Ball v Eldarin Services Metro Pty Ltd
[2011] VCC 500
•15 April 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
GENERAL DIVISION
Case No. CI-09-03307
| STEPHEN BALL | Plaintiff |
| v | |
| ELDARIN SERVICES METRO PTY LTD | Defendant |
---
| JUDGE: | HIS HONOUR JUDGE SACCARDO |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 16-18, 21-25, 28 February, 1-4 and 7 March 2011 |
| DATE OF JUDGMENT: | 15 April 2011 |
| CASE MAY BE CITED AS: | Ball v Eldarin Services Metro Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 500 |
REASONS FOR JUDGMENT
---
Catchwords: Damages Trial – negligence – breach of statutory duty – duty of care of employer – causation of injury – credit of plaintiff in issue – circumstances giving rise to injury in issue.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J R Moore QC and | Tasiopoulos Lambros & Co. |
| Mr J Sala | ||
| For the Defendant | Mr R H Gillies QC and | Lander & Rogers |
| Ms N Tsikaris | ||
| HIS HONOUR: |
1 In this proceeding, the plaintiff claims damages for injuries suffered by him in the course of his employment with the defendant on 21 January 2003 when, whilst he was cleaning out a drainage pit he allegedly sustained a severe injury to his low back, in the form of the prolapse of his L5-S1 disc (“the injury”).
2 In his Statement of Claim, the plaintiff alleges that he suffered the injury by reason of the negligence of the defendant; or alternatively, by reason of the failure by the defendant to comply with the Occupational Health and Safety (Manual Handling) Regulations 1999 and/or the Manual Handling Code of Practice (“the Regulations”).
3 There is no issue between the parties that on the day in question, the plaintiff suffered the injury in the course of his employment with the defendant. The defendant however takes issue as to:
• the circumstances in which the injury was occasioned; •
whether the injury was occasioned by reason of the defendant’s negligence or the breach by the defendant of the Regulations.
The Plaintiff’s Evidence-in-Chief
4 The plaintiff gave evidence that he was born on 18 August 1959, that he was educated at South Melbourne Technical College and that he left school before commencing his Year 12 to undertake a motor mechanic apprenticeship. He said that he then worked as a motor mechanic, for VicRail and as a high- voltage linesman. He has three children: two by reason of a relationship with his second partner Michelle,[1] Haden, born in 1990 and Tamara, born in 1994, with whom he keeps regular contact. The plaintiff said that between 1994 and 1999 he was unemployed and was generally occupied caring for his children.
[1] The plaintiff entered into his relationship with Michelle in 1988. This relationship broke down in 1994.
5 The plaintiff commenced employment with the defendant in 1999. He described his work as involving the operation of an industrial vacuum truck to clean stormwater pits. He said that he worked alone and was required to open pits by lifting the cover of the pit and to remove debris which had accumulated in the pit. He described the nature of the debris to be removed as varying and that it might include leaves, sand, concrete, tree roots and general rubbish. He said that he would clean between twenty and eighty pits each day.
6 The plaintiff described operating a truck fitted with a vacuum hose which was stored on the side of the truck. In order to employ the hose, the plaintiff would manually detach the hose from the side of the truck, connect it to the vacuum outlet and vacuum the pit. The plaintiff said that in vacuuming the pit, he would position the hose over his shoulder, such that it would loop down towards the ground behind him. He said that if the vacuum hose clogged, it would tend to clog at the low point at which it dipped behind him.
7 The plaintiff said that he was provided with shovels, a crowbar and a key apparatus which he would use to lift pit lids. He said that his truck was fitted with two 20-litre containers of water which he would employ to clear blockages which occurred in the vacuum hose, and that to gain access to these containers, which were located on the tray of the truck, he would use a step which was located on the side of the truck.
8 The plaintiff said that the key he used in order to lift the lids of the pits consisted of a large metal handle which would “fit into the slots on the tops of the pits so that you could take them off”.[2]
[2] Transcript (“T”) 64
9 The plaintiff described this key as consisting of a bar with a circle on top and a piece which would fit through the slot located in the top of the pit.[3] He described the position which he employed to lift the pit lid as involving bending over (the plaintiff demonstrated bending and leaning forward[4]) and “you pull up one end and pull it across”.[5]
[3] T 586-587
[4] T 587
[5] T 587
10 The plaintiff described the incident in which he was injured as occurring in the following circumstances:
• He was required to clean a pit located on the corner of the Rialto and Waverley Road, Chadstone (“the pit”). • On the morning in question, he had previously cleaned about forty pits. • The pit, the dimensions of which were approximately two-and-a-half feet deep, three-and-a-half feet in length and two-and-a-half feet wide, contained packing sand and concrete. • He said that packing sand had a tendency to accumulate and block the vacuum hose. He said that when this occurred with the hose slung over his shoulder and looping down behind his back, there would be a tendency for the hose to pull his body backwards. • As he attempted to vacuum the sand from the pit, the plaintiff described the hose getting heavier, with the result that he was being pulled back by the hose. • Because the hose was becoming blocked, the plaintiff removed a 20-litre container of water from his truck and poured its content into the pit in order to suck the water through the hose and thus clear the hose. • In order to break up the concrete which had set in the pit, the plaintiff climbed into the pit and, making use of a crowbar, hit the concrete: “I’m whacking it as hard as I can with the tip of the crowbar … It took about ten minutes to fifteen minutes to break it up because it was that hard, I only could virtually chip it.”[6]
[6] T 70
•
He described feeling twinges in his back as he was vacuuming the sand from the pit and of feeling pain in his lower back as he was employing the crowbar to break the concrete.
•
He said that when he broke the concrete he was able to vacuum the smaller pieces by use of the suction hose but that he was required to remove larger pieces manually from the pit. He said that in removing the larger pieces from the pit he had to:
“hunch yourself over and because I’ve got long arms I could pick
them up.”
He described his head as being level with the gutter and inside the pit when undertaking this process.
•
He said he took no notice of the twinges which he experienced in his back whilst cleaning the pit, that at the conclusion of the activity he replaced the lid of the pit,[7] and that in the course of collecting the vacuum hose and placing it back onto the truck:
“As I’ve picked it up to swing it round, bang, I got this rotten pain,
just a snap in my back.”[8]
[7] In the course of these reasons for judgment, I will refer to the work performed by the plaintiff, which commenced with the opening of the pit by the removal of the pit lid and concluded with the closing of the pit by the replacement of the pit lid, as “the pit work”.
[8] T 73
11 Whilst the defendant takes issue with the evidence given by the plaintiff that he experienced any symptoms of pain or discomfort whilst performing the duties I have described, the evidence by the plaintiff as to the activities which he performed in carrying out the pit work is not in issue.
12 As to the training he received from the defendant in the way he should carry out the pit work, the plaintiff said that:
•
He had never seen a document entitled “Guidelines for Drainage Pit Cleaning”;
•
He had not been instructed that he should undertake daily safety inspections of his vehicle;
•
He had never been instructed that each worksite he attended should be inspected and made safe before the removal of the pit cover;
•
He had not been advised that if he encountered a pit which, in his opinion constituted a hazard, he should contact the defendant and isolate the pit with the use of star pickets. He said that he did not carry “that stuff”.[9]
[9] T 92
13 It is not in issue that with the onset of the acute symptoms in his back, the plaintiff attended a general practitioner, Dr Young, who, with the persistence of the plaintiff’s symptoms of back and leg pain, eventually referred him to a neurosurgeon, Mr Jensen.
14 On 16 July 2006, the plaintiff was admitted to the Epworth Hospital, where he underwent surgery on his back at the hands of Mr Jensen.
15 The plaintiff said that the surgery did little to improve his condition and that he had, since his surgery, suffered from chronic back pain which was always present but varied in intensity and which was associated with intermittent symptoms of pain:
“… running down the back of my legs, I can’t walk, and my toes are
tingling and everything.”
16 The plaintiff said that his children were “my life mate, you know,”[10] and that having sustained his injury, his children, who were then living with him, “moved back home and then I went downhill”.[11]
[10] T 77
[11] T 78
17 The plaintiff described becoming depressed by reason of the incapacity associated with his symptoms and said that he had started to drink heavily. He said that whilst prior to his accident his drinking habits were reasonable, he had, after his children left him, commenced to drink heavily but that he had now gained some control over that problem.
18 The plaintiff said that but for his injury he would have worked until sixty-four or sixty-five, because all that he had in life was his work and his children.[12]
[12] T 79
19 The plaintiff described working after the accident[13] for:
[13] I will refer to the work performed by the plaintiff after the accident as “the post-accident employment”
(i) Wagstaff Abattoirs (“Wagstaff”) in approximately November 2007, where he drove a ride-on mower and cleaned out bins with a high-pressure hose. He said he would regularly rest whilst doing this work and that he ceased the work because of an increase in his symptoms. He said that he had earned $1,465.00 in the course of this work. (ii) Silvertaire Thoroughbred Racing (“Silvertaire”) for a period of two or three weeks where he assisted with the horses and drove a horse float. The plaintiff said that, whilst his bank records revealed four payments from Silvertaire in the sum of $550.00, $205.00, $405.00 and $97.50, he had not been aware that money was being paid into his account for the work he was doing with Silvertaire or that he was deriving income from that work. He said that he undertook the work for about “three hours at a time”,[14] and that the performance of the work increased his symptoms, such that he was required to employ medication to control those symptoms. (iii) “Richard”,[15] a backhoe operator (“R W Drainage”). He said that he would: [14] T 86
[15] T 90 this employer was subsequently identified as R W Drainage.
“Turn up of a morning at Richard’s house and if he wanted me to give him a hand then we’d go out for a couple of hours and then I’d give him a hand.”[16]
He described this work as continuing on and off for two or three weeks, and that in the course of the work, he drove a small tip truck and carried pieces of plastic pipe and timber, which he would load onto the truck. He said that he had difficulty performing these tasks, that the work required him to regularly employ medication for pain control, and that his symptoms were such that he eventually had to cease that work.
[16] T 91
20 The plaintiff said that at the present time his condition was managed by his general practitioner, Dr Celeda, and that his pain management, which had initially involved the use of Panadeine Forte, now involved “patches for pain”[17] which were prescribed by Dr Celeda. He said he was also using antidepressants in the form of Prozac, and that he had been consulting a psychologist, Dr Baker, whose treatment had been of assistance to him.
[17] T 81
The Plaintiff’s Evidence in Cross-Examination
21 In cross-examination, the plaintiff accepted:
•
That in the course of this proceeding, he had falsely sworn answers to interrogatories in which he said that he had not worked since his accident;[18]
•
That at the same time as he was receiving wages from Wagstaff he was also receiving weekly payments of accident compensation;[19]
•
That whilst he was engaged in the post-accident employment, he was obtaining certificates from doctors attesting to his incapacity for work, and was representing to the doctors providing those certificates that he was not working and had no capacity to work;[20]
•
That as at 15 July 2009, he had been engaged in “three jobs”[21] since the happening of his accident, and that this was inconsistent with the allegation made in his Statement of Claim (which allegation was maintained as late as 7 May 2010 when the Statement of Claim was last amended), which asserted:
[18] Exhibit 1
[19] T 226
[20] T 228
[21] T 231
“The plaintiff has been unable to return to any form of gainful
employment since 21st January 2003.”[22]
[22] See the Particulars of loss of earnings as set out in the plaintiff’s Amended Statement of Claim of 7 May 2010.
22 The plaintiff agreed that he had not advised Dr Young, Mr Bittar, Mr Stanley Schofield, Dr Tasiopoulos, Mr Syme, Dr Gary Davison, Mr Michael Dooley and Dr George Mendelson that he had worked since the accident.[23]
[23] T 253-255
23 The plaintiff said that whilst working with R W Drainage:
• He had tried to dig trenches, but he could not keep doing this work; •
He had measured and cut PVC piping but had not been able to do this satisfactorily, as he had taken too long to complete the task;
•
On a couple of occasions he had wheeled a wheelbarrow containing “a little bit of dirt,”[24] and had removed some palings from a fence and had then assisted in rebuilding the fence;
•
He had driven a tip truck for the purpose of collecting and delivering soil which he tried to spread with a rake;
• It had been unusual for him to work for more than four hours at one time; •
He had not been paid for the work he did, but that he had been “slung”[25] money for fuel, had been bought food, and on occasions alcohol in the form of “a slab or something”.[26]
[24] T 307
[25] T 309
[26] T 309
24 The plaintiff said that whilst working at Silvertaire, he would arrive for work at approximately 4.00 am, but that he would be finished on average by 8.30 am.
25 The plaintiff accepted that during the periods in which he was working as described above, he had signed Certificates of Continuing Incapacity for work, which were false, and which contained a declaration as to the truth of the content of the Certificate. Whilst he accepted that these Certificates bore his signature, he said that he had signed the Certificates without reading them.
26 The plaintiff accepted that:
• Over the years he had “put a lot of money on racehorses”, and that whilst he was now a very modest gambler, it had previously been easy to “lose a couple of hundred dollars a week whilst gambling”.[27] He agreed that when “receiving VWA payments and wages” he could “manage to spend the lot within a couple of days”.[28] • Between June 2008 and January 2009, the funds which he had received upon the sale of his house in the sum of approximately $107,000 had been dissipated to the sum of $12,000. He said that of this amount, whilst $35,000 had been put aside for his children, the balance had been dissipated, and explained: “Well, I tell you that during that period of time I was going – as I said, I was losing me (sic) mind, I was losing – I was going through everything.”[29]
[27] T 251
[28] T 251
[29] T 344
27 The plaintiff said that at its worst, his alcohol abuse had involved consuming a cask of wine or between six to twelve cans of beer in a day, and that he would get drunk on most days.[30] He said that he had commenced drinking heavily approximately three years ago but that his present use of alcohol was moderate and under control.
[30] T 100
28 The plaintiff accepted that he first consulted Dr Celeda for the purpose of obtaining certification that he was not fit to undertake a rehabilitation course because of an injury he had sustained to his shoulder. He was asked why he did not undertake the rehabilitation course when his shoulder symptoms settled, and said that he had forgotten about the course and that no one had mentioned it to him again.[31]
[31] T 532
29 As to the circumstances in which his injury arose, it was put to the plaintiff that in both his Worker’s Compensation Claim Form and his Notice of Injury Form he had merely referred to his injury arising whilst loading the vacuum hose onto the back of his truck, to which the plaintiff responded:
“That’s when it got me, the worst part of it, yeah.”[32]
[32] T 363
30 He accepted that the incident had occurred in the course of carrying out a normal day’s work. When he was asked why he had not mentioned to any of the medical practitioners who had treated him or with whom he had consulted in the course of this proceeding that he had experienced symptoms in his low- back before those which were associated with the activity of replacing his hose onto his truck, the plaintiff replied:
“Because all I did, as I said, to me I just got the tingles in me (sic) back and then as I said, when I turned, swung the hose on, I – it just popped.”[33]
[33] T 366
31 The plaintiff accepted that at the time at which he was loading the hose onto the truck and he had experienced severe symptoms of low-back pain, the hose he was handling was not heavy[34] and that ordinarily he could perform that activity without any difficulty.[35]
[34] T 367
[35] T 369
32 The plaintiff agreed:
[36] T 382
[37] T 385-386
[38] T 405
[39] Exhibit 12 comprises of the certified extracts of these convictions.
• That he had completed an application for an American Express Card in which he had lied about the level of his annual salary;[36] • That whilst he was working with Wagstaff, he had filed a tax declaration with an incorrect tax file number, an incorrect birth date and an inconsistent spelling of his Christian name;[37] • That he had been convicted of the common law offence of affray, to which he had pleaded guilty on 20 June 2008; theft and obtaining property by deception, to which he had pleaded guilty on 31 October 2006;[38] and fraudulently using a document and fraudulently using a registration label/plate, to which he pleaded guilty on 21 August 2006.[39] 33 As to his present symptoms, the plaintiff:
•
Said that he suffered from symptoms of lower back pain and pain into his legs[40] and that he was unable to drive for more than forty minutes without stopping;
•
Described difficulty sleeping by reason of his pain, and said that his normal day involved getting out of bed at approximately 10.30 (he got out of bed late because of his poor sleep pattern); that he would do very light housework, in the course of which he would rest regularly;[41] and that he would attend the hotel at Garfield on a couple of occasions a week to catch up with people;
•
Said that he employed patches which had been prescribed for his pain and which he occasionally supplemented with Panadeine Forte, and that he took Prozac for his symptoms of depression.[42]
[40] T 80
[41] T 80
[42] T 80-81
The Veracity and Reliability of the Plaintiff
34 On 16 July 2009, the plaintiff filed a Statement of Claim which described the incident in which he was injured in the following terms:
“On 21 January 2003 (hereafter referred to as the said date) whilst carrying out his duties of cleaning drainage pits and working in Waverley Road, having completed the work of cleaning a drainage pit, the plaintiff was attempting to replace a vacuum hose back onto the side of the truck when he suffered severe injury to his back.”
35 On 7 May 2010, the plaintiff’s Statement of Claim was amended so as to substitute for the pleading referred to above, the following description as to the circumstances in which the plaintiff was injured:
“The plaintiff was carrying out his duties of cleaning a drainage pit in Waverley Road. Such duties including the lifting of the pit lid, the breaking down of concrete formed within the pit, the vacuuming of material from the pit into the truck, the washing of the vacuum hose and the replacement of the vacuum hose back onto the side of the truck when he suffered severe injury to his back.”
36 At the time at which he was injured, the plaintiff worked alone in carrying out his work for the defendant and in these circumstances:
• There are no witnesses to the happening of the injury; • The defendant takes issue with the circumstances in which the injury was occasioned and points to the change by the plaintiff in his pleadings as being only one of a number of inconsistencies in the plaintiff’s description of the circumstances in which the injury occurred. 37 It is put by the defendant that both the plaintiff’s veracity and his reliability as a witness are so compromised by reason of:
•
inconsistencies in the histories provided by the plaintiff as to the circumstances in which he was injured; and
•
proven falsehoods by the plaintiff which arise in the circumstances to which I will refer in the course of these reasons for judgment;
that I should not be satisfied that the plaintiff has established either negligence or a breach of statutory duty on behalf of the defendant as being a cause of the injury.
38 I am of the opinion that the issue raised by the defendant as to both the
veracity of the plaintiff and his reliability as a witness is so fundamental to the
outcome of this proceeding that it is appropriate that I make findings upon
these issues at this point in my reasons for judgment.
The Plaintiff’s Veracity
39 The plaintiff has admitted to giving false answers in his answers to the defendant’s interrogatories sworn by him on 12 May 2010 upon the issue as to whether he had returned to work since the happening of the accident.
40 Whilst, in his answers[43] the plaintiff repeatedly asserted that he had not been engaged in any work since the happening of the injury, in the course of his evidence, the plaintiff conceded that he had engaged in three periods of employment[44] and identified:
[43] Exhibit 1
[44] The details of the periods during which the plaintiff was engaged in employment with these employers are those are set out in the plaintiff’s list of special damages filed 16 February 2011.
(i) Silvertaire; (ii) Wagstaff; and (iii) R W Drainage
as his post-accident employers for short periods of time.
41 It is accepted by the plaintiff that during various periods in which he worked for these three entities:
•
he represented to his general practitioners that he was unfit for any duties in order to obtain medical certificates which entitled him to obtain weekly payments of compensation;
•
he submitted medical certificates attesting to his incapacity for work to the defendant’s Workcover agent, which certificates also contained a declaration made by him that he had not engaged in any form of paid employment;
so as to secure a continuation of weekly payments of compensation made
under the provisions of the Accident Compensation Act.42 I regard these actions as being actions of deliberate and serious dishonesty which must call into question the plaintiff’s veracity upon any issue in respect of which he gives evidence.
Findings as to:
(i) The Relevance of Inconsistencies in the Plaintiff’s Evidence
(ii) The Reliability of the Plaintiff’s Evidence Generally
43 The defendant, with considerable force in my opinion, points to a number of inconsistencies on the plaintiff’s part as to the circumstances in which his injury was occasioned.
44 I accept the defendant’s submission that the description by the plaintiff of the cause of his injury in a Register of Injury which he completed on the day of his accident as “lifting vacuum hose back onto truck,” is a description inconsistent with the breadth of activity now relied upon by the plaintiff as giving rise to his injury.
45 Although the defendant points to this fact, and the fact that the plaintiff repeatedly provided a history to medical and like practitioners to the effect that he had injured his back whilst lifting and replacing the vacuum hose, in support of its position that no other activities which the plaintiff undertook on 21 January 2003 were implicated in the cause of his injury, I do not regard this as a telling point upon the issue as to the cause of the plaintiff’s injury.
46 In my opinion, it is not unreasonable that the plaintiff might focus upon the activity associated with the hose when providing a history to his employer or to medical practitioners as to how his injury was occasioned, given that it was precisely this activity which initiated his severe symptoms. This is even more the case if it was in handling the vacuum hose that the plaintiff first felt any symptoms of pain or discomfort as he undertook the pit work.
47 As to the evidence given by the plaintiff that, as he undertook the activities involved in cleaning out the drain immediately prior to his accident, he experienced intermittent “twinges” of back pain[45] and sharp pain into his legs,[46] it is clear that these allegations do not appear:
[45] T 70
[46] T 71
• in any of the plaintiff’s pleadings in this proceeding; • in any medical history provided by the plaintiff to any medical practitioner who treated him or who has examined him for the purpose of this litigation; and that they were first made by the plaintiff many years after his accident.
48 Given:
• the delay by the plaintiff in making these allegations; • the absence of corroboration as to their occurrence; • the findings which I have made as to the plaintiff’s veracity; I am not satisfied that I should accept the plaintiff’s evidence upon this issue.
49 I do not accept the submission on behalf of the defendant that the statement in the plaintiff’s worker’s compensation claim form (which is dated 28 January 2003) in which he described the activity he was undertaking just before his injury occurred as “cleaning out stormwater drains”, describes a work activity inconsistent with that relied upon by him in his Amended Statement of Claim having regard to the breadth of the activity described by the plaintiff in that document.
50 I accept however, that the descriptions by the plaintiff of the work process responsible for his injury which appear:
• in his Statement of Claim filed 15 July 2009; • in the histories given by the plaintiff to Dr Gary Davidson on 3 February 2004;[47] and Dr Martin Baker on 15 August 2009 and in the course of a work assessment evaluation undertaken by Donnelly Ayres on 12 March 2004 and Mr Richard Lightfoot, an engineer, in the course of an interview on 12 May 2010; were deliberately false insofar as they asserted that the hose which the plaintiff was handling at the time at which he suffered his injury was heavy.[48][47] T 801
[48] T 369 That this allegation is false is established by the fact that in giving evidence in this proceeding the plaintiff always maintained that the hose was light.
51 In my opinion, the activities of the plaintiff in:
•
submitting a tax file number declaration to Wagstaff Cranbourne Pty Ltd on 13 November 2007 in which he misstated his tax file number, his date of birth and the spelling of his Christian name;
•
making an application for an American Express Card on 16 October 2008 in which he declared that he was, as at that date, working for the defendant and that his annual salary before tax was $80,000;
are actions which tell against the plaintiff’s honesty and credit when they are considered in the light of his sworn evidence in which he explained the reasons for the discrepancies and misstatements in those documents, which evidence I found to be totally unconvincing.[49]
[49] With respect to the American Express Card application, the plaintiff said that he made the application to someone who had approached him to apply for a new credit card when he was at the airport and that if the statements made by him as to his employment and income had been accepted, that this would have been “their fault” – T 95 and T 382.
52 Further, I found the plaintiff’s evidence in which he denied any knowledge that Silvertaire was paying him for the work he performed for that organisation, or that payments by Silvertaire were being made directly into his bank account,[50] to be unconvincing in the extreme when considered in light of the plaintiff’s regular withdrawals from his bank account of monies which well exceeded his only source of income, namely his weekly payments of compensation.[51]
[50] T 259 and T 333
[51] From 20 March 2007, with an opening balance of $55.00 in his account and the receipt of a worker’s compensation payment of $362.26, the plaintiff withdrew, over the next three days, in excess of $950.00 – see Exhibit 5, the plaintiff’s bank statement during the period March 2007. Whilst it is clear that the plaintiff’s ability to make withdrawals in this amount was facilitated to a large extent by the payment by Silvertaire Thoroughbreds of $550.00 into his account on 22 March 2007, the plaintiff denied any knowledge of that payment being made.
53 Finally, it is clear that the plaintiff repeatedly misled a bevy of medical practitioners, including:
• Dr Gary Davidson: • Mr Michael Dooley; • Associate Professor George Mendelson; • Mr Stanley Schofield; • Dr Richard Young; • Dr Elizabeth Hu; • Dr Tasiopoulos as to the work which he was undertaking with each of his three post-accident
employers.54 Given the plethora of points which tell against the plaintiff’s reliability and credit to which I have referred, which include:
•
the plaintiff making dishonest statements on oath and other actions of dishonesty by him;
•
repeated instances of what I am satisfied involved the plaintiff inventing excuses for dishonest behaviour in order to justify it (for example, the plaintiff’s evidence as to his application for a credit card and that as to the irregularities in his tax file application);
I am satisfied that I should apply great caution before I accept any evidence given by the plaintiff which is contested, or in respect of which there is an absence of corroboration.
The Expert Evidence adduced by the Plaintiff as to Liability
55 Mr Richard Milne Lightfoot, an engineer,[52] was called on behalf of the plaintiff to give evidence as to the safety or otherwise of the defendant’s system of work.
[52] Mr Lightfoot holds a Degree of Bachelor of Engineering and Mining; a Diploma of Civil Engineering; a Diploma of Electrical Engineering and Mechanical Engineering; a Graduate Certificate in Industrial Hygiene and Science; a Certification in Concrete Technology; and who is a Fellow of the Institution of Engineers, Australia and the Institute of Quarrying.
56 Mr Lightfoot gave evidence that he interviewed the plaintiff on 12 May 2010, in the course of which he obtained instructions from the plaintiff that on the day on which he had suffered the injury:
•
he had attended a pit in Waverley Road and had removed the pit lid by the use of a special key which he inserted into the concrete lid of the pit which he then proceeded to lift up and pull back;
•
that in the course of cleaning the pit he had climbed into the pit and had employed a crowbar to break up concrete, and that in doing so he had lifted out the larger pieces by hand and removed the remaining pieces by the use of a long vacuum hose;
•
that in the course of using the hose he needed to “slurry the material to assist in its clearance”[53] and that to achieve this purpose he had been required to lift a 20-litre container of water from the back of his truck.
[53] T 593
Mr Lightfoot continued: “He had to lift the heavy hose up onto the side of the truck. In the course of both the breaking up of the cemented material, lifting out the pieces and vacuuming, this combined with the final lifting up the hose, and placing it onto the truck, your client felt pain. Finally, lifting the hose he felt acute pain and had to stand up against a tree to try and stretch himself.”[54]
[54] T 594
57 Mr Lightfoot said that a force of some 28 kilograms was required to lift the pit lid, having regard to the position in which the lifting key operated by the plaintiff was to be affixed to the lid.
58 In Mr Lightfoot’s opinion, the mechanics involved in bending down to remove the pit lid created a potential to cause injury (depending upon the capacity or the ability or the knowledge of that person to understand the mechanics involved),[55] having regard to the position which might be adopted in undertaking that activity which might involve the application of force to the plaintiff’s spine, arms and shoulders.[56] He opined that had the plaintiff been provided with a lever of 3-feet in length, the force involved in removing the pit would have been reduced to 15 kilograms. He said that in removing the pit lid, the plaintiff, by having to reach forward and employ what was described as a low-key, was required to bend over, reach out and therefore expose himself to greater stress.[57]
“You’re bending over and therefore reaching out and exposing yourself to
a – a greater stress.[58]
[55] T 626
[56] T 626-627
[57] T 631
[58] T 632
59 Mr Lightfoot described:
• the employment of the crowbar as requiring the plaintiff, depending on his position, to have to rotate to lift the crowbar and to strike the pointer into the material to break it up;[59] • the activity which the plaintiff was required to undertake in removing the 20-litre water container from the truck (which involved handling a weight in excess of 20 kilograms[60]) as problematic in that: [59] T 623
[60] T 633
“You’re not lifting evenly with two hands in front of you and also you are reaching out and trying to lift with a one-handgrip, because a 20-litre container effectively only has one handgrip at the top because you lift it and then generally put your hand underneath.”[61]
[61] T 633
He was asked:
[62] T 623
Q: “What movements and actions are associated with getting down into the pit to pick up these objects in the context of difficulty, physical difficulty in doing the work?--- A: Well it was restricted in the size of the opening and also the way you could bend down, you’d have to bend sideways to be able to reach down.”[62]
60 Mr Lightfoot opined:
(i) that the nature and character of the work carried out by the plaintiff on the day in question had a potential to cause injury;[63]
[63] T 621
(ii) that a reasonable employer would have considered:
ƒ the tasks involved in the plaintiff’s work; ƒ the weights to be lifted and the force to be provided by an employee’s body;
for the purpose of providing appropriate tools to minimise the forces involved
and therefore minimise the risk involved.[64] He was asked:
[64] T 627
Q: “Could I posit the same question with respect to the work generally, namely removing the pit lid, carrying out the work you’ve described and then getting the pit lid back on et cetera; would you assess that work as creating a potential cause of injury or not?--- A: Yes I do. Q: An employer acting appropriately, in your opinion, do you have a
view about whether risk control measures would be established?---A: You have to look at the assessment of risk so you can then control and then give – give advice and also make sure you’ve made these suitable – an appropriate selection of tools to assist. Q: All right, so you would anticipate an employer acting appropriately
would attend to those matters for this sort of work.A: Yes.”[65] [65] T 627-628
61 Mr Lightfoot continued:
“I believe that the worker should be supervised and given direction to –
and how to undertake the task.”[66]
[66] T 628
62 Mr Lightfoot concluded his evidence-in-chief with the following statement:
“From your client’s instruction on the day of his injury, and previously he had lifted many pit lids manually. Likewise he had to clean out pits that contained rock, timber, sand and other forms of rubbish. From time to time your client had to use a crowbar to break up any cemented material, and lift out heavier pieces that could not be sucked up by the vacuum truck. The writer believes that from a safety perspective this was a two-man task. The worker needed to be helped with a co-worker. In case any injury did occur, two men were needed to lift the heavy pit lids, likewise break up material in the pits and the operation of a vacuum hose. On your client’s instruction it was evident that the task was heavy, he was lifting weights in excess of 20 kilograms to shoulder height, climbed into a pit, used a heavy crowbar with a minimum weight of 8 kilograms to break up cemented material in the pit. Lift large cemented materials by standing in the pit, and reaching down and picking up the item and then throwing it out of the pit. Further, because of the lack of mechanical aid, your client was required to manually operate the vacuum hose. Provision of mechanical aids would have significantly reduced the worker’s – reduced the force that workers were required to provide.”[67]
[67] T 594
Cross-Examination of Mr Lightfoot
63 In the course of cross-examination, Mr Lightfoot commented that the activities described by the plaintiff, namely breaking up the concrete and the lifting of the broken pieces; the vacuuming activity; and the final lifting of the hose and placing it onto a truck; was a sequence at the end of which the plaintiff felt pain. He was asked:
[68] T 731
Q: “And that is the sequence which you state in your report as being
the sequence which led to the injury occurring?---A: Led up to the pain, yes.”[68]
64 Mr Lightfoot was challenged on the basis that in his initial report “nothing was made of the lid as a source of possible injury”, to which he responded:
“The lid was part and parcel of this whole sequence, now the end result being he was injured in the course of lifting. I tried to examine the whole sequence of it and that’s why the lid was mentioned.”[69]
[69] T 734
65 Mr Lightfoot accepted that:
•
the plaintiff had not complained to him that the lid was excessively heavy[70] or that the plaintiff had encountered difficulty in manoeuvring the lid;[71]
•
his recommendation that a longer lever be employed for the lifting of the pit lid, whilst a good recommendation, may not have relevance to the case if the lifting of the pit lid was not relevant to the plaintiff’s injury;[72]
•
an hydraulic lifting device was not necessary to assist the lifting of the hose onto the truck if that lift was not a heavy lift;[73]
•
the employment of two men in carrying out the plaintiff’s work did not impact upon the activity being undertaken by the plaintiff at the time of his injury if it was considered in isolation.[74]
[70] T 734
[71] T 736
[72] T 740
[73] T 740
[74] T 740
Re-Examination of Mr Lightfoot
66 In re-examination, the plaintiff’s evidence as to the activities he was required to undertake in breaking up the concrete was put to Mr Lightfoot. He was asked as to the impact which a second man would have had in relation to the work undertaken by the plaintiff with respect to the particular pit he was working upon at the time of his injury in the context of risk of injury, to which Mr Lightfoot responded:
“He wouldn’t be exposed to the same forces for the same length of
time.”[75]
[75] T 747
67 Mr Lightfoot was taken to the plaintiff’s evidence that his use of the vacuum hose with it slung over his shoulder had:
“… started to pull me backwards because it was starting to hit the
ground; it’s getting heavier and heavier.”[76]
In respect of which he commented:
“Well, you’re adding water to it, effectively, that’s why when you look at the length of the hose, we indicated before about the use of a lifting device on that arm, so it does help to cover for all different circumstances.”[77]
[76] See the plaintiff’s evidence at T 69
[77] See Mr Lightfoot’s evidence at T 629 and the plaintiff’s evidence at T 45. I interpret Mr Lightfoot’s evidence in this regard to be referable to the fact that both the plaintiff and Mr Lightfoot had given evidence that vehicles which employed a boom to support a suspended vacuum hose were available.
Evidence Adduced by the Defendant as to Liability
68 Roy Graeme McLachlan was the only witness called on behalf of the defendant as to liability.
69 Mr McLachlan, who commenced employment with the defendant in 1996, is currently employed by the defendant in the capacity of a supervisor.
70 Mr McLachlan said:
•
At the time at which he had commenced employment with the defendant he worked as a labourer and that his job involved cleaning drains;
•
In 1997, the defendant commenced employing a purpose-built vacuum truck for the task of cleaning drains and when the plaintiff commenced his employment with the defendant the plaintiff was given this truck to operate;
•
It had been Mr McLachlan’s responsibility to instruct the plaintiff as to the way he should perform his work. This involved the plaintiff accompanying Mr McLachlan for “no more than three or four days” in the course of which the plaintiff “watched me doing the job and how to
handle – well, he knew how to drive the truck, it was just a case of
working the equipment on the back”.[78]
[78] T 931
•
The defendant has a system of employing two people to operate a truck when contract work was being undertaken. He said that contract work involved looking after approximately one hundred and fifty pits a day whereas the work which both the plaintiff and he were undertaking independently of each other involved cleaning seventy to eighty pits a day.
•
Anything at all, including substances such as sand, soft concrete, bottles, cans and sticks, might accumulate in a pit and require removal;
•
Concrete would accumulate in a pit if building activity was being undertaken in a particular street and that when it was encountered it was broken up into smaller pieces by means of a crowbar, and then sucked up with the vacuum hose.[79]
•
If in the course of the work the vacuum hose became blocked, it could be cleared, or blockages could be prevented, by the use of plenty of water which was accessed from two 20-litre drums located on the truck.[80] He said that when material became stuck within the vacuum pipe, nine out of ten times it could be loosened by shaking the hose and this process was assisted by inserting water into the pipe.
•
Sand when it was present in a pit was heavier than dirt and soil and the pump would lift it slowly.[81] He said that he had not been provided with any written guidelines as to how to undertake his work.[82]
[79] T 932
[80] T 933
[81] T 1029
[82] T 1033
Cross-Examination of Mr McLachlan
71 In cross-examination, Mr McLachlan said:
•
He had never read any instruction or direction as to how the pits were to be cleaned; that the trucks were not equipped with such instructions or directions in 2002 and 2003; that Exhibit N (a document entitled ‘Guidelines – Drainage Pit Cleaning’) was not available to employees of the defendant in 2002-2003; and that the system which was employed by the defendant to clean out the pits “was just commonsense”.[83]
• As to exhibit N: [83] T 1033
“I never read it and no one else I knew has ever read it. …
I know he’s talking about it’s in the truck, but I can assure you no
one’s ever read them.”[84]
[84] T 1033
•
The level of physical activity involved in cleaning a drainage pit depended on the depth of the pit and its content;[85] that some pits would be easy and others really tough;[86] and that the work was moderately heavy, some days being very heavy and other days being light.[87]
•
The pits could contain builder’s sand[88] which was harder for the vacuum to carry, and that sand could cause blockages in the vacuum pipe.[89]
•
On the occasions when he had the assistance of a fellow worker the work could be shared, and the workers could alternate if necessary.[90]
•
The presence of “real” concrete in the pit was rare, as more often than not any concrete which found its way into the pits had been diluted by water and was sixty or seventy per cent sand.[91] He accepted however that concrete could make its way into a pit and set solidly there, and in those circumstances:
[85] T 1035
[86] T 1035
[87] T 1035
[88] T 1036
[89] T 1036
[90] T 1037
[91] T 1039
“If you couldn’t break it you’d let the Council know and then left it
to them to do.”[92]
[92] T 1039
•
He said that in his experience he had only encountered solid concrete on two occasions and when concrete of that nature was present:
“You had the bar and you’re knocking there and it chips off.”
72 When asked about the instruction the plaintiff was given as to how he was to go about his work in terms of lifting, breaking concrete or reporting problems to the Council, Mr McLachlan said:
“Well he watched what I was doing, to start with and then he’d take over,
try doing it himself, which he learnt it straight away.”[93]
He continued:
“Well the two of us worked together, yes.
… As soon as he’d seen the job he virtually took over the same day.”[94]
[93] T 1047
[94] T 1047
73 He accepted that when using the vacuum hose its operation was facilitated by supporting the hose over the operator’s shoulder,[95] and that this practice would emphasise the U-shape of the hose behind the operator.[96] It was put:
[95] T 1042
[96] T 1042
Q: “Of course, if there was another man there he would be in a
position to hold the pipe up straight wouldn’t he?---A: I have done that. Yes.”
74 He agreed that a co-worker could, in those circumstances, pull the hose back so as to avoid the hose developing a U-shape[97] and that in the presence of a blocked hose, a co-worker would be of great help.[98]
[97] T 1042
[98] T 1043
75 He was asked as to the hose:
Q: “When it blocks up to the point where you need to slurry, it could
become quite heavy?---A: Yes. Q: And it could pull you back I take it with the weight of it?--- A: It just depends on how strong you are I suppose. Q: In your experience, have you seen men pulled back in that
situation?---A:
Not to the extent that it’s hurt, hurt my back, but I’ve, I have, question, I’m sorry, not to the extent that it hurts my back but I have done it before.
Q: So you’ve been pulled backwards but I take it you’ve had a big
strong history in physical work over time?---A: I have, yes. Q: In relation to the pulling back, would you agree that it can be
forceful?---A: It’s heavy, yes.”[99] [99] T 1044
76 Mr McLachlan described the defendant as operating a truck of alternate design to that operated by the plaintiff which was fitted with a 1,000-litre container of water which was emptied through a hose via an electric motor. He said a truck with a tank of this type had been purchased by the defendant in approximately 1998.[100] He agreed that to retrieve the 20-litre can from his truck, the plaintiff was required to step onto the step of the truck, take hold of the side of the truck with one hand, and reach over with the other hand to pick up the plastic drum which contained the water:
[100] T 1045
Q: “You’ve got to lift it up to the height where the bottle is above the
height of the sideboard?---A: The side, yes. Q: And then twist around?--- A: And drop it and bring it down with you.”[101] [101] T 1047
77 Mr McLachlan was asked:
Q: “Going back to the trucks of Eldarin after 2003, I think you said
that two of the trucks carried two men?---A: M’mm (sic) Q: Would that be all the time?--- A: Yes, because they’re on contract all the time. Q: You agree it’s not only efficiency with two men, it’s sharing the
load isn’t it?---A: Yes. Q:
By sharing the load the work’s less likely to be, on the occasion when it happens and it’s really hard yakka, it’s going to much easier for the men?---
A: Yes. Q: To work together?--- A: Yes. Q: That would apply to hose blockages, breaking of concrete, lifting
the lid?---A: Yes.”[102] [102] T 1055
78 Mr McLachlan was questioned as to the manual handling activities involved in the plaintiff’s work. He accepted that:
•
Operating the vacuum unit involved a potential hazard consequence in terms of a strain or back injury;
•
The steel crowbar was quite heavy and that there was a potential for injury associated with its use if it slipped off concrete. He said that when he had been required to use a crowbar for fifteen minutes or so, it was his practice to stop and rest when it became too hard:
“You stop for a breather because it is heavy, yes.”[103]
[103] T 1057
Finding as to the Cause of the Injury Suffered by the Plaintiff
79 Notwithstanding the case pleaded by the plaintiff that his injuries arose by reason of the performance of the pit work, it is put by the defendant that the sole cause of the plaintiff’s injury was the activity he performed when positioning the vacuum hose onto his truck in the course of which he developed the symptoms which he described in the following terms:
“As I’ve picked it up to swing around, bang, I got this rotten pain, just a
snap in my back.”
80 Given the issue which thus arises, I find it convenient to deal with the question of causation at this point in my judgment because, as was highlighted by the defendant in the course of cross-examination of Mr Lightfoot,[104] and later in the closing submissions,[105] the existence of deficiencies in the defendant’s system of work are of no moment if those deficiencies were not a cause of the plaintiff’s injury.
[104] T 741
[105] T1118
81 It is not in issue that the hose which the plaintiff was manoeuvring at the time he experienced his pain was light. It is submitted on behalf of the defendant that in these circumstances, the plaintiff’s work-related injury was not caused by any relevant breach by it of the duty which it owed to the plaintiff both at common law or under the Regulations.
82 Whilst the defendant was critical of the plaintiff’s late amendment to paragraph 4 of his Statement of Claim, which involved the plaintiff particularising each of the activities which he performed whilst working at the pit, commencing with his removal of the pit lid cover and concluding with its eventual replacement and the loading of the vacuum hose onto the truck, the defendant does not take issue with the fact that the activities so described were performed by the plaintiff on the day. Rather, it is put that the plaintiff’s evidence that he experienced symptoms in the form of back twinges or pain whilst performing those activities should be rejected, and therefore, that causation is not established.
83 As to whether the plaintiff has established that he experienced any symptoms of pain or discomfort in association with any of the activities he undertook whilst cleaning the pit (other than the pain which manifested itself when he was lifting the light hose to replace it onto the back of his truck), I approach my analysis of that issue on the basis of my finding that the plaintiff’s honesty and reliability is so compromised that I should apply great caution before I accept uncorroborated evidence given by him.
84 With that starting point, when I take into account:
•
the fact that it was not until at least the middle of 2010 that the plaintiff first made an allegation that he had experienced intermittent twinging or discomfort in his back as he carried out the pit work; and
• the fact that the plaintiff’s evidence on this issue is uncorroborated; I am not satisfied that I should accept the plaintiff’s evidence that he experienced symptoms of back or leg pain at any time prior to the incident which involved the loading of the light vacuum hose onto the truck.
85 It is not contended by the plaintiff that the activity of loading the vacuum hose onto the truck could give rise to a breach by the defendant of any duty owed to the plaintiff statutory or otherwise. The issue then is whether there is evidence, apart from those parts of evidence given by the plaintiff which I reject or cannot accept without corroboration, which satisfies me that:
ƒ the pit work were a cause of the plaintiff’s injuries; ƒ in requiring the plaintiff to perform the pit work, the defendant was
negligent or in breach of the regulations.
86 It is submitted on behalf of the defendant that were I not to be satisfied that the plaintiff experienced any pain in association with the pit work, such a finding must result in the plaintiff failing to establish that the pit work was a cause of the severe injury which he sustained to his low-back.
87 As to this submission, whilst as I have said, I am satisfied that the plaintiff’s symptoms first manifested themselves at the time at which he was replacing the vacuum hose:
(i)
I do not accept the fact that, because the pit work did not evoke symptoms of pain in the plaintiff’s back at the time he was carrying it out, this must necessarily lead to a finding that the pit work was not a cause of the injury;
(ii)
Nor do I accept the fact that the findings I have made, which cause me to call into question much of the plaintiff’s evidence and to reject some of his evidence entirely, must necessarily lead to a finding against the plaintiff either as to liability or causation.
88 Rather, I am satisfied that in deciding the issues which arise as to both liability and causation in this proceeding, I must examine all of the evidence which has been adduced by both parties in the trial and make findings on the basis of reasoned analysis of that evidence as to the facts which I am satisfied the plaintiff has established on the balance of probabilities.[106]
[106] This was the approach taken by the Court of Appeal in Spiteri v Visyboard Pty Ltd [2005] VSCA 132 (25 May 2005)
89 In deciding the issue of causation in this case, the approach which I should adopt is that set out by the Victorian Court of Appeal in Transport Industries Insurance Co Ltd v Longmuir,[107] wherein Tadgell JA stated:
“… The evidence is to be evaluated as a whole in order fairly to consider whether the party bearing the onus of proof has established what is ultimately sought to be proved. The object of the exercise of evaluation is to discover whether the evidence paints a picture reflecting real life, rather than to place a tick or a cross against paragraph after paragraph of torpid pleading. A true picture is to be derived from an accumulation of detail. The overall effect of the detailed picture can sometimes be best appreciated by standing back and viewing it from a distance, making an informed, considered, qualitative appreciation of the whole. The overall effect of the detail is not necessarily the same as the sum total of the individual details. … .”
[107] [1997] 1 VR 125
90 I am also guided by the approach taken by the High Court in Adelaide Stevedoring Co v Forst,[108] in which Rich ACJ, when commenting upon the factual circumstances of that case, said:
“I am greatly impressed by the sequence of events. ……I do not see why a court should not begin its investigation, ie before hearing any medical testimony, from the standpoint of the presumptive inference which this sequence of events would naturally inspire in the mind of any common- sensed person uninstructed in pathology”
[108] (1940) 64 CLR 538 at 563
and McTiernan J emphasised the impossibility of framing a formula to measure probability and the need to give due weight to the facts of the case as distinct from medical opinion.[109]
[109] See Adelaide Stevedoring Co v Forst at 573; see also Dahl v Grice [1981] VR 513; and Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262
91 This approach to the analysis of causation is entirely consistent with that taken by the High Court in Tube Makers of Australia Ltd v Fernandez[110] and the New South Wales Court of Appeal in Bendix Mintex Pty Ltd and Ors v Barnes,[111] where Mason P, in discussing the approach the common law takes as to causation, said:
“… the trier of fact is entitled (indeed encouraged) to take a ‘robust and pragmatic approach’ to proof of causation. The inability to call lay or expert evidence that shows the precise way that something has happened is not fatal.”
[110] (1976) 50 ALJR 720
[111] (1997) 42 NSWLR 307 at 318
92 Employing this approach to the analysis required of me, I bear in mind that whilst the plaintiff has the onus of satisfying me on the balance of probabilities that the negligent conduct of the defendant was a cause of the injury suffered by him, the plaintiff need only establish that the pit work materially contributed to the cause of his injury, and not that it was the sole cause of the injury.
93 In considering the issue of causation, I also bear in mind the fact that the analysis which is to be applied in determining whether causation has been established to the requisite legal standard, may well be different to that applied by a medical practitioner when considering causation in a medical setting, where immediate attention may be focussed upon an obvious precipitating cause and not events which materially contributed to the eventual outcome to a greater or lesser degree.
94 My approach to the analysis required on the issue of causation which arises in this case is further guided by the following authoritative statements:
• In Tabet v Gett,[112] Kiefel J observed: [112] (2010) 240 CLR 537
“The common law requires proof, by the person seeking compensation, that the negligent act or omission caused the loss or injury constituting the damage. All that is necessary is that, according to the course of common experience, the more probable inference appearing from the evidence is that a defendant’s negligence caused the injury or harm. ‘More probable’ means no more than that, upon a balance of probabilities, such an inference might reasonably be considered to have some greater degree of likelihood; it does not require certainty.”[113]
[113] at paragraph 11
•
In ACQ Pty Ltd v Cook; Aircair Moree Pty Ltd v Cook,[114] the High Court observed that the field of debate in that proceeding, namely causation:
[114] (2009) 237 CLR 656 at paragraph [14}
“… is one of the most difficult in the law, and one about which
abstract discussion is seldom valuable for courts … .”[115]
[115] at paragraph 14
•
In the course of its judgment in that case, the Court referred to the judgment in March v E & H Stramare Pty Ltd and commented that a principal and uncontroversial point established by the Court in March was:
“… the proposition that there can be multiple causes of the
damage suffered by a plaintiff. Further, the context of the passage
quoted from Mason CJ’s reasons for judgment in March v
Stramare reveals that Mason CJ was concerned merely to reject
the ‘but for’ test as an exclusive criterion of causation. … .;”[116]
[116] at paragraph 27
and confirmed that the relevant test with respect to causation is that as stated by the Court in Wardley Australia Ltd v State of Western Australia,[117] namely:
“… a test of causation whereby it was a question of fact to be
answered by reference to commonsense and experience, and one
into which considerations of policy and value judgments
necessarily enter. When causation is so regarded, the law has no
difficulty in recognising that there can be multiple causes of the
one damage.”
[117] (1992) 175 CLR 514
95 In Roads and Traffic Authority v Royal,[118] Kirby J listed the common law
principles that have been accepted by the High Court:
“as governing decisions on contested issues of causation in relation to
claims framed in negligence.”[119]
[118] (2008) 245 ALR 653
[119] at paragraph 79. Whilst his Honour was in the minority, no issue arises as to this statement of general principle.
96 Insofar as they are relevant to the present proceeding, the principles are as
follows:
(i)
“causation is essentially a question of fact. … the decision-maker must reach a conclusion by the application to the entirety of the evidence of common sense and the lessons of common experience…;”[120]
(ii)
“the burden of proving causation-in-fact is on the claimant. The standard of proof that must be met is the balance of probabilities…;”[121]
(iii)
“whilst the ‘but for’ test may be useful in defining the outer limits of liability where causation is contested, it is ‘not a comprehensive and exclusive criterion, and the results which are yielded by its application properly may be tempered by the making of value judgments and the infusion of policy considerations’. …;”[122]
(iv)
“where several acts or omissions on the part of contesting parties are alleged to be causes-in-fact of a claimant's damage, the resolution of the contest presents a question of fact that is itself to be decided by reference” to the following considerations:
[120] at paragraph 81
[121] at paragraph 82
[122] at paragraph 83
•
The search is not confined to ‘the’ cause because, in some cases, two or more factors may be found to have contributed in a legally relevant way to the damage;
•
If a conclusion is reached that two or more causes have played a part in causing the damage, legal liability will attach so long as a nominated cause is held to have “materially contributed” to the result; and in this sense, if one activity is found to have materially contributed to the loss and damage suffered, it is a cause of the loss and damage despite other factors having played an even more significant role in producing that loss and damage. [123]
[123] at paragraph 85
(v) The way in which individual decision-makers ought to reason to their conclusions about contested issues of causation-in-fact cannot be expressed in terms of imperative rules of universal application. As with most legal reasoning, several considerations will typically combine to bring the mind of the decision-maker to his or her conclusion about the preferable view of the facts.[124]
[124] at paragraph 88
97 Finally, in Pledge v Roads and Traffic Authority,[125] Hayne J considered the
[125] (2004) 78 ALJR 572
many factors which might be said to be the cause of an event, and
commented:
“The distinction is not to be found by attempting to identify the
cause of the event. Examination will usually reveal that the event
came about as the result of a complex mixture of acts or
omissions. It may be right to say of each of those acts or
omissions that, but for its happening, the accident would not have
happened as it did. It would be wrong, however, to argue from
that observation to a conclusion that one or other of those acts or
omissions (for example, the driver's failure to keep a proper
lookout) is to be given special significance. Equally, it would be
wrong to argue from the identification of every act or omission
which played a role in the accident happening as it did to the
conclusion that legal responsibility attaches to all of those
responsible for every one of those acts or omissions. As
Windeyer J said in Faulkner v Keffalinos,[126] ‘lawyers must eschew
[126] (1970) 45 ALJR 80, at 86
this kind of 'but for' or sine qua non reasoning about cause and
consequence.’
The questions that are relevant to legal responsibility are first,
whether, as a matter of history, the particular acts or omissions
under consideration (here the acts or omissions which led to the
presence of the foliage, and the parking bays, and the absence of
necessary then to examine the role that is identified by reference
to the purpose of the inquiry – the attribution of legal responsibility.
It is at this second level of inquiry that it may be necessary to ask
whether, for some policy reason, the person responsible for that
circumstance should nevertheless be held not liable. But that kind
of policy inquiry apart, it is necessary to identify the nature of the
role which the conduct in question played in bringing about the
damage suffered.”
98 I now turn to my analysis as to causation.
99 I am satisfied, having regard to:
• the absence of challenge to the plaintiff’s evidence as to the activities which he undertook in opening the pit, cleaning and closing the pit; • the concession made on behalf of the defendant in the course of closing submissions that no issue was taken as to whether the plaintiff in fact carried out the pit work[127] that I should accept the evidence given by the plaintiff, not only as to the fact that he performed the activities involved in the pit work, but also as to the relative difficulty and exertion involved in undertaking those activities.
[127] T 1070
100 My view in this regard is influenced largely by the fact that Mr McLachlan’s evidence tended to support the evidence given by the plaintiff, not only as to the activities involved in performing the pit work from the time the plaintiff opened the pit until the time he closed it, but also as to the strenuous nature of those activities.
101 The following further matters are relevant to the presence of a causal link between the pit work and the plaintiff’s injury:
(i) Firstly, in my opinion, the nature of the activities which the plaintiff undertook whilst performing the pit work could generally be described as involving considerable exertion and as being of a type (in that they involved bending, lifting and strenuous activity whilst employing an 8-kilogram crowbar to break up concrete) which may cause an aggravation of a pre-existing degenerative condition in the lumbar spine. In this regard, I note and accept the opinion of Mr Michael Dooley, an orthopaedic surgeon who examined the plaintiff on behalf of the defendant on 22 November 2010, that the condition of the plaintiff’s spine as at 2003 was such that a minimal precipitating cause could have been responsible for the prolapse suffered by the plaintiff of his L5-S1 disc (“the prolapse”). Relevantly, Mr Dooley opined:
“… There may be minimal precipitating causes. Patients often give a history of travel, being stuck in a car for four or five hours or a plane trip, getting out and over a few days noticing back, buttock, leg ache. Certainly a typical episode is a bending, lifting, twisting, and it’s more the manoeuvre of the bend, twist and lift rather than the weight of what is about to be lifted that seems to precipitate the prolapse.”[128]
[128] T 123
The activities involved in the pit work, which included the plaintiff:
ƒ bending in order to both remove and replace the pit lid which
involved lifting a weight of 28 kilograms;
ƒ forcefully manipulating an 8-kilogram crowbar; ƒ bending within the confined space of the pit to remove broken pieces
of concrete; andƒ supporting the looped vacuum pipe over his shoulder which became
heavier as material was suctioned through it;
are all activities which I am satisfied were involved in the pit work and were of the type described by Mr Dooley as having the potential to initiate a prolapse of a previous degenerate disc.
(ii) Secondly, I interpret Mr Dooley’s example of symptoms initiating themselves over a few days after a car or plane trip, as supporting the proposition that it is not necessary that there is a spontaneous and immediate relationship between activity and symptoms before one can be satisfied that the activity was responsible for initiating the symptoms.
(iii) Thirdly, I take into account the evidence given by Mr Lightfoot, whose expertise in the area satisfies me that he is competent to express an opinion that the tasks which the plaintiff was required to perform in carrying out the pit work were such that they exposed him to the risk of sustaining an injury to his spine.
(iv) Fourthly, and critically, I take into account the proximity of the temporal relationship between the completion by the plaintiff of the activities involved in the pit work and the onset of his symptoms, in that his pain came on immediately after he completed the work.[129]
[129] There is no issue as to this temporal relationship see T 1069, L21 to T 1070, L1
102 In the context of these matters, I now go on to consider the medical evidence as to causation. I do so on the basis that the plaintiff’s evidence that he experienced symptoms of either pain or discomfort whilst performing the pit work any time prior to the onset of acute pain whilst lifting the light hose to secure it to the side of the truck, should be ignored for the reasons I have set out earlier.
103 The medical evidence as to causation in the proceeding is of short compass.
104 Mr Stanley Schofield, orthopaedic surgeon, gave evidence as follows:
Q: “At the time of the injury he’d been contracted for Council work
cleaning out drains?---A: Yes. Q: Did he give you a very short brief description of what was involved
in that activity?---A:
Well he said that he used heavy machinery and manual labouring using shovels, digging in drains or digging out drains, I should say, and cleaning out debris from blocked drains and there was a suction truck used to clear out the more significantly blocked drains.
Q: Did he give you a history of the circumstances in which the injury
occurred?---A:
He said on 21 January 2003, he was involved in cleaning out a stormwater drain involving physical work, a lot of digging to clear out the blockages. He had a long hose had (sic) been used to suck out much of the loosened debris away from the drain, but when the drain was cleared he was rolling up the hose and putting it back on the truck and he needed to lift this rolled-up hose and in doing so, which means arching his back as well as lifting it, he twisted his spine and he developed quite acute severe pain in doing this and he couldn’t continue to work so he saw his general practitioner who put him off work.”[130]
[130] T 467
105 Mr Schofield opined as to the cause of the prolapse:
“It was my opinion that he had suffered a disc prolapse while performing
significantly heavy work as the result of the normal routine in his job.”[131]
[131] T 474
106 The defendant points to the fact that in his history Mr Schofield described the plaintiff as having been required to undertake a lot of digging to clear out the blockages, and that the plaintiff’s evidence was that the activity which he was undertaking did not involve digging but involved those activities which I have earlier described. I do not consider that this inaccuracy in Mr Schofield’s history detracts in any significant way from Mr Schofield’s statement as to causation.
107 It is clear that Mr Schofield’s history included the fact that the plaintiff was involved in “physical work” in cleaning out the pit which in turn involved “a lot of digging to clear out the blockages”. Whether that work involved digging, which it did not; or working for 10 to 15 minutes to break up concrete by repeatedly striking it as hard as possible with an 8-kilogram crowbar; bending in a confined space to manually remove pieces of concrete which were too large to be removed by the suction hose; and the other activities involved in the pit work, which it did, seems of little moment to me as the performance of those alternative activities were equally likely to involve forceful activity exposing the spine to lifting, bending and twisting loads.
108 In the circumstances, I am satisfied that the activities actually involved in the pit work can be appropriately described as heavy work and can be appropriately interchanged with Mr Schofield’s description of shovel work.
109 Whilst it is put on behalf of the defendant that Mr Schofield’s evidence in this respect should be interpreted such that he was opining that the sole cause for the plaintiff’s L5-S1 prolapse was the activity which he engaged in whilst placing the vacuum hose onto the truck, that position was never put to Mr Schofield, and in my opinion, the interpretation contended for by the defendant is inconsistent with the statement made by Mr Schofield that the plaintiff had suffered a disc prolapse “whilst performing significantly heavy work as the result of the normal routine in his job”. I note, in this respect, there is no evidence that Mr Schofield was told that the hose which the plaintiff was manipulating at the time at which his symptoms initiated themselves was heavy.
110 Mr Max Wearne, an orthopaedic surgeon, in a report dated 23 May 2006, obtained the following history from the plaintiff:
“His work with Eldarin Services consisted of digging pits and the use of a suction hose to clean out stormwater drains. On occasions he used an auger to clean out tree roots. He drove a vacuum truck to which was attached a 5-metre plastic hose that was reinforced with metal ribbing. The hose was between 10 and 15 centimetres in diameter and at its free end had a light steel pipe approximately 1.5 metres in length. He admitted that the work was heavy at times.
However, all went well until 21st January 2003 when he was subcontracting to Stonnington City Council. He had completed sucking out some pits and was in the process of hanging the hose on the side of the truck when something ‘popped’ painfully in his lower back and he was unable to move for a short time. He was then able to climb into the cabin of a truck with some difficulty and drive to the consulting rooms of Dr Richard Young of the Prahran Medical Clinic. By this time the pain in his back was continuing and intense and accompanied by pain radiating down the back of the left thigh. The pain caused him to adopt a list to one side.”[132]
[132] Exhibit K
111 Mr Wearne was asked to provide a “brief description of the accident or precipitating factors that resulted in the present condition” and responded:
“See body of report”.[133]
[133] Exhibit K
112 Whilst Mr Wearne’s report was tendered by the consent of the parties, I am of the view that his opinion neither provides support for nor detracts from the plaintiff’s case as to whether the pit work was a cause of his injury.
113 Mr David Brownbill, a neurosurgeon, gave the following evidence, firstly as to the plaintiff’s work with the defendant:
“He told me that this involved a lot of heavy lifting especially of
stormwater and junction lids and bending and twisting.”[134]
and specifically as to the incident which occurred on 21 January 2003:
“He told me that he bent over to pick up a lid from ground level, and put it in position. He then lifted a hose which he said was heavy-it was not heavy but it was awkward and he placed it on the truck by leaning forward with both arms outstretched. As he did so, he noted a sudden pain in the left side of the lower back.”[135]
[134] T 420
[135] T 420
114 Other than in making this statement, Mr Brownbill did not opine further as to the cause of the prolapse of the plaintiff’s L5-S1 disc.
115 Dr Roberto Celeda, the plaintiff’s general practitioner, gave the following evidence on this issue:
Q: “In short compass, what did he tell you?--- A:
Well he told me that in 2003 he was a storm rainwater labourer, which is – he explained to me he is constantly lifting heavy weights. I haven’t seen any worker doing this, because I assumed this – this work is doing – done after hours, but he explained to me that his job consisted in lifting pipes, lifting – cleaning the – rainwater storms, and what he described to me – said to him that it was only just physical heavy work.”[136]
[136] T 164
Dr Celeda continued:
Q:
“Your diagnosis in a general sense you summarised it as the bottom of the second page of your report I think doctor, would you be good enough to refer it to the jury?---
A:
Number 2 diagnose (sic), including specific areas of impairment, I wrote that Mr Ball, in my opinion, has a, sorry no, Mr Ball has the following diagnosis: Number 1, lumbar spine injury due to industrial injury in 2010. …”[137]
[137] T 166
And further:
[138] T 175
Q: “No I want to stop you there. I just want to go to your note; he told
you that he felt acute pain when he was bending and digging?A: Yes.”[138]
116 Given the inaccuracy of the history obtained by Dr Celeda, I do not consider his opinion as to the cause of the prolapse to be of any real assistance to my analysis as to that issue.
[158] T 485
[159] T 522
•
Mr Schofield was of the opinion that this aggravation was responsible for the plaintiff’s chronic pain and disability.[158] He did not however, exclude scar contraction at the level of the surgery which the plaintiff has undergone as being responsible for the plaintiff’s clinical presentation.[159]
• Mr Brownbill expressed a similar opinion to that of Mr Schofield. 151 I found the opinions of these two witnesses upon this issue to be well reasoned.
152 Mr Dooley generally expressed the opinion that the broadbased posterior disc protrusion which is present in the plaintiff’s L4-5 lumbar disc,[160] was associated with the presence of a natural degenerative process and not the fusion of the L5-S1 lumbar vertebrae. Whilst he opined that it was unlikely:
[160] As reported upon in the MRI scan of 10 January 2011Exhibit 13
• that this degenerative process explained the plaintiff’s current presentation; • that the degenerative process which was present at this level had been influenced by the plaintiff’s surgery, Mr Dooley accepted that each of these scenarios were possibilities.[161]
[161] T 1014
153 With respect to the clear difference of opinion which exists between Mr Schofield and Mr Brownbill on the one hand, as to the relevance of the fusion of the L5-S1 lumbar vertebrae sponsoring degeneration and symptoms in the L4-5 disc, and Mr Dooley on the other hand, I prefer the opinion and analysis of Mr Brownbill and Mr Schofield on this issue.
154 In particular, I am persuaded in this regard by the evidence of Mr Brownbill, that a large body of spinal specialists recognise the likelihood that the extra forces which are placed upon a disc above a vertebrae which has been fused are likely to have an impact upon the degenerative process at the level immediately above the fused area. In explaining his position, Mr Brownbill opined:
“Clinically the question is, is it more likely or not that the changes at one level are related to a fusion, and all I am saying is that in the presence of a fusion below, the clinical conclusion would be – and again not radiologically. I am not talking about radiological findings alone – in combination with the way the patient is presenting. It is the patient’s clinical presentation. Is it more likely or not? We have no idea of knowing how to predict these things, but is the taking away of a multi- joint system and thereby, in mechanical terms, throwing more strains on the one above or below, is that, in clinical experience – forget the x-ray – in clinical experience, is it more likely or not to have an increasing chance of degenerative changes increasing above or not? The clinical experience is that it is more likely. It is not taking away the idea that there is – are – age or work component. It is straws and camels, an added thing.”[162]
[162] T 910
155 In considering the totality of the evidence upon this issue,[163] I am satisfied that the increased pressure placed upon the plaintiff’s L4-5 lumbar disc by reason of the fusion immediately below that disc has exposed the disc to extra load with the result that the disc has become symptomatic.
[163] including the concession made by Mr Dooley that a fusion at the lumbosacral level places increased strains upon the L4-5 level above the fusion – T 992
156 Further, I prefer the evidence of Mr Schofield and Dr Celeda to that of Mr Dooley, that the plaintiff’s symptoms are largely explained by the combination of a less than perfect end result (with respect to symptomatology) of the surgery at the L5-S1 lumbar spine together with the symptoms initiated by the surgery at the L4-5 level of the lumbar spine. In making this finding, I am particularly influenced by the opportunity Dr Celeda has had to assess the consistency of the plaintiff’s presentation to him over the period in which he has treated the plaintiff.
The Relevance of the Surveillance Evidence
157 The surveillance evidence produced in this case, whilst relevant to the issue as to whether the plaintiff was working whilst providing medical certificates attesting to his incapacity, did little to influence me one way or the other as to whether I should accept the evidence that the plaintiff suffered from significant back symptoms which adversely affected his day-to-day life in the manner described by him.
158 I did not form the view that the surveillance evidence depicted the plaintiff to be engaging in any activity which involved strenuous physical activity. Further, it was my impression that throughout the periods shown in the surveillance, the plaintiff was depicted as moving generally in a careful and restricted manner.
159 As to the relevance of the surveillance evidence in demonstrating whether the plaintiff retained any true capacity to work, given the activities depicted, when considered in the context of:
•
the brief periods during which the plaintiff undertook the post-accident employment duties;[164]
•
the fact that the time occupied by the surveillance evidence was 22½ minutes, and that surveillance of the plaintiff was undertaken for a period of 110.25 hours;
[164] In making this comment, I generally accept the plaintiff’s evidence as to the periods in which he was employed. His evidence was broadly consistent with the periods during which payments were made into his bank account. Further, not only was this evidence not the subject of challenge, but it is clear that the surveillance evidence was taken during the period of the plaintiff’s employment with R W Drainage and the defendant did not adduce evidence from any of the surveillance personnel to contradict the plaintiff’s evidence as to this issue.
I am satisfied that the surveillance evidence should not influence my analysis of the issues which arise in this case, other than that which arises as to the plaintiff’s credit.
The Lay Evidence
160 Evidence was adduced by the plaintiff from a number of friends, together with his daughter, as to the change both in the plaintiff’s mood and in his level of activity following the happening of his injury. Notwithstanding the presence of some inconsistencies between these witnesses as to the extent and duration of the plaintiff’s alcohol problems and the severity of his depression, I accept that the lay evidence presented by the plaintiff generally supported the position that, whereas before he suffered his back injury, the plaintiff was a generally fit and active person, the effect of his injury has been to restrict his level of activity very significantly.
161 I am satisfied, however, that it would be inappropriate to assess the effect of the accident upon the plaintiff’s level of activity without taking into account that the plaintiff’s regular attendance at the Garfield Hotel would tend to suggest that he was not a recluse in the manner described by him (the plaintiff said he spent his day doing very little around the house and effectively waiting for his housemates to return home from work). That the plaintiff divested himself of over $65,000, being the proceeds of the sale of his house, during a period of approximately twelve months following the receipt of the proceeds from the sale, also supports this conclusion.
The Nature and Extent of the Plaintiff’s Psychological Symptoms
162 Mr Martin James Baker, the plaintiff’s treating psychologist, described the plaintiff as easily meeting the criteria for the presence of a Major Depressive Disorder and that the extent of the plaintiff’s depression was in the severe range.[165]
[165] T 702
163 Mr Baker opined that the plaintiff’s:
“… whole self-worth was really sort of tied up in his working and contributing and giving to his kids, and that all of a sudden he finds that whilst he would like to be out there and work, that his back is stopping him, leaving him at home almost, let alone actually working when you would get to work.”
[166] T 706
Q: “Did you make yourself aware as to whether he had any skills or
aptitude other than his physical capacity?---A: I didn’t do any sort of vocational assessment with regards to him. I found – I thought it was fairly obvious just – well, just looking at him when he would come into the premises and go in the waiting room and how often he would be sort of like standing up rather than sitting down and he always seemed to – if he sat for a while he had to stand up. If he was standing for a while he would then have to sort of sit down, so you get that sort of constant ‘I can’t be comfortable for a long time sitting, but I can’t be comfortable for a long time standing’ sort of presentation.”[166]
164 As to the prognosis for the plaintiff’s psychological health, Dr Baker opined:
“Whilst I’m still talking about his psychological state improving, I think that could be a significant improvement, but I still think that there would be marked depressive symptoms present, and that an improvement in his psychological health would actually result in him feeling better about his predicament, but not feeling so good about himself.”[167]
[167] T 708
165 The evidence given by Mr Baker,[168] when considered in light generally of the lay evidence adduced by the plaintiff, satisfies me that I should accept his assessment as to the severity of the plaintiff’s psychological state, notwithstanding the plaintiff’s very questionable reliability as an historian.
[168] T 720, L11-17
The Significance of the Plaintiff’s Failure to Call Medical Witnesses
166 The point is taken on behalf of the defendant that I should draw an inference adverse to the plaintiff’s case as to the degree of his continuing incapacity by reason of the failure by the plaintiff to call evidence from a number of the plaintiff’s treating doctors, including Dr Young and Dr Tasiopolous[169]; Dr Robert White;[170] Mr Malcolm Thomas;[171]and the plaintiff’s treating medical practitioners from the Caulfield Pain Clinic.
[169] General practitioners who have treated the plaintiff
[170] A psychologist who has treated the plaintiff
[171] An orthopaedic surgeon who the plaintiff consulted in respect of the shoulder complaint in respect of which the plaintiff consulted Dr Celeda
167 Having regard to the medical evidence adduced by both parties in the trial however which included evidence from:
ƒ Mr Jensen, the plaintiff’s treating neurosurgeon; ƒ Mr Brownbill, who first examined the plaintiff in May 2003; ƒ Mr Wearne, who examined the plaintiff on behalf of the defendant in May
2006;ƒ Dr Celeda, who has managed the plaintiff since April 2009; ƒ Mr Baker, the plaintiff’s treating psychologist; ƒ Mr Dooley and Mr Schofield, who have examined the plaintiff very
recently;and given the consistency in the opinions expressed by the medical witnesses who were called as to the plaintiff’s prognosis and capacity for employment, I am not persuaded that any inference which could be drawn as to the plaintiff’s failure to call medical evidence should influence my findings as to the nature, extent and effect of the plaintiff’s injuries.
Finding as to the Nature and Extent of the Plaintiff’s Symptoms and Incapacity
168 For the reasons to which I have earlier referred, I am satisfied:
(i)
That the plaintiff is suffering from a significant level of largely organically- based pain emanating from the accident-related damage to his L5-S1 and L4-5 lumbar discs; that there is little prospect that the plaintiff’s condition will improve; it being more likely rather that the plaintiff’s symptoms will increase with his age;
(ii)
That the plaintiff is suffering from a Major Depressive Disorder which is secondary to his physical injury and which has consequences of the type described by Mr Baker and in respect of which, whilst there is some prospect of improvement, the prognosis will be largely dictated by the plaintiff’s physical condition.
The Plaintiff’s Capacity to Work
(i) The Evidence of Dr Gary Davidson
169 Evidence was adduced from Dr Gary Davidson, an occupational physician, who described his specialty as including providing opinions as to capacity for work and the management of work injuries and rehabilitation. Generally, I found Dr Davidson to be a most unimpressive witness for the following reasons:
•
At the time of his initial assessment of the plaintiff, Dr Davidson, having little or no experience in the success rate or the recovery rate of surgery involving the insertion of Ray cages, said that he was unable to prognosticate in the matter[172] and suggested that the plaintiff be referred for specialist opinion from a spinal surgeon;
•
When Dr Davidson subsequently examined the plaintiff on 2 May 2008, he had been provided with the report of Mr David Brownbill dated 16 October 2004, in which Mr Brownbill had expressed the opinion that the plaintiff’s surgery had not been successful in improving the plaintiff’s condition and that he remained incapacitated for work. Notwithstanding having being provided with this opinion which generally supported the plaintiff’s position that the surgery had been successful in alleviating his symptoms, Dr Davidson did not refer to it. Rather, having examined the plaintiff’s hands on this occasion, and noting the presence of recent abrasions on the back of the fingers, wrists and forearms, together with staining of the plaintiff’s fingernails and callusing of the plaintiff’s hands and fingers, Dr Davidson opined that the plaintiff’s presentation was:
[172] T 842
“… consistent with someone who was undertaking manual work
such as a motor mechanic.”[173]
[173] T 812
•
On 22 September 2008, Dr Davidson provided a further report as to the plaintiff’s capacity for work, having at that time been provided with a written report describing video surveillance of the plaintiff in December 2007 and January and February 2008. Without satisfying himself as to the accuracy of the description provided as to the contents of the surveillance video by viewing the video,[174] Dr Davidson opined that the plaintiff was likely to have a capacity for his pre-injury duties but that given the spinal surgery which he had undergone, the following physical restrictions should be placed upon the work which he should perform: one, avoid heavy manual handling greater than 20 kilograms in force or weight; two, vary posture regularly; three, observe prudent manual handling practices. Dr Davidson further opined that the plaintiff’s injury did not affect his ability to drive a public motorcar and that he had the capacity to undertake employment as a light goods courier.[175] In expressing this opinion, Dr Davidson in no way suggested that the plaintiff’s capacity for work was limited only to part-time work.
•
In a further report dated 12 December 2008, this report having been expressed after Dr Davidson had had the opportunity of seeing the video, Dr Davidson extended the range of occupations which he considered suitable for the plaintiff to those of:
(i) courier driver; (ii) forklift driver; [174] T 843
[175] T831
(iii) process worker;
(iv) hand packer.
170 That Dr Davidson:
•
was prepared to express an initial opinion as to capacity for work on the basis of video evidence which he had not seen;
•
was prepared to opine that the plaintiff was fit for full-time employment as a courier driver or forklift driver, notwithstanding the fact that he had undergone a fusion to his lumbar spine about which he was not qualified to prognosticate;
•
was prepared to opine that the duties involved in courier driving which required the courier regularly to leave his vehicle for the purpose of collecting and delivering parcels, could be appropriately classified as duties which allowed him to vary his posture regularly;[176]
•
inappropriately applied the Waddell’s test for assessing the presence of non-organic symptoms;[177]
•
was prepared, on the basis of the video evidence, to express opinions as to the plaintiff’s capacity for work in circumstances in which he had no information as to the regularity of which the plaintiff undertook the activities depicted in the video whether undertaking of those activities elicited symptoms of pain or required the plaintiff to ingest further amounts of medication;[178]
[176] T873
[177] In this regard see the evidence of Mr Brownbill at T 895-6 which I accept.
[178] T847-867
raises such doubt in my mind as to Dr Davidson’s objectivity, that I reject the
evidence given by him as to the plaintiff’s ongoing capacity for employment.(ii) The Balance of Evidence as to the Plaintiff’s Capacity to Work
171 I previously referred to the video surveillance evidence of the plaintiff in this matter.[179] As I have stated, given the brevity of the material and the activities performed by the plaintiff as depicted in that material, I do not consider that the material provides any insight as to the plaintiff’s capacity to engage in gainful employment in the open labour market.
[179] Exhibits 2 and 3
172 I have also commented:
•
that given the brief periods during which the plaintiff undertook the post- accident employment duties, I do not consider those activities being indicative as to whether the plaintiff retains a true capacity for work;
•
upon the opportunity which Dr Celeda has had to assess the consistency of the plaintiff’s presentation, and commented that I am satisfied that the plaintiff’s presentation is largely secondary to organic injury. I accept however that the plaintiff’s depressive condition would operate to some degree in exacerbating the plaintiff’s symptoms in the way described by Mr Brownbill.[180]
[180] See his evidence at T 434-435
173 Generally, the medical evidence adduced by the parties, both as to the plaintiff’s capacity for employment and the likelihood of the plaintiff finding employment, strongly supports the proposition that the plaintiff is now unlikely to return to work.
174 Upon this issue:
•
Mr Brownbill expressed the opinion, when he last examined the plaintiff in October 2004, that the plaintiff would not regain a capacity for work;[181]
•
Mr Schofield expressed the opinion that the plaintiff was totally unfit for work as at the time of his last examination of the plaintiff on 4 August 2010, that with surgery it was possible that the plaintiff may be employable eventually but that failing operative intervention, his work capacity was unlikely to alter;[182]
•
Dr Celeda expressed the opinion that he saw no real prospect of the plaintiff getting back to any form of work;[183]
•
Mr Dooley accepted that in the real world, from an employment point of view, the plaintiff was at the bottom of the barrel and whilst his employment prospects were not totally gone, he could not see many employers being ready to take the plaintiff on as an employee;[184]
•
Dr Davidson gave evidence that the chance of the plaintiff finding employment on a full-time basis, given his history of incapacity and the nature of the injury he had suffered, was very low.[185]
[181] T 441
[182] See Mr Schofield’s evidence at T 483 and T 486. I note in this respect that it was Mr Schofield’s opinion that it was reasonable for the plaintiff to refuse further surgery, and I accept the plaintiff’s evidence that he will not undergo further surgery.
[183] T 172
[184] T 1016
[185] T 875
175 Taking into account this evidence, in the context of the findings which I have previously made:
•
I accept the evidence of the plaintiff as to the difficulties he experienced in undertaking his post-accident employment (those difficulties being consistent with the problems which I would expect the plaintiff would experience having regard to my findings as to the medical evidence which has been adduced), and accept that the plaintiff discontinued that employment due to the aggravation of his back pain caused by the activity involved. I am satisfied that I should make this finding notwithstanding the failure by the plaintiff to adduce evidence from his post-accident employers as to the difficulties which the plaintiff encountered in his work or as to the reason for which he ceased work given the severity of the condition from which I am satisfied the plaintiff suffers in his lumbar spine.
•
I am satisfied that the plaintiff’s capacity for remunerative employment has to all extent and purposes been destroyed by the injury suffered by him.
General Damages
176 In assessing the figure to be awarded to the plaintiff for general damages, I take into account the findings I have made:
(i)
that whilst the plaintiff has undergone a successful fusion at the L5-S1 level, he continues to suffer from significant organic symptoms emanating from his lumbar spine which are a consequence of the aggravation;
ƒ initially by the incident, of the asymptomatic condition with which the
plaintiff presented at the L5-S1 level of his lumbar spine;
ƒ subsequently the fusion, of the asymptomatic degenerative condition
present at the L4-5 level of his lumbar spine;
(ii) that the plaintiff is likely for the duration of his life to suffer from symptoms of pain which emanate from his lumbar spine and which are likely, with the progress of time, to increase;
(iii) that the plaintiff has need to resort to pain control in the form of medication described by Dr Celeda as strong opioid patches;[186]
(iv) that the plaintiff’s organic symptoms restrict him from engaging in any form of strenuous physical activity and that they impair his ability to walk for long distances, or to stand or sit for long periods of time;
(v) that the plaintiff is suffering from a major depressive disorder which is secondary to his physical injury and which has consequences of the type described by Mr Baker.
[186] T 198
177 These findings are consistent with the evidence given as to the plaintiff’s symptoms and prognosis by his treating doctor, Dr Celeda, Mr Brownbill and Mr Schofield.
178 Further, they are consistent with my observations of the plaintiff during the course of the trial in that, when he was not necessarily under observation, he regularly shifted in position and grimaced, and whose presentation was generally, in my opinion, consistent with someone suffering from symptoms of considerable pain.
179 Whilst I have expressed reservations in accepting the evidence of the plaintiff that his day-to-day life involves him engaging in virtually no activity, the medical evidence to which I have referred, when considered in the context of the lay evidence adduced by the plaintiff which I largely accept, convinces me that the plaintiff’s day-to-day activities are substantially limited by reason of the symptoms from which he suffers; and that they will continue to be so limited for the duration of his life.
180 In the circumstances, I am of the opinion that it is appropriate to assess the plaintiff’s pain and suffering damages in the sum of $225,000 (Two Hundred and Twenty Five Thousand Dollars).
Damages in Respect of Loss of Earnings and Lost Earning Capacity
181 At the time at which he suffered his injury, the plaintiff was forty-three years of age. Since leaving school, the plaintiff’s employment history was one of reasonably constant employment other than for a period of five years between 1994 and 1999.
182 The plaintiff commenced employment with the defendant in 1999 and had been so employed for a period of approximately four years immediately prior to his accident. The plaintiff described himself as being highly regarded by the defendant as an employee and no challenge was made to this evidence.
183 It was the plaintiff’s evidence:
• that the major interests in his life involved his relationship with his children and his work. This evidence was not the subject of challenge and I accept it; • that but for his injury, he would have continued working until the normal retirement age. This evidence was not challenged and, having regard to the plaintiff’s relative lack of education and the relatively restricted nature of his pre-accident interests (which generally involved activity of a physical nature), I accept this evidence by the plaintiff. 184 For the reasons earlier set out in my judgment, I am satisfied that the plaintiff has established that since the incident, and by reason of the injuries sustained by him in the incident, the plaintiff has not been fit for work.
185 In fixing the sum to be awarded to the plaintiff in respect to past and future economic loss, account must be taken of the fact that independently of the condition of his back, the plaintiff presents with bilateral shoulder problems which would restrict him in the range of work he would be fit to undertake.[187] I am satisfied however that a large range of work would still be available to the plaintiff but for his back injury; for example, I am of the opinion that work of the type undertaken by the plaintiff with Silvertaire would most probably be within his general capacity but for the condition in his back.
[187] See the evidence of Dr Celeda at T 192. I am not satisfied however that I should take account as to this issue, the plaintiff’s problems with alcohol . The fact that the plaintiff’s consumption of alcohol did not impact on his ability to work for the defendant satisfies me that the consumption by the plaintiff of alcohol to the extent that it may impair his capacity to work reliably arose after his injury and by reason of it.
186 A claim is made by the plaintiff in the sum of $286,160.00, in respect of his loss of income between 22 January 2003 and the present date.
187 In my opinion, the plaintiff is entitled to the sum claimed by him with respect to past loss of earnings subject to a discount to take into account:
[188] Even had the defendant taken an appropriate approach to the management of the risk of injury to which its employees were exposed.
(i) the possibility that, by reason of the heavy duties required of the plaintiff in employment with the defendant,[188] in combination with the extreme vulnerability of his back, he may have suffered an incapacitating injury to his back. (ii) the restriction in the range of work he would be fit to undertake by reason of his shoulder problems. 188 For this reason, I assess the plaintiff’s damages for loss of earning capacity to date as follows:
As claimed: $286,160.00 Less 25 per cent to take into account the vicissitudes associated with the degenerative condition which is present in the plaintiff’s lumbar spine and his shoulders: -$71,540.00 __________
$214,620.00
Less earnings to be taken into account: -$2,920.00 __________
$211,700.00
Plus 75 per cent of lost superannuation between
21 January 2003 and 16 February 2011: $14,289.00
$225,989.00
Plus adjustment to take into account tax paid on
weekly payments of compensation: $30,000.00
_________ __________ $255,989.00
==========
Damages in Respect of Future Economic Loss
189 Whilst I accept the fact that the plaintiff had intended to continue to work until the normal retirement age, in my opinion, the nature of his heavy physical work, in combination with the underlying degenerative condition which was present in his spine and shoulders, makes it questionable whether the plaintiff would have been able to continue in his employment to that age.
190 In my opinion, rather than to assess the damages to which the plaintiff would be entitled until his planned retirement, and then to reduce that figure to take account of both the specific and general vicissitudes which apply in this instance, the appropriate approach to take with respect to the assessment of the plaintiff’s future economic loss is to award the plaintiff the full value of his loss of income and superannuation until the age of sixty without discount to take into account vicissitudes, this being $291,266.
191 Accordingly, I assess the plaintiff’s damages as follows:
General damages $225,000.00 Past Loss of Income $255,989.00 Future loss of earning Capacity $291,226.00.
192 I will hear the parties as to the judgment which is to be entered in the proceeding and upon the issue of costs
- - -
| T 1026 See T 1081- As per the decision in O’Donnell v Reichert [1975] VR 916 |
0
12
0