Alvarez Cabrera v PIV'S Engineering Pty Ltd - [2012] WADC 62

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: ALVAREZ CABRERA -v- PIV'S ENGINEERING PTY LTD [2012] WADC 62

CORAM: COMMISSIONER GETHING

HEARD: 6-10, 13 FEBRUARY & 9 MARCH 2012

DELIVERED : 27 APRIL 2012

FILE NO/S: CIV 2493 of 2009

BETWEEN: ERNESTO DAVID ALVAREZ CABRERA
Plaintiff
AND
PIV'S ENGINEERING PTY LTD
Defendant

Catchwords:

Negligence - Work place injury - Causation - Assessment of damages - Workers compensation - Assessment of whole of person impairment

Legislation:

Workers Compensation and Injury Management Act 1981 (WA) s 93K

Result:

Plaintiff's degree of permanent whole person impairment assessed at 23%
Plaintiff's claim for damages allowed
Damages assessed at $400,475

Representation:

Counsel:

Plaintiff: Mr D Clyne
Defendant: Mr T Lampropolous SC

Solicitors:

Plaintiff: Simon Walters
Defendant: Spark Helmore Lawyers

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

Armitage v Tenix Defence Pty Ltd [2008] WADC 150
Bankstown Foundry Pty Ltd v Braistina [1986] HCA 20; (1986) 160 CLR 301
Bennett v Minister of Community Welfare [1992] HCA 27; (1992) 176 CLR 40
Brocx v Mounsey [2010] WASCA 196
Czatyrko v Edith Cowan University [2005] HCA 14; (2005) 79 ALJR 839
Fagan v Crimes Compensation Tribunal [1982] HCA 49; (1982) 150 CLR 666
Fox v Wood [1981] HCA 41; (1981) 148 CLR 438
Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540
Graham v Baker [1961] HCA 48; (1961) 106 CLR 340
Houlahan v Pitchen [2009] WASCA 104
Husher v Husher [1999] HCA 47; (1999) 197 CLR 138
Kschammer v RW Piper & Sons Pty Ltd [2003] WASCA 298
Lawson v Flavel [2001] WASCA 272
Livingstone v Rawyards Coal Company (1880) 5 App Cas 25
Lyle v Soc [2009] WASCA 3
Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638
March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506
Mastaglia v Burns [2006] WASCA 190; (2006) 32 WAR 427
McGhee v National Coal Board [1973] 1 WLR 1
Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1
Montemaggiori v Wilson [2011] WASCA 177
Murray River North Pty Ltd v Midgley [2006] WASCA 104
Paul v Rendell (1981) 34 ALR 569
Reynolds v Roche Bros Pty Ltd [1999] WASCA 141
Rooke v Minister for Health [2009] WASCA 27
Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434
Setton v Eves [2006] WASCA 3
Strong v Woolworths Ltd t/as Big W [2012] HCA 5
Struthers v Harris [1983] WAR 123
Town of Mosman Park v Tait [2005] WASCA 124
Traeger v Harris [No 4] [2011] WADC 45
Trustees of the Roman Catholic Church for the Diocese of Canberra and Golburn (as St Anthony's Primary School) v Hadba [2005] HCA 31; (2005) 221 CLR 161
Villasevil v Pickering [2001] WASCA 143; (2001) 24 WAR 167
Watts v Rake [1960] HCA 58; (1960) 108 CLR 158
Western Australia v Watson [1990] WAR 248
Wynn v New South Wales Insurance Ministerial Corp [1995] HCA 53; (1995) 184 CLR 485
Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40

COMMISSIONER GETHING:

Overview

On 16 August 2007 the plaintiff was seriously injured when an L‑shaped piece of steel weighing about 270 kg which he was working on, fell on him. It is common ground that it broke the plaintiff's right leg. The plaintiff alleges that it also led to symptoms in his left shoulder, and that he has subsequently developed depression. He claims damages against his employer, the defendant. Prior to commencing the litigation, the plaintiff was assessed as having a permanent whole of person impairment for the purposes of the Workers Compensation and Injury Management Act 1981 (WA) (WCIMA) of 27%.
The defendant is a general engineering and steel fabrication company. It mainly fabricates large industrial equipment for the mining industry, including conveyor belts.
The defendant admits that it owes a duty of care, but pleads that the plaintiff's injury was not reasonably foreseeable and there were no reasonably practicable measures that the defendant could, or should, have taken to have avoided its occurrence. The defendant also contends that the plaintiff's permanent whole of person impairment (WPI) does not meet the threshold requirements in the WCIMA. In particular, it contends that the plaintiff's current left shoulder symptoms are due to his pre‑existing left shoulder rotator cuff disease, and that the depression is a secondary condition which cannot be taken into account in determining the threshold WPI.
It is convenient to begin the analysis with the lay evidence. The plaintiff gave evidence, with the assistance of an interpreter. The other lay witness he called was his daughter, Ms Emma Paula Alvarez Cabrera. The defendant called Mr Drazen Pivac, one of the two directors of the defendant.
In relation to the issue of liability, the plaintiff and the defendant both called expert evidence. The plaintiff called Mr Bohdan Generowicz, a civil engineer. The defendant called Mr Martin Simms, a mechanical engineer. The key issue on liability is whether the defendant ought to have insisted that the plaintiff do more to secure the L‑shaped piece of steel while he was working on it.
The next issue is to review the medical evidence and make findings as to the impact of the accident on the plaintiff. The key issue in contention is whether the plaintiff's current left shoulder symptoms are caused by the accident on 16 August 2007, or are the result of the pre‑existing rotator cuff disease in that shoulder.
In the present case, WCIMA s 93K(4)(d) provides that the court cannot award damages to the plaintiff unless the court is satisfied that the worker's degree of WPI is at least 15%. Section 93K(5) of the WCIMA limits the maximum amount of damages the court can award unless the court is satisfied that the worker's WPI is at least 25%. It is thus necessary for me to assess the plaintiff's degree of WPI.
I then proceed to assess damages.

Lay evidence

Plaintiff's evidence-in-chief

The plaintiff is a 61‑year‑old male, who was born in June 1950 in northern Chile. He is married with five children aged between 28 and 41.
The plaintiff attended school in Chile until 1967, attending both high school and technical college. He obtained a diploma in welding and smelting. He joined the workforce in 1967. He worked for 21 years in Chile as a welder and ultimately became a first-class welder.
The plaintiff came to Australia in 1988, when he was 38 years old. In Australia he continued to work as a welder. He worked with various employers in steel fabrication and construction. The plaintiff commenced work with the defendant in September 2001, and had worked with the defendant for about 6 1/2 years at the time of the accident.
The plaintiff gave evidence that prior to the accident he typically worked ten or more hours a day. At the time of the accident he was being paid $30 per hour regardless of the number of hours he worked. His rate had been increased to $30 per hour in the preceding 12 or so months. The defendant did not pay him superannuation.
The plaintiff said that when he joined the defendant he was not given any induction nor any safety instruction. He never attended any safety induction training. Nor did he ever attend any safety meetings in the workshop. He described the one meeting he attended at the workshop, and recalled that he was told that he and his colleagues had to work harder as the company was losing money, to stop drinking so much coffee and to stop taking long toilet breaks.
The plaintiff gave evidence that he had to provide his own welding mask for use whilst he was welding. The welding mask he used at the time of the accident was produced to the court.
At the time of the accident, the plaintiff was welding a piece of steel that was L-shaped. The plaintiff estimated that the workpiece weighed around 500 kg. I will refer to this as the 'workpiece' or 'L‑shaped workpiece' so that there is a consistent reference between witnesses.
The steel comprising the 'L' had a cross-section that was 'I' shaped. Mr Sims referred to the top and bottom of the 'I' as being the 'flanges'. The piece in between the flanges is the 'web'. The 'I' shape of the cross‑section is thus formed by two 'U' shaped channels back to back, with the web being the common wall.
In order to describe the work he was doing, the plaintiff brought with him to court a model of the trestle and the L‑shaped workpiece. The model was made by one of his sons who had observed the workpiece and the workplace after the time of the accident. The model was not to scale, but was nonetheless instructive.
In order to ensure that the court record was complete, I directed court staff to take photographs of the model at various points in the evidence of the plaintiff. Copies of these photographs were given to counsel for each party and became part of the court record as an augmentation to the transcript. Photos 1 to 4 are Annexure A to these reasons.
The boilermakers who fabricated the workpiece before the plaintiff commenced work on it had tack welded a number of rectangular metal plates into the channel of the workpiece on either side of the web. Mr Sims referred to these pieces as 'web stiffeners'. Tack welding refers to the process of doing a small temporary weld to hold a piece of metal in place prior to full welding.
The plaintiff's task was to fully weld the metal plates into the channel of the workpiece. To do so he had to weld the three edges of the plates of metal (that is, the web stiffeners) to the three interior sides of the channel on each side of the workpiece. Each plate had to be fully welded on both the upper and lower surface.
The plaintiff was asked whether, before he started, he was given any information about his task. He said he was not and that he just had to 'do it'. When asked how he knew what to do, he replied 'that is how they worked there'. He was asked whether he received any drawings, to which he replied that he had not as he was 'just a welder'.
The plaintiff's evidence was that the supervisor who was there on the day had told him to do the job, though he could not identify the name of this person.
The plaintiff said that there were two L-shaped workpieces that he had to weld. He used a crane to pick up the workpieces from the work area in which they were fabricated, and then move them to a trestle table in his work area. Whilst the each workpiece was still attached to the crane, he tack welded it into place on the trestle. He said that he secured one workpiece, then went back to get the second piece, and then secured that.
The trestle table comprises a piece of steel with an 'I' shaped cross‑section with two legs welded underneath. The trestle was much larger than the L‑shaped workpiece. There were two trestles in the plaintiff's work area.
The plaintiff described how he moved the L-shaped workpiece four times in order to best position it to weld each side of each web stiffener. He did so using the model, and photographs were taken of each position.
In the first position, the L-shaped workpiece was placed with the shorter side on the ground and the longer side vertical, abutting the end of the trestle (Annexure A photo 1). The plaintiff described how he tack welded the workpiece to the trestle.
The plaintiff said that the crane did not stay over his workstation. He could not leave it there because everyone wanted to use it. He said there could have been one or two cranes in the workshop, but everyone wanted to use the one that he used, including for the loading and unloading of trucks.
Once the plaintiff had finished welding the L-shaped workpiece in the first position, he then moved it into the second position (Annexure A photo 2). He described the process by which he brought the crane over, used chains to secure the workpiece, cut the tack welds with an angle grinder, moved the workpiece into the next position, and whilst it was still being held with chains tack welded it on to the trestle. He then removed the chains and the crane.
In the second position, the L-shaped workpiece was placed on the trestle with the longer side horizontal and shorter side vertical.
The plaintiff then gave evidence that, using the same process, he moved the workpiece to the third position (Annexure A photo 3). The third position was with the longer length of the L-shaped workpiece horizontal to, and resting on, the trestle and the shorter length vertically downwards at the end of the trestle. Again, the crane was not moved away until the workpiece was tack welded to the trestle.
The plaintiff then described the same process to move the L-shaped workpiece into the fourth and final position (Annexure A photo 4). It was from this position that the workpiece fell on him. In the fourth position, the L-shaped workpiece was positioned so that the longer side was vertical, at right angles to the top of the trestle. The shorter side of the workpiece was horizontal in the air, facing away from the trestle. The shorter side was approximately 180 cm off the ground.
The plaintiff tack welded the L-shaped workpiece to the trestle in four places. He placed one tack weld on each of the upper or top surfaces of top and bottom flange of the steel beam comprising trestle, either side of the centre web of the trestle.
The plaintiff observed that if the tack welding was not done properly, then when the crane was removed, the workpiece would have fallen over. He gave evidence that the tack weld had held the workpiece in place for about two hours prior to the accident.
The plaintiff said that he had to stand on top of a plastic milk crate in order to access the top parts of the L-shaped workpiece. The plaintiff was asked why he did not use a ladder. He answered that they did not have any in the workshop and he could not find any.
The plaintiff was asked about the accident. He said that he could not remember; he just remembered when he was on the ground.
The plaintiff said he believed he was standing on the milk crate at the time of the accident as he had to use it to access the top of the workpiece. He said that he was welding at the time and was facing the direction in which he was welding.
He recalled that at the time he fell he was wearing his welding mask. He said that when he was welding, he could see out of the visor in the mask, but that when he was not welding, it was very difficult to see anything. When he fell, the strap on his mask broke.
The plaintiff said that he fell on his left shoulder. The L-shaped workpiece fell on his right leg. The ground on which he fell was concrete. The workpiece was on his right leg until some other workers came and removed it.
The plaintiff said that he was given pain relief whilst at work and injections when he went to hospital, so could not feel the pain.
The plaintiff gave evidence that he had undertaken the welding process he described a large number of times in the past. In response to a question from his counsel, he stated that no one had ever told them how to do it. Nor had anyone ever told him how to do any other sorts of welding that he did. He was never given any drawings as to what to do. When asked if anyone supervised his work, he replied in the negative saying that all his employer did was to try and hurry him up so that he could get on with another job.
The plaintiff gave evidence that when working in other companies he had been given drawings of the welding he was to undertake.
The plaintiff was asked whether there was any job safety analysis done in his workplace, to which he replied that there was not so far as he could remember.
The plaintiff was asked whether or not any supervisor pointed out any risks to him. He said he was very much left to his own devices. As soon as a boilermaker had completed work for him to do, he would go over and get it. If no crane was available, he moved pieces on his own.
The plaintiff gave evidence that prior to the accident he had some problems with his right shoulder. He said that he had an operation a year or two prior to the accident.
The plaintiff said that prior to the accident he had felt some pain in his left shoulder. He went to his general practitioner and got an injection. After that it was okay. He recalled that this would have been in the three or so months preceding the accident.
He was asked whether he felt pain in his shoulder after the accident. He said that he did not feel any pain in his left shoulder due to the medication he was taking for his leg. He said he was taking so much medication that he did not feel any pain elsewhere.
The plaintiff said he started feeling pain in his left shoulder when he stopped taking painkillers. He said that he felt pain in the shoulder, leg, hip and waist. He remembers the pain starting about three weeks after the accident.
The plaintiff said the left shoulder pain was a lot worse now than it had been. He said that he had had an operation, that a piece was missing from a nerve, and that it was not repaired properly. He feels pain all the time and takes painkillers for it. He can not lift his left arm because of the pain and has to walk around with his left hand in his pocket to take weight off his left arm.
The plaintiff said that his leg was broken with the bones being smashed. He was in hospital the first time for about three weeks. He had four metal rings with pins through his leg to keep the bones in place (referring to the external fixator or Ilizarov frame which I will mention later in these reasons). He said that the first time he had this frame on it was for five or six months. He was only able to walk with some difficulty, and had to use to walking sticks. When he went out his son pushed him in a wheelchair. After this frame was removed, the leg was in plaster for four to five months. He was able to walk using two elbow crutches.
The plaintiff said that the first time the plaster was removed the healing did not work and the doctors had to put the metal frame back on the leg. Some bone was taken out of his hip. The frame was on the second time for about six months after the surgery. During this time he said that he was only able to walk at home, and when went out, he went in a wheelchair. He said a nurse attended every day to clean the metal pins either side of his leg.
The plaintiff gave evidence that when he came home with the frame, and then with his leg in plaster, he was not able to look after himself. He could not do anything. He had to sleep with his leg up. He had to take tablets to sleep. The plaintiff gave evidence that his wife used to do everything for him, including helping him go to the toilet and showering. He said that his wife had begun to help him shower from the second day he was in hospital. She would put plastic around the frame so that he could have a shower. His evidence was that his wife did everything and he could not do anything. He also had some help from his children.
The plaintiff gave evidence that his wife was still looking after him. She helps him put his shirt and trousers on, due to the problems he has with his left shoulder. His wife was showering him until about eight to twelve months ago. She still sometimes helps him to shower, but not every day. He has to be careful not to slip in the shower. He said that she was there in case he needed anything.
The plaintiff gave evidence that prior to the accident he enjoyed sports, including running with his son, using a gym he had at his home and working around the house. He also enjoyed boxing and table tennis.
The plaintiff gave evidence that now he will play on the computer for a while, get tired, move around, and then go to bed. He said that if he goes to the shops, he can walk for a short amount of time, then has to have a break if the pain is too strong.
The plaintiff said that he usually has pain in his lower back area, the area where his bone was removed in his thigh, and his leg. He said that the pain in his leg is there all the time from the knee down, it never goes away. He is on Panamax and Oxycontin for pain relief. He is also having tablets for depression, high blood pressure, diabetes as well as sleeping tablets.

The plaintiff gave evidence that after the accident he began receiving treatment for depression. He said that he became depressed because he could not do anything, felt like he had to do things, and ended up fighting with his wife. Since early 2011 he has been receiving treatment from a Spanish-speaking psychologist, a Dr Martin. He sees Dr Martin every couple of weeks.
He is also receiving treatment from a psychiatrist, Dr Denis Tannenbaum. It is Dr Tannenbaum who prescribes his medication. His initial attendances on Dr Tannenbaum were fortnightly, then every three weeks, and is now at the rate of about once a month.
The plaintiff gave evidence that he wears special shoes. The shoes were produced in court, and photographs taken of them for the court record. The shoes look like ordinary dress shoes, but the heel of the right shoes is raised some 27 mm.
The plaintiff showed both counsel and myself the scarring on his right leg. The main scar is on the outside of his right shin down towards the ankle. There is an evident scar of approximately 10 cm long. There are then several scar holes where the pins for the metal frame were. The plaintiff's detailed evidence in relation to scarring is set out in the context of the WPI assessment below. There is also a distinct redness on the top of his right foot. The plaintiff said that he has difficulty moving his right big toe and had to have his wife massage it.
In order to show counsel and myself his scarring, the plaintiff had to take off his right shoe. He did this in the presence of the three of us, and the interpreter. I observed him use his walking stick to push off the heel of his shoe, which was a slip on rather than a lace up shoe. He then required the assistance of the interpreter to help him remove his sock. He appeared to be in evident pain whilst giving evidence and it was necessary for me to provide him with breaks from time to time.

Plaintiff – cross‑examination

In cross-examination, counsel for the defendant went into considerable detail exploring the plaintiff's experience as a welder since he commenced work in 1967. From this review it is apparent that the plaintiff has been a welder for his entire career, primarily for fabrication related to the mining industry. He has extensive experience in all forms of welding, including tack welding.
He was asked why he stayed as an employee of the defendant for so long. He said that their premises were close to his home, and he was happy that he did not have to travel. He said that early on the owner had told him that he was a permanent worker.
The plaintiff was then asked why he stayed when he had concerns about the safety of the defendant's workshop. He said he complained several times to his supervisors about safety issues, without any success. The plaintiff identified one occasion in which a couple of workers complained about safety issues to an inspector, and lost their jobs. He said that he needed a job so he just put up with things.
When he was cross-examined about the L‑shaped workpiece, he said that there was nothing unusual or complicated about the task. He confirmed his evidence-in-chief about how he worked on the L‑shaped workpiece, moving it with the crane to the four positions, and described the tack welds he used in each position. He said that the crane was being used by everyone in the workshop, about 20 or so people. He gave evidence that the purpose of tack welding the L‑shaped workpiece to the trestle was to secure it, so that it would not tilt and fall over, or move side to side. He said that there was no other way to do the work. He confirmed that the reason why he moved the workpiece around was so that he could weld horizontally, and confirmed that this was the proper way to weld.
Counsel asked the plaintiff whether it was feasible to use a clamp to secure the workpiece, to which he replied that it was not. He was also asked whether he could have placed the workpiece on its side on two trestle tables, to which he again said no.
In relation to the fourth position, from which the workpiece fell, the plaintiff confirmed that he was careful to properly tack it to the trestle, which is why he felt he was able to remove the crane. He reiterated that if the tack welds were not sufficient, the workpiece would have fallen straight away when the crane was removed. The plaintiff also gave evidence that nothing unusual happened when he was cleaning and welding the workpiece. There was no sign of it moving, and he was comfortable that the tack welds were holding it in position. He said that the tack welds must have been done properly as they held for more than two hours while he worked on both sides of the workpiece.
The plaintiff confirmed in cross-examination that he was standing on a milk crate welding when he fell. He said he was working on welding about 1.8 m off the ground, at the top of the workpiece. He said he moved from one side of the workpiece to the other so that the area in which he was working did not get too hot. The plaintiff said that he did not know how the accident happened. He said that he did not fall off the crate, but that everything fell together.
Counsel asked the plaintiff how he came to a weight of 500 kg for the workpiece. He said that he and his son had worked it out based on the dimensions. He did not think it could be less than 300 kg.
The plaintiff was then cross-examined on the pain he felt following the accident. He gave evidence that initially he did not feel any pain as he was on painkillers. He said that his doctor told him that he had to stop taking the painkillers as there was a risk that he would become addicted to them. He confirmed that the problems with his shoulder started when he stopped taking painkillers.
It was put to the plaintiff that he had both right and left shoulder pain prior to the accident. In relation to the right shoulder, the plaintiff confirmed that he had had an injection, but that had not worked, so he had an operation which did work. In relation to the left shoulder, he said that he had pain before the accident, but the injection solved the problem.
A number of statements which the plaintiff had made to various medical practitioners about his shoulders were put to the plaintiff. His recollection about what he may have told medical practitioners was generally poor.

Emma Paula Alvarez Cabrera

The plaintiff called his eldest daughter, Emma Paula Alvarez Cabrera. She said that she came to Australia in 1988 when she was 17.
Ms Alvarez Cabrera gave evidence that prior to the accident she saw her father about two or three times a week, particularly on weekends. She said that when she used to see her father, she would see him doing a lot of work around the house. She said that her parents' house was a new house, and that her father did things like building the patio, building retaining walls and fences, and taking rubbish to the tip. She said that the plaintiff used to mechanically service his car, her car and those of her other siblings. She said that the plaintiff loved 'mechanic as a hobby', repairing motors and the like.
Ms Alvarez Cabrera said that her father was a really strong man, and that he was always mentally and physically strong. He did gym work, cycled, swam and the family used to go canoeing. She said that the plaintiff loved to work, and that when she was younger she used to complain that she did not see her father because of his work.
Ms Alvarez Cabrera said that she saw the plaintiff on the day of the accident, a couple of hours after it occurred. She gave evidence that he was 'crying like a kid'. She said that the family had to feed him because he was in shock at what had happened. He did not allow others to touch him so his wife had to bathe him every morning.
She gave evidence that the plaintiff's pain was excruciating, in particular when he was asked to walk a day after the accident. Ms Alvarez Cabrera said that she had to move the plaintiff's leg into different positions for him when it had the frame on.
She was asked by counsel for the plaintiff whether she had seen her mother help the plaintiff, to which she said she had. She said that she had seen her mother dressing him and undressing him, drying him after the bathing, changing his clothes, doing the bed, cleaning. She said that she saw her mother cleaning around the rings of the frame. She gave evidence that her mother had to stand by the plaintiff in the shower as he would get dizzy. She said that her mother was 'doing everything for him'.
Ms Alvarez Cabrera was asked about the last 12 months. She said that the plaintiff is having a bit more movement with his walking stick. She said that the pain is still excruciating, and his back is sore.
She said that her mother would now do things like massaging his foot, helping him get changed and showering. She said that the plaintiff cannot take his clothes off so that he needs assistance. She said that she had seen him try and get changed.
In cross-examination, Ms Alvarez Cabrera confirmed that as far as she knew, the plaintiff worked Monday to Sunday. She said that he loved his job as a welder, but was not happy with the safety at the workplace of the defendant. She confirmed that the plaintiff took pride in his work.
Ms Alvarez Cabrera was asked whether she recalled him having problems with his shoulders. She said that she was aware that he had had an operation on what she thought was his right shoulder, but this had occurred at a time some years ago when she was living in Adelaide.
She confirmed that either her or one of her siblings would go with the plaintiff when he needed to go to specialist or have an injection. She said that they spoke English as well as she did.
She was asked in cross-examination how she knew that her father was in excruciating pain. She described the following in an emotional manner (the phrasing is somewhat stilted given her distinct accent):
When I arrived about 6 in the morning I saw my father crawling to the bedside of the table. His half body was outside of the [bed] and he was crying and he was telling me that he was going to jump through the window if he didn't have something for the pain - for the pain. That's when I - I couldn't understand what happened and I went to talk to the head nurse and she told me that she did - they didn't give him painkillers for the whole night after he got the operation … I couldn't understand what was going on… He told me that he felt the pain the whole night. He couldn't sleep the whole night because nobody take care of him to book him the injection, so he whole body - half of the body was on the way. He was looking at the window … And I said, why - why - what are you doing? He said, look at it. If you didn't arrive I will jump out the window.
She gave evidence that the pain was in his legs.
She accepted in cross-examination that she criticised the nursing staff and told them they weren't doing their job properly. She said that she felt really upset as the nurses did not give her father any painkillers. She also complained about the smell in the shared room into which her father was moved. Ultimately, the family arranged for him to be transferred from Fremantle Hospital to Kaleeya Hospital.
Ms Alvarez Cabrera said that her father continued to complain to hospital staff about the pain. She described a machine which the doctor gave him which allowed him to press a button and self medicate with morphine. She said that he pressed it too many times, so they took it off him. She said that they had to encourage her father to tell the nursing staff about the pain as he tended not to do so until it got to '10' (referring to the usual approach of asking a patient to describe their pain on a scale out of 10).
It was put to her that the plaintiff was 'basically complaining of pain the whole time that he was there', to which she agreed. The cross‑examination continued:
All right. And where was he saying he - the - the pain was?‑‑‑The pain's all in his whole leg.
Yes?‑‑‑And he said to me also that - his shoulder wasn't - something wrong with his shoulder, but he didn't know.
When did he tell you that?‑‑‑He said at the hospital.
This is in the first - - -?‑‑‑But at - but at that time
- - -
Yes?‑‑‑I didn't even have a concern about it at that time because of his - because of his leg.
I see. Well, let me understand this. You say that he complained of pain in his shoulder? Is that what you're saying?‑‑‑He said something about the shoulder, but I didn't even notice.
Ms Alvarez Cabrera also said that the plaintiff had complained about a bump on his head. When asked why she did not raise that with the nurses, she said:
So you think I will worry about that little bump and trying to save his leg? I was worry trying to save his leg. And after not even three or four days after the - the first operation they have to have another operation to try to straight the leg, so I completely forget about it. I forgot about it.

Ms Alvarez Cabrera said that she used to spend a lot of time with her father at hospital, in effect as much as her studies allowed.
She was also cross-examined about when her father first complained of the shoulder, and why she did not tell anyone about it. The cross‑examination was as follows:
And was it whilst in - he was in hospital that you say he said something about his shoulder?‑‑‑He said that it bothers him.
Which shoulder?‑‑‑I think it was the left one. And - - -?‑‑‑Because I knew he did have a - a operation in the right.
Yes. So when he said it bothered him, did you get any explanation as to how it was bothering him?‑‑‑No, I didn't ask him.
You weren't concerned about his shoulder at all?‑‑‑I was concerned, but then again I was concerned about his leg.
Yes?‑‑‑And I was concerned about his pain and the only thing that I want is having - pain, just relief pain, that's all.
All right. But again, why wouldn't you mention that to the doctors? I know that's - the leg was the most important, but he was complaining of these other things. Why wouldn't you mention those to the nurses and the doctor?‑‑‑Because that was no major complain for him.
Sorry?‑‑‑That was no major thing for him.
No major - - -?‑‑‑It was no major thing for me that - - -
Okay. So from what you're saying the left shoulder wasn't an issue? ‑‑‑ At that time, no.
No. He was complaining of pain elsewhere, but the shoulder - - -?‑‑‑ Well, look at it. You've got an open wound and it's been smashed in little pieces. Of course, your leg is important and that was important for us. I didn't worry about the other stuff.
All right. So from your point of view your father wasn't concerned about his shoulder, nor were you?‑‑‑At that time, no - - -
No. I see?‑‑‑We were not concerned. Later on, yes.
She also said that her father continued to have pain when he got home, in particular after his painkillers wore off.
Ms Alvarez Cabrera was cross-examined on how much of the tasks her mother undertook she actually saw. Counsel was testing the extent to which her evidence was hearsay and the extent to which it was based on her own observations. It was difficult to discern anything conclusive. Given the length of time which the plaintiff has now been injured and the number of occasions during that time on which Ms Alvarez Cabrera has been at her parents' house with both her parents at home (especially as the plaintiff has not been working), it seems inevitable that she observed some, or even most, of what she testified about. The effect of Ms Alvarez Cabrera's evidence on this point corroborates the plaintiff's evidence. The defendant did not adduce any evidence to contradict the plaintiff's evidence of the extent of his reliance on his wife and other family members.

Drazen Pivac

The defendant called Mr Drazen Pivac, who is one of the two directors of the defendant.
Mr Pivac gave evidence that he is a boilermaker welder, having qualified in 1976. He is a director of the defendant and has been since 1993 when he was involved in setting up the company.
Mr Pivac said that the defendant is involved in steel fabrication, in particular in the mining industry.
Mr Pivac identified the plans from which the L-shaped workpiece was constructed. From those plans, he calculated that the weight of the L‑shaped workpiece was 270.5 kg.
He gave evidence that the welding of these L-shaped workpiece was not a complicated task, but was a task that a first-class welder such as the plaintiff would do nearly every day.
Mr Pivac said that the workpiece was fabricated by the boilermakers, who would have then brought it to the plaintiff. He said that it was up to the plaintiff to work out the best way to do the welding.
Mr Pivac gave evidence that the process of tack welding a workpiece to a workbench is a common practice. He described it as 'the strongest thing that you could do'. He said that a tack weld was an appropriate way of securing the L-shaped workpiece to the workbench.
Mr Pivac said that there was always a leading hand or supervisor on the workshop floor. He said that their job was to control and look after safety. When asked what they were to do if they saw something that was unsafe, he said it was to stop it.
Mr Pivac gave evidence that he had a discussion with the plaintiff about his shoulders in 2006 or 2007. He recalled that the plaintiff had taken 3 to 4 months off work to have surgery to his right shoulder. He said that the plaintiff told him that he planned to have surgery on the left shoulder soon as he could get the money together.
In cross-examination, Mr Pivac identified the employer's report filed by the defendant to claim workers compensation for the plaintiff. In that document it is stated that the plaintiff was then working between five and six days a week, at 55 hours per week. The plaintiff was described as a non-award worker. His total earnings of the 52 weeks immediately prior to the date of injury were $81,435.20. Mr Pivac confirmed that at the time of the accident, in 2007, a first-class boilermaker was being paid around $30 per hour they were now being paid between $30 and $35 per hour.
In cross-examination, Mr Pivac was asked whether or not when employees joined the firm they are required to go through any induction. Mr Pivac said that they were, and there was a form recording it. He said that he made sure the forms were signed, and that if they were not, he would make them be done again.
At the trial Mr Pivac was shown a contract induction form that purported to be for the plaintiff. It is evident from this document that the various items have not been ticked off as having been discussed with the plaintiff and that the document is not signed by Mr Pivac. He described this form as being the typical form used by the defendant, but that he had not seen the particular form before. He conceded that he did not personally check this form. However, he disagreed with the proposition put to him by counsel for the plaintiff that no induction was done at all for the plaintiff. He indicated in cross-examination that there may be other documents which recorded the induction carried out for the plaintiff. On 9 March 2012 when I heard closing submissions, the defendant produced an employment medical assessment form from 2005 and an undated form titled 'Employee Induction Verification Form' for the plaintiff.
Counsel for the plaintiff asked whether or not it was the practice of the defendant to carry out a job safety analysis. He said that was not, and that they were not required by law to do so.
Mr Pivac was asked in cross-examination whether the defendant has safety meetings. He said that they did, about every month to month, and that minutes were prepared of the meetings. Again, when I heard closing submissions, a bundle of minutes of 'Toolbox Meetings' were tendered. From the minutes it appears that these meetings are held every couple of months or so.
Mr Pivac said that he was on site the day the plaintiff was injured. He was asked about tack welding:
... Do you agree that to do the job that Mr Cabrera was doing, you could easily have provided a support just in case the tack weld failed, something to support it and hold it up?‑‑‑Well, at - at - in my own personal opinion, the tack was - the one he welded, was more than strong enough for what he was doing, and it was him that should provide and put extra bracing on that.
Did you tell him to do that?‑‑‑Of course we do, always.
You told him to put ‑ ‑ ‑?‑‑‑I didn't - not tell him in that particular case, but we did all the time, that they have to make sure that everything's safe before they start on it.
Well, how would he know what - what was safe?‑‑‑Because he's got experience over 30 years of welding and he know more than - than anybody else in that - he'd done that million times.
So he's done that job before?‑‑‑Correct, yeah.
Did you think it was safe or unsafe for him to do?‑‑‑It was safe.
Did you look at it?‑‑‑Yes, I did.
When did you look at it?‑‑‑I look at it through my window before he was start welding.
On that day?‑‑‑Yes.
And has he done that job before?‑‑‑Yes, he has.
And you didn't think it was unsafe to have ‑ ‑ ‑?‑‑‑That was not unsafe at all.
To have the L shape with its head - with most of its weight at the top. You didn't think it was any risk that it could possibly fall?‑‑‑That wasn't most of the weight. The top was weighed down on the bottom more than the top.
The weight was at the bottom more than the top?‑‑‑Correct.
I see. So there was no risk it could fall at all?‑‑‑No.
Well, it did fall?‑‑‑Yes, it did, because of the reason why it fall.

I observe at this point that in position four (Annexure A photo 4), it is clearly evident that when the L‑shaped workpiece is inverted with its shorter length at the top, most of its weight is at the top. That being so, it appears that Mr Pivac must have observed the plaintiff working on the L‑shaped workpiece at an earlier point in the day when it was in one of the other positions (that is, as described in Annexure A photos 1 or 2).
Mr Pivac agreed with the proposition put to him in cross‑examination that if a tack weld broke on an L‑shaped piece of metal with the leg at the top, there is a risk it will fall. He also agreed that if it fell there was a risk that it would crush someone.
He conceded that all welds can fail, including full penetration welds. Mr Pivac said that in the present case, the tack was more than strong enough for what the plaintiff was doing.
When asked why the weld failed, he said:
Why did it fall?‑‑‑Because the tack broke. When he was welding, he was welding close to the tack, and he was lots of weld - weld string(?) and it broke the tack.
So that's something you worked out afterwards, is it?‑‑‑Correct.
And is that not something you could have seen might have happened?‑‑‑There's no way in the world you can see that.
I see. But tacks, tack welds do break, don't they?‑‑‑They break with - yeah, for the reason, but not - yeah, they do break, but for - there's a reason why.
He proffered the following view of the cause of the accident:
But it broke?‑‑‑But it broke because it wasn't taken off the bench on time, when it was finished.
Sorry, I don't understand that?‑‑‑When - when he finished the job, he should have taken it off from the bench himself, shift it, put it on the floor.
I see. So did you notice that he hadn't taken it off the bench?‑‑‑I didn't notice because it was 20 past 4 and - and the guy just shift himself to build something else, instead of doing what he's supposed to do.
Was there any system to make sure those sorts of things didn't happen?‑‑‑You can't watch everything 100 per cent of the time.
Did you give him any instructions to make sure that he should have shifted it when he'd finished?
…
So Mr Pivac, did you give him any instructions about when these pieces of metal, having been welded, should be removed from tack supports?‑‑‑Of course we do, all the time, yeah.
You gave him those instructions?‑‑‑Yes.
Did you personally give him that instruction?‑‑‑I didn't, personally. We do all the time, yeah.
Well, how do you know that he was given the instruction?‑‑‑Because they know what they're supposed to do. They put the piece on the bench to weld it, then put it aside when it's complete. And that's the procedure they do.
How do you know that was told to Mr Cabrera?‑‑‑Well, he's been working for six years, he's been doing so many pieces, moving all the time. Why didn't he move that one. Don't have to tell him all the time what he have to do.
So it's your position that this was his fault, is it?‑‑‑In this case it was, yeah.

Findings

The plaintiff's evidence about the circumstances of the accident was not undermined by cross-examination.
Mr Pivac does not appear to have seen the accident, nor the position of the L‑shaped workpiece immediately prior to the accident. There is thus no evidence contradicting the plaintiff's evidence as to how the accident occurred. With one caveat, I make findings in accordance with it. The caveat is that I will deal with the issue of whether the plaintiff fell on his left shoulder at a later point in these reasons, having reviewed the medical evidence. I will also defer making findings on the extent of the plaintiff's injuries until I have reviewed the medical evidence.
In relation to the induction, the Employee Induction Verification Form provided for the plaintiff from 2005 seems fairly rudimentary. It seems to deal mainly with procedures. The minutes of the Toolbox Meetings also suggest a rather rudimentary approach to safety. I prefer the evidence of the plaintiff on this point who would have personal knowledge of his attendance at any safety meeting and of their utility.
In summary terms, I find that:
(a)the defendant provided the plaintiff with only rudimentary induction;
(b)the defendant did not carry out any job safety analysis of the plaintiff's work place, either generally or specifically in relation to the task he was undertaking when injured;
(c)the defendant did not supervise the manner in which the plaintiff carried out the task he was undertaking when injured;
(d)the plaintiff moved the L‑shaped workpiece three times prior to the accident as described in Annexure A photos 1, 2 and 3, tack welding it to the trestle in each position (though, as to position 3, see par 146);
(e)at the time of the accident, the L‑shaped workpiece was in an inverted position so that the longer side was vertical, at right angles to the top flange of the trestle, and the shorter side was horizontal in the air, facing away from the trestle (as set out in Annexure A photo 4);
(f)the plaintiff tack welded the L-shaped workpiece to the trestle in four places, namely one on each of the upper or top surfaces of top and bottom flange of the trestle either side of the centre web of the trestle;
(g)the L shaped workpiece was in the position in (e) for approximately 2 hours before it fell;
(h)the task which the plaintiff was undertaking was to fully weld web stiffeners in the channel of the workpiece;
(i)immediately prior to the accident the subject of the present action, the plaintiff was standing on a milk crate welding the top part of the L‑shaped workpiece, about 1.8 m above the ground;
(j)the L‑shaped workpiece detached from the trestle and fell on the plaintiff, causing him to fall to the ground, which was concrete; and
(k)the workpiece landed on the plaintiff's right leg.
I also accept Mr Pivac's evidence that the plaintiff told him that he intended to have left shoulder surgery. This is consistent with the approach the plaintiff took to his right shoulder.
I will make findings on the remaining issues arising out of the evidence of the lay witnesses at later points in these reasons in the context of the totality of the evidence on the various issues.

Liability

Pleadings

The plaintiff alleges seven particulars of negligence against the defendant namely that:
(a)the defendant instructed the plaintiff to carry out his work without the workpiece being properly secured by an overhead crane or other means;
(b)the defendant instructed the plaintiff to detach the overhead crane from the workpiece whilst undertaking his work;
(c)the defendant failed to provide adequate overhead cranes or other mechanical means to ensure that the large steel structures were safely secured when welding work was being carried out;
(d)the defendant failed to provide the plaintiff with adequate supervision and instruction with regard to the manner in which he undertook his work;
(e)the defendant failed to ensure that the employer was able to properly communicate with the plaintiff at all material times given that the plaintiff was born in Chile and his understanding of the English language is poor;
(f)the defendant failed to undertake a job hazard analysis of the job and to provide the plaintiff with adequate and specific instructions as to how to safely complete the job; and
(g)in the circumstances, the defendant supplied an unsafe system of work.
The defendant in its defence pleads that the practice of tack welding sections of steel to supporting structures such as trestles is common, practical and safe, and had been performed by the plaintiff on numerous occasions prior to the accident. The defendant further pleads that it was not reasonably practical or necessary to use an overhead crane to secure the workpiece once it had been tack welded.
The defendant also pleads that the plaintiff was a very experienced, Australian certified first class welder. It denied ever having any difficulties communicating with him in English or that the plaintiff's injury arose due to a lack of proper communication. The defendant says that the plaintiff was more than adequately trained and experienced to know how to safely complete the job. The pleadings conclude that the plaintiff's injury 'was not reasonably foreseeable and there was no reasonably practical measures the defendant could or should have taken to avoid its occurrence'.
The plaintiff requested particulars as to why the defendant asserted that it was not reasonably practicable or necessary to use an overhead crane to secure the workpiece once it had been tack welded. The defendant answered:
It is not practical nor reasonable for a high demand asset such as an overhead crane to be tied up on what was ultimately the simple exercise of providing support to a workpiece during a lengthy welding operation. Any suggestion that an overhead crane should have been used as a prop or substitute for some other supplementary support mechanism is simply unrealistic, under normal, everyday work shop conditions.
The defendant also asserted that the plaintiff was contributorily negligent in that he failed to perform an adequate tack weld, take reasonable care to ensure that the tack weld was sound and/or for failing to carry out his duties in a reasonably safe manner in all of the circumstances.

Expert evidence

The plaintiff and the defendant both called expert evidence in relation to the issues of liability. Although there was no real challenge to the expertise of either witness, it became apparent that Mr Sims had more relevant expertise and experience when it came to the practicalities of welding.
Mr Generowicz provided reports dated 13 July 2010 and 23 January 2012. Mr Simms provided reports dated 30 November 2009, 16 April 2010 and 24 August 2010.
The defendant provided Mr Simms with specific information about the L‑shaped workpiece the subject of the accident. Mr Sims described it as a section of 250UC89 universal column. This designation indicates that the section was a universal column section nominally 250 mm deep and weighing 89 kg/m. The longer side of the L‑shaped workpiece had a dimension of 1822 mm overall, with the shorter side having 1548 mm overall. Mr Simms concludes that, using these dimensions, and with an allowance for six 10 mm thick web stiffening plates on each side, the L‑shaped workpiece would be expected to weigh approximately 300 kg.
Mr Generowicz does not propose an alternative weight.
The plaintiff in his evidence said that he thought the L‑shaped section weighed more like 500 kg.
Mr Pivac calculated the weight to be 270.5 kg. He did so, on the basis of the weight of the component pieces of steel in the plans for the L‑shaped workpiece. It is apparent from these plans that the steel in question is specified as 250UC73, meaning its nominal weight is 73 kg/m, not 89 kg/m as understood by Mr Sims.
Given the analysis of Mr Pivac is based on the known weight per metre and dimensions from the plans, I accept his evidence. I therefore find that the L‑shaped workpiece the subject of the accident weighed approximately 270 kg.
There was a consensus between the two engineers, Mr Generowicz and Mr Simms, in relation to the following matters:
(a)in the absence of detailed information about the weld which failed (weld length, weld size, weld position and weld quality), it is only possible to speculate about the most likely cause of the weld failing;
(b)the cause of the accident was the tack welds failing; and
(c)it would have been totally impractical to support or stabilise the L‑frame with the overhead crane or winch for a prolonged period.
As to the remainder of their evidence, Mr Generowicz carried out an inspection of the steel fabrication shop of the defendant on 7 July 2010 in the company of the plaintiff. The plaintiff described to him the position of the L‑shaped workpiece immediately prior to the accident. There is a key difference between the description given by the plaintiff to Mr Generowicz and that given by the plaintiff at trial. In his evidence, the plaintiff described the L‑shaped workpiece as being inverted, with the shorter side up in the air, pointing away from the trestle (as seen in Annexure A photo 4). To Mr Generowizc, he described it as being inverted, with the shorter side up in the air, directly over the trestle.
Mr Generowicz concluded (13 July 2010 report):
With its L‑shape in the inverted position (the short leg of the L on top) the L frame was top-heavy and inherently unstable, its stability totally reliant on the tack weld attachments to the end of the trestle beam.
This leads the author to the conclusion that the only possible cause of the L‑frame's collapse was the failure of the tack welds.
Mr Generowicz suggested three ways in which the accident could have been prevented:
(a)Proposal 1 - laying the L‑frame horizontally on the two trestles at an oblique angle, so that both legs of the L were supported;
(b)Proposal 2 - standing the L‑frame vertically, but with the short leg of the L on the floor, pointing away from the trestle, the long vertical leg tack welded to the end of the trestle beam; and
(c)Proposal 3 - with the inverted orientation of the L‑frame, as it was, improving its stability by temporarily welding of an off‑cut, approximately one metre long, of a steel angle or channel section to either flange of the long leg of the L‑frame at the floor level at the right angles to the plane of the L‑frame.
In oral evidence, Mr Generowicz conceded that whilst Proposal 3 would give lateral support, it would not prevent the L shaped workpiece falling away from the trestle, along the direction of the shorter length of the 'L'. He accepted that this was the likely direction in which the workpiece would fall if the tack welds failed.
In re‑examination, he made the point that Proposal 3 was based on the shorter length of the 'L' being directly over the trestle, as he was instructed. He said that if the shorter length of the 'L' was pointing away from the trestle, the brace could be at ground level, parallel to the shorter length of the 'L' above it. This could be made out of either angle steel, with the angle on the floor, or 'I' beams. It would be tack welded to the base of the L shaped workpiece.
Mr Generowicz said that he was not able to comment on the hypothesis posed by Mr Simms as to why the weld might have failed.
Mr Sims said that the practice of tack welding sections to supporting structures or other parts of the same structure is common and is generally safe. It offers a convenient and economical method of temporarily positioning an item during final welding. Mr Sims said in oral evidence that if a welder is competent to do a full weld, he will certainly be competent to do a tack weld. He said that an experienced welder will form an intuitive sense of what is the correct size of a tack weld in a particular situation.
Mr Sims said that where tack welds are small, are completed hurriedly, or are highly loaded, the risk of them breaking open is relatively high. All experienced welders would be aware of this and would normally take it into account when performing the tack weld. In oral evidence, he elaborated that any welder who has had a number of years of experience would have had tack welds break on him. He said it was a matter of everyday experience for tack welds to break and need to be redone.
Mr Simms observes that the 'cracking and failure of tack welds is not that uncommon in the fabrication industry and in most cases the welder simply repeats the weld' (30 November 2009 report). In the same report he concedes that it is 'sometimes difficult for the welder to judge how much load a tack weld can sustain'.
Mr Simms is of the view that, in the absence of detailed information about the weld that failed, it is only possible to speculate about the most likely cause of the weld failing. He speculates that one cause is if the plaintiff performed a hurried weld, then it was possible the fusion with one part or the other was incomplete. Alternatively, he speculated that it is possible that the weld was simply inadequate in size to carry the loads imposed on it. He comments (30 November Report):
Given the description of the manner in which the [L shaped workpiece] was set up, a plausible (and in my opinion likely) scenario is that after the [plaintiff] performed the weld between the top of the trestle and the [workpiece], it shrank as it cooled (a normal and expected occurrence) and as a result it acted to try and tilt the [workpiece] backwards. This would have created a considerable bending stressing in the weld and in this in turn could have caused the weld to crack and fail.
He goes on to comment:
If the weld was poorly executed, or of grossly inadequate size, this could certainly cause it to fail. If however it is assumed that the [plaintiff] was a competent welder who performed a tack weld of a reasonable size it would, in my opinion, be more likely than not that the cause of the weld failure was shrinkage during cooling resulting in very high internal stresses and ultimately the cracking of the weld. This hypothesis is also supported by the fact that the [plaintiff] had completed the weld and was attending to another part when the weld failed because this is consistent with the time interval required for cooling and shrinkage to occur.
In his report dated 16 April 2010, Mr Simms commented on the adequacy of tack welds. He observes:
Since the [plaintiff] would have to remove the tack welds on completion of a particular phase of the work (for example after he had performed all of the welds which were accessible with the work‑piece in a given position) I would not expect him to perform particularly large welds as this would involve extra grinding to remove them.
In his report dated 24 August 2010, Mr Sims stated:
Mr Generowicz concludes that the only possible cause of the accident was failure of the tack welds. I concur with him on this point. I would say, however, that with reference to the preceding discussion the most likely cause of the accident was not the method adopted per se but that it was probably correctly applied on one occasion and not on the later one.
Mr Sims was asked to explain this in examination-in-chief. He said that:
… what I mean there is that if - if two activities have been performed which are essentially the same activity in terms of the propensity of the item to fall over, on one of those occasions it didn't fall over but it was tack welded, and on the other occasion it did fall over, but it had been tack welded, the sort of intuitive conclusion is that one set of tack welds was adequate and one set of tack welds was inadequate. That's what I meant.
…
All right. So when you say the most likely cause of the accident was not the method adopted per se, what do you mean by the method?‑‑‑Yes, okay. What I meant there was that properly - properly welded - if the method is standing the item up and welding it to the trestle, that method of itself was not necessarily flawed, it's the execution of that method that - that failed in this instance.
Mr Sims sets out four diagrams in his report dated 24 August 2010, which he described as the four positions the workpiece would be in to be oriented in order to complete the work. He also gives two further alternatives to the last two orientations. These diagrams are set out in Annexure B, numbered B1 to B6. It is evident from the photographs at Annexure A that the plaintiff did not use the position in diagrams B3. Rather he used the position in diagram B5 which is drawn to scale, as distinct from the model at Annexure A photo 3.
In relation to the diagrams, Mr Sims observes:
Of all the cases shown, the load on the tack weld would have been highest when the workpiece was orientated with the long leg horizontal and since it would appear that this orientation occurred at some time before the final orientation, it follows that the method adopted by the plaintiff (i.e. tack welds on the vertical leg of the workpiece with the horizontal leg at the top) was successful on at least one occasion. This would suggest that the tack welds in the previous orientation had survived but that for some reason they did not on a later occasion.

In relation to support mechanisms generally, Mr Simms comments (16 April Report):
It is self evident that the use of some supplementary means of supporting the workpiece would reduce or even eliminate the risk of the accident and it would be possible to contrive many systems whereby the workpiece would be restrained from falling in the event of the tack welds failing. For example it would have been possible to place another trestle under the over-hanging leg of the workpiece and then to tack weld a steel section to it to act as a supplementary prop or to position the workpiece so that the horizontal leg projected out over the top of the trestle it was tack welded to and then tack weld a prop between it and the top of the trestle.
Counsel for the defendant put to Mr Sims the plaintiff's evidence that he did four tack welds, two on each of the upper sides of the flanges, one either side of the web. His response was that 'were I watching I would be more inclined to have confidence that it wouldn't fall over'.
In re-examination, Mr Sims was asked whether, not having the benefit of hindsight, if he saw a job like this being supported by four tack welds, and not knowing about what happened later on, would he have been concerned to see that set up. His reply was: 'If there was four tack welds I would be less concerned. It is difficult to view these things once you know what's happened'.
He was also asked to comment on the impact of knowing that the plaintiff was a first class welder with some 30 years' experience. He replied:
First of all, I would expect the quality of his welding to be good, and secondly, the longer he's been a welder the more likely it is that he's had the experience of things breaking tack welds and possibly falling apart in - in the past.
He was also asked the impact of the plaintiff actually working on the job when it fell. He said:
Yes. I guess to some extent it depends on what - what it was he was doing in terms of how long it had been since the tack welds were done. So in other words if he completed the tack welds and immediately moved on to doing another - a proper weld, if you like, that would suggest to me that the welds were probably manifestly inadequate. If, on the other hand, he'd been working for some time, it would be my view the most likely explanation is that the welds have progressively cooled and as they've cooled they've shrunk and welds that shrink induce stresses in themselves, and those stresses then reached a point where the weld broke - a - the welds or a weld because if - if a weld breaks the load increases on the other welds, the likelihood of a failure and - and so on, and it becomes a chain effect and they, as it were, unzip, and down it comes.
Mr Sims explained in some detail a scenario in which the plaintiff was welding web stiffeners close to the point at which the L‑shaped workpiece was tack welded to the trestle. He said that as those welds cooled they would have applied stresses to the tack welds. He explained that as a weld cools it tends to shrink. As it shrinks it will tend to distort the surrounding metal, perhaps even imperceptibly. Depending on where the web stiffeners were in relation to the tack welds, the cooling welds around the web stiffeners may have distorted the flanges of the workpiece immediately above and below it. This could cause a tack weld under stress to crack. With the task that the plaintiff was undertaking, normally the welder would do the web stiffener on one side and then the other so that the workpiece did not distort as the welds cooled. He said that the welds would cool sufficiently to be able to be touched within about 20 minutes.
Knowing there was four tack welds, Mr Sims was asked what might have caused the situation to occur:
Can you say what apparently caused it in that situation?‑‑‑No, I don't believe you can. All you can say - there's certain things that are - are fairly clear. The tack welds must have broken for it to fall down. I mean, that's self evident.
Sure?‑‑‑The tack welds must have broken for one of two reasons. They were stressed - they were good tack welds but stressed in some way that caused them to fail or they were bad tack welds and they just failed. Now, it's not impossible for a welded component that's grossly overstressed to - to fail relatively slowly; for, if you like, there to be a degree of creep, and it's failing relatively slowly. That's pretty unlikely. It's more likely that something occurred to cause them to fail suddenly and that would - to me, the most logical explanation is shrinkage due to cooling.
And in terms of overloading, if it is the case, as the plaintiff says, the weight was resting on the floor ‑ ‑ ‑?‑‑‑Yes.
‑ ‑ ‑ where would the stressors on the tack weld work come from?‑‑‑Yes. Depending on where the tack welds were they'll be stressed differently. Now, if we look at the scenario where there's only two tack welds, the stresses will be induced by one of two mechanisms. The first will be that the L-shaped device, its centre of mass is clearly outside of the toe of the - the upright portion. In other words, if you stood it there and let it go it would fall over, and that's self evident from the drawing. If it's butted up to the trestle and welded, the fact that it's trying to fall over, in the case of it facing away from the trestle, clearly it's trying to fall over away from the trestle. In the case of it being over the trestle itself it will fall towards the trestle. In both of those scenarios the - the welds are being - the tack welds are being stressed. In the case where the L faces away from the trestle, the weld is effectively being stressed in - in tension. In other words, it's - it's as though the weld was hanging on to the - the thing and pulling it back.
Mr Sims also suggested that the plaintiff may have hung on to the workpiece to steady himself as he welded, given he was standing on a crate.
Mr Sims accepted in cross-examination that the failure of tack welds was a risk that every welder knows can occur. He also accepted that, not having seen the welds, it is speculative to try and determine how the tack welds actually failed. He went on to say that the failure of full welds is so notorious that for welds under stress good engineering practice is perform crack detection after the weld is completed.
In relation to the quality of the tack welds, Mr Sims stated:
Well, assuming that it's correct, that this was the fourth of four operations, at least one of the operations before it would have created loads equal to the load that occurred on this occasion. And it didn't break then. So the - the welder is entitled to presume that his method was adequate. It then means that it didn't break one time, but it did the other, the welds differed to those other welds in some respect, and the most logical thing is they differed in quality.
In his report dated 24 August 2010, Mr Simms reviewed the three alternatives proposed by Mr Generowicz.
Proposal 1 involved laying the L‑shaped workpiece horizontally on the two trestles at an oblique angle so that the legs of both the L were supported. Mr Simms comments that this would have required that two welds be vertical up welds. He observes that vertical up welds are more difficult to do, take more time and generally produce an inferior weld to a horizontal weld in both appearance and strength. In oral evidence, Mr Sims explained that horizontal welding is the optimal way of welding because gravity assists the molten metal to deposit tight into the joint to be welded. In a vertical weld, gravity tends to draw the molten metal away from the joint being welded. In his report, he stated that for this reason, the plaintiff, whom he accepted as an experienced welder 'would have been motivated to position the work so that all welds were in the horizontal plain and this can only be achieved by having the leg being worked on vertical or by standing the workpiece with one leg up or down on the trestles'.
Mr Simms also noted that it is more difficult to lift and move an L‑shaped item so that it lays flat on two trestles than it is to stand it up in the manner adopted by the plaintiff.
Proposal 2 was standing the L‑frame vertically, but with the short leg of the L on the floor pointing away from the trestle and the long vertical leg tack welded to the end of the trestle. Mr Simms noted that this proposal solved the problem of having to perform vertical up welds but only for one side of the web stiffener. Welding the other side of the web stiffener would require either the workpiece to be inverted (and hence be in the position it was in when it fell) or that the plaintiff did an overhead weld (that is, where the welder performs welds from beneath rather than from on top of the work).
Mr Simms comments that overhead welds are also very difficult to do, take time and almost invariably produce inferior welds. In oral evidence, he added that this is because, unlike a horizontal weld, with an overhead weld, gravity tends to draw the molten metal away from the joint being welded. In his report, he also comments that the welder would have had to lay on the ground to weld the lowest web stiffener and then only with some difficulty.
Proposal 3 was to weld a temporary off‑cut on to the L‑shaped workpiece. Mr Simms observes in relation to this proposal:
I do not disagree with Mr Generowicz that welding on braces from off‑cuts may have improved stability and reduced the risk of tack welds failing but it has to be recognised that doing this would significantly increase the time taken to complete the welding due to the additional time taken to select, cut and fit the braces and the additional time to remove them when re‑positioning the workpiece for other welds (four time in total according to Mr Generowicz).
It is my view that as the plaintiff had (apparently) already carried out three positioning's of the workpiece including one which would have induced higher stresses in the tack welds than produced in the final position, he could reasonably expect that this method would work for the fourth and final position without the need to adopt additional bracing.
In short, the method adopted by the plaintiff for previous orientations had worked without problem and the fact that it did not for the orientation adopted at the time of the accident is more likely attributable to an inadequate tack weld than any other factor.
In giving oral evidence, Mr Sims drew on the white board in court three diagrams of how a temporary off cut could be welded to the L‑shaped workpiece. As these diagrams assume some importance on the overall finding, I have reproduced them at Annexure C (A photo was taken of the diagram on the whiteboard and provided to counsel. I have reproduced the diagrams from the photo in Annexure C and confirmed with counsel that it was an accurate reproduction).
The first diagram (which I will refer to as Proposal 3A) involved the L‑shaped workpiece being in the inverted position with the shorter length pointing away from the trestle (that is, as in Annexure A photo 4). The brace would rest on the ground and be tack welded to the end of the shorter length.
In relation to Proposal 3A, Mr Sims said that if the weld breaks, then both the structure and the prop will fall over, creating more mass than before. He said it would reduce the likelihood of it falling over, but that if it did happen, it is probably going to be worse than it was before. He also identified that it would be impractical to climb up some 2 m, hold the brace in place, tack weld it, and then remove it with an angle grinder (whilst holding the prop so it did not fall).
In the next proposal (which I will call Proposal 3B), the L‑shaped workpiece was again in the inverted position. A brace would be tack welded at a 45 degree angle from the trestle to the corner of the 'L'. Mr Sims also identified problems with this proposal. He said that this also depended on the quality of the tack welds. If the tack weld broke 'the lateral stiffness of this thing is now a pretty floppy structure'. It could fall sideways.
The third proposal (Proposal 3C) was with the L‑shaped workpiece with the shorter leg over the trestle. This was the position which Mr Generowicz understood it was in. In Proposal 3C, the brace would be placed on top of the trestle and extend vertically up to under the end of the shorter leg of the inverted 'L', carrying its weight. It would then be tack welded into place, top and bottom.
In cross-examination, Mr Sims said that this would reduce the risk of the workpiece falling, but that there is still reliance on the strength of the tack welds. He also accepted that the worker would not be welding in the vicinity of the tack welds on the brace.

Relevant law

In Czatyrko v Edith Cowan University [2005] HCA 14; (2005) 79 ALJR 839, the High Court summarised the general principles in the following terms ([12], footnotes omitted):
An employer owes a non-delegable duty of care to its employees to take reasonable care to avoid exposing them to unnecessary risks of injury. If there is a real risk of an injury to an employee in the performance of a task in a workplace, the employer must take reasonable care to avoid the risk by devising a method of operation for the performance of the task that eliminates the risk, or by the provision of adequate safeguards. The employer must take into account the possibility of thoughtlessness, or inadvertence, or carelessness, particularly in a case of repetitive work … An employer has another obligation. It is to provide employees with suitable plant and equipment to enable them to carry out their work safely.
In that case the appellant and a Mr Fendick were loading boxes onto a truck. At the rear of the truck, there was an unenclosed hydraulic lifting platform. The platform was about 1.5 m deep and its width was approximately the same as that of the truck. The appellant was working on the truck whilst Mr Fendick brought boxes to him using a trolley. The appellant was on the truck re-organising the boxes that were already loaded in order to make the best use of the available space. Mr Fendick brought a load of boxes up using the platform and placed them on the truck. Without alerting the appellant, he went down again on the platform. When the platform was about two-thirds of the way down, and still descending, the appellant, who did not realise it had moved, and who was still re-organising the boxes on the truck, stepped backwards. If the platform had still been there, he would have been secure. Instead, he stepped into space, and fell heavily.
The trial judge found the respondent employer negligent and did not accept an assertion by the respondent that the appellant was contributorily negligent. The Court of Appeal (WA) found that the respondent was not negligent, and, as an alternative, provisionally found contributory negligence of 70%.
The High Court, in a joint judgment, found the respondent liable for failing to provide a safe system of work. It held that there 'should have been in place a system of work designed to avoid the risk that a person required to step backwards and forwards on and from a moveable platform might do so without first looking behind him' [15].
The Court further declined to find contributory negligence. Rather, it determined ([18], footnotes omitted):
In the present case, the appellant did no doubt omit to take a simple precaution of looking to see whether the platform was raised before stepping on to it, and this omission was a cause of his injuries. But in acting as he did, the appellant did not disobey any direction or warning from the respondent. No directions or warnings of any kind were given by the respondent in relation to the use of the platform. Furthermore, both the appellant and Mr Fendick were under pressure from their supervisor to complete the job promptly. The work was repetitive. In all of these circumstances it presented a fertile field for inadvertence. The onus of proving contributory negligence lay upon the respondent. This it failed to do in this case. The appellant's attempt to step on to the platform in the mistaken belief that it was still raised, and in an effort to finish loading the truck, was the product of nothing more than 'mere inadvertence, inattention or misjudgment'… It was not a remote risk that the appellant might step back without looking behind him. His actions were neither deliberate, intentional, nor in disregard of a direction or order from the respondent. No finding of contributory negligence should have been made.
In looking at the appropriate response to risk, the classic statement of principle is that of Mason J in Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40, 47-48:
In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position.
The plaintiff thus has to identify, with some precision, what a reasonable person in the defendant's position would do by way of response to the reasonably foreseeable risk of harm that existed when the plaintiff moved the L‑shaped workpiece into the fourth position: Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540, [192]; Town of Mosman Park v Tait [2005] WASCA 124, [2] and [50].
The response of a reasonable person in the defendant's position is to be assessed in a practical sense: Trustees of the Roman Catholic Church for the Diocese of Canberra and Golburn (as St Anthony's Primary School) v Hadba [2005] HCA 31; (2005) 221 CLR 161, [26], [27]; Tait [50]. The plaintiff needs to identify a practical alternative which would have avoided the accident: Tait [2], [48] - [52].
In relation to contributory negligence, in Bankstown Foundry Pty Ltd v Braistina [1986] HCA 20; (1986) 160 CLR 301, Mason, Wilson and Dawson JJ summarised what an employer will need to prove in order to establish this in the following terms (310):
A worker will be guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not act as a reasonable and prudent man, he would expose himself to risk of injury. But his conduct must be judged in the context of a finding that the employer had failed to use reasonable care to provide a safe system of work, thereby exposing him to unnecessary risks. The question will be whether, in the circumstances and under the conditions in which he was required to work, the conduct of the worker amounted to mere inadvertence, inattention or misjudgment, or to negligence rendering him responsible in part for the damage:

Findings

The first question is whether the reasonable employer, in the position of the defendant, would have foreseen that welding the L‑shaped workpiece in the inverted position, with the shorter length pointing away from the trestle (as in Annexure A photo 4) involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. The answer has to be in the affirmative. The workpiece weighed about 270 kg. Its centre of gravity was outside the base of the longer length standing on the floor. Both engineers made the obvious observation that as its centre of gravity was outside the base, if it was not adequately secured, it would fall under its own weight.

The examinations carried out by Dr Flahive and Mr Alexeeff of the plaintiff's lower back and right knee appear to me to have been more detailed than that of Dr Kennedy. In particular, they look at the issue of what caused the symptoms in some detail. Dr Kennedy appears to assume that it was accident related (or at least does not disclose his reasoning processes). It is sufficient for me to conclude that the plaintiff has not satisfied the onus on him to establish on the balance of probabilities that the symptoms he experiences in his lower back and right knee are accident related. He would have suffered these symptoms had the accident not occurred.

Psychiatric symptoms

As to the fourth category, it is difficult to assess whether or not the plaintiff would have suffered the psychiatric and psychological symptoms regardless of whether the accident occurred. On the one hand, it appears from the evidence of the plaintiff's daughter that the scale of the right leg injury and immediate pain had a significant impact on the plaintiff. There was a long and difficult rehabilitation process. In his report dated 20 August 2011, Dr De Felice noted that the depression came on when the plaintiff was first in hospital and was at its worst when the fracture did not heal the first time. There is no evidence of any prior psychiatric history.
On the other hand, the plaintiff may well have been in the position of having limited use of his left shoulder following a failed rotator cuff repair. This may have led him to have stopped work. However, on that scenario, he may have had more control over what happened, for example, the timing of any operation. Also, it appears that it is now the shoulder symptoms which cause him to be dependant and require assistance.
On balance, it seems to me that the right leg injury was the genesis of the depression and that, had the accident not occurred, it is likely that the plaintiff would not currently be suffering from a major depression.

Summary

The position the plaintiff would have been in had the accident not occurred may be summarised as follows:
(a)he would not have had the lower right leg symptoms and the consequent restrictions of movement and limitations;
(b)his left shoulder pathology was such that it would have eventually become symptomatic, likely requiring surgery, which is more likely to have been successful than the surgery actually undertaken (like the right shoulder surgery);
(c)he would have experienced other symptoms and limitations, including in the right shoulder, right knee and lower back; and
(d)he would not have suffered from major depression.

General damages

The following comments of Newnes JA in Houlahan v Pitchen [2009] WASCA 104 (with whom Pullin and Miller JJA agreed) stated [107] in the context of the assessing general damages under the Civil Liability Act 2002 (WA) are apposite for present purpose (references omitted):
The principle to be followed in assessing damages is that the amount of damages must be fair and reasonable compensation for the injuries received by the plaintiff and the disabilities caused, having regard to current general ideas of fairness and moderation … The amount must be proportionate to the situation of the particular plaintiff.
In assessing general damages, the factors indicating the plaintiff should receive an award on the higher side include:
(a)multiple operations on his leg;
(b)the lengthy recovery period, including the need for an external fixator for two periods;
(c)the ongoing pain and discomfort in his right left and left shoulder;
(d)the ongoing discomfort and irritation from the scarring;
(e)the limitations on his lifestyle (see [290] above);
(g)the fact the surgery on the left shoulder was unsuccessful, if anything, increasing his pain and discomfort; and
(h)the consequent psychological and psychiatric impact, with debilitating personal consequences and ongoing adverse impact on his family relationships
The factors suggesting the impact award should be more modest include:
(a)the significant pre –existing shoulder pathology which would have become more symptomatic and ultimately required surgery; and
(b)the extent to which the limitations in the plaintiff's lifestyle are due to pain and restriction not causally linked to the accident (eg low back pain).
Having regard to current general ideas of fairness and moderation, I consider that a fair and reasonable compensation for the injuries received by the plaintiff and the disabilities caused is an award of $80,000 by way of general damages.

Loss of earning capacity

General principles

The plaintiff carries the onus of proving loss of earning capacity and the extent to which that loss produces, or might produce, financial loss: Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1, 18; Setton v Eves [2006] WASCA 3 [1], [25] and [48]; Montemaggiori v Wilson [2011] WASCA 177 [30]. If the plaintiff can establish that his 'pursuit of gainful employment is interrupted or affected because of the negligent infliction of physical injury', he 'is to be compensated by an amount that reflects the financial consequences that follow from the impairment': Husher [6]. An injured plaintiff must establish both that his/her injuries have resulted in a diminution of his/her earning capacity and that the diminution is productive of financial loss: Graham v Baker [1961] HCA 48; (1961) 106 CLR 340, 347; Medlin, 3, 16; Husher, 143 [7]; Mastaglia v Burns [2006] WASCA 190; (2006) 32 WAR 427, 444 – 445 [89].
It is usually convenient to assess an injured plaintiff's economic loss 'by reference to the actual loss of wages which occurs up to the time of trial and which can be more or less precisely ascertained and then, having regard to the plaintiff's proved condition at the time of trial, to attempt some assessment of his future loss': Graham, 346 – 347. In assessing future loss, what the plaintiff earned in the past provides useful, but not determinative, guidance about what the plaintiff would have earnt if the plaintiff had not been injured: Husher [8], 143. As the inquiry is an inquiry about the likely course of future events, evidence of past events does not always provide certain guidance about the future: Husher [8]. 'There may be many reasons why an injured plaintiff's past work history provides no assistance in deciding what that plaintiff has lost through diminution of future earning capacity': Husher [8].
In assessing future economic loss, it is necessary to predict, not only what the future holds for the plaintiff, but also what the future would have held for the plaintiff had he/she not been injured in the relevant accident: Paul v Rendell (1981) 34 ALR 569 [471]; Kschammer v RW Piper & Sons Pty Ltd [2003] WASCA 298 [178], [224] and [225]. In each case, it is necessary to assess the degree of probability that an event would have occurred or might occur and to adjust the award of damages to reflect that degree of probability: Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638, 642 – 643; Kschammer, [178], [224], [225]; Montemaggiori, [30].
The calculation of future economic loss is invariably discounted to take account of the various possibilities which might otherwise have affected earning capacity going into the future: Wynn v New South Wales Insurance Ministerial Corp [1995] HCA 53; (1995) 184 CLR 485, 497. The major adverse contingencies usually taken into account are sickness, accident, unemployment and industrial disputes: Wynne (497); Brocx v Mounsey [2010] WASCA 196 [1], [61], [112]. Positive considerations which may be taken into account include advancement and increased earnings: Wynne,497; Brocx [1], [61], [112]. These contingencies are to be considered in terms of their likely impact on the earning capacity of the person who has been injured, not by reference to the workforce generally: Wynne (497), Brocx [1], [61], [112]. In Western Australia, the discount for contingencies is 'rarely more than 15% and usually between 5% ‑ 10%': Villasevil v Pickering [2001] WASCA 143; (2001) 24 WAR 167 [38]; see also Brocx [1], [63] and [112]; Montemaggiori [64].
Where there is evidence that a pre-existing condition might have caused a specific disability in the future in any event, and might therefore have affected the plaintiff's future earning capacity, it is open to the court to specifically increase the usual percentage deducted for contingencies: Lawson v Flavel [2001] WASCA 272 [32]; Reynolds v Roche Bros Pty Ltd [1999] WASCA 141 [26] - [27], [41]; Struthers v Harris [1983] WAR 123, 126; Traeger [285].

Evidence

The issue of the impact of the plaintiff's injuries on his past and future earning capacity is dealt with by all the medical witnesses in this action, that is, Dr Bhasin, Dr Kennedy, Dr Harper, Dr Ker, Dr De Felice, Dr Flahive and Mr Alexeeff. There is a consensus in their opinions which enables me to find that:
(a)since the date of the accident, the plaintiff has been unfit to work as a welder or in any other capacity; and
(b)taking into account his injuries, age, experience, training and poor command of the English language, the plaintiff will not be able to return the work force and should be considered to have no future earning capacity.
There was a discussion in some of the medical reports as to the impact of the plaintiff's left shoulder symptoms on his future earning capacity as distinct from his right leg symptoms. This issue becomes relevant in assessing what the plaintiff's earnings capacity would have been had the accident not occurred.
The plaintiff gave evidence that he would have worked though to 70 years of age. Dr Flahive (in his report of 4 August 2010) and Mr Alexeeff (in his report of 19 June 2010) each considered the issue and gave strong opinions that, from a medical perspective, it was highly unlikely that the plaintiff would have worked beyond 65 years through to 70 years. There was no contrary medical opinion expressed.
I have discussed the plaintiff's other (non‑accident related) medical conditions above. That analysis supports the views expressed by Dr Flahive and Mr Alexeeff on this issue, which I accept. The plaintiff has failed to satisfy me on the balance of probabilities that he would have worked past 65 years to 70 years of age. His many other pre-existing medical conditions, and his pre‑existing left shoulder issues, would have made this most unlikely.
In relation to the period from the date of judgment (27 April 2012) to age 65 (26 June 2015), the plaintiff's intention was to continue working as a welder. There no evidence to suggest that he would not have continued in employment with the defendant until that time had he been fit to do so. He appears to have been an experienced and valued employee. There, is however, a very real prospect that his medical conditions, in particular his shoulders, would have prevented him from doing so.
One scenario is that the left shoulder symptoms returned after the effect of the injection wore off and the plaintiff had an operation to repair his left rotator cuff. It may be that as the plaintiff would have had control of when he had the operation, that he could have had it before the damage became so extensive as to have minimised the prospect of the surgery being successful. The likelihood of this scenario is reinforced by the fact that this is what occurred with the right shoulder. I note in this regard that the ultrasound of his right shoulder prior to surgery showed that there was a full tear, yet this surgery was successful enough to have allowed the plaintiff to have continued working. Also, in this scenario the plaintiff's left shoulder would not have been subject to the stresses caused by the additional and abnormal use arising out of the right leg injury.
As I have concluded above, in my view had the plaintiff not had the accident, it is more likely that his left shoulder surgery would have been at least as successful as his right shoulder surgery. There remains however a real risk that the surgery would have been no more successful than the surgery which he actually had in March 2011.

Past economic loss

The defendant's records indicate that for the 52 weeks prior to the date of the accident, the plaintiff earnt $81,435.20. I accept that this is the appropriate figure on which to base past economic loss. $81,435 per annum averages to $1,566 gross per week or $1,184 net per week.
From the date of the accident (16 August 2007) to the date of judgment (27 April 2012) is 4.69 years or 244 weeks.
$1,184 net per week for 244 weeks is $288,896.
I allow interest at an average rate of 3% per annum:
Interest: $61,568 x 3% x 4.69 years = $8,663.
I award $297,559 by way of past economic loss.
I have considered whether this is an appropriate case in which to discount the past economic loss for contingencies, in particular of the risk that the left shoulder would have become symptomatic: Montemaggiori; Traeger [307]. However, from the date of the accident until 14 July 2011 the plaintiff was in receipt of workers compensation weekly payments. These totalled $273,544 gross. The plaintiff is liable to repay the gross amount of workers compensation received: WCIMA s 92. Given the plaintiff has effectively been paid during this period (albeit through the workers compensation scheme), it would be inappropriate to reduce the past economic loss for contingencies.
The plaintiff paid tax of $24,255 on his workers compensation weekly payments which he will have to repay. He thus claims the tax paid on his weekly payments pursuant to the principle set out in Fox v Wood [1981] HCA 41; (1981) 148 CLR 438. I allow this in the amount of $24,255.
The plaintiff did not receive superannuation from the defendant, and no claim is made for this.

Future economic loss

Mr Pivac's evidence was that first class welders are currently being paid between $30 and $35 per hour. Given the plaintiff's skills and experience, I am satisfied that had the accident not occurred, he would have currently been earning $35 an hour.
Using the income for the 12 months prior to the accident ($81,435), an hourly rate of $30 and averaging it over 52 weeks, this equates to 52.2 hours per week. This is broadly consistent with the defendant's evidence that, in the 12 months prior to the accident, the plaintiff was working 55 to 60 hours a week (allowing for the fact that the plaintiff probably did not work all 52 weeks of the year). Reversing the equation using $35 per hour, this gives a gross annual income of $95,004, an average gross weekly income of $1,827 and a net weekly income of $1,354 (on current tax scales, excluding levies).
In my view, the appropriate way to assess damages for this period is on the basis that the plaintiff would have worked to age 65. However, I then need to discount this to reflect the likelihood of left shoulder surgery both occurring (with time off work) and being successful, with the risk of unsuccessful surgery and early retirement on that or other grounds.
There are 3.15 years or 164 weeks between the date of judgment (27 April 2012) and the date on which the plaintiff turns 65 (26 June 2015). The net pay for the 8 weeks to 26 June 2012 is $10,832 ($1,354 x 8). The 3 year multiplier figure is 144. The net pay for the 3 years to 26 June 2015 is $194,976 ($1,354 x 144 = $194,976). This gives a starting point of $205,808 ($194,976 + $10,832).
Given the other medical issues impacting on the plaintiff's future capacity to earn, in my view the appropriate manner in which to assess damages for future economic loss is to set an amount less than the starting point of $205,808. The amount deducted would also take into account the usual deduction for contingencies, increased to reflect the likelihood that the plaintiff would have had left shoulder surgery (with time off) and the risk that this surgery would not have been successful (see the authorities at [506]). To my mind a deduction in the order of 35% is appropriate.
In my view, an appropriate award for future economic loss is a figure of $133,775.

Gratuitous services

Past services

A rate of $18 per hour has been agreed for gratuitous services.
The evidence is that in the initial 18 month or so period the plaintiff underwent surgery in his right leg on a couple of occasions, had his leg in an external fixator twice and was on crutches for an extended period of time. From about October 2008, he had a 'Cam' walker for some time, which he could not remove independently. During this period, the plaintiff's wife assisted him to dress and shower, and drove him to appointments. The plaintiff submits that an allowance of 5 hours per day (35 hours per week) for the first 18 months (say to 16 February 2009, 78 weeks) is appropriate. I agree with that submission.
Over time, it appears that the plaintiff has become more independent with his right leg issues, and it is the left shoulder issues that are causing him to require assistance. As I have noted, the plaintiff required assistance to remove his sock to show counsel and me his scars.
The plaintiff claimed an average of 2 hours per day for the subsequent period. In my assessment, this overstates the need for assistance demonstrated on the evidence. Assistance with dressing and undressing would require a couple of minutes a couple of times a day. To this I add some assistance with showering, and then some further assistance with lifting and other tasks that would otherwise require the full use of the left arm. In my view, an allowance of 1 hour per day (7 hours per week) would be appropriate. In total I allow $72,153 as follows:
Initial period: 35 hours per week x 78 weeks x $18 = $49,140
Interest: $32,760 (per year) x 1.5 years x 3% = $1,474.20
Subsequent period: From 16 February 2009 to 27 April 2012 is 166 weeks or 3.17 years. 7 hours per week x 166 weeks x $18 = $20,916
Interest: $6,552 (per year) x 3.17 years x 3% = $623

Future services

The plaintiff claims a global amount of $20,000 for future gratuitous services.
The evidence before me is to the effect that the plaintiff's left arm symptoms are permanent. This suggests that the need for assistance at the level of an hour or so a day will continue for the foreseeable future. However, as I have already discussed, there was a risk that these symptoms would have arisen in any event.
One hour a day at the agreed rate of $18 is $126 per week. The global amount claimed is thus equivalent to about 3 years worth of gratuitous services at this rate. This seems to be a reasonable assessment in all the circumstances, and I allow it.

Past special damages

The workers compensation payments included the following special damages:
Medical                  $43,495.92
Hospital                 $54,820.45
Travel                      $1,991.21
Total                   $100,307.58
The plaintiff claims a further $856.35 based on receipts in the documents before me, which I accept.
I allow these amounts and assess past special damages at $101,163.93, say $101.164.

Future medical and treatment expenses

In relation to future medical and treatment expenses, for each item, I need to take into account that, at some point, the plaintiff's left shoulder would have become symptomatic regardless of the accident. I also take into account the plaintiff's other symptoms which I have discussed above.
The plaintiff is currently aged 61. His life expectancy is a further 22.1 years. The multiplier for 22 years is 647.
As to mental health care, Dr De Felice is of the view that the plaintiff requires:
(a)10 to 12 appointments with a psychiatrist over the next 2 years at $300 per visit, totalling $3,200;
(b)monthly visits to a psychologist for 12 months at $200, totalling $2,400; and
(c)depression medication at $80 per month for 3 to 5 years (say 4 years), totalling $3,840.

Dr Bhasin thought an allowance of $500 per year for life was appropriate. The defendant did not lead any contrary evidence.
In view of Dr De Felice's expertise, I prefer his view.
I allow the amount of $9,440 for the plaintiff's future mental health care.
As for general practitioner care, the plaintiff claims 18 visits a year at $80, averaging $27.70 per week. This gives a total claim of $15,391.
The evidence of the doctors who considered the issues is as follows:

Doctor GP visits

Dr Kennedy

(23 August 2011)
$ 500 p/a (12 times per annum)

Dr Harper

(18 October 2011)
$1,000 (frequency or duration not specified)

Dr Ker

(7 September 2011)
2 monthly appointments (costs for duration not specified)

Mr Alexeeff

(5 December2011)
For general medical needs (duration, cost and frequency not specified)

Dr De Felice

(20 August 2011)
Bi monthly for 3 – 5 years (cost not specified)

Dr Bhasin

(16 January2012)
$60 - $100 per appointment required bi monthly for remainder of life

From the evidence it appears that the plaintiff's symptoms have stabilised such that there is no treatment actively planned. As such, accident related visits to his general practitioner are likely to be for pain relief and depression medication. He is also likely to have routine visits for non-accident related issues.
The plaintiff also claimed a visit to an orthopaedic surgeon once per annum at $200 for life totalling $2,137 (applying the weekly multiplier). There is no specific evidence of this need, but some allowance seems reasonable.
In my view, a global amount of $2,000 for general practitioner care and orthopaedic review is appropriate.
In relation to exercise and allied health care, the plaintiff claims $60 per week for life for physiotherapy.
The most recent opinions of the specialists involved in this case are as follows:

Doctor Gym Allied health care

Dr Kennedy

(23 August 2011)
Physiotherapy & rehabilitation: $1,200 p/a, up to 26 times per year Not specified

Dr Harper

(11 October 2011)
Physiotherapy exercise routine: $2,000 (duration and frequency not specified)
Occupational therapist: $1,000

Dr Ker

(7 September 2011)
Physical therapy from time to time (duration and cost not specified)

Dr Flahive

(14 July 2010)
Physical rehabilitation including hydrotherapy (duration, frequency and cost not specified)

Dr Bhasin

(16 January 2012)
Hydrotherapy: During exacerbation of pain or as he ages (frequency or cost not specified)
Physiotherapy: $60 per appointment, required up to once a week during periods of exacerbated pain or as he ages (cost not specified)

On the evidence as I understand it, the plaintiff does not currently receive physiotherapy treatment, nor does he engage in any other form of physical rehabilitation. In my view, a modest amount only should be allowed under this head for exacerbations from time to time. I allow $3,000 as suggested by Dr Harper.
In relation to medication (other than depression medication), the most recent opinions of the specialists involved in this case is:

Doctor GP visits

Dr Kennedy

(23 August 2011)
$1,200 per annum at the current dosage (duration not specified)

Dr Bhasin

(16 January 2012)
$50 - $100 per month for remainder of life

The plaintiff is currently on pain medication for his left shoulder and right leg. In my view a global allowance of $2,000 is appropriate.
In relation to aids and appliances, the plaintiff currently uses a 27 mm heel raise on his shoes. He has a number of pairs of shoes so altered. The most recent opinions of the specialists involved in the case support an allowance for specialised footwear:

Doctor Requirement

Dr Ker

(7 September 2011)
Orthotists: annual appointments (cost not specified)

Mr Alexeeff

(5 December 2011)
Modification and replacement of specialised footwear, indefinitely (cost and frequency not specified)

No evidence was led of the costs of this footwear. In my view a global allowance of $2,000 is appropriate.
I therefore assess the plaintiff's future medical and treatment needs at $18,440.

Summary of damages assessed

I therefore assess damages as follows:
General damages   $80,000
Past economic loss  $297,559
Fox v Wood component   $24,255
Future economic loss  $133,775
Past gratuitous services   $72,153
Future gratuitous services   $20,000
Past special damages  $101,164
Future medical and treatment expenses           $18,440
Total   $747,346

Impact of WCIMA s 93K

As set out above, I am of the view that the plaintiff's degree of permanent impairment is 23%. The court can thus award damages to the plaintiff: WCIMA s 93K(4)(d). However, as this is less than 25%, by WCIMA s 93K(5) there are limits on the amount of damages that may be awarded:
(a)the amount of damages to be awarded is to be a proportion, determined according to the severity of the injury or injuries, of the maximum amount that may be awarded; and
(b)the maximum amount of damages that may be awarded in respect of the injury or injuries is Amount A, but the maximum amount may be awarded only in a most extreme case in which the worker's degree of permanent whole of person impairment is less than 25%.
Amount A is currently $400,475 which is the relevant amount on the date of determination for the purposes of WICMA s 93K(11).
In applying s 93K(5), I do not need to find that the present case is 'the' most extreme case, just that it is 'a' most extreme case, that is, one within the whole category of extreme cases in which the worker's degree of WPI is less than 25%: Murray River North Pty Ltd v Midgley [2006] WASCA 104 [9], [12] and [29]. The resolution of this issue 'will involve questions of fact and degree, and matters of opinion, impression, speculation, and estimation, calling for the exercise of common sense and judgment': Murray River [12] and [35]. The amount of damages that would otherwise be awarded at common law is relevant, but not determinative: Murray River [12] and [35].
In my view, the present case is in the category of most extremes case in which the permanent whole of person impairment is less than 25%. The level of permanent impairment is 23%. The impairment is to two distinct parts of the plaintiff's body, his right leg and his left shoulder. It has led to significant limitations in his day to day life. It has also led to secondary psychiatric symptoms. Although the psychiatric symptoms do not form part of the WPI assessment, in my view they can be taken into account in assessing how 'extreme' the case is. I have assessed damages well in excess of Amount A.
I therefore award the plaintiff damages of $400,475.
I will hear from counsel as to costs and the final form of the orders, including the appropriate manner in which to make provision for the repayment of workers compensation payments.

Annexure A – Photos taken in court

Photo 1 Long leg in vertical position. Short leg on floor.

Photo 2 Long leg horizontal on trestle. Short leg vertical – upwards.

Photo 3 Long leg horizontal on trestle. Short leg vertical - downwards.

Photo 4 Long leg vertical. Short leg horizontal away from trestle.

Annexure B – Extracts Sims Report

Diagram B 1 Diagram B 2

Diagram B 3 Diagram B 4

Diagram B 5 Diagram B 6

Annexure C – Whiteboard Drawings of Mr Sims

Whiteboard extract

Proposal 3A and Proposal 3B

Proposal 3 B Proposal 3 A

Proposal 3C

Annexure D – Extract from Workcover Guides
Table 16.1 Table for the Evaluation of Minor Skin Impairment (TEMSKI)

Criteria           0% WPI           1% WPI           2% WPI           3 – 4% WPI        5 –9% WPI*

Description       Claimant is        Claimant is       Claimant is        Claimant is of the scar(s)        not conscious                   conscious of      conscious of      conscious of and/or skin or is barely       the scar(s) or     the scar(s) or                 the scar(s) or condition(s)            conscious of      skin condition skin condition    skin condition

the scar(s) or

(shape, texture,     skin condition     Some parts of     Noticeable       Easily

colour)  the scar(s) or     colour contrast   identifiable

Good colour     skin condition     of scar(s) or skin   colour contrast match with     colour contrast                   condition with   of scar(s) or skin surrounding skin   with the         surrounding skin   condition with and the scar(s)      surrounding skin   as a result of     surrounding skin or skin condition as a result of           pigmentary or    as a result of

is barely          pigmentary or    other changes.   pigmentary or distinguishable.    other changes.                        other changes.

Claimant is  Claimant is able

unable to easily   Claimant is able to easily locate    Claimant is able

locate the        to locate the     the scar(s) or      to easily locate
scar(s) or skin     scar(s) or skin     skin condition     the scar(s) or

condition         condition         Trophic           skin condition

No trophic        Minimal trophic     changes          Trophic changes      changes                   evident to        changes

touch            evident to Any staple or        Any staple or  touch suture marks     suture marks     Any staple or

are barely        are visible        suture marks      Any staple or visible             are clearly                   suture marks

visible            are clearly

visible

Claimant is conscious of the scar(s) or skin condition

Distinct colour contrast of scar(s) of skin condition with surrounding skin as a result of pigmentary or other changes

Claimant is able to easily locate the scar(s) or

skin condition

Trophic changes are visible

Any staple or suture marks are clearly visible

Location         Anatomic         Anatomic         Anatomic         Anatomic location of    location of       location of the               location of the scar(s) or             the scar(s) or   scar(s) or skin     the scar(s) or skin condition         skin condition     condition is       skin condition not clearly        is not usually                   usually visible     is visible with

visible with       visible with       with usual        usual clothing/ usual clothing/    usual clothing/                   clothing/         hairstyle hairstyle    hairstyle      hairstyle

Anatomic location of the scar(s) or skin condition is usually and clearly visible with usual

clothing/hairstyle

Contour          No contour       Minor contour    Contour defect   Contour defect defect defect    visible     easily visible Contour defect easily visible

ADL /             No effect on      Negligible         Minor limitation   Minor limitation

Treatment        any ADL          effect on any     in the             in the

ADL              performance of performance

No treatment,  few ADL.          of few ADL

or intermittent    No treatment,  AND exposure

treatment only,   or intermittent     No treatment,    to chemical or
required          treatment only,   or intermittent    physical agents

required          treatment only,   (for example,

required          sunlight, heat,

cold etc) may temporarily increase limitation

No treatment, or intermittent treatment only, required

Limitation in the performance

of few ADL (INCLUDING restriction in grooming or dressing) AND exposure to chemical or physical agents (for example, sunlight, heat, cold etc) may temporarily increase limitation or restriction

No treatment, or intermittent treatment only, required

This table uses the principle of ‘best fit’. You should assess the impairment to the whole skin system against each criteria and then determine which impairment category best fits (or describes) the impairment. A skin impairment will usually meet most, but does not need to meet all, criteria to ‘best fit’ a particular impairment category.

Doctor	GP visits
Dr Kennedy (23 August 2011)	$ 500 p/a (12 times per annum)
Dr Harper (18 October 2011)	$1,000 (frequency or duration not specified)
Dr Ker (7 September 2011)	2 monthly appointments (costs for duration not specified)
Mr Alexeeff (5 December2011)	For general medical needs (duration, cost and frequency not specified)
Dr De Felice (20 August 2011)	Bi monthly for 3 – 5 years (cost not specified)
Dr Bhasin (16 January2012)	$60 - $100 per appointment required bi monthly for remainder of life

Doctor	Gym	Allied health care
Dr Kennedy (23 August 2011)	Physiotherapy & rehabilitation: $1,200 p/a, up to 26 times per year	Not specified
Dr Harper (11 October 2011)	Physiotherapy exercise routine: $2,000 (duration and frequency not specified)	Occupational therapist: $1,000
Dr Ker (7 September 2011)	Physical therapy from time to time (duration and cost not specified)
Dr Flahive (14 July 2010)	Physical rehabilitation including hydrotherapy (duration, frequency and cost not specified)
Dr Bhasin (16 January 2012)	Hydrotherapy: During exacerbation of pain or as he ages (frequency or cost not specified)	Physiotherapy: $60 per appointment, required up to once a week during periods of exacerbated pain or as he ages (cost not specified)