Anit Narayan v Legrand Australia Pty Ltd

[2020] NSWDC 561

District Court

New South Wales

Medium Neutral Citation:

Anit Narayan v Legrand Australia Pty Ltd [2020] NSWDC 561

Hearing dates:

17 March 2020, 2 April 2020, 20 April 2020, 7, 8, 9 September 2020

Date of orders:

25 September 2020

Decision date:

25 September 2020

Jurisdiction:

Civil

Before:

Strathdee, DCJ

Decision:

(1) Verdict and judgment for the plaintiff against the defendant in the amount of $653,176.11.

(2) By consent, no order as to costs.

Catchwords:

TORTS – negligence – industrial accident – liability in dispute – safe system of work – contributory negligence

ASSESSMENT OF DAMAGES – residual earning capacity – position on the open labour market – effect of future surgical treatment unknown

Legislation Cited:

Workplace Injury and Management Act 1998 (NSW)

Workers Compensation Act 1987 (NSW)

Category:

Principal judgment

Parties:

Anit Narayan (Plaintiff)
Legrand Australia Pty Ltd (Defendant)

Representation:

Counsel:
Mr R Sheldon SC and Ms E Welsh appeared for the Plaintiff
Mr J Dodd appeared for the Defendant
Solicitors:
Mr B Hagipantelis, Brydens Lawyers (Plaintiff)
Ms M Kikinis, HWL Ebsworth Lawyers (Defendant)

File Number(s):

2019/223098

Judgment

INTRODUCTION

1. By way of Statement of Claim filed 18 July 2019, the plaintiff seeks damages, interests and costs from Legrand Australia Pty Ltd (‘the defendant’) for losses he has sustained as a consequence of an injury he alleges that he sustained at work with the defendant in 21 March 2016.

2. It is conceded by Senior Counsel for the plaintiff that those damages can only be for economic loss and loss of superannuation, and if successful then interest and costs due to the provisions of the Workplace Injury and Management Act 1998 (NSW).

BACKGROUND

3. The plaintiff was born on 11 August 1988 in Fiji. He completed Year 12 in Fiji and came to Australia in 2010. After finishing school, the plaintiff completed a Certificate in Tourism and Hospitality Operations in July 2006 and a Certificate in Computing in 2006.

4. The plaintiff commenced full-time employment with the defendant as a production worker at the defendant’s Auburn factory in 2011 and was subsequently transferred to the national distribution centre at Prestons where he worked as a storeman in about late 2013/early 2014. When transferred to Prestons, he initially worked in the components section and then moved into the warehouse.

5. The plaintiff’s normal work hours were 38 hours per week, Monday to Friday from 7.30am to 4.00pm. He had lunch and tea breaks during his shifts.

6. The plaintiff alleges that he was injured whilst working as a storeman for the defendant at its premises at Lyn Parade, Prestons. The defendant is a global specialist in products and systems for electrical installations and digital building infrastructures. Mr Marlow was the plaintiff’s supervisor at this location.

7. For approximately six months before the incident, the plaintiff was required to work a split shift where he worked half of his day in the receivables section and half in the credit returns section. He was working these split shifts when he was injured on 21 March 2016.

8. During this time the plaintiff also completed a Certificate III and Certificate IV in Warehousing (June 2013) and a Diploma in Transport and Logistics (November 2014) at the Wetherill Park TAFE. He completed a Certificate in Work Health & Safety in November 2012 and obtained his forklift licence.

9. The plaintiff’s duties in the credit returns section involved the manual handling of boxes of returned goods. This required the plaintiff to pick up boxes off pallets and place them on a trolley. If the boxes were open, the plaintiff would be able to see inside to determine what was contained within the box, and as such its approximate weight. The boxes that were sealed did not allow the plaintiff to see what was inside and thus did not allow him to get any idea of the weight of the box.

10. The pallet from which the cartons had to be lifted was located on the floor of the warehouse. To pick up a box from the pallet, the plaintiff was required to pick it up from about 15cm above the ground level and place it on a trolley. Once a box of returned goods was placed onto the trolley, the trolley was then moved to a bench where the goods were unpacked and counted.

THE INCIDENT

11. The plaintiff alleges that on 21 March 2016 he was working in the credit returns section and was lifting a carton of returned stock that was beside him from the pallet to the bench.

12. The box was a cardboard carton and contained smoke alarms and their batteries. The plaintiff bent forward to lift the box, which had a loose bottom, and the plaintiff placed his hand under the carton to ensure that the smoke alarms did not fall out through the bottom of the carton. He then twisted his torso towards the trolley to place the carton onto the trolley. In doing so the plaintiff sustained injury to his back.

THE PLAINTIFF’S EVIDENCE

13. The plaintiff gave evidence before me over two days. He was a most impressive witness. He was very open and honest in his answers, and the story that he told was very believable. He was not rocked at all by cross-examination, and I have formed the strong view that he was a witness of truth.

14. However, I feel that I need to make further comments about the plaintiff and his evidence. The plaintiff did his schooling in Fiji and also completed some vocational training before he came to Australia. He worked in retail work in Fiji. Some 3 to 4 days after he arrived in Australia, he obtained full-time employment and that continued until some months after the accident. He also kept educating himself by doing further vocational training at night which I accept was to ensure that he would be able to work and support his family in Australia. He obtained qualifications in health and safety training, warehouse operations, the responsible service of alcohol, logistics, first aid and obtained a security licence and a forklift licence. This clearly demonstrates to me that he was constantly trying to improve his skills with the aim of retaining full time employment to support himself and his young family.

15. Even after the accident, the plaintiff kept working when he was suffering enormous pain and taking significant amounts of medication to allow him to keep working. His condition continued to worsen – he was suffering low back pain and into his left leg, and some numbness in the left leg. He was under investigation by a number of medical practitioners, having scans, an MRI, injections and ultimately a L4/5 partial laminectomy, microdiscectomy and spinal rhizolysis on 26 October 2016. He was off work for 6-8 weeks after the surgery but then returned to fulltime work.

16. The work that the plaintiff performed on his return was work that required him to stand for an eight hour shift. The tasks that he was made to do on his return to work were jobs that involved drilling using an electric bench drill. He continued to work in significant pain whilst taking medication to try and control his symptoms, to little avail. He was told by a supervisor, Peter Stitt, that there were no other tasks available for him to do and he needed to keep doing the work using the drill.

17. By 15 September 2017, having continued to work full time, the plaintiff resigned from the defendant’s employ as he simply could not physically perform the work required of him.

18. The plaintiff then set up his own company as a courier as he had no other way to support himself financially. He was working 12 hour days driving and lifting all sizes of boxes and cartons, but after six months his pain became unbearable and he had to cease that work. He continued with medical investigations, treatment and physiotherapy with little effect.

19. The plaintiff then contacted a recruitment agency and commenced working with a number of different employers through the agency, and worked continuously until August 2018. At that time he commenced working with WesTrac Caterpillar picking and packing parts for earth moving equipment which was difficult with his level of pain, but he remained in that employment as he wanted to support himself financially.

20. In January 2019 the plaintiff was made a permanent employee of WesTrac as a fulltime warehouse operator and held this position as at the date of hearing. He continues to experience pain and needs to take Lyrica and Voltaren in an attempt to alleviate his symptoms. These medications, he says, can make him dizzy but he continues to work there for 50 hours per week for economic reasons.

21. The plaintiff’s evidence about why he continued and still continues to work is impressive and saddening at the same time. He has no family members to support or assist him in Australia. After his injury, his wife left him and has primary custody of their child. He does not see the child but continues to pay child support as he feels that he should support his ex-wife and child. The plaintiff’s main motivation throughout all of his working life in Australia has been to be financially independent. He is carrying debts from the failed courier business which he is trying to pay off. The plaintiff gave evidence that he was fearful of losing his job with the defendant as he had no other means of support.

22. The plaintiff is fearful of losing the job he has now, as he is very concerned that he will not get another job. For that reason he has not told his current employer of his previous injury, nor of the difficulties and pain he continues to experience.

23. The plaintiff in my view is an extremely hard worker, has continued to work for most of the last four years in pain and with great difficulty. He has never received social security benefits and battles on despite his poor health as he wants to be able to financially support himself and his separated family. Many people in his circumstances would not, and perhaps even could not, have continued to work and try and better their employment possibilities in such circumstances. This plaintiff’s attitude and perseverance are to be greatly admired and respected. As I have previously stated, he is a most impressive witness and I have no difficulty in accepting him as a witness of truth.

ISSUES IN DISPUTE

24. The parties submitted, although not in complete agreement, that the following are the issues for my determination:

1. The circumstances of the plaintiff’s injury on 21 March 2016;

2. Whether the defendant breached its duty of care;

3. If so, whether any breaches of the defendant’s duties were causative of the plaintiff’s injuries on 21 March 2016;

4. The extent, if any, of contributory negligence;

5. The extent of injury, disability and incapacity sustained by the plaintiff; and

6. The quantum of damages to be awarded to the plaintiff in respect of the following:

• past economic loss;

• future economic loss;

• past loss of superannuation; and

• future loss of superannuation.

LIABILITY AND CONTRIBUTORY NEGLIGENCE

25. The issue regarding the date of the plaintiff’s injury was resolved after I had regard to the content of the Complying Agreement under s 66A of the Workers Compensation Act 1987 (NSW) dated 1 February 2018 (Exhibit A). The agreement evidences that the plaintiff was injured at work on 21 March 2016, and I therefore did not allow the defendant to cross-examine the plaintiff further as to the date of the accident.

EXPERT EVIDENCE

26. With regard to the question of breach of duty of care, expert evidence was called. Mr N Adams and Dr A Fairfax provided expert reports separately (part of Exhibit B and Exhibit 1 respectively) and also provided a conclave report (Exhibit G). They jointly gave evidence before me. Their evidence was related to the systems of work in place in the factory when the plaintiff was injured, in the months and years before his injury. Their reports detailed the risks of the manner in which the plaintiff was instructed and trained to perform manual handling and the factors that affected the risk of injury whilst he was doing his work.

27. Their evidence was not dramatically different to each other. The matters in which they differed were with regard to the impact on the risk of injury, consequent on the weight of the carton, the position from which the carton was lifted, and the manner in which the lifting occurred. They both conceded that there was a risk, with Dr Fairfax stating that there is a risk of injury from lifting a pencil. Dr Fairfax submitted that as the plaintiff had been trained in the correct manner of manual handling, he would know how to handle the box, but in this circumstance he did not do what he had been trained to do. Mr Adams opined that as the plaintiff was required to, and did, lift a box from 15cm off the floor onto a bench set at about waist height, the risk of injury was significantly increased.

28. Dr Fairfax’s report annexed a number of photographs that were taken in the plaintiff’s workplace for the preparation of her report.

Photograph 12 was described by Dr Fairfax as follows:

‘A high reach forklift on the left and two “scooters” on the right. The scooters were used to raise and lower pallet loads of goods.”

Photograph 13 was described by Dr Fairfax as follows:

‘The Credit Returns Section where the plaintiff worked at the time of his injury. A pallet load or partial pallet of returned goods would be brought in by scooter and placed within the yellow square on the floor. The scooter could be used to hold the pallet at a distance above the floor, if desired, or the pallet load could simply be left on the floor where indicated.’

29. Implicit in Dr Fairfax’s description of photograph 13 is in effect what a reasonable employer should have instructed a worker in the position of the plaintiff, to use the scooter to lift the pallet up off the floor which, if had been done, the injury is very unlikely to have happened. Dr Fairfax has indicated that the scooters were available, and describes how they could assist with the exact task that the plaintiff was doing when he was injured. To my mind, this was a very cheap and simple method the defendant could have adopted to protect the plaintiff, but it did not do so.

30. It seems to me that requiring the plaintiff to lift a carton from 15cm off the floor onto a bench at waist height is a significant increase in the risk as opposed to lifting and moving the box from or at waist height.

31. The plaintiff gave evidence (T34) that from the point in time when Mr Marlow became his supervisor – some months before the accident, Mr Marlow had told the workers including the plaintiff that they needed to hurry up with the work that they were doing and complete the tasks faster.

32. The plaintiff gave evidence that he continued working as he had done, albeit faster now that Mr Marlow had become his supervisor (T34). He gave further evidence that he was not told by Mr Marlow to work in any other way.

33. The plaintiff gave evidence that he was frightened as to what might happen to him if he did not comply with Mr Marlow’s instruction to work faster. I asked him what he was scared of and his evidence was that he was scared he would lose his job, and as the only breadwinner in the family he would be in a very difficult position.

34. I find that it was open to Mr Marlow to make periodic inspections and investigations to see if the workers were adhering to the methods that they were taught to utilise when lifting and manoeuvring boxes. There is no evidence from Mr Marlow, and there was no reason put forward as to why he did not give evidence. I infer from that absence that his evidence would not have assisted the defendant’s case.

35. It is clear to me that the defendant’s breaches of its duty of care were causative of the plaintiff’s injury. If the pallet had been located higher up off the ground, i.e. more than 15 cm above ground level, and appropriately at the same height as the bench, the risk of injury would have been dramatically reduced. Had the plaintiff been provided with a scooter that could lift the pallet to a similar height as the bench, the incident most likely would not have occurred, even on the evidence of Dr Fairfax. Moreover, had the plaintiff been appropriately trained and supervised in the safer methods of manual handling, and not been told that he needed to work faster, the accident is unlikely to have occurred. These were cheap and simple steps that the defendant could have taken to protect the plaintiff from the risk of injury.

36. A reasonable employer should have observed that the manner in which the plaintiff was working routinely involved the plaintiff lifting and twisting. This represented a foreseeable risk of injury. A reasonable employer in the defendant’s position should have discussed with the plaintiff the undesirability of the technique that he was employing and directed him to not use that method of bending and twisting to lift boxes of goods of unknown weight from pallets resting on the floor to a trolley at waist height.

37. A reasonable employer would have provided a scooter, or scissor lift, or a table which would allow for the modification of the pallet’s height so that a person retrieving a box from it would not need to bend and twist.

38. As a consequence of the manner in which the plaintiff performed his work and was permitted to perform his work, he suffered injury to his low back in the form of a prolapsed L4/5 disc causing L5 radiculopathy. The injury was a direct consequence of a failure by the defendant to devise, implement, maintain and enforce a safe system of work. Had the defendant enforced a safe system, the injury would not have occurred.

39. I accept that the breach was causative of the injury.

40. The defendant argues that there ought be a deduction for contributory negligence on the basis that had the plaintiff had appropriate regard for his own safety, the incident would not have occurred. I reject that submission and any assessment that the plaintiff contributed to his own misfortune. He was not properly supervised, he was not properly trained, he was not provided with a scooter or other device to raise the pallet up to a safe level with which to move the boxes, and he was fearful that he might lose his job if he did not work faster. Even having regard to his own safety, the plaintiff was working in a fundamentally unsafe working environment. The will be no deduction for contributory negligence.

ASSESSMENT OF DAMAGES

41. An examination of the medical reports reveals the following.

42. The plaintiff first attended on Dr McKechnie, Neurosurgeon, on 25 July 2016 under referral from his General Practitioner, Dr Goyal. He presented with sudden onset low back pain with radiation through the left leg following a work-related injury on 21 March 2016 whilst lifting a 20 to 25kg box from a pallet. An MRI of the lumbar spine performed on 25 May 2016 showed a moderate left posterolateral L4/5 disc protrusion compressing the L5 nerve root consistent with the plaintiff’s symptoms. He was referred for conservative treatment, including a CT guided left L5 peri neural cortisone injection, all of which was unsuccessful.

43. The plaintiff underwent a left L4/5 partial laminectomy, microdiscectomy and spinal rhizolysis on 26 October 2016. Following the surgery, the plaintiff continued to have residual back and leg pain with some numbness though he experienced significant improvement in pain and a post-operative MRI of the lumbar spine showed no significant residual or recurrent disc protrusion at the operation site. The plaintiff returned to part-time light duties of 4 hours per day, 4 days per week in 2017. He did undergo further conservative treatment at this stage, including physiotherapy and an unsuccessful L5 perineural cortisone injection.

44. In September 2017, the plaintiff reported mild intermittent pain though he was not taking regular analgesics. The plaintiff was reviewed by Dr McKechnie again on 3 September 2019. The plaintiff complained of recurrent pain from the lower back radiating to the left leg with some numbness which began in around January 2019. The plaintiff was working full-time in his current role. A lumbar spine CT and MRI showed minimal residual/recurrent disc protrusion at the operative site at L4/5. Dr McKechnie referred the plaintiff for further conservative treatment as a decision was made to not proceed with further surgery at that stage. By March 2020, the plaintiff was still suffering from persistent, now bilateral, back pain with radiating pain through the left leg. He continued to work full time due to financial need.

41. The plaintiff was referred by his solicitor to Dr Denise Tong, Musculoskeletal Consultant, for independent medico-legal review. Dr Tong’s diagnosis (report dated 18 September 2017) was left L4/5 disc herniation with left L5 radiculopathy requiring one level of spinal disc surgery with ongoing radiculopathy, consistent with the mechanism of injury reported by the plaintiff. Dr Tong opined that the treatment received by the plaintiff had been reasonably necessary although the plaintiff continued to be ‘impaired in the ability to function vocationally and avocationally’. Dr Tong assessed the plaintiff’s Whole Person Impairment at 16% WPI.

42. The plaintiff was referred to Dr Andrew Porteous, Occupational Physician, by his solicitor for independent medico-legal review. Dr Porteous (report dated 10 December 2018) observed that the plaintiff continues to have chronic neurological pain from scarring and chronic lumbar back pain. Dr Porteous opined that the plaintiff was restricted from frequent or constant bending, heavy lifting, pushing, pulling and carrying and was unfit for any work that required him to be constantly sitting. Accordingly, Dr Porteous determined that due to his physical restrictions, the plaintiff had reduced work capacity and employment options. Dr Porteous recommended the provision of two hours per week of domestic assistance on a long-term basis to assist the plaintiff with domestic tasks which may aggravate his condition. With regards to future treatment, Dr Porteous recommended further conservative treatment, including exercise physiology, referral to a pain specialist, and one to three spinal injections under radiological guidance. If the conservative management failed to significantly improve his condition, Dr Porteous recommended referral to a neurosurgeon for discussion of treatment options, though did not envisage the requirement for further surgery.

43. Dr McKechnie provided a treating report to the plaintiff’s solicitors dated 15 March 2020. He opined that the plaintiff’s symptoms are consistent with his work-related injury sustained on 21 March 2016. Dr McKechnie opined that the plaintiff is unfit to continue with his current employment on a full-time basis, which is causing aggravation to his residual symptoms, and is permanently unfit to return to his preinjury duties.

44. On 25 February 2020, Dr Porteous provided a supplementary report in response to the report of Dr Paul Carney dated 30 May 2020, in which Dr Carney recommended that security guard work would be suitable for the plaintiff and available to him in his current job. Dr Porteous opined that whilst the plaintiff may be able to make a transition to security work, it is likely that he will have difficulty passing the pre-employment medical and competing with able-bodied persons. Dr Porteous also noted that the plaintiff has ongoing requirements for narcotic pain medication which would cause him to fail a pre-employment medical drug test for driving commercially and operating as a security officer. Dr Porteous opined that if the plaintiff cannot reduce his requirement for the narcotic Targin medication, he will continue to have difficulty finding work of this kind.

45. As at 31 August 2020, the Plaintiff continued to suffer from persistent back and left leg pain and was referred by Dr McKechnie to Dr Renata Bazina, Consultant Neurosurgeon and Head of the Liverpool Hospital Pain Management Clinic.

46. The plaintiff was referred to Ines Pasic, Rehabilitation Counsellor and Vocational Assessor, and Christie Zhang, Physiotherapist, for a vocational and functional assessment. Ms Pasic and Ms Zhang provided a report dated 13 June 2018.

47. Ms Zhang determined that the plaintiff was fit for light levels of work, including lifting up to 7.5 kilograms from floor to waist height and up to 10 kilograms from waist to chest height. Ms Zhang recommended the plaintiff avoid twisting or bending of the lumbar spine, sustained squatting, kneeling, or crawling, and working in a stooping position. Ms Zhang and Ms Pasic considered the plaintiff as unfit for his preinjury role as a store person as the duties of the role are inconsistent with his functional tolerances. The following roles were recommended as suitable for the plaintiff after vocational and functional assessment: courier driver; light packer; dispatching and receiving clerk; stock clerk/inventory allocator; security guard/gatehouse. Ms Zhang and Ms Pasic opined that the plaintiff could work full-time in any of these roles provided an appropriate work environment and duties were available. The proposed roles were approved by the plaintiff’s general practitioner, Dr Goyal.

48. The plaintiff was referred for another vocational and functional assessment in 2019. The plaintiff was assessed by Richard Erber, Rehabilitation Counsellor and Vocational Assessor, and again by Mr Zhang. Mr Erber and Ms Zhang prepared a report dated 12 May 2015.

49. On this occasion, Ms Zhang determined that the plaintiff is fit for light to medium levels of work, with a lifting tolerance of up to 15 kilograms from floor to waist height and up to 10 kilograms from waist to chest height. Ms Zhang recommended that the plaintiff avoid twisting or bending of the lumbar spine, sustained crawling, and working in a stooping position. Ms Zhang considered the plaintiff capable of working full time provided that an appropriate work environment and work duties are made available. Mr Erber and Ms Zhang opined that the plaintiff is suitable for the following roles: dispatching and receiving clerk; stock clerk/inventory controller; security officer; or sales clerk/internal sales person (also known as order clerk). Mr Erber and Ms Zhang had not received an indication of the suitability of the suggested roles from Dr Goyal, the plaintiff’s general practitioner.

50. At the time of the assessment, the plaintiff was working as a full-time (50 hours per week) warehouse operator. The plaintiff reported to Mr Erber and Ms Zhang that he was managing in his current position. However, it was the opinion of Mr Erber and Ms Zhang that the plaintiff’s capacity to perform his current role was dependant on his role not changing or being restructured, and they opined that if the plaintiff was required to do more physical work, such as operating a counter balance forklift, he may experience difficulties. Mr Erber and Ms Zhang opined that there are ‘ample opportunities for Mr Narayan to secure a similar role of light physical demand whereby he could work normal full-time hours’ should his current role become untenable.

51. The plaintiff was referred by the defendant to Dr Paul Carney, Neurosurgeon, for medico-legal review. Dr Carney prepared a number of reports dated 29 September 2016, 30 November 2017, 28 May 2019 and 14 April 2020 (part of Exhibit 1). I refer to the reports of Dr Carney further below.

DISCUSSION

56. The plaintiff is presently incapacitated for work. There is medical evidence to suggest that he has been so since 21 March 2016, and I accept that to be the case.

57. At present the plaintiff is still working but under a restriction imposed by Dr McKechnie that he not lift anything greater than 10kg. The plaintiff’s evidence (T50.09) is that if his present employer knew of this restriction, he would lose his job. His evidence as previously indicated is that he is doing the work in pain and taking medication to try and alleviate that pain with minimal relief.

58. As long ago as 13 August 2017 Dr McKechnie recommended against the plaintiff doing a picking and packing job (Exhibit D page 24). The fact that the plaintiff continues to do the work beyond his capacity is explained by his dire financial circumstances, and is to his credit. I accept that he is on borrowed time in his current employment, and it is beset with problems. The work he is performing is beyond that which his treating surgeon thinks he is capable of, it aggravates his pain, and I accept that it is more probable than not that if his employer knew his true capacity he would lose his job.

59. Various suggestions have been made by Counsel for the defendant as to alternate work that the plaintiff could do. It was put to him that he could do retail work as he had done that in Fiji. The plaintiff explained that he was not good at that type of work. He was also cross-examined about whether he thought he could do warehousing work, be a stock clerk, an inventory controller, a dispatch clerk, security work, bar work, truck driving and jobs associated with the TAFE courses that he has done in the past (T100-106).

60. The plaintiff’s responses in general to that line of questioning were that those occupations were generally not tasks that he could physically do, or jobs that he is likely to obtain. I accept his evidence on those points, and note again that the plaintiff has tried every avenue to maintain employment as previously discussed. I accept that alternative employment is unrealistic.

61. The plaintiff is currently earning $1,300 net per week and has been doing so over the last financial year. It was submitted by Senior Counsel for the plaintiff that in all likelihood the plaintiff will lose that job, and I accept that being more probable than not given the working restrictions that he has medical support for, noting that he should not be doing this type of work at all. The plaintiff’s own evidence is that he is continuing to work at this present job experiencing significant pain necessitating strong pain medication. This is supported by the medical evidence.

62. The difficult aspect with regard to the plaintiff’s future employment is the question as to whether or not he will undergo further surgery to his back, and what the consequences of that surgery will be on his residual earning capacity. To make such assessments I have to decide whether or not the plaintiff will in fact have the surgery, if so when, and if he does not have the surgery, whether his employability will be limited by the progression of symptoms in any event.

63. The plaintiff is extremely motivated, as he has demonstrated throughout his life. I accept that he will continue soldiering on in pain but I cannot see how he can continue in the work that he is presently undertaking for any extended period. Unfortunately, I also accept that it will be very difficult for him to get another job, and moreover one earning as much as he does now. I believe that future employers will be unlikely to employ a man, as motivated as he is, with such serious and longstanding back and leg injuries. He cannot do work that requires him to stand all day, nor can he do manual handling all day. Whilst I do not accept that he is totally incapacitated for the remainder of his working life, his residual earning capacity is modest, and unfortunately that may sound in loss sooner rather than later.

64. The defendant’s qualified specialist Dr Carney agrees. In his report of 14 April 2020 (part of Exhibit 1) Dr Carney states at paragraphs 4 and 5 as follows:

‘4.   Your diagnosis:

He suffered a prolapse of the L4/5 disc on the left side causing L5 radiculopathy in the subject work incident. Following conservative treatment including peri radicular steroid injection he had a laminectomy discectomy procedure. This successfully cleared the disc prolapse, but he was left with what sounds like considerable epidural fibrosis and distortion of the root. Imaging studies have shown part sacralisation of L5 with a large lateral mass and also have shown short pedicles with a degree of canal stenosis. I have not had the opportunity to examine the more recent imaging directly. The L4/5 disc has been shown to be degenerating progressively. Back pain is likely to be related to this disc but also to the partly sacralised L5 vertebra and Mrs(sic) has been demonstrated to be stable and functionally and S1 vertebra. There is a risk that both of these levels are sources of back pain.

1. What do you consider is the likelihood of Mr Narayan requiring lumber (sic) fusion surgery?

He states he will not accept surgery of this type. It may be that if his pain and disability progress with further degeneration at the L4/5 level in particular he may decide to accept surgery. There is probably a 50% likelihood that he will request surgery in the next 5 years. It is also possible that he will adapt to the problem. He will need to be watched in view of the short pedicles since there is a risk that he would develop canal stenosis at the L4/5 level, in which case he will need decompressive surgery and then almost certainly need to go on to fusion at L4/5 in order to stabilise the spine.’

65. The other question tied into the above is the timing of such surgery. Dr Carney suggests likely in the next 5 years. But it seems to me that the manner in which the plaintiff’s condition continues to deteriorate may mean that it will manifest itself in the short term. If that is the case, I accept that he would be landing in the open labour market in a fairly dire position. He is currently doing a job that he should not be doing in the opinions of both Dr McKechnie and Dr Carney and placing himself at even greater risk.

66. The plaintiff last saw his treating specialist Dr McKechnie on 31 August 2020. He was still complaining of persistent back pain and intermittent left leg pain. Dr McKechnie records in his report of that date (Exhibit D page 28.4) that the plaintiff has not responded to physiotherapy, strengthening exercises, medication and cortisone injections. The options available to the plaintiff as discussed by Dr McKechnie were a pain management course through Dr Bazina, consultant neurosurgeon and head of the Liverpool Pain Management clinic, or a L4/5 fusion.

67. The plaintiff’s evidence (T99-100) is that he is uncertain as to when he will have the surgery. I accept that he is in somewhat of a bind because to have the surgery he will not able to work for a period nor does he have the money to pay for the surgery, and that is a factor in his attitude to the surgery. However, he states (T49.8) that he does want to have the surgery.

68. If the plaintiff has the surgery there are three possible outcomes. Firstly, his symptoms are improved and earning capacity is increased. Secondly, his condition remains the same as it is as present and he struggles to cope with the work that he currently doing or, thirdly, his condition worsens as a consequence of the surgery, and he is unable to work at all.

69. It was agreed by the parties that here is no evidence as to which of the outcomes is more probable than not, and that the exercise that I must do is akin to “crystal ball gazing”. Similarly, determining when the surgery might occur is an uncertain exercise as well. It may be that the plaintiff continues on functioning at the level that he is and retaining his current employment, and that the pain management assists his condition, or that he may be driven to surgery sooner rather than later because of the pain.

70. Doing the best I can, I accept that the plaintiff will come to surgery in the next five years. The outcome of that surgery is very uncertain, and the plaintiff is therefore very cautious about having surgery. However, I accept the proposition that he may be driven to have the surgery by pain and disability.

71. Whilst no guarantees for the outcome of surgery can be given, I believe that Dr McKechnie, or whoever ends up performing the surgery, would not proceed to surgery if the likelihood of an improvement in the plaintiff’s symptomology was not strong.

72. The only way in which I can determine his future economic loss in any fair and reasonable fashion is to find that the plaintiff has a residual earning capacity of $600.00 per week. This in my mind, reflects that the plaintiff may have periods of employment and periods of unemployment depending on his pain and the results of the surgery if and when it happens. This figure allows for the good and the bad in one sense, allowing for periods of total unemployment and periods where the plaintiff can earn a bit more.

73. Past economic loss has been mathematically agreed at $52,130.00 unpaid and $25,396.00 paid workers compensation benefits to be credited to the defendant. The Fox v Wood component is $3,809.00.

74. Past superannuation calculated at 11 % gives an amount of $8,527.86.

75. Future economic loss will be calculated at $700.00 per week to the age of 67 years – plaintiff currently aged 32, thus 35 years on the 5% tables (multiplier 875.6), less a 15% reduction for vicissitudes. The amount is $520,982.00.

76. Future superannuation calculated at 13% gives an amount of $67,727.66.

77. The figures therefore are as follows:

Past economic loss                                $77,526.00

Past loss of superannuation                   $8,527.86

Future economic loss                             $520,982.00

Future Loss of superannuation              $67,727.66

Fox v Wood                                           $3,809.40

Less workers compensation (paid)       ($25,396.81)

ORDERS

78. I make the following orders:

(1) Verdict and judgment for the plaintiff against the defendant in the amount of $653,176.11.

(2) By consent, no order as to costs.

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Decision last updated: 25 September 2020