Castelluzzo v Pbc Demolition & Hire Pty Ltd & Ors No. DCCIV-94-154 Judgment No. D3570
[1997] SADC 3570
•28 February 1997
Court
DISTRICT COURT OF SOUTH AUSTRALIA
Judgment of His Honour Judge Robertson
Hearing
01/07/96 to 05/07/96, 08/07/96 to 12/07/96, 15/07/96 to 16/07/96, 01/08/96.
Catchwords
Personal injuries - left shoulder and lower back - partial dislocation of the left shoulder; injury to disc in the lumbar spine - mild chronic depression - 17 year old male at the time of accident employed as a demolition labourer - incapacitated for heavy labouring by reason of injuries - failed to mitigate loss - whether residual earning capacity was exercised - whether congenital abnormality prevented plaintiff from continuing in heavy manual labouring. Pain and suffering and loss of amenities $45,000 - loss of earning capacity $3,455 - loss of future earning capacity $100,000 -future medical expenses $2,000 - special damages - $4,902.80 - total assessment $155,357.80 - after deductions $137,989.69 Receipt of payments from WorkCover - whether payments made by virtue of the provisions of the Workers Rehabilitation and Compensation Act 1986 - whether payments received from WorkCover characterised as compensatory or ex gratia - whether payments should be deducted from past loss of earning capacity.ISSUE ESTOPPEL Whether doctrine of Issue Estoppel applies as a result of a decision of a member of the Workers Compensation Review Panel - effect of different parties in proceedings before Workers Compensation Review Panel.
Materials Considered
• Workers Rehabilitation &; Compensation Act s.3, 30 and 54 and Schedule 1 (Transitional Provisions) ;
• Workers Compensation Act 1971 s.82 and 84 ;
• Mitsubishi Motors Australia Ltd v Harbord and Kowalski Judgment No. S5895;
• Administration of Papua New Guinea v Daera Guba (1973) 130 CLR 353;
• Fox v Wood (1981) 148 CLR 438;
• Egglestone v Harley Engineers Pty Ltd &; Merrett (1979) 21 SASR 51, referred to.
• Hoystead v Commissioner of Taxation (1926) AC 155;
• Simos v National Bank of Australasia Ltd (1976) 45 FLR 97;
• Australia and New Zealand Banking Group Limited v Westpac Banking Corporation (1987-1988) 164 CLR 662;
• David Securities Pty Ltd v Commonwealth Bank of Australia (1991-1992) 175 CLR 353;
• Muschinski v Dodds (1984-1985) 160 CLR 583;
• Gipson v Broken Hill Proprietary Company Limited (1988) 120 LSJS 458;
• Medlin v State Government Insurance Commission (1995) 182 CLR 1;
• Wade v Allsopp (1976) 10 ALR 353;
• Mathewman v Australian National Railways Commission (1987) 135 LSJS 94;
• Versace v Messer (1993) 172 LSJS 409;
• Malec v J.C. Hutton Pty Ltd (1990) 169 CLR 659;
• Manser v Spry (1994) 181 CLR 428;
• Blair v Curron (1939-40) 62 CLR 464;
• National Insurance Co. of New Zealand Ltd v Espagne (1961) 105 CLR 569;
• Redding v Lee (1982-1983) 151 CLR 117;
• Adams v Ascot Iron Foundry Pty Ltd (1968) SR (NSW) 120;
• Bassanese v Freightbases Pty Ltd (1982) 29 SASR 300;
• Kassos v State of South Australia (1982) 29 SASR 375;
• Public Transport Commission v J Murray More (NSW) Pty Ltd 132 CLR 336, applied.
• Campbell v Nangle 40 SASR 161;
• XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1984-1985) 155 CLR 448;
• Martin v Stratman and Manning Judgment No. S3645, considered.
Representation
Plaintiff Robert Steven CASTELLUZZO:
Counsel: Mr T. BRYANT; Ms E.F. NELSON, Q.C. and Mr T. BRYANT - Solicitors: ANDERSONS
Defendant PBC DEMOLITION &; HIRE PTY LTD:
Counsel: Mr P. HEINRICH - Solicitors: MINTER ELLISON
Defendant BAULDERSTONE PTY LTD:
Counsel: Mr P. HEINRICH - Solicitors: MINTER ELLISON
Defendant KABANI PTY LTD:
Counsel: Mr P. HEINRICH - Solicitors: MINTER ELLISON
DCCIV-94-154
Judgment No. D3570
28 February 1997
(Civil)
CASTELLUZZO V PBC DEMOLITION AND HIRE PTY LTD, BAULDERSTONE PTY LTD AND KABANI PTY LTD
Civil
Judge Robertson
On 17 July 1987 the plaintiff was injured in the course of his employment with the first defendant PBC Demolition and Hire Pty Ltd ('PBC').Whilst working for PBC at the State Bank Centre building site on the corner of King William Street and Currie Street Adelaide the plaintiff fell through a hole in the ground floor to the basement floor below.As a result of the fall the plaintiff suffered injuries.He brings this action at common law for damages for personal injury, loss and expense.Each of the defendants have admitted liability to the extent that the plaintiff is to recover against the defendants 95% of his damages as assessed.The purpose of the hearing was to have the plaintiff's damages assessed.
At the date of the accident the plaintiff was 17 years of age.He had been working for approximately six months.He left West Lakes High School at the end of 1986 having completed Year 10.He commenced work with PBC shortly thereafter.PBC was a company operated by the plaintiff's father, Peter Castelluzzo.PBC was engaged in a wide variety of work including demolition of buildings and other structures, earthmoving, excavations and the underpinning and shoring-up of structures.The plaintiff was employed as a labourer.His work involved heavy manual labour.It included the use of jackhammers, sledge hammers, crowbars, pinch bars and other tools associated with heavy manual labour.
At the time of the accident the plaintiff was engaged in demolition work on what was known as the Elder's building in Currie Street, Adelaide.He was in the process of picking up and carrying a piece of ply wood lying on the ground floor when he fell through a hole in the floor and landed on the concrete basement floor below.The plaintiff described the dimensions of the hole through which he fell as being approximately 500 millimetres by 500 millimetres.He estimated he fell a distance of between 10 and 14 feet.
The plaintiff did not receive medical treatment immediately.His employer arranged for a taxi to transport him to the surgery of his general practitioner, Dr Stephan.Dr Stephan gave the plaintiff a general physical examination.His extensive abrasions were treated by dressings and antiseptics.Dr Stephan, who gave evidence, states that the plaintiff, during the course of the consultation, complained of lower back pain and pain to the left arm and shoulder.However, no treatment was given to the plaintiff other than the dressing of his abrasions.After the consultation with Dr Stephan the plaintiff went home and rested for some days.
Some ten days after the accident the plaintiff returned to work. On his return to work he was placed on light duties.He states that he was unable to do the heavy work which he undertook before the accident because of the pain he was suffering in his left shoulder and his back.After his return to work he had periods of absence from work due to the effects of his injuries until early October 1987.After that time he remained continuously at work until late March 1988. Thereafter there were some further absences from work from time to time.During the periods he was at work the plaintiff remained on light duties.
Apart from the bruises and abrasions suffered in the fall, the plaintiff says he suffered injuries to his left shoulder and lower back.It is said by the plaintiff that serious consequences have flowed from these injuries.With regard to the shoulder it is the plaintiff's case that, as a result of the fall, he suffered a dislocation of the left shoulder and as result of the initial injury he continued to suffer subluxations of the left shoulder until he underwent surgery on 2 August 1990.The plaintiff also claims that his lower back was severely injured in the accident and that he continues to suffer pain and discomfort therefrom.In addition the plaintiff claims to have suffered a mild depression.The plaintiff claims that as a result of the injuries he has suffered a substantial loss of his earning capacity.
In June 1990 Mr Glen Maguire, an orthopaedic surgeon, diagnosed the plaintiff as suffering from a cartilaginous and bony Bankart's deformity associated with a partial rupture of the superior gleno-humeral ligament of the left shoulder. On 2 August 1990 the plaintiff underwent surgery, performed by Mr Maguire, to repair the damage to his shoulder.From the observations that Mr Maguire made during the course of the surgery he formed the view that there had been repeated episodes of subluxation of the shoulder prior to the surgery.In lay terms a subluxation is a partial dislocation of the shoulder.The surgery was successful in that the plaintiff has not suffered any further partial dislocations since that time.
It is the defendants' case that whilst it is clear that the plaintiff has suffered at some time an injury to his left shoulder, such injury did not arise from the accident.The defendants say that the injury to the plaintiff's left shoulder occurred in some event after the accident and unconnected with his employment.However the defendants do not identify the event in which they say the plaintiff suffered the injury.With regard to the back injury the defendants allege that if the plaintiff did injure his lower back, the plaintiff recovered from the injury soon after the accident.The defendants deny that the plaintiff suffered from depression.The defendants allege that the plaintiff has no continuing disability from any injuries the plaintiff may have suffered.The defendants' case is that if the plaintiff suffered injuries during the fall then he recovered shortly thereafter. The defendants deny that the plaintiff has suffered a substantial loss of earning capacity.
As I have stated, one of the issues between the parties is whether the plaintiff suffered the injury to his left shoulder in the fall.The defendants point to a number of factors, including what they say is an absence of complaint by the plaintiff regarding his shoulder following the accident to support their submission.They further rely on the opinion of Mr Humble, an orthopaedic surgeon, that the plaintiff could not have suffered the injury at the time of the accident.This issue raises a direct challenge to the credit of the plaintiff for he has given evidence that he felt pain in his left shoulder at the time of the fall and thereafter.Furthermore, that shortly after the fall the shoulder commenced to partially dislocate.The plaintiff's evidence is that these partial dislocations continued until his shoulder was repaired in the surgery.Counsel for the defendants, Mr Heinrich, has submitted that the plaintiff is not to be believed when he says that he suffered a serious injury to his left shoulder in the fall.Furthermore Mr Heinrich submitted that the plaintiff should not be accepted generally as a credible witness.
As the plaintiff's credit is a central issue in the case it is essential that I indicate my findings on the plaintiff's credit at this early stage of my reasons. In considering the plaintiff's evidence it is necessary to examine it in the context of the plaintiff's intellectual capacity.Ms Deborah Lawton, a psychologist gave evidence that the plaintiff's intelligence was in the low average borderline range.By borderline she was of the opinion that he had a very low level of intellectual ability.Her opinion on this subject was not disputed.Ms Lawton said that he could understand words both orally and writing but at a lower level of comprehension.Dr Kutlaca, a psychiatrist, was of the opinion that his IQ was low average and that he had a limited intellectual ability.He said that the plaintiff was towards the lower end of the average range.Dr Burvill, a psychiatrist called by the defendants, indicated that whilst the plaintiff was co-operative during a consultation he had with the plaintiff, he found that the plaintiff "... had difficulty in understanding questions unless they were put to him in a quite simplified manner ...".He said that he found that the plaintiff had difficulty in comprehending questions and that he had to rephrase them several times although he considered that the questions were not out of the ordinary in the way that he put them.
My observation of the plaintiff was that he tried to answer the questions put to him truthfully.There is no doubt that on occasions he had trouble remembering events.I did not gain the impression that when he stated that he could not remember that he was attempting to obtain refuge by answering in that way.I thought he genuinely could not remember.He was asked about the many events which took place between seven and nine years ago in much detail.The cross-examination of the plaintiff was searching.
There were some apparent inconsistencies in some of his answers.At times he was unable to provide a clear picture on the subject to which he was directed. However even with those imperfections and others in the plaintiff's evidence I never formed the view that he was deliberately giving false evidence.He appeared at all times to be attempting to provide truthful evidence.
I referred earlier to the observations of Dr Burvill that during his consultation with the plaintiff he found that the plaintiff had difficulty in comprehending questions which he did not consider to be out of the ordinary. This was precisely my impression when listening to the plaintiff give evidence. I felt that his level of comprehension of English was limited and this was demonstrated in some of his responses.There were also times when his responses did not appear to directly correspond to the question. The reason for this appeared to be his lack of comprehension of the question.I also felt that at times he had trouble in clearly articulating the response to a question.
In my opinion the inadequacies which appear on occasions in his evidence can, to a large extent, be explained by his lack of comprehension which appears to be associated with the level of his intellectual capacity.Furthermore, I formed the view that the plaintiff was not a sound historian.His evidence that he had a satisfactory Year 10 at school when his results were poor is but one example.This deficiency together with the age of the events which he was asked to recall also provides, in part, an explanation for some of the inadequacies which appear in the plaintiff's evidence.However, having taken into account those inadequacies, as I previously stated, I formed the view that the plaintiff was being truthful when he attempted to answer questions.I accept him generally as a witness of credit.
Earlier I stated that the plaintiff suffered injuries as a result of falling through a hole in the floor of the building in which he was working and landed on the concrete basement floor below.The plaintiff's description of how he passed through the hole is not entirely clear.This is explainable by having to recall an event which involved a short moment in time some nine years ago. It is likely and I so find that he passed through the hole feet first.His body's progress through the hole was impeded for some short moment in time.In other words, he did not fall cleanly through the hole.In the course of passing through the hole he felt his left arm pull.The plaintiff landed on the concrete floor below.He finished up lying face down in some water on the basement floor.He immediately felt pain in various parts of his body including his left shoulder. The plaintiff continued to suffer pain in his left shoulder, back and other parts of his body in the period immediately following the accident.
During the consultation with Dr Stephan on the day of the accident the plaintiff complained of pain in his left arm and left shoulder.On his return to work some ten days after the accident he experienced some difficulty performing tasks because of pain in his left shoulder and back.In the period shortly following the accident until the surgery on his shoulder in August 1990 the plaintiff says that his left shoulder, from time to time, would "pop in and out".This would occur during the course of some activity.The plaintiff said that a simple activity such as opening a door would cause the shoulder to "pop out".He stated that each of these episodes was accompanied by pain.At times he would push the shoulder back into place.Mr Maguire says that the "popping in and out" episodes was the feeling experienced by the plaintiff when the shoulder partially dislocated.
On 30 April 1990 Dr Pisaniello, a general practitioner, and partner of Dr Stephan referred him to Mr Maguire.The plaintiff underwent surgery to repair the damaged shoulder on 2 August, 1990.After the surgery he was immobilised in a shoulder support for about six weeks.He was then referred to the Alfreda Rehabilitation Centre ("Alfreda") for treatment and rehabilitation.He attended Alfreda for some time.
The plaintiff has been left with an unsightly operative scar measuring approximately 13 centimetres in length and varying from .5 of a centimetre to 2 centimetres in width.The plaintiff does not like its appearance.He finds it unattractive and annoying.In the summer small splits appear in the scar.For some time he applied a cream to soften the skin but he no longer does so. Since the surgery he says that he has good movement in the shoulder but does not have complete overhead movement.The plaintiff says that the change of weather makes his shoulder feel numb.On occasions he suffers pain in the shoulder.It also makes some grinding noises.The plaintiff no longer suffers from partial dislocations of the shoulder.
Mr Maguire considers that the shoulder has as full range of movement except for a loss of 10 degrees external rotation in 90 degrees of abduction.This was brought about as a result of the operation where it was considered necessary to restrict the full external rotation to the interior of the shoulder.There is also a loss of 5 degrees of extension.Mr Maguire is of the opinion that the plaintiff has a 20% loss of function of his shoulder.He observed crepitus present and Mr Maguire was of the view that the plaintiff is developing osteo-arthritis in the shoulder which would continue to develop over the next 10-20 years.
It is clear from what I already said that I accept the plaintiff's evidence regarding the injury to his left shoulder.Shortly I will point to other evidence which, in my opinion, supports the plaintiff's evidence.In accepting his evidence I find that during the fall the plaintiff suffered trauma to his left shoulder.I further find that as a result of the damage to his left shoulder the plaintiff suffered pain in his shoulder at the time of the fall and that he continued to suffer significant pain and discomfort to his left shoulder in the period following the accident.I further find that the plaintiff suffered a number of partial dislocations of the shoulder during the period up to 2 August 1990 as a result of the injury he initially suffered. Finally I find that the injury to the plaintiff's left shoulder, which Mr Maguire diagnosed and treated operatively, was caused by the plaintiff's fall.
In dealing with the defendants' submission that the plaintiff did not injure his left shoulder in the fall Mr Heinrich submitted that the absence of any reference to the plaintiff's shoulder in the case notes of the plaintiff in the medical practice of Dr Stephan and Dr Pisaniello after 17 July 1987 and until 30 April 1990 gave support to that submission.I will consider that submission in more detail shortly.In the meantime, it is my view that the complaint by the plaintiff, when he consulted Dr Stephan on the day of the fall, that his left arm and shoulder were causing him pain is significant.Whilst standing alone such evidence could be viewed as equivocal in the sense that it may be an indication of a serious shoulder injury or it may only be an indication that the plaintiff suffered bruising to his shoulder.However when it is viewed with other objective evidence such as that given by Ms Catherine Kimber, the physiotherapist at Alfreda, then it tends support the plaintiff's evidence that he seriously hurt his shoulder in the fall.
Mr Heinrich further submitted that the absence of complaint by the plaintiff whilst undergoing treatment and rehabilitation procedures at Alfreda also supports his primary submission that the plaintiff's left shoulder was not seriously injured in the fall.However the evidence discloses that the plaintiff did make a complaint regarding his left shoulder whilst he was attending Alfreda.In early 1988, the plaintiff consulted with Mr Gordon Morrison, an orthopaedic surgeon, with regard to his back injury.He attended at Alfreda a short time later following the advice of Mr Morrison.He attended Alfreda for some months.The purpose of attending Alfreda was for the plaintiff to receive treatment and undertake rehabilitation programmes for his back injury.In April 1988, during the course of his attendance at Alfreda he was examined by Ms Catherine Kimber specifically in relation to his back.Her notes made at the time of the examination disclose that the plaintiff complained of localised left shoulder pain.As a result of that complaint she examined the plaintiff's shoulder.Ms Kimber recorded that the plaintiff suffered substantial pain with internal rotation and horizontal abduction of the shoulder.She administered some ultra sound treatment to the plaintiff's left shoulder.The next day the plaintiff informed her his shoulder had improved.
There is other evidence of complaints by the plaintiff regarding his shoulder. Mrs Lynley Kielesinski, an aunt by marriage of the plaintiff, stated that about a month after the accident the plaintiff had complained to her that he was suffering pain in his shoulder and back.Further Mr Peter Castelluzzo, the father of the plaintiff, whilst stating that the plaintiff regularly complained that he was sore all over also specifically said that the plaintiff complained about his back and shoulder hurting.Once again this evidence tends to lend support to the plaintiff's evidence that he seriously injured his left shoulder in the fall.
As I mentioned earlier, Mr Heinrich submitted that the absence of any reference in the case notes of the plaintiff kept in the practice of Drs Stephan and Pisaniello of the plaintiff's left shoulder between 17 July 1987 and 30 April 1990 (the date when Dr Pisaniello referred the plaintiff to Mr Maguire) supports the contention that the plaintiff did not suffer a serious shoulder injury in the fall.The case notes were admitted into evidence.They do not disclose any reference to the plaintiff's left shoulder other than the entries for 17 July 1987 and 30 April 1990.The plaintiff said that he did mention his shoulder to his general practitioner on other occasions but was informed that the treatment of his back was to take priority.The plaintiff said that during this time he was experiencing greater discomfort in his back at the time than his shoulder.
In this period the plaintiff mainly consulted with Dr Stephan.Dr Stephan, in his evidence, indicated that he did not have any recollection that the plaintiff made any complaint about his shoulder after 17 July 1987.He said that if the plaintiff had made a complaint regarding his shoulder, after that time, which he considered significant, then he would have made an entry in the case notes.In relation to the plaintiff's evidence that he was informed that treatment to his back should take precedence to his shoulder Dr Stephan's evidence is confusing.At one point he said that he had a vague recollection that it was decided to concentrate on the plaintiff's back injury.However, in cross examination he said he had no definite recollection that he advised the plaintiff that the shoulder should be left and concentration should be aimed at the back injury although he could not rule it out as a possibility.
The absence of any reference to the shoulder in the case notes between 17 July 1987 and 30 June 1990 is difficult to understand.The evidence of Mrs Kielesinski suggests that the plaintiff was suffering pain in his shoulder area a month after the accident.Furthermore, the evidence of Ms Kimber demonstrates that the plaintiff was having trouble with his shoulder some nine months after the accident.
There may be a number of explanations for the absence of any reference to the shoulder.Whatever may be the correct explanation I must say that I did not form the opinion that the plaintiff was giving deliberately false evidence when he said that he raised the problem of his shoulder with Dr Stephan and was told that the plan was to concentrate on his back injury.Perhaps the explanation for the absence in the notes was that the plaintiff failed to express his problem in such a manner that Dr Stephan's attention was drawn to it to the point that he felt he should record it in the notes.The evidence does not disclose on how many occasions he raised the issue of his shoulder or what he said.His evidence discloses that his greater discomfort came from his back injury.Some assistance may be gained in searching for an explanation from the evidence of Dr Pisaniello regarding the consultation with the plaintiff on 30 April 1990.On that occasion the plaintiff had consulted him for an allergic rash.Dr Pisaniello said that the plaintiff "more or less in passing" mentioned that he was having problems with his left shoulder.The plaintiff then disclosed to Dr Pisaniello that the shoulder had dislocated approximately twelve times since the fall.
It is possible that the plaintiff is mistaken when he says that he raised the shoulder injury with Dr Stephan after 17 July 1987 and Dr Stephan indicated that the treatment of the back should take precedence.I have already said that in my opinion the plaintiff is not a good historian.The consultations with Dr Stephan took place over six years prior to the trial.That is a long time. However, whatever may be the correct explanation, I am satisfied that the plaintiff was not attempting to deliberately mislead when giving this evidence. In my opinion he genuinely attempted to give his evidence accurately.In any event, whatever is the true position, I have taken this issue into account in forming my opinion that the plaintiff was generally a witness of credit and I have taken it into account in finding that the plaintiff did suffer a serious shoulder injury as a result of the accident.
On the occasion of Dr Stephan's consultation with the plaintiff on 17 July 1987 Dr Stephan gave the plaintiff a general physical examination.That examination did not disclose the plaintiff had suffered a dislocation (totally or partially) of his left shoulder.The defendants submit that this is a further indication that the plaintiff suffered no such injury to his shoulder during the fall.Dr Stephan described the physical examination of the plaintiff's limbs, which included his left arm, as cursory.He did not explain what was involved in his physical examination of the left arm.The plaintiff had during the course of the consultation complained that he was suffering pain in his shoulder.However there is no evidence that Dr Stephan specifically examined the plaintiff's left shoulder.
Mr Maguire's opinion was that when the plaintiff first injured his shoulder that the shoulder joint did not remain out of its socket.His opinion is that it did not go completely out of the socket.He said it would have gone out and in again.Mr Maguire felt that was important.I accept that opinion.
I pause here to indicate that I accept the opinions of Mr Maguire regarding the plaintiff's shoulder.Where those opinions conflict with any other medical opinion regarding the shoulder I prefer those of Mr Maguire.I will return shortly to a consideration of the medical evidence and the opinions of the organic doctors.
Mr Maguire stated he did not think the dislocation of the plaintiff's shoulder was diagnosed prior to the plaintiff consulting with him.He further said that "diagnosis of shoulder problems is not too good by and large".Mr Maguire further stated that unless a test known as the anterior front apprehension test was performed the diagnosis would be missed.The following answer given by Mr Maguire during cross examination provides the key to why Dr Stephan did not, during the consultation on the day of the accident, diagnose the plaintiff as suffering from a dislocation of his left shoulder:
"A. He would have to do the proper test, which was to externally rotate and extend the shoulder.If he didn't do that - just asking someone to lift forward and sideways means nothing, because if the shoulder did not go out fully in the first instance the symptoms and signs would not have been that dramatic initially."
There is no evidence that Dr Stephan performed the anterior front apprehension test on 17 July 1987.The inference, arising from his description of his physical examination is that he did not.If Dr Stephan did not subject the plaintiff to the anterior front apprehension test then this is the explanation for why Dr Stephan failed to diagnose the plaintiff as suffering from a dislocation of his left shoulder on 17 July 1987.
The defendants also submitted that the absence of complaint by the plaintiff regarding his shoulder during the time he attended at Alfreda during the first half of 1988 is a further demonstration that the plaintiff did not suffer the shoulder injury, which was subsequently diagnosed by Mr Maguire, in the accident.I should point out that such a submission suffers an immediate set back because, as I recounted earlier,Ms Catherine Kimber gave evidence of a complaint of shoulder pain by the plaintiff whilst he was at Alfreda.She further elicited pain when she subjected the plaintiff's shoulder to physical examination.
What Mr Heinrich directed attention to when making this submission was that there was no complaint regarding the shoulder recorded by Dr Lee, the medical practitioner involved with the plaintiff at Alfreda, Mr Wilkinson, one of the physiotherapists treating the plaintiff and Mr Cox an occupational therapist. In considering the evidence of each of these witnesses it is important not to lose sight of the fact that the plaintiff was sent to Alfreda for the purpose of dealing with his back injury.The plaintiff was aware that he was attending Alfreda for his back injury.The treatment and rehabilitation programmes focused on the plaintiff's back injury.A reasonable explanation of the absence of record of the shoulder in Dr Lee's notes could be that the plaintiff, in responding to questions, was focussing on his back injury.Mr Wilkinson was of the opinion that some of the exercises would have brought some complaint from the plaintiff if there was a problem with his shoulder. However, there is no evidence that he carried out what Mr Maguire described as the anterior front apprehension test to his left arm.Mr Maguire and Dr Fry have both stated that the plaintiff could have, during the period after the accident, undertaken various forms of physical activities involving his left shoulder which would not have caused him any problems.As there was no evidence that this test was performed by Mr Wilkinson then it is understandable that the plaintiff did not complain when undertaking some of the exercises with Mr Wilkinson.As far as Mr Cox is concerned, once again, in his initial assessment on 23 March 1988 the focus was on the reason for the plaintiff being sent to Alfreda, namely his back injury.He was unable to recall the type of questions that he asked the plaintiff in the course of the assessment.He acknowledged that his focus was on the plaintiff's back.Mr Cox did not discount the possibility that the shoulder was mentioned.What he said was that if the plaintiff had reported a shoulder problem which he considered significant then he would have been likely to have made reference to it in his notes.Once again, a reasonable explanation for the absence of a record of complaint by the plaintiff regarding his shoulder during the assessment with Mr Cox could be that both he and the plaintiff were focussing on his back injury.
In support of their assertion that the plaintiff's shoulder injury did not arise from the fall, the defendants also point to the absence of any reference to a shoulder injury in a written claim form dated 27 August 1987, signed by the plaintiff and lodged with the Insurance Assistance Committee of the State Government Insurance Commission ("the 1987 claim form") and a written Notice of Disability form dated 2 May 1990, (the "WorkCover Disability Form") signed by the plaintiff, and directed to the Worker's Rehabilitation and Compensation Corporation of SA. ("WorkCover").In the 1987 claim form the only reference to an injury is "Lumber (sic) Spine Pain".In the WorkCover Disability Form the only reference to an injury is "Lower Back Injury".There is no reference to a shoulder injury.With respect to the 1987 claim form the plaintiff, whilst acknowledging his signature on the document in two separate places, stated that the details in the form are not in his hand writing.There is no evidence to identify the hand writing in the form.The effect of the plaintiff's evidence is that the only role which he played in relation to making a claim for worker's compensation was to hand the medical certificates to a secretary of PBC.There is no evidence that he read the document through before signing it or for that matter whether the hand written information had been included in the document when he placed his signature on the form.
In relation to the WorkCover Disability Form of 2 May 1990 the plaintiff acknowledged that he signed the form.The evidence is unsatisfactory regarding whether and to what extent the plaintiff read the completed document.Some of the information written on the form was completed by Ms Jennifer Bartlett, a clerk with PBC, and other parts of the form was completed by Ms Carol Jones another clerk employed by PBC.The details of the injury set out in the form were completed by Ms Bartlett.Ms Bartlett does not recall the source of information she used to complete the "Injury Details" section in the form.She indicated that it was unlikely that the plaintiff would have been present when she completed those parts of the form in her hand writing.She further said that it is probable that she used information from other documents to complete those sections of the form that she completed.
In my view, the absence of any reference to the shoulder in either of the claim form does not lead me to doubt the plaintiffs evidence regarding the injury to his shoulder and when it occurred.The following answer given by the plaintiff in cross examination, is in my opinion, a key to understanding the plaintiff's role in the completion of the forms.
"A. I was requested to hand in the certificates and sign where required and that's basically all I knew about claim forms and putting them into - I know nothing - I'm not very familiar with that sort of procedure."
The plaintiff had previously given evidence that the claim forms were completed by the secretary.By that I take the plaintiff to mean by the office staff of PBC.The plaintiff's evidence on the subject matter of the forms and the completion of the forms at the respective times must be seen against the background that he was 17 years of age and had only recently commenced work when the accident occurred.At the time of the completion of each of the forms he was a young man with little experience; with a limited education and intellectual capacity.It is entirely logical and reasonable that he would rely on the staff of PBC to determine what was to be included in each of the forms.Furthermore, at the time the 1987 claim form was completed it appears that the plaintiff was not aware that he had suffered a dislocation of his shoulder.It is also worth observing that there is not any reference in either claim form to any other injury suffered such as bruises or abrasions.
Finally, with regard to the WorkCover Disability Form it is relevant to note that it was signed by the plaintiff on 2 May 1990.This was two days after he had complained to Dr Pisaniello on 30 April of problems with his shoulder.The preparation of the WorkCover Disability Form should therefore be seen in the context that a claim was being made by the plaintiff with WorkCover shortly after he had been referred by Dr Pisaniello to Mr Maguire for the injury to his shoulder.It is likely that the motivation for making the claim, at least in part, was the shoulder injury.However, there is no reference to the shoulder injury in the form.The absence of any reference to his shoulder tends to support the plaintiff's evidence that he relied entirely upon the staff of PBC in dealing with his workers compensation forms. Its absence also suggests that in relying on the staff of PBC the plaintiff was not concerned to ensure that the form contained an accurate description of the injuries he suffered in the accident.Furthermore, it tends to support Ms Bartlett's evidence that she probably used information from other documents to complete the form.
The injury to the plaintiff's left shoulder was the subject of some conflicting medical opinion.Mr Peter Humble, an orthopaedic surgeon, was called to give evidence by the defendants.He was of the opinion that the plaintiff's shoulder injury was not incurred as a result of the accident on 17 July 1987. He said that if the shoulder had dislocated, either partially or completely, on that day the plaintiff would have suffered severe pain and severe limitation of function.He indicated that the injured shoulder would have needed to have been carried in a sling for at least 10 days.He felt that if the plaintiff had injured his shoulder he would not have been capable of returning to work after approximately 10 days.Essentially, his evidence was that the injury would have been so severe that Dr Stephan would have diagnosed the injury either by examination of the plaintiff or the plaintiff's complaints or both. Furthermore, his evidence was that the plaintiff could not have functioned in the period immediately following the accident in the manner he described.In reaching this opinion he stated that the low key response of the plaintiff was some indication that the plaintiff had not suffered a dislocation.He thought that travelling to Dr Stephan's surgery by taxi was not what he would have expected if the plaintiff had suffered such an injury.He would have expected an ambulance to be called.Mr Humble offered the opinion that the injury was more likely to have been incurred in 1990 than in 1987.He also said that when he examined the plaintiff in November 1993 and August 1995 the plaintiff had a full range of shoulder movement.In his opinion the plaintiff was fit to return to his pre-accident work of heavy labouring in the demolition industry.
In contrast to Mr Humble, Mr Maguire and Mr Fry were of the opinion that the injury to the plaintiff's shoulder could have occurred in the fall on 17 July 1987.Essentially, the thrust of the evidence of Mr Maguire and Mr Fry is that a dislocation of the shoulder could remain undiagnosed for the period from the date of the accident until the time it was diagnosed by Mr Maguire.I have previously referred to the opinion of Mr Maguire regarding the reason why the injury was not diagnosed in the consultation with Dr Stephan on 17 July 1987. Mr Fry's view that such an injury could remain undiagnosed is expressed in the following question and answer:
"Q. If it's the case that - I think you've seen the effect of Mr Maguire's findings at a surgery, just briefly in one of his reports he described that when he did a CT arthrography or had that done on 19 June 1990, he says in a report of his: "Cartilagenous and bony Bankart's deformity associated with a partial rupture of the superior gleno-humeral ligament'.Is it possible for this man to have carried that condition since July '87 through to June 1990.
A. Yes, yes, it's very common and I suspect Mr Maguire may have even said so too, that a person can get a dislocation effect, first produce a Bankart lesion which is fundamentally a - it doesn't matter anyway too much, but it's part of a dislocation process, as is the rupture of the superior gleno-humeral ligament that he mentioned and yes, it settled down.It can go one of two ways; it can either go the way in which you said as a second potential history, that is of pain, trouble, etc. or it can cause some trouble at first and then settle down and then start to reappear, often in an increasing and sporadic sort of fashion.Either could be so.Yes they do bear it, yes because although it's often sore when they do something that strains it, it tends to pull it out a bit.It hurts, they leave it alone, it's like a sprained ankle, it settles down after a short while; the aching stops and you go back to do what you do again.You don't notice anything particularly there, except frequently when you do the wrong thing and the wrong thing often tends to be the sort of backswing sort of tennis serve type of effect where you put stress on the torn or lax capsule of the joint - they notice that the joint moves a bit and you get a popping sensation or you get a feeling that it's going to go out if you're not going to be careful, a feeling of insecurity.Yes, this is not uncommon, so that he got it from the start or that he started to notice after a while, either is well within the known bounds."
Apart from the last sentence, which was not put to him, Mr Maguire agreed with this opinion.Furthermore, Mr Cornish, another orthopaedic surgeon, agreed with the opinion expressed in that answer, save for the last sentence which was not directed to his attention.To obtain a clearer understanding of the opinion contained in that answer Mr Maguire's opinion of the "popping out" of the shoulder is worth noting.It was his view that in all the popping episodes the shoulder would not have dislocated fully.He said it was not a major incident each time.
Although Mr Maguire observed the plaintiff's injured shoulder during the course of the surgery he could not say from those observations when the injury first occurred.He first examined the plaintiff in June 1990.The thrust of his evidence was that the injury first occurred a considerable period of time prior to his examination.His view was expressed in part of an answer he gave in evidence:-
"This was much more an injury in the past with repeated episodes of subluxation, or popping out as someone has called it."
As I stated earlier, Mr Maguire's opinion of the current state of the plaintiff's shoulder was that the plaintiff had a full range of movement of his left shoulder except for a loss of 10% of external rotation in 90 degrees of abduction.There was also a loss of 5% of extension.His view was that the plaintiff has suffered a 20% loss of function in his shoulder.Mr Maguire's opinion was that because of his shoulder the plaintiff would not return to heavy labouring work like the work he performed with PBC prior to the accident. Dr Fry agreed that because of his shoulder the plaintiff should not return to heavy labouring work.
With regard to the plaintiff's injured shoulder I prefer the opinions of Mr Maguire to those of Mr Humble.Mr Maguire had the advantage of observing the extent of the injury during the operation.In concluding that the plaintiff could have "carried" the injured shoulder for the period up to June 1990 Mr Maguire's observations of the extent of the injury must have played a role.It is also clear as a result of his agreement with the opinion of Mr Fry, which I have quoted, that he has in his experience observed other patients who have suffered dislocation to the shoulder and after initial pain the shoulder settled down and thereafter they "carried" the shoulder although experiencing episodes of partial dislocation.I pause here to observe that it is relevant to observe that Mr Fry and Mr Cornish express similar opinions and which would suggest that they have also observed patients "carrying" such an injury.I also prefer their opinions to that of Mr Humble.In contrast to Mr Maguire, Mr Humble's opinion does not seem to allow for such a possibility.His opinion appears to be that a person could never "carry" a shoulder which has been dislocated or partially dislocated.I find it difficult to accept such an extreme position, particularly as it is out of step with three other experienced medical specialists whose opinions appear, in part, to be based upon experiences with other persons suffering a similar injury.
It was the complaint made by the plaintiff to Dr Pisaniello on 30 April and his view that a person could not "carry" a dislocated or partially dislocated shoulder that formed the basis of the opinion by Mr Humble that the injury was more likely to have occurred in 1990 than in 1987.However, it seems to me, that if one applies that logic then it would be expected that there would be a presentation by the plaintiff for treatment in 1990 other than on 30 April 1990.It is clear from the observations of Mr Maguire that the injury was "old" in the sense of initial injury and subsequent subluxations.There is no evidence of presentation of the plaintiff for treatment in 1990 with an initial injury nor is there any record in the plaintiff's case notes for the period January to April 1990 of the plaintiff suffering such an injury.The absence of any presentation to Dr Stephan/Dr Pisaniello's medical practice in the first part of 1990 makes it less likely that Mr Humble's opinion is correct.
Mr Humble, in forming his opinion on the issue of when the plaintiff injured his shoulder, also relied upon what he described as the low key response of the plaintiff demonstrated by the plaintiff in taking a taxi to Dr Stephan's surgery.I find it difficult to understand how that fact could play a legitimate role in forming an opinion whether the plaintiff had dislocated his shoulder.Experiences and observations in life show that people react differently when injured, whether the injury is serious or not.It does not seem to me logical to use the manner in which the plaintiff sought treatment as an indication that he did not suffer the shoulder injury in the fall.
Mr Maguire's opinion regarding the current restrictions of the plaintiff's shoulder and his view that the plaintiff does not have the capacity to return to his pre-accident work is to be preferred to Mr Humble's opinion.As he stated, the procedure adopted in the surgery was designed to restrict full external rotation of the plaintiff's shoulder.It should also be noted that Mr Fry was of the opinion that the shoulder is still impaired.Both Mr Maguire and Mr Fry's opinion that the plaintiff should not return to his pre-accident work are based upon their view that the shoulder is now restricted.
It follows from all that I have said that I find that the plaintiff dislocated or partially dislocated his left shoulder in the accident.Thereafter he suffered subsequent partial dislocations of the shoulder until the surgery on 2 August 1990.During the early period following the accident the plaintiff suffered severe pain in his shoulder.I find that after the shoulder settled down the plaintiff continued to suffer pain and discomfort from time to time. However, I find that on each occasion the plaintiff suffered a partial dislocation of the shoulder the pain would be quite severe for a short time.I further find that the surgery in August 1990 was largely successful.The plaintiff no longer suffers partial dislocations of the shoulder.However, he has been left with some restrictions.Mr Maguire's opinion, which I accept, is that the plaintiff has a 20% loss of function of his shoulder.Further, Mr Maguire's opinion is that the plaintiff will develop osteo-arthritis in the shoulder in the next 10-20 years.I also find that the injury to the shoulder prevents the plaintiff from continuing to engage in heavy labouring work of the nature he engaged in prior to the accident.
There is one further matter relating to the plaintiff's shoulder to which I should make mention.There is presently a loose body at the bottom of the shoulder joint.Mr Maguire stated that this is a legacy of the shoulder partially dislocating on occasions.He further stated that its presence is not good for the joint although it will only need to be removed if it becomes symptomatic.At present it is not causing the plaintiff discomfort.The plaintiff may need surgery in the future to remove the loose body.
I now turn to the plaintiff's claim for injury to his back.The plaintiff stated that immediately after the fall he suffered pain in his back.After the accident he continued to suffer pain and discomfort in his lower back.He consulted with Mr Gordon Morrison, an orthopaedic surgeon, in February 1988 in relation to his back pain.Mr Morrison referred the plaintiff to Alfreda and the plaintiff attended for treatment and rehabilitation to his back for some time.However, the plaintiff said that during his time with Alfreda his back did not improve.
The plaintiff said, and I accept, that he suffered significant pain and discomfort in his lower back in the period immediately following the accident. After that initial period the plaintiff has continued to suffer pain in his back.The plaintiff does not say that it is present all the time.He has had a full range of movements in his back from at least the early part of 1988. However, if he engages in particularly vigorous activities he may experience quite severe pain whilst engaged in those activities.Some other activities cause him discomfort.For example, he needs to take a short break after driving a motor vehicle for three to four hours.His back injury causes slight restriction in his sexual activities.
There is a conflict between the opinions of Mr Morrison, Mr Cornish, Mr Fry and Mr Paul Carney on the one hand and Mr Humble on the other regarding the plaintiff's back injury.However, before dealing with that issue I should indicate that I accept the plaintiff's evidence that following the fall he injured his lower back which resulted in the plaintiff suffering pain and discomfort in his lower back.I also accept his evidence that he suffers on going pain and discomfort but I find that such pain and discomfort is not of a continuous nature.I also accept the plaintiff's evidence regarding the restrictions he encounters on some activities.
I now turn to consider the specific opinions of the medical witnesses.As I have already indicated, Mr Gordon Morrison saw the plaintiff in February 1988. He reported a full range of lumbar movement.Dr Morrison reported that X-rays of the plaintiff's lumbo-sacral spine showed a congenital abnormality in the form of a partial sacralization of the level at L5.He stated that the plaintiff has a pseudarthrosis between L5 and the sacrum on the right. At that time he diagnosed the plaintiff as suffering from a soft tissue straining injury.Mr Morrison arranged for his attendance at Alfreda Rehabilitation Centre.The plaintiff attended from the end of March 1988 until May 1988.He returned to work at PBC towards the end of May 1988.In 1996 Mr Morrison was provided with reports relating to Magnetic Resonance Imaging of the lumbar spine dated January 1991.After considering these reports and other material he concluded that the plaintiff's ongoing symptoms of pain and discomfort were due to disc disruption at the level of L4/5 at the time of the fall.He was of the view that this condition was not likely to deteriorate.He felt that the plaintiff was fit for work which did not involve heavy lifting or bending.His opinion is that the plaintiff should not return to his pre-accident work in the demolition industry.
Mr Brian Cornish first saw the plaintiff in July 1992.His opinion was that the plaintiff's complaints of pain and discomfort were due to some disc pathology at the L4/L5 level of his lumbar spine.He reported that the plaintiff had a full range of movement.Mr Cornish was of the opinion at that time that the plaintiff should undertake work of a less physical nature than the work he performed before the accident.Mr Cornish examined the plaintiff again in November 1993.Once again he reported a full range of movement of the lumbar spine.He considered there was altered disc structure at the L4/L5 level.Mr Cornish was of the view that the fall was the precipitating cause of the damage to the plaintiff's back from which he has suffered pain and discomfort.He felt the plaintiff should not undertake work involving major physical effort.Demolition work was beyond the plaintiff's capacity.Mr Cornish considers that the plaintiff's current position regarding the back injury is that he could not perform heavy manual work but is fit for work involving medium to light tasks.He feels the injury is stable but the plaintiff will continue to suffer symptoms of pain and discomfort.
Mr Fry consulted with the plaintiff in February 1994.He was of the opinion that the plaintiff's back pain and discomfort are due to a damaged disc at the level of L4/5 which he stated was caused in the fall.He is of the view that the plaintiff is unfit for unrestricted work; that he should not perform work which involves repetitive bending or heavy lifting.Within those restrictions he feels that the plaintiff is quite fit for work.His view is that the plaintiff's back injury is stable.
Mr Paul Carney, a neuro-surgeon, saw the plaintiff about April 1991.He was of the opinion that the plaintiff's pain and discomfort resulted from injury to his back suffered in the fall.He was of the view that the plaintiff's level of disability at the time of presentation would continue in the future.He did not alter his opinion at trial.
The plaintiff was first seen by Dr Humble on 30 October 1992.When he last saw the plaintiff in August 1995 his view was that there was a degenerative change at L4/5 level lumbar disc but such damage may not necessarily be due to injury. He was of the opinion that the plaintiff was fit to return to the heavy labouring demolition work which he was performing prior to the accident.
I am not prepared to accept the opinions of Mr Humble regarding the plaintiff's back injury.There is substantial amount of medical opinion which indicates that the plaintiff suffered disc damage in the accident and that damage is consistent with the plaintiff suffering from the symptoms he described.There is also substantial medical opinion that the damage suffered by the plaintiff prevents him from returning to his pre-accident level of heavy labouring work. I accept that medical opinion.Furthermore, I have indicated that I accept the plaintiff's evidence regarding the symptoms he experienced following the accident.Those symptoms are consistent with the medical opinions expressed regarding the damage to the plaintiff's back.The medical opinion also indicates that the injury diagnoses is likely to have been suffered in the fall described by the plaintiff.The evidence indicates that the plaintiff suffered some lower back pain prior to the accident.However, I accept that the pain and discomfort he suffered following the accident was of a far greater dimension than his experience prior to the accident.
It follows that I find that the plaintiff suffered injury to his lower back as a result of the accident.That as a result of the injury he has suffered the symptoms which I have previously described.I find that he will continue to suffer some pain and discomfort in his lower back.I further find that as a result of the injury the plaintiff is unable to perform heavy labouring work or work which involves repetitive bending or heavy lifting.However, I find that the plaintiff's back does not prevent him from performing other forms of manual work of a light to medium nature.
In addition to his claim for physical injuries the plaintiff seeks damages for a psychiatric injury in the form of mild to moderate depression.Dr Kutlaca, a psychiatrist, provided the opinion that at some point in time following the accident, which time he could not precisely determine, but probably after 1992, the plaintiff suffered from depression.Dr Kutlaca saw the plaintiff on 25 January 1996 and diagnosed him as suffering from a dysthymic disorder, that is a mild chronic depression, which he stated was of more than two years duration. His opinion was that the depression resulted from the injuries sustained by the plaintiff and its consequences included his inability to perform work as he had previously done.He considered the plaintiff's mood to be reactive to some extent but not of sufficient severity to justify a diagnosis of a major depressive disorder.He described the plaintiff as suffering a 15% psychiatric disability due to depression which translated into a 15% reduction in the plaintiff's ability to enjoy life fully.Such a disability would have affected his ability to work in that his efficiency to perform work would be diminished.He did not suggest that such an incapacity would have prevented the plaintiff from working.
The plaintiff was examined by Dr Burvill, another psychiatrist, in early May 1996.He formed the view that the plaintiff was not suffering from any diagnosable psychiatric disorder at that time.Mr Castelluzzo, was also seen by Ms Debra Lawton, a psychologist, in January 1996.She diagnosed the plaintiff as suffering from amajor depressive disorder, moderate and chronic. Dr Pisaniello, the plaintiff's general practitioner, with whom the plaintiff consulted regularly from 1990 onwards, stated that in July 1993 the plaintiff revealed features consistent with a major depressive illness.He considered that the plaintiff was suffering major depression during 1994.He prescribed medication for the plaintiff's depression.
I accept the opinion of Dr Kutlaca that the plaintiff has suffered a mild chronic depression which resulted from the accident and its consequences.In my view Dr Kutlaca's basis for his diagnosis is cogent.In addition to his clinical observations Dr Kutlaca's diagnosis is, at least in part, based upon the dramatic change which occurred in the plaintiff's health and life style as a result of the injuries he suffered.All of this occurring in a youth of seventeen years of age.Dr Kutlaca considered that the difference in diagnosis between Dr Burvill and himself may be explained on the basis that by the time Dr Burvill saw the plaintiff he had all but recovered from the depression. In any event, whatever the position was at the time he saw Dr Burvill, I prefer the opinion of Dr Kutlaca for the reasons I have given.Finally, with regard to the respective diagnoses of Dr Pisaniello and Ms Lawton, I prefer the opinion of Dr Kutlaca to their respective diagnoses for the reasons I have explained.In addition, Dr Kutlaca's opinion is to be preferred to Dr Pisaniello and Ms Lawton because of his experience and speciality in psychiatric medicine.
I therefore find that the plaintiff has suffered a mild chronic depression commencing some time after 1992.The duration of the depression has been at least two years.I find that at the time that he saw Dr Burvill in May 1996 the plaintiff had recovered from his depression.Indeed, counsel for the plaintiff, Mr Bryant conceded that on the evidence that was the appropriate finding to make.I further find that whilst the plaintiff's depression would have had the effect of reducing his work efficiency but it did not incapacitate him for work.
I now turn to consider each head of damage contained in the plaintiff's claim for damages.The heads of damage claimed by the plaintiff are as follows:-
1.Non-economic loss for pain and suffering and loss of amenities.
2.Loss of earning capacity to the date of trial and thereafter (future loss of earning capacity).
3.Medical and other expenses to the date of trial.
4.Future medical expenses.
The first head of damage is for pain and suffering and loss of amenities.As I have already indicated,I accept that the plaintiff sustained an injury to his left shoulder and his lower back as a result of the accident.In addition, he suffered bruises, cuts and abrasions to various parts of his body.I have described the injuries to the plaintiff's left shoulder and back in some detail earlier.With regard to his shoulder the plaintiff only suffers occasional pain although at times he experiences some numbness.There are some minor restrictions in movement.He has a 20% loss of function of the left shoulder. There is evidence of osteo-arthritic change present which is likely to worsen over the next 10-20 years.As far as the plaintiff's lower back is concerned the plaintiff still suffers some pain and discomfort although he has a full range of lumbar movement.The back condition is stable.I have also said that the plaintiff had suffered a mild chronic depression which has now resolved. The plaintiff did not play much sport whilst he was at school although he did play a little soccer.The plaintiff's injuries will restrict his ability to play sport in the future and will restrict him, to some extent, in engaging in some physical activities.The assessment of damages under this head is at large.It is not restricted by any legislation.I award the plaintiff $45,000 damages for pain and suffering and loss of amenities.
The next head of damage is loss of earning capacity.The plaintiff claims damages for loss of earning capacity to the date of trial and for loss of future earning capacity.To establish his entitlement to damages for loss of earning capacity the plaintiff must first establish that his earning capacity has in fact been diminished by reason of injury suffered.Secondly the plaintiff must establish that the diminution of earning capacity has been productive of financial loss.(See: Medlin v State Government Insurance Commission (1995) 182 CLR 1 at page 3).
The plaintiff returned to his employment a little over a week after the accident.He attempted to perform duties similar to those which he was performing before the accident but found it impossible because of his injuries. He continued working until about 19 August 1987.During this time he was performing light duties.However, he was finding it difficult to perform those duties and ceased work until some time in October 1987. Thereafter he returned to work, on light duties, until about the middle of January 1988.At that time on the recommendation of Mr Morrison, the orthopaedic surgeon, he commenced the programme at Alfreda.He remained at Alfreda until early June 1988. Thereafter he returned to his employment on light duties.In early August he again ceased work, having received a medical certificate from Dr Stephan that he was unfit for work until the middle of September 1988.
Some time after the accident occurred a conflict arose between the plaintiff and his father Mr Peter Castelluzzo ("Mr Castelluzzo").PBC is the company through which Mr Castelluzzo operated and continues to operate his demolition business.Mr Castelluzzo felt that the plaintiff was taking too much time to recover from his injuries and to resume his pre-accident duties.His evidence was that later on, after talking to Dr Pisaniello, his attitude changed because he gained an understanding that the plaintiff had suffered far more serious injuries in the accident than he first thought.However, at this time he felt that his son should have returned to working at his pre-accident duties.This conflict led to the plaintiff refusing to work at PBC for a period from about the 14 September 1988 to the 20 February 1989.He did not seek work elsewhere during that time.For part of that period he ceased residing at the family home.He resumed working for PBC on light duties on 20 February 1989.
On 7 March 1989 the plaintiff consulted Dr Stephan as he felt his back pain and discomfort had increased.He ceased work again.He received some worker's compensation for approximately a month and thereafter he did not work for the next three months.He resumed work with PBC in late June 1989.He continued to work on light duties with PBC until early March 1990.
The plaintiff was absent from work whilst he underwent his shoulder surgery. Following the surgery he attended at Alfreda for treatment and rehabilitation of his shoulder.After the plaintiff ceased his rehabilitation programme with Alfreda, it appears that he recommenced work with PBC performing light duties. The evidence is not clear regarding the nature of the plaintiff's employment activities after Alfreda.However, it appears that he was performing light duties at PBC, including driving his father to various jobs and working as a salesman at PBC's salvage yard.The precise time when the plaintiff recommenced on light duties does not clearly emerge from the evidence.The wages records of PBC are silent on this point.
I pause here to mention that WorkCover commenced making what I will describe for the moment as income maintenance payments to the plaintiff, from about early May 1990.The characterisation of WorkCover's payments is a significant issue between the plaintiff and the defendants which I will return to later on. For the present, I propose only briefly to refer to an arrangement entered into between PBC and WorkCover.I will return to it later. Mr Castelluzzo gave evidence of an arrangement that PBC entered into with WorkCover regardingthe plaintiff.The purpose of the arrangement was to facilitate the plaintiff's return to full-time work.Alfreda was also assisting the plaintiff in the rehabilitation process aimed at returning the plaintiff to full-time work.As part of the arrangement it was agreed between PBC and WorkCover that WorkCover would pay income maintenance to the plaintiff for four days of each week and PBC would pay one day of each week by way of salary.Mr Castelluzzo said that he did not know whether this arrangement commenced in 1991 or later.PBC was to provide the plaintiff with work, in the nature of light duties, for a couple of hours per day.Initially, as part of the agreement, PBC would pay the plaintiff each week an amount which equalled the addition of the four days income maintenance and one day's salary.This arrangement later changed because of the financial strain it placed upon PBC.From about the end of August 1995 WorkCover paid directly to the plaintiff the income maintenance payments.
In August 1992 Fay Searston, a rehabilitation counsellor with Alfreda, drew up a job specification for the work to be performed by the plaintiff with PBC. This was agreed to by PBC and the plaintiff.The rehabilitation programme aimed at returning the plaintiff to full time work was terminated by WorkCover on 4 August 1993.Although the evidence is not satisfactory it appears that after the rehabilitation programme was terminated the plaintiff continued to perform light duties with PBC on a part time basis for some considerable time. PBC eventually terminated the plaintiff's part time employment.In reality there was never a part time position with PBC.It was created in the hope that it would assist in returning the plaintiff to full-time employment.I doubt if PBC would have entered into the arrangement if it was any other employee than the plaintiff.In any event PBC could not continue paying him.The only evidence of when this arrangement ceased is contained in the report of Dr Kutlaca who records that the plaintiff informed him that he had not worked for some twelve to eighteen months.Dr Kutlaca was informed of this by the plaintiff in January of 1996.After the plaintiff ceased employment with PBC WorkCover continued to make payments to the plaintiff.Those payments ended in early April 1996.
In considering the award to be made for damages for loss of earning capacity to the date of trial I propose to deal with it in two periods.The first period commences on the date of the accident and concludes at a time when the plaintiff had recovered from the surgery to his shoulder to a point where the shoulder would not have prevented him from working in employment which involved light to moderate physical activity.The second period commences at that time and ends at the date of the commencement of the trial
The identification of the date when the plaintiff's shoulder would not have prevented him from working in employment involving light to moderate physical activities cannot be stated with any precision.Unfortunately, Mr Maguire did not see the plaintiff between 23 November 1990 and 9 March 1992.There has been no explanation given for the plaintiff allowing such a long period to pass.On 9 March 1992 Mr Maguire considered that if the shoulder was considered in isolation then the plaintiff was at that time fit for work of a light to moderate physical nature.However, in his report of 6 August 1990, which was shortly after the surgery, he commented that the plaintiff would be restricted from labouring duties for up to six months.In his evidence,Mr Maguire was of the opinion that the plaintiff would have been fit for a variety of jobs including that of a courier or a storeperson approximately six months after the surgery if the plaintiff's shoulder was the only consideration.As the surgery was performed on 2 August 1990 and allowing for a small tolerance period I find that by the beginning of April 1991 the plaintiff's shoulder had recovered to the point that it permitted him to perform work of a physical nature provided that it was not heavy labouring work.
What then was the position of his injured back at the time the plaintiff's shoulder would have allowed him to perform work of that nature?I have earlier referred to the medical evidence regarding the plaintiff's injured back in some detail.For present purposes it is relevant to note that by February 1988, when Mr Gordon Morrison saw the plaintiff he had a full range of lumbar movement.At that time, Mr Morrison expected that the plaintiff could return to work by July 1988 although he was guarded regarding the plaintiff's capacity to perform heavy manual work.It will be recalled that the plaintiff attended Alfreda until about June 1988 on the recommendation of Mr Morrison.Mr Brian Cornish was the next specialist to see the plaintiff regarding his back.This was in July 1992.The plaintiff was still suffering pain and discomfort.Mr Cornish was of the opinion that the plaintiff's back did not prevent him from undertaking manual work provided it was not at the level of his pre-accident work.The evidence of Mr Morrison, after he had amended his diagnosis, is that the plaintiff should not engage in work which involved heavy lifting or bending.Mr Fry also indicated when he saw the plaintiff in 1994 considered that the plaintiff was fit for work other than work which involved repetitive bending or heavy lifting or work in the demolition industry.As a result of these opinions I find that if the plaintiff's back injury was the only consideration then by the time he ceased attending Alfreda in approximately June 1988 the plaintiff was fit for manual work of a light to moderate nature which did not involve repetitive bending or heavy lifting.Of course, his back injury was not the only consideration.The plaintiff's earning capacity has to take into account his back injury and his shoulder injury.
It follows that I find that during the period from the date of the accident until April 1991, save for two periods which I will shortly refer to, the plaintiff was exercising his total earning capacity at that time.He was restricted in his capacity to perform work, during this period, by his shoulder injury and his back injury. Whilst his back injury, in isolation would not have prevented him from performing physical work of a light to moderate nature his shoulder injury would only allow him to work at light duties of the nature he was performing with PBC.In my view PBC was a sympathetic employer.In my opinion and I so find that he could not have obtained and held any other employment during this period as a result, initially, to the combination of his back and shoulder injuries and after his back injury became stable, as a result of the continuing problems he has with his shoulder.
There were two short periods from 14 September 1988 to 20 February 1989 firstly and secondly from early April to the middle of June 1989 when the plaintiff did not work.The first period was when the plaintiff was in conflict with his father and he refused to work.With regard to the second period there is no evidence that the plaintiff worked.PBC's time books do not record the plaintiff as having received wages.There is no evidence to suggest that the plaintiff's injuries prevented him from working during that period.From the plaintiff's Record of Interview with a WorkCover officer on 15 October 1990 ("Record of Interview") it can be inferred the plaintiff's injuries did not prevent him from working during that period.
In assessing damages for past loss of earning capacity I propose to make some small discount for these two periods as it appears that there was work available for the plaintiff at PBC during those times but he did not take it up.However, I do not intend to make an allowance for the entire periods as the work history of the plaintiff from the time of the accident until April 1991 indicates that the combination of his injuries caused him from time to time to absent himself from work.The probabilities are that during part of these periods his injuries would have forced him to cease work for part of the time.
After April 1991 I find that the plaintiff had a capacity to undertake manual work involving light to moderate physical activity provided such work did not involve repetitive bending or heavy lifting.I further find that as a result of his injuries the plaintiff no longer had the capacity to engage in work of a heavy manual nature.At that time the shoulder surgery had been largely successful and he was left with only minor physical restrictions.His back injury had long before this time permitted the plaintiff to perform manual work involving light to moderate physical activity.As a result of his injuries, I find that the plaintiff's earning capacity has been reduced in that he can no longer engage in heavy manual work.He can perform manual work of a light to moderate nature provided it does not involve repetitive bending or heavy lifting.
The defendants have criticised the plaintiff for not looking for work within his capacity since about April 1991 until he registered with Job Search in early 1996.Mr Heinrich submits that the plaintiff has since about April 1991 failed to mitigate his loss.There is no evidence that the plaintiff looked for employment during that period.However, for part of that time he was involved in the arrangement between PBC and WorkCover, which I referred to earlier, in which the objective was to return him to full-time employment.As I said earlier the evidence does not precisely identify the commencement date. The best that can be done on the evidence is to say it commenced some time in the latter half of 1991 or the early part of 1992.It is also unclear from the evidence when the plaintiff's employment with PBC ceased.All that can be said is that his employment with PBC ceased some time in 1994.Since then the plaintiff has been unemployed.The plaintiff's evidence is that he has not looked for work since the time his employment with PBC ceased until he registered with Job Search in 1996.
I find it was reasonable for the plaintiff to continue employment with PBC performing the duties allotted to him during the period when PBC and Workcover were attempting to return the plaintiff to full-time work.Furthermore, I find it was reasonable for the plaintiff to continue his employment with PBC after that.The plaintiff's hope or expectation was that a full time position would be found for him within PBC which would permit him to work within his capacity.
However, I have difficulty in understanding why the plaintiff has not sought to find employment since his position with PBC was terminated in 1994.He has not since that time sought to exercise his residual earning capacity.During this time he was suffering from moderate depression.However, I find that the depression would not have prevented him from exercising his earning capacity. Whilst the depression would not have prevented the plaintiff from undertaking employment, in my opinion, it must be taken into account in realistically assessing whether he would have been able to obtain employment during this period.His depression was likely to have effected his presentation at employment interviews.
Some indication as to the reason why the plaintiff has not sought work from the time he ceased work with PBC to the time he joined Job Search is that he appeared to be under the misapprehension that WorkCover or its claims manager FAI was obliged to find him employment.In any event, whatever the reason, I find that from the time his employment ceased with PBC that the plaintiff was not acting reasonably in not looking for work .He failed to mitigate his loss.He had a residual earning capacity which he could have exercised.The damages for past loss of earning capacity must be discounted to take account of the possibility that if he sought work during that period, he may have found employment at some time during the period from the time his employment ceased with PBC to the date of trial.In undertaking this exercise the difficulty confronting a person suffering from such disabilities in obtaining employment in the open market must be taken into account (see: Wade v Allsopp (1976 ) 10 ALR 353 at 361; Mathewman vAustralian National Railways Commission(1987) 135 LSJS 94 at 100; Versace v Messer (1993) 172 LSJS 409 at 413-414).
Before turning to the actual assessment of the plaintiff's loss of earning capacity there are some further matters which I need to address.First Mr Heinrich submitted that the plaintiff's general behaviour and his personality were relevant factors in determining the extent of the plaintiff's earning capacity.In other words, was he the type of person who had the motivation and personal discipline to maintain regular employment over his working life.It was submitted that this was an important consideration as the accident occurred at the threshold of the plaintiff's working life.Counsel for the defendants submitted that there were indicators to suggest that the plaintiff would not have exercised his earning capacity to its fullest during his life.He said that this needed to be taken into account when assessing damages for loss of earning capacity.
Counsel for the defendants numbered amongst those indicators the plaintiff's absence from school in the period shortly prior to leaving school, his anti-social behaviour as identified in his criminal record, his lack of application at Alfreda and his failure to actively seek work after the recovery of his shoulder following surgery.I do not accept the validity of that submission.In my view, it does not follow that those so-called indicators point in the direction that the plaintiff was not prepared to fully exercise his earning capacity during his life time.In any event each of those matters can be explained on any number of grounds.For example, Dr Burvill considered that the plaintiff's absences from school were likely to have been caused by the plaintiff's frustration borne out of not being able to cope with his schooling, a desire to leave school and enter the work force.His lack of regular attendance at Alfreda could be explained on the basis that the plaintiff felt he was not obtaining sufficient benefit from Alfreda.It was certainly the fact that the plaintiff was of the opinion that during his time at Alfreda his back did not improve.In my view what is significant is his co-operation and willingness to attend Alfreda.I have previously dealt with the issue of his failure to seek employment after his shoulder surgery.
In my opinion, and I so find, that there is nothing in the personal history of the plaintiff before the accident or after the accident which suggests that he would not have effectively exercised his earning capacity fully during his life.Furthermore, there is a positive indicator that the plaintiff was motivated towards work.Shortly after the accident he returned to work and although his injuries were causing him pain and discomfort and restricted his physical activities he generally persisted at work throughout this period up to the time he underwent his shoulder surgery.
Secondly, I turn to address the defendant's submission regarding the role of the plaintiff's congenital abnormality in his lower back in the assessment of his loss of earning capacity.I have previously had cause to refer to the congenital abnormality in the plaintiff's lumbar spine in that he has a partial sacralization of the lumbar vertebrae at the level L5.It is the defendants' case that the congenital abnormality was becoming symptomatic before the accident as a result of the heavy nature of the plaintiff's pre- accident work with PBC.The defendants submit that the plaintiff was living on borrowed time as far as continuing his employment as a labourer involved in heavy manual work.In other words that apart from the injuries suffered in the accident eventually the plaintiff would have needed to obtain other work as his capacity to perform heavy manual labour would have been lost to him.That being the case, so the defendants submit, aside from the accident, the plaintiff's capacity for work would have been reduced to his current residual capacity, in any event.Expressed another way the defendants submit that the plaintiff's congenital abnormality would have become so symptomatic due to the stress placed upon his back by the nature of his heavy manual labour that he would have only had the capacity to perform manual work of a light to moderate nature where there was no repetitive bending or heavy lifting.
Before leaving this topic I should raise one further matter.There is no evidence that WorkCover wishes to recover the payments made by it to PBC or the payments made to the plaintiff through FAI.However, in the course of the trial and prior to hearing submissions on this issue, I raised the possibility of involving WorkCover in the proceedings for the purpose of dealing with the payments made by WorkCover.Counsel for the plaintiff indicated that she would oppose the intervention of WorkCover in the proceedings.Counsel for the defendants advised that he intended to contact WorkCover for the purpose of determining whether WorkCover wished to become involved in the proceedings. Counsel for the defendants never informed me whether he had contacted WorkCover or not.In any event, his silence indicated to me that he was satisfied that the submissions relating to this issue should proceed without the presence of WorkCover.
It follows from what I have said that I am of the opinion that the payments received by the plaintiff amounting to $96,554.96 was compensation for his loss of earning capacity and therefore the defendants must be given a credit for that amount in the award of damages for past loss of earning capacity.
I now turn to the calculation of the plaintiff's damages for past loss of earning capacity.Because of the matters to which I have previously made mention these damages are not capable of being assessed with any degree of precision.
I earlier stated that until April 1991, the plaintiff in undertaking employment with PBC was exercising his total earning capacity.It was at April 1991 that his shoulder had recovered to the extent that the plaintiff could undertake manual labouring work of a light to moderate nature provided it did not involve heavy lifting or repetitive bending.The records of PBC indicate that until the beginning of May 1990 the plaintiff received wages for the periods he worked.At this time the plaintiff was experiencing trouble with his shoulder. He underwent surgery in early August and had recovered, as I recounted earlier, by April 1991.He also received workers compensation from SGIC payable under the 1971 Act.These payments related to absences from work at various times due to the effects of the plaintiff's injuries during the period from 17 July 1987 to 21 May 1988.The workers compensation paid was $4697.42 which amount is required to be repaid to PBC.Those periods of absence and the workers compensation payments paid for those periods must be taken into account in the assessment for past loss of earning capacity.In addition, the plaintiff must be compensated for the periods when he was absent from his employment due to his injuries.PBC's records indicate he was absent from work during the period from 17 July 1987 to 30 April 1990 for a total of 45 weeks.The plaintiff will need to be compensated for that period at the net salary payable from time to time during the various periods of absence subject to a discount for the two periods of absence to which I directed attention earlier.I have been provided with details of the salary rate alterations during that entire period.The total amount of net wages lost by the plaintiff for that period of 45 weeks amounts to $13,734.
If the plaintiff had not been injured and remained employed by PBC from 1 May 1990 to the date of trial his total net wages would have amounted to $111,932. However, he did work with PBC during this period.The records of PBC do not indicate that the plaintiff worked and received wages during that period.But, as I said earlier, there is evidence that he recommenced employment with PBC on light duties sometime after he ceased attending Alfreda following the surgery on his shoulder.His employment approximated in total time about a day per week.The evidence is vague and unsatisfactory regarding the time he recommenced employment and when that employment ended.As I have observed earlier the best that can be done is to state that he commenced sometime in late 1991 or early 1992 and ceased employment during 1994.On the basis that the plaintiff was receiving a salary for working one day a week I find that he received a net salary of $11,000 during the time he was employed by PBC following his shoulder surgery.This amount needs to be taken into account in assessing the plaintiff's past loss of earning capacity.Thus, for the period from 1 May 1990 to the date of the trial viz 1 July 1996, taking into account the $11,000 the plaintiff could have earnt $100,932 net if he had not been injured and continued to work for PBC.There is, of course, no evidence to suggest he would not have continued to work for PBC during this entire period. In fact the evidence is that he would have continued to work for PBC.
In calculating the wages lost by the plaintiff in the period up to the date of trial there appears to be some degree of precision.However, the exercise is to assess the plaintiff's loss of earning capacity.Whilst the plaintiff's loss of wages are of some assistance in making that assessment there are other significant matters which need to be taken into account in that assessment. The first is that the assessment of damages must take into account the plaintiff's two periods of absence from work in the manner I have previously stated.Furthermore, the plaintiff is not entitled to damages for the entire period to the date of trial.I have found that the plaintiff could have exercised his residual earning capacity after his employment with PBC was terminated some time in 1994.However, in taking this into account I acknowledge the difficulty likely to have confronted the plaintiff in obtaining employment during that period in the open labour market with his disabilities.
In all circumstances I assess the plaintiff's past loss of earning capacity at $100,000.I have earlier determined that the plaintiff has already been compensated for past loss of earning capacity to the extent of the sum of $96,554.96 being the amount paid by WorkCover.That amount must be deducted from the assessment of $100,000 leaving the defendant with a liability to pay the sum of $3445 for past loss of earning capacity.
Before I leave the topic of past economic loss I should mention that in assessing damages I have used the net (after tax) wages of the plaintiff.As I have found that the payments made by WorkCover are not repayable pursuant to Section 54(7) of the WorkCover Act, the principles laid out in Fox v Wood
(1981) 148 CLR 438 have no application here.
With regard to the assessment of damages for the plaintiff's future loss of earning capacity a number of issues arise.Whilst the plaintiff has suffered a significant loss of his earning capacity he still retains a considerable earning capacity.I have found that from April 1991 the plaintiff has had a capacity to undertake manual work of light to moderate physical nature provided such work does not involve repetitive bending or heavy lifting.Examples of such work given in evidence were that of a courier driver driving a motor vehicle and delivering parcels whose weights were within his capacity, or as a storeman, again provided the duties of such a job did not involve work beyond his residual capacity.
However, in considering the plaintiff's residual earning capacity it is important to recognise his intellectual limitations.Ms Deborah Lawton, the psychologist, tested the plaintiff's intelligence and formed the opinion that the plaintiff had a very low level of intellectual ability.She said he could not be employed in any position which involved clerical work or more than simple intellectual demands.Ms Lawton was of the opinion he would learn slowly.This evidence of Ms Lawton was not challenged.
Whilst the plaintiff retains a considerable earning capacity it must not be overlooked in the assessment process the difficulty confronting the plaintiff in acquiring employment which allows him to exercise that residual earning capacity.As Justice Stephen said in Wade v Allsopp (1976) 10 ALR 353 at 361:-
"To state this is but to recognise that whereas diminished capacity to perform useful services may be expressed by a percentage figure the process of selecting one from a number of applicants for employment is, on each occasion, an all or nothing affair in which the applicant with diminished capacity may each time be wholly unsuccessful."
This problem was also recognised by Justice Perry in Versace v Messer (1993) 172 LSJS 409 at pages 413-414 where he observed:-
" It is a matter of common knowledge that plaintiffs, or persons who seek jobs are commonly asked to disclose whether or not they have previously suffered an injury and to give details of it and its consequences.It is a fact of life that persons in that situation, even if they are capable of doing the job for which they may be applying for, in a physical sense, may well be at a disadvantage in securing such a position in the first place".
(See also: Mathewman v Australian National Railways Commission (1987) 135 LSJS
94 at page 100).
The plaintiff's position is made the more difficult because he is a young man without an established employment record.
At the date of trial the plaintiff would have been earning a net weekly salary of $353 if he had continued to be employed by PBC in his pre-accident position. The plaintiff said that his future plans were to remain in the employ of PBC so long as there was a position for him.Counsel for the plaintiff, Mr Bryant, in his address, submitted that persons in the heavy labouring industry similar to that in which the plaintiff was engaged are likely to retire from such employment in the age range of 55 years to 60 years.In my view this is probably correct.However, in view of my findings regarding the plaintiff's congenital abnormality in his back and the problems which were likely to arise therefrom the likely length of the working life of the plaintiff does not have the same relevance to an assessment of future loss of earning capacity as it may do in many other cases.What it does is demonstrate the potential length of the plaintiff's working life.
In dealing with the issue of future economic loss, Mr Bryant, submitted that the plaintiff would have worked as a labourer at PBC for 10 years or so and after that time he would have taken over the business.As I understood the submission, that as a result of the plaintiff's injuries he has been unable to continue to be employed as a demolition labourer thus he has been denied the opportunity of gaining experience in the industry.Further, that the combination of that fact and the fact that the plaintiff has lost his employment with PBC means he has lost the opportunity of taking over the business.The submission did not indicate in monetary terms what effect that lost opportunity would have on the plaintiff's damages.By implication the submission is that the damages to be awarded to the plaintiff should be increased to take into account that if he had taken over the business his income would have increased from that he would have received as a demolition labourer.
I do not accept that submission.There is no evidence to support it.The plaintiff did not express any desire or intention of becoming the operator of the business PBC.The plaintiff's father, Mr Castelluzzo, did not indicate that it was his plan to retire and to pass on his business to his son.In any event, the plaintiff's intellectual capacity, as demonstrated by the evidence of Ms Deborah Lawton, suggests that he would not have been capable of conducting the business of PBC without substantial assistance, thereby increasing the cost of operating the business.Furthermore, it appears from the evidence that PBC has not been, in recent times, a successful company. During the period from 1990 to 1995 PBC incurred operating losses in each financial year except in year 1992-1993.I am not prepared to take into account in assessing the plaintiff's future economic loss the loss of an opportunity to earn greater income through taking over the business.There is no evidence to support the contention that it may occur.Further, I am of the view that the plaintiff's intellectual capacity would have prevented him from operating the business in the manner in which Mr Castelluzzo presently operates the business.
As I said earlier the plaintiff's net salary at the date of trial would have been in the order of $353 per week.That is some indication of the measure of his earning capacity at the date of trial.Further, I earlier referred to examples of the type of employment the plaintiff could undertake with his residual earning capacity.Unfortunately the parties have not placed before me any levels of salary for employment of the nature I have described or the likely salaries of any other type of employment within the plaintiff's residual earning capacity.It has not been suggested that the types of employment available to the plaintiff within his residual earning capacity would produce a weekly salary less than the salary he would have been earning as a demolition labourer at the date of the trial.However, in assessing his damages for future loss of earning capacity it must be recognised that not only has the plaintiff suffered a significant reduction in his earning capacity due to his injuries but he will be faced with difficulties in realising that capacity through employment for the reasons I have already alluded to (see: Gipson v Broken Hill Proprietary Company Limited (1985) 120 LSJS 458).
The assessment of damages for future loss of earning capacity cannot be approached with any precision.In view of my findings regarding the effect of the plaintiff's congenital back abnormality on his future employment as a labourer involved in heavy manual work, I must, in assessing his damages, do so in terms of the degree of probability of the abnormality forcing him to cease heavy labouring work in his working life and the degree of probability that such event would occur earlier in his working life than later (see: Malec (supra)).
In assessing the plaintiff's damages for future loss of earning capacity I also need to take into account the usual vicissitudes which might affect earning capacity, such as sickness, non-compensable injury and unemployment (see: Campbell v Nangle 40 SASR 161 at 186).However, any discount for such vicissitudes must be considered in the light of my findings regarding the plaintiff's back abnormality causing him to cease employment prematurely as a labourer engaged in heavy manual labour.
The actuarial figures relevant to the plaintiff (for a man born on 18 February 1971) at a discount rate of 3% per annum compound based upon the present value of $1.00 per week are:-
(1) ceasing in five years time or earlier death - $242.
(2) ceasing in ten years time or earlier death - $449.
(3) ceasing in fifteen years or earlier death - $626.
(4) ceasing at age 55 years or earlier death - $1009.
(5) ceasing at 60 years or earlier death - $1101.
(6) ceasing at age 65 years or earlier death - $1176.
Whilst I have indicated that, in view of my findings regarding the plaintiff's back abnormality, the relevance of the length of his working life is not the same as it is in many other cases, it is, nevertheless, of some guidance, in considering the plaintiff's damages, to look at the likely loss on that basis. In my opinion the plaintiff retains about one half of his pre-accident earning capacity.This would produce a weekly financial loss of $177 net based upon his capacity at the date of trial to earn about $353 net per week from employment as a labourer performing heavy manual duties.In undertaking this exercise some allowance ought to be made by way of reduction for the fact that the plaintiff would have found it difficult to exercise his pre-accident earning capacity for the whole of his working life due to the aging process. If in this rough and ready calculation it is assumed the plaintiff would have worked until 65 years of age then using the multiplier of 1176 his gross loss would be $208,152.By gross loss, I mean the loss before considering any discount for the vicissitudes of life and taking into account any balancing contingencies.It should be recognised that this amount does not present an accurate picture.The plaintiff was unlikely to have been able to perform heavy manual labouring duties until he was 65.So much was conceded by counsel for the plaintiff in his address.The amount of $177 per week could be reduced by up to 20 percent to take into account that factor.
If the exercise is undertaken based upon the assumption that the plaintiff would have retired at the age of 60 then, of course, there is a different result.In such an exercise it may not be necessary to discount the plaintiff's weekly financial loss of $177 as the plaintiff may have continued to work as a labourer performing heavy manual tasks until 60 years of age. Using the multiplier of 1101 his gross loss is $194,877.If it is assumed that he would have retired entirely from work between 55 and 60 on the basis that the ageing process would have prevented him from performing heavy labouring work then using a multiplier of 1055 (about half way in between) the gross loss is $186,735.
If a similar exercise is undertaken, assuming that the plaintiff's back abnormality would have prevented him from working as a labourer performing heavy manual work, any longer than 10 years from the date of trial, then using the multiplier of 449 and applying it a net weekly salary of $177 the plaintiff's gross loss is $79,473.If the period is fifteen years, then using the multiplier of 626 his gross loss would be $110,802.
As I said earlier, precision cannot play a role in the assessment of the plaintiff's future loss of earning capacity.The calculations I have made simply give some rough guidance in undertaking the assessment of future loss of earning capacity.Other factors need to be taken into consideration.One important factor, to which I made reference to earlier, is the difficulty facing a person such as the plaintiff in obtaining employment in order that the residual earning capacity may be exercised.
Taking all of the matters I have referred to into account I award the plaintiff $100,000 damages for future economic loss.
The plaintiff's claim includes a claim for future medical expenses.Reference was made earlier in these reasons that a loose body remains in the plaintiff's shoulder joint.Dr Maguire indicated that should it become symptomatic it will be necessary to remove it.He estimated that the cost of the procedure to remove it is about $3200.I must make allowance for the possibility that the plaintiff will require the surgical procedure later in life.I allow $2000 for future medical expenses.
Finally I come to the plaintiff's claim for special damages.It is agreed between the parties that the quantum of the plaintiff's claim for special damages amounts to $20,553.80.The sum of $4902.80 for medical and other expenses were paid by The Insurance Assistance Committee of SGIC on behalf of the plaintiff, during the period prior to 1990, pursuant to Section 59 of the 1971 Act.The balance of $15,651 for medical and other expenses were paid by WorkCover.
Turning first to the plaintiff's claim for special damages represented by the sum of $4902.80 I originally understood the defendants to be submitting that the plaintiff was not entitled to be paid that amount because he suffered no loss.The submission involved an alleged agreement between the three defendants.However, it is not necessary for me to consider this submission because in the end the defendants did not pursue it.The result of not pursuing that submission is that this amount of the special damages was not challenged.Therefore, I allow that sum of $4902.80 as special damages.
With regard to the sum of $15,651 paid by WorkCover the defendants submit, as they have done regarding past loss of earning capacity, that the plaintiff has been compensated for these damages.These special damages have been paid by WorkCover.They were paid purportedly pursuant to Section 32 of the WorkCover Act.However, for the same reasons which I have given in relation to the claim for past loss of earning capacity, I am of the opinion that such payments were not made under the WorkCover Act.As a result WorkCover cannot recover the moneys paid pursuant to Section 54(7) of the WorkCover Act.The plaintiff has therefore not suffered the loss claimed.In other words, the plaintiff has been compensated for those expenses.As a result, the plaintiff's claim for special damages amounting to $15,651 is disallowed.
In summary the heads of damages are assessed as follows:-
1.Pain and suffering and loss of amenities $45,000
(I allow $20,000 for the past and $25,000
for the future)
2.Loss of past earning capacity $3,455
3.Loss of future earning capacity $100,000
4.Future medical expenses $2,000
5.Special Damages $4902.80
I therefore assess the plaintiff's damages at $155,357.80.
The defendants have accepted liability to the extent of ninety-five percent of the plaintiff's assessed damages thus the amount so assessed is reduced to $147,589.91.
The final step to be taken is to proceed to enter judgment against the defendants.However, it is here that a difficulty arises.
The defendant PBC has been sued in its capacity as the employer of the plaintiff.As a result I am required to consider the provisions of the 1971 Act in entering judgment against PBC.I have previously stated that the plaintiff received compensation under the 1971 Act.He received a total of $4697.42 by way of weekly payments and $4902.80 expenses pursuant to Section 59 of the 1971 Act was paid on his behalf.Thus the plaintiff received benefits totalling $9600.22.Pursuant to Section 82(6) of the 1971 Act I am obliged to deduct it from the sum of $147,589.91 thereby leaving an amount of $137,989.69 (see: Bassanese v Freightbases Pty Ltd (1982) 29 SASR 300; Kassos v State of South Australia (1982) 29 SASR 375).
The problem arises because Section 82(6) of the 1971 Act has no application to the second and third defendants.This raises the possibility of a different judgment being entered against PBC than the judgment entered against the second and third defendants.Such a possibility immediately raises the question whether such a course is prohibited because of the common law rule that "where two or more tortfeasors were sued for damages for a joint tort, only one judgment for one sum of damages could be given in favour of the plaintiff" (see: XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1984-85) 155 CLR 448 per Gibbs C J at 454).However, there is authority to suggest that the rule may, in appropriate circumstances, yield to the requirements of a particular case (see: Egglestone v Harley Engineers Pty Ltd and Merrett (1979) 21 SASR 51; Martin v Stratman and Manning (Judgment of Cox J delivered 27 October 1992: Judgment No. S3645).
The effect of entering separate judgments would be that there would be a judgment against PBC for $137,989.69 and a judgment against the second and third defendants for $147,589.91.Mr Heinrich, counsel for the defendants, submitted that if that occurred it would operate unfairly against the second and third defendants as the effect of the plaintiff's judgment against those two defendants would be that the plaintiff would obtain a benefit to which he is not entitled.The amount of such judgment would contain special damages of $4902.80, being the Section 59 expenses paid by PBC on behalf of the plaintiff. The plaintiff would thus obtain compensation for a loss he has not incurred. Furthermore, so submitted Mr Heinrich, the plaintiff has already received weekly compensation payments of $4697.42 and the period of absence from work represented by those payments would have been taken into account in the assessment of the plaintiff's past loss of earning capacity.Therefore, once again, so said Mr Heinrich, the plaintiff was being compensated twice for the same loss.
Mr Heinrich also pointed to the agreement he submitted is evidenced by letters passing between Minter Ellison and Gun and Davey which were admitted as Exhibit D12, whereby PBC has agreed with the other defendants to waive its right to any workers compensation payments made by PBC pursuant to the 1971 Act.He also stated in Court that PBC waived any rights to the recovery of those workers compensation payments from the plaintiff.
Mr Heinrich submitted that if judgment was entered against the second and third defendants for an amount which included the sum $9600.22 the plaintiff would be unjustly enriched to the extent of that amount.He submitted that in those circumstances I had power to deduct the sum of $9600.22 from the damages assessed.This would result in a judgment being entered for the same sum of money against all defendants.Mr Heinrich did not refer me to any authorities to support his submission.
Mr Bryant, submitted, that the decisions of Egglestone and Martin authorised me to enter separate judgments against PBC on the one hand and the second and third defendants on the other for different amounts.He submitted that any "unjust enrichment" which Mr Heinrich complained of could be easily overcome by PBC using the provisions of Section 84(b), (c) or (d) of the 1971 Act to recover those payments of workers compensation under the 1971 Act. This, Mr Bryant said, was a practical way of overcoming any "unjust enrichment".
Section 84 of the 1971 Act reads:-
"84. Where the injury for which compensation is payable under this Act was caused under circumstances creating a legal liability in some person other than the employer (which other person is hereinafter called "the third party") to pay damages in respect thereof the following provisions shall apply -
(a)the workman may take proceedings both against the third party to recover damages and against the employer for compensation;
(b)a workman who receives any money from a third party in respect of an injury and compensation under this Act shall repay to the employer such amount of that compensation as does not exceed the amount recovered from the third party;
(c)upon notice to the third party, the employer shall have a first charge on moneys payable by the third party to the workman, to the extent of any compensation which the employer has paid to the workman;
(d)if the workman has received compensation under this Act, but no damages or less than the full amount of the damages to which he is or was entitled, the third party shall be liable to indemnify the employer against so much of the compensation paid to the workman as does not exceed the damages to which the worker is or was entitled but has not received and the employer may enforce the indemnity against the third party by action;
and
(e)payment of money by a third party to the employer pursuant to paragraph (d) of this section shall, to the extent of the amount paid, be a satisfaction of the liability of the third party to the workman."
In my opinion, Section 84 of the 1971 Act does not create any rights in PBC in the present circumstances.Section 84 only has application to an employer where the employer has no liability to the employee in relation to the compensable injury other than the statutory liability to pay workers compensation.Where the employer's negligence has contributed to the event that caused the employee's injury then the Section has no application (see: Public Transport Commission of New South Wales v J. Murray More (NSW) Pty Ltd
(1975) 132 CLR 336:Martin v Stratman and Manning (supra).
In my view the problem may be solved by applying what the High Court referred to in Manser v Spry (supra) at page 437 as "the dominant rule".It is worth repeating here part of the passage I quoted earlier from the decision of Walsh J A in Adams Iron Foundry Pty Ltd(supra) at page 134:-
"Therefore, if 'the dominant rule' is that the wrongdoer is liable only for such damages as, by reason of his wrongdoing, the plaintiff sustained, and, if in consequence 'matters occurring after an injury that in fact mitigate its consequences are ordinarily to be taken into account in assessing damages' (see Espagne's case ), then, to allow the plaintiff to recover damages in full from the defendant for his incapacity and also to retain all the benefits under the Act is a departure from the dominant rule."
As I said earlier, the sum of $4697.42 represents payments of weekly compensation payments.The sum of $4902.80 represents Section 59 medical and other expenses.Such payments may be characterised as payments by way of compensation to the plaintiff for part his loss of income prior to the date of trial and as compensation for expenses incurred in the treatment of his injuries.That being the case the plaintiff is not entitled to receive compensation twice for those losses.This would be the result if judgment was entered against the first and second defendants for $147,589.91.In my opinion "the dominant rule" should be applied here to prevent double compensation.
In normal circumstances the deduction of such amounts would take place in the assessment process.However, if that took place in this case it would have the effect of there being two assessments of damages.The first would be in relation to the claim against PBC and the second for the claim against the second and third defendants.This seems to me to be most unsatisfactory.The same result can be achieved by deducting the sum of $9600.22 from the assessment of $147,589.91 as it applies to the second and third defendants thus leaving an amount of $137,989.69 which is precisely the same amount for which judgment against PBC is to be entered.Such a course was alluded to by Cox J in the decision Martin v Stratman and Manning (supra) at pages 12-13 where he said:-
It is as well to approach any discussion of this question with certain basic principles in mind.Although a plaintiff's damages may be assessed at a particular figure, it does not necessarily follow that judgement will be entered for that amount.It may have to be reduced, for instance, to allow for the plaintiff's contributory negligence.He may have received from the defendant an advance payment.In this case the plaintiff received $56,387 for workers compensation.If Stratman were the only defendant, the position would be quite clear.The compensation payments would be deducted from the assessed damages and judgement entered for the balance.That procedure complies with the requirements of the workers compensation legislation, but even without it some at least of the compensation payments (for instance, the medical expenses), perhaps all of the, would have to come off in accordance with the principle against double recover.Where there are two defendants, the employer and a concurrent tortfeasor, the employer would normally get a credit for the compensation payments before judgement is entered against him but the circumstances may also require, exceptionally, some adjustment to be made to the amount for which judgement is entered against the co-defendant.It is true that the compensation payments only operate to reduce an employer's common law liability to the worker; where the compensation exceeds the damages, the employer is not entitled to a refund of the balance.Nevertheless the principle against double payment may influence, directly or indirectly, the amount of the damages payable by the co-defendant as well."
There will be judgment for the plaintiff against the defendants for the sum of $137,989.69.
I will hear the parties regarding interest and costs.
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