Ferreira v Zebra Stoneworks Pty Limited

[2001] NSWSC 817

CITATION:	Ferreira v Zebra Stoneworks Pty Limited & Anor [2001] NSWSC 817
FILE NUMBER(S):	SC 20254/00
HEARING DATE(S):	13/08/01, 14/08/01
JUDGMENT DATE:	21 September 2001
PARTIES :	Manuel Ferreira Zebra Stoneworks & Anor
JUDGMENT OF:	James J at 1

COUNSEL :	C T Barry QC, H W H Bauer A C A Bridge SC, A Jungwirth
SOLICITORS:	McClellands Solicitors W.K. Chambers Solicitors
CATCHWORDS:	Workers Compensation Act Pt 5 - employers' liability - assessment of damages
LEGISLATION CITED:	Workers Compensation Act 1987
CASES CITED:	Watts v Rake (1960) 108 CLR 158 Purkess v Crittended (1965) 114 CLR 164 Medlin v The State Government Insurance Commission (1994-1005) 182 CLR 1 Husher v Husher (1999) 197 CLR 138
DECISION:	Damages assessed - making of final orders deferred

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

20254/00

James J

Friday 21 September 2001

FERREIRA

v

ZEBRA STONEWORKS PTY LIMITED

Judgment

Introduction

1 This is an action for damages for personal injuries which the plaintiff claims he sustained in an accident which occurred on 22 July 1997.

2 The proceedings were originally brought against two defendants, namely:-

1. The first defendant Zebra Stoneworks Pty Limited on the basis that the plaintiff had been an employee of the first defendant at the time of the accident and the accident had occurred in the course of the plaintiff’s employment by the first defendant.

2. The second defendant, an individual named Daniel Bustamante on the basis that he had been supervising the plaintiff at the time of the accident.

3 In proceedings brought by the plaintiff in the Compensation Court against the first defendant it was found by the Compensation Court that at the time of the accident the plaintiff had been an employee of the first defendant and the accident had occurred in the course of his employment by the first defendant. At the beginning of the hearing before me I was informed that counsel for the plaintiff and counsel for the first defendant were in agreement that this finding by the Compensation Court gave rise to an issue estoppel which precluded either the plaintiff or the first defendant from disputing that at all material times the plaintiff was employed by the first defendant.

4 I was also informed by counsel for the plaintiff and counsel for the first defendant, that, after the proceedings had been commenced, Mr Bustamante had died. I acceded to an application by counsel for the plaintiff that I enter a verdict in favour of the second defendant against the plaintiff.

5 Up until the commencement of the hearing before me the first defendant had denied that it was under any liability to the plaintiff. However, during the hearing before me I was informed by counsel for the first defendant that liability was no longer in issue and was admitted by the first defendant.

6 In its defence the first defendant had pleaded contributory negligence as a defence. However, at the hearing I was informed that the defence of contributory negligence was no longer pressed.

7 Having regard to the various matters I have just stated, all that remains to be done is for me to assess the damages to which the plaintiff is entitled. It was common ground between counsel for the plaintiff and counsel for the first defendant that the assessment of damages was subject to the provisions of Part 5 of the Workers Compensation Act 1987.

8 The only oral evidence at the hearing was that given by the plaintiff. Counsel for the plaintiff and counsel for the first defendant each tendered a number of documents, consisting mainly of medical reports. None of the doctors whose reports were tendered gave oral evidence.

The Plaintiff’s Life Up To the Accident

9 The plaintiff gave the following evidence, all of which I accept, about his life up to the time of the accident.

10 The plaintiff was born in Portugal on 9 March 1952. He started school at the age of 8 and left school at the age of 13. Soon after leaving school he started work as a stonemason’s apprentice. By about the age of 18 he had, without having undertaken any formal instruction in the trade, acquired enough knowledge and experience as a stonemason to be regarded in Portugal as a qualified stonemason.

11 For about three years in the mid-1970’s the plaintiff served in the Portuguese Army, attaining the rank of sergeant.

12 The plaintiff was married in 1978 and the marriage is still subsisting. There have been four children of the marriage, born at various times between 1980 and 1989.

13 The plaintiff migrated to Australia in 1989. He was sponsored by an Australian company named Melocco, which required stonemasons for its business.

14 After arriving in Australia, the plaintiff worked regularly for Melocco for about 17 months. However, his employment was then terminated because of a recession. The plaintiff then worked regularly for about a year for a company called Traditional Stone Constructions, being paid at the rate of $13 per hour. In October 1991 the plaintiff agreed to work for a company called Volparto Pty Limited, at the higher rate of remuneration of $35 per hour. Volparto Pty Limited later became insolvent and the plaintiff was obliged to look for other work.

15 The plaintiff sought jobs as a tiler but was rejected on the grounds that he was a stonemason and not a tiler. In about 1993 the plaintiff took a test for qualification as a tiler at a TAFE College and was given a certificate as a tiler. After having become qualified as a tiler, the plaintiff did some work as a tiler.

16 Volparto resumed carrying on business and from 1994 up to the time of the accident the plaintiff worked from time to time for Volparto at an hourly rate of $35. However, Volparto did not have enough work to keep him fully employed.

17 Some months before the accident happened, the plaintiff agreed to work for the first defendant at an hourly rate of $35. During the period leading up to the accident the plaintiff worked from time to time for Volparto and the first defendant.

The Accident

18 As liability is no longer in issue, it is not necessary to examine the facts of the accident in the detail which would have been required, if liability had remained in issue. However, it is still necessary to make some findings about the facts of the accident, for the purpose of assessing the damages which should be awarded to the plaintiff.

19 The plaintiff himself gave evidence about the accident, which was not challenged in cross-examination of the plaintiff. Dr John Olsen, an occupational safety consultant, whose report was tendered and admitted in the plaintiff’s case and who was not required for cross-examination, gave an account in his report of how the accident had happened. The following account of how the accident happened is taken, mainly, from the plaintiff’s evidence and, partly, from Dr Olsen’s report.

20 On the afternoon of 22 July 1997 Mr Bustamante, the plaintiff and an apprentice went to a house at Mosman to do a job which the first defendant had agreed to perform. The job was to supply and fix a large piece of marble on a wall above a fireplace in a room of the house. The piece of marble was 2.2 m long and 1.3 m wide and 30 mm thick. Various estimates of its weight were given but the estimate given by the plaintiff in his evidence in chief was that it weighed about 200 kilograms.

21 Mr Bustamante, the plaintiff and the apprentice carried the piece of marble into the house. The piece of marble was to be placed in position on the wall above the fireplace and to be held in position by being glued to the wall and by being supported at the corners of its base by two brackets to be bolted to the wall.

22 The brackets were bolted to the wall. Two pieces of timber were placed in position to support the brackets, one end of each piece of timber being nailed to the floor and the other end of each piece of timber being placed under a bracket. The marble slab was, with difficulty, lifted by the three men and placed in position on the wall.

23 At the direction of Mr Bustamante, the apprentice placed a pile of bricks below one side of the bottom of the slab, thereby raising that part of the slab above the level of the bracket, so that that part of the slab no longer rested on the bracket but rested on the top of the pile of bricks.

24 Mr Bustamante then instructed the plaintiff to remove the piece of timber which was supporting the other bracket, so as to enable a similar pile of bricks to be placed below that side of the bottom of the slab.

25 As the plaintiff was bending over or squatting, with his back to the wall, for the purpose of removing the nails which were holding the piece of timber to the floor, there was some movement of the marble slab, the pile of bricks supporting one side of the bottom of the slab moved, the top of the slab came away from the wall and the slab came down in a sweeping arc. The slab struck the plaintiff on his back and broke into a number of pieces. The plaintiff’s left knee was driven into the floor.

26 After the accident happened, Mr Bustamante drove the plaintiff first to the first defendant’s factory at Hillsdale and then to St George Hospital, where the plaintiff remained for some hours. The plaintiff’s wife took the plaintiff home from St George Hospital at some time between three and four o’clock the following morning.

The Plaintiff’s Further Evidence

27 The day after the accident the plaintiff went to his family doctor, Dr Braga. Dr Braga arranged for diagnostic imaging of the plaintiff’s spine to be carried out. Dr Braga also referred the plaintiff to an orthopaedic specialist, Dr Rosenberg.

28 The plaintiff had physiotherapy on his lower back twice a week between 8 August 1997 and 30 October 1997 and once a week between 30 October 1997 and January 1998. The plaintiff said in his evidence that the physiotherapy had been of no help to him.

29 The plaintiff said in his evidence that he had not derived any benefit from any of the medical treatment he had received in 1997. The plaintiff felt that he was not being treated the way he should have been treated and that, on the contrary, he was being treated “like a dog”. By October 1997 the plaintiff was feeling very sad and upset.

30 The plaintiff decided to change his general medical practitioner, because, in his opinion, Dr Braga was refusing to look after him properly. He went to Dr Gail Berto, who saw him eight times in the first month he was her patient.

31 The first defendant’s insurer sent the plaintiff to a rehabilitation provider, Fit For Work Australia Pty Limited, which arranged for the plaintiff to have hydrotherapy. Despite the hydrotherapy the plaintiff continued to suffer pain.

32 According to the plaintiff, Dr Rosenberg told the plaintiff that the processes in the plaintiff’s body were irreversible and that there was no treatment which would help the plaintiff and that the plaintiff was suffering from internal haemorrhages and blood clotting.

33 The plaintiff said in evidence that he had never been to a psychiatrist for treatment. He said:- “I never had any psychiatric problems. What I have had and have is a lot of pain in my body and I can’t go to work”. The plaintiff was asked by his counsel about his having become tearful and upset in the witness box, as he had, and the plaintiff said that he sometimes did become tearful and upset. He had taken some antidepressants prescribed for him by Dr Berto but had not felt any better after taking them.

34 The plaintiff said that since the accident he had had problems in obtaining an erection for sexual intercourse with his wife. Dr Berto had referred him to a Dr Farrell, who had given the plaintiff injections of testosterone, without success. The plaintiff had started using Viagra, which sometimes worked for him and sometimes did not.

35 The plaintiff said in his evidence that he believed that there was something wrong with his head or his brain, as a result of the accident. He said that he felt severe pain in his head, where the marble slab had hit him. The plaintiff said that he had been told by doctors that scans of his brain showed that there was white matter “scattered” inside his brain, as a result of the impact from the marble slab.

36 The plaintiff had not received any medical treatment of any sort, as distinct from seeing doctors for medico-legal purposes, for much more than a year before the hearing.

37 When asked about his present symptoms, the plaintiff said that he had headaches, pain in his neck and shoulders, shaking in his fingers, ringing noises in his ears, pain in his back both the upper and the lower back, pain in his legs and weakness in his legs and pain in his chest. The plaintiff said “all the time I feel very bad, because my life is finished”.

38 When asked whether he thought he would be able to work again the plaintiff said:- “I don’t know what work I could do in this condition. I can’t lift anything, I can’t squat, I can’t bend. What sort of work (could I do)?”

39 When asked whether he took medication from time to time the plaintiff said:- “I take medication every day. Not from time to time. Dymadon pain killer … 8 (a day)”.

40 I accept the evidence I have just summarised, insofar as it is evidence of events which the plaintiff says happened. I will return later in this judgment to the plaintiff’s assertions about his symptoms and medical condition. It was common ground that assertions by the plaintiff about what he was allegedly told by doctors were not evidence of what he was in fact told by doctors or of what their opinions about the plaintiff really were but were merely evidence of the plaintiff’s understanding or belief about what he had been told by doctors.

41 In cross-examination the plaintiff confirmed that for the first two and a half years he had been in Australia, he had had “lots of work” but that after that he had not had as much work. He had decided to become qualified as a tiler, because he could not get enough work as a mason.

42 The plaintiff was cross-examined about his income tax returns which showed a taxable income for the year ended 30 June 1996 of $21,993 and for the year ended 30 June 1997 of $17,651.

43 The plaintiff was asked in cross-examination when he first came to the view that he could not return to work and he said “when the doctors told me that they couldn’t rehabilitate me”. Other answers given by the plaintiff in his evidence would suggest that he came to the view that he could not return to work, soon after the accident.

44 When asked whether he could do any work other than as a stonemason or as a tiler, the plaintiff said:- “What type of work I could do? With my lack of writing and reading in English, and my physical condition, what could I do?” The plaintiff said “in my opinion and opinion of my doctors … I am not fit for any work”.

45 Since the accident happened, the plaintiff has not tried to get any job of any sort. The plaintiff said “I had the advice of my doctors not to work at all”. He then agreed that he had been told by doctors not to go back to heavy work like stonemason’s work and tiling work.

46 Since the accident the plaintiff had never believed that he could go back to work as a stonemason. Similarly, he had never believed that he could go back to work as a tiler, “because tiling … you have to actually bend down the whole day and squat”.

47 On 10 November 1999 an award of worker’s compensation was made in favour of the plaintiff at the rate of $525.50 per week, back dated to 21 December 1998. No application had been made by the first defendant to vary the award. It was put to the plaintiff by counsel for the first defendant that the amount of worker’s compensation he has been receiving under the award has been higher than the amount of money he was earning before the accident. The plaintiff denied that this was the case.

48 In re-examination the plaintiff said that he would prefer to work than to receive worker’s compensation, because he had worked all his life, he had enjoyed his work and what he had been earning had been greater than the amount of worker’s compensation he was now receiving.

49 I accept the evidence given by the plaintiff in cross-examination which I have summarised, insofar as it is evidence of events. I will return later in this judgment to the plaintiff’s assertions about his lack of capacity to work.

The Plaintiff’s Documentary Evidence

50 The plaintiff’s documentary evidence included a series of reports by Dr Rosenberg, reports by radiologists and others who had carried out investigative procedures on the plaintiff’s spine and a report by Dr Loefler, an orthopaedic surgeon. The plaintiff’s documentary evidence also included reports from doctors who had seen the plaintiff purely for medico-legal purposes, including Dr Seaton, a Consultant Orthopaedic Specialist; Dr McMahon, a specialist in sexual health; Dr Bleasel, a Neurosurgeon; Dr Endrey-Walder, a Surgeon; and Dr Phillips, a Psychiatrist. I have read and taken into account all of the plaintiff’s documentary evidence.

51 A report by Dr Almosawi of Marrickville Diagnostic Imaging of 25 July 1997 was as follows:-

“ LUMBAR SPINE
There is exaggeration of the lumbar lordosis. There is effect of the pars interarticularis at L5/S1 level. There is 2 mm forward slipping of L4 on S1 consistent with Grade 1 spondylolisthesis. Mild narrowing of the disc space at L4/5 and L5/S1 level. No other significant abnormality is seen.
THORACIC SPINE
There is thoracic scoliosis convex to the right. Degenerative changes with marginal osteophyte formation”.

52 The conclusion in a report by Dr Nour, a Physician in Nuclear Medicine, of 19 November 1997 was:-

“Prominent scoliosis in the thoracic spine with associated costovertebral changes in the mid thoracic spine”.

53 It was common ground at the hearing that the conditions of the plaintiff’s spine referred to in the reports by Dr Almosawi and Dr Nour were in no way attributable to the accident but were congenital or degenerative conditions which had existed before the accident.

54 Parts of Dr Rosenberg’s reports were as follows. In a report of 20 August 1997 Dr Rosenberg said:-

“Manuael Ferreira was reviewed on 20/8/97. A month ago a large piece of marble swung onto his right side breaking into pieces. He sustained multiple injuries to his neck, right trunk and right shoulder region but these have largely settled. He continues to suffer from right sided low back pain which occasionally radiates down his buttock and into his thigh. Overall the back pain is worse particularly when he bends and lifts.
… X-rays show L5 pars defects that obviously are old. Nevertheless these undoubtedly have been stirred up by his significant injury”.

55 In a report of 8 October 1997 Dr Rosenberg said:-

“Mr Ferreira is becoming increasingly frustrated. He has sustained a significant injury to his back and he needs to give it time to settle”.

56 In a report of 4 November 1997, Dr Rosenberg said:-

“Manuel Ferreira was reviewed on 31/10/97. It is now just on 3 months since his injury. This poo man continues to suffer with two problems. The first one being that he has significant ongoing right sided low back pain which occasionally radiates to his buttock and down his right leg.
Secondly, he has ongoing problems that I believe are coming from his neck. He has significant occipital headaches as well as pain across both his shoulders and occasionally down the right arm.
Clinically the cervical spine retains good movement but he is tender posteriorly. Shoulders are unaffected and neurological examination is normal in the upper limbs. Plain x-rays of the cervical spine show generalised wear and tear but no fracture or dislocation.
I believe he is suffering from the ongoing effects of significant soft tissue injuries to his cervical spine. Unfortunately, surgery has no role to play and he just has to tough it out. I believe he would benefit from ongoing physiotherapy as well as heat and massage. As regards his back, I believe he has substantially stirred up a pre-existing L5 pars defect with a grade 1 slip. This is resulting in leg pain. He does have relief with a brace but if his pain continues unabated, in the future he faces a lumbosacral fusion. The biggest problem for this man is that he has a very heavy physical job and there is no way he could contemplate a return to work as yet. I do not know that any other duties exist for him in his current place of employment”.

57 In a report of 21 November 1997 Dr Rosenberg said:-

“He now complains bitterly of pain at the back of his right shoulder and at his cervico-thoracic junction. This is where the stone block hit him initially. I remember at the time he told me about this but his back pain was the worst pain he had. Things have changed and now he has most pain here.
Clinically he is tender to palpate the lower cervical and upper thoracic spines. The shoulder itself is unaffected. I have sent him for a technetium bone scan to see if I can better localise the source of his ongoing discomfort”.

58 In a report of 1 December 1997 Dr Rosenberg said:

“The technetium bone scan of his upper thoracic and cervical spines showed no significant bony injury. There was some generalised wear and tear but nothing suggestive of a recent fracture. Over the months I have been seeing Mr Ferreira he is becoming increasingly angry and frustrated about his perceived lack of recovery. Mr Ferreira is a strong, hard working man who obviously sustained a serious injury. His injuries are all soft tissue in nature and are causing his ongoing neck, right shoulder and lower back pain.
As a surgeon I have nothing further to offer Mr Ferreira.
…
I have not made plans to see him again”.

59 In his report of 23 March 1998 Dr Loefler said in part:-

“The patient was seen by previous general practitioner as well as by another orthopaedic surgeon. He has had several investigations which have not demonstrated a specific injury. The patient has ongoing pain. He has also become quite depressed and is angry as the incident has left him severely disabled.
…
This man’s history of ongoing back pain after a work related incident I July of last year is consistent with soft tissue injuries. The patient has developed a well entrenched chronic pain syndrome. He is angry and upset about the incident and his subsequent treatment.
I do not think that this man requires surgical intervention of any sort. He requires rehabilitation and psychological counselling”.

60 In his report of 10 June 1998 Dr Seaton said that the plaintiff had suffered injuries as a result of the accident which included aggravation and acceleration of previously existing degenerative changes in his spine. In Dr Seaton’s opinion the plaintiff had suffered some permanent impairment in his back, neck, right arm and both legs. In Dr Seaton’s opinion the plaintiff would not be able to work as a stonemason again.

61 In his report of 13 November 2000 Dr McMahon said that the plaintiff had suffered some permanent loss of the effective use of his sexual organs. This loss was attributable to the presence of chronic pain, which was aggravated by the movements or positions of sexual intercourse, and to the plaintiff’s “chronic depression” and “high degree of negativity”.

62 In his report of 13 February 2001 Dr Phillips expressed the opinion that the plaintiff was suffering from an adjustment disorder with depressed mood and a male erectile disorder, which were caused by the accident. The plaintiff’s erectile impotency was overwhelmingly likely to be psychogenic in origin.

The First Defendant’s Documentary Evidence

63 Quite a large number of reports by medical practitioners who had seen the plaintiff for medico-legal purposes were tendered on behalf of the first defendant and admitted into evidence. I have read and have taken into account all of the first defendant’s documentary evidence.

64 In his report of 5 September 1997 Dr Smith of GIO Australia Medical Services said that the accident had probably “stirred up” the plaintiff’s pre-existing spondylolisthesis.

65 A physiotherapist for the rehabilitation provider said in a report of 30 December 1997 that the plaintiff required immediate psychological or psychiatric intervention to address his “self-limiting behaviour and perceptions of his injury”. The physiotherapist noted the plaintiff’s “extremely adversarial attitude towards his rehabilitation attempts”.

66 In his report of 24 February 1998 Dr Billett ,a consultant orthopaedic surgeon, said in part:-

“Based on the physical examination, there is no clinical evidence of an intervertebral disc prolapse or nerve root irritation in relation to the cervical, thoracic or lumbar spine. He probably sustained a soft tissue injury to his neck, thoracic and lumbar spine and in addition he exacerbated the pre-existing degenerative changes in the lower thoracic area, with a congenital abnormality noted in the lumbo-sacral region”.

67 Dr Billett was of the opinion that the plaintiff was not fit to resume normal duties as a stonemason but that, subject to certain restrictions on lifting, bending and maintaining prolonged static postures, he would be capable of performing lighter duties as a stonemason.

68 In his report of 24 March 1998, Dr Meachin, an orthopaedic surgeon, said in part:-

“This man presents with a difficult problem in diagnosis. It would appear that he was a formerly fit man and note that he was a paratrooper in the past. He has sustained a forced flexion injury to the cervical, thoracic and lumbar spine when the block of marble fell on him on 22.7.97. He does not appear to have responded well to the usual physiotherapy and time and exercise. He has developed a very hostile manner and it is very hard to determine the actual force of his pain. Nevertheless, I do not feel from the orthopaedic point of view that he has sustained any serious injuries to his neck, thoracic spine or back. I would accept that he has aggravated his pre-existing asymptomatic degenerative defects at L5/S1. Nevertheless, these are not too bad and I do not think that this is going to preclude him from going back to work as a stonemason.
His main complaint appears to be his cervical and thoracic spine where he seems to have taken the brunt of the blow from the marble. However, on my examination I could really find little orthopaedically wrong with him apart from slight restriction of movement. I could not find evidence of any cervical disc injury. I am unable to explain this man’s plethora of symptoms on an orthopaedic basis alone. I suspect there are other non-orthopaedic problems on which I am not qualified to comment.
I would suggest this man has aggravated his pre-existing back problems, and that aggravation has not yet ceased. He is fit for work which does not involve repetitive bending at this stage, and the questions remains as to whether he will get back to work as a stonemason. A lot of this man’s problems are not orthopaedic and I do not feel his prognosis is good for a return to normal duties”.

69 Dr Meachin considered that the plaintiff had suffered some permanent impairment to his back and spine as a result of the accident.

70 In a report of 11 August 1998 Dr Pryor, a Neurologist, gave the following diagnosis:-

“He suffered a soft tissue injury in the accident as described and there is no persisting objective evidence of injury to the nervous system or to the musculoskeletal system apart from a serious psychological disturbance which is causing his pains and disability to persist. It is associated with disturbance of appetite, sexual potency, sleep pattern and personality”.

71 In his report of 22 February 1999, Dr Evans, an orthopaedic surgeon, expressed the following opinion about the plaintiff’s capacity to work:-

“He is unfit for the normal duties of a stonemason. At the time of his injury he was working on a casual basis and given his specific skills and some language problems he is unlikely to work again.
The prognosis for return to normal duties is very poor indeed”.

72 In a report of 10 August 1999 Dr Bornstein, an orthopaedic surgeon, expressed inter alia the following opinions:-

“The disability is out of all proportion to the radiology and also there are some discrepancies through the course of my examination.
I accept that there are degenerative changes to the neck and back. There is a spondylolytic listhesis of L5 on S1 which is constitutional and that there is scoliosis which is also constitutional.
…
He presents as a person totally unfit for any form of employment.
At this stage, the prognosis appears bleak and is really dependent upon the opinion of a psychiatrist. I note that this man has previously refused to see a psychologist, stating that his problems were physical rather than psychological and this probably does not auger well for any significant improvement”.

73 In a report of 27 November 2000 Dr Carr, a rheumatologist said:-

“He is very angry and aggressive. He has not made any form of recovery that would appear to allow him to return to pre-injury employment. His complaints however are non-specific and I suspect that there is a degree of abnormal illness behaviour in this man”.

74 In Dr Carr’s opinion the plaintiff had suffered some permanent impairment of his back and neck.

75 In a report by Dr Shnier of a MRI scan of the plaintiff’s brain Dr Shnier said:-

“In both cerebral hemispheres there are scattered deep white matter foci of hyperintensity – each measuring 1-2 mm across. Even thought there has been a history of head injury, these are not the typical location for axonal injury and would suggest the possibility of some underlying ischaemic brain change”.

76 Dr Schwart, a neurologist, said in a report of 10 June 1998, with reference to the plaintiff’s complaints of global body pain, “there is disparity between Mr Ferreira’s subjective symptoms and any objective clinical findings”.

77 In his report of 21 December 2000 Dr Milton, a psychiatrist, expressed various opinions, which included the following:-

“Mr Ferreira’s failure to return to work is explicable on emotional ground, namely that he is angry the accident occurred, and angry because he adopted the view that it caused severe injury but doctors do not support him in that view, nor do investigations.
…
M Ferreira does not, in my opinion, suffer from any emotional disorder related to the accident. He is angry, but anger is not a disease. The anger is focused on the accident, which I think he attributes to poor management by his boss rather than to misadventure. His anger is also directed at his previous general practitioner, his orthopaedic surgeon, and the doctors who carried out imaging studies. When these do not show back disease, he says they are wrong. On the other hand, he asserts his chronic kyphoscoliosis, a congenital and hence non-compensable condition, has disappeared”.

78 In a report of 4 December 2000 the Vocational Capacity Centre suggested various occupations the plaintiff might be able to undertake. However, the author of the report said:-

“Based on Mr Ferreira’s presentation and behaviour during the interview and testing, it appears that he is now experiencing adjustment difficulties which are likely to make it difficult for him to resume his pre-injury occupation or return to the workforce. Overall Mr Ferreira appeared angry, volatile and resentful. He seems angry at the loss of his occupation and resultant life style. He also appears angry as various treatments have been recommended but not implemented. Mr Ferreira now seems unwilling to examine any other work options: he reported that in terms of working, he ‘is finished’. These attitudes and beliefs would present significant barriers to Mr Ferreira’s return to the workforce. Counselling to address these issues may be appropriate. However my impression is that Mr Ferreira may not be receptive to considering how to more effectively deal with his feelings”.

Assessment of Damages

79 As I stated earlier in this judgment, the assessment of damages is subject to the provisions of Part 5 of the Workers Compensation Act.

80 Counsel for the plaintiff and counsel for the first defendant each prepared a schedule showing the amounts which, it was contended, should be awarded for the various heads of damages. In these schedules the date selected by counsel for the plaintiff as the date dividing past loss from future loss was 23 July 2001, whereas the date selected by counsel for the first defendant was a date approximating to the date of the hearing (13 and 14 August 2001). However, I was assured by both counsel that absolute precision in the fixing of this date and absolute consistency in assessing damages for past loss and for future loss was not required. The plaintiff was born on 9 March 1952 and I propose to assess damages on the basis that he is now 49 and a half years old, that, if he had not been injured, he would have continued working until he attained the age of 65 years, that is, for another 15 and a half years and that his life expectancy is 31 years. On the 5% tables the multiplier for 15 and a half years is approximately 567 and the multiplier for 31 years is 833.8.

Past Out-of-Pocket Expenses and Fox v Wood

81 Counsel agreed on the amounts which should be awarded for past out-of-pocket expenses $18,514.96 and for the Fox v Wood component of the damages $18,257.70.

Injuries

82 It is necessary to make findings about the injuries suffered by the plaintiff as a result of the accident. I find that the plaintiff suffered significant soft tissue injuries, which resolved within a fairly short time after the accident. Pre-existing congenital and/or degenerative conditions of the plaintiff’s spine, which prior to the accident had been asymptomatic, were aggravated and accelerated and made symptomatic. There is no evidence as to whether or when these pre-existing conditions would have become symptomatic if the plaintiff had not been injured in the accident.

83 The plaintiff has suffered and will continue permanently to suffer pain in various parts of his body, including his back, neck, shoulders and legs. However, I consider that his complaints of pain are, to some extent, exaggerated. The plaintiff has suffered a loss of enjoyment of life.

84 The plaintiff did not suffer any fracture as a result of the accident. The doctors who have examined the plaintiff have not observed any wasting of any of his limbs or any neurological deficits. The plaintiff has not received, or sought, any medical treatment for a couple of years or thereabouts. The plaintiff is not in need of any surgery.

85 I am not satisfied that the plaintiff suffered any injury to his head or brain in the accident. There is no acceptable evidence that any part of the marble slab struck the plaintiff on the head. There is no evidence of any external injuries to the plaintiff’s head. I infer that the plaintiff’s belief that he had white matter “scattered” inside his brain was derived from his being told about the results of the MRI scan performed by Dr Shnier. I find that the presence of this matter is not related to the accident.

86 I accept that the plaintiff has suffered some loss of sexual function partly as a result of pain in his back but mainly for psychological reasons.

87 I have decided that I should accept Dr Phillips’ diagnosis that the plaintiff is suffering from an adjustment disorder with depressed mood. In making this decision I have taken into account that Dr Milton was of the opinion that the plaintiff does not suffer from any emotional disorder but is merely angry. However, I consider that Dr Phillips’ diagnosis is persuasive and it gains some support from remarks made by a number of other doctors who examined the plaintiff, such as Dr Rosenberg, Dr Loefler and Dr Pryor. Dr Pryor, for example, spoke of a “serious psychological disturbance”. Although these doctors are not specialists in psychiatry, I nevertheless consider that I can properly give some weight to their opinions about the state of the plaintiff’s mental health.

88 It is true that in his evidence the plaintiff denied that he had ever had any psychiatric problems. However, I consider that the plaintiff has no insight into his mental state. The plaintiff’s lack of insight and a consequential unwillingness to undergo any psychiatric treatment make it unlikely that his condition will improve.

Non-Economic Loss

89 The amount of damages to be awarded for non-economic loss is governed by Part 5 of the Workers Compensation Act and particularly s 151G. It was accepted by counsel for the first defendant that the threshold conditions for an award of damages for non-economic loss were satisfied. It was common ground that under s 151G(3) the maximum amount of damages which might be awarded would be $222,450 but that this amount could be awarded only in a “most extreme case” and that I had to determine what proportion of the maximum amount should be awarded, having regard to the severity of the non-economic loss.

90 Counsel for the plaintiff submitted that I should award an amount of damages equal to 70% of the maximum amount. Counsel for the first defendant submitted that I should award an amount of damages equal to 30% of the maximum amount. Having regard to my findings, I consider that I should award an amount of damages being 55% of the maximum amount, that is, $122,347.

Future Out-of-Pocket Expenses

91 Counsel for the plaintiff submitted that I should award damages for future medical expenses, consisting of the costs of analgesic medication and consultations with specialists, at the rate of $30 per week for the rest of the plaintiff’s life. Counsel for the first defendant submitted that the only claim to damages for future medical expenses which had been established was a claim to the costs of the analgesic Dymadon, which counsel estimated at $5 per week.

92 I consider that I should accept counsel for the first defendant’s submission. The plaintiff has not seen any specialist for treatment for a substantial period of time, and in my opinion, there is no likelihood of his seeking treatment from any specialist in the future. Dr Rosenberg, the treating orthopaedic specialist, considered that there was nothing further he could do for the plaintiff. The plaintiff has never seen a psychiatrist for treatment and denies that he is psychiatrically ill.

93 I award damages for future out-of-pocket expenses, being $5 x 833.8, that is, $4,169.

Economic Loss Generally

94 It is necessary to determine what the plaintiff would probably have earned, if he had not been injured.

95 Before the accident the plaintiff had congenital and/or degenerative conditions in his spine and the plaintiff in both of his occupations as a stonemason and a tiler was carrying out physically demanding work. However, as I remarked earlier in this judgment, there was no evidence as to whether or when the pre-existing conditions in the plaintiff’s spine would have become symptomatic and disabling, if the accident had not occurred. In this connection counsel for the plaintiff referred, appropriately, to the decisions of the High Court in Watts v Rake (1960) 108 CLR 158 and Purkess v Crittenden (1965) 114 CLR 164. It was submitted by counsel for the plaintiff, and I accept, that, so far as economic loss is concerned, I should treat the pre-existing conditions of the plaintiff’s spine as going only to the discount I should allow for contingencies in assessing damages for future economic loss.

96 Counsel for the first defendant submitted that I should find that, if the plaintiff had not been injured, he probably would have continued to earn at about the rate disclosed in his last two income tax returns for the years ended 30 June 1996 and 30 June 1997. The plaintiff accepted in cross-examination that his taxable income for the year ended 30 June 1996 of $21,993 was equivalent to a weekly net income after tax of about $355 and that his taxable income for the year ended 30 June 1997 of $17,651 was equivalent to a weekly net income after tax of about $300. On the basis of this evidence, counsel for the first defendant submitted that I should find that, if the plaintiff had not been injured, he would have continued to earn at the rate of about $350 per week.

97 Counsel for the plaintiff disputed that I should use information in the plaintiff’s income tax returns in order to determine what the plaintiff probably would have earned, if he had not been injured. It was submitted by counsel for the plaintiff that what I was compensating the plaintiff for was his loss of earning capacity and not his loss of earnings and that evidence of past earnings is not determinative of what loss of earning capacity an injured person has suffered. Counsel referred to Medlin v The State Government Insurance Commission (1994 – 1995) 182 CLR 1 and Husher v Husher (1999) 197 CLR 138.

98 Counsel for the plaintiff pointed out that the plaintiff, when working, was earning at the rate of $35 per hour; that if he worked 40 hours per week at that rate, he would earn $1,400 per week gross or about $1,200 per week after his work expenses or about $800 per week after deduction of work expenses and income tax.

99 Counsel for the plaintiff submitted that, rather than relying on the figures in the plaintiff’s income tax returns, I should rely on the Australian Bureau of Statistics figures for average weekly earnings in the construction industry between May 1993 and May 2000, the award rates for stonemasons and tilers under the Building Tradesmen Award (which are, in fact, much lower than $35 per hour), and the Australian Bureau of Statistics figures for average weekly earnings for construction tradespersons. It was submitted that the plaintiff would have realised, at some stage, that he would be better off working more hours per week at the lower award rates.

100 I accept that what I am awarding the plaintiff damages for is his loss of earning capacity and not his loss of earnings. I also accept that evidence of what a worker earned in the past is not always a reliable guide to what he would be likely to have earned in the future. However, the two High Court cases to which counsel for the plaintiff referred were both cases with very special facts. For example, Husher was a case in which what the plaintiff had earned in the past pursuant to a partnership agreement, where the income of the partnership was produced by the exercise by the plaintiff of his earning capacity and the partnership was a partnership at will, was not a reliable guide to what damages should be assessed for loss of the plaintiff’s earning capacity.

101 In the present case I consider that what the plaintiff had been earning over the last two years before the accident is the best indicator of what the plaintiff probably would have earned after the accident, if he had not been injured. There is no complication in the present case from the plaintiff having been a member of a partnership or from the plaintiff having retired. It is true that when the plaintiff was working before the accident, he was being remunerated by both Volparto and the first defendant at the rate of $35 per hour. However, for some years before the accident the plaintiff had not been working a full number of hours each week. After his first two and a half years in Australia there had not been enough available work to keep him fully employed.

102 I do not consider that I should assess damages on the basis that, if the plaintiff had not been injured, he would have worked a full week at award rates. At least after he first started working for Volparto, the plaintiff did not work under award conditions.

103 Nor do I consider that I should adopt the average weekly earnings of construction tradespersons. “Construction tradespersons” is a very wide class which would include many types of tradespersons for whose services there would be likely to be a fairly steady demand, as compared with the demand for the services of a stonemason.

104 I consider that my decision to use the figures in the plaintiff’s income tax returns is in accordance with the principles that I should award the plaintiff as damages a sum of money which would put him in the same position he would have been in, if he had not been injured, and that damages for loss of earning capacity are awarded to a plaintiff “because the diminution of his earning capacity is or may be productive of financial loss” (see Husher at para 4).

Past Loss of Earning Capacity

105 Counsel for the first defendant said that he conceded that, because the first defendant had not made any attempt to vary the award made in the Compensation Court, the first defendant was precluded from submitting that in the past the plaintiff had had any residual earning capacity. Accordingly, I assess damages for past loss of earning capacity at $350 x 215 (the approximate number of weeks since the accident up to the present), that is, $75,250.

Past Loss of Superannuation

106 I adopt counsel for the first defendant’s calculation, slightly increasing the number of weeks. Counsel for the first defendant took $450 as being the approximate gross weekly income which would yield a net income after tax of $350 per week.

107 I assess damages for past loss of superannuation at $450 x 7% x 215 = $6,772.

Future Loss of Earning Capacity

108 I adopt the figure of $350 per week as the amount the plaintiff probably would have earned, if he had not been injured.

109 The question to be determined is whether the plaintiff has any residual earning capacity and, if so, how much.

110 Counsel for the plaintiff submitted that I should find that the plaintiff has no residual earning capacity.

111 Counsel for the first defendant submitted that the plaintiff has, or will have, some residual earning capacity. Counsel submitted that I should award damages for future loss of earning capacity, either on the basis that the plaintiff would have no residual earning capacity for the first three years but would thereafter have a residual earning capacity of 50% or on the basis that the plaintiff would have a residual earning capacity of 50% from now onwards. The second alternative was not strongly pressed.

112 Counsel for the first defendant referred to the evidence that since the accident the plaintiff has not attempted to find any work. Reference was made to the statutory obligation of an injured worker to mitigate his damages.

113 I consider it is clear that the plaintiff has no residual earning capacity as either a stonemason or a tiler. I am further of the opinion that the plaintiff has no residual earning capacity at all. He is a man of about 50 years of age. He had little schooling. He has only a limited proficiency in English. He can no longer carry out the physical work which was the only type of work he performed before the accident. He suffers from a psychiatric condition into which he has no insight and which will remain untreated. I consider it fanciful to suggest that his experiences in the Portuguese Army 25 years ago will fit him for any occupation. It is true that the plaintiff has not attempted to find work. However, if he had made such an attempt, then I consider that he would not have had any real chance of obtaining work.

114 I accordingly consider that damages for future loss of earning capacity should be awarded on the basis of $350 multiplied by the appropriate multiplier.

115 Before the accident the plaintiff had congenital defects in his spine and the work he was performing was physically demanding. In these circumstances it might have been appropriate to give consideration to making a higher than usual allowance for contingencies. However, as the matter was not argued before me and counsel for the first defendant in some of his calculations accepted the usual rate of 15% for contingencies in the assessment of damages for future loss, I do not consider that I should increase the discount for contingencies above the usual 15%.

116 I assess damages for future economic loss at $350 x 567 – 15%, that is, $168,682.

Future Loss of Superannuation

117 I assess damages for future loss of superannuation as follows: $450 x 567 x .85 x 9%, that is, $19,518.

Workers Compensation Defence

118 I was informed the amount of weekly compensation paid is $96,877.54 and the amount of medical expenses paid is $18,514.96.

Summary

119 I summarise the amounts I have awarded for the various heads of damages as follows:

Past Out-of Pocket Expenses $18,514.96

Fox v Wood $18,257.70

Non-Economic Loss $122,347.00

Future Out-of Pocket Expenses $4,169.00

Past Loss of Earning Capacity $75,250.00

Past Loss of Superannuation $6,772.00

Future Loss of Earning Capacity $168,682.00

Future Loss of Superannuation $19,518.00

Total $423,511.00

120 From this amount the amount of the workers compensation defence will have to be deducted.

121 I will not immediately enter any verdict or judgment in case there is some clear error or omission which counsel would wish to draw to my attention.

*********

Last Modified: 10/03/2001