Amongst the parts that Mr McKeown picked up was the wedge of wood removed to make the scarf cut.

59 The statements of December 2003 made no reference to the plaintiff’s cutting a branch of the tree. They refer to the rope having been tied around the trunk of the tree and state that the plaintiff was engaged in cutting down the tree.

60 The defendant did not make clear how the plaintiff could slide down into the fork and become suspended from the tree by his safety harness. His evidence did not explain how, if only a limb of the tree was involved, its partial detachment caused the plaintiff to become suspended by his safety harness. Most significantly, there was no explanation of how, if he was suspended from the tree by his safety harness, the plaintiff suffered the significant blunt compression injuries to his abdomen and torso that were described by his treating surgeon Dr Chen.

61 Even if I disregarded entirely the evidence of Mr Melmouth, the plaintiff’s version of events was entirely consistent with the evidence of Mr McKeown.

62 I have already indicated that I regarded Mr McKeown as a witness of credit. The apparent discrepancies between his evidence and the material contained in the December 2003 statements were in my opinion adequately explained or not relevant to the outcome.

The signal

63 It was agreed that the plaintiff did not signal before the defendant put the Land Cruiser into gear and reversed to pull down the tree.

64 The question therefore was whether the defendant was aware that the plaintiff expected him to await his signal before reversing the vehicle.

65 The plaintiff’s practice of signalling through a loud whistle was challenged on the basis that such a signal would be difficult to hear above the noise of his chainsaw and the engine of the defendant’s vehicle. The plaintiff said that this system of signalling had always worked in the past.

66 Mr Melmouth said that the plaintiff’s practice was to nod or whistle. Mr McKeown was not asked about the signalling method used by the plaintiff.

Issue 1 - Findings

67 I prefer the evidence of the plaintiff and Mr McKeown concerning the circumstances in which the accident occurred to that of the defendant.

68 I find that the accident occurred:

1 When the plaintiff was engaged in cutting the trunk, and not a limb, of the tree.
2 After the plaintiff made a scarf cut in the part of the trunk facing the direction in which the tree was to be pulled by the defendant’s Land Cruiser.
3 Before the plaintiff completed the back cut on the part of the trunk facing away from the direction in which the tree was to be pulled.
4 Before the plaintiff signalled to the defendant that the back cut was completed.

69 I find that the accident occurred because the defendant commenced the reversing procedure prematurely.

ISSUE 2 - Negligence

70 The defendant gave evidence that he took note of the signals made by the plaintiff when he completed the first cut and when he started the cut on the reverse side of the tree. In my view it was not logical to suggest that the plaintiff, after keeping the defendant informed by means of various signals of the stages of the work he was undertaking, did not expect that the defendant would wait until signalled that the final cut was complete before performing his part in the task of felling the tree.

71 The defendant’s failure to wait for a signal involved conduct that presented a foreseeable risk of significant injury to the plaintiff. The circumstances of the accident were preventable and a reasonable person in the defendant’s position ought reasonably to have taken the simple preventative action of waiting until informed by means of a signal from the plaintiff that it was safe to engage the reverse gear of the Land Cruiser in order to pull over the tree.

Issue 2 - Findings

72 I find the defendant in breach of his duty of care to the plaintiff in reversing his vehicle prematurely and in the absence of a signal.

ISSUE 3 – Was the claim to be determined by reference to the Motor Accidents Compensation Act 1999?

73 The defendant argued that any negligence on his part arose by reason of the system of work involved in felling the tree and that the use of the Land Cruiser was incidental to that system. It was submitted therefore that the Act did not apply in the circumstances of the plaintiff’s claim.

74 A motor accident is defined by the Act as:

motor accident means an incident or accident involving the use or operation of a motor vehicle that causes the death of or injury to a person where the death or injury is a result of and is caused (whether or not as a result of a defect in the vehicle) during:

(a) the driving of the vehicle, or

(b) a collision, or action taken to avoid a collision, with the vehicle, or

(c) the vehicle’s running out of control.

75 The parties agreed that the system adopted at the time of the plaintiff’s accident was an accepted method of tree felling within the relevant industry. Although the work of a tree climber appeared to involve some inherent danger, there was no evidence to suggest that the system itself was especially dangerous, provided certain safeguards were observed. In this case, the relevant safeguard required that the person operating the motor vehicle receive a signal from the tree climber before operating the vehicle.

76 There are numerous examples that can be provided of work systems involving the use of motor vehicles, whether on the public road or on work sites. When used on work sites, the driver is required to observe basic safety requirements, including those requiring that the vehicle not be operated unless the appropriate signal is obtained. The failure to wait for or observe a signal does not mean that the system itself is flawed. It means that the driver did not safely operate the vehicle.

Issue 3 - Findings

77 I find that in this case the defendant was driving a motor vehicle and in so doing he caused injury to the plaintiff. He did not safely operate the vehicle.

78 The result is that the plaintiff’s claim was appropriately brought pursuant to the provisions of the Act and it will be assessed on that basis.

ISSUE 4 – The plaintiff’s injuries

79 The plaintiff said that after the trunk of the tree had been pulled over he was compressed against the remaining part of the trunk and that he felt extreme pain in his pelvic area, his back and his eyes. The tree was lifted by Mr Melmouth, Mr McKeown and the defendant so that he was able to unclip his safety harness and climb to the ground where he collapsed. He was assisted into the Land Cruiser and driven to John Hunter Hospital by the defendant.

80 At the hospital he complained of a burning sensation in his pubic bone and back and of burst blood vessels in his eyes. He was admitted for observation.

81 Dr Chen was responsible for the plaintiff’s treatment. He reported that the plaintiff’s pain and abdominal tenderness increased so that on 27 July 2001 a laparotomy was performed. Blood was found in the abdominal cavity. Dr Chen reported:

There was retroperitoneal haematoma evident in both paracolic gutters, active bleeding from a tear in the small bowel mesentery, and a large seromuscular tear in the sigmoid colon. There was no full thickness rupture of any bowel.

82 The appropriate repairs were undertaken and the plaintiff was discharged on 6 August 2001.

83 The plaintiff was readmitted to the John Hunter Hospital in November 2001 for surgery to remove his spleen. Medical evidence made it clear that the splenectomy was unrelated to the injuries suffered in the accident of July 2001.

84 The plaintiff was discharged home into the care of his partner, Rachel Crooks. There was some evidence of the domestic assistance that she provided but no separate claim was made for attendant care.

85 The plaintiff claimed that he continued with significant pain in his back, pelvis and a burning sensation in the belly all the time. He complained that on some days, after work, his feet and legs felt as if they were on fire and his limbs became restless and very hot.

86 The plaintiff complained of sexual dysfunction in the nature of erectile difficulties that were not assisted by medication. He complained of numbness in the head of his penis. The difficulties were aggravated by his reliance on medication such as Oxycontin.

87 The plaintiff complained of urinary problems involving urgency in the need to urinate and a dribble post voiding.

88 The laparotomy resulted in a significant scar for the length of the plaintiff’s torso. He said that the scar did not heal for eight months. During this period there were intermittent infections that were treated with anti-biotics. The infections resulted in pitting in the scar.

89 The plaintiff complained of an emotional reaction to the accident, of nightmares and anxiety concerning the future for himself and his family.

90 The plaintiff complained of consequences to his family of his ongoing disabilities. He and Ms Crooks have two very young children. He said he enjoyed less interaction with them and did not taken them out as much he wished. He said his social activity was now very limited and that former activities, such as camping, caravanning at Seal Rocks and boating had ceased or were significantly diminished.

91 His treatment included physiotherapy, rehabilitation, and the use of a TENS machine. He was treated by his general practitioner, Dr Crabtree. When the plaintiff consulted Dr Chen in May 2003 continuing to complain of significant central abdominal pain, he referred him to Dr Russo for pain management. He consulted Mr Dorling, psychologist, from whom he received some assistance in overcoming his emotional problems. He consulted Dr Hoskens concerning his erectile problems. Dr Hoskens offered surgery, an option that the plaintiff declined.

92 Medication used by the plaintiff was Oxycontin and Endone for pain relief, Endep to help him sleep at night and Metamucil for constipation. The plaintiff was offered, but declined, anti-depressant medication.

93 Ms Crooks confirmed the plaintiff’s evidence of his post accident situation. She said he was no longer as happy as before the accident and he paid less attention to his appearance. His sleeping pattern was one of involuntary spasms in his legs and arms, disturbing her to the point where she frequently leaves their bed to find another place to sleep.

94 Ms Crooks said that the plaintiff suffered from back pain so that after driving for more than one hour he found it difficult to straighten when he left the car. As a result they travelled to Forbes to see the plaintiff’s family with less regularity. She said the plaintiff no longer drank alcohol with his friends after work as he had prior to the accident.

Pre-accident history

95 The plaintiff’s pre-accident medical history could be described as colourful and injury prone.

96 He fractured his left arm when he fell from a horse as a child. At the age of about 13 he injured his neck or shoulders in a motor vehicle accident. At the age of about 20 he fractured his clavicle in a fall from a motor cycle.

97 In the early 1990’s he was assaulted while working in an abattoir in Forbes suffering injuries to tendons in both arms. He continued to have some restriction in the movement and function of his right hand as a result of this injury. He did not work for ten months following this assault.

98 In 1996 the plaintiff fell from a tree and fractured his right wrist while working with his father in Forbes.

99 In 1996 or 1997 the plaintiff was stabbed in a further assault in Gunnedah.

100 In 1998 he fell from a bicycle and injured tendons in his right hand.

101 The most relevant injury to the plaintiff’s current circumstances was that which occurred in March 1998 when he was brought to the ground after the tree in which he was working was uprooted. His suffered injury to his back and a fractured nosed. He did not work for six to eight months after this incident. He suffered from back pain as a consequence for which he took prescribed pain killing medication for a period. He also consulted Mr Dorling for treatment of the psychological consequences of this accident.

102 The plaintiff received compensation for a number of these injuries.

103 The plaintiff said that at the time of the accident in July 2001 he continued, on an occasional basis, to take pain killing medication that he purchased over the counter to deal with the consequences of the 1998 accident.

104 A report of Dr Isaacs dated 5 May 2000 suggested that the plaintiff’s condition following the 1998 accident continued to cause him considerable discomfort. Dr Isaacs reported that the plaintiff was working his normal duties but complained of severe back pain at the end of the day and of no capacity for extracurricular activity. In April 2003 Dr Isaacs reported complaints of persisting back pain.

Medical evidence

105 Medical evidence dealt with the plaintiff’s complaints of physical injury and of psychological injury.

106 There was little dispute between the medical experts in response to the plaintiff’s complaints of back pain, although Dr Ghabrial and Dr Bracken questioned the assumption that the plaintiff suffered vertebral fractures in the 1998 incident. Their opinions were that radiology taken at the time of the 1998 incident indicated that there was evidence of an old fracture at L1. Dr Bracken suggested that this was the result of the motor vehicle accident in which the plaintiff was involved as an adolescent. Dr Harvey also noted that there was no evidence of any fracture at L1 or L2 following the 1998 accident.

107 It was clear however that the plaintiff did complain of back pain following the 1998 incident and that he continued to suffer from back pain up to the time of the 2001 incident. There was no evidence that he required narcotic medication to deal with that pain. The evidence was that the requirement for this level of pain relief arose only after the 2001 incident.

108 Dr Harvey reported that the plaintiff’s complaints of back were consistent with the mechanism of his injury, that his condition was stable and that he would remain susceptible to low back pain. Dr Ghabrial did not question the consistency of the plaintiff’s presentation and he diagnosed additional strains and injuries to various parts of the plaintiff’s spine.

109 Dr Bracken, accepting that there was injury to the plaintiff’s back in 1998, diagnosed aggravation of that injury in 2001 and acceleration of the early onset of arthritic changes. His opinion was that the factors demonstrated by the plaintiff indicated mechanical low back pain centred particularly on the posterior spinal joints at the lumbo-sacral junction, specifically on the right side. He said this was confirmed by the relief gained by the plaintiff from the injections to the right side of the lumbo-sacral junction administered by Dr Russo.

110 Dr Russo dealt with complaints of back pain and of abdominal wall pain.

111 Dr Russo treated the complaints of back pain with various diagnostic blocks and injections that provided the plaintiff with some measure of relief. Dr Russo indicated that the plaintiff might expect some months of relief from ongoing injections, although at one stage he aggravated his condition by lifting more than the limit of 20 kg imposed upon him. Funding for the injection therapy was withdrawn by the insurer and was ceased.

112 Dr Burke examined the plaintiff in 2006 on behalf of the Medical Assessment Service. He found no inconsistent elements in the plaintiff’s presentation. He accepted that the accident could have caused trauma to the plaintiff’s coccyx that was resolved. He accepted that the accident was responsible for injury to the plaintiff’s right sacro-iliac joint and that this injury was the cause of his right buttock and upper right thigh pain. He accepted that the plaintiff suffered further injury to his lumbar spine.

113 Both Dr Russo and Dr Chen attributed the abdominal wall pain to neuropathy secondary to the trauma suffered to the abdomen or to nerve entrapment consequent upon surgery.

114 Dr Hosken reported on the plaintiff’s complaints of sexual dysfunction and urinary disorder. He reported that he was unable to identify any overt neurological injury but accepted that the plaintiff suffered perineal contusion that resulted in erectile dysfunction.

115 Dr Korbel investigated these problems on behalf of the Medical Assessment Service. After discussing the nature of the plaintiff’s complaints, Dr Korbel reported that the plaintiff was consistent in his presentation and that he did not embellish his symptoms. He concluded that the accident had caused injury to the plaintiff in the nature of dysuria, renal contusion, bladder dysfunction and sexual dysfunction.

Psychological injury

116 The defendant took issue in particular with the plaintiff’s claimed psychological injury. The defendant requested that I resubmit his claim on this aspect to the Medical Assessment Service for redetermination pursuant to s 62 of the Motor Accidents Compensation Act 1999. The defendant relied on a report of Dr Haik, psychiatrist, as well as evidence that indicated that the plaintiff’s psychological condition was improving.

117 Dr Haik reported in November 2006. His report was of little assistance for the following reasons.

1. The report indicated that Dr Haik approached the plaintiff’s complaints of symptoms with a high level of sceptism.

2. He appeared to question complaints of symptoms that were outside his field of expertise.

3. Although he was aware that the plaintiff was semi-literate and poorly educated, he made no allowance for the prospect that the plaintiff misunderstood medical advice and terminology when providing a history of his injuries. Dr Haik regarded elements of misreporting as evidence of overstatement or deceit.

4. Dr Haik was inaccurate in a number of respects when referring to the reports of other medical experts. He repeatedly referred to Dr Hosken as making no connection between the 2001 incident and the plaintiff’s complaints of urological and sexual dysfunction. In fact, Dr Hosken reported that, while he was unable to identify any overt neurological injury, perineal contusion has resulted in erectile dysfunction. Dr Haik disregarded Dr Korbel’s diagnoses of injury related to the 2001 incident, apparently because he recorded an incorrect history of the surgical repairs undertaken after the accident. This overlooked the fact that Dr Korbel had available to him information concerning the repairs in fact undertaken.

5. While reporting the elements that he regarded as inconsistent with the information provided to him by the plaintiff, Dr Haik did not refer to the frequency with which other medical experts commented on the consistency of the plaintiff’s presentation. He did not refer to the many positive aspects of the medical evidence.

6. Dr Haik reported that the plaintiff received insurance income for most of the five year period between the date of his accident until the date upon which he examined him. In making this comment, he appeared to overlook the material contained in many of the reports provided to him of the plaintiff’s concern to return to work and of his anxiety about his financial future. Dr Haik did not appear to have available to him the reports of the rehabilitation services that indicated that the plaintiff was co-operative and exhibited a very positive attitude to returning to work.

118 Dr Haik’s conclusion was that the plaintiff suffered from no psychiatric disorder. This conclusion was based on the absence of treatment by a psychiatrist. It was never put to the plaintiff that he had been offered and refused treatment by a psychiatrist. To the contrary, the plaintiff returned to the counselling he had previously received, with positive benefit, from Mr Dorling. Dr Haik also based his conclusion on the absence of prescription of psychoactive medication. He was puzzled that Dr Apler, having diagnosed a major depression, did not recommend anti depressant medication. In this respect, he appeared to overlook his earlier comment that the plaintiff informed him that he had been offered anti depressant medication but that he did wish to have this form of treatment.

119 Dr Haik’s report did not persuade me that circumstances existed that warranted referral of the plaintiff’s psychological condition for further assessment.

120 The plaintiff relied on the reports of Mr Dorling who had the benefit of having treated him both before and after the 2001 incident. It was apparent from the reports of ongoing treatment provided by Mr Dorling that the plaintiff suffered from similar symptoms after the 1998 incident and the 2001 incident. They included nightmares, flashbacks, withdrawal and reduced social activity, increased alcohol intake and concern about his future and his capacity to provide for his family. In a report dated October 1998, Mr Dorling diagnosed post traumatic reaction and reported that the plaintiff’s condition was improved, that his confidence was returning and that he was doing all he could with much incentive to return to his work as a tree climber. Mr Dorling said the plaintiff’s achievements were to his credit.

121 Similar symptoms were reported in Mr Dorling’s report of November 2001 although the plaintiff’s sleep pattern at that stage was disturbed by intrusive thinking as well as by back pain. Mr Dorling provided a number of reports detailing the plaintiff’s progress during treatment up to the end of 2003. When reviewed in September 2005, Mr Dorling reported that the plaintiff’s mood was quite good, his anger levels had been modified and he was feeling reasonably well emotionally. He was sleeping quite well, although he continued with pain, and he had reduced alcohol intake to minimum levels. Mr Dorling accepted that the plaintiff had adjusted to his circumstances. The only reservation expressed by Mr Dorling concerned the plaintiff’s continued reliance on Oxycontin.

122 Dr Apler examined the plaintiff in 2006 at the request of the Medical Assessment Service. It appeared that Dr Apler was not provided with a copy of Mr Dorling’s report of September 2005. Dr Apler also referred in his report to injuries of much greater severity than those in fact suffered by the plaintiff. He reported the plaintiff’s symptoms and said that the plaintiff appeared to be broken in body and spirit, he was sad throughout the interview, his speech was monotonous, and his eyes watered at times, although he tried to maintain self control. Dr Apler noted that the plaintiff was co-operative at interview and that there was no evidence that he continued to suffer from post traumatic stress disorder at the time of the 2001 accident. His diagnosis was of Major Depression with Post Traumatic Stress Disorder.

123 At the request of the defendant, the Medical Assessment Service referred the plaintiff for further assessment to Dr McClure in March 2007. Dr McClure was provided with Mr Dorling’s report of September 2005 and with correct details concerning the 2001 accident and of the injuries suffered by the plaintiff as a consequence. Having noted the plaintiff’s psychological and physical symptoms, Dr McClure stated that the history provided was consistent with the reports provided by Mr Dorling and Dr Apler and with the plaintiff’s history. His opinion was that the plaintiff suffered Post Traumatic Stress Disorder that improved with time and treatment by a clinical psychologist. However, he continued with residual symptoms and associated disturbance of functioning. His diagnosis was of Chronic Post Traumatic Stress Disorder, in partial remission. His opinion was that the condition was stable and was likely to continue indefinitely. He said the plaintiff remained mildly symptomatic.

124 The defendant’s application for review of Dr McClure’s assessment was declined by the Medical Assessment Service in June 2007.

125 In the absence of reliable psychiatric or other evidence that persuaded me that Mr Dorling, Dr Apler and Dr McClure were incorrect in their assessment of the plaintiff’s complaints and symptoms, I am of the same opinion as the Medical Assessment Service. Dr McClure was made aware of improvements in the plaintiff’s condition as at the date of his examination of the plaintiff and he included reference to the plaintiff’s partial recovery in forming his opinion and his assessment of whole person impairment of 11%. There was no evidence before me to indicate that there was any further substantial permanent improvement in the plaintiff’s psychological condition such that a further review was warranted.

Loss of income earning capacity

126 A number of medical experts questioned the advisability of the plaintiff’s returning to work as a tree climber as well as his physical capacity to do so.

127 Notwithstanding these medical reservations, the plaintiff returned to work with Coopers Tree Service in October 2002 on a gradual basis undertaking work at ground level as a labourer. The plaintiff said he was pushed by his employer to return to climbing for which he was not ready. As a result they argued and he was not offered further work.

128 In 2004 he secured employment with Winters Wholesale Meats where the major part of his work involved cleaning the large tubs used for moving cuts of meat around. He also undertook some butchering work. He agreed that the washing of the tubs involved a degree of bending and lifting and that he cleaned up to 150 tubs per day with assistance from another employee. He agreed that from time to time he also delivered meat by driving his employer’s vehicle around Newcastle. This work required him to lift tubs of meat and to bend.

129 The plaintiff worked at Winters Wholesale Meats for two years until he was retrenched after his employer lost contracts.

130 The plaintiff then returned to tree climbing work with Coopers Tree Service. He said he worked at a slower, more careful pace. He was pushed to work harder by his employer but was unable to cope and this work was discontinued. It was in the course of this work that a surveillance officer instructed by the defendant filmed the plaintiff. A DVD was shown to the Court. It was of little assistance in determining the level of the plaintiff’s capacity. For much of the time, the plaintiff’s activities were obscured by the foliage of the tree in which he was working. He was shown as moving through a tree of considerable height with some agility, apparently lopping branches. The recording was not continuous and it was therefore not possible to assess the length of time during which the plaintiff remained in the tree, although it was not longer than 15 minutes. It was not possible, in the absence of evidence from a person experienced in tree climbing work, to assess the pace at which the plaintiff worked or the extent, if any, to which he exhibited an overly cautious approach.

131 The plaintiff said he was once more pushed to work harder and to move at a faster pace as a result of which he moved to employment with The Tree Guy Pty Limited. He continued to work with Mr Hancock of that company to the date of the hearing. He said in this employment he was able to work at his own pace and to decide the days on which he will work. He worked for three or four days each week and shared the climbing with others. Notwithstanding the slower pace of work with this employer, he said the work caused him back and leg pain.

132 Mr Hancock said that the plaintiff was a casual employee who was engaged on a day to day basis. He used two other subcontractors in addition to the plaintiff for tree climbing activities. He said he paid the plaintiff $150 per day because he did not work as fast as the other subcontractors. A comparable subcontractor was paid $350 per day, inclusive of GST. From this sum, the subcontractor was required to meet expenses for tools, transport and insurances. According to Mr Hancock, these expenses were not significant.

133 Mr Hancock described the plaintiff as honest, trustworthy and reliable and with greater experience and knowledge in the tree industry than the other subcontractors. He said he allowed the plaintiff to work at his own pace because of his injuries. He denied that he allocated more difficult jobs to the plaintiff. He described the plaintiff’s duties as climbing, pruning trees, removing branches and trees and some stump grinding. The plaintiff was also able to quote for work. He could work at heights. He did not climb every day but climbing comprised 80% of his work.

134 He said, if the plaintiff were fit, he had sufficient work to employ him for five or six days a week. He said that, even if the plaintiff did not climb, he would keep him on to organise sites. A record produced by Mr Hancock confirmed that the plaintiff worked on average three to four days a week in the four month period prior to April 2008.

135 The defendant’s own evidence did not support the suggestion made to the plaintiff that his diminished work capacity was the result of the injuries suffered in the 1998 accident. The defendant said that the plaintiff was unimpeded by any type of injury in his working capacity prior to the accident and that he made no complaint that he feared heights. He worked a full day and was a good worker.

Issue 4 - Findings

136 I have previously noted that I considered that the plaintiff engaged in a degree of embellishment and exaggeration of his injuries in the course of his evidence. I was satisfied, however, that upon a full examination of the medical evidence I was provided with evidence that was sufficiently accurate to make a proper assessment of the plaintiff’s claim. Further, I was satisfied that, to some extent the plaintiff misunderstood the nature of his injuries and the medical consequences of those injuries. I attributed this misunderstanding to his lack of education and poor literacy skills.

137 I find that the evidence supported the following as a result of the incident of July 2001:

1 Aggravation of the plaintiff’s pre-existing back injury causing him pain in his lumbar spine, right sacro-iliac joint, right buttock and right thigh.

2 Trauma to the abdomen causing internal injuries that were surgically repaired but which resulted in ongoing abdominal wall pain caused by secondary neuropathy or nerve entrapment.

3 Urological and sexual dysfunction.

4 Post Traumatic Stress Disorder, in partial remission.

5 Scarring for the length of his torso.

ISSUE 5 - ASSESSMENT

Non-Economic Loss

138 The plaintiff remained with significant symptoms of pain and discomfort in his back, legs and feet, particularly on the right side and in his abdominal wall. He is reliant on narcotic medication for relief. He continued to suffer from urinary problems and sexual dysfunction. He was scarred. His psychological symptoms included mood disorder, anxiety, social withdrawal, nightmares and sleep disturbance.

139 He remained a relatively young man. He was close to 30 years old at the time of the accident and is now close to 36. The consequences to his quality of life of his injuries were significant. They affected his relationship with his partner, his children and his social interaction with his peers.

140 I have assessed his non economic loss at $150,000.

Income Loss

141 The plaintiff’s working life started in early adolescence when he worked with his father. Although he completed Year 10, he indicated that he was disinterested in education and spent much time travelling with his father rather than attending school. Since leaving employment with his father, the plaintiff has worked in a number of unskilled occupations. There were several interruptions to his employment history while he recovered from accidents or the consequences of assaults.

142 The plaintiff has impressed a number of medical reporters with his positive attitude to employment and his willingness to return to work after the accident. This was most likely influenced by the fact that he had two young children to provide for.

143 The majority of the medical evidence indicated that the plaintiff is not fit to continue employment on a full time basis as a tree climber. The plaintiff is semi-literate and poorly educated and thus his employment options are limited.

144 He expressed an ambition to qualify as an arborist so that he could continue to work with trees, for which he has a passion. He has completed part of a course to secure this qualification. He used a tape recorder to overcome the disadvantage of his illiteracy and arranged for Ms Crooks to transcribe the tapes. His progress towards the completion of this course was necessarily limited by his poor literacy skills.

145 There was evidence that at the time of his accident the plaintiff was working as a tree climber and that his capacity for employment was not affected by his prior injuries. He was described as honest, reliable, trustworthy, skilled and physically capable of earning an above average income.

146 I consider that, but for the accident, his most likely future circumstances were that he would continue working as a tree climber on a subcontract basis. Mr Hancock’s evidence was that a subcontractor was currently paid $350 per day and that, if physically fit, the plaintiff would have work available to him for six days each week. It was necessary to discount this income earning capacity to take account of expenses and occasional days of inclement weather. Having done this, I accept that the assessment of his income earning capacity proposed by the plaintiff of $920 per week net was reasonable.

147 The plaintiff’s past income earning loss is assessed as:

Past income loss $125,545

Past superannuation loss $11,299

148 The plaintiff’s future income earning loss is assessed on the basis claimed of a loss of $370 net per week. I have applied a discount factor of 25% for vicissitudes on the basis that retraining is likely to mitigate some of this loss. I do not consider that any further award is warranted for retraining or early retirement.

149 The plaintiff’s future income earning loss is assessed as:

Future income loss $240,565

Future superannuation loss $21,651

150 The Fox v Wood award is allowed in the agreed sum of $17,955.53.

Out of pocket expenses

151 Past out of pocket expenses were claimed and mathematically agreed in the sum of $55,156.03. The defendant proposed that this sum be reduced by 25% to take account of the medical conditions from which the plaintiff suffered prior to the accident. There was little evidence that the plaintiff’s medical needs involved more than over the counter pain killing medication. Taking this into account, I reduced the amount claimed by 10% and the amount allowed is $49,640.

152 For the future, the evidence supported the amount claimed for medication. This amount is reduced by 10% to take account of the plaintiff’s pre-accident needs. The amount allowed is $22,510. Having regard to the nature of the plaintiff’s continuing symptoms and disabilities, I consider an amount of $5,000 to be warranted to provide for future medical treatment.

SUMMARY

153 Non economic loss $150,000.00

Past income loss 125,545.00
Past superannuation 11,299.00
Future income loss 240,565.00
Future superannuation 21,651.00
Fox v Wood 17,955.53
Past out of pocket expenses 49,640.00
Future out of pocket expenses 27,510.00
Total $644,165.53

1 Verdict and judgment for the plaintiff in the sum of $644,165.53.
2 The defendant is to pay the plaintiff’s costs of the proceedings.
3 The exhibits are to be retained for 28 days.

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