Caruso v Black and White Distribution Pty Ltd [No 2] - [2013] WADC 145

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: CARUSO -v- BLACK AND WHITE DISTRIBUTION PTY LTD [No 2] [2013] WADC 145

CORAM: BOWDEN DCJ

HEARD: 21-24 & 27-31 MAY, 19 JULY & 22 AUGUST 2013

DELIVERED : 27 SEPTEMBER 2013

FILE NO/S: CIV 1027 of 2008

BETWEEN: ANTHONY MICHAEL CARUSO
Plaintiff
AND
BLACK AND WHITE DISTRIBUTION PTY LTD
Defendant

Catchwords:

Negligence claim - Workers' Compensation and Rehabilitation Act 1981

Legislation:

Occupational Safety and Health Act 1984
Workers' Compensation and Rehabilitation Act 1981

Result:

Plaintiff's claim dismissed
Damages provisionally assessed at $441,422

Representation:

Counsel:

Plaintiff: In person
Defendant: Mr D Williams

Solicitors:

Plaintiff: Not applicable
Defendant: WHL Legal Pty Ltd

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

Amaca Pty Ltd (formally James Hardie & Co Pty Ltd) v Patricia Margaret Hannell [2007] WASCA 158
Andar Transport Pty Ltd v Brambles Ltd [2004] HCA 28; (2004) 217 CLR 424
Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27 (2009) 258 ALR 14
Astley v Austrust Ltd (1999) 197 CLR 1; (1999) 73 ALJR 403
Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301
Barclay Mowlem Construction Ltd v Dampier Port Authority (2006) 33 WAR 82
Beltreco v Tucker [2010] WACC C4‑2010
Black and White Taxis v Caruso (2007) WACC C30‑2007
Browne v Dunn (1893) 6 R 67
Chappel v Hart [1998] HCA 55, (1998) 195 CLR 232
City of Stirling v Tremeer [2006] WASCA 73; (2006) 32 WAR 155
Clough Engineering v Thomas [2004] WASCA 36
Comfort Inn Suites v LKB [2012] WACC C1‑2012
Commonwealth v Amann Aviation Pty Ltd [1991] HCA 54, (1991) 174 CLR 64
Commonwealth v Verwayan (1990) 170 CLR 394
Crystal Wall Pty Ltd v Pham [2005] NSWCA 449
Custom Credit Corp Ltd v Dallas Development Corp Pty Ltd [2003] WASC 98
Czatyrko v Edith Cowan University [2005] HCA 14; (2005) 79 ALJR 839
Divjakoski v Boral Window Systems [2011] WASCA 134
Doonan v Beacham [1953] HCA 38; (1953) 87 CLR 346
Finamore v Slater & Gordon (a firm) (1994) 11 WAR 250
Fox v Wood [1981] HCA 41, (1981) 148 CLR 438
Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540
HKSAR v Tse Tat Fung [2010] HKCA 156
Illawarra Area Health Services v Dell [2005] NSWCA 381
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
Joslyn v Berryman (2003) 214 CLR 552
Koehler v Cerebos (Aust) Pty Ltd (2005) 222 CLR 44
Kondis v State Transport Authority (1984) 154 CLR 672
Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11
Lockyer v Marshall (2004) 37 SR (WA) 90
Majinski v The State of Western Australia [2013] WASCA 10
Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638
March v E & MH Stramare) Pty Ltd [1991] HCA 12; (1991) 171 CLR 506
McLean v Tedman [1984] HCA 60; (1984) 155 CLR 306
MR & RC Smith Pty Ltd t/as Ultra Tune (Osborne Park) v Wyatt [No 2] [2012] WASCA 110
Mummery v Irvings Pty Ltd [1956] HCA 45; (1956) 96 CLR 99
Murray River North Pty Ltd v Midgley [2006] WASCA 104
Neindorf v Junkovic [2005] HCA 75; (2005) 80 ALJR 341
New South Wales v Fahy [2007] HCA 20; (2007) 232 CLR 486
O'Donovan v Western Australian Alcohol and Drug Authority [No 2] [2013] WADC 13
Purkess v Crittenden (1965) 114 CLR 164
Quadriplegic Centre Board of Management v McMurtrie [2009] WASCA 173
Re Monger; Ex parte Cook's Construction Pty Ltd [2004] WASCA 165
Re Monger; Ex parte Velsberry Pty Ltd [2003] WASCA 9
Slivak v Lurgi (Aust) Pty Ltd (2001) 205 CLR 304
Thompson v Woolworths (Qld) Pty Ltd [2005] HCA 19; (2005) 221 CLR 234
Town of Port Hedland v Reece William Hodder by his next friend Elaine Georgina Hodder [No 2] [2012] WASCA 212
Wynn v New South Wales Insurance Ministerial Corp [1995] HCA 53; (1995) 184 CLR 485
Wyong Shire Council v Shirt (1980) 146 CLR 40

BOWDEN DCJ: Mr Caruso, who was self‑represented, alleges that on 2 December 2002, whilst employed by the defendant, he suffered an injury caused by the defendant's negligence, breach of employment contract and/or breach of the Occupational Safety and Health Act 1984.
Mr Caruso says that as he injured his back in 1992 and 1995 and the defendant was aware of those injuries, they should not have required him to service motor vehicles in December 2002 and should have provided him with clerical or other sedentary work. He says that by not doing so, they failed to provide or maintain a safe system of work and exposed him to risk of foreseeable injury.
Mr Caruso's pleadings claim he is now totally unemployable and will remain so for the rest of his life.
The defendant agrees that they employed Mr Caruso but denies he suffered an injury at work on 2 December 2002 as a result of any specific incident or, if he did, deny it was caused by their breaches of duty and say it was an unprovoked exacerbation of an injury he sustained on 11 August 1995.
Alternatively, they say if there was a discrete incident on 2 December 2002 it was caused or contributed to by Mr Caruso's own negligence and, in any event, he failed to mitigate his loss by not obtaining work that he was able to undertake.

The evidence

Mr Caruso said he was born on 8 March 1964 and, after attending high school, became involved in the taxi industry working for Green and Gold Taxis. That business was, in about 1992, purchased by Taxi Industry Co (WA) Pty Ltd (Taxi Industry Co) which also owned Black & White Taxis. Mr Caruso started work as a dispatch operator and was promoted to supervising the dispatch room.
He said that by approximately 1999 the business had been taken over by the defendant and he was working as the workshop co‑ordinator/supervisor and was involved in ordering parts for the workshop and performing hands‑on mechanical work, effectively as the leading mechanic. Mr Caruso had no formal qualifications as a mechanic, having learnt on the job. During the course of his employment he completed a supervisory development course, an LPG installer's course, an automotive air‑conditioning course and a certificate of grievance management.

The 1992 incident

Mr Caruso said that on 18 September 1992, whilst employed by Taxi Industry Co, he was leaning over the engine bay of a vehicle for most of the day working on a cylinder head. He said that at the end of the day he could not straighten up so he sought medical attention and was off work for roughly one or two weeks.
Mr Caruso made a full recovery from this injury. The defendant does not dispute the circumstances of this injury or Mr Caruso's recovery from it.
I find that the 1992 incident was relatively minor, requiring one or two weeks off work, after which Mr Caruso was able to return to his normal duties.

The 1995 incident

Mr Caruso's evidence was that on 11 August 1995, whilst employed by Taxi Industry Co, he was standing next to a vehicle on a hoist that was around about chest height or a little bit higher, with his hands on the car's tyre and was rocking the tyre backwards and forwards checking for wear and tear on the suspension and bearings when he hurt himself. The defendant does not dispute the circumstances of this injury.
He said he went to see his general practitioner, Dr Beinart, and had some physiotherapy and massage work, and returned to work performing light duties. He said he was later placed in the limousine section where he took bookings, phoned and organised drivers, and performed duties in the workshop such as invoicing, dealing with customers, ordering and collecting parts and the like.
He said that whilst in the limousine section, customers of the workshop would request he personally attend to their vehicles and the other mechanic would regularly seek his advice, so he was constantly going from the limousine section into the workshop.
He said he had a verbal altercation with the manager of the limousine section, Mr Edwards, who objected to him wearing workshop attire. He said Mr Edwards told management he could not remain in the limousine section and he was put back into the workshop. Mr Caruso says he told Mr Harvey, the financial controller, that if he returned to the workshop he would hurt his back again.
Mr Caruso said he went back to the workshop, as there was no other option, and he was performing physical hands‑on work. He said he suffered some slight exacerbations of his 1995 back injury whilst working in the workshop between 1995 and 2002, and would be put off work for a couple of days, a week or maybe two weeks at the most. He said over this period, on average, he only saw the doctor two or three times a year.
Dr Beinart's evidence was that on 11 August 1995 he certified Mr Caruso totally unfit for work for seven days (Mr Caruso was only away for three days). He then saw Mr Caruso on 14 August 1995 and his notes of that day refer to Mr Caruso 'coping at work'. On 21 August 1995, Dr Beinart's certified Mr Caruso as fit for work 'supervisory mainly' and requiring further treatment.
On 7 September 1995, Dr Beinart wrote to the defendant's insurers saying Mr Caruso had sustained a facet joint injury to his right lower lumbar area, most likely at the fifth lumbar level as a result of the 11 August 1995 incident. The letter said that when reviewed on 21 August 1995 Mr Caruso had improved greatly but still complained of twinges of pain in his lower back and was avoiding strenuous lower back activities.
In the same letter Dr Beinart pointed out that Mr Caruso was fit to work as a workshop manager, mainly in a supervisory capacity, but required further treatment and said Mr Caruso claimed to be coping well as a workshop manager, although having to avoid certain activities.
In October 1995, Dr Beinart certified Mr Caruso as fit to work in a 'supervisor's capacity mainly' and referred him to other specialists including Dr Edelman and Mr Slinger and, although neither gave evidence, their reports were tendered by consent. Dr Edelman reported on 3 November 1995 that Mr Caruso was able to remain at work and was trying to avoid heavier work and, in the long run, would be prone to this problem recurring.
Dr Beinart saw Mr Caruso in January 1996 and his Progress Medical Certificate (PMC) of January 1996 and report of that month revealed Mr Caruso said he was experiencing minimal low back discomfort and was coping with most of his work duties.
The PMC of 12 February 1996 reveals Mr Caruso was fit, in Dr Beinart's opinion, to work in a supervisory capacity. Dr Beinart said Mr Caruso refused to take time off work because people were relying on him.
Dr Beinart's PMC of 6 March 1996 certified Mr Caruso as totally unfit for work for four weeks, although this was extended until 24 April 1996 to enable him to focus on his exercise and gym programme in an effort to strengthen his muscles.
Ms Megson, a vocational rehabilitation provider, said in evidence that she first became involved with Mr Caruso in late February 1996. She reported that Mr Caruso had a keen desire to return to work and noted he had reported that, as there was only one other worker in the workshop, it was difficult for him to confine himself to light duties as this would leave the majority of work to the other worker. Ms Megson said the employer, through Mr Harvey, was very supportive and indicated they had permanent alternative duties to offer Mr Caruso, and had put on a fourth‑year apprentice to allow him to avoid hands‑on mechanical duties.
Ms Megson prepared a graduated return to work programme. Mr Caruso commenced that programme on 24 April 1996 but suffered a severe re‑occurrence of his symptoms on 7 May 1996 when he was fixing radiator hoses on a car. That task was outside the scope of the agreed return to work programme. Mr Caruso was certified unfit for any duties from that date until he was certified fit by Dr Beinart on 17 May 1996 to return to the graduated work programme on 20 May 1996.
Dr Beinart's PMC of 7 June 1996 reported Mr Caruso was responding well to treatment and coping.
When seen by Ms Megson on 25 June 1996, Mr Caruso was undertaking almost all of his pre‑injury duties, even though this was not the basis of the return to work programme. Mr Caruso reported he was managing well with all the duties required of him and said that although he had been trying to complete only the supervisory duties, he was finding himself becoming more and more involved in mechanical duties.
Dr Walkley's (who did not give evidence) report of 3 July 1996 says Mr Caruso conceded that the intensity of his lower back pain had diminished, although he suffered recurrent niggles of low back discomfort daily. Mr Caruso told Dr Walkley that he was coping satisfactorily with his 'selective' full‑time duties, although he was still required to bend fairly frequently. Dr Walkley reported Mr Caruso remained fit for work but said he must avoid re‑occurring bending, lifting excess weights and sustained partial lumbar forward flexion and that remained the position when Dr Walkley carried out a further review on 7 August 1996.
Ms Megson's report of 13 August 1996 indicated that Mr Caruso was managing well with all the duties required of him and recognised his limitations and was working within these. She said by the time of her closure report of 30 August 1996 Mr Caruso had successfully returned to the workforce, returning to his pre‑injury place of employment, undertaking full pre‑injury hours and duties for approximately 15 weeks. She noted he had undertaken duties which were not part of the original graduated return to work programme and managed well with those duties.
Dr Beinart's notes of 29 August 1996 refer to Mr Caruso avoiding heavy work and he was certified as unfit for normal duties but fit for restricted duties.
Dr Walkley noted in his report of 18 September 1996 that Mr Caruso had experienced less frequent back pain since August and he considered Mr Caruso was fit for full‑time work provided he avoided re‑occurring bending and lifting of weights in excess of 10 kg.
Dr Walkley saw Mr Caruso on 19 March 1997 and reported that there had not been any deterioration in Mr Caruso's condition during the past six months, presumably, according to Dr Walkley, because Mr Caruso was aware of the limitations imposed by his back injury and endeavoured to avoid recurrent bending and lifting as much as possible. Mr Caruso told Dr Walkley there were occasions when the 'pressure of work necessitated him performing activities beyond his recommended limits'. Dr Walkley noted that Mr Caruso had, until recently, continued to perform regular exercises and concluded that Mr Caruso had a 'minor degree of permanent disability of his lower back amounting to 5% non‑economic impairment of the function of his lower back'.
Dr Beinart reviewed Mr Caruso in October 1997 and noted he had let his exercise and gym programme slip, and there had been an aggravation of his lower back condition.
In October 1997 the defendant's insurer wrote to Dr Beinart asking whether Mr Caruso was fit for light duties. On 7 November 1997 Dr Beinart advised:
Mr Caruso informs me that he has been spending more and more time on the tools which involves heavy lifting, bending repetitively and working in awkward positions. He has lumbar degenerative disease with unstable discs at two levels. It is not possible to state with any certainty whether his current symptoms are as a direct result of any specific injury. I believe that an increase in his symptoms is due to the nature of the work he does.
With his unstable discs it is possible that he could be rendered symptomatic by such simple activities as defecating, coughing, sneezing or even bending over to do his shoe laces. The history I obtained was that his back was sore at times but generally he coped with his work duties, primarily supervisory, however as late he had been doing more work as a motor mechanic. He had freely admitted that he had become demotivated over the winter and ceased his exercise and gym programmes. He indicated his lower back had been building up again and that he was ongoing with episodes of exacerbation. He informed me that the other day prior to consult he had been hanging washing on the line and this had aggravated his back …
… Mr Caruso has unstable lower degenerative lumbar disc disease acquired as a result of the nature of his work, any minimal movement could render his unstable lower back symptomatic, indeed he informs me that his back is particularly sore after sexual activity.
If Mr Caruso is to continue any form of physical work it is important he maintains physical fitness and he maintains strength in his lumbar and abdominal muscles.
… I maintain that as long as he is required to perform activities which involve lifting, bending and working in awkward positions he would be prone to further injuries.
In answer to the query as to whether Mr Caruso was fit for light duties, Dr Beinart stated:
… Presently Mr Caruso has been certified fit for selected duties. He is not suitable to do activities which involve as mentioned previously lifting, bending and working in awkward positions; he will always be physically restricted to various degrees.
… Mr Caruso needs to concentrate on performing work activities which he is suited to that is as the workshop manager.
Dr Beinart's PMC of 27 November 1997 states Mr Caruso was fit to do supervisory work 'mainly'.
In May 1998, Dr Beinart noted Mr Caruso was undergoing an exacerbation of his symptoms.
In his correspondence to the insurance company of 24 June 1998, Dr Beinart noted Mr Caruso's low back condition was not stable and pointed out that although Mr Caruso was certified primarily to work in a supervisory capacity, he did manual, physical and mechanical work and he expected Mr Caruso would have recurring episodes of back pain, dependent on his level of physical activity, throughout his working career.
Dr Beinart reviewed Mr Caruso on 16 August 1999, and Mr Caruso was back working as a motor mechanic and the PMC of that date notes Mr Caruso was coping with his modified work duties and was fit to return to pre–disability duties but required further treatment.
In his report of 22 September 1999 Dr Beinart again acknowledged that Mr Caruso was back at work as a motor mechanic and repeated his earlier advice that Mr Caruso's back condition fluctuates in nature and is dependent upon his level of activity.
In the PMC of 25 October 1999, Dr Beinart notes that Mr Caruso was at risk of further injury but was coping with work duties. He was certified as fit to return to pre‑disability duties.
In his report to the insurance company of 1 November 1999, Dr Beinart noted that Mr Caruso informed him in October 1999 that he was coping with his work activities as a motor mechanic but experienced symptoms and difficulties at work and at home. Dr Beinart reported that Mr Caruso said he had ongoing lower back pain and discomfort, which fluctuated and was able to perform most activities but experienced lower back pain and stiffness which limited him at work, home and at sporting activities and Dr Beinart was of the opinion that Mr Caruso suffered from a 10% permanent residual disability of the lower back.
Mr Caruso consulted Dr Beinart in February 2000 saying he was doing more physical work and was certified as fit to return to pre‑disability duties, as he was on 16 and 21 November 2001.
In November 2001, Mr Caruso reported an exacerbation of his lower back which related to activities undertaken at work. The PMC of 21 November 2001 indicates Mr Caruso knew his own limitations and was fit to return to pre‑disability duties but required treatment. Dr Beinart's note for that consultation reveals Mr Caruso reporting that the pain was always in his low back but he had learnt over the last eight months to tolerate and manage it. In a latter report Dr Beinart states Mr Caruso told him at this consultation that he was able to pick and choose his physical activities and had learned to manage his low back pain.
In his evidence Dr Beinart confirmed he had made contact with the defendant and discussed alternate work options about this time, although he said this might have been done six or so months earlier.

Mr Caruso told Dr Beinart on 10 December 2001 that he was coping well at work and his employer was supportive.
The PMC of 14 January 2002 noted that Mr Caruso was coping on full duties and was fit to return to pre‑disability duties. Dr Beinart reported that, when reviewed on 14 January 2002, Mr Caruso stated he was coping well, especially with his work duties, with the occasional sore days, although Mr Caruso reported an occasion where he kicked a soccer ball and his lower back gave in.
In his report of 18 March 2002, Dr Beinart noted that Mr Caruso presented over the last two years on an infrequent basis and had learnt to manage his lower back pain through stretching and exercises and avoiding activities particularly in the workplace which aggravated his condition, namely repetitive lifting or bending and/or working in awkward positions. Dr Beinart repeated his opinion that Mr Caruso had an unstable intervertebral disc disease in his lower back and as his work involved bending, lifting and working in awkward positions, his lower back would be symptomatic at times and he would need to adhere 'strictly to … recommendations' to avoid further aggravation of his lower back condition and avoid the possibility of requiring surgery.
The PMC of 22 April 2002 notes that Mr Caruso remained at risk and should continue his exercise programmes and was fit to return to pre‑disability duties but required treatment.
On 30 July 2002 Mr Caruso reported suffering an exacerbation and Dr Beinart certified him as totally unfit for work for one day and fit for restricted duties from 31 July 2002 until 15 August 2002. The PMC was endorsed 'selected duties to be arranged'.
On 13 August 2002, Dr Beinart certified Mr Caruso as fit to return to his pre‑disability duties.
In the PMC of 23 September 2002, Dr Beinart noted the recent exacerbation had settled and stated that although Mr Caruso was fit to return to his pre‑disabilities duties, he should continue to do his stretches and exercises. Dr Beinart's notes of 21 September 2002 indicates Mr Caruso reported his back continued to niggle but he was able to manage, and that work was not too bad, and there was 'less pressure at work, boss doesn't interfere', and that he knew what activities to avoid, and asks for help.
On 6 November 2002 Mr Caruso saw Dr Home. Dr Home, who gave evidence, assessed a history of chronic mechanical low back pain of mild severity with intermittent episodes of recurrent more severe back pain of several weeks' duration occurring two or three times each year. Dr Home believed the symptoms were medically stable because Mr Caruso had reported similar interval and episodic symptoms over the past five years.
He did not find any discrepancy between Mr Caruso's presentation and the clinical findings and considered the only medical treatment required during periods of exacerbation was the use of anti‑inflammatory medication.
Dr Home said that:
After a short period of initial incapacity Mr Caruso largely continued with his full‑time pre‑accident duties with the assistance of a graduating return‑to‑work programme experiencing occasional periods of exacerbation occurring several days to a week up to several times per year.
He said Mr Caruso needed to take care to avoid heavy lifting and was fit to perform work as a mechanical workshop supervisor incorporating a 'hands‑on role.'
Dr Homes reported that between 1995 and 2002 Mr Caruso was fit to perform work as a mechanic and workshop supervisor on a full‑time basis and suffered a permanent impairment as a result of the 1995 incident of 10% loss of full and efficient use of the back in accordance with item 36A of sch 2 of the Workers' Compensation and Rehabilitation Act 1981 (the Act).

Findings as to Mr Caruso's working capacity as at 2 December 2002

Mr Caruso consulted Dr Beinart approximately 47 times after the 1995 incident.
In the seven years and three‑month period from 11 August 1995 to 2 December 2002, he was certified totally unfit for any work for seven days on 11 August 1995 (although he was only away for three days), approximately seven weeks from 6 March 1996 to 24 April 1996, 13 days from 7 May 1996 to 20 May 1996 and one day on 30 July 2002 making a total of approximately 12 weeks. For the vast majority of that period Mr Caruso was certified as fit for work in some capacity, albeit on many occasions requiring further treatment.
His back disability was considered to be permanent and assessed as between 5% (Dr Walkley) to 10% (Dr Home, Dr Beinart).
Each progressive medical certificate issued by Dr Beinart after 16 August 1999, except one, certified Mr Caruso as fit to return to pre‑disability duties. The one that did not (30 July 2002) certified him as totally unfit for work for one day and then to make a restricted return to work over a 15‑day period.
The defendant had been advised that Mr Caruso was at risk of further injury (Dr Beinart, 25 October 1999, 22 April 2002) and was likely to suffer re‑occurring episodes of back symptoms depending on the level of his physical activity (Dr Beinart, June 1998, Dr Edelman, November 1995).
Both certificates which stated Mr Caruso was at risk of further injury (25 October 1999 and 22 April 2002) also certified that he was fit for pre‑disability duties, but required further treatment.
The defendant knew Mr Caruso had an unstable intervertebral disc of the lower back which meant he was at risk of further injury from any activity which involved minimal movement, including activities such as defecating, coughing, sneezing or even bending over to do his shoe laces, and knew Mr Caruso would always be physically restricted to some degree.
The defendant also knew that work involving lifting, bending and/or working in awkward positions or in a sustained partial lumbar forward flex position (hereinafter referred to as the work restrictions or restricted work) could further aggravate Mr Caruso's lower back condition (Dr Beinart, Dr Walkley and Dr Home).
The defendant knew Mr Caruso's duties as the workshop supervisor with a hands‑on role, involved some bending, lifting, and working in awkward positions.
Although Dr Beinart's PMC certificates from 1999 onwards certified Mr Caruso as fit to return to pre‑disability duties, he was only able to return to pre‑disability duties because he was aware of his limitations, avoided the work restrictions, and was able to pick and choose the activities he performed.
This is the only conclusion that can be reached after considering the certificates and reports available to the defendant, which included advice that Mr Caruso was coping well as a workshop manager, although having to avoid certain activities (Dr Beinart, September 1995, January 1996) and was coping with the work load (Dr Beinart, August 1996), was aware of his limitations and avoiding recurrent bending and lifting as much as possible (Dr Walkley, March 1997), was coping and experiencing symptoms and difficulties yet he was able to perform most activities (Dr Beinart, November 1999), was coping in work duties modified (Dr Beinart, August 1999), was coping with work duties at present (Dr Beinart, October 1999), knew his own limitations (Dr Beinart, 21 November 2001), was coping better at work and his employer was supportive (Dr Beinart, December 2001), was coping on full duties (Dr Beinart, January 2002), coping well especially with work duties (Dr Beinart, March 2002), had learnt to manage his lower back pain through stretches and exercises and was avoiding lifting, bending and working in awkward positions (Dr Beinart, 18 March 2002) and was able to pick and choose his physical activities, and had learnt to manage his back pain even though it was constantly present (Dr Beinart, 18 March 2002).
I find that notwithstanding the 1992 and 1995 incidents, Mr Caruso was capable of working as a workshop manager with a hands‑on component because he knew his limitations, knew the work restrictions and tried to avoid them.

The events of 2 December 2002

Mr Caruso's evidence was that on 2 December 2002, whilst employed by the defendant, he arrived at work at around 7.30 am and completed some paperwork, cleaned some tools and started to perform a gas conversion on a vehicle located in the tune‑up bay.
He said that when Mr Lohf arrived the two of them pushed a vehicle, requiring cylinder head work, out of one of the bays so they could service two vehicles parked outside. Mr Caruso said he commenced a major service on one of the vehicles and Mr Lohf carried out a minor service on the other and when Mr Lohf completed that task, they pushed the vehicle requiring the cylinder head work back into the workshop so Mr Lohf could work on it.
Mr Caruso said he then finished servicing the vehicle he was working on and commenced servicing another vehicle and whilst that vehicle was on a hoist at chest height, he checked its wheel bearings and suspension. He said his feet were on the ground and his hands were on the front driver's side tyre in the 3.00 o'clock and 9.00 o'clock positions and he was rocking the tyre backwards and forwards when his right hand slipped off the tyre and he immediately experienced horrible pain from his back and leg and screamed out.
Mr Caruso said Mr Lohf was working in the next bay only feet away and turned around and said 'what's happening to you?' to which he replied 'I've just come away from the tyre and I have hurt myself' and 'I can't continue'. Mr Caruso said he went into the office to sit down but could not do so because of the pain and shortly after he informed Mr Blunt, one of his supervisors, and phoned Dr Beinart's rooms and drove to them.
In relation to that visit to Dr Beinart, Mr Caruso's evidence varied from not recalling what he said, to saying he told Dr Beinart the 'same thing as before' or 'it was the same incident' (ts 239, 459, 774, 893).
Mr Caruso said he was sure he told Mr Beinart about the incident of 2 December 2002 when he saw him the next day, 3 December 2002. He said he was not aware he had suffered a new injury on 2 December 2002 until he was told some time later.
Mr Lohf worked with Mr Caruso from about 1990 until about 2005 and said he was a mate but not a 'close, close mate' of Mr Caruso's. Mr Lohf's evidence was that when he arrived, Mr Caruso was working under the dash of a vehicle that was undergoing a gas conversion. His statement of 23 August 2013 (exhibits 12.70 ‑ 12.73), which he said was true, says that the two of them pushed a vehicle out of the workshop and later pushed the same vehicle back into the workshop shortly before Mr Caruso commenced servicing the vehicle he was working on at the time of the incident.
Paragraphs 8 and 9 of his statement says:
8.Whilst Anthony was working on the other cab that was at the time suspended on the end hoist I saw Anthony fall and yell. I asked Anthony what had just happened. Anthony told me his hand had slipped off the tyre whilst checking the cab's suspension.
9.Anthony was grabbing at his back and complaining about the pain he was in and said he had to go to the doctor. We went into the office from where Anthony rang his doctor. Anthony then contacted David our accountant who came down to the workshop to see Anthony.
In court Mr Lohf described what he saw:
… Just had like peripheral vision. There was checking suspension on movement of the tyres of a car and he sort of heard a yell and a bit of a stumble/fall and went over and said 'What's- what's your problem?' and he was saying it just slipped off the tyres and fell and he was holding his back.
When asked whether he actually saw Mr Caruso fall he replied:
Not in directly fall but when I was working at a peripheral eye vision ... you can see – could see there was a sudden movement and him yelling. (ts 1026 – 1027)
When a short time later he was asked to 're‑cap' he stated:
... I'm doing my job but there is a peripheral vision that you see ... he was checking the – the suspension or the – the steering or something like – the –the - why - well - any wheel wobbles and just - the peripheral vision is a sudden movement and a sort of sudden - just someone would suddenly move and him screaming and realised - happening - by the time we had looked over it was him. It was him that actually was falling.
… I can't recall if - falling right to the ground but he was - it was a - like a stumble. (ts 1037)
Under cross‑examination he said:
Peripheral vision, like not direct, you know, seeing directly in front of you but, you know to the - to the side of you, you are still seeing. You still see it and you still note it.
… its like you are doing something and something in the distance you do see and as a sudden movement and then him yell its, you know, you don't need to be a rocket scientist to have that vision there of hearing someone yell and something - and something you know a large - a large thing move suddenly and you see him bent over and almost on the ground you that, well (indistinct).
BOWDEN DCJ: Do you maintain that you saw Mr Caruso fall and yell - At the time yes. (ts 1050 ‑ 1051)
No‑one else witnessed this incident.

Subsequent investigations

Ms Miller, an ergonomist, gave evidence that she first saw Mr Caruso in November 2010. She was asked to look at the defendant's system of work to identify the risk factors relating to his work.
Ms Miller said she photographed Mr Caruso demonstrating the task he was performing at the time of the incident (exhibits 12.52 ‑ 12.69). She said Mr Caruso did not describe any hard physical exertion in performing this activity and said the task did not present a risk of injury to his lower back nor were there any risk factors associated with performing that particular action. Ms Miller said she could not think of any safer way of performing that task.
The defendant objected to any evidence from Ms Miller dealing with matters outside the task (checking wheel bearings and suspension) that par 6 of Mr Caruso's amended statement of claim alleges he was performing at the time he experienced pain. I provisionally received that evidence. In my opinion, it is admissible as it relates to the workplace and work systems in place when Mr Caruso was servicing the vehicle and experienced pain.
Ms Miller said Mr Caruso detailed the physical activities involved in the various duties he performed including servicing vehicles, doing gas conversions, replacing cylinder heads, doing tune ups, dealing with customers and dealing with representatives regarding spare parts.
She pointed out that working in flexed and twisted postures frequently and for long periods increases the risk of a 'manual handling injury' and the more frequently this is done and the longer the periods the greater the risk.
Ms Miller said a lot of the duties described by Mr Caruso involved working in the flexed position, with twisted postures and for long hours and this would have put him at quite a risk of injury.
Ms Miller said that if Mr Caruso was working in awkward postures, issues such as adequate staffing, correct equipment, and limiting the time working in those postures, would minimise the risk of injury.
Ms Miller said the risk of injury had been reduced with changes made to the workplace after the alleged December 2002 incident, including the use of a different type of car hoist, with a bar across the top and not the bottom, a transmission jack that had four castors rather than three and a change in the workshop layout so that only two bays were used for motor vehicles rather than three and the alteration of the workbench and the manner in which equipment was stored in the garage. She said these changes did not have any direct correlation to the work being performed by Mr Caruso at the time he experienced back pain.
Her conclusion was that the primary source of the risks of injury to Mr Caruso were the lengthy periods that he spent in flexed and twisted positions, the awkward handling of heavy items, the lack of space to fully open the driver's door in the third bay and lack of clear floor space under the hoists resulting in additional physical load.
Ms Miller said however that the specific task Mr Caruso was performing at the time he experienced back pain did not present a risk of injury.

What others were told about the 2 December 2002 incident

Dr Beinart - December 2002

Mr Caruso's evidence was shortly after the incident of 2 December 2002 he saw Dr Beinart in the latter's triage room. Dr Beinart could not recall if he saw Mr Caruso there or elsewhere in the surgery.
Dr Beinart's note of that attendance states 'No incident recurrence of spasm' (exhibit 8.19).
Dr Beinart's PMC of the consultation on 3 December 2002 states 'intervertebral unstable disc current unprovoked exacerbation' (exhibit 8.209). On the same day, he emailed the insurance company saying 'Anthony Caruso presented today in obvious distress with an unprovoked episode of spasm scoliosis in his low back' (exhibit 8.210).
Dr Beinart said he had no independent recollection of what he was told about the incident and was relying on his notes. He agreed Mr Caruso never told him of a specific incident occurring at work on 2 December 2002 and the first medical certificate was never issued because he viewed the occurrence as a continuation of the existing 1995 claim, which was why all his PMCs refer to the date of injury as 11 August 1995.

Dr Wong - January 2003

Mr Caruso consulted Dr Wong on 13 January 2003.
Dr Wong said he was not given a history of a discrete incident or accident occurring on 2 December 2002 and said Mr Caruso did not tell him he had been checking a tyre on a vehicle on a hoist or had immediate or sudden onset of pain.
Dr Wong's evidence was that he took verbatim notes of what Mr Caruso said and the latter told him:
In early December last year whilst working on a car in all sorts of awkward positions he noticed as the day progressed pain in the lower back and pain going into the left leg.

Dr Home - July 2003

In July 2003 Mr Caruso saw Dr Home. Dr Home's evidence was that Mr Caruso did not tell him a specific event occurring during December 2002 and his note records:
Mild back pain until early December 2002, at that time he experienced a further episode of rather severe lumbar back pain associated with a lumbar list.
In another portion of the notes the doctor has recorded 'In November he suffered a further disc protrusion', however he agreed he had mistakenly referred to November instead of December.

Dr Thomas - October 2005

Dr Thomas was first consulted in October 2005.
Dr Thomas said in evidence that he considered an accurate clinical history was critical. The history recorded by Dr Thomas was:
On this occasion [Mr Caruso] recalls checking for wheel bearing on a motor vehicle which was on a hoist. He was standing beneath the vehicle and with a hand on either side of the wheels moving the wheel backwards and forwards to see if there was any abnormal play … whilst carrying out these duties he experienced some pain in his back and within days of this episode was twisted with a scoliosis deformity of the back.

Mr Caruso – December 2006 statement

In December 2006 Mr Caruso provided a statement (exhibits 9.6 ‑ 9.15) for use in workers' compensation proceedings which contained, inter alia, the following:
27.On the 2 December 2002 I commenced my employment at my usual time at about 7.30 am I was required to carry out a service on a vehicle for a period of time checking all parts as required by the service manual working in awkward positions and confined spaces for long periods of time.
28.In about late morning I started suffering with pain in my lower back which progressed through the day shooting down my left leg.
In evidence, Mr Caruso said the statement was prepared by two different persons, from his then solicitor's office and he thought he would be able to elaborate on the statement when he gave evidence.

Dr Cheng - January 2007

When he gave evidence, Dr Cheng referred to his report which notes that when Mr Caruso consulted him on 25 January 2007 he was vague about the details of the original injury and when pressed, raised his voice and became more animated and 'related an incident when he spent all day bent over a car working on a cylinder head and stated when he got up at the end of the day he could not straighten up properly'.

Dr Cheng said his normal practice was to type the reports whilst the patient was in the room and then dictate the reports from the typed transcript.
He said Mr Caruso was expressing frustration at the system at the time of the consultation.

Mr Caruso - July 2009 statement

In July 2009 Mr Caruso provided a statement (exhibit 13) for use in the workers' compensation proceedings which contained, inter alia, the following:
32.On the December 2, 2002 I commenced my employment at my usual time at about 7.30am.
33.I was required to carry out a service on a vehicle checking all parts as required by the service manual working in an awkward position and confined spaces for a long period of time.
34.In about late morning I started suffering with pain in my lower back which progressed through the day with a new shooting pain which radiated down my left leg …
Mr Caruso said that although this statement provided more detail than the 2006 statement, it was prepared by his lawyers in circumstances where he was dealing with one lawyer one day and another lawyer on other days.

Ms Miller - November 2010

Ms Miller saw Mr Caruso in November 2010 and she says he told her he noticed back pain while checking the wheel bearings on a vehicle raised on a hoist and continued working but the pain increased and eventually he could not continue.
Ms Miller agreed Mr Caruso made no mention of his hands slipping off the tyre, or of immediately hurting his back or immediately stopping work.

Mr Harvey, Mr Cockburn, Mr Wigg, Mr Cox, and Mr Griffen

None of these witnesses had any recollection of any complaint made by Mr Caruso of an incident occurring on 2 December 2002.
The other witnesses called did not give evidence of what Mr Caruso told them occurred on 2 December 2002.

Events subsequent to 2 December 2002

Dr Beinart certified Mr Caruso as totally unfit for work from 2 December 2002 until 29 January 2003 and diagnosed a spasm scoliosis in the lower back in keeping with a known unstable intervertebral disc.
On 13 December 2002 x‑rays revealed that there was narrowing of the L5/S1 disc space with marginal osteophyte formation and a lumbar scan showed that at the L4/5 there was a left posterolateral disc protrusion and the disc appeared to impinge upon left L5 nerve root.
When consulted on 13 January 2003 Dr Wong concluded that Mr Caruso had suffered a left L5 radiculopathy and he subsequently performed a left L5 nerve root sleeve injection.
Dr Wong said in evidence that he had not been told of the accident of 18 September 1992 nor had he seen Dr Beinart's notes relating to the August 1995 incident until recently.
Dr Wong said scans after the 1992 and 1995 incidents do not show any pinched nerve, whereas the 2002 scan showed a true neurological problem.
Dr Wong said that prior to 2002 Mr Caruso suffered from 'good old fashion back pain' with some referred pain and occasional spasms but not sciatica, whereas the 2002 diagnosis was sciatica which was something new and had nothing to do with what occurred in 1992 or 1995.
Dr Wong said that the 2002 injury meant a disc has popped out. He said it could have been caused by activities as widespread as, inter alia, coughing, sneezing, unusual movements, turning, bending, lifting or twisting.
Dr Wong's root sleeve injection provided some relief and Mr Caruso was certified as fit to return to restricted work, primarily supervisory duties, with no lifting or repetitive bending or awkward positions on 29 January 2003.
However when reviewed by Dr Wong in February 2003, Mr Caruso was still experiencing difficulties and Dr Wong performed an L4/5 microdiscectomy and decompression of the left L5 nerve root which he said resulted in the loss of the left leg pain. However, Mr Caruso continued to experience dorsiflexion weakness. Due to this procedure, Mr Caruso was totally unfit for work until 1 May 2003.
On 1 May 2003 Mr Caruso commenced on light duties, working only four hours per day. He was certified as totally unfit for work from 22 to 25 May but resumed on four hours a day clerical duties on 26 May 2003.
The 14 June 2003 PMC revealed that Mr Caruso was fit for supervisory duties for a maximum of four hours per day and he remained in that condition until March 2004, his capacity described, interchangeably, by Dr Beinart as restricted, supervisory or clerical, although he was certified as totally unfit for two days from 4 July 2003.
In July 2003 Dr Wong noted Mr Caruso was still suffering mechanical back pain which seemed to have become worse subsequent to the operation resulting in uncontrolled spasms.
On 9 July 2003 Mr Caruso was reviewed by Dr Home. Dr Home believed there remained a prospect of further recovery with conservative treatment but was guarded about the prospects of full recovery and did not rule out the prospects of surgery. He believed Mr Caruso required supervised exercise and access to medication in the short to medium term.
Dr Home was of the opinion that Mr Caruso was fit to undertake selected clerical duties of up to four hours per day and believed there was a possibility, rather than a probability, that Mr Caruso would be able to increase his workplace activities over the next two to three months.
When reviewed in August 2003, Dr Wong noted that Mr Caruso was walking in a crooked fashion, so he conducted an MRI scan, after which he concluded that there was a possibility of low grade discitis. Dr Wong then referred Mr Caruso to Dr Golledge, an infectious disease specialist who was not called as a witness, although his report, tendered by consent, confirmed that diagnosis and Dr Golledge prescribed a course of antibiotics.
Mr Caruso's evidence was that he took large orange pills for about six months, one of the side effects being that he turned a jaundice colour.
Dr Beinart reported in September 2003 Mr Caruso's pain was better controlled and he was coping with four hours per day clerical duties.
Dr Golledge noted in October 2003 there had been some improvement in the back pain and MRI scans taken in October 2003 revealed the discitis was resolving. In December 2003 Dr Golledge thought it appropriate to stop the antibiotics.
Mr Caruso saw Dr Home again on 28 January 2004 and the latter noted an improvement in the symptoms, however Mr Caruso continued to experience low back pain associated with certain postures including standing and sitting and said that lifting heavy weights caused exacerbation of pain.
Dr Home noted that Mr Caruso was working four hours per day as a motor workshop manager and this involved occasional manual handling when bending over car bonnets and said Mr Caruso (described in his report as Mrs Caruso) was fit to undertake part‑time work, but was unlikely to be able to increase his hours of work unless his symptom tolerance improved. Dr Home remained guarded as to Mr Caruso's prognosis.
In April 2004 Mr Caruso's work hours were increased from four to five.
In June 2004 Dr Beinart reported that Mr Caruso was fit to work in a supervisory capacity as a workshop manager for a maximum of five hours per day and envisaged he would be able to return to full‑time hours in a supervisory position over the next six months. Dr Beinart reported that Mr Caruso's permanent residual disability would prevent him, in the foreseeable future, from returning to work in any physical nature particularly where he was required to bend over car bonnets or work in awkward positions as this would only aggravate his lower back condition and hasten the development of degenerative arthritis in his lower back.
In June 2004 Mr Caruso's hours were increased to six hours per day, and in July 2004 to seven hours per day. Dr Beinart remained of the opinion that although Mr Caruso was capable of undertaking full‑time work in a supervisory role, he was not capable of undertaking tasks of a physical nature on a permanent basis.
In October 2004, Dr Beinart noted there had been an increase in symptoms and Mr Caruso had reported that he was not able to limit his work and was bending over cars inspecting them. Dr Beinart certified Mr Caruso as not capable of working in his current position because he could not avoid physical activity and certified Mr Caruso as totally unfit for work from 20 October 2004 until 3 February 2005.
Ms Jones, an occupational therapist, was involved in Mr Caruso's vocational rehabilitation between November 2004 and December 2007. She had no independent recollection of Mr Caruso and relied solely on her records when she gave evidence.
She agreed there was no mention of a discrete accident occurring on 2 December 2002 in her documentation.
Her initial assessment of 4 November 2004 notes that Mr Caruso had increased presentation of symptoms and had been working in a supervisory role virtually full‑time for three to four months, however he was drawn into assisting mechanics perform their roles and found it difficult to avoid hands-on work, particularly because the contract drivers knew him and would seek his advice.
Ms Jones noted the medical opinion was that Mr Caruso should pursue alternative employment due to the hands‑on requirement of his workshop supervisory role and that his employer was unable to accommodate a position not involving some element of hands‑on mechanical work.
In January 2005 she continued to explore alternate employment and noted that testing showed Mr Caruso was capable of undertaking on‑the‑job training, short and academic courses and had above average verbal reasoning ability.
On 3 February 2005 Dr Beinart certified Mr Caruso fit for sedentary clerical duties as identified by Ms Jones, however, he subsequently certified Mr Caruso totally unfit from 24 February 2005 until 22 March 2005 and from the latter date as fit for a selected return to work programme.
Dr Home saw Mr Caruso again on 16 March 2005 and thought his symptoms would continue indefinitely. He noted that Mr Caruso was able to perform most daily living activities without disability, including taking the washing off the line and occasionally cook, although mowing the lawn could cause symptoms.
Dr Home reports state that Mr Caruso was fit for full‑time work of a semi‑sedentary nature and was able to undertake the duties of a warranty clerk or service advisor. He said Mr Caruso should seek jobs where he could alter his position between sitting and standing throughout the day and avoid repetitive lifting, prolonged stooping or repetitive forward bending or exposure to whole body vibration.
Dr Home said Mr Caruso's condition had stabilised and reported that Mr Caruso suffered a 15% permanent loss of full and efficient use of the thoracic and lumbar spine, pursuant to item 36A of sch 2 of the Act.
On 20 June 2005 Mr Caruso commenced a restricted work trial at Jason Mazda which lasted until 13 September 2005 to see if he was suitable to work as a warranty clerk or service advisor. Dr Beinart reported that Mr Caruso had significant concerns regarding this programme.
The trial was for four hours per day, three days per week. Mr Caruso was unable to attend the work trial on a consistent basis as he developed symptoms which prevented him from driving and there were periods when he was certified totally unfit to attend. Dr Beinart reported that this was not due to the nature of the work but due to the fluctuating nature of his symptoms causing an inconsistent ability to work. Dr Beinart noted that Mr Caruso did not have the capacity to work at that stage and it was not anticipated in the foreseeable future that his physical symptoms would improve.
Mr Caruso said he did not attend on all the days as his back was playing up and he was in pain and he could not concentrate and because it was winter and he was working on a bare concrete floor with no adequate seating facilities. He said he spent $600 or $700 of his own money so he was appropriately dressed for the work trial.
On 13 September 2005 Dr Beinart certified Mr Caruso as totally unfit for work and that remained unchanged until 9 February 2007 when he was certified as fit for a work trial as a service adviser/warranty clerk.
Dr Thomas, a neurosurgeon, saw Mr Caruso once only on 17 October 2005. He said in evidence it was undisputed that a disc protrusion occurred by December 2002 as it was shown in the scan of 13 December 2002 and blood tests. He said this injury was exacerbated by post‑operative discitis which caused consistent low back pain and chronic and ongoing low back problems. He said the objective findings were consistent with the subjective presentation of complaints and symptoms.
In his reports he linked the disc protrusion to the events Mr Caruso had reported as occurring in December 2002. However, he said that after considering the history provided to Dr Beinart and his notes, whilst there was no doubt Mr Caruso suffered a disability due to a serious disc injury and had a significant injury, he could not relate it to a specific accident.
This change in position was brought about because Dr Thomas' initial opinion was based on the history provided by Mr Caruso that the August 1995 incident was the first injury Mr Caruso sustained and it was non‑specific causing only a few days off work. Mr Caruso, he said, told him he did not have a continuous low back problem and was only prone to back pain occurring twice a year and continued with his normal work as a workshop supervisor and mechanic.
Dr Thomas acknowledged that having read Dr Beinart's notes it was clear from the history provided to Dr Beinart that Mr Caruso's pre‑2002 back pain was more serious than he initially thought.
After reviewing Dr Beinart's records showing there had been no specific incident in December 2002 and over 40 entries relating to the previous back problem between 1995 and 2002, Dr Thomas said it was clear there had been an ongoing saga of back problems which were significant and influenced Mr Caruso's ability to work.
Dr Thomas said he now considered Mr Caruso had a chronic and established back problem leading up to the disc rupture in December 2002 and, having seen Dr Beinart's records, the evidence suggested the 2002 injury was not a work‑related incident in the way he had previously thought.
He said:
I don't find that I am in a position to pick out what I considered to have been a relatively minor incident in 1995 as the sole cause of Mr Caruso's problems. I mean for a start he had an injury in 1992 I believe as well … and – and these incidences were of some significance but to point to them as being the ultimate cause of a very serious back problem that did arise, I would find very difficult. Rather, I tend to ascribe it to in a very vague way you have to say because he works as a mechanic, or was working as a mechanic, this entails the stress on his spine many times. And that ultimately this may well have been important in what happened. It is a fact of life that people who work in more physical jobs will end up with these sorts of injuries. Now, whether they happen on lifting an engine block or when they get out of bed and sneeze, you know it is something that nevertheless the incidence will be greater in people involved in those forms of employment. And I feel that has to be a consideration. (ts 580)
He said it was hard to ascribe the injury to any one particular cause.
When asked if he still considered the 1995 injury 'more trivial', he replied:
Well, I do really, I've just said that rather than pointing to that as the root cause of all Mr Caruso's problems I see it as more a cumulative thing through his work in the years leading up to the crisis rather than- I - find it very hard to point to a single incident. (ts 581)
Dr Home reviewed Mr Caruso on 29 March 2006 and noted there had been little progress in his vocational rehabilitation over the past 12 months and no improvement in his medical condition and he believed Mr Caruso had reached maximum medical recovery and there was only a slim likelihood of improvement over the next two to three years.
Dr Home said that with suitable attention to ergonomic posture, and altering his posture throughout the working day and avoiding excessively cold conditions, Mr Caruso could pursue work of a semi‑sedentary nature up to full‑time hours with work hardening and reconditioning (ts 996). He said with re‑training a wider range of occupations would be available.
Ms Jones organised a work trial with Giant Autos to commence on 10 October 2006, however Mr Caruso became anxious and concerned regarding the support he would receive and felt that he was unable to carry out the placement, so the work trial did not proceed.
Ms Jones organised a further work trial at Centre Ford, which was due to start on 12 February 2007, however Mr Caruso was unable to attend on that date because he suffered an exacerbation of his lower back pain and was certified as totally unfit from 12 to 15 February 2007.
The work trial ultimately commenced on 23 February 2007 and was interrupted due to further exacerbations suffered by Mr Caruso in March and June 2007 and the general lack of work and, on occasions, the supervisor's unavailability.
Ms Jones' note revealed that Mr Caruso was coping with the trial but was frustrated that he was not doing more and reveals that Mr Caruso was unable to attend for any full week of the programme, and there were lifting components that he was unable to perform.
By 1 June 2007 Dr Beinart certified Mr Caruso unfit to attend the work trial for another five days and noted that Mr Caruso was frustrated.
Mr Caruso's worker's compensation payments ceased on 26 June 2007, and on 28 June 2007 Dr Beinart certified Mr Caruso as totally unfit for work and that position continued until 19 March 2008 when the certification changed to unfit for pre‑disability employment.
Ms Jones noted that vocational rehabilitation had not been able to achieve a full‑time return to work in alternate capacities and that Mr Caruso had not demonstrated a capacity to consistently attend the workplace on a three‑day per week basis and ceased her involvement.
In May 2011 Dr Home reviewed Mr Caruso. He said Mr Caruso's condition had basically remained the same and said Mr Caruso had become incapacitated from his pre‑1995 employment and was restricted to sedentary or semi‑sedentary work. Dr Home said there was no medical reason why Mr Caruso was not able to persist with his work trial or work at least part‑time hours, 20 hours per week, and believed that motivational factors may have affected his participation.
He said that with suitable attention to ergonomic posture and avoidance of excessively cold conditions, Mr Caruso should be able to work up to full‑time hours as a warranty officer, fleet manager, customer service officer or sales representative. In evidence he confirmed that exhibit 19 contained 11 occupations that Mr Caruso was fit to perform (ts 997).
Dr Home said Mr Caruso was able to undertake light domestic chores and light maintenance activities but may have difficulties engaging in maintenance of motor vehicles or heavy gardening and should avoid lifting, carrying, pushing or pulling heavy objects and should be encouraged to return to an active exercise programme.
He said that if the 2002 incident had not occurred, it was more likely than not that as a result of the 1995 incident Mr Caruso would have experienced episodic pain but not the more severe disability that arose as a consequence of the aggravation in December 2002.
Dr Beinart's evidence was that when he last saw Mr Caruso in April 2010 he was unsuitable for work of a mechanical nature where he is required to place undue load strain on his lower back due to repetitive bending, heavy lifting or an awkward posture.

The defendant's managers

Mr Griffin, Mr Harvey, Mr Cockburn, Mr Wigg, and Mr Cox were all called as witnesses by the defendant and held, at various times, management responsibilities over Mr Caruso.
Mr Griffin was the managing director of Taxi Industry Co which traded as Black & White Taxis, and took over Green & White Taxis in 1992, until he sold his interest in about 2000 to the defendant.

Pursuant to the SSRI rating Dr Fitch made her assessment of 20% and whilst I generally prefer her evidence to that of Dr Cheng who assessed a 10% impairment, I agree with Dr Cheng's findings that there may be some improvement if there is a return to work and, accordingly, I assess the permanent psychiatric impairment at 17 1/2% bearing in mind the factors I have referred to.
Combining the item 36A back disability (item 36A ratio to the prescribed amount is 100% pursuant to s 93D(3)) and the psychiatric disability provides a degree of disability (s 24, s 25, s 93D(2)(a)(ii), (3)) (17 1/2% + 5% = 22 1/2%) of less than 30% but greater than 16%.
Pursuant to s 93F the restrictions on awarding damages if the disability is less than 30% apply and there is a cap of $434,160 on damages, I would be required to proportion the amount of damages according to the severity of the disability bearing in mind the maximum amount that may be awarded only in the most extreme case of a disability of less than 30% in degree.
The injury has restricted Mr Caruso from engaging in heavy physical activity in the workplace. He has been involved in mechanical work essentially all of his working life. He has no formal qualifications and has restrictions to his sporting and domestic activities and has suffered a loss of earnings and future loss of earning capacity and past medical and future treatment costs.
Mr Caruso's disability is to be compared with the range of disabilities of a kind that might qualify as a most extreme case of a disability of less than 30% in determining whether proportionality ought to be applied. The quantum of economic loss is relevant but not determinative in assessing the relative severity of an injury (see Murray River North Pty Ltd v Midgley [2006] WASCA 104; Lockyer v Marshall (2004) 37 SR (WA) 90.
For the purposes of the provisional assessment I am satisfied that the 'severity of the disability', having regard to the overall economic and non‑economic consequences to Mr Caruso, places his injuries in the 'most extreme case of a disability of less than 30%', and therefore as the damages assessed of $441,422 exceeded the prescribed amount of $434,160, the 'cap' would apply and my provisional assessment of damages would be limited to $434,160, however, as I have said, I do not consider that I am required to make that determination and my provisional assessment of damages is $441,422.
In accordance with these reasons, I dismiss Mr Caruso's claim.