Gibson v COB Supply Company Pty Ltd - [2001] NSWSC 168

No judgment structure available for this case.

CITATION: GIBSON v COB SUPPLY COMPANY PTY LTD [2001] NSWSC 168 revised - 23/03/2001

CURRENT JURISDICTION: Supreme Court

FILE NUMBER(S): SC 17534/81

HEARING DATE(S): 15 to 19 November 1999
28 February 2000

JUDGMENT DATE:
20 March 2001

PARTIES :

Plaintiff: Kerry John GIBSON
Defendant: COB Supply Company Pty Ltd

JUDGMENT OF: Hulme J at 1

COUNSEL : Plaintiff: In person
Defendant: Mr HG Shore

SOLICITORS: Plaintiff: In person
Defendant: Sparke Helmore

DECISION: Orders deferred

- 56 -

IN THE SUPREME COURT

OF NEW SOUTH WALES

COMMON LAW DIVISION

NO: 17534/81

Tuesday, 20 March, 2001

JUDGMENT

Kerry John GIBSON v COB SUPPLY COMPANY PTY LTD

:

Introduction

1 By Statement of Claim filed on 25 November 1981, the Plaintiff instituted proceedings for damages claiming that he had been injured at work due to the negligence or breach of statutory duty of the Defendant who he alleged was his employer at the time.

2 The Defendant’s final pleading was a Second Amended Statement of Defence filed on 16 November 1999. As the trial proceeded before me it became apparent that the ultimate issues were negligence, whether the premises were a factory and whether there had been a breach of statutory duty, whether the Plaintiff suffered more than a transient injury, and damages. On the latter topic, there was particular dispute on the question of what, if any, value should be attributed to a claim by the Plaintiff that the injury had precluded him from a career in first grade Rugby League. There was also an allegation of contributory negligence.

3 In December 1992, a trial of the action was held before Newman J. On 7 July 1993, his Honour directed that there be a verdict for the Defendant.

4 On 29 May 1997, the Court of Appeal allowed an appeal from that decision, ordered that there be a new trial of the proceedings and made other ancillary orders. These Reasons arise from the new trial which was held before me. The Plaintiff was unrepresented and appeared in person and though he performed, for a layman, a reasonable job, the absence of representation was not calculated to improve his chances or make a trial judge’s job easier.

5 Among the issues which arose in the proceedings was the extent to which previous decisions provided an estoppel in relation to various aspects of the claim. The Plaintiff took proceedings in the Workers Compensation Commission, receiving an award there from Acting Judge Egan on 2 May 1996. An appeal by the Defendant to the Court of Appeal was dismissed on 28 November 1996. Those decisions caused me to limit the evidence which the Plaintiff wished to adduce but at the end of the hearing there still remained some estoppel issues to be decided. However, it will be convenient in the first instance to refer to some of the other evidence before me.

The Incident giving rise to the Proceedings and Liability

6 The Plaintiff was the only witness to the incident. His account of events was as follows. He commenced working for the Defendant in November 1980 on a casual basis. His hours were from about 6 am until between 1 and 2.30 pm. Part of his duties involved working in a cool-room run by the Defendant which was engaged in the business of supplying fruit to the Coles food stores in Sydney and Newcastle. His duties included picking, by which I understand making up, orders and helping to keep the cool room tidy. These duties included picking up and moving boxes of fruit and vegetables.

7 At about 10am on 12 December 1980, he entered the cool room. No one else was there at the time. A pallet was in the middle of the floor and there was nearby a wooden box which had fallen off the pallet. In the course of picking up the box, the Plaintiff lost his footing, he struck his right side, or the right side of his back on a box on the pallet, grazing himself, fell on his left hand side onto the floor. He felt something give in the process. He said that he could not continue his duties that day and attended on a Dr Grasso at around lunchtime.

8 No clothing was supplied by the Defendant and the footwear the Plaintiff wore were rubber shoes with quarter inch studs on them. The Plaintiff said that the floor of the cool-room was made of smooth concrete and at the time of his fall there was water all over it. He said that the sources of the water were dehumidifiers located in the cool-room and the fact that the area inside and outside the cool-room had just been hosed down. He said that oils from whatever perishables there were in the cool-room would make the floor even more greasy and slippery but he did not say that any such oils were there at the time of his fall. However he did say that the floor was always slippery.

9 The Plaintiff was challenged on his evidence that the floor had only recently been washed down, it being put to him that that was a task routinely undertaken when work had ceased on Fridays and that his account of the washing down was invented by him prior to or in April 1981. The cross-examiner also put to the Plaintiff that the floor was damp but not slippery. The Plaintiff rejected both of these propositions.

10 No other witnesses gave evidence on the topic of the condition of the floor. There were however some documents which are relevant. A report of the New South Wales Government Division of Inspection Services of 16 September 1981, tendered by the Plaintiff, showed that on an inspection carried out on 27 May 1981 the concrete floor of the Defendant’s cool-room was of smooth concrete, damp but not slippery.

11 In his claim for compensation dated 15 January 1981, the Plaintiff said that his injury was caused by “I was picking up boxers slip over on a wet floor” (sic). In a statement apparently made to an insurance investigator, and dated 7 April 1981, the Plaintiff said that “he slipped on the wet concrete floor” and later in the document that “With regard to the incident of 12/12/80 I wish to state that the smooth concrete floor of the cool room on which I slipped had just been hosed down without the film of dirt and dust (together with vegetable matter) being swept or squeegeed off …”. In that document he also described the studs on his shoes as of rubber. It should be noted that the Plaintiff saw solicitors that day.

12 The Defendant’s own report of the injury to its insurer, albeit made in May 1981, records that the injury occurred when the Plaintiff “slipped on the wet floor”. While undoubtedly the Plaintiff could have been a source of this information, the report does amount to some adoption or acceptance of the facts asserted and is inconsistent with the proposition that the floor of the cool-room was never wet (except after a late Friday hose-down). The document also records that the Plaintiff gave notice of the injury at the time it occurred

13 There was also a document described as an “Initial Certificate” given by, as he was referred to, Dr Steventon, a chiropractor on whom the Plaintiff attended. The Certificate itself dated 24 February 1981 mis-states the date of the Plaintiff’s first attendance as “6.12.81”. A report from the doctor shows the date to have been 6 February 1981 - a date which derives a degree of support from the doctor’s summary of the Plaintiff’s attendances. In the Certificate Dr Steventon recorded that the Plaintiff had said “…when I fell on the greasy slippery floor”. In his later report of 16 April 1992, Dr Steventon recorded that the Plaintiff had reported slipping on the “wet slippery greasy floor”. The date or dates on which Dr Steventon received this information can, at best, be only a matter of inference.

14 Reliance was placed by the Defendant on the absence from the Initial Certificate of Dr Steventon of any mention of the floor having been hosed down. The cause of the floor being wet is not something I would regard as particularly important to Dr Steventon and hence I would not draw from the absence on which the Defendant relies the inference it seeks. The Defendant’s argument does apply with somewhat more force to the absence of any reference in the earlier document to the floor being wet. However, the mistake in the document as to the date of the Plaintiff’s first attendance reflects on the weight to be given to any statement in, or omission from, it.

15 In a report of 2 January 1982, Dr Grasso recorded that the Plaintiff “fell down because of the slippery floor”.

16 There was evidence which I accept that Mr Lionel Brennan, an employee of the Defendant to whom the injury was reported was too ill to give evidence. Hence no inference can be drawn from his absence. There was no explanation for the absence of others who must have worked in the cool-room and would have known that the floor was never wet (except after hosing down) or at 10 am in the morning if that was the fact.

17 Quite apart from what the Plaintiff said in the witness box, the documentary evidence provides persuasive and, even if hearsay, in my view sufficient, evidence that the floor of the cool room was smooth, wet and slippery at the time the Plaintiff fell. The absence of any mention earlier than 7 April of the floor being hosed down, does significantly affect the weight to be given to the Plaintiff’s evidence in that regard but ultimately both because of my view of the Plaintiff and because the Defendant called no evidence on the point, I find that the hosing did occur. In this regard, it should be noted that the fact of hosing down was alleged in the Statement of Claim and, if it was not the fact, one would have expected the Defendant to have been able to produce some evidence to that effect, even if it was not in the form of an available witness, 19 years after the accident.

18 There was no evidence that there was some necessity for persons to work on such a floor or that it was impractical for anything to be done about it. There is no doubt that the Defendant owed the Plaintiff as its employee, a duty of care and requiring or allowing him to work in the conditions I have found constituted negligence and a breach of that duty.

19 Nor is there any evidence which persuades me that the Plaintiff was guilty of contributory negligence. The mere fact he fell certainly does not provide it. These conclusions make it unnecessary for me to pursue the question whether there was a breach of statutory duty.

The Plaintiff’s Injuries

20 The Plaintiff said that Dr Grasso gave him a week off work but when he returned to the doctor at the end of that time the injury had not improved and he was sent for physiotherapy. This however gave him only temporary relief. Still not better after 4 or 5 weeks, the Plaintiff then took himself off to Dr Steventon on whom the Plaintiff attended for some 9 or 10 months.

21 According to the Plaintiff, the pain and discomfort which occurred when the incident happened and which indicated to him that he had an injury was in the left hand side of his back just under the belt. By the time he saw Dr Grasso, he had swelling in his groin.

22 The Plaintiff said that these injuries never came right. He always had discomfort in his left hand side. When he rotated his hips there was a clicking and grinding sensation in that area. On standing for long periods he becomes stiff in the shoulder blades and neck. The harder he tried to force himself, the worse his symptoms would become.

23 The Plaintiff described his physical symptoms at the time of trial as follows. He suffers pain in the left sacro-iliac region permanently, in the groin, and pain that extends up his back and into the shoulder region and neck. Pain in the latter area is relieved by cracking his neck. Standing for long periods of time worsens the pain. He has also cramping into the buttocks. When he leans, particularly his neck, forward he gets problems in the low left hand side of his back which spread into the shoulder and neck area. Bar work involves leaning of the head forward and pain restricts the time he can spend doing this.

24 Prior to the accident, the Plaintiff was always in employment. He said that since, he has often not known where his next dollar is coming from, although when regard is had to his employment record, there is some obvious exaggeration in that statement.

25 One matter which loomed large in the Plaintiff’s evidence was the disappointment he had that after the accident, “all me hopes and sort of dreams of going to Western Suburbs (Rugby League Club) just flew out”. What stopped him going to Western Suburbs was, according to the Plaintiff, the constant pain which was debilitating and which forced him to stop training. He put on weight and fell apart mentally. He said that he lost all hope for the future. While previously he was never restricted in what he could do, he could not play the game he loved. He became unhappy, argumentative and his sexual drive disappeared.

26 The matters referred to in the immediately preceding paragraph require some explanation. The Plaintiff was born with phocomelia consisting of the absence of his left hand and much of his left forearm. He had to a very great extent overcome this disability. In his words, “Like, I was born with a birth deformity but prior to the accident it never hindered me in any way. I was never restricted physically or mentally, but when I sort of sustained that injury I have carried a disability from that day onwards”. He gave other evidence to like effect.

27 Despite some initial surprise, I am satisfied that, prior to December 1980, he could do quite satisfactorily the work of a builders labourer, for example jack-hammering digging trenches, loading wheelbarrows with bricks or mortar and wheeling them. He became a good, if not better than good, footballer. At the club’s invitation, he spent February to September 1980 in Maclean playing first grade for the Lower River Rugby Club. There he received the player of the year award and earned some $3,000 for playing.

28 In about August of that year, at the end of a game he was invited by a coach from Western Suburbs Football Club to attend at that club at the beginning of the following season, as the Plaintiff put it, “for pre-training and trialing, with a view to negotiation of whatever would eventuate from the trials”. It is clear that the Plaintiff intended to avail himself of the offer, believing himself to have a good chance to be successful at the highest standard of football at Western Suburbs. Although events as they occurred are calculated to produce hindsight, I am satisfied that, before his accident, the Plaintiff set his heart on joining Western Suburbs. He returned to Sydney and commenced work for the Defendant. He remained in training.

29 Some of the evidence referred to in the last paragraph was objected to as hearsay and, because of the estoppel, irrelevant. As it bears on the topic of general damages, it is not irrelevant and neither is it hearsay. I might add that there is further evidence to like effect in the Plaintiff’s statement to Mr Rimmer and which is, in my view, admissible under s64 of the Evidence Act.

30 Other evidence of the Plaintiff as to the consequences on him of the accident was to the effect that, whereas his arm never restricted him physically or mentally beforehand he has carried, and become conscious of, a disability ever since.

31 He said he lost all stability in his life and could never have a family because he was flat out earning for himself. He married in 1991, separated in 1993 and later divorced. The cause he said was the pressure of what was going on in the courts and having to carry on appeals on his own, apparently having received advice he had no grounds. In that regard it may be noted that the Plaintiff seems to have had a number of lawyers who did not take the same view as the Plaintiff did concerning his prospects. Rather than take their advice he has preferred to proceed on his own. It may be, although I do not find it necessary to decide, that some have also been less than diligent in prosecution of the Plaintiff’s case.

32 In his first re-examination the Plaintiff gave further evidence bearing on the impact of the injury on him. It was to the following effect. Prior to the accident in consequence of his achievements despite his disability, he received, from childhood “pat(s) on the back”. Such things he thrived for and made him feel good about himself. “The more you get touched on the back, the more you succeed, and look, the pats on the back push you further into that area that you are excelling at.” When injured he went from one extreme to the other - from a situation where nothing could stand in his way to falling in the gutter.

33 Whereas previously he could demonstrate what he could do easily and, metaphorically receive a pat on the back, since the accident he has been unable to prove himself in the same way receiving in consequence not a pat but a push on the back. Evidence referred to below concerning the Plaintiff’s embarrassment in seeking employment is in similar vein.

Estoppel

34 That findings of the Workers’ Compensation Commission may found an estoppel binding in these proceedings is clearly established by a number of authorities. I need do no more than refer to Somodaj v Australian Iron and Steel (1962-3) 109 CLR 285; Tringali v Stewardson, Stubbs & Collett Ltd (1966) 66 SR (NSW) 335; and Egri v DRG Australia Ltd (1988) 19 NSWLR 600.

35 Acting Judge Egan stated the issues before him as:-

1. What was the nature of the injury received.

2. What effect has it on the Applicant’s earning capacity; and, in particular,

3. What were the probable earnings of the Applicant from rugby league but for the injury, and

4. What was the Applicable able to earn from rugby league.

36 In addressing these, his Honour said:-

“The Respondent called Dr Prakash to give oral evidence and as is not unusual, his views were quite opposed to those of Dr Millar, particularly in relation to the diagnosis of subluxation which Dr Millar had made. However, if it comes to the ultimate question of choosing between the two, I would accept the views of Dr Millar…It is to be remembered that throughout the history of this matter, the Applicant’s complaints have always been consistent… the complaints have at all times been consistent with the diagnosis of Dr Millar. I have had due regard to the early (sic) views of the other medical practitioners but accept Dr Millar.

In any event, it may be that the question as to the precise diagnosis is not a necessary one. The Applicant, as I say, has been consistent throughout and indeed, it would seem to me, that the correct view is that he is not fit for work involving repetitive bending and lifting and heavy lifting, particularly of a frequent nature and that those restrictions on his capacity arose from his injury… It appears to me that the substantial issues for determination are whether the Applicant’s disability, so far as his back and hip are concerned, results in an economic incapacity in relation to the open labour market… and secondly, if he has not suffered an incapacity in that category, has he suffered an incapacity and loss of earnings by reason of his inability to carry on his second source of employment and income, namely playing rugby league football…

I am satisfied that at the time of Dr Benanzio’s report he was fit for a wide range of duties which would have paid similar rates to those pre-injury and this has been demonstrated by work actually done in recent times.

…..

… it appears to me, looking at the whole of the evidence including many glowing tributes from other professional footballers, that the Applicant on the probabilities would have received the offer of a 1st grade contract. Mr Prenter said that in those days it would have been worth about $40,000 per year. The next step is to consider the possible extent and duration of such a contract… It would seem to me, bearing in mind the fact that he would have been undoubtedly the “target” for opposing teams, that the probabilities are that his career would not have gone beyond a stretch of about four seasons and after that he would have either retired or relegated through the ranks. However, assuming that he had received a contract with the Sydney side, it would seem that for the following four seasons he would have been able to earn substantial sums of money on the field and that those sums would be sufficient, at least, to justify an award under the Workers Compensation Act at the full rate applicable from time to time.

… The conclusion which I have, that he probably would have obtained a 1st grade contract over a period of about, probably, 4 years. That the Applicant might have gone on to a post-game career related to football such as a television commentator is pure speculation and not sustainable on the evidence.

37 In a decision I made at the beginning of the hearing I held:-

38 Later in the proceedings it was submitted on behalf of the Defendant that the sentence in the reasons for judgment of Acting Judge Egan “Mr Prenter said that in those days that would have been worth about $40,000 a year” amounted to a finding by which the parties were bound and which limited the area which could be the subject of relevant evidence. After considering, inter alia, the approach the Court of Appeal had taken when the Respondent appealed from Acting Judge Egan’s decision, and influenced by authority to which I referred, including Kesen v Luke Singer Pty Ltd (1989) 18 NSWLR 566 at 567 to the effect that Acting Judge Egan was obliged to make a finding as to what the Plaintiff’s earnings, but for his injury, would have been, I agreed with that contention. I concluded my reasons on that topic with the observation:-

39 Conformably with that view and with Acting Judge Egan’s conclusion that the possibility of the Plaintiff having a post-game career (and associated income) was not shown, I excluded evidence from a number of witnesses along the lines of that contained in the documents which became MFI 1-3. I did however, allow similar evidence from a Mr Markson, reserving until now the question of its admissibility in light of my ruling. Further consideration leads me to the view that my ruling requires me to reject Mr Markson’s evidence although it is also fair to say that that consideration has caused me to doubt the correctness of my ruling at least so far as the 4 year period referred to by Acting Judge Egan is concerned, inter alia, upon the ground that “a decision of fact or law against a party who succeeded will not found an estoppel because it cannot be fundamental to the decision” - Spencer Bower, Turner and Handley Res Judicata, 3rd Ed., para 205. However, it is not possible for me to reverse the ruling I made.

40 Other estoppels which seem to me to arise are:-

(i) that the Plaintiff suffered the subluxation of which Dr Millar spoke, this being a subluxation of the left sacro-iliac joint,

(ii) that at the time of Dr Benanzio’s report the Plaintiff was fit for a wide range of duties which would have paid similar rates to those pre-injury.

(iii) that the Plaintiff had been fit for such duties from September 1984 up to the date of Acting Judge Egan’s award, viz. 2 May 1996.

41 The evidence before me does not identify the date of Dr Benanzio’s report referred to by Acting Judge Egan in the passage I have quoted. From the number of reports which were tendered before me, it seems unlikely that it was not one of those I received but which - that of 28 October 1981 or that of 5 September 1989 - is a matter on which the evidence is silent.

42 Although the matter was not the subject of debate, given the nature of the Workers Compensation jurisdiction, it seems to me that the date of the award, viz. 2 May 1996 is, in sub-paragraph (iii) above, to be preferred to the date of the Plaintiff’s application to the Commission - a date which, from the file number, was some time in 1993 (though there was an amended application on 15 September 1995). The failure of Acting Judge Egan to make an award for any period beyond September 1984 carries the implication that the Plaintiff had not shown himself unfit “for a wide range of duties which would have paid similar rates to those pre-injury” not only at the time of Dr Benanzio’s report but up to the date of the award (or if my approach at the beginning of this paragraph be wrong, 1993 or 15 September 1995).

Injuries - Medical Evidence

43 My acceptance of the existence of an estoppel as to the injury the Plaintiff suffered in his fall probably makes it unnecessary that I deal in detail with some of the medical evidence which was called before me. However, against the possibility that the case goes elsewhere, it is probably desirable that I do so.

44 In a report of 6 January 1982, Dr Grasso confirmed seeing the Plaintiff on 12 December 1980 when the latter had complained of pain in the lower back, the cervical/dorsal region and in the right groin. He referred to prescribing physiotherapy and referring the Plaintiff to Dr Benanzio. Dr Grasso said in his report that his prognosis was good on account of the Plaintiff’s age.

45 Dr Benanzio, an orthopaedic surgeon, who first saw the Plaintiff on 15 June 1981, opined that the Plaintiff had suffered a spinal sprain or contusion in the fall, the injury being confined to the soft tissues. He expected slow improvement, which apparently had occurred prior to June 1981, to continue. He recorded that palpation was uncomfortable in the left cervical/dorsal and lumbar regions. Dr Benanzio also said that the Plaintiff had acknowledged that the complaint was not of great degree. The doctor also recorded that the Plaintiff’s chief concern was to obtain some reasonable sort of compensation for a career that otherwise was very promising.

46 Dr Steventon reported that the Plaintiff first attended his surgery on 6 February 1981. The doctor’s summary record of visits seems to show that the Plaintiff was there 13 times in February 1981, frequently during March and April, and had a number of visits then in most months to October 1981.

47 The Plaintiff returned on 27 March 1985 due to a flare up in symptoms after playing football. Dr Steventon recorded, inter alia, that there had been pain and tenderness on palpation from the head to C3 and over the “left posterior spine of the pelvis”, that the left sacro-iliac joint was “severely affected on springing exhibiting severe restriction of mobilisation. The right groin was swolen tender to touch and caused restriction in gait” (sic). It is not clear in what visit the Plaintiff exhibited these symptoms but I would infer it was the first. Dr Steventon’s diagnosis was “acute traumatic cervical myophascitis” and “acute lumbar and pelvic myophascitis with associated ligamentous scarring”.

48 Dr Steventon commented also on some 1989 radiographic indications of osteophitic lipping on the left joint of the pelvis and said that “in view of the large number of osseous abnormalities the prognosis must be given as guarded with the possibility of future degeneration and the need for periodic treatment to be continued for an indefinite period”.

49 Dr Pillemer, another orthopaedic surgeon, examined the Plaintiff on 8 December 1982. He had no radiographic evidence to go on apart from information from the Plaintiff that he believed that the x-rays were said to be normal. He recorded that the Plaintiff felt 80% better although tended to deteriorate in winter but still complained of fairly persistent pain in the low back to the left side of mid-line, intermittent stiffness in his neck and had to crack his neck and back very regularly to rid himself of pains. Dr Pillemer felt that the Plaintiff’s left leg was 1 cm shorter than the right. The doctor’s conclusion was that the Plaintiff had a mechanical problem with his low back at the lumbo-sacral level but, apart from recognising the possibility that the shorter leg might be adding to the stresses in that area, Dr Pillemer could not identify the cause of the problem. He regarded the Plaintiff as unfilt for heavy labouring work.

50 Reports from the Burwood Diagnostic Medical Centre and a Dr Thorpe of August and September 1989 recorded that there were early arthritic changes to the left sacro-iliac joint. Dr Thorpe recorded that there were indications of such changes to other joints also “as is usual with professional footballers” and that the Plaintiff was tender over the left sacro-iliac joint. Dr Thorpe said that the degenerative changes in the sacro-iliac joint were compatible with an old injury and were likely to progress with time. He said that the injury was significant and had prevented the Plaintiff from pursuing his career.

51 In May 1989 Dr Seaton diagnosed the Plaintiff as suffering from a left sided sacro-iliac strain with chronic rupture of the origin of the sacro-spinalis muscle on the left side. Dr Seaton recorded also that the Plaintiff had a painful stiff back and spasm in the erector trunci muscles of the left side. In 1991 Dr Seaton said that it was obvious the Plaintiff had torn the ligaments in the left sacro-iliac joint. The doctor assessed the Plaintiff’s future as “not bad” because sacro-iliac arthritis although painful was never completely disabling and very slow in progression. The Plaintiff was diagnosed as having lost about 10% of the efficient use of his lumbo-dorsal spine but able to carry out his security job with the Balmain Leagues Club without trouble. In evidence given previously, exhibit AR, Dr Seaton described the injury as subluxation of the sacro-iliac joint.

52 The principal evidence called by the Plaintiff as to the nature of the injury came, not unexpectedly, from Dr Millar. It consisted of a number of reports and transcripts of evidence Dr Millar had given previously. Although the transcript was described as of evidence given in the Workers Compensation Commission it is clear that there are extracts from 2 separate transcripts - it would seem one from the Commission and one from the trial before Newman J where Mr Burbidge QC appeared.

53 Dr Millar first saw the Plaintiff on 22 February 1989, the doctor thinks for treatment or opinion rather than for medico-legal purposes. It is unnecessary to set out the results of his examination and the history he has recorded. These largely coincide with those reported by other doctors. Dr Millar’s diagnosis was that the injury suffered by the Plaintiff was subluxation of the left sacro-iliac joint. He said that the treatment the Plaintiff underwent previously was inadequate and that in consequence the disability was likely to be permanent, albeit proper treatment would alleviate the Plaintiff’s symptoms to a considerable extent. Dr Millar explained that the injury involved ligamentous damage and the effects included the tilting of the iliac bone, a change in the position of the head of the femur with the consequence of apparent inequality in the lengths of the legs and the development of scoliosis in the spine in an attempt by the body to compensate. If persons persist with the problem over a period of time, or it is severe, it tends to extend along the back muscles and at times affect the neck. It may affect the groin area. Dr Millar said that his diagnosis was confirmed by the fact that he could mobilise the area and level “it” - a term I understand to refer to the iliac bone.

54 Dr Millar said that the problem would recur. It and its symptoms are typically intermittent. Some patients get better, in some the problem persists. The Plaintiff’s playing of football in the 1980s probably made his attacks of pain more frequent but the problem may have persisted anyway. In a report of 23 February 1999, Dr Millar records a history that the Plaintiff “has been working recently for long periods in a bar and this involved him standing, lifting and carrying and he found this made his backache considerably worse and it spread out to the left buttock.” Dr Millar advised that the Plaintiff “is unfit for heavy work and moderate work requiring frequent lifting, bending, carrying and prolonged periods of standing or walking”..

55 Dr Millar gave evidence of having had 30 or 40 years experience with sports medicine. He said that the condition he diagnosed was not one well known, particularly at the time it occurred. In that regard Dr Millar said that the first world meeting on sacro-iliac joints was as late as 1992. While what the Plaintiff had was a complaint common to sportsmen, it tended to be diagnosed as something else.

56 The principal evidence on the topic relied on by the Defendant was supplied by Dr Opie who was in fact the only doctor called before me. Reports from him became Exhibits 9 and 13. He first saw the Plaintiff in September 1984 and has seen him on a number of occasions up until 6 July 1999. At least from the time of first seeing the Plaintiff, his view has always been that there is no substance to the latter’s injury claim, that the Plaintiff is fit for work and has no continuing disability arising from the fall in 1980. He has however recorded at times that the Plaintiff was suffering from tenderness in the left sacro-iliac area and that there was audible cracking and discomfort or limitation of movement in the Plaintiff’s neck.

57 Dr Opie specifically disagreed with a number of Dr Millar’s remarks saying, inter alia, that laxity of the sacro-iliac joint was not compatible with the Plaintiff’s football career after the accident and not apparent when he stressed Mr Gibson’s joint on 9 August 1994.

58 Reports from a Dr Furber, who saw the Plaintiff on behalf of the Workers Compensation Insurer, record that he saw the Plaintiff in May, June, July and September 1981. Those record that the Plaintiff was seeing a chiropractor, that on one occasion the Plaintiff complained of pain, on another of tightness when he woke, that he might have suffered a low lumbar ligamentous strain but that otherwise there was nothing, and that there was no indication of anything, wrong.

59 Reports from Doctors Wearne and Marsden who saw the Plaintiff in October 1989 and April 1992 respectively also say that there was no injury other than one of a transient and soft tissue nature arising from the incident of December 1980. Dr Marsden’s report is to the effect that, at least as at July 1999, there was nothing wrong with the Plaintiff arising from the incident. A Dr Walsh who saw the Plaintiff in February and August 1982, March 1984 and October 1989 said that if the Plaintiff’s symptoms as apparent in February 1982 were genuine, the Plaintiff probably suffered a musculo-ligamentous strain, but that any effects of the injury had resolved by March 1984 and, it would seem, August 1982.

60 There was nothing in the demeanour of Dr Opie which assists me in the resolution of the question of what the nature of any injury suffered by the Plaintiff on 12 December was. However it seems to me that the preponderance of evidence favours the view advanced by Dr Millar. In the first place, it seems to me clear that the Plaintiff suffered an injury. His complaints are compelling. Secondly, there was the effect on the Plaintiff’s football to which I have referred and of which more mention is made below. I do not believe he would have given up playing to the extent he did, unless there was some good reason to do so. And both my impression of the Plaintiff and that of many of the doctors makes me think that actual pain is a more likely reason than pain just imagined. I am certainly persuaded that the Plaintiff was not simply malingering. Thirdly, Dr Millar’s explanation of the consequences of subluxation is consistent with a number of the symptoms observed by others and it provides an, and indeed the best available, explanation for their continuance or repetition, once malingering by the Plaintiff is rejected.

61 Thus, the finding of Egan J as to the nature of the injury suffered by the Plaintiff is one I would have come to irrespective of any estoppel. I accept also that the consequences of his injury are that the Plaintiff is, and has been since no later than September 1984, unfit for heavy work and moderate work requiring frequent lifting, bending, or carrying and for prolonged periods of standing or walking. In reaching that conclusion I am not unconscious of the fact that there have been periods since that date when the Plaintiff has been in employment involving some of these activities. However, I accept his evidence that when he did indulge in these activities his symptoms were exacerbated.

62 In the immediately preceding paragraph I have referred to September 1984 - the date when, according to Acting Judge Egan’s findings, the Plaintiff’s football career would have ended. However, it seems to me that the unfitness to which I have referred went as far back as to the time of the accident, albeit the Plaintiff’s activities which I consider in the next section of these Reasons, indicate that unfitness was not completely debilitating.

63 There was another aspect of medical evidence before me which was not before Acting Judge Egan. Two reports from a Dr Lucire, a psychiatrist, were tendered, together with a transcript of her evidence on a prior occasion. That transcript adds nothing of significance to the reports. Dr Lucire was not cross-examined in the trial before me. It is sufficient to quote from those reports. In a report of July 1992, Dr Lucire said:-

“Although Mr Gibson’s injuries were not totally disabling, they disabled him in two areas where it mattered most. He earned his living as a labourer and he was unable to do any heavy work. If he over-did it, he would end up in a great deal of pain.

The other area that was very important to Mr Gibson was football. He had a congenital amputation of his left arm and he was a very promising one armed player. As he says in his statement, had he played for first grade league, and it looked as though he was going to, he would have been a role model for all sorts of disabled people and could well have become something of a hero.

…….

Mr Gibson gives a consistent history of a man who has injured himself. His losses were considerable because he had so much of his ego and self bound up in his football. He was also a fitness fanatic and his body was very important to him. Such people react very badly to physical impairments.”

64 In a report of February 1998, Dr Lucire said:-

“Some years ago Kerry Gibson referred himself to me and I was to give evidence in the Supreme Court regarding his personal difficulties following his back injury and the loss of his football career.

…

In this case, it is difficult to separate the depression, grief and loss that Mr Gibson suffered as a result of the loss of his football career from the very real difficulties he has had keeping this case on the rails in the fact of inadequate legal services for it. It goes to his credit that he has got this far.

65 In this connection it is appropriate to refer to some further evidence. In an affidavit of 20 July 1992, a Mr Brian Mossop, who said that he had been a sports writer and columnist for many years, covering rugby league matches described the Plaintiff thus:-

“I found him to be a young man who went about life, and his sporting life, in exactly the same determined manner as his clubmates, although with one important difference - he was a young man with a sense of purpose and a belief in himself which separates the committed from the uncommitted. I don’t believe this has changed.

The sky was the limit in Mr Gibson’s mind. It was a healthy attitude, and he went about reaching for the rugby league heights by throwing himself into the game with gusto, always striving to move up to the first grade.

I was always impressed by Mr Gibson’s approach to life and trust that, after all the setbacks, he is able to maintain a bright and confident outlook.”

66 Along similar lines was the evidence contained in exhibit AM to the effect that, prior to the accident, the Plaintiff exhibited both ability in football and zest and enthusiasm for life but, after the accident, was frustrated by his back problem. Save and except for the statement by Mr Mossop to the effect that the Plaintiff’s approach to life has changed - in my view it has - I accept the evidence to which I have referred in the last few paragraphs.

Football

67 As has been indicated, prior to the accident the Plaintiff had had some success as a footballer. Both because a significant component of his claim for lost earning capacity arose in this context and because it was suggested his football activities after the accident were inconsistent with his claim of injury or, at least continuing injury, it is necessary to canvass this topic at some greater length.

68 The Plaintiff said that he was out of Rugby League for 2 or 3 seasons. He had seen a number of doctors who could do nothing for him. He forced himself to return to Rugby League. In 1983 he was graded with Western Suburbs but after playing 4 or 5 games his symptoms increased and he started to go out backwards. This was a pattern repeated each year. During summer his symptoms would subside to a certain extent but then soon after returning to football, the symptoms would again become debilitating.

69 In 1984 he played one game for Western Suburbs in a semi-final. In 1985 he was invited to go to Brisbane to play for the Manly side up there, being offered a $15,000 contract. However after both of 2 games his injury flared up worse than it ever had and to an extent that he returned straight away to Sydney for treatment by Dr Steventon. On this occasion, the Plaintiff had pain in the sacro-iliac region, up his back and into his neck, in his groin and knees and numbness in his legs.

70 In 1986 he went to France as player although after suffering a groin injury he became a coach receiving $10,000 for the season. In August 1987 he played with 2 sides in England, receiving accommodation, a car and 150 pounds a game. He returned to Australia in about March 1988. In 1988 he had a couple of games in one of the Sydney local A grade teams but that was the end of his football career.

71 The Plaintiff said that the reason he pursued football was that “you never give up”. He believed he could play first grade. By the time 2 years had expired after the accident his condition had improved - the symptoms in summer were less.

72 He acknowledged that at the start of every season he went through training sessions that went for hours, including sprints and exercises, he performed heavy tackles and played in trial matches. In 1985 he played against Wynum-Manly - all “hard and vigorous activity”.

73 There was other evidence bearing on the Plaintiff’s prospects of a successful career in first grade rugby league. However, in light of what I have said above concerning the findings of Acting Judge Egan, I need not pursue this topic further.

Off-Field Football Earnings

74 In light of what I have said above under the heading of “Estoppel”, this topic also is not one I need pursue. However, as Mr Markson was called and the topic the subject of submissions, I should say something.

75 The Plaintiff’s claim for lost earnings was supported by Mr Markson who is in the business of managing or acting as agent for persons thought to be of interest to the media or commercial organisations wishing to promote their products. In 1989 he was working as the promotions and publicity manager at 2WS. He started his own business in 1982 doing PR promotion work. Although there was cross examination directed to showing Mr Markson’s experience and ability to express the opinions he did was limited or inadequate, I am satisfied that he did have sufficient.

76 Mr Markson gave evidence that the public interest in a one armed rugby league player - I think implicitly playing first grade - would be phenomenal. He said that there would be - and I infer would have been commercial, promotional and the like opportunities for such a player in his first four years of playing first grade. (The 4 years limitation was that of the questioner). He said these opportunities would probably arise in the first four weeks.

77 Asked to give some indication of the extent of these opportunities, Mr Markson estimated that they would be:-

(a) At least one television endorsement worth in 1980 to 1984 $30,000-$50,000 per year.

(b) An opportunity for a column in a newspaper or magazine - running for 24-30 weeks at about $150-$200 per week.

(c) Personal appearances at shopping centres and sports stores - say 2 a month at about $500 per appearance.

(d) Opportunities to endorse sporting goods.

78 The only evidence Mr Markson gave as to the value of an endorsement for sporting goods was of a Mr Mario Fenech who in 1992 to 1994 earned $10,000 a year for a football accessory padding product.

79 For completeness, mention should be made also of some of the other evidence on this topic. There was a letter of 31 July 1992 apparently from Mr Markson’s company in which it was estimated that if Mr Provost - a name used by the Plaintiff in his younger days - had reached his potential, i.e. played first grade rugby, represented his State and/or played for Australia he would have been able to earn between $60,000 to $100,000 per annum in sponsorships, commercial endorsements, personal appearances and motivational talks.

80 There was evidence Mr Markson had given in earlier proceedings to similar effect of that referred to above. He said also that the novelty value of the Plaintiff could go on for 10 or 15 years. Cross-examination as to the earnings of persons Mr Markson then, or had previously, managed led to evidence of one person who earned at more or less the level indicated but that the earnings of others were appreciably less, and that none of the disabled athletes at the then recent Paralympics had acquired the notoriety which Mr Markson said was available to the Plaintiff. Mr Markson indicated his fee was 20% of the moneys earned by those he managed.

81 A statement and the transcript of evidence given by a Mr Prenter in the Workers’ Compensation Commission also became exhibits. It would seem that, in part, Acting Judge Egan relied on Mr Prenter’s evidence as to the earnings of players. However there are other aspects of his evidence to which reference should be made. Although it may be - he seems to have vacillated - that Mr Prenter had never seen the Plaintiff play, he took the view that the Plaintiff’s arm disability mean that the suggestion he could have played first grade league was “fantasy stuff”. He made the point that it is only high profile players who are of interest to the media and thus it is only an extremely limited number of players who can earn income form those sources and thus extremely unlikely that the Plaintiff would have earned any income from promotional work. However on the assumption that the Plaintiff did succeed in playing first grade, the publicity would have been enormous and the Plaintiff a very wealthy man.

82 The Defendant called no contrary evidence.

83 The conclusion I reach in respect of the above matters is that in large part I should accept Mr Markson’s evidence. Clearly the Plaintiff’s achievements prior to his injuries were, given the situation of his arm, remarkable and common experience lends credence to Mr Markson’s evidence as to the likelihood and extent of interest in a one-armed first grade rugby league player. It is also common experience that persons with a prominent profile in sport do obtain opportunities to exploit that profile commercially.

84 I am also disposed to accept Mr Markson’s evidence as to the earnings available if that profile was to be successfully exploited. However, because experience teaches that, in prospect, difficulties are often not foreseen and things look rosier, because Mr Markson was not able to point to someone with whom he had experience who had actually achieved earnings of the extent stated and because I am not conscious that any disabled athletes have achieved the prominence of which Mr Markson spoke, in any calculation of what the Plaintiff lost I would be disposed to discount Mr Markson’s figures substantially - certainly by 50% of his higher figures in the areas where these were given.

85 I am also inclined to think that the Plaintiff would need to play for more than the 4 weeks of which, at one time, Mr Markson spoke - probably at least most of one season if the earnings were to be in the tens of thousands of dollars - but once the conclusion was reached that the Plaintiff would, but for the accident, have played for at least most of one season, the probabilities are that his earnings would have been so high.

86 However, I need not come to a concluded view. For as I have indicated, Judge Egan’s findings and my earlier ruling as to their operation and consequences preclude me from formally finding that the Plaintiff would have earned money from football inspired or related off-field activities.

Pre-Injury, Non-Football Earnings and Earning Capacity

87 The Plaintiff left school at age 14. He wasn’t much good there except for sport. After that and prior to the accident he was always employed. He had worked as a telegram boy, an offsider to a courier, and as a labourer, digging, wheelbarrowing, jack-hammering and carting bricks. On a building site he had driven a truck. He had worked as a painter and as a storeman for Norman Ross where the work he had done was the lifting of furniture.

88 Evidence strongly supportive of that given by the Plaintiff concerning his pre-accident working ability was provided by an affidavit of a Mr McWilliams together with the transcript of evidence he gave before Newman J. Mr McWilliams was the manager of an organisation the Plaintiff worked for as a builder’s labourer. His evidence was that the Plaintiff carried out a full range of duties as a builders labourer, including loading wheelbarrows full of bricks and mortar and wheeling them to the witness’ satisfaction.

89 The only evidence as to the Plaintiff’s actual non-football earnings at the time of the accident was contained in a Group Certificate from the Defendant. This showed that during the period of the Plaintiff’s employment from 7 November 1980 to 12 February 1981, he earned gross income of $1,948.80 - an average of $139.20 per week over the 14 weeks of this period. There was no evidence whether this rate of remuneration was affected by the Plaintiff being off work. Certainly as a casual employee, his earnings may well have been affected to some extent by the holiday season. Evidence as to the award rates for “General Labourers Not Elsewhere Classified” and Storemen - classifications about which I say more below - show weekly figures as from 14 July 1980 of $152.10 and $165.90 respectively.

Actual Earnings

90 Evidence in the case disclosed that the Plaintiff received, at least, the following earnings in the periods indicated.

Period	Employer	Gross	Net	Exhibit	Comment
1979/80	Ruby League earnings	1,500	G
1980/81	Rugby league earnings	1,500	G
Period	Employer	Gross	Net	Exhibit	Comment
7/11/80-12/2/81	COB Supply Company	1,948.80	1,595	AG
1982/83	Rugby League earnings	300	G
6/7/82 21/6/83	Social Sec payments	3,269.40	3,269.40	AF
5.7.83 19.6.84	Social Sec payments	3,778.10	3,778.10	AF
1983/84	Rugby league earnings	300	G
1/7/83 30/6/84	Western Suburbs Rugby League Club	340	239	AG
July 84 June 85	Social Security payment	4,205	4,205	AF
July 85 June 86	Croydon Hotel	2,500 (est)	G, F	Cash in hand - no records
July 85 June 86	Social Sec payment	4,865	4,865	AF
1986-1987	Croydon Hotel	1,200 (est)	G, F	Cash in hand - no records
1986-1987	Rugby League earnings	400 10,000	G	In Australia In France
July 87 Aug 87	Croydon Hotel	200 (est)	G, F	Cash in hand
1987-1988	Rugby League earnings	1,000	G	In England
July 88 June 89	Balmain Leagues Club	8-10,000 (est)	G, F	No records
Nov 88 April 89	Pine Inn Hotel	1,787.73	1,740	AG, G, F	Night work
July 89 June 90	Balmain Leagues Club	8,000-10,000 (est)	G, F	No records
July 89 June 90	Croydon Hotel	2,000 (est)	G, F
July 90 June 91	Balmain Leagues Club	297.88 8-10,000	154.40	AG, E G F	Group certificate No records
July 90 June 91	Croydon Hotel	4,000 (est)	G, F	Cash in hand
July 91 June 92	Balmain Leagues Club	11,682.98	G, F
Period	Employer	Gross	Net	Exhibit	Comment
Mar 92 June 92	Croydon Hotel	3,213.18	2,782	E, F	Part time bar manager
July 92 June 93	Balmain Leagues Club	10,481.25	G, F
July 92 Nov 92	Croydon Hotel	697.58	F
July 93 June 94	Balmain Leagues Club	8,571.22	G, F
Aug 93 June 94	Burwood Hotel	18,725.89	G, F
July 94 June 95	Balmain Leagues Club	A2, F
July 94 June 95	Burwood Hotel	F
Mar 95 June 95	Western Suburbs Soccer Club	4,147	3,246.80	E	c.f. Exhibit F
July 95 June 96	West Suburbs Soccer Sports & Community Club	22,577	18,665	E
July 95 June 96	Other	628	E
July 96 -9April97	Western Suburbs Soccer Club	16,369	13,172	E
July 96 June 97	Other	453	E
July 97 June 98	Newstart Allowance	8,359	8,359	E
July 98 June 99	Concord Bowling Club Ltd	483.63	381.80	AJ
July 98 June 99	Five Dock Hotel	1,602	1,449.47	E
July 98 June 99	Maldoc Pty Ltd	4,676	3,671.83	E
7-31 Dec 98	Toongabbie Hotel	2,244	1,876.19	A2

NOTES

1. Figures are included in the net column only when there is documentary evidence to support that payment of tax.

3. The net and “other” figures have in part been derived arithmetically from the documents. Due to inadequate or incomplete records, some of these figures may be approximate.

91 The Plaintiff gave further oral evidence as to his earnings and employment. So far as seems to me to add in significant measure to the above, it was to the following effect.

92 He received workers compensation payments to some date in October 1981. On 2 May 1996 he received an award , details of which may be found in Exhibit A2.

93 His first employment after the accident was in 1985 as a casual doorman at the Croydon Hotel for 2 nights a week for 3 or 4 hours a night at $20 per hour. At some stage he seems to have graduated to being a bar manager at the hotel.

94 In 1986 he went to France, played and, after he was injured, coached. In February or March 1987 he returned to Sydney. He resumed employment at the Croydon Hotel working 8-10 hours a week as a freelance trouble shooter. He would earn $60-80 a shift and seems to have been provided with part-time accommodation to the value of $60-70 a week.

95 In August 1987 he went to England as a player, returning to Sydney in March 1988. The trip seems to have been marred by problems and not particularly remunerative.

96 At the Balmain Leagues Club he was in charge on special occasions of up to 15 staff on Friday and Saturday nights - less on other occasions. He could have done more than 2 or 3 nights work a week if it had been available. At one stage the Plaintiff’s work at the Club went down to 1 night a week.

97 The Plaintiff said that the estimated income disclosed in Ex G for the periods from 1988-89 to 1991-92 was pretty close to the mark as reflecting the 2 nights a week he worked.

98 When he worked at the Western Suburbs Soccer Club, i.e. from about February 1995, he was working 5 hour shifts on 3 to 4 nights a week. He left the Western Suburbs Soccer Club in the beginning of 1997 because of a dispute with management. He was not then too ill to work.

99 The only places at which he has looked for work since working at the Western Suburbs Soccer Club have been the Toongabbie and Five Dock hotels where he was given work by a friend or friends. He worked at those places from November 1998 to February or April 1999 - the Plaintiff gave both those times - about 3 to 4 days a week working 40 and on a couple of occasions 48 hours. Because the hours were as many as they were, he suffered pain and the problem worsened. The Plaintiff said this extension of hours had the result that he becomes worse than when he was when before Judge Egan J. I have referred above to the Plaintiff’s complaints to Dr Millar concerning this period and Dr Millar’s response. The Plaintiff also seems to have worked at these hotels to a limited extent between leaving the Western Suburbs Soccer Club and November 1998 - see T119 et seq., 146-7.

100 The Plaintiff said that during the period from November 1998 to February 1999 he could then have been earning around $500 per week. However a Group Certificate which became part of Exhibit A2, tendered at T308 (and not consecutively marked) shows that the Plaintiff’s earnings over the 3½ week period between 7 and 31 December averaged $641 per week gross. Given the time of the year, I would infer that these may well have included a deal of overtime.

101 Asked to explain the large reduction in income apparent on his tax returns for 1996 to 1999, the Plaintiff said that the increase in hours in a confined period was a cause. Clearly, that was an inadequate answer but the matter was not pursued. At the time of trial and since one week after the state election in 1999, which occurred on 27 March, the Plaintiff was on sickness benefit. He said that the sickness benefit was provided because of a mental disorder although the nature of that was not disclosed or pursued. There was nothing in the Plaintiff’s demeanour or evidence to incline me in the slightest degree to the view that he suffered from any significant mental condition. It may be that he has adopted a somewhat unusual and perhaps obsessive approach to the litigation and some might take the view that he displayed some unusual ideas in the course of a discussion which occurred when the Court was closed. For good reason the latter topic was not pursued but even if the matters referred to in the last sentence are taken into account, there is nothing in the suggestion of mental illness which has any significant impact on the case, other than not to help the Plaintiff’s credibility.

102 The Plaintiff’s work since 1985 has been as a doorman, in security work at clubs and behind a bar. Over the period since about 1994 - the limitation was the questioner’s - he has generally been supervising. When working as a bar manager he was working part time but sometimes 5 days a week. However this amount of work caused pain.

103 He said that he cannot stand behind a bar for a full shift five days a week because his symptoms worsen, inter alia because of the tilted attitude of his neck when serving drinks. He has tried it but could not work 4 hour shifts for 5 days a week but possibly could work for 3 days for 5 hour shifts. Elsewhere, the Plaintiff had said that he could not do bar work for more than three 4 hour shifts a week.

104 The Plaintiff would not agree that the extent of football he did play after the accident demonstrated that he could work 40 hours behind a bar. He said that when he realised his injury, he put all of his efforts into Rugby League. Having regard to the depth of the Plaintiff’s desire to play Rugby League and what I would infer was his concern to be fit for it, I accept the Plaintiff’s evidence referred to in this paragraph.

105 Three favourable employment references recommending the Plaintiff were tendered. One was from The Pine Inn and recorded that the Plaintiff had worked there from time to time from 1987 to 1993. One, dated 18 April 1993, was from the Balmain Leagues Club Ltd. It recorded that the Plaintiff had been employed there since 1988 and was still there and that his duties as Senior security Coordinator for the Club included the supervision of up to 15 security personnel. A third was from the assistant manager of the Balmain District Rugby League Football Club Limited.

106 Because much of the employment referred to in the above table was part time, there were periods when the Plaintiff in any week was working for more than one employer. Indeed there seem to have been times when he worked for two employers on the one day - the Pine Inn or the Croydon Hotel and then the Balmain Leagues Club.

107 He never went back to a job as storeman because he could not lift and thought that he was better suited to other jobs such as working security in clubs. He said that he is now at an age where it has become unsafe to be a bouncer. Having regard to the fact that he was born not later than 1958, I have no difficulty in accepting this proposition.

108 Over the years but particularly more recently, the Plaintiff has made only limited efforts to obtain employment. He said that he had rung only one hotel where he had not worked before. When he fell out of work, he might not try again for a month or two. In this connection, the Plaintiff said that he suffered from embarrassment in relation to his left arm in connection with employment. Having regard to the Plaintiff’s evidence at other times to the effect that he did not regard the arm as a disability, this evidence was a little surprising. The Plaintiff’s explanation or reconciliation of this evidence was not as clear as it might have been but, piecing together all that he said, I am satisfied that it was to the following effect.

109 Potential employers, whether rung by the Plaintiff or by staff in what was the Commonwealth Employment Service, would judge the Plaintiff’s employability at face value on what they heard. Told that the Plaintiff had only one arm, they would conclude his working ability was restricted and they would not be interested, a fortiori if the employers were told that the Plaintiff had also suffered a back injury. It was the refusal in these circumstances, including when it occurred time after time with the social security people who often rang on his behalf, that he found embarrassing. In his eyes, the circumstances meant he was a failure.

110 The Plaintiff said that from the late 1970s until 1991 he did not file any tax return and acknowledged that income he received in cash was not included in his tax returns when they were filed and in that respect he acted dishonestly. He also acknowledged that at times he was receiving unemployment benefits when he was earning. He said that this occurred during the period of, roughly, 1985 to 1992

111 The dishonesty of the Plaintiff referred to in the immediately preceding paragraph was relied on by counsel for the Defendant in support of the submission that I should not or could not place reliance on what the Plaintiff said. Obviously the evidence must cause one to scrutinise what the Plaintiff says in his own favour with considerably more scepticism than might otherwise be the case but this would not be the first case where a person has adopted an approach to the taxation or social security authorities different from that displayed otherwise. There are factors which operate vis-a-vis those authorities which are or may not be present in other circumstances. As the Plaintiff said, one factor is that it takes 6 weeks to get back on social security - a fact which clearly provides a temptation not to go off social security payments merely because there is some work. Another also adverted to by the Plaintiff is that when one is struggling financially, and receives $80 for work done, taking $20 out to pay the taxation authorities in not particularly attractive.

112 There were also some other matters during the Plaintiff’s evidence which were also cause for concern. Examples are to be found in the first 3 pages of cross-examination but there are others. Despite all of these matters, I am satisfied that in respect of the important issues in the case, the Plaintiff was doing his best to tell the truth as he saw it before me. Except where I have expressly indicated the contrary, I accept the Plaintiff’s evidence as I have recounted it.

Loss of Earning Capacity - Non football

113 The Plaintiff was born on 6 June 1956 or 1958. The former date appears in the Plaintiff’s claim in the Workers Compensation proceedings and the latter date appears in the Part 33 Particulars and in the Plaintiff’s handwritten statement which forms part of Mr Rimmer’s report. Both dates appear in or are to be inferred from one or other of the doctors’ reports. There was no direct evidence from the Plaintiff on the topic. However it seems very likely that the statement in the handwritten document will be correct so 6 June 1958 is the one I will adopt.

114 As has been said, Acting Judge Egan’s decision on 2 May 1996 carries the implication that, except for 4 seasons’ football, the Plaintiff had suffered no loss of earning capacity productive of a loss of earnings prior to that time.

115 The evidence of the Plaintiff’s actual earnings for the years to 30 June 1994 ($27,297), 1995 ($26,633), and 1996 ($23,205) argues in the same direction. The income disclosed for the years ending 30 June 1989, 1990 and 1991 is also not far below that to be deduced from some of the information in exhibit G.

116 His income from the Western Suburbs Soccer Club from July 1996 to 9 April 1997 of about $409 per week (average) is close to the rate ($446 average) he earned from that source in the preceding year. However, the figures disclosed for subsequent periods have obviously been significantly less. Do they reflect a reduction in capacity or merely less use of it?

117 I have no doubt that the disabilities and incapacities of which Dr Millar spoke have rendered the Plaintiff unsuited for labouring work and for much and probably all jobs as a storeman and packer. Subject to the evidence as to alternate occupations, this conclusion leads to the view that, as counsel for the Defendant submitted should occur, the Plaintiff is entitled on account of a loss of, or reduction in, earning capacity, to an award assessed at least by way of a “cushion”.

118 There is no direct evidence that he is unfit to act in a capacity of supervising doormen and other security personnel. However, I would infer that there would be few, if any, such jobs where the supervisor was not expected to be able to physically intervene or confront troublemakers if the need arose. As I have indicated, I regard the Plaintiff as past that. His school record, past history and one arm argue persuasively against an occupation such as a console operator. Indeed such an occupation was not suggested.

119 I am also disposed to accept the Plaintiff’s evidence to the effect that he cannot work as a barman except for a limited number of hours per week. That evidence, I appreciate is largely uncorroborated, although it does derive some support from what Dr Millar said and from the fact that the Plaintiff does not seem over the years since he recommenced work in 1985 to have ever worked on a full time basis except for a few weeks in late 1998/early 1999. And, even in relation to that period, his earnings are not unlikely to have been affected to some degree by the times at which he worked. Thus a pay slip which is part of exhibit A2 shows about a third of the hours to have been at a Sunday rate.

120 Certainty is impossible but it seems to me that the best estimate of the Plaintiff’s working capacity as a barman is that provided by him - 3 by 5 hour shifts a week. In terms of hours, his lost earning capacity should be assessed on the basis of the difference between this and 38 hours per week - a figure referred to in a number of the award summaries in evidence. Some of these hours are likely to have been at penalty rates.

121 My own view is that the incapacity to which I have referred existed prior to the date of Acting Judge Egan’s award, albeit the employment he had at that time meant that the incapacity was not productive of financial loss. However, having regard to the continuation of the Plaintiff’s employment with Western Suburbs Soccer Club until 9 April 1997, the monetary value of that incapacity can and should be calculated from that date.

122 Lest it be thought I have forgotten them, I should mention a number of other matters. Firstly, at least some of the work the Plaintiff has obtained has been through the help of friends. And people’s lives change. There are risks in assuming that friends’ help will be as available in the future. What the Plaintiff has earned is not necessarily an indication of what is available to him on the open labour market. The evidence suggests that, even as a barman, the Plaintiff seems to have exercised some degree of supervision of others. However, there is nothing to suggest that that activity was more than ancillary to acting as a barman himself. Next, although prior to the accident, the Plaintiff had not been a barman, that was a field at all times open to him and the wages paid seem sufficiently close to those of a storeman or labourer to use them in any calculations. Furthermore, the fact that the Plaintiff has only one complete arm must be some disadvantage in acting as a barman (and many other jobs). He does not have 2 hands in which to hold glasses or bottles. Certainly, that will be the perception of at least some potential employers. Thus in my view the Plaintiff will have more difficulty than persons without that disability in obtaining employment. His inability to work more than restricted hours is also calculated to hamper him in finding permanent work.

123 These last 2 factors argue for assessing any lost capacity on a higher basis than merely by reference to 23 hours per week. However, there are possibilities that the Plaintiff may obtain work better suited to his condition, e.g. similar to that he had with the Balmain Leagues Club, and it seems to me that it will not be unfair to the parties, particularly the Defendant who does not bear the onus, if I notionally set off the possibilities that the Plaintiff will do better or worse than the basis on which I am disposed to calculate his loss.

124 The evidence that the Plaintiff tendered on the topic of the income he might, but for his accident, have received as a labourer or storeman and packer suffers from a number of deficiencies. Inter alia, it is not all easily reconciled.

125 Most of this evidence was contained in exhibit G. The last page sets out award rates for “Storemen and Packers, General - Adult Storeman/Forklift Driver/Level 3”. I would interpret the document as listing in the second column the award rates for simple storemen, i.e. those who were not also forklift drivers. This is the category which seems to have applied to the Plaintiff at the time of his injury. However, the award for the period following 1 August 1980 is recorded as $173.90, appreciably more than the $139.20 which the Plaintiff seems to have been earning at the time of his accident. I have adverted to some possible reasons for his pay being low. To these might be added the chance that, as a casual employee, the Plaintiff might not have been doing a full week’s work albeit earning, for the hours he did work, at a higher rate. It might also be noted that the storeman rates for 1994 and 1995 would be productive of a significantly lower income that the Plaintiff in fact earned at that time.

126 Most of the rates for 1994 and 1995 are said to be for a “Level 2”. There was no evidence what “level 2” signifies, although presumably somewhere in the mass of awards governing pay rates there is an explanation of the term. I have not regarded it as my function to find out.

127 The second last page of exhibit G lists figures for general labourers under the Fruit Packing Houses Employees Award. A comparison of this page with the page dealing with storemen shows that the rates of pay for labourers are substantially below those of the rates for storeman.

128 The fifth and sixth last pages of the document consist of a “Schedule of casual rates of pay from 1987” and a covering letter from the manager of the Flemington Distribution Centre of Coles. Other evidence shows that at some time there was a business connection between Coles and the Defendant sufficiently close in my view for the figures supplied by Coles to be regarded as a reasonably reliable indication of what the Plaintiff could have earned had he stayed in the employ of the Defendant or some similar organisation. The figures in that schedule work out very substantially in excess of those listed as the award for storemen.

129 Page 1 of exhibit G, insofar as it was admitted, purported to list annual earnings “based on Award Wages (Coles pay under Storeman and Packers Award) for the financial years 1981/82 to 1987/88 and those of a Mr Peter Rosello for the years 1988/89 to 1993/94. These figures for Mr Rosello also appear on the third last page of exhibit G and, despite what is recorded on page 47 of the transcript, were admitted. (The reference “concerns” should read “do not concern” - see line 1 on that page.)

130 Although there was some vacillation on the part of the Defendant concerning Mr Rosello, the tenor of counsel’s approach was to accept that Mr Rosello was a comparable employee for the period to which I have referred - see T39, 45-48, 160. At some stage prior to November 1999 Mr Rosello, according to exhibit AD became a forklift driver in addition to being a storeman. I am satisfied by evidence from a Mr Alvaro in this case that forklift driving was and is not a viable occupation for the Plaintiff with the disability of his left arm. Thus I do not regard Mr Rosello’s earnings at any time after 1993/94 as of assistance to the Plaintiff.

131 It is not necessary that I set out here all of the figures from exhibit G but is may be convenient for reference purposes to note that the latest figures in the various documents to which I have referred were:-

General Labourer Not Elsewhere Classified were, as from 16 September 1994 - $306.30 per week

Adult Storeman, Level 2, as from 18 May 1995 - $395.70 per week.

Coles, as from 11 April 1993 (day rate) - $15.74 per hour (On the basis of the relativity of casual pay to the award rates referred to in respect of the Labourers and Storemen and Packers, this equates to about $480.10 per week. As I understand the formula it is:-

Weekly rate x 1.15 x 13/12 = $15.74).

Mr Rosello, for 1993/94 - $27,999.

132 Exhibit AN did not extend beyond 1991. Insofar as it purports to record the award rates for Storemen and Packers, it duplicates part of exhibit G. It also purports to set out the award rates for Labourers, Groups 1, 2, 3, and 4 under the Building and Construction Industry Labourers’ On Site Award. The Plaintiff would seem to come within Group 3 as a bricklayer’s or plasterer’s labourer. The figure for such a labourer as from 19 August 1991 was 10.37 per hour or $394.06 per week.

133 There was also exhibit J. This was admitted without objection and was a letter from the Human Resources manager of Coles Myer Logistics Pty Ltd. After referring to the file number of these proceedings, and recording that the subject was the “Flemington Pay Rates 1995 - Current” the document then set these out for 4 grades of employees. The pay rates for grades 1 and 2 were equal and lower than for grades 3 and 4. There is nothing to show into which of these grades the Plaintiff may have fallen. Indeed there is no evidence specifically directed to showing whether the rates had any relevance so far as the Plaintiff is concerned. However, the absence of objection suggests that the document is relevant and the evidence I referred to when considering the fifth and sixth last pages of exhibit G argues for this document also providing a reasonably reliable indication of what the Plaintiff could have earned in the employ of the Defendant or some similar organisation.

134 The rates for Grade 1 employees were stated to be:-

135 Figures in exhibit G which may also be of assistance in calculating the Plaintiff’s loss, are contained in the fifth last, second last, and last pages and are as follows:-

Coles’ casual rates of pay

General labourer

Storeman

136 Percentage increases revealed by these figures are:-

137 Also bearing on the topic are 2 pay slips from the Western Suburbs Soccer Club for the period 26 April 1995 to 2 May 1996 and from Maldoc Pty Ltd for the period ending 6 December 1998 contained in Exhibit A2. To the extent to which these documents provide a guide they record the following:-

Western Suburbs Soccer Club

Maldoc

138 The second of these documents records that most of the Plaintiff’s hours were paid at the “Normal B Rate”. There was no lower rate disclosed.

139 The positions of storemen, labourers and barmen are all unskilled. All three occupations were, but for the Plaintiff’s injuries, open to him and they do provide some sort of guide which is, in my view, sufficient for assessment to be made of the Plaintiff’s loss both past and future. Of course the Plaintiff, on whom the onus of proof lies, must suffer to the extent to which there is any deficiency in the information.

140 The only other general matter in this area to which I need refer is that both general knowledge and such evidence as there is as to pay rates over the years indicate that they have a tendency to increase. Thus, to the extent to which the rates which I have referred operated at particular dates, adjustment is needed for other times. Although precision is impossible and the figures in exhibit G relate to labourers and storemen, they do provide some indication of the extent of changes in this regard and a rough basis for estimating the extent to which wages may have changed. However, it must also be borne in mind that wages in recent years have tended to increase at a markedly lower rate than they did some 8 to 10 years and more years ago.

141 There are a few further matters which should be mentioned. For some time at and for about 18 months after the Plaintiff was working at the Western Suburbs Soccer Club, he suffered a diminution in his health, including lethargy, cramping pains in his stomach and bouts of blurred vision. He did not claim that these affected his capacity to work. He also spent portion of the time pursuing matters of interest to him not relating to his capacity for work or employment.

142 Although the Plaintiff’s wages at the time of the accident were at the low end of the spectrum of pay rates covered in the above, there were factors then operating which would not apply to a long term livelihood. The Plaintiff had just returned to Sydney and his aim was to play football. On the not unreasonable assumption that, long term, the Plaintiff would have taken a position within his range of skills which paid more rather than less, it seems to me appropriate to assess his loss of earning capacity on the basis of the figures in exhibit J. Though they apply to persons in a different field, I would also use these for assessing the income he can still earn as a barman. They are reasonably close to a barman’s pay rates so far as one can deduce the latter from the 2 pay slips to which I have referred and made guesses as to the likely mix of ordinary and penalty rates. (Using the relativity of $15.74 and $480.10 referred to above, $576.37 per week equates to $18.90 per hour.) And to the extent that the use of the exhibit J figures in this regard may be adverse to the Plaintiff, he carries the onus and I do not have better figures as to his continued capacity to earn on a week by week basis. My choice also makes a little allowance for the possibility that the hours he can work as a barman may slightly exceed 15. As anyone experienced in this field of calculating lost earning capacity knows, the figures ultimately used in the calculation imply a precision which is impossible.

143 I should acknowledge that the approach I have adopted of valuing the Plaintiff’s incapacity and calculating his past loss on that basis does not take account directly of the fact that for a short time his income exceeded the figures used by me, nor of an 18 month period when he was pursuing non-income related activities. Neither does it take account directly of other periods when his reduction of income has been greater than I have allowed. Nevertheless in the circumstances of the case it seems to me that the approach I have adopted is the correct one and, over the full period, does not over compensate.

Past Economic Loss

144 For the 4 years to 30 September 1984, this should be calculated on the basis of a gross income loss of $40,000 per season. The figure of $40,000 falls within the finding of Acting Judge Egan’s description of “about $40,000”, and the Defendant conceded this amount. The tax which would have been payable will need to be deducted.

145 In accordance with what I have said above, there should be added to this amount a sum representing lost earnings from 10 April 1997 to date (although some other date in the near future - perhaps 30 March - could conveniently be taken as the dividing line between past and future). Used in this calculation should be the rates of pay from exhibit J quoted above, so far as they are applicable. To take account of wages increases since 15 September 1998, the rates should be taken to have increased by 3% on the 15 September 1999 and 2000. (I take judicial notice of the fact that increases in wages have occurred and that they are have generally been not less than 3%.) To take account of my finding that the Plaintiff can earn for 15 hours a week, those rates should however be reduced to 23/38 of the figures in, and derived from, exhibit J. Again, it will be necessary to make allowance for, and deduct, the tax which would have been payable on the figures so calculated.

146 A figure for superannuation will need to be added, since it is now compulsory. My impression is that the 7% mentioned in the Maldoc pay slip is the appropriate amount but against the possibility that that impression of the law in that regard is wrong, I will provide the parties with an opportunity to correct it.

Future Economic Loss

147 23/38 of the final net weekly income calculated in accordance with the preceding section of these Reasons should be taken as the base figure for the future. On the basis of my finding that the Plaintiff was born on 6 June 1958, the calculation should take in the period to 5 June 2020 when the Plaintiff will be about to turn 62. There was no evidence from the Plaintiff as to how long he intended to work and my adoption of 62 is because it is the approximate mean of ages 60 and 65 and made in recognition of the fact that, as an unskilled worker, he would not have been likely to accumulate significant wealth - often an encouragement to early retirement.

148 Again allowance for superannuation at the compulsory rate should be made as should the usual discounts for a lump sum payment now and of 15% for the vicissitudes of life.

General Damages

149 The Defendant submitted that the amount which should be awarded to the Plaintiff under this heading, if liability was found, should be towards the bottom of the range of $50-100,000. In my view it should be much higher. Although the Plaintiff’s physical injuries were, on the scale of those this Court has sometimes to consider, very small, they have had a profound effect on his life. Quite apart from the financial side, playing first grade rugby league would, for someone in the Plaintiff’s situation, have been greatly satisfying. I am not satisfied that I should attribute his separation, divorce and many of the difficulties and stresses arising from the litigation to the accident but his phocomelia and the store he placed on the success he had achieved and hoped to achieve rendered him vulnerable and made the loss he suffered much greater than in the case of someone without those attributes. Devastating might be too strong a word to describe the Plaintiff’s loss, but if so, it is to overstate the situation only slightly. I am satisfied that the personality and attitudinal changes to which I have referred are attributable to the accident and merit substantial damages. I assess general damages in the sum of $175,000, two-thirds of which I would assess in respect of loss to date.

Past Out of Pocket Expenses

150 These were claimed in the Part 33 Particulars and undoubtedly there will have been some. The Defence said that a list of payments made by the Defendant under the Workers’ Compensation Act would be provided at the hearing and would claim the same as a pro tanto defence but no such list was produced. Although there was evidence of the award of weekly payments made by Acting Judge Egan, there must have been additional payments. These omissions argue for affording the parties a limited further opportunity of providing this evidence.

Future Out of Pocket Expenses

151 The Plaintiff’s injury was to a joint and it is notorious that joint injuries commonly lead to arthritis. Dr Millar said that he had managed to place the components of the injured joint back in place. It seems not unlikely that on one or other of these accounts some medical expenses will be incurred in the future. Although there was no evidence specifically directed to this topic of damages, it seems to me that something should be allowed. I assess the figure at $750.

Fox v Woods

152 There was no attempt on the part of either party to address this head of claim - see Fox v Wood (1981) 148 CLR 438. It is probable that the Plaintiff has never heard of it. The fact of the Worker’s Compensation award and payments make it virtually certain that the Plaintiff is entitled to something under this head. My inclination is that it is preferable to leave it to the parties to work it out rather than attempt to do so myself in the absence of help from either side.

Interest

153 At one stage counsel for the Defendant sought to assert that the Plaintiff had been guilty of unreasonable delay in the prosecution of his claim and that this should be reflected in a reduction in the interest which would be otherwise allowed. However that submission was ultimately, and sensibly, abandoned. No doubt the Defendant or its insurer will have benefited greatly from the compound interest or other income that has been earned on the award to which the Plaintiff is entitled.

154 Interest in accordance with the usual practice interest should be included in the damages awarded to the Plaintiff.

Other Matters

155 On publishing these Reasons I propose to stand the matter over for a short period for mention to enable the parties to consider them, make the calculations I have indicated should be made and address the one or two outstanding matters of evidence. Hopefully all can be agreed but if not, on that mention date I can be apprised of the extent of any problems and then determine the course to be followed. I would add merely this. The Plaintiff is going to receive a substantial award. The matters outstanding are not difficult for lawyers and experts in the field but are matters about which he probably knows nothing. To facilitate the tasks, largely mechanical but which require a degree of expert knowledge, I would urge him to engage a lawyer experienced in the field for the balance of the case.

Last Modified: 04/02/2001

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Citations

Gibson v COB Supply Company Pty Ltd [2001] NSWSC 168

Cases Citing This Decision

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Cases Cited

3

Statutory Material Cited

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Somodaj v Australian Iron and Steel Ltd [1963] HCA 50

Farrell v Metromix Pty Ltd [2001] NSWCA 166

CITATION:	GIBSON v COB SUPPLY COMPANY PTY LTD [2001] NSWSC 168 revised - 23/03/2001
CURRENT JURISDICTION:	Supreme Court
FILE NUMBER(S):	SC 17534/81
HEARING DATE(S):	15 to 19 November 1999 28 February 2000
JUDGMENT DATE:	20 March 2001
PARTIES :	Plaintiff: Kerry John GIBSON Defendant: COB Supply Company Pty Ltd
JUDGMENT OF:	Hulme J at 1

COUNSEL :	Plaintiff: In person Defendant: Mr HG Shore
SOLICITORS:	Plaintiff: In person Defendant: Sparke Helmore
DECISION:	Orders deferred