DAVIES v Delta Corporation Ltd - [2001] WADC 190

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: DAVIES -v- DELTA CORPORATION LTD [2001] WADC 190

CORAM: WILLIAMS DCJ

HEARD: 23-27 JULY 2001 AND 30-31 JULY 2001

DELIVERED : 10 AUGUST 2001

FILE NO/S: CIV 759 of 1998

BETWEEN: MARK ANTHONY DAVIES
Plaintiff
AND
DELTA CORPORATION LTD
Defendant

Catchwords:

Negligence - Employer and employee - Unsafe system of work - Plaintiff using grinder with wire brush attached and alleging bristles entered body - Defendant alleging self-mutilation

Legislation:

Workers' Compensation and Rehabilitation Act 1981

Result:

Plaintiff successful
Damages assessed at $725,184.60

Representation:

Counsel:

Plaintiff: Mr C Pullin QC and Mr J McManus
Defendant: Mr D Clyne

Solicitors:

Plaintiff: James McManus & Associates
Defendant: Civitella Smith

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

Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301
Briginshaw v Briginshaw (1938) 60 CLR 336
Commissioner of Railways v Ruprecht (1979) 142 CLR 563
Coyne v Citizen Finance Ltd (1991) 172 CLR 211
Gloux v W M C Resources Ltd [2001] WASCA 28
Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18
Harold and Weekly Times Ltd v McGregor (1928) 41 CLR 254
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170
Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492
Triggell v Pheeney (1951) 82 CLR 497

Case(s) also cited:

Nil

WILLIAMS DCJ:

The Issues

The plaintiff alleges that on 29 July 1993 in the course of his employment with the defendant he was using a four inch grinder with an attached steel wire brush cleaning concrete film from vertical shutters when bristles from the brush suffered severe breakage and the bristles entered the plaintiff's body ("the accident").
The plaintiff alleges the accident was caused by the negligence of the defendant and that as a result of the accident he has suffered injuries, loss and damage.
The defendant denies negligence and that the plaintiff suffered injuries, loss and damage as alleged.
The defendant further says that if the plaintiff did suffer injuries, loss and damage they were caused wholly or in part by the plaintiff's own negligence.
The defendant further says that the injuries and resultant treatment were self-inflicted by the plaintiff who deliberately inserted the bristles into his own body.
The defendant further says that if bristles did enter the plaintiff's body on 29 July 1993 then only two bristles entered the plaintiff's right forearm and were removed by Mr Graeme Clarke on 29 July 1993 and all other bristles subsequently removed from the plaintiff's body were deliberately inserted by the plaintiff into his own body.
The defendant further alleges that if the plaintiff is suffering from the alleged injuries, the injuries are not a "serious disability" under s 93D(1) of the Workers' Compensation and Rehabilitation Act 1981.
By reason of the defendant alleging that the plaintiff has engaged in the practice of self-mutilation for the purposes of supporting his claim, the plaintiff claims aggravated damages.

The plaintiff's evidence

The plaintiff was born on 23 March 1971. He attended primary school and secondary school and left school at the end of year 11. In February 1988 he commenced employment with the defendant. He has been employed by the defendant as a labourer, crane driver and a first aid officer. In the course of his employment with the defendant he completed a crane driver's course and a first aid officer's course.
The plaintiff was married in November 1991 and divorced in 1998 and has no children.
The defendant operated from premises in Campersic Road, Herne Hill and was in the business of the manufacture of concrete slabs and sleepers. There was a medium pre-cast section, a slab section, pre-cast panels sections one, two and three, a steel fixing section and a storage section.
The plaintiff initially commenced in the slab section and then moved to the pre-cast two section. He then later returned to the slab section.
In about March 1993 he commenced in the pre-cast one section which produced concrete sleepers. That involved setting up the steel sections that make up the plates or moulds which were held together with pins and rivets. The moulds were approximately 30 metres long. Twenty stress wires were run through the mould and the wire ligatures tied. When the mould was ready the concrete was poured into the mould and cured overnight. The following day the sleepers were removed from the mould. Thereafter followed a process of cleaning the slurry from the inside of the steel moulds. This involved the use of steel brushes attached to angle grinders. This was a process with which the plaintiff was familiar, he having used the steel brushes and angle grinders everyday when he was in the stress floor section. In that section the steel brushes were used horizontally on a flat surface.
On 8 November 1990 whilst working in the stress floor section cleaning a mould with a wire brush he felt things hitting him and he had a bad pain in his leg. He reported to his supervisor and was told to go and see the doctor. He attended at the St Andrew's Medical Group in Midland where he had a wire bristle removed from his leg. He also had a wire bristle removed from his hand on that or another occasion.
As at 29 July 1993 the plaintiff had done five pours in the sleeper section.
On that day he commenced work at 6.30 am. He was wearing long pants, boots, shirt and a blue jacket. He distressed the wires and cut the sleepers out. According to the plaintiff, Mr Matt Parella, whom he described as the person who oversees the whole factory and the plaintiff's foreman, Alan Foskett, were discussing the poor quality of the sleepers. He went over to them and one of them told him to get a wire brush and to clean the mould. He replied that he would do it if he could have a smaller angle grinder with a brush to it, because if he used a 9 inch angle grinder and brush and something happened he would be in a lot of trouble because of the confined area. Mr Parella walked away. About 10 minutes later Mr Foskett returned with a small brush and told him to attach it to a 4 inch grinder. He was previously only familiar with a 9 inch grinder and brush.
The moulds had accumulated slurry and concrete on the inside. He worked with one foot inside the mould and one foot outside. He had to use the angle grinder vertically and his whole body was in line with it. He had not used an angle grinder in such a confined area before. He described the brush that he was using as brand new but with no safety skirt. He could see rust fragments on it. He was wearing a facemask at the time. He could feel something hitting him and he felt a prick near his nose and stopped work. He went and put on safety glasses as well as the face mask and then continued. A short time later he felt a tap on his shoulder so he turned the grinder off and ran it down. He noticed that the wire brush had about two thirds of its bristles missing and was unusable again. When using the brush he felt like he was being hit by sand from his feet to his eyes.
He reported a pain in his right arm and was told to go and see a doctor. He saw a Dr Gallagher at St Andrew's Medical Group in Midland. He was x‑rayed and bristles were noted in his arm. He was referred to a general surgeon, Mr Clarke, who removed the fibres from his right arm. That was done under a general anaesthetic and he was discharged.
The following day he had a sore throat and so he returned to the doctor and an x-ray showed another bristle. He had a second operation to the right side of his neck under general anaesthetic.
He then returned to work.
At that time the plaintiff was playing Sunday league football and noticed a lot of pain. He went back to his general practitioner, Dr Wheedon. He took further x‑rays and found more bristles. On 10 September 1993 the bristles were removed at St Anne's Hospital by Mr Clarke.
His then wife kept records of his various hospital attendances and the number of wires. After that he returned to work and worked near other persons using brushes. He refused to use a wire brush again.
On 23 December 1993 he attended upon Mr Clarke complaining of neck pain and shoulder pain. Dr Clarke gave him a medical certificate. He was feeling sharp jabs over the whole of his body.
On 4 July 1994 three further wires were removed.
On 17 January 1995 Dr Clarke wrote to the defendant in the following terms:
"Mark has asked me to write to you with respect to the multiple operations which he is having to undergo for wire bristle implantations suffered at work on 29^th of July, 1993.
You'll appreciate that these wire bristles are sharp and extremely fine. It creates considerable problems to try and identify whether or not there are any further bristles inside him. Straight X-rays have not been effective in identifying all the little wire bristles. He's had a CT scan and this too has failed to positively identify the wire bristles. The problem is that when they are so fine that if they lie end-on to the X-ray or if they over-lie the bones then they simply cannot be seen at that particular time by that particular X-ray. These bristles being so sharp have a tendency to migrate into new positions and as they do Mark recognises symptoms from this and they are usually able to be detected with X-ray and then removed surgically.
I wish that there was a magic X-ray or other machine that would positively identify every single last bristle within him such that he wouldn't need to continue to undergo repeated operations, however, such machinery doesn't exist and for the foreseeable future until the last bristle is finally removed Mark is going to have to undergo further X-rays and surgery as each new symptomatic bristle comes to light.
It's a very difficult situation obviously for all concerned. Mark wanted me to explain the situation to you to highlight the genuine nature of his problem so that he can have your on-going support as he faces each operation."
On 6 February 1995 Dr Clarke referred him to Dr C Lee, a Clinical Psychologist. His letter to Dr Lee is as follows.
"Thank you for seeing Mark Davies.
In 1993 he was showered with wire bristles from a fast rotating wire brush at work.
Over the last eighteen months or so he's had ten operations to remove wire fragments. They are quite deeply embedded and every now and then become symptomatic when they move and impinge on vital structures. He's had them removed from a number of sites including his trachea, brachial plexus, and popliteal fossa in the region of the common perineal nerve. There have also been a large number of others in more superficial locations.
Mark has put up with the affects of this over the last year or so but now this whole saga is starting to get on top of him. He's having nightmares about being attacked by a wire brush.
I think he would benefit from psychiatric counselling and your help with this matter is greatly appreciated.
Many thanks for seeing this man."
At that time he was having nightmares and waking up sweaty after visualising being attacked by brushes. This was occurring two to three times per week. He had never sought psychiatric or psychological assistance before. He attended on Dr Lee on 2 or 3 occasions. He discontinued treatment because of a lack of funds.
On 22 February 1995 he was back in hospital again. He had a further operation on 15 March 1995 and was discharged on 17 March 1995. The wires were removed at the Swan Districts Hospital.
He was admitted for psychiatric disorders at the Sir Charles Gairdner Hospital on 11 April 1995 where he was treated with drugs. He underwent a series of operations for removal of bristles in May, June, July, August and September 1995.
On 30 November 1995 a wire bristle was found in his left ankle. It was infected at the time of removal and the site of this bristle and its removal have caused continuing problems. He was admitted to the Swan Districts Hospital for depression and treated with drugs.
He was required to undergo a further operation on the left ankle which had swelled up like a football. He finished work in February 1996 because the leg became too painful and sore. He was transferred to Sir Charles Gairdner Hospital and remained there for four months. He was treated by Mr Allan, a Plastic Surgeon, and remained in Sir Charles Gairdner Hospital from 28 March 1996 to 6 July 1996. He underwent debridement of the wound and skin grafts. The wound was not healing. At that time another bristle was found in the right rib area and removed. The problem with his ankle has continued to cause problems. The last time he was in hospital was this year between 5 April 2001 and 2 May 2001 when the wound was again debrided. He had to have a flap taken from his arm to the leg. He had to have a flap taken from the rear of the leg to the calf. An ulcer formed at one stage. He is now only able to walk short distances. The leg throbs when sitting. He has no feeling in the upper part of the foot. When he lifts the foot it crimps and flexion is restricted.
After a long time in hospital he had more bristles removed in 1996. In 1997 he was attending at Sir Charles Gairdner Hospital for dressings as a day patient. He had his leg in plaster for some time in 1996. He was unable to carry out his prior occupation because he could not stand on his feet all day. In November 1997 he was referred to a Dr John Rosenthal at the request of the defendant. He saw that doctor on only one occasion. However he subsequently learnt of a report written by Dr Rosenthal in which the doctor suggested that the plaintiff was self-mutilating. This made him feel ill. He realised then that the defendant was alleging that he was self-mutilating.
He was back in Sir Charles Gairdner Hospital between 14 April and 21 April 1998.
It was whilst he was in hospital that his wife told him that she was unable to cope anymore and they separated from that time on. She thought that his attitude had changed and he felt like a failure. They were divorced on 17 September 1999.
In 1999 he saw Professor Burvill, a Psychiatrist. At the request of the defendant he saw a surgeon Mr John Saunders.
He saw Mr Saunders on one occasion for approximately an hour. He later heard that Mr Saunders was accusing him of self-mutilation. Again he felt very angry and sick. He denied that he was inserting wire bristles into himself.
His last operation for removal of bristles was in July 2000.
After each of his operations he was given the bristles in specimen jars and he took those home and kept them. Both he and his wife looked after them. He also kept the bristles from his operation in 1990. He gave them to his former solicitor.
The plaintiff was supported in his evidence by a number of witnesses.
Mr Kurt Kuvekalovic was employed by the defendant between 1990 and 1995. His evidence was that the wire brushes and angle grinders were in common use. He himself had received wire fragments. On one occasion he was at home having a shower and he notice a wire bristle protruding from his thigh. It was 25 millimetres long. He did not know how that happened.
Mr Henry Fedec was employed by the defendant between 1987 and 1997. It was his evidence that the angle grinders and the wire brushes were used and that he was penetrated on quite a few occasions. Prior to the plaintiff's incident there were no leather aprons used when using the angle grinders and wire brushes. After the plaintiff's incident he returned to work and was working with Fedec in close proximity to other wire brushes.
Mr Darryl Kennedy was a shop steward for the Builders' Labourers' Federation and was employed by the defendant between 1986 and 1995. He recalled the plaintiff's incident. Following that incident he went to the section and to the foreman's office and spoke to Mr Alan Foskett. Mr Foskett told him that the wire brush had exploded. He was shown the brush and he asked if he could take it but was told that he could not have it. He noted that half to three-quarters of the wire bristles were missing.
Mr Peter Sarich worked for the defendant between 1989 and 1993. He also used angle grinders and wire brushes and from time to time was hit with fragments that penetrated the skin. Sometimes he would not realise that this had occurred.
Mr Kevin Davies is the younger brother of the plaintiff. He worked for the defendant between 1988 and 1994. He also had occasions to use the angle grinders and wire brushes. On two occasions he had to remove wire bristles from his body. One was between his index finger and was 25 millimetres long. He had no idea how it happened. On another occasion he felt one whilst under the shower. That also was 25 millimetres long and was half imbedded.
Mr Alan Foskett was acting foreman on the plaintiff's section as at 29 July 1993. He confirmed that the plaintiff was working on the sleeper moulds and had to prepare for the next cast and was cleaning with a wire brush. He described is as a four to five inch angle grinder with a suitable brush. He had requisitioned the brush from stores. It was a brand new brush which he handed to the plaintiff. The brush was subsequently returned to him and he noted that it had bristles missing. He was led to believe that bristles had gone into the plaintiff. He put the brush in the bottom draw of his desk but does not know what happened to it after that day.
He gave no instructions to the plaintiff about how to use the brush. He himself had had a penetration of a bristle just below the knee. He accepted that it was a well known hazard on site. He was having a shower when he found the bristle. It was his view that you could easy mistake the bristles as it felt like sand hitting your body.

Was there an accident?

In my view it is quite apparent from the evidence of the plaintiff, Mr Kennedy and Mr Foskett that there was an incident on the day in question. The brush had been brought back to Mr Foskett which he placed in a draw in his desk. Mr Kennedy saw fit to attend on Mr Foskett on that day. Mr Kennedy observed the brush and tried to obtain it. Even the defendant's medical expert, Mr Saunders, accepted that there was an initial penetration on 29 July 1993. Bristles were removed from the plaintiff's arm on that day. On 2 August 1993 the plaintiff required an operation on his neck and on 10 September 1993 further bristles were removed. He was back in hospital at Christmas time 1993 with damage to a nerve.
In 1994 there were a series of removals.
There is no evidence to dispute the plaintiff's evidence as to how the alleged accident occurred and I accept his evidence entirely. The defendant was the plaintiff's employer on 29 July 1993. The plaintiff was injured on that date in the course of his employment when using an electric powered steel wire brush, cleaning concrete from vertical shutters when bristles broke off and entered the plaintiff's body.
The plaintiff and the defendant were in the relationship of employer and employee. The defendant therefore owed the plaintiff a duty to take reasonable care to avoid exposing him to unnecessary risks of injury: Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18 at 25; Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301; Gloux v W M C Resources Ltd [2001] WASCA 28.
There was a foreseeable risk of injury. There is evidence that metal bristles from wire brushes had penetrated the flesh of other employees before July 1993.
There was a reasonably practical means of obviating the risk. The first was by providing leather aprons, gloves and a face mask when wire brushes were being used. The second was by maintaining guards on the brushes. The third was by appropriate instructions and warnings about the dangers and need for protective equipment. The defendant did not seek to justify its position on any of those matters, largely relying on its allegations that no bristles entered the plaintiff's body on that date and that the plaintiff was self-mutilating.

Mr Apgard's report (Exhibit 20) contains a manufacturers statement in relation to Talus Industrial Power Brushes. That contains the statement "Do not use if brushes are rusty". The manufacturer recognised the hazard. In my view this is a clear case of negligence.
The injuries clearly belong to the class of injuries to which the risk exposed him.
Finally the employer failed to eliminate the risk by the means indicated and therefore breached its duty of care.
It is my finding that the defendant has been negligent.

Contributory Negligence

The defendant has pleaded in the alternative that the plaintiff is guilty of contributory negligence. A plaintiff will not be guilty of contributory negligence if he has been directed to carry out work without the provision of any protective clothing. In this case the plaintiff was simply carrying out work in accordance with the directions given to him by a foreman and to advance the defendant's interests. In these circumstances the plaintiff should not be held guilty of contributory negligence: Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492; Bankstown Foundry Pty Ltd v Braistina (supra); Commissioner of Railways v Ruprecht (1979) 142 CLR 563 at 577.

How many bristles entered the plaintiff's body?

It is the submission of the defendant that none of the bristles entered the plaintiff's body on 29 July 1993 or in the alternative that only two bristles entered his body on that date.
It is clear from the evidence of the witnesses who saw the wire brush that a very substantial number of bristles broke off the wire brush. Some 167 bristles have been removed from the plaintiff's body. Most of these were removed by Mr Clarke, the general surgeon. He did not see anything unusual with the removal of the bristles. It is clear from his medical reports at the time that he was always of the view that the bristles entered the plaintiff's body on 29 July 1993. He was still of that view when giving evidence.
Because the length of the wires which have been recovered from Mr Davies' body are in the range of 5 to 24 millimetres, and there are many instances of broken ends, it is clear that the brush disintegrated by pieces progressively breaking off. The number of bristles removed from Mr Davies body amounted to 167.
The evidence of Mr Apgar a forensic engineer and Mr Price a physicist is that the forces at work could cause penetration of the flesh. The evidence of other witnesses is that up to 25 millimetres do completely penetrate the flesh. The lengths of the wires which have penetrated Mr Davies are therefore consistent with that technical evidence and the evidence of the other witnesses.
The examination of the ends of the wires suggest that the mechanism involved in the breaking up of the brush was as follows. As the brush was operated, Mr Davies commenced to push the side of the brush against the metal formwork so that the bunches of wires flexed and reflexed at each rotation, and some of the longer wires began to wear. Almost at once some of the longer worn wires were broken off. Eighty-one (or 46 per cent) are worn on one end and the other end broken (see item 3 in Exhibit 42). In the bundles of wires, the flexing and rotation was sufficient to break off some of the wires which were not actually striking the surface. Twenty-one (or 12 per cent) broke off in this way (see item 2 in Exhibit 42). That and the above category account for 58 per cent of the wires. Then some wires broke and then broke again. Twenty-four (or 13 per cent) came adrift in this way (see item 5 in Exhibit 42). That and the above categories account for 71 per cent of all the bristles. A further 26 (or 15 per cent) are in a condition where it is not possible to indicate what the condition is at either one end or both ends (see items 8, 9, 10, 11 and 12 in Exhibit 42). That and the above categories account for 86 per cent of all the bristles.
A further 21 (or 12 per cent) present something of a puzzle because they are cut both ends or either worn and cut. That and the above categories account for 100 per cent of the bristles. This category is a puzzle but the Court is hampered by the complete lack of evidence about the manufacturing process.
Mr Apgar, whose evidence was not objected to, hypothesised that these 21 wires could be explained if short wires had been trapped in the manufacturing process. Mr Townend disagreed but he conceded that he had no experience whatever in the manufacturing process, and this evidence was objected to.
The evidence of Mr Laczko a metallurgist (Exhibit 35) is that the wire in these brushes is very sensitive to stress corrosion, cracking and hydrogen imbrittlement if exposed to moisture. The evidence of Mr Davies was that the brush had flecks of rust on it visible on casual observation.
Mr Davies had one stainless steel bristle removed from his body. He also had a few bristles removed from his back. It may be the case that some of those have migrated. It may be the case that he has been hit by other bristles at work on different occasions. All are close to the area of the margins that were exposed by Mr Davies on the day of his accident. In my view it is quite possible that there has been a movement.
It is the defendant's argument that the plaintiff must have felt the bristles entering his body and seen the blood. However all of the other witnesses say that it can happen without being noticed. That included Mr Foskett, the acting foreman called by the defendant.
The bristle which had to be removed which led to the serious problems associated with the left ankle was removed at the end of 1995 and is in the container dated 30 December 1995. It contained wire numbers 104 to 108 on Mr Apgar's table (see Exhibit 20). The relevant data in relation to those wires from Mr Apgar's table is as follows:

Wire No	Wire Length mm	Wire Diameter mm	End 1	End 2	Comments
104	15.6	0.43	W	B	Black/bright break
105	17.2	0.42	W	B	Black/bright break
106	18.0	0.39	B	B	Curved 2 black ends
107	18.7	0.40	W	B	Black/bright break
108	14.6	0.40	B	B	Kink & black ends

B = broken end

W = worn end

Doctor Bastow a scientist (in Exhibit 20) provides the following data:

Sample	Length	Width 1	Width 2	Max Width
30/12/95	18	0.41	0.42	0.42
30/12/95	19	0.4	0.41	0.41
30/12/95	17	0.41	0.42	0.42
30/12/95	15	0.38	0.39	0.39
30/12/95	16	0.39	0.38	0.39

Bristles of these diameters fit within the normal distribution curve and indeed fit in the middle of the normal distribution curve. See Dr Bastow's histogram (Exhibits 27 and 33). Dr Bastow's unimodel distribution of widths suggests the wires have come from the same brush with variations due to wear and limits in the specifications of the wire. 86 per cent of the wires were between 0.38 and 0.46 millimetres.
All fibres have either "worn" and "broken" ends, or "broken" and "broken" ends.
These fibres are not anomalous in any respect and on the balance of probability these fibres entered Mr Davies' body on 29 July 1993. It is my finding of fact that on the balance of probabilities at least 86 per cent of the bristles entered the plaintiff's body on 29 July 1993. Typically that included the bristle that caused the injury to the left ankle.

Self-Mutilation

The defendant alleges that all of the injuries and resultant symptoms and disabilities were self-inflicted by the plaintiff. It is alleged that he deliberately inserted all of the bristles into his own body. To allege that the plaintiff intentionally inflicted harm and then sued for damages is to allege fraud on the part of the plaintiff. The onus is on the defendant to prove fraud by clear and cogent evidence: Briginshaw v Briginshaw (1938) 60 CLR 336; Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170.
This matter was first raised as a possibility by Dr John Rosenthal who saw the plaintiff at the request of the defendant in November 1997. Dr Rosenthal was not called as a witness by the defendant and his report was not tendered.
The only medical witness for the defendant who expressed the view that the plaintiff was self-mutilating was Mr John Saunders who described himself as practising rehabilitation surgeon. Dr Saunders diagnosed Munchausen's syndrome. Having heard from the Consultant Psychiatrist, Professor Burvill, I am of the view that that is not the same as self-mutilation. Furthermore I am of the view that Mr Saunders is not qualified to diagnose Munchausen's syndrome. Munchausen's syndrome is a psychiatric disorder and Mr Saunders is not a psychiatrist. In any event I note that the defendant did not plead by way of defence that the plaintiff suffered from Munchausen's syndrome. Neither did the defendant plead that the ulcer which appeared on the defendant's left leg was artificially produced as alleged by Mr Saunders. I do not accept Mr Saunders diagnosis of Munchausen's syndrome or of self-mutilation. Dr Saunders' evidence was to the effect that he hires himself out to insurance companies. He received information from the insurance company and he examined the plaintiff for one hour. He telephoned a radiologist. He looked at photographs of the left ankle and concluded that there had been self-mutilation and tampering with the wound. In the light of the evidence of the plaintiff's general surgeon, Mr Clarke who operated on the plaintiff on 39 occasions, and the plaintiff's plastic surgeon, Mr Allen, who dealt with the wound on his left ankle, the allegations are nothing short of preposterous. All of the medical practitioners who treated the plaintiff do not accept that he has been self-mutilating. I much prefer the evidence of the team of medical practitioners who assessed and treated the plaintiff. I prefer their evidence to that of Mr Saunders.
The other medical evidence relied upon by the defendant is that of Dr John Glancy, a Radiologist. He examined some 85 radiographs and found that in eight instances the plaintiff's anatomy had been radiographed more than once with differing results. That is foreign bodies were easily seen on one occasion but not on an earlier occasion. These radiographs range from eight to 18 months apart. Dr Glancy conceded that the bristles could migrate but not by that much. However he accepted that he had not studied the topic or reviewed the literature.
I prefer the evidence of Mr Clarke who had personal experience of the bristles migrating in the plaintiff's body even at the time of operating. Additionally he had studied the literature and gave evidence of kirshner wires migrating long distances from the edge of the shoulder to the trachea. There were many instances of this occurring.
I prefer the evidence of Mr Clarke to that of Dr Glancy with respect to this aspect.

Technical evidence

The defendant called Dr Paul Townend, a Consulting Engineer. He first became involved in this matter when he received two containers of two wires each from the defendant's solicitors in July 1997. In December 1998 he saw 166 wires. According to his evidence at that time he formed the impression that the wires were 20 millimetres long but he did not measure any. The week before the commencement of the trial he saw the wires again and according to his evidence he was surprised by the appearance of the wires. He telephoned the solicitors for the defendants to say that the wires had been tampered with. His reasons for saying that were because the wires appeared to him to be shorter than when he had seen them in December 1998 and 40 of the wires had fresh breaks. However having heard the evidence of Mr Apgar and Dr Bastow he accepted in cross-examination that the measurements were correct and withdrew his allegation that the wires had been tampered with because of their size. When cross-examined as to the 40 new bright ends that were not there when he saw them he was reduced to stating that he could not eliminate the possibility that a minute amount had been broken off each of the wires so that they still came within the measurements made by Mr Apgar and Dr Bastow.
He confirmed that in December 1998 he did not measure the wires because he had been told that the measurements had already been taken. He did not measure either for length or diameter. Neither did he reduce to writing his observations on his examination of the wires. He accepted that all the Court had was his general statement of what the position was.
In my view this evidence from Dr Townend completely destroys his credibility as a witness generally. It was a serious allegation to make that the 166 wires seen by him had been tampered with. He came to that conclusion because 40 had what he described as bright ends and all of the wires appeared to him to be reduced in size. He withdrew the allegation that the wires were shorter and was left with the proposition that somebody had broken off small ends from 40 wires. In short his evidence was that a scientist had tampered with the wires. In my view both theories were outlandish and reveal an unscientific mind. Dr Townend had accused an unknown person of tampering with the wires even though he had not taken measurements himself.
I reject the allegations of tampering and/or substitution. It is my finding that the fibres came out of the plaintiff's body. It is also my finding that that is the form in which they came out.
It is Dr Townend's evidence that some 14 wires are anomalous but in my view they are all likely to have come from the one source.
The overwhelming number of wires are uniform in appearance. Any differences may be due to the manufacturing process. There has been no evidence led by the defendant with respect to the manufacturing process. The defendant alleges fraud in this case and the defendant has to lead strong evidence of fraud. Professor Burvill says that the plaintiff would have to be psychotic to be inserting these wires into himself. The plaintiff is not psychotic. His treating doctors thought him an attractive personality. By reason of the operations he descended into depression and was required to be treated on two occasions.
The clear evidence is that these wires do penetrate the flesh and treating surgeon Mr Clarke saw no evidence that he was inserting wires into himself and neither did his former wife.
The evidence indicates that some of the wires were asymptomatic for many months. The evidence also indicates that they can and do migrate. The evidence also indicates that they can be missed on x-rays.
The one fibre in his left ankle was asymptomatic to December 1995. I reject the defendant's submission that that could not have occurred because he was wearing boots. It would appear that it was at about the level of the boots. It was a serious and permanent disability.
In my view the plaintiff's behaviour has been consistent throughout. I had no problem in accepting him as a credible witness and clearly all of his treating medical specialists had no difficulty in treating him as a credible patient.
It is my finding that the defendant was negligent. It is my finding that the bristle to the ankle which caused the most serious damage entered the plaintiff's body on 29 July 1993 in the incident that he described.
I propose to assess the damages.

Loss of amenities

The plaintiff claims damages for loss of amenities being pain and suffering and loss of enjoyment of life both past and future.
The plaintiff has undergone many operations for removal of the bristles over a lengthy period of time. The left leg has required skin grafts and flaps. He has had psychiatric admissions to hospital. He has undergone x-rays, image intensification, a CT scan and an ultrasound. He has required physiotherapy for his left leg and is still being treated for his left leg. He has required psychological counselling. He has been required to take drugs including pethadine, morphine and epidurals. He has taken Panadeine Forte, Panadol and antibiotics.
Insofar as the sensation he feels when he detects a bristle he says that it feels like a bee string and burns. Several bristles have been deeply located.
He has spent 543 days in hospital in relation to this matter.
His left leg gives him his biggest problem. It throbs when he is sitting down. It aches when he is walking. When he gets up from laying down it is painful. The cold weather affects it. He is no longer able to run or jog on the leg. He finds walking painful after approximately 20 metres. It throbs when he is driving a motor vehicle. His left arm does not feel as strong as it was because of the section removed to be used for his left leg. He tries to avoid steps as he needs a rail to assist.
He last played Australian rules football in the pre-season 1995. He is unable to dance. He just watches his friends. He is able handle his work around the house. His new partner is presently pregnant. He has recovered from the post-traumatic stress syndrome. He has had tattoos to his body to distract attention from the cosmetic effects of the surgery. He has taken to wearing an earring, a tongue stud and a nipple ring.
He had been married for two years prior to his accident. Following the accident he separated from his then wife and was divorced. Her evidence was that his attitude had changed. The plaintiff felt that the operations affected his marriage. He was unable to be intimate. He was unable to go for walks. He and his wife were arguing.
Dr Clarke operated 39 times to removed a total of 170 bristles. Each has left a cosmetic disability on his body. His left ankle is most unsightly.
For the loss of amenities I allow the sum of $75,000.

Aggravated damages

In my view there was no justification for the defendant alleging that all of the plaintiff's injuries, treatment and symptoms were brought about as a result of self inflicted injuries. It is one thing to say that they did not occur on the occasion of the accident the subject of these proceedings. However it is another thing to say that all of his injuries, treatment and symptoms are brought about as a result of self inflicted injuries. The only person who makes this statement is Mr Saunders. In my view such a defence is not bona fide because it was not justified by the evidence available to the defendant. The defendant's conduct in pleading such a defence lacks bona fides and is unjustifiable. To allege that, in effect all of the injuries, symptoms and treatment have come about as a result of self inflicted injuries has aggravated the injuries done to the plaintiff and this contention to that effect must be taken into consideration as aggravating the injury done to the plaintiff: Harold and Weekly Times Ltd v McGregor (1928) 41 CLR 254; Triggell v Pheeney (1951) 82 CLR 497 at 514; Coyne v Citizen Finance Ltd (1991) 172 CLR 211.
In my view par 4 of the defence is completely unjustified. It amounts to an allegation of fraud in relation to the accident.
It was first pleaded by the defendant on 6 February 2001.
The plaintiff's evidence was that he saw Dr John Rosenthal in November 1977 at the request of the defendant and it was subsequent to that he learnt of a report that he wrote suggesting that the plaintiff was self-mutilating. According to the plaintiff when he realised that that was what the defendant was saying made him feel sick.
He commenced drinking and his anger built up and on one occasion he broke a finger when he struck a fence with his fist.
In my view there was absolutely no justification for the allegation. Nowhere during the course of the trial did the defendant suggest how the defendant could be deliberately inserting the bristles into his own body. According to Mr Clarke some of the bristles were lodged in deep and awkward places, some 4 to 5 centimetres below the surface. Damage was caused to the nerves in removing them causing anaesthesia. One was in the trachea, two in the larynx and one in the lower eye lid.

I allow the plaintiff the sum of $10,000 aggravated damages.

Past loss of earning capacity

The plaintiff claims damages for past loss of earning capacity.
The evidence indicates that the plaintiff ceased working in February 1996 because his left leg became too painful and sore. Following that he was in hospital from 28 March 1996 to 6 July 1996. The left leg has continued to cause problems for him. He has spent further periods of time in hospital including hospitalisation this year. In 1997 he was attending at Sir Charles Gairdner Hospital for dressings as a day patient. His leg was in plaster for sometime in 1996.
According to the plaintiff he could no longer continue to carry on his prior employment as he was unable to stand on his feet all day.
According to the plaintiff if it had not been for his accident he would have still been working for the defendant. He considered that he would probably be a supervisor. His qualifications suited him for that work. He has no qualifications for a desk job.
The plaintiff's father, Mr Mark Davies, also works at Delta. The plaintiff considered that he would be earning the same as his father.
At this stage he has not considered his future. His intention is to go back to school but he has no idea as to what course to follow. If it had not been for his accident he would have continued to work until retirement at age 65.
Mr Clarke is of the view that the plaintiff should not do any employment that requires leg use such that he should not do any activity requiring walking or carrying. He would be suited to a desk job. Mr Saunders was of the view that he could return to his previous employment. Mr Clarke was his treating doctor and I much prefer his evidence in this respect.
The plaintiff has prepared a schedule of past economic loss including past superannuation and interest on those figures. The schedule comes to a total of $229,566.75 which includes gross worker's compensation paid and recoverable of $119,048.
In my view the plaintiff has shown remarkable determination in staying in his job until 1996. He had already had numerous operations prior to that date. It is unreasonable in my view to have expected the plaintiff to have been able to earn income since leaving work to the present time. He has had many medical problems to cope with and it would be unreasonable to assume that he could have also been working at the same time.
The plaintiff's schedule of past economic loss is annexed to these reasons for judgment as Annexure A. In my view a claim for $229,566.75 is reasonable and I allow that sum.

Future economic loss

The plaintiff claims damages for future economic loss at the rate of $750 per week on the basis that he is presently aged 30 years and would under normal circumstances have worked until the age of 65 years. Utilising the 6 per cent Tables the plaintiff's calculation is as follows:
$750 x 779 (6 per cent x 35 years) = $585,000.
I make that calculation $584,250.
In my view the rate claimed is reasonable and I accept the proposition that the plaintiff would have continued to work to age 65. To all intents and purposes he appeared to be a conscientious employee. He commenced work with the defendant the year after leaving school. Following his accident he attempted to get back to work for a number of years.
It is however clear that the plaintiff will have to get on with his life. He accepts that he will need to go back to school and to obtain qualifications and to seek sedentary employment.
In my view if I discounted that figure by 50 per cent for retained earning capacity that would be a reasonable sum to allow the plaintiff. I discount the sum of $584,250 by 50 per cent and allow the sum of $292,125 by way of future economic loss.

Agreed special damages

Special damages are agreed between the plaintiff and the defendant in the sum of $118,492.85 and I allow that sum.

Conclusion

In my view there has been no overlapping in respect to the various heads of damages and I assess the plaintiff damages as follows:
Loss of amenities  $75,000.00
Aggravated damages  $10,000.00
Past loss of earning capacity  $229,566.75
Future loss of earning capacity  $292,125.00
Special damages    $118,492.85
Total    $725,184.60
Counsel have not addressed me on the former s 93D of the Workers' Compensation and Rehabilitation Act 1981 (as amended). I will not therefore enter judgment for the amount of $725,184.60 until I have heard from counsel that it is unaffected by that section.

ANNEXURE "A"
IN THE DISTRICT COURT )  No. 759 of 1998
OF WESTERN AUSTRALIA)
HELD AT PERTH              )
B E T W E E N:
MARK ANTHONY DAVIES  Plaintiff
- and –
DELTA CORPORATION LTD   Defendant

PLAINTIFF'S SCHEDULE OF PAST ECONOMIC LOSS

Date of Document:  2 August 2001
Filed on behalf of:  Plaintiff
Date of Filing:
Prepared by:
James McManus & Associates  TEL: 9221 3322
3^rd Floor  REF: JMCM:DAVIES 2004
40 St George's Terrace
PERTH WA 6000
_________________
1994 – FINANCIAL YEAR
29.07.93 to 07.08.93)
09.08.93 to 21.08.93) = 4.8 weeks
09.09.93 to 18.09.93)
Worker's Compensation @ $395.68 per week:
$453.90 - $395.68 = $58.20 (loss of wages per week for the above period) :
$58.20 x 4.8 (weeks) = $279.36
Total Loss of Wages : $279.36
Superannuation @ 6% on $623.54 per week for 4.8 weeks:
$623.54 x 4.8 x 0.06 = $179.58
         $279.36 + $179.58 = $458.94
Interest @ 6% for 7 years on $458.94 = $192.75
$458.94 + $192.75 = TOTAL LOSS FOR 1994 FINANCIAL YEAR = $651.69
1995 – FINANCIAL YEAR
04.07.94 TO 22.08.94 = 7 weeks
07.11.94 to 28.11.94    = 3 weeks          7 + 3 = 10 weeks
Workers' Compensation @$334.49 per week:
$562.19 - $334.49 = $227.70 (loss of wages per week for the above period):
$227.70 x 10 (weeks) = $2,277.00
16.01.95 to 30.06.95 = 22 weeks
Workers' Compensation @ $418.21 per week:
$562.19 - $418.21 = $143.98 (loss of wages per week for the above period):
$143.98 x 22 (weeks) = $3,167.56
Total Loss of Wages: $2,277.00 + $3,167.56 = $5,444.56
Superannuation @ 6% on $723.12 per week for [10 + 22] 32 weeks:
$723.12 x 32 x 0.06 = $954.52
         $5,444.56 + $954.52 = $6,399.08
Interest @ 6% for 6 years on $6,399.08 = $2,303.66
$6,399.08 + $2,303.66 = TOTAL LOSS FOR 1995 FINANCIAL YEAR      $8,702.75
1996 – FINANCIAL YEAR
01.07.95 to 30.06.96 = 52 weeks
Workers' Compensation @ $418.21 per week:
$570.00 - $418.21 = $151.81 (loss of wages per week for the above period):
$151.81 x 52 (weeks) = $7,894.08
Total Loss of Wages: $7,894.08
Superannuation @ 6% on $823.71 per week for 52 weeks:
$823.71 x 52 x 0.06 = $2,569.78
         $7,894.08 + $2,569.78 = $10,463.86
Interest @ 6% for 5 years on $10,463.86 = $3,139.16
$10,463.86 + $3,139.16 = TOTAL LOSS FOR 1996 FINANCIAL YEAR =     $13,603.02

1997 – FINANCIAL YEAR
Week beginning 24.06.96 to 02.09.96 = 10 weeks
Workers' Compensation @ $418.21 per week:
$534.60 - $418.21 per week:
$116.39 x 10 (weeks) = $1,163.86
03.09.96 to 03.02.97 = 22 weeks
Workers' Compensation @ $471.74 per week:
$534.60 - $471.74 = $62.26 (loss of wages per week for the above period):
$62.26 x 22 (weeks) = $1,369.72
04.02.97 to 30.06.97 = 19 weeks
Workers' Compensation @ $483.40 per week:
$534.60 - $483.40 = $51.20 (loss of wages per week for the above period):
$51.20 x 19 (weeks) = $972.80
Total Loss of Wages: $1,163.83 + $1,369.72 = $3,506.38
Superannuation @ 6% on $764.02 per week for 52 weeks:
$764.02 x 52 x 0.06 = $2,383.74
$3,506.38 + $2,383.74 = $5,890.12
Interest @ 6% for 4 years on $5,890.12 = $1,413.63
$5,890.12 + $1,413.63 = TOTAL LOSS FOR 1997 FINANCIAL YEAR = $7,303.75
1998 – FINANCIAL YEAR
01.07.97 to 04.08.97 = 4 weeks
Workers' Compensation @ $483.40 per week:
$559.73 - $483.40 = $76.33 (loss of wages per week for the above period):
$76.33 x 4 (weeks) = $305.32
05.08.97 to 01.09.97 = 4 weeks
Workers' Compensation @ $500.00 per week:
$559.73 - $500.00 = $59.73 (loss of wages per week for the above period):
$59.73 x 4 (weeks) = $238.92

02.09.97 to 29.09.97 = 4 weeks
Workers' Compensation @ $487.50 per week:
$559.73 - $487.50 = $72.23 (loss of wages per week for the above period):
$72.23 x 4 (weeks) = $288.92
29.09.97 to 03.11.97 = 5 weeks
Workers' Compensation @ $425.00 per week
$559.73 - $425.00 = $134.73 (loss of wages per week for the above period):
$134.73 x 5 (weeks) = $673.65
04.11.97 to 05.01.98 = 9 weeks
Workers' Compensation @ $483.40 per week:
$559.73 - $483.40 = $76.33 (loss of wages per week for the above period):
$76.33 x 9 = $686.97
06.01.98 to 30.06.98 = 23.8 weeks
Workers' Compensation @ $500.00 per week:
$559.73 - $500.00 = $59.73 (loss of wages per week for the above period):
$59.73 x 23.8 (weeks) = $1,421.57
Total Loss of Wages: $305.32 + $238.92 + $288.92 + $673.65 + $686.97 + $1,421.57 = $3,615.35
Superannuation @ 6% on $834.25 per week for 49.8 weeks:
$834.25 x 49.8 x 0.06 = $2,492.74
$3,615.35 + $2,492.74 = $6,108.09
Interest @ 6% for 3 years on $6,108.09 = $1,099.46
$6,108.09 = $1,099.46 = TOTAL LOSS FOR 1998 FIANCIAL YEAR = $7,207.55
1999 – FINANCIAL YEAR
01.07.98 to 05.10.98 = 13.86 weeks
Workers' Compensation @ $500.00 per week
$606.23 - $500.00 = $106.23 (loss of wages per week for the above period):
$106.23 x 13.86 (weeks) = $1,472.35

06.10.98 to 30.06.98 = 38.28 weeks
Workers' Compensation @ $475.00 per week
$606.23 - $475.00 = $131.23 (loss of wages per week for the above period):
$131.23 x 38.28 (weeks) = $5,023.48
Total Loss of Wages: $1,472.35 x $5,023.48 = $6,495.83
Superannuation @ 6% on $842.27 per week for 52 weeks:
$842.27 x 52 x 0.06 = $2,627.88
         $6,495.83 + $2,627.88 = $9,123.71
Interest @ 6% for 2 years on $9,123.71 = $1,094.85
$9,123.71 + $1,094.85 = TOTAL LOSS FOR 1999 FINANCIAL YEAR =    $10,218.55
2000 – FINANCIAL YEAR
01.07.99 TO 02.03.00 = 35 weeks
Workers' Compensation @ $475.00 per week
$643.73 - $475.00 = $168.73 (loss of wages per week for the above period):
$168.73 x 35 (weeks) = $5,905.58
*Workers' Compensation Stopped
03.03.00 to 30.06.00 = 20 weeks
$643.73 x 20 (weeks) = $12,874.60
Total Loss of Wages: $5,905.58 x $12,874.60 = $18,780.18
Superannuation @ 7% on $909.80 per week for 52 weeks:
$909.80 x 52 x 0.07 = $3,311.67
         $18,780.18 + $3,311.67 = $22,091.85
Interest @ 6% for 1 year on $22, 091.85 = $1,325.51
$22,091.85 + $1,325.51 = TOTAL LOSS FOR 2000 FIANCIAL YEAR =     $23,417.36

2001 – FINANCIAL YEAR
01.07.00 TO 30.06.2001 = 52 weeks
$685.76 x 52 (weeks) = $35,660.00
Total Loss of Wages: $35,660.00
Superannuation @ 8% on $904.82 per week for 52 weeks:
$904.82 x 52 x 0.08 = $3,764.08
         $35,660.00 + $3,764.08 = $39,624.08
TOTAL LOSS FOR 2001 FINANCIAL YEAR =            $39,624.08
TOTALS
1994  $     651.69
1995   $ 8,702.75
1996  $13,603.12
1997  $ 7,303.75
1998  $ 7,207.55
1999  $10,218.55
2000  $23,417.36
2001  $39,424.08
Net Loss of Income:  $110,518.75
Gross Workers' Compensation Paid and Recoverable     $119,048.00
TOTAL PAST ECONOMIC LOSS:  $229,566.75