Hall v Enerka Apex Belting Pty Ltd

[2000] NSWSC 1055

CITATION:	Hall v Enerka Apex Belting Pty Ltd [2000] NSWSC 1055
CURRENT JURISDICTION:	civil
FILE NUMBER(S):	SC CW500010/99
HEARING DATE(S):	21 August 2000
JUDGMENT DATE:	11 December 2000
PARTIES :	Bradley Wayne Hall Enerka Apex Belting Pty Ltd
JUDGMENT OF:	Wood CJatCL at 1

COUNSEL :	D. Nock SC with S.Torrington P. Crittle
SOLICITORS:	Barry F Cosier & Associates McCulloch & Buggy
DECISION:	Verdict and judgment for plaintiff in sum of $404,902.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

No. CW 500010/99

WOOD CJ at CL

MONDAY 11 DECEMBER 2000

HALL v ENERKA APEX BELTING PTY LTD

JUDGMENT

1   WOOD CJ at CL: The plaintiff brings these proceedings for damages for a back injury that he says he sustained during the course of his employment by the defendant. It is his case that this injury was sustained on 28 August 1996, at the Mount Owen Mine, in the Singleton district, where he was sent to assist in the splicing of some conveyor belting. 2   There is no issue that the plaintiff has some back pathology, confirmed by CT scan in June 1998 and later by MRI, in the form of a left postero-lateral disc protrusion at L4/5, and small annular tears at L4/5 and L5/S1, with some minimal disc bulging at the last mentioned level. However, serious issues arise as to whether this pathology was causally related to lifting work carried out that day, and also as to whether it is as debilitating as the plaintiff claims.

The suffering of work related injury

3   The work of splicing in which the plaintiff was engaged on 28 August 1996, requires the use of a vulcaniser press to heat splice conveyor belts. The press is quite large and heavy, estimated by the plaintiff to weigh about two tonnes, but it can be dissassembled into a number of components, including four plattens, eight aluminium beams, two steel plates and some large bolts, in order to ease the task of moving it to the required location, and setting it up over the sections of belting that need to be spliced. 4   The heaviest components that had to be carried, on this occasion, were the four steel plattens or square heating plates. The other heavy components that had to be carried were the aluminium beams used for clamping the equipment together and for exerting pressure on the vulcanising plates. The only evidence as to their weight came from Dr Neil Adams’ report, in which he provided a range between 78 kgs. and 90 kgs, depending on their length. The weight of the steel plates, this report suggested, was in the order of 70kgs. 5   There was some divergence of opinion among the witnesses as to the weight of the plattens, and some uncertainty in that respect, attributable to the difficulty in determining exactly which vulcaniser press had been used at Mount Owen. Their weight, however, was estimated to be somewhere between 90kgs and 110 kgs. 6   It was the plaintiff’s evidence that the Newcastle manager of the defendant, Greg Howell, instructed the men working on the splice to move the vulcaniser down an incline, and across some rough and uneven ground to the belt structure. He said that this task was carried out by two Newcastle employees and by two men sent over from Lithgow, namely Todd Lane, and himself. 7   The plaintiff said that before the press was moved, he spoke to Greg Howell, and told him that they should not try to lift it, but should get a forklift to do the job. According to him, Mr. Howell said that they had two hours to spare. He instructed the Newcastle staff to effect the move. The plaintiff and Todd Lane then went ahead and helped them. The particular task, he said, that caused his problem, involved taking the four plattens from the pallet onto which they had been unloaded down the embankment and over to the conveyor structure. The distance over which they carried the plattens, was according to him about twenty metres. 8   The plaintiff did not notice any pain during the lift of the plattens, but on the next day he experienced extreme pain in the lower back. On the following day he and Todd Lane returned to Lithgow. When he went to work on Monday, he said that he complained to his boss, Barry Johnson. 9   The pain continued thereafter, but the plaintiff did not consult a doctor until February 1998, when he saw Dr. Suresh. In June 1998, he took some time off work, before going back on light duties in November 1998 for a short period before resuming full duties. He ceased work altogether on 28 June 1999. For most of the period following the lift of the plattens he claims to have suffered from back pain. Although there were some days when he was pain free, they were, on his account, rare. Activity, particularly leaning over and bending down, brought on pain, he said. 10   In cross examination he acknowledged that he had made no complaint of pain on the day of the lift. When lifting and carrying the two largest plattens, he said that he could “feel a lot of weight on my legs, my back and my arms. I could hardly lift my legs up when I was walking with (them)”. 11   It was his evidence that while doing this task, he was walking backwards and had to watch where he was going. He did not give any specific evidence in chief, or in cross examination, as to whether or not he experienced a similar sensation when carrying the aluminium beams, the steel plates or the bolts. Nor did he give any evidence as to the way in which they were carried, or whether he was personally involved in moving those items. 12   The plaintiff acknowledged that no notation of any injury was made in the incident book on his return to Lithgow. Nor did he see any record made of the various complaints that he said he made to Mr. Johnson, on subsequent occasions, concerning his back pain. 13   It was put to him in cross examination that the men involved in the lift had not included Todd Martin, and that he had made no request to use the forklift. He denied each suggestion. He acknowledged that there was an overhead structure where the splice was to take place, but he said that had the forklift been used for the move, the distance of carriage could have been reduced to five metres. He disagreed with the suggestion that the ground had been graded by a bulldozer and was level. 14   No other witness was called in the plaintiff’s case, and I am accordingly in the dark as to whether Todd Lane or Mr. Johnson would have supported his evidence. It was established that Mr. Johnson now lives in central Queensland and works for an opposition company. The evidence was, however, silent as to the whereabouts of Mr. Lane. 15   The defendant called Mr. Howell as well as two splicers from the Newcastle branch, Clifford Anderson and Kenneth Jones. 16   Mr. Howell said that the vulcaniser had to be moved about nine to ten metres. The area over which it was to be moved, had, on his account, been recently graded and was smooth dirt. The work area he described as comprising an amphitheatre with a gently sloping bank. That bank dropped about two metres over the nine to ten metres that the vulcaniser had to be moved. 17   Mr Howell said there was no request by the plaintiff prior to the lift, to use a forklift or lifting aid. The lift was done, on his account, by the plaintiff, by the two Newcastle employees mentioned and by himself, each man taking one corner of the plattens. He experienced no difficulty with the lift. He said that this kind of manual operation was conducted every time the vulcaniser was used. He did not regard the weight of the plattens as excessive when using one person at each corner. He did, however, acknowledge that it was “heavy work”. 18   He also acknowledged that, when he had joined the defendant, just before 1996, he had put together a set of safe working procedures for this type of activity. These instructions specified that the equipment required for the work of splicing should include:

“(6) one lifting device, such as block and tackle or a wire rope/chain puller and chain slings for lifting the press and two (2) 3-tonne wire rope or chain pullers with 3 tonne chain slings for tensioning the belt”.

19   The instructions did not otherwise deal with the transport, movement or lifting of the press, or of its components if disassembled. 20   In a statement made by Mr. Howell on 11 November 1999, he noted that the plattens weighted approximately 100 kgs, a figure which he revised in his evidence in chief to 90 kgs, based upon his recollection of the contents of the manufacturer’s data sheets, which were not, however, produced. 21   He also stated in this document:

“… all lifting is lifted with either assistance of the work crew, however, the majority of the large items are more commonly loaded by means of a forklift. Upon arrival at the site, the majority of the sites have mobile cranes or forklifts.”

Mr. Howell agreed that the defendant did not have any lifting equipment present at the site, other than the mobile crane needed to lift the vulcaniser on and off the truck that was used to move it between conveyors.

22   The presence of steel works about four metres above the belt, he said, stopped them using the crane or any lifting equipment to move the vulcaniser into place on this occasion. While it could have been moved by the crane, that would not have allowed them to position the press or its components much closer to the work area. A forklift, he thought, would not have been able to drive down the embankment because of the grade and nature of the surface where the work was being done. 23   His suggestion that the crane could not have been used to move the components very much closer to the work place was to some extent, contradicted by his November 1999 statement in which he said that:

“after the splicing, the vulcaniser was dissassembled and the sections carried a distance of about two metres away from the overhead conveyor structure, to where the sections were stacked and picked up by the crane and placed onto our truck”.

24   Although daily time sheets and job sheets were kept which would have shown exactly who was on site, he had not checked those records. He agreed that Todd Lane had come over from Lithgow to work on the Mount Owen site, but he did not believe that he had worked on the particular splice which was the last splice performed for that job. 25   His memory, it became clear, depended largely if not wholly upon a photograph which he had taken of the splice that day, which showed the men he recalled working on it. 26   Although Mr. Anderson initially confirmed Mr. Howell’s evidence that the move of the plattens (whose weight he estimated as 90 to 100 kgs) was effected by Mr. Howell, Ken Jones, the plaintiff and himself, it is clear that he was not entirely certain about that. 27   Both he and Mr. Jones gave evidence that they did not hear the plaintiff make any request for the use of a forklift. He did not, however, seem to remember carrying the components of the vulcaniser down any slope. Again, it was clear that his recollection of the men who had moved the vulcaniser, which accorded with that of Mr. Howell, was dependent upon the photograph that had been taken of the plaintiff, of himself and of Mr. Anderson, standing next to the conveyor. He estimated the weight of the plattens to be 90 kgs “plus maybe another 20 kgs” each. 28   As became clear from Mr. Howell’s evidence when he was recalled, this photograph was taken after the splice had been completed, and after part of the press had been removed. It followed that it must have been taken at least four to five hours after the components going to make up the vulcaniser had been originally moved into position, from the top of the bank. It did not, accordingly, establish, with any certainty, that the move of the plattens, or the other components, was made by the persons it depicted. 29   I was left somewhat unimpressed by Mr. Howell’s evidence, since it was shown to be somewhat imprecise or incorrect in several respects - for example as to the time at which he initially said that the photograph was taken, as to the date on which the plaintiff ceased to work, as to whether the crane could have moved the vulcaniser somewhat closer to the work site thereby reducing the distance of the carry, and as to the weight of the plattens. There were records available concerning these matters on his evidence that he could, and should, have checked and produced. The overall impression I have of him was of a witness who was somewhat defensive of his position as supervisor, and who was attempting to place the best face on the events as he could. 30   The other two witnesses called by the defendant were unconvincing as to their recollection of who had made the lift, a matter of relatively little moment for them to recall, since it was a regular incident of their work. There was, in fact, no occasion for any of Messrs Howell, Anderson or Jones to bring the lift back to memory prior to 1999, when the plaintiff’s compensation claim was lodged. Their reliance on the photograph was of limited value for the reasons already mentioned. 31   In the result, notwithstanding the absence of Mr. Todd, I prefer the evidence of the plaintiff as to the identity of those involved, as to the distance of the carry, and as to the site conditions. 32   A report from Dr Neil Adams, an ergonomics and safety management consultant, was tendered. He was not required for cross examination and no report from any expert dealing with the ergonomic issue was tendered by the defendant. 33   Upon the assumption, supported by the evidence, that the plattens were carried by four men, and that they weighed 110 kgs, he calculated that each lifter had to exert a lifting force of a little over 34kgs - taking into account the circumstance that the efficiency of a four man lifting team is generally accepted to be approximately 80%. The lifting index for the lift and carry of the plattens calculated in accordance with the NIOSH formula, he assessed at 4.8, a figure which he said was well in excess of the integer of 3 which is regarded as presenting an unacceptably high risk of injury. 34   Although the evidence was largely silent as to the lift and carry of the remaining components, he said that the move of the aluminium beams would have resulted in an even greater lifting index and an even higher probability of injury. This part of his evidence, however, needs to be treated with considerable caution since it depended upon an assumption that was not proved, that these bars were lifted and carried by two persons. 35   Having regard to that circumstance, and to the manner in which the plaintiff’s case was pursued, it appears to me that the proper course is to regard the lifting of the aluminium bars, steel plates, and the bolts as part of the overall task in the context of which the plattens had to be moved. In other words, their lift is not to be considered as a single incident, but rather as events occurring in the course of the lift of a number of components, of which the relevant items, for present purposes, are the plattens. 36   In the absence of any challenge by another expert to the evidence of Dr. Adams, even taking into account the possibility that the plattens weighed 100 kgs rather than the 110 kgs, which was his estimate of their weight, I am of the view that an unacceptable risk of injury was created. 37   The response of the defendant, apart from the impression of the lay witnesses that the lift was not excessive, if shared by the four men, rested also upon the proposition that there was no reasonable or practicable alternative, because of the presence of the overhead structure. 38   I am not persuaded that this provides an answer. As previously mentioned, Mr Howell implicitly recognised in his statement, and the plaintiff said on oath, that the crane could have been used to move the vulcaniser press a good deal closer to the work site, thereby eliminating the need to carry the components down the bank, and also reducing the distance of carriage. 39   Additionally, and independently, even if a forklift could not have been used for the somewhat dubious reasons advanced by Mr. Howell, there were other possibilities available, in the opinion of Dr. Adams. They included a utility or small truck fitted with a power operated or manual hoist and appropriate slings, or a pneumatic tyred trolley that could have been manually pushed to the work site. 40   I regard the answer of Mr. Howell concerning the difficulties associated with the use of the forklift unconvincing in view of three matters: firstly, his assertion that the heavier items were more commonly loaded by means of a forklift; secondly, the appearance of the work site that can be gleaned from the photograph of the last splice, and thirdly, the consensus that the slope of the bank was relatively gentle. 41   It is difficult, in those circumstances, to understand why a forklift or other hoist could not have been taken to the site and used when needed, ie in the unlikely event that the mine did not have such equipment available that could have been borrowed. 42   As the plaintiff’s employer, the defendant owed a duty of care to him to avoid exposing him to an unreasonable risk of injury in lifting an excessive weight. I am of the view that there was a breach of this duty in the failure to provide proper equipment for the lifting and carriage of the vulcaniser, specifically the plattens, from the pallet onto which it had been unloaded from the truck, over to a position more proximate to the conveyor belt, where it was to be used.

Causation

43   The finding of a breach of the duty of care does not of itself establish the plaintiff’s case since there is a live issue as to causation. 44   In this respect, the defendant places reliance upon the fact that the plaintiff continued to play rugby league football through the 1997 and 1998 seasons, and into part of the 1999 season (ie until the June meeting later mentioned); the fact that he had suffered a back injury preceding the event relied upon (1991), and another incident following it (1997); the fact that he displayed signs of congenital back problems in the form of Scheurmann’s disease; and the fact that the first occasion on which he took any substantial time off work followed him being passed over for a position as foreman. 45   The post lift history is important for the determination of this issue, as is the medical evidence, which was confined to the tender of a number of reports from treating and reviewing medical practitioners. 46   Following the lift at the Mount Owen Mine and the development of back pain overnight, the plaintiff managed to keep working and playing rugby league, although in pain. When he saw Dr. Suresh in February 1998, because of the continuing pain, his back was x-rayed and he was referred in July 1998, to Dr. Lahz, a specialist in rehabilitation medicine at Bathurst. He also came to be referred to Doctors Loefler, Bourke and Carter, for assessment particularly in connection with his rehabilitation programme. 47   The plaintiff said that, before the 1996 injury, he was engaged in a number of outdoor activities including rugby league, golf, baseball, fishing and camping. He now plays a bit of golf and fishes for short periods, but he has had to give up his football, baseball and camping. He finds sleeping difficult because it brings on pain, and forces him to sit up in bed. He also has trouble sitting in a car, or in any one position, for more than two to three hours. 48   By reason of the depression associated with the injury and its consequences, he has little social life and has lost his girlfriend. 49   The plaintiff accepted that he played rugby league for some years after the accident. Although he was left in pain afterwards, he explained that he continued this activity because football was a passion to him and because Dr. Lahz had said that he was in no more danger of being hurt than anyone else on the field. In fact, she encouraged his continued participation in that activity. 50   He also accepted that apart from the times that he was placed on light duties, he was able to carry out the full duties of his job, but only with assistance from fellow employees with the heavier work. 51   In 1997, it would appear from the history provided to Drs. Lahz, Bourke and Meachin, there was an exacerbation of the back pain occasioned in another lift at work. However, the history suggests that he had suffered pain on a continuous basis since the 1996 lift and that the 1997 event was an exacerbating event rather than an initiating cause. 52   He acknowledged having applied for the job of foreman in June 1998, for which position he was beaten by Mr. Bionda. This position he had sought because he had seniority and also because he expected that the job would require less heavy work in the field. He understood the foreman’s responsibility to extend to organising the other employees, although he agreed that the holder of the position did have to “plug in” to do heavy work, despite his pain. He said that prior to seeking the position he had been forcing himself to work, despite his pain. He agreed that shortly after being passed over for this position, he went off work for a time, before returning on light duties and then resuming full duties. 53   It was at this time, that the plaintiff came to see Dr. Lahz for the first time. At this stage she noted that, while he had “chronic low back pain with a mechanical component”, she thought this was unlikely to be related to the lumbar disc protrusions evident on the CT scan, which she classified as “minor”. She encouraged him to increase his activity levels and referred him to a physiotherapist for that purpose, as well as to CRS Australia for possible retraining, as there were no suitable duties available in his current workplace. She also noted that there seemed to be some resentment on his part attributable to him being passed over for the supervisor’s job, with the consequence that he had to continue the “hard yakka”. 54   In her next report of 11 August 1998, she noted that the “bad atmosphere” at work had been cleared after frank discussion, and that some suitable duties had been found. CSR, she noted, were undertaking an assessment to upgrade his work as far as he was able. This report also confirmed the plaintiff’s evidence to the effect that Dr. Lahz had reassured him that it was “safe to be active despite ongoing pain” from his back. 55   After an intervening review of little significance in November 1998, by which time the plaintiff was back at most of his duties, Dr. Lahz next saw the plaintiff on 10 May 1999. He complained of a worsening of his pain, and expressed concern as to the risk of sustaining further damage by continuing with manually demanding work. He reported severe night pain and looked to be quite despondent. Again, she noted only minor disc bulging and no indication of any systemic disorder. She noted:

“I suspect he has ongoing mechanical thoracolumbar pain attributable to his work but compounded by misplaced concern and depression”.

56   On 2 June 1999, there was a meeting with his employer because of concerns over the medication, (Panadeine Max and Tryptanol), that he was taking for pain relief, and about his late arrival for work. This was attributable, so the minutes of the meeting recorded him explaining, to the combination of pain, medication for it and insomnia caused by it. These minutes also recorded the plaintiff’s complaints of constant back pain that was affecting his concentration and ability to focus on work duties. They went on to record:

“… the company accepts that the pain he is in and that the medication he is taking because of the pain, both are preventing him from performing his duties to his fullest and previous best”.

57   At the time of this meeting, the plaintiff was a permanent employee of the defendant. He offered to become a casual employee so that he would not be called upon as the first splicer for the bigger jobs, involving the most physical effort. In the end he did not pursue this possibility, when it was pointed out that he would have to first resign from his permanent position. The minutes previously mentioned confirm that this advice was given. A note records that later he was informed that APEX was restricted as to the work that could be provided, and that there was no guarantee of work for casual employees. 58   In a letter of referral to Dr. Carter of 10 June 1999, following this meeting, Dr. Lahz expressed the view that the plaintiff was in a “chronic pain cycle,” but also noted that she had some concerns as to his complaints of night pain. In a letter of the same date to Dr. Suresh, she noted that plain x-rays showed “mild Scheurmann’s disease” and that the bone scan was “consistent with bilateral sacroiliitis”. His “pain focus and miserable state” were recorded, and regret was expressed by her that he had been encouraged by his employer to give up football, and as a consequence was not having any exercise. It was her view that he was unlikely to progress, unless given assistance with pain management. 59   In a detailed report of 5 August 1999, in which the history of her consultations was reviewed, Dr. Lahz noted her original diagnosis of “chronic mechanical low back pain, with (a) history suggestive of an inflammatory content”. The existence of underlying inflammatory disorders, the report showed, had been investigated through FBE/ESR/LFT screening and through reference to a rheumatologist, Dr. Carter. The report went on to record that Tryptanol prescribed by her for pain relief at night, had not been well tolerated and was ceased. It had been replaced by anti-inflammatory tablets (Naprosyn) and a trial of a TENS machine. 60   This report next noted that the rheumatologist was of the view that there was an inflammatory contribution to the plaintiff’s back pain. Dr. Lahz reported:

“Mr. Hall’s backache is multifactorial. He has Scheurmann’s disease, which predisposes him to thoracic backache. He is also genetically predisposed to inflammatory spondylitis. Superimposed on these factors, there is his heavy, manually demanding job, which causes his back to ache more.”

61   In the final report from her that was tendered in the proceedings, Dr. Lahz noted that she had advised the plaintiff that “he needs to work in spite of experiencing a certain amount of backache. He should avoid bar jobs entailing a lot of lifting, and he should use his Panadol and NSAID’s preemptively”. 62   In late June 1999, the plaintiff was seen by Dr. Bourke for assessment of his back pain. His findings on clinical examination were reported as consistent with “thoraco lumbar junction dysfunction, L5 lumbosacral spinal dysfunction, thoraco-lumbar scoliosis, prominent thoracic kyphosis, lumbosacral spine pain disorder and or spondylosis”. Dr. Bourke felt that “on the positive side, pragmatically (was) the central nature of (the plaintiff’s) spinal pain disorder without evidence of any pain radiation, nerve root irritation or radiculopathy.” He recommended review of the management programme provided by Dr. Lahz to promote active manual spinal therapies, a gym and swimming programme, and education regarding his pain management. 63   The plaintiff’s employment with the defendant was terminated from 16 February 2000, because of the pain he was experiencing and because of his physical inability to return to his pre injury duties. He had previously been off work, it would seem, continuously from mid July 1999, ie after using up his annual leave and sick leave. 64   He began to seek lighter work as a retail sales assistant, over this period, and eventually commenced employment on a casual basis with the Wallerawang Royal Hotel. This work began in late December 1999 with a single shift of three to four hours. More recently the plaintiff has taken up three shifts of similar duration. He said that he is able to do the hotel work, although with pain when bending down, moving glass trays, and washing ashtrays. He tried one full six hour shift but found it was too painful to repeat. 65   He considers himself unable to ever work on a permanent full time basis again, because of the back pain from which he now suffers. He does not, however, suggest that his back condition has been or is such as to render him totally unemployable. 66   Several medical practitioners examined the plaintiff for medico legal purposes. They included Dr. Millons and Dr. Deveridge, who were qualified on his behalf; and Drs Meachin, Grant and Maloney who were qualified on behalf of the defendant’s insurer or its solicitors. 67   Dr Millons, who first saw the plaintiff on 29 March 2000, accepted that the plaintiff had “some genuine mechanical low back pain” which could be “explained on the basis of some internal disruption of the lower two lumbar discs”. He said this needed “addressing conservatively in the short term” with an exercise programme to improve abdominal and spinal muscle tone and strength, and to lessen irritability in the lower lumbar region. There was no indication, he thought, for surgical intervention at this stage. A spinal fusion in the future was, in his view, only a remote possibility, although he thought that with the degenerative changes already evident there could be some gradual increase in the symptoms with the passage of time. The permanent impairment of the plaintiff’s back, he assessed in the order of 20%. 68   As to causation, Dr. Millons said:

It is possible that in the incident of 28 August 1996, he sustained some internal disruption of a lower lumbar disc without any frank protrusion at this stage, but as he went about his daily labours, over the next twelve months, the disc degenerated giving rise to gradual bulging”.

69   As I understand this passage in his report, the initiating cause for the progression and deterioration was the lift of 28 August 1996. 70   Dr. Millons assessed the plaintiff as unfit for his pre-injury work, but thought him fit for work of a “light nature avoiding excessive bending, lifting more than 10 kgs, or working in confined spaces”. Light bench work, work in stores or in the retail trade, with these qualifications, was within his capacity. 71   Dr. Deveridge, who saw the plaintiff on 6 March 2000, read the CT scan of June 1998 as showing a “moderate rather than small” disc protrusion at L4/5 level, and thought it to be productive of a “moderate ongoing disability with frequent low back pain and stiffness. He added that “the mechanism of injury on 28 August 1996, could well have ruptured an otherwise normal lumbar disc in a man of his age”. 72   He considered the plaintiff unfit for repetitive bending, heavy lilting, carrying, twisting, pushing, dragging and prolonged periods of fixed spinal posture. He added that “a man with a disc lesion of this type would be well advised to avoid heavy labouring type work…”. The plaintiff, he said, was permanently unfit for the work tasks of a belt splicer, although he was capable of light physical employment after rehabilitation and retraining. 73   The future treatment he indicated should involve intermittent analgesic and/or anti inflammatory medication, supported by a regular exercise programme and/or swimming in a heated pool. Physiotherapy was not expected to influence the outcome, although a significant relapse may warrant some such treatment. Hydrotherapy was also an option that may be beneficial, as was the use of a TENS machine. 74   Dr. Deveridge did not see any need for surgery at this stage, although he noted that an established disc protrusion of this nature could progress with time, especially if the plaintiff continued to perform labouring type duties. As a consequence, there was some chance of his needing a surgical laminectomy and discectomy. His condition was assessed as chronic and stabilised and to amount to an 18% permanent impairment of his back (by reference to a most extreme case contemplated by the Act) of which he would deduct 2% on the grounds of pre existent or constitutional changes. 75   Dr. Meachin, who saw the plaintiff on 16 August 1999, reported that, in his opinion, the plaintiff had injured a disc, possibly the L4/5 disc, initially at work in July 1996, which had never really settled down, and which had been aggravated in 1997. He added that if MRI scan confirmed the presence of disc injury (which it did), then “it is related to the injury sustained at work in 1996, and the subsequent aggravation in 1997 and the nature and conditions of his work since.” 76   He did not consider that the plaintiff had suffered a musculo ligamentous strain as that would have “long since healed”. He advised an exercise program, and expressed the opinion that the plaintiff was “unfit for heavy work which involves repetitive bending and heavy lifting but he is fit for other duties.” The permanent impairment of his back, as compared to a most extreme case, he assessed at 10% of a most extreme case. 77   Dr. John Grant saw the plaintiff on 23 December 1999. In his view the 1998 CT scan revealed “quite a significant disc bulge (at L4/5) with some impingement upon the dura.” It was his conclusion that the plaintiff’s problem was related to this bulge, which was producing dural irritation. In view of the persistence of the symptoms this was a chronic problem which he expected to continue. He considered that it was impossible for him to return to his previous occupation. The prognosis for the plaintiff’s recovery he said was not good, and eventually he may have to consider surgical treatment, with further investigations likely. He assessed the plaintiff’s permanent back disability to be of the order of 15%. 78   Dr. Maloney also saw the plaintiff on 23 December 1999. Similarly, he concluded that the L4/5 disc pathology explained the plaintiff’s continuing low back pain, the complaints being consistent with such pathology. He was of the view that a retraining programme was essential, to increase his fitness level, and thereby to “enhance his muscle power, tone and endurance, as part of pain control”. 79   As to the prognosis, he said:

“prognosis. A guarded prognosis would seem appropriate for whilst he has only a reasonably mild structural lesion at the L4/5 level causing mild encroachment on the thecal sac at that level, at no time has he ever had nerve root compromise. However, we do not know the future for this disc lesion. The degenerative changes already well established in this young man will progress as is their natural history. One cannot altogether rule out the future possibility of even disc herniation occurring - such is more likely to eventuate if he pursues work of a heavy physical nature - and hence the need for vocational re-training to minimise this risk.”

80   As to the impairment assessment, he said:

“There exists in his back a degree of permanent partial impairment of function of some 10% of the severity of a most extreme case with such having a direct relationship with the injury occurring to his back in the course of his work on 28/8/96. I believe that the nature of his work has played a significant contributing role in his overall impairment. I also feel that there existed in the L4/5 disc, a degree of degenerative pathology albeit asymptomatic at the time, when at the time of and prior to the onset of low back pain of 28/8/96.
Apportionment: I would apportion 60% of the total to this pre-existing degenerative pathology in the L4/5 disc and 40% of the total to the traumatic affects of the work related accident of 28/8/96”.

81   In the light of the plaintiff’s evidence as to the time of onset of symptoms, and in the light of the fact that the subsequent work history, and medical review, demonstrate both the existence of a disc injury and the consistency of symptoms of pain, I am satisfied as to their causal connection to the 1996 lift at the Mount Owen Mine. I accept that the plaintiff was an honest witness, and I also accept that he experienced an onset of the symptoms within 24 hours of the lift, that they continued thereafter, and that they were aggravated by the heavy nature of his work. The initiating cause, upon a balance of probabilities, was the 1996 lift. 82   It is significant that each of Drs Meachin and Maloney, who were qualified on the part of the defendant, accepted that connection as consistent with their findings, and with the history provided. Drs Millons and Deveridge also accepted the possibility of that link. 83   Dr. Lahz’s assessment appears to me to have been somewhat flawed in her understatement of the significance of the L4/L5 disc bulge and from the failure of any treatment prescribed by her to reverse the plaintiff’s condition. I would prefer the assessment of the remaining expert witnesses who saw the plaintiff’s ongoing symptomatology as related to the injury, as distinct from being the result of some degenerative or inflammatory condition. 84   The undisputed fact is that the plaintiff was fit, physically very active, happy and capable in his work before the Mount Owen Mine lift. He had only suffered one minor incident of back pain in a football match in 1991, and that had entirely resolved. After the 1996 lift, he met none of these requirements. On the contrary, he had to give up most of his activities, including the sport for which he had a passion, closed off his social life, and became a gloomy pain concentrated figure. Whatever potential he had for the development of degenerative changes, or for problems of the kind that can follow from Scheurmann’s disease or allied congenital conditions, had not emerged. He was asymptomatic and he may have remained so, but for this lifting event or for some similar event. 85   In those circumstances, causation is established in accordance with the principles expressed in Chappel v Hart (1998) 195 CLR 232 and Naxakis v Western General Hospital (1999) 197 CLR 269.

Damages

86 The plaintiff is entitled to modified common law damages assessed in accordance with the provisions of Part 5 of the Workers Compensation Act 1987, thereby requiring an assessment of where the injury stands in relation to “a most extreme case”, the meaning of which can be determined, by analogy, as that considered appropriate for the Motor Accidents Act in Dell v Dalton (1991) 23 NSWLR 528 and in Southgate v Waterford (1990) 21 NSWLR 427. 87 The plaintiff has an injury which has been consistently productive of pain, and considerably restrictive of his ability to engage in heavy physical activity in the work place, and also in fields of sporting and recreational endeavour. He faces the possibility of further deterioration and even of surgery, in the opinion of some of the doctors. The existence of the injury, the presence of continuing pain, and the genuineness of the plaintiff in his restrictions, was not challenged by the defendant. No evidence was offered by it to suggest that the was malingering or capable of greater activity than that described. 88 There is no apparent prospect of recovery, and by reason of his age, the consequences will be with him for a very long time. For a manual labourer with limited education, and with recreational and social interests oriented towards the physical, the consequences are serious. 89 Although there was some possibility of him suffering from similar problems in the future, because of his congenital defects, they were non symptomatic at the time of the accident and they may well have remained so. 90 No psychological evidence was called as to his mental state, yet it was obvious from his presentation in Court, as well as from Dr. Lahz’s reports, that he is very despondent and preoccupied with his back, and very much pain centred. His response to it is such that he has trouble sleeping, with sitting and standing for long periods, and with any form of repetitive or heavy lifting and bending. While he can undertake menial part time employment, even this is uncomfortable for him, and it is no doubt somewhat demoralising for him to be limited to such work, and to lose his social life through his despondency. To some degree this may be attributed to the fact that he seems not to be a person who tolerates pain or adversity well. The defendant, however, takes him as it finds him in this regard. 91 The assessment of the medical experts of the injury, in relation to a most extreme case, appears to have concentrated upon the bare degree of mechanical injury to the spine, rather than upon the overall consequences for the plaintiff, in his fields of work and recreational endeavour, or with his response to pain. 92 The defendant submitted that at highest, he should be assessed between 15% and 20% of a most extreme case (by reference to the medical reports). The plaintiff submitted that he fell into the 35% to 45% range, taking into account the effects in all areas of his life, in the short, medium and long term . 93 I would assess his injury at the level of 27.5% of a most extreme case, taking into account the actual consequences for the plaintiff. I will proceed to assess the individual heads of damages accordingly, and by reference to the following matters as at the date of trial:

a) plaintiff’s date of birth 9 November 1972

b) date of accident 28 August 1996

c) age at date of trial 27.75 years

d) remaining working life at date of trial

(to age 65) 37.25 years

e) multiplier for 37.25 years per 5% tables 895.7

f) remaining life expectancy at date of trial 49.43 years

g) multiplier for 49.43 years per 5% tables 973

h) discount for contingencies for future loss 15%

i) average net weekly earnings of the plaintiff

at the time of trial $503.55

94   By reference to these factors, and by reference to those losses that were agreed, I assess the plaintiff’s damages rounded off to the nearest dollar as follows:

Past Medical Expenses

Health Insurance Commission charge $1,213. 90

S60 payments by Insurer $8,080.00

$9,294.00

Fox v Wood $5,862.00

Non Economic Loss

Upon the basis of the assessment made earlier, I assess this head of loss as follows:

$220,100 x 27.5 = $60,527
100


Since this sum exceeds the relevant threshholds in S151 G, it is recoverable in full.

Past Economic Loss

95   Having regard to my assessment of the non economic loss damages to which the plaintiff is entitled, full recovery for the present head of damages is available under S 151 H of the Act. 96   The agreed wage loss of an employee of the defendant to 1 December 2000, after adjustment for the plaintiff’s earnings from December 1999 in his part time employment, was $49,067. The defendant, however, submitted that the plaintiff had a capacity during the financial year 1999-2000, to earn $275 net per week, a sum exceeding his actual earnings which varied over the period from December 1999, to the date of trial, from $50 per week (for 28 weeks) and $150 per week (for 8 weeks). 97   I am not persuaded that this submission has been made good. The ability of the plaintiff to work needs to be considered in the light of the available job market, and in the light of the plaintiff’s capacity to find suitable employment within the Lithgow district. I accept his evidence that he was unsuccessful in his attempts to obtain light employment in the area before securing the hotel position. I also accept that he has made reasonable efforts to increase the shifts to the extent that the work is manageable, ie within his current physical limitations and also within his reasonable tolerance to pain.

Upon that basis I assess this head of damages in the agreed sum of $49,067.

Future Economic Loss

98   The current average comparable weekly earning after tax is $717. It averaged $696 per week during the current year. The defendant submitted that the plaintiff retained at least 75% of his pre-existing capacity. The plaintiff submitted that it was reasonable to assume a residual capacity in the order of $250 per week net. 99   I consider it reasonable to attribute to the plaintiff some increase in his residual earning capacity beyond that represented by his current part time earnings of $150 per week net. Once these proceedings are resolved and the plaintiff becomes more accepting of, and less concentrated upon, his disabilities, he should be able to exercise a somewhat greater residual capacity. The defendant’s submission of a cushion of $50,000 I would, however, regard as totally unsupportable by reference to the evidence of the plaintiff and the medical reports. Taking into account the current comparable wage, the favourable possibility that had the plaintiff been uninjured he may have been better placed to compete for the position of foreman, the fact that the job attracted bonuses corresponding to those earned by workers in the mine where the splicing jobs were carried out, the unlikelihood that the plaintiff would have continued until the age of 65 in the very heavy and also very well paid work of a non-foreman splicer, and also his residual capacity which he should be able to exercise for lighter work, I would assess the ongoing loss in the sum of $375 per week. 100   Upon that basis, and with a discount for contingencies of 15%, I assess this head of loss as follows:

$375 x 895.7 x 85 = $285,504

100

Past Superannuation Lost

101   This was agreed in the sum of $1,420

Future Loss of Superannuation

102   This was agreed at 8% of gross. By reference to the gross figure referrable to the current ongoing loss, I assess this aspect of the claim in the sum of $27,743 after a discount for contingencies of 15%.

Future Medical Expenses

103   The plaintiff invited assessment of this claim upon the basis of a weekly expense of $5, to take into account the need for medication for pain relief, and also to allow some buffer for future investigation and possible surgery should his condition deteriorate. The defendant submitted that there should be no deduction. The plaintiff’s claim in this regard is, upon the evidence, reasonable.

I assess this head, accordingly, at $5 x 973 = $4,865.

104   It follows that the damages to which the plaintiff is entitled to recover are as follows:

Past medical expenses $9,294

Fox v Wood 5,862

Non economic loss 60,527

Past economic loss 49,067

Future economic loss 285,504

Past superannuation lost 1,420

Future superannuation loss 27,743

Future medical expenses 4,865

439,417

less compensation received 33,515

405,902

105   There will be a verdict and judgment for the plaintiff accordingly. I will stand the matter over for further argument in relation to costs or further relief.

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Last Modified: 02/22/2001