Fuller v Avichem Pty Ltd trading as Adkins Building and Hardware Supplies

[2019] NSWDC 114

District Court

New South Wales

Medium Neutral Citation:	Fuller v Avichem Pty Ltd trading as Adkins Building & Hardware Supplies [2019] NSWDC 114
Hearing dates:	19, 20, 21 November 2018
Date of orders:	04 March 2019
Decision date:	04 March 2019
Jurisdiction:	Civil
Before:	Scotting DCJ
Decision:	(1) Verdict for the plaintiff. (2) I grant leave to the parties to approach my Associate on or before 5pm on 19 March 2019 to file Short Minutes of Order in relation to the matters still in dispute or to list the matter for argument, after compliance with appropriate directions to serve Short Written Submissions.
Catchwords:	TORTS – negligence – work injury – claim against employer – breach of duty of care – injury to back and left shoulder during manual handling – 15% whole body impairment -  whether award should be reduced for contributory negligence DAMAGES – assessment of damages – past and future economic loss
Legislation Cited:	Workers Compensation Act 1987 Workers Compensation Regulation 2016
Cases Cited:	Commercial Union Assurance Company of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 Commissioner of Railways v Ruprecht (1979) 142 CLR 563 Council of the City of Greater Taree v Wells [2010] NSWCA 147 Czatyrko v Edith Cowan University (2005) 214 ALR 839 Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALR 492 Wyong Shire Council v Shirt (1980) 146 CLR 40
Category:	Principal judgment
Parties:	David Fuller (Plaintiff) Avichem Pty Ltd t/a Adkins Building & Hardware Supplies (Defendant)
Representation:	Counsel: G Parker SC with J de Greenlaw (Plaintiff) R Perla (Defendant)     Solicitors: Gerard Malouf & Partners (Plaintiff) TurksLegal (Defendant)
File Number(s):	2017/359791
Publication restriction:	None

Judgment

Introduction

1. The plaintiff brings a claim for work injury damages against the defendant.

2. On 11 August 2009 the plaintiff was employed by the defendant as a shop assistant in a hardware store in Broken Hill. It is common ground that during the course of his work on that day the plaintiff suffered injuries to his back and left shoulder as a result of lifting six of medium density fibre (MDF) sheets onto a customer’s vehicle. It was also common ground that the plaintiff suffers from more than a 15% whole person impairment enabling him to bring a claim for work injury damages.

3. The plaintiff alleges that in removing the MDF sheets from the rack in which they were stored that he was required to lift them over pallets of material that were positioned in front of the rack. In the process, the plaintiff felt pain in his lower back, mid back and left shoulder, which persisted when he lifted each MDF sheet overhead onto the roof rack of the customer’s vehicle. Each MDF sheet measured 1200mm x 2400mm x 16mm (thick) and weighed about 33kgs.

4. The defendant denies that it breached the duty of care owed to the plaintiff and says that the plaintiff is guilty of contributory negligence.

5. If successful in establishing negligence, the plaintiff is entitled to damages for economic loss. The plaintiff has not returned to work and alleges that he has no residual earning capacity as a result of his injuries and disabilities. The defendant contends that the plaintiff is fit for work or alternatively has some residual earning capacity.

The plaintiff’s case

6. The plaintiff tendered statements made by him on 27 March 2014 and 31 August 2017. The plaintiff also gave evidence before me and was cross-examined.

7. The plaintiff tendered a bundle of medical reports and other documentation and a photograph of the shed from where he obtained the MDF sheets. I will refer to this evidence where it is necessary to do so.

8. The plaintiff was born on 14 February 1962 and is presently 57 years of age. He left school in 1977 after completing Year 10 at Broken Hill High School.

9. He worked as a car salesman for two years before being employed as a drilling offsider in mining. The plaintiff was then employed in the hospitality industry for about five years, before being employed as a trainee manager with Big W. For about 12 months the plaintiff also worked as a night fill manager at Woolworths. In 1988 the plaintiff took up a position as a pasteuriser, supervisor and manager at a dairy for two years. The plaintiff then took up a position at the Highway Deli in Broken Hill establishing a series of mobile vans for morning tea and lunch deliveries. In 1991 the plaintiff was employed as an assistant manager at Hungry Jacks for two years, before returning to the Highway Deli. In 1995, the plaintiff was employed at the Mulga Hill Tavern as a bar, bottleshop and gaming attendant for about six years.

10. On or about 11 November 2001 the plaintiff was involved in a serious motor vehicle accident. In or about November 2003 the plaintiff underwent an L5-S1 laminectomy and spinal fusion at that level. The plaintiff was off work from the date of the motor vehicle accident until being employed by the defendant.

11. In June 2007 the plaintiff was employed by the defendant. The plaintiff heard of the position through a friend and came to the store to meet the director of the defendant Mr Robin Chapman. The plaintiff was employed at that informal interview and induction.

12. The defendant operated a retail hardware store and a trade store that were across the road from each other. The plaintiff worked in the trade store. In or about August 2009 there were about eight to 10 full time employees at that store.

13. The plaintiff’s role involved ordering plumbing lines, processing orders and assisting customers. As part of his role, he was required to transport stock from the retail store across the road using a trolley. He was required to lift pieces of timber approximately 6m in length and weighing up to 10kg, as well as bags of concrete weighing up to 20kg. Bags of concrete weighing 25 to 30kg were required to be lifted by two people. Mr Fuller gave evidence that some of the heavy products were stored on low shelves, requiring bending and lifting in order to move them.

14. On 11 August 2009, the plaintiff commenced work at 8:30am. At around 9:00am, he was asked by a fellow employee, Kerry Hunter, to retrieve an order for a customer, Rhys Williams. Ms Hunter was attending to another customer at the time.

15. The plaintiff proceeded to the shed with Mr Williams' invoice for the six MDF sheets. There was a forklift available at the premises however the plaintiff was not a licenced forklift driver.

16. The shed in which the MDF sheets were stored was 9m long by 6m wide. The 9m wall fronted into the yard and the 6m wall was to the side. In the 6m wall was a door used by the workers to access the shed. This was referred to in the evidence as the personnel access door. On the 9m front wall of the shed there was a sliding door. The sliding door could be opened to allow the ingress and egress of bulky goods, including goods on full sized pallets.

17. The plaintiff entered the shed through the side door and opened the sliding door. The plaintiff gave evidence that the sliding door was difficult to open because it had been struck by the forklift on an earlier date and that he had to exert considerable effort to open it.

18. The MDF sheets were stored upright in racks resting on their long edge on the floor of the shed along the back wall. They were positioned opposite to the sliding door so they could be removed through it.

19. There were four to six pallets stacked with various products on the floor of the shed, to a height of approximately 400 to 500mm. These were located between the MDF sheets and the sliding door, requiring the boards to be lifted over the pallets rather than being dragged across the floor.

20. The plaintiff pulled the first MDF sheet approximately 900mm across the floor before lifting it over the pallets and dragging it out of the shed. During this process, he experienced pain in his shoulders and middle to lower back. Once he had dragged the sheet outside the shed, Mr Williams assisted him in loading it onto the roof rack of Mr Williams' vehicle.

21. The plaintiff repeated the process for the five remaining MDF sheets. After doing so, the pain in his back was radiating into his right hip, buttock and calf, and he experienced pain at the top of his left shoulder.

22. The plaintiff gave evidence that the two yard workers, Shane Stacey and Robert Fulton, were not present at the time of the incident, as they had taken the truck to deliver an order to a customer. The plaintiff tendered an invoice dated 10 August 2009 and delivery dockets to corroborate that evidence.

23. The plaintiff tendered a photograph of the shed looking in from the sliding door. The plaintiff gave evidence that the photograph had been given to him a number of years later by Mr Stacey. The photograph depicted buckets, some debris, a pallet stored on its side and a pallet on the ground with something on it in the area described by the plaintiff on the day of his injury.

24. Following the incident, the plaintiff continued to work until his shift ended at 12:30pm. He was then due to have 1.5 days off in the normal roster. The plaintiff went home and was experiencing pain in his back, groin and hip.

25. On 13 August 2009 the plaintiff consulted his general practitioner, Dr Rolleston. The plaintiff complained of pain in the lumbar/sacral area of his back, the L2-4 area of his upper back and sore shoulders, giving a history of lifting some ‘melanite board’ onto a vehicle. Dr Rolleston reported some tenderness in these areas. The plaintiff was advised to rest, apply ice and prescribed Panadeine Forte for the pain. The plaintiff rang Mr Fulton and informed him of the incident, and that he would not be attending work.

26. On 17 August 2009 the plaintiff returned to see Dr Rolleston. In addition to his earlier complaints he complained of right groin pain. He was prescribed anti-inflammatory medication and certified off work until 28 August 2009.

27. On 29 August 2009 the plaintiff returned to see Dr Rolleston. He stated that he was ‘no better’. He was experiencing right sided sciatica and pain in his left shoulder. He was referred for a CT scan of his lumbar spine and right hip. The CT scan revealed a broad disc bulge at L4-5 and his prior spinal fusion at L5-S1 appeared to be intact.

28. On 10 September 2009 the plaintiff returned to see Dr Rolleston. He was referred to an orthopaedic surgeon Dr Orso Osti in Adelaide.

29. On 24 September 2009 the plaintiff returned to see Dr Rolleston. He complained of a sore left shoulder and difficulty with abduction. He was referred for an ultrasound of his shoulder that demonstrated a full thickness tear of the anterior supraspinatus tendon. The plaintiff was referred to Dr Darren Waters an orthopaedic surgeon in Adelaide.

30. On 28 September 2009 the plaintiff was seen by Dr Osti. The plaintiff gave a history to Dr Osti of lifting a heavy board of approximately 33kg with another person and feeling an immediate sharp pain radiating from the lower back to the right buttock and the right groin, which had persisted between the incident and the consultation with Dr Osti. Dr Osti noted disc degeneration at L4-5 without obvious neural compromise. Dr Osti referred the plaintiff for an MRI scan and advised a conservative approach, with further possible treatment options including facet joint injections at L4-5 and/or surgical intervention to decompress and stabilise his L4-5 segment. Dr Osti referred the plaintiff for a bone scan.

31. On 12 February 2010 the plaintiff had an MRI scan of his left shoulder at the request of Dr Waters. The scan demonstrated a high grade full thickness tear involving the anterior and mid supraspinatus tendon.

32. In or about April 2010 the plaintiff moved to Bundaberg, Queensland. The plaintiff gave evidence that he moved in with Laurel White, a woman he knew from attending church in Broken Hill, and she became his carer. His move to Bundaberg coincided with him surrendering his home to the mortgagee, because he could not afford the repayments. When Ms White left Bundaberg to move to Tasmania, Kelly Patrick became his carer. The plaintiff’s carers did the majority of the washing, cooking, mopping and vacuuming.

33. On 14 May 2010 the plaintiff underwent a left shoulder reconstruction performed by Dr Waters at the St Andrews Hospital in Adelaide. The operation involved the repair of the rotator cuff tendon and a bicep tear. On 21 May 2010 Dr Waters reported to the workers compensation insurer that the plaintiff’s injury was related to the incident described by the plaintiff at work on 11 August 2009.

34. On 2 July 2010 Dr Osti administered facet joint injections at the Calvary Hospital in Adelaide.

35. On 26 August 2010 Dr Osti performed a lumbar discography at the Memorial Hospital in Adelaide, for the purpose of determining if surgery was feasible. Dr Osti estimated based on the results of the discography that there was a 70% chance of surgery being effective for him, achieving an improvement of 50% of his disability at that time.

36. On 27 September 2010 Dr Osti opined that the plaintiff should avoid activities involving prolonged forward bending, heavy repetitive lifting (over 15kgs) and prolonged driving or sitting without frequently changing position.

37. On 2 October 2010 Dr Waters reported to the workers compensation insurer that the plaintiff was fit for light duties avoiding overhead lifting with an overall lifting restriction of 5kg. Dr Waters noted that the plaintiff was due for surgery with Dr Osti and that his fitness for work would also be impacted by the injuries being treated by Dr Osti.

38. On 18 January 2011 Dr Osti performed a decompression and stabilisation of L4-5.

39. On 17 March 2011 the plaintiff contacted Dr Osti complaining of pain in his left hip, pelvis and buttock. On review of an x-ray and MRI scan Dr Osti concluded that a pedicle screw used in the decompression operation was misaligned and required replacement. Dr Osti advised that the plaintiff have further surgery to remove and replace the pedicle screw. The plaintiff underwent that surgery in late April 2011.

40. On 29 July 2011 the plaintiff underwent an ultrasound guided steroid injection into his left shoulder AC joint. The plaintiff reported a 70% reduction in pain after the injection. An MRI scan of his left shoulder on 7 July 2011 demonstrated hypertrophy in the soft tissues of his AC joint. Dr Waters gave the plaintiff advice about an arthroscopy of the left shoulder with subacromial decompression, release of scar tissue and AC joint resection.

41. On 24 November 2011 the plaintiff underwent a revision of the rotator cuff repair performed by Dr Waters.

42. On 27 January 2012 the plaintiff was reviewed by Dr Waters. The plaintiff reported good relief from the shoulder revision surgery. Dr Waters opined the plaintiff was unfit for work for three months.

43. On 2 April 2012 Dr Osti reported that he wanted to review the progress of the January 2011 operation 18 months post-surgery, to determine the amount of bone growth in the L4-5 prosthesis. Dr Osti described this as the time when the plaintiff should achieve maximum medical improvement. Dr Osti remained of the opinion that the plaintiff should avoid the activities outlined in paragraph 36 above.

44. On 11 April 2012 the plaintiff was reviewed by Dr Waters. There was no evidence of a re-tear in the left shoulder. Dr Waters opined, subject to Dr Osti’s views also being considered, that the plaintiff was fit for light duties with a lifting restriction of 5kg and avoiding overhead lifting and reaching away from his body. Dr Waters anticipated a 12-24 month recovery period, post-surgery.

45. On 16 July 2012 the plaintiff participated in a multi-disciplinary functional capacity assessment to identify suitable work he could perform having regard to his injuries and disabilities, at Rehabilitation Services Pty Ltd in Sydney. Rehabilitation Services Pty Ltd produced a report dated that day. The assessment was conducted by an occupational medicine doctor, an occupational therapist and a psychologist. The assessment recommended he following restrictions:

1. avoid lifting more than 5kg on a regular basis;

2. may lift up to 10kgs with both hands (above waist level but close to torso);

3. lift between waist and shoulder height;

4. avoid twisting and bending lower back;

5. avoid lifting off the ground;

6. avoid overhead lifting or overhead work.

46. The assessment identified the following vocational options available for the plaintiff:

1. Sales Assistant;

2. Sales representative;

3. Overseer/Supervisor;

4. Data Entry Operator;

5. Administrative Assistant;

6. Catering Assistant;

7. Canteen Attendant;

8. Crossing Supervisor;

9. Retail Sales Manager;

10. Real Estate Sales Consultant;

11. General Clerk;

12. Receptionist;

13. Store Manager;

14. Store Supervisor;

15. Gaming Attendant;

16. Mystery Shopper;

17. Telemarketer;

18. Customer Service Operator.

47. On 26 July 2012 the plaintiff was reviewed by Dr Osti. The plaintiff complained of continuing low back pain and bilateral groin pain. Plain x-rays demonstrated that the bone growth at L4-5 was not complete, but there was no evidence of instability. Dr Osti thought that it was possible that the plaintiff’s pain was being caused by microscopic movement in and around the metallic implants and that removal of the rods and screws may provide further relief.

48. On 30 July 2012 the plaintiff was reviewed by Dr Waters. The plaintiff complained of ongoing discomfort in his left shoulder. Dr Waters noticed a 20% improvement in abduction and advised a conservative approach.

49. On 12 August 2012 Dr Osti reported that he agreed with the content of the earning capacity report, particularly that the plaintiff should avoid lifting more than 5kg on a regular basis or 10kg occasionally with both hands but not above his shoulders. Dr Osti opined that the plaintiff was unfit for fulltime work as a result of his musculo-skeletal disabilities and because he had not worked for a considerable time. He recommended return to work on a part-time basis progressing to increased hours as tolerated, in a sales type role on a ‘light duties’ basis.

50. On 22 January 2013 the plaintiff consulted Dr Brett Collins an orthopaedic surgeon in Brisbane. The plaintiff gave a history of occasional discomfort in the left shoulder and an occasional click. Dr Collins observed a slightly reduced range of movement. Dr Collins agreed that the plaintiff should be treated conservatively.

51. On 23 January 2013 the plaintiff consulted Dr Mark Young a sports physician in Brisbane. The plaintiff complained of persisting low back pain, right groin pain and occasional neural symptoms of tingling and numbness in the right leg. He gave a history of taking eight Panadeine Forte per day. On examination, Dr Young noted restricted movement in his lumbar spine and right hip and wasting in both calves. He was referred for an MRI scan and a bone scan. The results of the scans were unremarkable. Dr Young suggested further injections and prescribed medications.

52. On 20 February 2013 Dr Young administered nerve block injections at L5 of the plaintiff’s lumbar spine. The plaintiff reported significant relief, which lasted for about one week.

53. On 20 May 2013 the plaintiff consulted Dr Brendan Moore, a pain specialist in Brisbane. The plaintiff complained of low back pain on the right side and radiating leg pain. On examination, Dr Moore noted neurological symptoms from the right buttock to the right hip. Dr Moore advised that the plaintiff have further injections of local anaesthetic and steroids into the epidural space to try to reduce the neurological symptoms in the right leg. Dr Moore prescribed a more powerful analgesic at night to replace the Panadeine Forte.

54. On 18 July 2013 the plaintiff was reviewed by Dr Moore. The plaintiff reported five weeks relief from the steroid injections, with some pain returning in the last 10 days.

55. On 2 August 2013 the plaintiff saw his general practitioner, Dr Tennakoon, relating to stress and high blood pressure. He was referred for psychological counselling under a Mental Health Care Plan.

47. On 22 August 2013 Ms Royce Duxbury, a mental health social worker reported to the workers compensation insurer that the plaintiff continued to have problems relating to anxiety and depression. Ms Roxbury was unable to estimate a time of expected recovery.

48. On 22 September 2013 the plaintiff saw Dr Mohammed Assem, a consultant in rehabilitation and musculo-skeletal medicine, for the purpose of the doctor preparing a medico-legal report. Dr Assem produced a report dated that day. The plaintiff gave a history of lifting 6 MDF sheets onto a customer’s vehicle within a confined space. He noticed pain in his lower lumbar region radiating to his right groin and hip. He also noticed some left shoulder pain at the time. The plaintiff’s present complaints were intermittent discomfort in the left shoulder with some restricted movement and weakness, constant discomfort in the lower back at a rating of 5-6 out of 10 that fluctuated with activity, radiating pain in the left buttock, thigh and lower leg and pins and needles in his right leg. He was being assisted by a live-in carer. The plaintiff was taking Panadeine Forte and could not tolerate Lyrica. Dr Assem observed the plaintiff to be in some discomfort and noted restricted movement in the left shoulder and lumbar spine. Dr Assem opined that the plaintiff’s condition had stabilised and that he had a guarded prognosis. Dr Assem opined that he was theoretically capable of 20 hours work per week, but unlikely to obtain employment given the extent of his disabilities and his ongoing complaints and limitations.

49. On 18 November 2013 Dr Tennakoon certified the plaintiff unfit to work as a result of his physical disability and depression and anxiety arising as a result of his condition.

50. On 12 March 2014 the plaintiff saw a psychiatrist, Dr Scott Jenkins in Bundaberg. Dr Jenkins reported that the plaintiff had developed moderate to severe depression following him dealing with chronic pain and disability over an extended period. Dr Jenkins noted that he had been treated with a variety of anti-depressant medications over the preceding years and that his depression had not responded. Dr Jenkins opined that the plaintiff was unfit for work, even eight hours per week, for the next two years.

51. In or about late April 2015 the plaintiff moved to Glenelg, South Australia.

52. On 8 June 2017 the plaintiff was reviewed by Dr Waters. He complained of a tearing feeling in his shoulder following opening a jar. He was sent for an MRI scan. The scan demonstrated a partial tear of the supraspinatus tendon. Dr Waters advised a conservative approach with further surgery being a ’50:50’ option.

53. On 29 June 2017 the plaintiff was reviewed by Dr Osti. He was sent for a lumbar MRI scan. The scan demonstrated moderate spinal canal stenosis at L3-4 and to a lesser extent at L2-3. Dr Osti recommended a conservative approach.

54. On 15 December 2017 the plaintiff was reviewed by Dr Osti. Dr Osti suggested the surgical implantation of a neural stimulator, which would need to be approved by the worker’s compensation insurer.

55. On 8 February 2018 the plaintiff consulted Associate Professor David Cherry, a pain specialist, for the purpose of a medico-legal opinion, at the request of the workers compensation insurer. Professor Cherry produced a report dated 13 February 2018. The plaintiff gave a history of severe constant back pain with some radiation into the right hand side of his pelvis and both buttocks. He estimated that 90% of his pain was back pain. The plaintiff described the pain as static and quite severe nearly reaching 10/10. Professor Cherry accepted these complaints as possible, based on the plaintiff’s presentation. The plaintiff said the pain was worse at night and disturbed his sleep. Professor Cherry thought that he had a mood adjustment order as a result. On examination, Professor Cherry noted that the plaintiff had difficulty moving. He had very tight paravertebral muscles and the plaintiff reported occasional neurological symptoms in his right leg and foot. Professor Cherry noted Baker’s cysts in both knees and longstanding problems with gout. Professor Cherry opined that a one neural stimulator was not indicated. He suggested a trial for one week, noting that Dr Osti was concerned with the risk of infection from such a trial.

56. On 30 April 2018 the plaintiff saw Dr Dilip Kapur, a pain specialist at the request of his general practitioner. Dr Kapur described the plaintiff’s history as ‘very complex’. The plaintiff reported continuous pain in the lumbar spine and in both knees. The knee pain was aggravated by activity and had been deteriorating over the past two years. He continued to suffer discomfort in the left shoulder. The plaintiff told Dr Kapur that he used Panadeine Forte occasionally and generally tried to avoid analgesic medication. Dr Kapur did not believe that a neural stimulator would be effective. On examination, Dr Kapur noted minimal lumbar spine movements and a full range of motion in both shoulders. The plaintiff had swollen knees and a palpable Baker’s cyst in the left knee. He had a full range of movement in both knees. Dr Kapur recommended that the plaintiff engage in a multidisciplinary pain management program and a co-ordinated program of active rehabilitation.

57. On 11 May 2018 the plaintiff was reviewed by Dr Assem and the doctor produced a report of that date. The plaintiff told Dr Assem that he had remained off work on the certification of his general practitioner. He had completed a diploma in management and a diploma in business to enhance his employment prospects. The plaintiff complained that his shoulder symptoms had worsened, which was supported by MRI scan results. His back symptoms had persisted. He could sit for a whole day, but had to change position frequently. He could not do any housework. On examination, Dr Assem noted restricted shoulder movement and reduced strength, restricted movement in the lumbar spine and some neural symptoms. Dr Assem opined that the plaintiff’s barriers to obtaining employment included his age, his physical limitations and constitutional problems with both knees resulting in no viable options for employment. Dr Assem opined that the plaintiff had reached maximal medical improvement and that his prognosis was guarded.

58. On 21 June 2018 the plaintiff was reviewed by Dr Osti. He was sent for a lumbar MRI scan. There was further discussion about the neural stimulator.

59. On 26 October 2018 the plaintiff’s general practitioner, Dr Cynthia Young, provided a report to the plaintiff’s solicitor. Dr Young had been treating the plaintiff since about mid-2015. Dr Young believed that the plaintiff’s injuries and disabilities and his subsequent depression made him completely unfit for work, including for the jobs suggested for him.

60. The plaintiff gave evidence that he suffers pain in his back on a daily basis that radiates down through his pelvis into his right leg. He is limited in his movement and can only bend forward to reach his knees. He can lift 5kgs in each hand to a maximum of 10kgs, with no overhead lifting. The pain is eased to some extent by taking Panadeine Forte and it often affects his sleep, making him tired during the day. He has trouble getting into a comfortable position to sleep and usually gets about two hours continuous sleep at any one time. He can sit for 15-30 minutes before he has to stretch his back. The plaintiff gave evidence that he was uncomfortable sitting in the witness box. The pain is constant but is aggravated by long periods of sitting or standing. He can stand for 15-30 minutes at a time. He spends about three to four hours per day on the lounge. He is able to go shopping, but can only carry the shopping bags short distances. He is unable to lift with his left arm and is restricted by pain, weakness and limited movement in the left shoulder. He continues to suffer the symptoms of depression.

61. The plaintiff currently lives with a carer, who receives a carer’s pension. She assists the plaintiff to put on his shoes and socks, makes the bed, does the vacuuming, cleans the bathroom and does the majority of the shopping and driving.

62. The plaintiff does not believe that he could obtain employment with his present disabilities. He gave evidence that bar work was too heavy and involved standing for long periods of three to four hours. His previous employment in management positions was limited. He could not do the previous type of work he had done in a dairy because it involved lifting, using a large mixing paddle and traversing a lot of stairs. The plaintiff did not believe that he could undertake work as a telephone customer service officer because it would involve too much sitting and because he had never done that type of work. The plaintiff did not believe that he could do management work in a store or a club because he could not handle stock or coins (in a gaming room) or do ancillary tasks such as sweeping or tidying.

63. The plaintiff gave evidence that he could not promote musical entertainment events as he had done on a few occasions in the past, because there were always ancillary manual tasks that fell to the promoter to undertake. He could not attend to the accounting required for that work because he could not maintain the necessary attention to that type of task.

64. As part of the rehabilitation service provided to the plaintiff, he was required to apply for 10 jobs per fortnight. The plaintiff gave evidence that he applied for about 400 jobs as a result of that requirement. From those applications, he received two responses, the first for a job at a petrol station as a console operator and the second as a locksmith in a small stand at a shopping centre. He did not get either position. In 2014 the rehabilitation service was withdrawn by the insurer. The plaintiff tendered a list of the job applications he had submitted, with some details about the position. The applications were submitted through the ‘Seek’ website.

65. In cross-examination, it became apparent that the plaintiff’s solicitor had prepared his first statement and that the plaintiff had prepared the second.

66. The plaintiff accepted that he had received a safe lifting certificate whilst employed at Big W, in or about 1985. The plaintiff was shown a video and provided with handouts in this training. The plaintiff accepted that he knew from all of his jobs prior to working for the defendant that he should not expose himself to a risk of injury and that he should lift things properly.

67. It was suggested to the plaintiff in accordance with paragraphs 11-13 of his first statement, that he had lifted the MDF sheets in the past with the assistance of the two yard workers. The plaintiff denied ever having lifted the MDF sheets of the size involved in the incident. He did not know how heavy the MDF sheets were or that they required a two-person lift. His usual practice would have been to ask the yard workers to get the MDF sheets for a customer because his duties were predominantly inside the store and involved the sale of plumbing supplies. What happened on the day of the incident was unusual and occurred because the plaintiff and Ms Hunter were the only employees present in the store.

68. The plaintiff denied receiving any training from Mr Chapman as to how to lift materials at the store, or when to ask for assistance. He denied being told by Mr Chapman not to lift the MDF sheets by himself. The plaintiff had lifted fibre cement sheets on occasions.

69. The plaintiff disagreed that Mr Stacey, Mr Fulton and two other employees were present at the time he moved the MDF sheets onto Mr Williams’ vehicle. The plaintiff denied acting contrary to what he had been told about moving the MDF sheets. He agreed that he had been told that the bags of concrete that were over 20kgs in weight were a two-person lift.

70. The plaintiff did not agree that with his history of back injury that he should have stopped when he first felt pain. He gave evidence that he thought he was experiencing cramps that would go away.

71. The plaintiff described dragging the MDF sheets about 900mm out of the rack before lifting them about 300mm upwards to get them over the pallet in front of the rack. The removal and loading of the MDF sheets took about 20 minutes to complete. The plaintiff gave evidence that he did not think to arrange to deliver the MDF sheets later in the day.

72. It was suggested to the plaintiff that he could have waited for the return of the yard workers after ascertaining the weight of the first MDF sheet. The plaintiff responded that he did not know where they were or how long they might be and that Ms Hunter was busy with another customer, so there was no-one to ask how long they would be. The plaintiff believed it was part of his job to obtain the MDF sheets for Mr Williams in the absence of Mr Stacey and Mr Fulton. The plaintiff denied that another man by the name of Shane Blackshaw was employed at the store on the day of the incident.

73. The plaintiff recalled two pallets in between the rack and the sliding door, of which one was a full pallet and the other may have been a half pallet.

74. The plaintiff did not recall being asked to clean up the shed a week earlier, or telling Mr Chapman that he would do so. The plaintiff denied being aware that he had been suspected of stealing whist working for the defendant. The plaintiff denied telling Mr Fulton that he was injured when he lifted a bag of cement.

75. The plaintiff could not recall giving the histories of the incident as recorded by Dr Osti and Dr Waters. The plaintiff accepted that the history recorded by Dr Rolleston was accurate.

76. The plaintiff agreed that he believed that he was physically capable of doing the jobs that he applied for. He did not believe that a potential employer would think that he was necessarily qualified to work as a car salesman. He applied for the volume of jobs that he did because he was told that he had to. The plaintiff disagreed that he was not qualified for some of the positions he applied for. He accepted receiving an email response from a newspaper to the effect that they were looking for someone with experience in newspaper sales, which he did not have.

77. The plaintiff has over the years collected memorabilia relating to Cold Chisel and Holden motor vehicles. He has sold some of those items over the internet at different times.

The defendant’s case

Ms Owen’s evidence

87. The defendant relied on an Earnings Capacity Report dated 24 August 2018 prepared by Ms Amber Owen, a clinical psychologist. Ms Owen was required for cross-examination.

88. Ms Owen had access to the medical reports relating to the plaintiff and his work history. She then administered a series of psychometric tests to determine the plaintiff’s aptitude for various skills. She then compiled a list of appropriate jobs for the plaintiff based on his skills and restrictions. She then researched similar roles advertised on various job-seeker websites.

89. Ms Owen identified six positions for which the plaintiff was suited, being:

1. Customer Service Call Centre Operator;

2. Department Manager;

3. Sports Club/Facility Manager;

4. Gaming Manager;

5. Event Co-ordinator;

6. Store manager.

90. Ms Owen noted Dr Young’s recommendation that the plaintiff participate in a multi-disciplinary pain management program to increase his capacity. Ms Owen supported this recommendation. Further, Ms Owen recommended that the plaintiff participate in vocational counselling to develop and enhance his job-seeking skills.

91. Ms Owen was subjected to a thorough and skilful cross-examination relating predominantly to the physical and mental disabilities that are outlined in the medical reports. In my view, Ms Owen’s evidence was unshaken. For most of the challenges she could identify where the particular restriction was taken into account in her report. I was impressed by her as a witness, by reference to what she said and her demeanour at the time of giving her evidence.

Mr Chapman’s evidence

92. The defendant called Mr Chapman to give evidence and he was cross-examined.

93. Mr Chapman and his wife were directors of the company that operated the defendant’s business for the past 28 years.

94. The plaintiff was employed as a sales assistant in June 2007. Mr Chapman employed the plaintiff and inducted him into the job. The induction consisted of showing him around where different products were stored or displayed and what they were used for. Mr Chapman showed the plaintiff how to lift bags of cement and how to use some of the saws for cutting timber.

95. Mr Chapman did not recall saying anything to the plaintiff about how to lift MDF sheets. He did show the plaintiff that you could pull the MDF sheets across the floor. Mr Chapman could not recall telling the plaintiff anything about asking for assistance with lifting the MDF sheets.

96. Mr Chapman described the shed as being 3100mm from the end of the rack where the MDF sheets were stored to the sliding door. The rack was a bit more than 2400mm deep.

97. Mr Chapman gave evidence that the plaintiff had told him on 8 August 2009 that he was cleaning up in the shed area. Mr Chapman gave evidence that two pallets would not fit in front of the rack. One pallet made it hard to drag the sheets out, but it was possible. A standard pallet was 1200mm by 1200mm, a half pallet was 600mm by 1200mm and various items came on bespoke pallets of varying measurements according to the product it was designed to carry. From the floor to the bottom of the rack was 1275mm.

98. Mr Chapman suspected the plaintiff of stealing money and considered that he had no prospects of promotion. Mr Chapman thought that the materials depicted in the photograph of the shed were from a training night that had been conducted by a sales representative after hours at the store.

99. In cross-examination, Mr Chapman did not think that it was possible to lift the MDF sheets up and over a pallet if it had been left in front of the rack, because you could not lift it high enough.

100. In re-examination Mr Chapman explained that there was only 75mm clearance on the rack and a standard pallet was 120mm high.

101. I accept that Mr Chapman was trying to do his best to give honest evidence. I generally accept his evidence, except as to his assertion that the plaintiff’s actions in removing the MDF sheets from the shed were impossible, for the reasons that follow.

Consideration

Liability

Breach of duty

102. The defendant owed the plaintiff a non-delegable duty of care to provide a safe system of work. An employer must take reasonable care to avoid exposing an employee to an unnecessary risk of injury. The employer must take reasonable care to devise a method of operation for the performance of a task that eliminates the risk or provides adequate safeguards. The employer must take into account thoughtlessness, inadvertence or carelessness particularly in the case of repetitive work: Czatyrko v Edith Cowan University (2005) 214 ALR 839 at [12].

103. In Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47 Mason J stated:

In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant’s position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man is response calls for a consideration of the magnitude of the risk and the degree of probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have.

104. The defendant’s primary submission was that the plaintiff’s case depended on the acceptance of his evidence and that because he was an unreliable witness that I could not be satisfied on the balance of probabilities that the defendant breached the duty of care that it owed to the plaintiff.

104. Taking into account all of the evidence, the plaintiff’s evidence as to the circumstances in which his injury occurred should be accepted, for the reasons that follow.

105. The defendant’s attack on the plaintiff’s credit was not as effective as the submissions for the defendant convey. I am not satisfied that the plaintiff’s first statement conveyed that he would lift MDF sheets of the kind involved in the incident, with the assistance of another person. The first statement was capable of conveying that there were two people to move these MDF sheets, being the yard workers Mr Stacey and Mr Fulton. My reading of his answers in his evidence-in-chief and cross-examination is consistent with this finding. I am satisfied that the plaintiff’s evidence was consistent on this topic.

106. I am satisfied that the histories given to Dr Rolleston, Dr Osti and/or Dr Waters were consistent with the plaintiff’s evidence. The defendant submitted that the history given to those doctors and in the claim form to the insurer was consistent with his injury occurring during the course of lifting the MDF sheets onto Mr William’s vehicle, and that because the plaintiff had assistance at that point in time that there was no breach of duty.

107. The plaintiff did not dispute the histories given to the doctors. In cross-examination, the plaintiff gave evidence that he believed that he was injured when he was manoeuvring the first MDF sheet out of the rack. In my view, the history given to the doctors and in the claim form was an appropriate and adequate description of what occurred and not inconsistent in the way suggested by the defendant.

108. The presence of the obstacles in front of the rack was included in the plaintiff’s first statement dated 27 March 2014, which was made with the assistance of his solicitor. It is possible that the plaintiff did not appreciate the significance of the presence of the obstacles until making that statement. It was not put to the plaintiff that the obstacles were not present or that he was not telling the truth on this point. The photograph of the presentation of the shed some years later was corroborative of the plaintiff’s evidence.

109. Mr Chapman did not contradict the plaintiff’s evidence on this point. Mr Chapman was not asked if the photograph was a true depiction of the presentation of the shed on occasions or at all and in particular whether materials on pallets were at times stored in front of the rack. In this respect the defendant failed to ask questions of Mr Chapman that were within his knowledge and I would infer that his testimony on this topic would not have assisted the defendant: Commercial Union Assurance Company of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 at 418-9 per Handley JA (Kirby P agreeing).

110. I am satisfied that the plaintiff’s evidence about the way he was required to remove the MDF sheets from the rack was plausible. The defendant submitted that it was impossible for the plaintiff to have pulled an MDF sheet out 900mm from the rack and then to have lifted it 400-500mm off the ground, because the rack was 1275mm high and at the time when the vertical lift was commenced, there was still 1500mm of the sheet in the rack. The defendant’s submission depends on taking the measurements estimated by the plaintiff to be absolute, which they were not. The plaintiff’s evidence was that there may have been two pallets in front of the rack or one full pallet and one half pallet. A standard pallet was 1200mm by 1200mm and 120mm high and a half pallet was 600mm by 1200mm and 120mm high. It was also possible that one of the pallets could have been a custom made pallet of unknown dimensions. Mr Chapman gave evidence that the distance between the end of the rack and the sliding door was 3100mm. If there were two standard pallets side by side in front of the rack there was a clearance of about 700mm, before the lift could commence. If one of the pallets was a half pallet the clearance was about 1300mm. The plaintiff gave evidence that the pallets had broken materials, buckets and some concrete mix on them. I am satisfied on the evidence that the plaintiff did not have to lift the MDF sheets over all of the material on the pallets and it is unlikely that he had to lift the sheets 400-500mm off the ground. In my view it was more likely that he had to lift the MDF sheets 130-200mm off the ground to clear the pallets and to negotiate the MDF sheet through the material on the pallets. I am satisfied that one of the pallets was a non-standard pallet and accordingly there was a clearance of about 1300mm or more from the front of the rack, before the plaintiff was required to lift the MDF sheet vertically.

111. The defendant submitted that it was unlikely that the plaintiff could have continued working if he experienced the pain he gave evidence of following the incident, or at least it would have caused him to report the injury on the day. The first point to note is that this submission is inconsistent with the defendant’s concession that it accepted that the plaintiff did receive an injury on 11 August 2009. Having carefully reviewed the medical histories, it is apparent that the plaintiff developed his symptoms over a period of a few weeks. He gave evidence that each symptom was apparent on 11 August 2009 during the process of opening the sliding door, removing the MDF sheets from the shed and loading of them onto the vehicle. I do not accept that part of his evidence. Dr Rolleston’s notes support the conclusion that the plaintiff’s symptoms developed in the period between 13 August 2009 and 24 September 2009. Those symptoms were corroborated by objective medical findings of a broad disc bulge at L4-5 in the CT scan performed on 29 August 2009 and the full thickness tear of the supraspinatus tendon in his left shoulder in the ultrasound performed on or about 24 September 2009.

112. I do not accept that the plaintiff gave a misleading or dishonest answer on his claim form dated 1 September 2009. The plaintiff described his injury sustained on 11 August 2009 as ‘Back/mid, groin pain and buttock sciatica’. The claim form then asked ‘Have you previously had another injury/condition or personal injury claim that relates to this injury/condition?’ to which the plaintiff answered ‘No’. The plaintiff had previously had a personal injury claim for a motor vehicle accident in which he received an injury to his lower back at L5-S1. The plaintiff also made reference in the claim form and the letter accompanying it to the ‘upper part of my back’ and ‘middle part of my back’. I am satisfied that was a reasonable description of his injury at the time of completion of the claim form and drafting the letter. The medical evidence supports his assertion that the injury occurred other than at the site of his prior injury. Whilst a lawyer may give the phrase ‘relates to’ a wide meaning, the question asked in the claim form is capable of being understood as the plaintiff gave evidence that he understood it to mean, that is the same injury.

113. The balance of the credit challenges related to histories given on minor aspects of the plaintiff’s medication, his presentation to Dr Kapur, his mental acuity to undertake his tertiary studies and his ability to undertake some of the jobs that he applied for. Overall, I am not persuaded that any of these matters alone or in combination are sufficient for me to reject the plaintiff’s evidence on liability. I will return to some of these matters when considering the plaintiff’s earning capacity.

114. It is fair to say that the plaintiff was a poor witness. In course of giving evidence he was on some occasions evasive and argumentative. To at least some extent the plaintiff was an advocate for his own cause. However, on the liability issue his evidence was corroborated and/or not contradicted in a number of important respects that I have already referred to and on that basis I would make the following findings of fact:

1. The MDF sheets weighed approximately 33kgs each.

2. It was part of the plaintiff’s duties to remove the MDF sheets from the rack and to load them onto the customer’s vehicle.

3. The plaintiff had not previously attempted to or been required to move this type of MDF sheet. He was unaware of the weight of each sheet and had not been instructed on how to lift them. The Plaintiff had not been directed to use a two-man lift or to arrange for the use of mechanical means to lift the sheets. A forklift was available at the premises as a means of completing a mechanical lift of the MDF sheets.

4. There was no other employee available at the store at the time, capable of assisting the plaintiff with a two-man lift.

5. There were pallets stored in front of the rack where the MDF sheets were stored. There was broken material, buckets and some concrete mix stored on the pallets in front of the rack.

6. In the course of moving the MDF sheets out of the shed and lifting them onto the customer’s vehicle the plaintiff received injuries being a disc injury at L4-5 of his spine and a full thickness tear of his supraspinatus tendon in his left shoulder.

116. The risk of injury to the plaintiff from the manual handling of items sold at the store was obvious and known to the defendant. The plaintiff had been instructed to employ a two-man lift for any bag of cement weighing in excess of 20kg.

117. There were simple and inconvenient measures available to the defendant to eliminate or minimise the risk of injury. First, the defendant could have instructed the defendant to employ a two-man lift when lifting the MDF sheets or to use the mechanical means that were available. Second, the defendant could have ensured that the shed was free of obstacles that required the plaintiff to move the MDF sheets in a confined space.

118. The magnitude of the risk was significant, in that it could result in serious injury as it did in this case. The probability of the risk coming home was moderate.

119. Taking into account all of those matters, I am satisfied on the balance of probabilities that the defendant breached the duty of care that it owed to the plaintiff.

Causation

120. The defendant conceded that if the plaintiff established a breach of duty that causation would also be made out.

Contributory negligence

121. The defendant submitted that any award in favour of the plaintiff should be reduced for contributory negligence.

122. The making of an apportionment between a plaintiff and defendant for their respective shares in the responsibility for damage involves a comparison of both culpability and the relative importance of the acts of the parties in causing damage. The whole conduct of each negligent party in relation to the subject of the accident must be subjected to comparative examination: Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALR 492 at 533.

123. A critical difference between the assessment of negligence and the assessment of contributory negligence is that the purpose of the latter assessment is to allow for an apportionment of responsibility for the injury by a reduction in the damages recoverable by the plaintiff to the extent that the Court thinks just and equitable having regard to the plaintiff’s share in the responsibility for the damage: Council of the City of Greater Taree v Wells [2010] NSWCA 147 at [107] per Basten JA.

124. Contributory negligence differs from negligence. There is no duty owed to another person and contributory negligence involves conduct that exposes the actor to risk of injury without necessarily exposing others to risk. The standard of care in contributory negligence, like negligence, depends on foreseeability and is that of a reasonable person. The plaintiff is guilty of contributory negligence if he or she ought reasonably have foreseen that if he or she did not act as a reasonable person, that would that expose him or herself to a risk of injury: Commissioner of Railways v Ruprecht (1979) 142 CLR 563 at 570 per Mason J.

125. The defendant’s departure from the standard of care of the reasonable employer was significant. The defendant had actual knowledge of the risk and there were simple and inexpensive means available to eliminate or minimise the risk. The defendant’s culpability for the injuries sustained by the plaintiff was high. The defendant’s omissions were a significant and important cause of the plaintiff’s injuries.

126. By comparison, the plaintiff was attending to the duties that were expected of him by the defendant and he was focussed on that task. Whilst the plaintiff had received some manual handling training in 1985 with Big W, the content of that training was not explored in cross-examination. There is no evidence of what the plaintiff knew or ought to have known from receiving that training. The plaintiff knew that he had a prior back injury, but I accept his evidence that he was not suffering any adverse effects of that injury in August 2009 and that he was completing his usual duties with the defendant without difficulty. I accept that the removal and loading of the MDF sheets was an unusual task for the plaintiff and that he did not know how much the MDF sheets weighed before attempting to manoeuvre them out of the shed and load them. The pain that the plaintiff suffered at the time of the incident, whilst unusual, did not prevent him from continuing with the task at the time. I am not satisfied that the plaintiff failed to take reasonable care to avoid the risk of injury.

127. Taking into account all of those matters, I am not satisfied on the balance of probabilities that the plaintiff was guilty of contributory negligence.

128. If I am wrong on this conclusion, I would assess contributory negligence as 10%.

Damages

129. The only damages that may be awarded in this claim are damages for past economic loss and future economic loss by deprivation or impairment of earning capacity: section 151G Workers Compensation Act 1987.

130. There is very little dispute on the medical evidence. I have set out most of the opinions of the plaintiff’s treating doctors and the medico-legal opinions at [25] to [68] above, which I will not repeat. The plaintiff suffered injuries to his left shoulder and spine that have each required surgery on a number of occasions. I am satisfied that there was a significant continuous period between the date of the incident and about August 2012 during which the plaintiff was receiving treatment for either his shoulder injury or his spine injury and during which time the conditions had not stabilised. The plaintiff continued to have injections in his lumbar spine to control the pain in 2013 and in about June 2017 suffered a second re-tear of his supraspinatus tendon. In 2018 the plaintiff consulted pain specialists, who both considered his continuing complaints of significant and debilitating back pain to be reasonable.

131. Since about August 2013, the plaintiff has suffered some depression as a result of the impact of his disabilities. This condition made him unfit to work between March 2014 and March 2016.

132. The defendant relied on one medico-legal report prepared by Dr Hugh English dated 12 November 2013. At the time of the consultation with Dr English, the plaintiff complained of ongoing back pain radiating into the right great trochanter and pubic region, intermittent numbness in the right thigh, right lateral calf and 3 toes on his right foot. The pain was constant and required the plaintiff to take strong pain medication. On examination, the plaintiff had restricted shoulder movement and lumbar spine movements. Dr English opined that the injuries to the plaintiff’s shoulder and spine required surgery and were both related to and consistent with the plaintiff’s description of how the injuries occurred in the course of his employment. Dr English opined that the plaintiff was fit for non-lifting work that allowed for a change of position between sitting and standing, including customer service if there was no manual handling of goods in excess of 5kg. Dr English was of the view that there was no treatment for the plaintiff’s condition other than the continuation of analgesic medication. Dr English’s opinion on the plaintiff’s whole person impairment was not pressed.

133. The doctors all agree that the plaintiff is unfit for his pre-injury employment and that he is precluded from employment requiring lifting of more than 5kg in one hand, lifting more than 10kg in both hands, overhead lifting, bending, twisting or squatting and standing or sitting for extended periods, with a 30 minute limitation on driving.

134. The plaintiff tendered medical certificates prepared by his treating general practitioners. Those certificates indicate that he was unfit for any work from 11 August 2009 to 2 April 2012. On 2 April 2012 he was certified as fit for modified duties as described in Dr Osti’s reports and set out in paragraph 43 above for the period 2 April 2012 to 25 October 2013. From 25 October 2013 to 6 December 2018 the plaintiff was certified as unfit to perform any work.

135. The plaintiff was assigned a rehabilitation provider by the workers compensation insurer. As part of that service the plaintiff was required to apply for 10 jobs per fortnight. The plaintiff tendered records relating to more than 400 positions he applied for on the ‘Seek’ website, in the relevant period. The plaintiff received two responses to his applications and was unsuccessful in getting employment.

136. It was accepted by the plaintiff in cross-examination that he believed that he was able to do the jobs that he applied for. On the basis of this acceptance, the defendant submitted that the plaintiff’s evidence that he could not do these jobs now should be rejected. In my view, the requirement by the rehabilitation provider that the plaintiff apply for 10 positions per fortnight made it inevitable that the plaintiff would have to apply for positions for which he was unqualified to do or unable to do. For the reasons that follow, I have come to the conclusion that the plaintiff is capable of doing some work.

Past economic loss

137. As to the past, I am satisfied on the balance of probabilities that the plaintiff was completely incapacitated for work. Taking into account the plaintiff’s varied employment history and the fact that he had a prior back injury, I find it is likely that the plaintiff would have continued working with the defendant. I find that it is unlikely that the defendant would have terminated him on the basis of a mere suspicion that he was stealing money.

138. The defendant submitted that that at the time of the incident the plaintiff was earning $600 per week nett, and that I should allow a 3% increase per annum to take into account CPI increases, giving the figures set out in the table below.

Date	Wage Net Per Week	Number of Weeks	Amount
30.6.10	$600	46	$27,600
30.6.11	$618	52	$32,126
30.6.12	$637	52	$33,100
30.6.13	$656	52	$34,093
30.6.14	$675	52	$35,115
30.6.15	$695	52	$36,170
30.6.16	$716	52	$37,254
30.6.17	$737	52	$38,372
21.11.18	$760	21	$15,960
Total	581	$289,800

139. At the time of the incident, the plaintiff and Mr Tumes were roughly earning comparable amounts, for the pay period 11 April 2009 to 17 April 2009 the plaintiff earned $731 per week gross ($622 nett) and Mr Tumes earned $741.00 per week gross ($626 nett). I am cognisant of the fact that Mr Tumes was Mr Chapman’s son-in-law and that he may have been treated more favourably than the plaintiff. However, it is useful to test the figures suggested by the defendant by comparison to the figures I have for Mr Tumes, that are set out in the table below.

Week ending (hours)	Gross	Nett	Defendant’s estimate figure for the plaintiff
02.07.2010 (43)	$751.00	$646.00	$600.00
15.06.2012 (44)	$1,145.00	$909.00	$637.00
03.04.2015 (52.5)	$1,300.60	$1,020.60	$656.00
08.07.2016 (48.5)	$1,274.39	$996.40	$716.00
07.07.2017 (57)	$1,570.37	$1,189.35	$737.00
24.11.2017 (61.5)	$1,920.25	$1,402.25	$737.00

140. In my view, this comparison demonstrates that the defendant’s figures are too conservative.

141. The plaintiff submitted that he would have earned $600 per week nett until 2012 when he would have been promoted to manage the store and earned $800 nett per week from that time. In 2015 he would have returned to work as a car salesman in Adelaide or to work in a dairy and earned $1,000 per week nett.

142. I am not satisfied that the plaintiff would have been promoted to manage the store because of the likely progression of Mr Tumes, based on his relationship with Mr Chapman. However, it is apparent form the figures set out above that the plaintiff was likely to do better than a 3% increase per annum, in line with CPI. If the plaintiff had stayed in Broken Hill it is unlikely that he would have gone back to the jobs contended for by the plaintiff.

143. It is reasonable to allow a 5% increase each year and to start at the actual nett loss at the time of the incident. The figures are set out in the following table.

Date	Wage net per week	Number of Weeks	Amount
11.8.2009 -30.6.2010	$622	46	$28,612
1.7.2010 -30.6.2011	$653	52	$33,956
1.7.2011 - 30.6.2012	$686	52	$35,672
1.7.2012 - 30.6.2013	$720	52	$37,440
1.7.2013 - 30.6.2014	$756	52	$39,312
1.7.2014 - 30.6.2015	$794	52	$41,288
1.7.2015 - 30.6.2016	$834	52	$43,368
1.7.2016 - 30.6.2017	$875	52	$45,500
1.7.2017 – 30.6.2018	$919	52	$47,788
1.7.2018 – 4.3.2019	$965	35	$33,775
Total	$386,711

144. The appropriate award for past economic loss is $386,711.

145. The plaintiff is entitled to loss of superannuation for the past at 11% of nett earnings. The appropriate award is $42,538.

Future economic loss

146. The plaintiff submitted that he should be compensated for the future on the basis of average weekly earnings. I do not accept that submission because the plaintiff had not demonstrated that level of earning capacity prior to the incident.

147. I have had regard to the evidence of Ms Owen. Her evidence is that the plaintiff is suited to certain types of employment with expected earnings of between $53,000 and $71,000 per annum gross. The average of those figures is $62,000 per annum gross or $1,192 per week gross ($943 nett). This figure coincides with the earlier calculation of past loss.

148. I am cognisant of the fact that the jobs suggested by Ms Owen are limited by the plaintiff’s restrictions and that if he was unrestricted that he may have been capable of earning more in other types of jobs, for which he is now unfit.

149. Taking into account all of the evidence, I am of the view that the plaintiff had a total earning capacity at the time of trial of $1,000 per week nett.

150. I am satisfied that the plaintiff has some residual earning capacity. The plaintiff is an intelligent man and as recently as 2014 and 2015 completed further tertiary studies. In my view, he is able to work in a customer service position with no manual handling or in a gaming room or TAB or in a telephone-based customer service role, where he could sit or stand as required. The plaintiff has previously held a responsible conduct of gaming certificate and modern gaming operations do not involve the handling of coins.

151. It would be reasonable for the plaintiff to work eight hours a week, being two shifts of no more than four hours. On a 40 hour week this amounts to a residual earning capacity of $200 nett per week.

152. I have also considered the availability of this type of work and the chances of the plaintiff finding work. The plaintiff has had some difficulty in obtaining employment after making a considerable number of applications. He needs further support in the form of a structured rehabilitation program and education on applying for jobs. Overall, I am satisfied on the balance of probabilities that the plaintiff could find such work.

153. The residual weekly loss for the future is $800 per week, until the plaintiff reaches 67 years of age. The defendant submitted that I should apply a higher than normal discount for vicissitudes of 25% because of the plaintiff’s prior injury and his work history. I am satisfied that this is an appropriate case to make a higher allowance.

154. The future economic loss award is $800 multiplied by 412.9 less 25% amounting to a loss of $247,740.

155. The plaintiff is also entitled to a loss of superannuation calculated at 11% of the net loss, being an award of $27,251.

Other matters

156. The plaintiff may be entitled to interest in accordance with section 151M Workers Compensation Act 1987. I will ask the parties to confer on this point to determine if they can reach agreement.

157. The parties agree that the Fox v Wood award is $35,507.

158. The defendant is entitled to credit for the amount of weekly payments already made to the plaintiff. There is some continuing disagreement on this figure. I will ask the parties to confer to see if agreement can be reached on this figure.

159. The plaintiff may be entitled to costs in accordance with clauses 94 and 95 Workers Compensation Regulation 2016. I will ask the parties to confer to see if agreement can be reached on this issue.

Orders

160. The orders I make are as follows:

1. Verdict for the plaintiff.

2. I grant leave to the parties to approach my Associate on or before 5pm on 19 March 2019 to file Short Minutes of Order in relation to the matters still in dispute or to list the matter for argument, after compliance with appropriate directions to serve Short Written Submissions.

**********

Decision last updated: 10 April 2019