Green v WA Access Pty Ltd - [2005] WADC 64

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: GREEN -v- WA ACCESS PTY LTD [2005] WADC 64

CORAM: FRENCH DCJ

HEARD: 29, 30 NOVEMBER & 1, 2 DECEMBER 2004

DELIVERED : 8 APRIL 2005

FILE NO/S: CIV 5062 of 1998

BETWEEN: STEVEN GREEN
Plaintiff
AND
WA ACCESS PTY LTD
Defendant

Catchwords:

Negligence - Duty of care of hirer of equipment - Duty to provide safe equipment - Duty to maintain equipment - Whether inspection or maintenance would have revealed defect - Duty to provide guard around operating mechanism

Legislation:

Nil

Result:

Negligence not established

Claim dismissed

Representation:

Counsel:

Plaintiff: Mr S Melville
Defendant: Mr A P Hershowitz

Solicitors:

Plaintiff: Chapmans
Defendant: Solomon Bros

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

Fox v Wood (1981) 148 CLR 438
Schellenburg v Tunnel Holdings Pty Ltd (1999) 200 CLR 121
Tame v State of New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317

Case(s) also cited:

Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301
Bowen v Tutte (1990) Aust Torts Reports 81-043
Halvorsen Boats Pty Ltd v Robinson (1993) 31 NSWLR 1
Hamilton v Nu Roof (WA) Pty Ltd (1956) 96 CLR 18
Jones v Dunkel (1959) 101 CLR 298
Malec v JC Hutton Pty Ltd (1990) 169 CLR 638
March v E & M H Stramare Pty Ltd (1991) 171 CLR 506
McLean v Tedman (1984) 155 CLR 306
Nada v Knigh (1990) Aust Torts Reports 81-032
Nagle v Rottnest Island Authority (1933) 177 CLR 423
Purkess v Crittenden (1965) 114 CLR 164
Thomas v O'Shea (1989) Aust Torts Reports 80-251
Wade v Allsopp (1976) 50 ALJR 643
Watts v Rake (1960) 108 CLR 158
Western Australia v Watson [2990] WAR 248
Wyong Shire Council v Shirt (1980) 146 CLR 40

FRENCH DCJ: In June 1998 the plaintiff was employed by Everett Smith & Co Pty Ltd ("Everett Smith"). He was working at a commercial construction site installing electrical cables. On 10 June 1998 he was standing on a scissor lift supplied by the defendant to Everett Smith. While he was leaning over the safety rail to feed electrical cable over a rafter on the roof he inadvertently hit the joystick with his body and the scissor lift went up pinning the plaintiff's upper body between the safety rail and the steel roofing beam. The mechanism that operated the scissor lift was a joystick that had a safety device to prevent accidental operation. The joystick was accidentally operated at the time of the accident because the safety device had jammed. The plaintiff sustained injuries to his torso and back as a result of the accident. He claims that the accident was caused by the defendant's negligence and seeks damages for his injuries including a permanent disability to his back with resultant loss of earning capacity.
In the statement of claim the plaintiff alleges that the defendant was negligent in:
"(i)supplying a scissor lift which was mechanically faulty in that the joystick was faulty;
(ii)failing to warn the plaintiff or the plaintiff's employer of the faulty joystick;
(iii)failing to provide a guard around the joystick to prevent accidental operation of the joystick;
(iv)failing to properly maintain the scissor lift; and
(v)failing to take reasonable steps to prevent foreseeable injury to workers who would be using the scissor lift."
However, the plaintiff's case as presented to the Court relied on the alleged failure by the defendant to maintain, and in particular to lubricate the safety switch, and the failure to enclose the control box that contained the joystick with a guard rail that was subsequently provided.
The defendant disputes that the accident was caused by the negligence of the defendant and in particular disputes that there was any failure to maintain the scissor lift. The defendant also claims that it was a term of the agreement between Everett Smith and the defendant that Everett Smith would maintain the scissor lift and that the plaintiff would be fully instructed on how to use the scissor lift and to conduct daily checks on the operating controls before use. The defendant also disputes that the plaintiff's injuries have resulted in a permanent disability to continue in his pre‑accident employment. The defendant maintains that the plaintiff is in a position to access alternative employment not involving manual work.

The evidence in relation to negligence

The plaintiff Steven Victor Green was born in May 1962. He came to Australia in 1972 and completed his schooling to year 10 in Perth. This was followed by an apprenticeship as an electrical fitter and employment with the Public Works Department. Subsequently the plaintiff obtained employment in the private sector working mainly in the heavy industrial and construction industries. He returned to work as an electrician in the Public Works Department until he was made redundant. Following a period of post secondary computer studies he established and operated a gymnasium from approximately 1995 to 1997. The plaintiff has a long standing interest in weight lifting and has participated at competition level. In 1997 he returned to work as an electrical contractor and obtained employment with Everett Smith in April 1998.
The plaintiff described the work that he did for Everett Smith as involving a variety of jobs. On some occasions he would be required to work on scaffolding including mobile scaffolds such as the scissor lift. The scissor lift is in effect a mobile scaffold with a base with four rubber wheels that can be driven forwards and backwards. The scaffold sits on top of the rubber wheels and can extend upwards in a scissor lift action. The scaffold is a working platform surrounded by a safety rail at approximately waist height. There is a control box at the front of the platform and it is operated by means of a joystick with a safety switch lever at the front of the joystick. The joystick only operates the mobile scaffold when the safety switch lever is engaged.
The plaintiff and Jeremy Gray, a fellow employee, were engaged in pulling electrical cable up and across steel roof beams. The plaintiff described himself as being in front of Jeremy Gray on the platform with his arms raised above his head and being positioned directly underneath one of the main beams. He lent forward as he was pulling the cable and as he did so some part of his body in his hip or leg area touched the controller and the scissor lift rose. As soon as this occurred the plaintiff's back came into contact with one of the main beams. He described himself as being pinned between the beam and the front rail of the scissor lift and said that in that position he was stuck with his hip area on the controller. Both his arms were still above his head as they had been when he had been pulling the cable. He could not get his arms down to reach the controller and was stuck in a position where his back was as he described it actually hyper extended and he could not move his leg to get it off the controller. He stated that Jeremy Gray grabbed him around the waist area and moved him or twisted him off the controller so that he could take hold of the joystick and drop the machine back down again to release the plaintiff. The plaintiff has drawn a diagram (exhibit 1) depicting his position just before the platform was pushed up and just after showing the roofing beam pressing down on his back in the thoracic region and his body extended over the safety rail with his arms raised. It was suggested to the plaintiff in the course of cross‑examination that he accidentally knocked the joystick with his knee because he had climbed up on the safety rail in contravention of the operating instructions. Although I accept that the description of exactly how his body managed to knock the joystick is not completely clear I am not persuaded that the evidence establishes that he climbed up on the guard rail. The reference by medical practitioners to the joystick being knocked by his knee may have been a matter of mistake or miscommunication.
After the plaintiff had been released he said he felt very shaken and was in a lot of pain. He described the initial pain as being across the chest and in his mid to upper back where he had been pressed between the roofing beam and the platform safety rail. He was helped across to the first aid room and ice packs were applied to his chest. He then consulted his general practitioner Dr Ken Wong. Dr Wong referred the plaintiff for x‑rays of his chest and back area and advised him that there did not appear to be any fractures and that he believed that he had sustained severe soft tissue damage. Dr Wong prescribed pain killers and anti‑inflammatories and the plaintiff returned to work for only one day approximately two weeks after the accident. On that day the pain in his back increased so he returned to see Dr Wong and took further time off work.
The plaintiff stated that he had used scissor lift mobile scaffolds on previous occasions. He had also received training on the use of the scissor lift scaffold when he started working for Everett Smith. He agreed that he had signed a card described as being "elevating work platform operator's card" on 24 April 1998 (exhibit 4). He also agreed that the card indicates that he had completed instruction and demonstration on operating a scissor lift scaffold described as "vertical lift elevating work platform" and that that card had also been endorsed by a representative from the defendant. However, the plaintiff stated that although he had signed the card he did not receive actual training and denied that he was instructed to check the safety switch each morning before the scissor lift was operated. He said that the instruction was limited to an enquiry as to whether he had used the scissor lift before and that there was no instruction or discussion as to checking the safety switch. He said that he believed that the only thing that he was advised was to check the water level in the batteries after the batteries had been charged overnight.
The plaintiff said that he was not the first person to operate the scissor action work platform on 10 June and did not agree that he signed a safety check and routine maintenance logbook on that day. The logbook (exhibit 5) sets out a series of pre‑start and operational checks on the front cover of the logbook and suggests that an operator should do all safety checks listed before using the scissor platform. The operational checks include item No 13 "check controls not damaged and return to neutral/central position when released" and item No 15 which refers to checking the operation of the "emergency stop and deadman as fitted (machine should stop when deadman button or foot control is released)". The plaintiff agrees that his name appears on 10 June 1998 at the time of 7.00 am and that there was a signature next to his name. However, he denies filling in the logbook or signing it at any time on that day. The plaintiff also denied ever making any entry on the logbook. The plaintiff stated that he had seen the logbook on the scissor lift platform before but he said that he believed it was only used for endorsing the fact that an operator had checked the battery level for water before the platform was used in the mornings. He said that he had never read the book or signed it and had not been instructed to do so. The plaintiff also denied having seen the contents of a booklet entitled "Manual of Responsibilities". At p 4 of this booklet there is a similar set of instructions in relation to a pre‑start inspection of the scissor lift on a daily basis. The front page of the manual warns that a failure to comply with the enclosed instructions for the use and operation of the platform could result in serious injury.
Although the plaintiff said that he was not the first person to use the scissor lift on that day he said that he had operated the controls prior to the accident and had not noticed that there was anything wrong with the safety switch. However, he said that he did not think that he would be able to tell from operating the joystick if there was anything wrong with the safety switch.
Jeremy Gray who was the other electrician on the scissor lift that day did not give evidence.
Mr David Calvert is an electrician by trade with over 20 years experience and has been working as a serviceman with the defendant for 10 years. During that time he has been servicing and repairing scissor lifts for approximately nine years. He attended at the construction site soon after the accident. The control box had been removed from the scissor lift and held in a union office at the site. Mr Calvert immediately noticed that the safety switch behind the trigger handle was jammed or "stuck in". Mr Calvert explained that he placed the control box back on the scissor lift and as soon as he did so and operated the switch it came free. He tested its operation a couple of times and it was working correctly so he sprayed the area with what he described as a lubricant or a substance from a spray can called Electroclean. He explained that the switch is a closed mechanism so although he did not anticipate that any of the contents of the spray would actually get inside the switch he sprayed in the general area. Mr Calvert confirmed that he made a notation in the logbook that described his actions in the following terms "lubricate deadman switch and adjust trigger handle for switch". He stated that he also completed a job service card that stated:
"Found deadman switch stuck on. Operated. Released. Cleaned with electrical clean. Adjust trigger switch and test okay, and check other machine's operations."
Calvert explained that the lubricant that he applied to the surface was not an oil based lubricant but is a substance used to clean circuit boards. He stated that he used it purely as a precaution but he did not consider that it was likely that any of the substance would actually get inside the closed plastic surround of the safety switch. He also stated that the application of that lubricant is not part of the routine maintenance used on the scissor lift.
Mr Calvert stated that he adjusted the trigger switch but there was no damage to that switch but he had had to remove it in order to inspect the safety switch underneath. The safety switch itself is a sealed unit so it cannot be pulled apart for inspection. Mr Calvert explained that the only problem that he was able to detect was that the safety switch was depressed in but that it became free as soon as the control unit was put back on the scissor lift and the safety switch operated. Mr Calvert stated that in his experience that was the only time he had come across a situation where a safety switch had been jammed in and there had been no further occurrences since the accident in 1998.
Mr Calvert was referred to the logbook (exhibit 5) and to a section entitled "Owner Instructions/Routine Maintenance and Safety Checks". The logbook indicates that the scissor lift was manufactured in October 1997 and the logbook issued on 14 January 1998. In the first endorsement under the routine maintenance and safety check section there is a comment that the production test was satisfactory. The next entry indicates that there was a service and function check performed on 2 June 1998. Mr Calvert stated that he did not conduct the initial production test nor did he service the scissor lift on 2 June 1998. However he stated that to his knowledge the initial production test is carried out by an independent inspector who performs annual inspections of the equipment and issues a relevant certificate for work safe requirements. Although Mr Calvert did not conduct any inspections or services on the scissor lift before the date of the accident he stated that a pre‑delivery routine service is always undertaken to make sure there are no problems with the equipment. He recognised the name and signature on the endorsements dated 2 June 1998 as being a serviceman employed by the defendant. Mr Calvert also stated that the yellow logbook and operators' manual is always kept in a yellow pouch on the platform of the scissor lift.
Mr Calvert confirmed that shortly after the accident guard rails were installed around the control box at the insistence of the union representative.

Expert evidence

Dr Stephen Chew is a consulting engineer and ergonomist who was engaged by the plaintiff to examine a scissor lift at the defendant's premises. Mr Chew prepared a report dated 8 January 2004. In addition to an examination of a scissor lift and the control box and relevant operating mechanisms Mr Chew also had access to relevant statements and documentation. Initially Mr Chew was of the opinion that there were four possible causes for the malfunction of the microswitch in the safety device. These were:
"(a)Ingress of dirt into the gap between the side of the switch button and the switch body which resulted in the switch button remaining stuck in the depressed setting;
(b)The return spring for the button switch had become ineffective due to wear and tear which resulted in the switch button remaining stuck in the depressed setting.
(c)The nylock nut securing the trigger handle to the joystick had been over‑tightened and set the trigger handle into a position which continuously depressed the microswitch button; or
(d)The trigger handle had been bent by impact against another hand object and as a result became misaligned and continuously depressed the microswitch button."
Mr Chew stated that he understood that the joystick had been repaired shortly after the accident and as he had not inspected the joystick prior to the repair he was not able to say conclusively which of the above causes resulted in the malfunction. However, after being made aware that no repairs were in fact carried out and the microswitch began operating immediately upon being tested by Mr Calvert he conceded that cause (a) was the only possible cause of the malfunction. Mr Chew referred to a replica of the microswitch that is the subject of a photograph on p 8 of his report. He explained that when the trigger handle on the safety switch was depressed that action pushed the pushbutton in the microswitch inward and that engaged a switch allowing the joystick movement to shift the scissor lift. Mr Chew stated that if the switch remained jammed in the depressed position that could have occurred as a result of the ingress of dirt material into the gap between the switch and the plastic housing. He said that that could have caused friction sufficient to prevent the internal spring from pushing the button back out on the release of pressure at the end of the pushbutton switch.
Mr Chew was of the opinion that application of lubricant on the switch particularly near the gap between the switch and the housing would reduce the friction forces and in the event that dirt did get into the gap the lubricant would reduce the friction forces and that would be one step to prevent the switch from jamming. Alternatively he considered that another step would be to regularly inspect and clean the switch to make sure that whatever dirt was there was removed if possible. If it was not possible to remove the dirt by cleaning lubrication then he considered the obvious thing to do would be to replace the switch.
Mr Chew explained that dirt could enter between the button and the casing of the switch if dirt which had accumulated on the surface was pushed in when the switch was depressed during operation. He considered that over a period of time this could cause a jamming problem. Mr Chew also explained that if dirt had been able to get between the button and the housing this would result in wear and tear on the surface and that would be discernible. He stated that when he examined a similar switch it was clear that there were white streaks or lines on the outside of the pushbutton switch which he believed would have been caused by friction from dirt that had entered between the switch and the housing. If dirt particles accumulated on the outside of the switch that could be dragged into the interior of the switch when the switch was engaged. He considered that that process explained the white vertical or streak lines that were discernible on the side of the switch he examined. Under cross‑examination Mr Chew conceded that there is only a very small space for dirt to get inside the switch and estimated that to be a fraction of a millimetre. But he still thought that that would be sufficient and also considered that that would be sufficient for a lubricant to get in if the appropriate lubricant had been applied to the exterior of the switch and the switch operated upon a number of occasions it would force the lubricant inside the switch and assist in releasing any build‑up of dirt.

Mr Chew conceded that his opinion that the malfunction was caused by the ingress of dirt was influenced by his original understanding that the problem was rectified by the switch being cleaned and lubricated and the trigger handle adjusted. However he said that even though he was now aware that the problem was rectified by simply operating the switch this did not change his opinion. Although he conceded that he could not be definitive it was still his opinion that ingress of dirt was the most likely cause of the malfunction. He also did not agree that it was not possible to inspect the switch as a microscopic examination would reveal the presence of dirt on the exterior of the switch. He agreed that it was not possible to see inside the switch unless it had been broken as it was enclosed in a plastic casing. Mr Chew was of the opinion that encasing the plastic switch in a rubber cover or rubber boot would protect it from dirt and moisture.
Mr Chew also stated that the use of a guard rail to prevent accidental activation of the joystick control "would have been a prudent occupational safety management practice". However, he agreed that there would be no motivation for any such modification if there had been no previous experience of the safety switch jamming in the "on" or depressed position.
Mr Martin Eric Simms is a consultant engineer who was engaged by the defendant. He has been operating a business as a consultant chartered engineer for approximately 16 years and has had experience in relation to the type of scissor lift the subject of this action. Mr Simms inspected a similar scissor lift on 21 July 2003 at the defendant's premises. In the course of his investigation the control lever, including the microswitch assembly, was dismantled in his presence. He also had access to a number of similar switches that had been removed from controllers and inspected them by cutting them in half so that they could be opened up and inspected internally.
Following his investigations Mr Simms prepared a report dated 21 July 2003 when he only had access to the substance of Mr Chew's report. He prepared a further report dated 13 April 2004 following receipt of the full text of Dr Chew's report. Initially Mr Simms postulated the possibility that the lever that operated the switch may have become misaligned. However, once he was aware that the switch started working again immediately after it was operated he discounted this possibility. Mr Simms does not agree that the jamming of the safety switch could have been caused by a build‑up of dirt. Although he agrees with Dr Chew that it is possible that the malfunction was due to the ingress of dirt that would have been of a transient nature rather than a build‑up of dirt over a period of time. He explained that the fact that the switch is completely enclosed makes it difficult for anything other than microscopic particles of dirt to gain access inside the switch body. If in fact that had occurred it would also be difficult for the dirt to be expelled. The fact that the switch operated as soon as Mr Calvert replaced it on the scissor lift indicated that there had not been a build‑up of dirt that caused the switch to jam. In addition Mr Simms explained that on his inspection of similar switches at the defendant's premises on 21 July none of the switches that he dissected showed any evidence of dirt on the interior. Mr Simms explained that these were old switches that had been replaced on scissor lift machines because they had failed mechanically. He said microscopically there could have been some dirt inside those switches but that was not visible to the naked eye and of course it was not possible to see the dirt because it was inside in a sealed plastic unit encasing the switch. I accept the evidence of Mr Simms that Dr Chew is incorrect when he surmised that white markings on the plastic body of the safety switch is indicative of friction caused by the presence of a build‑up of dirt. As Mr Simms explained these white streaks are equally consistent with minute particles of the substance of the switch caused by abrasion in the operation of the switch.
Mr Simms stated that in his experience micro switches are in common and widespread use. Although they can and do malfunction when this occurs the switch must usually be replaced as there has been some mechanical fault. He stated that pending malfunctions cannot be anticipated by inspection and are usually caused by the failure of an internal component.
Mr Simms does not agree with Dr Chew that enclosing the micro switch inside a rubber boot would have prevented the switch jamming. He stated that the rubber boot themselves are not without problems and may not prevent a transient and microscopic piece of dirt from causing a malfunction of the switch. Although he agrees that a guard rail may assist he does not agree that a competent risk assessment would have necessarily identified this as a required measure given the presence of the micro switch as a safety device in itself. Mr Simms stated that micro switches of this kind are used very widely in exposed situations and are considered to be very reliable.
I am not satisfied that the plaintiff has established any negligence on the part of the defendant. The evidence does not establish that there was any failure to maintain or inspect the control box on the scissor lift. I am satisfied on the basis of the evidence of Mr Calvert confirmed by the log book that a routine maintenance and safety check was carried out as part of the production test when the log book was issued on 14 January 1998 following manufacture of the scissor lift in October 1997. There was a service and function check performed by the defendant on 2 June 1998 just days prior to the accident.
In any event the evidence does not establish that any further inspection or maintenance could have prevented the switch from jamming on 10 June. I accept Mr Simms' evidence that there does not appear to be any other explanation for the jamming other than the transient presence of a small particle of dirt that was not likely to have been visible to the naked eye and in any event would not be visible because the switch is encased in a sealed plastic covering. I also accept Mr Simms' evidence that there was no requirement for lubricating the switch in any way. As he explained it is unlikely that any lubricant would be able to get inside the plastic seal of the switch. Mr Simms explained that generally lubrication is discouraged in switches of this nature because residual lubricants tend to attract dirt. He explained that an oil based lubricant would cause particles to stick to the oil and could exacerbate any jamming or sticking problem. If a non oil based lubricant such as graphite was used that could also cause problems if there was a build‑up of the substance.
Although the provision of a guard rail may have prevented the joystick from being operated accidentally at a time when the micro switch safety device had failed it does not follow that the defendant was negligent in failing to provide a scissor lift with such a safety guard installed. As was pointed out by Mr Simms the micro switch inside the joystick is in itself a safety device. I accept his evidence that such switches are widely used and are generally reliable. Mr Calvert stated that this was the only time that he had come across a situation where a safety switch had been jammed in the "on" position and he has been working as a serviceman for the defendant for approximately 10 years.
The evidence establishes (exhibit 31) and it is not disputed by the plaintiff that it was a term of the agreement between the defendant and Everett Smith that the hirer (Everett Smith) shall be responsible for daily checks to ensure safe operation of the equipment. It is also a condition of the agreement that Everett Smith will ensure that any operators will be trained in the safe operation of the scissor lift in accordance with local regulations. The plaintiff acknowledged that he had received training and instruction of the scissor lifts by the defendant prior to the accident although he disputes that he was aware of all of the items listed in the daily check list on the operator's manual that is kept next to the control box. I do not accept the plaintiff's evidence that he did not receive complete instructions on the safe operation of the scissor lift. He acknowledged in writing that he had received them. The plaintiff is a mature man with considerable experience as an electrician and operator of scissor lifts and similar machines. If he did not receive the instructions he acknowledged in writing he would have brought it to someone's attention. If he did not receive them then that is because he chose not to pay attention to them and chose not to follow the safety instructions clearly set out in the operator's manual. While it may be that the plaintiff's employer should have taken steps to ensure that the daily safety checks were carried out prior to operation of the scissor lifts this is not the defendant's responsibility.
I consider that Dr Chew's opinion that an appropriate response to the risk of inadvertent operation of the control box should have included a guard rail is prompted by an effort to establish a way in which this particular accident could have been avoided in the circumstances rather than something that would have been identified by a competent risk management. The duty imposed upon the defendant is to exercise reasonable care. That duty is not absolute and is not always accurately reflected with the benefit of hindsight. The control box occupies a small part of the area of the working platform. Operators are warned against climbing on the perimeter railing. In those circumstances it would only be in unusual circumstances that part of the operator's body or some other item would knock the joystick so as to cause the platform to be raised. For this to occur at the same time as an unforeseeable jamming of the safety switch into the on position is an extremely unlikely event. Whether it should be characterised as "far‑fetched or fanciful" is debatable. But even if it is reasonably foreseeable that is of course not the sole consideration. The defendant is only required to take reasonable care in circumstances where injury can reasonably be foreseen. Whether a person has taken reasonable steps is a matter for judgment and evaluation taking into account the probability of the risk occurring, the gravity of the damage that might arise and the difficulties involved in avoiding the risk: see Tame v State of New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317
The plaintiff has not identified fault on the part of the defendant. As Kirby J in Schellenburg v Tunnel Holdings Pty Ltd (1999) 200 CLR 121 at 169 stated "The tort of negligence is fundamentally concerned with fault." The defendant is not the plaintiff's workers' compensation insurer nor does it have the responsibility of an employer to ensure that safety practices and operating instructions that have been provided and are clearly displayed on the machine are complied with. In the circumstances of this case I consider that the actions taken by the defendant in providing a scissor lift that is regularly maintained and serviced, that has a control box with a deadman safety device installed to prevent accidental operation of the joystick, together with training that emphasises daily checks of the safety device and the scissor lift generally has discharged its duty to take reasonable care. The plaintiff's action against the defendant will be dismissed.
Although the plaintiff's claim has been dismissed it is appropriate to make a provisional assessment of damages. The defendant does not dispute and the evidence establishes that the plaintiff did suffer an injury as a result of the accident. The defendant does not dispute that as a result of his injuries the plaintiff is unable to return to his pre‑accident employment. However, the defendant maintains that the medical evidence establishes that the plaintiff is a good candidate for a fusion of his torn disc at the L4/5 level. The defendant maintains that the evidence establishes that after that fusion the plaintiff will be able to return to full‑time work carrying out lighter duties and has the appropriate education and training to obtain alternative employment. The defendant also maintains that the plaintiff's pain level is not likely to be permanent following the fusion operation and in any event the plaintiff is not as debilitated as he says.
The plaintiff described the initial pain following the accident as being across his chest and his mid to upper back. He described it as being as if he had actually broken some ribs. He attended his general practitioner Dr Wong who advised him that there were no fractures of the bones and that he believed that he had suffered severe soft tissue damage. He was prescribed anti‑inflammatories and pain killers and remained off work for two weeks. When he did return to work he only remained there for one day as he began to experience severe pain in his lower back. Subsequently, radiological investigations were carried out and he was referred to a specialist physician, Dr John Quintner. The plaintiff has been assessed by a number of medical practitioners and rehabilitation specialists.
The plaintiff's general practitioner, Dr Ken Wong, has been treating the plaintiff since the date of the accident. In a report dated 14 November 2004 Dr Wong confirms that the plaintiff continues to take anti‑inflammatory and analgesic medication for his back pain which has continued since the accident, prevents him from working and limits his domestic and recreational activities. In Dr Wong's opinion the plaintiff has continued to be totally incapacitated from the date of the accident although he anticipates that there may be some return to employment if the L4/5 fusion operation as recommended by a number of surgeons is conducted.
Dr John Quintner has also been treating the plaintiff extensively since shortly after the accident and has prepared numerous reports in relation to diagnosis, treatment and prognosis generally. On the basis of clinical evaluation and radiological investigations Dr Quintner diagnosed a degenerate and torn L4/5 disc as the source of the plaintiff's pain. Initially Dr Quintner recommended a light exercise programme and the use of a lumbo‑sacral support. Dr Quintner confirms that the plaintiff was prepared to undertake surgery for a fusion in 1999 but notes that this was not proceeded with as a result of withdrawal of insurance funding for the operation. In subsequent reports in 1999 and 2000 Dr Quintner observed that the plaintiff's condition had not improved but appeared to be stable as it had not deteriorated. He noted the prescription of strong analgesic medication in the form of MS Contin and commented on the side‑effects. Dr Quintner said that the use of a TENS machine was only helpful to the plaintiff in the short term. Reports prepared by Dr Quintner in the latter part of 2000 commented that his level of pain was increasing.
Dr Quintner referred the plaintiff to a neurosurgeon, Mr George Wong, approximately six months after the accident. Dr Wong recommended that as the conservative treatment had not alleviated the plaintiff's pain condition surgery in the form of spinal fusion should be considered. This opinion was confirmed by two other surgeons, Mr Peter Watson and Mr Paul Bannan. Mr Bannan prepared a number of reports noting that the plaintiff's symptoms had worsened. Mr Bannan recommended that the plaintiff undergo surgery in the form of a fusion at the L4/5 level or alternatively by the insertion of an artificial lumbar disc at that level. He was of the opinion that the plaintiff's ability to work had decreased in the last couple of years. Mr Bannan was also of the opinion that the plaintiff's injury and symptoms were as a result of the accident in June 1998. He described the disc injury as occurring when the spine is flexed and was of the opinion that that was consistent with the plaintiff's description of his back being flexed forward at the time of the accident. Mr Bannan commented that although there may have been pre‑existing degenerative changes to the plaintiff's spine that was not symptomatic at the time of the accident so he did not consider it likely that his current symptoms were related to a pre‑existing degenerative condition, or alternatively, could have been caused as a result of the weight lifting.
In cross‑examination Mr Bannan was referred to the videos obtained by the defendant that depict the defendant performing gardening tasks in the front of his home and the plaintiff's evidence that he was able to ride a bicycle Mr Bannan observed that that was not inconsistent with chronic back pain and pointed out that doctors generally encourage people to exercise with back pain. Mr Bannan considered that the plaintiff would be likely to achieve a significant reduction in his pain level following surgery and would be likely to be able to be in a position to obtain alternative light work approximately three months after the operation. Mr Bannan estimated that the cost of surgery for either disc replacement or fusion would be approximately $40,000 which would include the cost of surgery and hospital and theatre fees. In cross‑examination Mr Bannan conceded that depending on the approach taken by the surgeon the figure for a fusion operation may be approximately $30,000.
Mr R C Edibam is an orthopaedic surgeon who reviewed the plaintiff at the request of the defendant in September 1999. Mr Edibam was sceptical about the cause and extent of the plaintiff's injuries. He considered that it was not likely that the accident would have caused an injury to the plaintiff's lumbar spine as he understood that the plaintiff was trapped in the thoracic area. He considered it unlikely that in those circumstances he could have hyper‑extended his spine so as to cause lumbar injuries. He did not agree with the specialists called by the plaintiff that the radiological investigations together with the plaintiff's symptoms confirmed that he suffered from significant chronic pain in the lumbar spine. Although Dr Edibam conceded that the plaintiff may have some degree of pain he considered that the plaintiff's range of activities together with his appearance on the surveillance videos were not consistent with the degree of pain that he complained of. He also found it difficult to accept that the plaintiff would not have been able to receive significant analgesic relief from the opiate medication MS Contin.
Although I accept that there is some doubt regarding the precise way in which the accident caused the injury in the lumbar spine I find on the balance of probabilities that the plaintiff did sustain an injury at the L4/5 level as a result of the accident on 10 June 1998. I accept the evidence that there were no complaints or no significant complaints of any lower back injury before that date and this is significant given that the plaintiff was engaged in the strenuous sport of power weight lifting. Although I accept that there is some degree of exaggeration in relation to the extent of the plaintiff's pain I am satisfied that it has precluded him from working since the date of the accident and has significantly impacted on his ability to perform domestic and maintenance jobs around the house and in the garden and prevented him from pursuing some recreational activities, in particular the weight lifting. I accept the evidence of the plaintiff confirmed by Dr Quintner and Dr Bannan that the level of pain is not necessarily constant. I am satisfied that he enjoys some "good days" when he is able to do some gardening tasks, ride a bicycle and walk and show his dogs.

The consensus of the surgeons' opinion is that the plaintiff is likely to achieve a significant improvement in his symptoms following a fusion operation. It is unfortunate that this was not carried out in 1999 when it had apparently been scheduled but was cancelled due to refusal on the part of an insurer to fund the operation. I assume that this was his workers' compensation insurer at that time. Although the doctors do not consider that he would be able to return to his pre‑accident employment as a construction electrician the plaintiff fortunately has the necessary training and skills to be able to obtain alternative lighter employment. In addition to his qualifications as an electrician he completed post secondary computer studies and has established and operated a small business in the form of a gymnasium for some years in the late 1990's. I am satisfied on the basis of the evidence from Professor Mulvey that he would have the necessary skills for employment as a cost clerk or stock clerk.
Professor Mulvey is a labour market economist who prepared a report on the range of employment options for someone with the plaintiff's skills and experience. Professor Mulvey estimated that as of May 2004 the average weekly earnings of a stock clerk was $911 a week. A cost clerk who would be involved in estimating quotations and estimates for building and related projects would earn on average $945 per week. Professor Mulvey did point out that it could take a person up to six months to obtain employment as a cost clerk as prospects for those positions are a bit lower than average in Western Australia.
I accept that it may take the plaintiff a little longer to obtain alternative employment either as a cost clerk or a stock clerk or something of a similar nature as he has now been out of the work force for a long time. However, he does have some post secondary computer training and experience in small business so I consider that it is likely that he will be able to obtain alternative light employment within a period of 9‑12 months following his fusion operation. If the plaintiff decides not to go ahead with the fusion operation or if it is not wholly successful I still consider that it is likely that he will be able to obtain alternative light employment. His evidence and the surveillance indicate that he is able to undertake a range of physical activities that appear to be more strenuous than the likely requirements of a clerical position. In a report dated 15 November 2004 Mr Wong commented that he considered it likely that the plaintiff's symptoms would improve even if he continued with conservative treatment and did not undergo surgery.
The plaintiff has prepared a schedule of damages and these were provided to the Court shortly after the trial. I propose to adopt the methods of calculation in the schedule of damages for the purposes of this provisional assessment. I am satisfied that the plaintiff was incapacitated for employment from the date of the accident. I also accept the calculations in the schedule provided by the plaintiff with the exception of the travel allowance where that has been included in the separate items. If the plaintiff has been unable to work then he has not incurred travelling expenses in travelling to various construction sites. The total amount is calculated in the schedule, namely the sum of $252,817.73 will have to be reduced to take into account the travel allowance. The Fox v Wood (1981) 148 CLR 438 component has been agreed by the defendant in the sum of $27,500. I would also include the interest calculations as from 30 June 2002 in the sum of $2,873.
On the basis of the calculations that the plaintiff has made for future loss of earning capacity a rough comparison of the figures supplied by the plaintiff and the estimate of earning approximately $930 a week (from Professor Mulvey's report) in alternative lighter employment produces a shortfall of approximately $300 per week. Using the plaintiff's multiplier of 23 years until the plaintiff reaches the age of 65 this produces a figure of $198,330. Superannuation at nine per cent on the sum of $300 on the same multiplier produces a figure of $17,850. I consider that an appropriate discount for contingencies should be set at four per cent. Although the defendant submitted that the discount should be increased because of the plaintiff's weight lifting on the basis that that increased the likelihood of back injuries there was really no evidence before the Court to support that.
I consider that the amount of $45,000 would have been awarded for future medical expenses being $40,000 as an approximate estimate for the cost of surgery together with a global sum of $5,000 for future physiotherapy, medications and medical attendances. The sum of $36,029 has been agreed as an appropriate estimate for past medical expenses. I accept that the plaintiff's calculations for past gratuitous services in the sum of $4,870 would be an appropriate award. However, I would not have considered it appropriate to order any sum for future gratuitous services. As the plaintiff's symptoms improve either with the effluxion of time or as a result of surgery he is likely to be able to undertake most usual domestic and home maintenance and gardening tasks.
I would have awarded the plaintiff the sum of $50,000 for general damages to include pain and suffering and loss of amenities, taking into account an allowance for the hospitalisation and recovery from surgery.