Hariss v Konstantinidis t/as Konstan Lawyers

[2007] NSWDC 124

CITATION:	Hariss v Konstantinidis trading as Konstan Lawyers [2007] NSWDC 124 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	30 April 2007, 1 May 2007, 2 May 2007, 3 May 2007
JUDGMENT DATE:	21 June 2007
JURISDICTION:	Civil
JUDGMENT OF:	Hungerford ADCJ at 1
DECISION:	Verdict for the defendant.; Plaintiff to pay the defendant's costs of the action.
CATCHWORDS:	LEGAL PRACTITIONERS - whether solicitor negligent - client injured at work on 11 November 1995 - liability of solicitor in failing to advise common law rights and election provisions under Workers Compensation Act 1987 - expiration of limitation period on 12 November 1998 - workers compensation benefits commuted on 8 April 1999 - loss of both common law damages and future workers compensation benefits - whether client able to make an informed decision on advice given - solicitor not negligent.
LEGISLATION CITED:	Workers Compensation Act 1987, ss66, 67, 68(1), 68A, 151A(2), 151A(3), 151D(2), 151G, 151H Evidence Act 1995, ss76, 79
CASES CITED:	Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 Chamberlain v Ormsby t/as Ormsby Flower [2005] NSWCA 454 Cheng Peng v PM Industries Pty Ltd (unreported, NSWSC, 31 October 1996) Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1 Dunn v Firth [2003] NSWCA 280 Maricair v Principal & Councillors of Wesley College (2000) 19 NSWCCR 368 Midland Trust Bank Co Ltd v Hett Stubbs & Kemp [1979] Ch 384 Nicol v Allyacht Spars Pty Limited (1987) 163 CLR 611 North Broken Hill Ltd v Vockins (1999) 19 NSWCCR 193 O’Brien v Gillespie (1997) 41 NSWLR 549 O’Connor v Commissioner for Government Transport (1959) 100 CLR 225 Rabelais Pty Ltd v Cameron (unreported, NSWSC, 8 February 1993) Sungravure Pty Ltd v Meani (1964) 110 CLR 24
PARTIES:	Adi Hariss - plaintiff Simon Konstantinidis trading as Konstan Lawyers - defendant
FILE NUMBER(S):	Matter No. 1274 of 2005
COUNSEL:	Mr K Andrews for the plaintiff Mr G Craddock for the defendant
SOLICITORS:	Keddies for the plaintiff Henry Davis York for the defendant

JUDGMENT
1 The loss of an opportunity to take common law proceedings by an employee injured at the workplace on 11 November 1995 for the alleged negligence of the employer gave rise to this action against the employee’s former solicitor in failing to advise and properly investigate the circumstances so that the employee could make an informed decision in pursuing appropriate entitlements. As it happened, an application was made for compensation under the Workers Compensation Act 1987 but, as it was claimed, before any relevant advice was given the limitation period within which any common law damages claim was to be brought expired. In addition, the settlement of the employee’s workers compensation claim by a lump sum commutation of benefits resulted in the employee having no further rights to relief under the Workers Compensation Act or any entitlement to recover modified damages at common law in respect of the injury. Further remedies against the employer were, therefore, unavailable to the employee to recover what was said to be the true measure of loss from the workplace injury by reason of the solicitor’s negligent conduct. The present action against the solicitor sought to recoup that loss.

The parties

2 The plaintiff, Adi Hariss, was born on 1 January 1964 in the town of Ciawi in West Java. He never attended school and at the age of 14 years moved to Jakarta in Indonesia and supported himself by selling newspapers; he lived on the streets. After meeting in Jakarta a person identified as “David”, who was a diamond collector and businessman in antiques, he came with David to Australia and spent two days with him in Melbourne before they both travelled to Nimbin in New South Wales. Eventually, David left Nimbin but gave the plaintiff $US300,000 for living expenses which, as the plaintiff said, was “more than enough”. The plaintiff stayed in Nimbin for a time and then moved to live with an aboriginal community in Queensland for four or five years before moving to Sydney.

3 In February 1985, the plaintiff obtained employment with W J Brookvale as an operator moulding fibreglass until November 1987. During that period he came under the notice of the Department of Immigration and Ethnic Affairs when he was arrested in March 1985 for using offensive language and was unable to identify himself because his travel documents were said to have been stolen – the Department took steps to deport the plaintiff but released him into the community. He then was employed as a sheet metal worker at a factory at Dee Why West from November 1987 to December 1989. From August 1990 to November 1991 he was employed as a moulding operator at Mortdale having, despite initial refusals and bridging visas, been granted by the Department of Immigration a visa to engage in employment from October 1990. However, he was unemployed between March 1991 and August 1994 and received social security payments. He resided at various places in Parramatta, Marrickville and Manly and from time-to-time lived with a friend, Christine Milligan.

4 While unemployed, the plaintiff said he was assaulted on 23 July 1992 and sustained a laceration to his lower lip and a broken jaw – he received treatment at Royal Prince Alfred Hospital. On 12 January 1993 he was admitted again to hospital suffering from stomach pain.

5 On 28 August 1995 the plaintiff obtained temporary employment with the Central Sydney Area Health Service working as a technical aide at the Concord Repatriation General Hospital on a full-time basis. His duties covered the sterilisation of instruments, the lifting of equipment no more than five kilograms in weight and placing cotton bags of dirty laundry weighing up to 30 kilograms onto a trolley. It was here that the subject November 1995 injury occurred to the plaintiff’s back.

6 On 4 March 1987 while in the Villawood Detention Centre, after being arrested at Manly on 24 December 1986, the plaintiff wrote to the Department of Immigration and Ethnic Affairs seeking release to enable him to engage in useful employment. The letter was written in English by the plaintiff in a neat and clear style. It included comments such as – “My health is getting worse day by day. I am an x-drug addict”; “since my detention, especially in the last few days I have gone from bad to worse regarding my health”; “I am under immense health and mental pressure”; and “I will find a decent job and nurse myself back to health”. In response to questions concerning his then state of health, the plaintiff gave the following somewhat contradictory evidence:

Q. And just past the middle of the page you wrote, on 4 March 1987, “My health is getting worse day by day”?
A. Mm.

Q. “I am an ex drug addict”?
A. Yes.

Q. And that was true?
A. Yes after I’m sick because I can’t afford to pay doctor $140, if I have to go to get the morphine, I have to pay $140 to the doctor, cash and then $140, I have to wait again at the claim to Medicare and might be back about $80 or $85 so cost me more than $50 and so it’s better I go by it on the street, only $20 or $10 each, probably.

Q. And you’re there talking about heroin are you?
A. Yes heroin or morphine, what I need for my back.

Q. Is that why you wrote on 4 March 1987--
A. Yes.

Q. --in this letter--
A. Yes.

Q. --to immigration--
A. Yes. That time I was addicted.

Q. –“I am an ex drug addict?”
A. Yes.

Q. Was that because you needed to use heroin because of the pain in your back?
A. No, no not that one. Not that one. Not this one. This one I been experience in this country you ..(not transcribable).. to learn to look after the drug addict. How to use properly. How to not OD. How to ..(not transcribable).. we have to give understanding to the people no understand. So keep away from the accident like anything.

…

Q. Did you write that because prior to writing that letter you had been addicted to heroin?
A. Not addicted very well. I can like now stop like this. Only the Australian people they don’t know how to stop. So we have to give advice if they want to stop. That’s what I’m doing now. Helping people.

7 The plaintiff when cross-examined about his use of heroin or morphine and his criminal history with periods in gaol resisted, somewhat vehemently, many questions, as he said, “It’s nothing to do with this case”; “I don’t have to answer you”; and “that is something wrong, it’s not my name”. Even so, a Probation and Parole Service Pre-sentence Report of 5 July 2001 referred to his drug use for the past 15 years and several convictions for shoplifting and stealing; he had committed a number of drug offences. Again, he became visibly angry and forceful when tested in cross-examination about the assault on 23 July 1992 and treatment at Royal Prince Alfred Hospital for a laceration to his lower lip as referred to in his examination-in-chief. Although no mention of a back injury was made, the plaintiff heatedly responded about that incident in this way:

A. I don’t know, you can check up the record in there, but I am never ever have back pain or ..(not transcribable).. very fit person, never sick, only after I am work at the Concord Hospital that I got a back problem. Never ever in Australia or anywhere country, I have back pain.

8 The plaintiff was adamant he never had back pain before the November 1995 incident at Concord Hospital. However, the admission summary sheet of Royal Prince Alfred Hospital on 23 July 1992 noted a principal diagnosis of “Assault – laceration of lower lip, low back pain, abrasions”; the radiological report of 24 July 1992 by Dr Kuan of an x-ray of the plaintiff’s lumbosacral spine and sacroiliac joints noted “there is a scoliosis convex to the left. No fracture detected.” The plaintiff maintained when asked whether he had the x-ray – “I don’t know … I don’t think so, and this one the spell is wrong name, and not my name this one …”. The hospital records showed the plaintiff’s surname as “Harris” and not “Hariss” but the date of birth and address were correct. Despite the denial and description of the records by the plaintiff as “rubbish”, I think they related to the plaintiff.

9 On 12 January 1993, the plaintiff again attended Royal Prince Alfred Hospital and complained, as he said, of “pain”. The hospital’s outpatient notes recorded on examination – “Young man in pain … still in pain on movement, moves legs normally, pain felt in left sciatic region. Muscular pain most likely …” The plaintiff, having in mind his evidence-in-chief about going to the hospital on 12 January 1993 with stomach pain, nevertheless said “I don’t know, I don’t remember”.

10 After agreeing earlier to commencing work at Concord Hospital in August 1995, the plaintiff, in cross-examination responded “I don’t remember the time sir, I repeat again, I don’t remember the past time my memory is very bad.” When asked how long it was after starting work at Concord Hospital pain was first felt in his back, he said “I don’t remember, I don’t know … No idea.”

11 Before leaving the position of the plaintiff before the injury at Concord Hospital on 11 November 1995, it is appropriate to refer to his immigration status in Australia. There was very little evidence of this, other than from the plaintiff himself as to periods of detention and bridging visas to enable temporary residence and permission to work. In the Probation and Parole Service Pre-sentence Report of 5 July 2001 it was commented that the plaintiff “has been classified as an ‘unlawful’ person since February 2001 but is eligible for a Bridging Visa”. The present situation was not readily discernible from the evidence in any definitive way, but presumably his status and ability to engage in employment were settled on 12 September 2001 when it was asserted the plaintiff was granted a permanent resident visa. Of some note, however, is that in his employment application to work at Concord Hospital dated 28 August 1995 the plaintiff stated he was an Australian citizen – that to the plaintiff’s knowledge could not have been true.

12 The plaintiff gave his evidence in English and no difficulties of understanding in that respect arose. Indeed, he said his ability to read and write English was better than in the Indonesian language where he had some difficulties and did not really understand it. He also spoke some Arabic and Malay.

13 The defendant, Simon Konstantinidis trading as Konstan Lawyers, was the firm consulted by the plaintiff on 6 May 1997 regarding the injuries he sustained at Concord Hospital on 11 November 1995. The defendant allocated the handling of the matter to Anita Vayanos, who was employed as a paralegal. Ms Vayanos had previously worked as a law clerk for Egisto & Romano Solicitors in Five Dock from 1994 and then as a paralegal for TS Menounos & Associates in Hurstville from 23 August 1995 to 6 June 1996. She commenced employment with the defendant in Marrickville on 11 June 1996; after completing a Diploma in Law (Solicitors Admissions Board) in 1996, she was admitted as a Solicitor of the Supreme Court of New South Wales on 28 August 1998. During employment with the defendant until 20 April 2000, she practised in conveyancing, family law and high volume workers compensation and personal injury litigation. She then was an employed solicitor with Demestre & Co from 2 May 2000 until 30 October 2005 in undertaking high volume workers compensation and personal injury litigation and family law. Since joining her present firm, Gretch Partners Solicitors, in November 2005 she practises primarily in family law litigation as a result of a reduction in the availability of personal injury matters.

14 Ms Vayanos was first contacted by the defendant’s solicitors, Henry Davis York, to provide details in relation to the present action in late-2005 or early 2006 when she had discussions and access to the file concerning the plaintiff. She was requested to provide an affidavit as to her involvement in the week before this trial commenced on 30 April 2007 and an affidavit was so sworn on 29 April 2007.

15 Ready agreement was given by Ms Vayanos that at the first consultation with a client such as the plaintiff the purpose was to determine whether there was a cause of action which required a consideration of both liability and quantum, although that had to be qualified by the need for a process to obtain the details first and then the medical evidence. In the plaintiff’s case, Ms Vayanos said she followed her usual practice. However, she did concede that her file note of the first consultation with him on 6 May 1997 was “brief” in that it simply referred to the employer as Concord Hospital; nature and conditions of the employment in lifting linen and contamination containers when felt pain in the back; probable cause of pain being bending, lifting and twisting; pain to left side of back extending to left leg and foot; physiotherapist being seen; and not currently being paid weekly benefits. She agreed the term “nature and conditions of employment” was a term commonly used in workers compensation matters. Also, on the defendant’s “New File Request” form the matter details were noted as “Workers Comp – Concord Hospital” with the plaintiff being required to pay disbursements direct for workers compensation.

16 The affidavit of Ms Vayanos was quite detailed and extensive; it stated events by reference to various documents in the defendant’s file which was admitted into evidence. Not insignificantly, Ms Vayanos agreed there was nowhere in the file the conversations between her and the plaintiff as set out in the affidavit and that those conversations were her best endeavour to recollect what might have been said. In response to a challenge to her recollection after so many years, particularly in light of the hundreds of files handled, Ms Vayanos described the plaintiff as a “character” who was unique, difficult to forget and who attended the office unannounced on a regular basis. For instance, she said the plaintiff “sometimes … would make very clear to me that he had had a shower that particular week so he could attend.” She added:

There are some files that you do have very good recollection and if you do hundreds of matters that most of them will wash over you but when you’re confronted with your file in your handwriting that you had from commencement and a character that is a client is easier to recall what happened in a matter than if it was the run of the mill case where – that you only saw them a couple of times during the course of acting for them. ... What triggered my memory were the events – different things on the file and to the best of my recollection I have pieced what dates I believe that these conversations occurred.

17 The plaintiff presented with an unkempt appearance and who was repeatedly intent, as he had been in the interviews with Ms Vayanos and in responding to questions about how he was injured at work, in having his employer charged with negligence and the manager sent to gaol for contamination from a claimed faulty and unsafe sterilisation process. He sat uneasily during his evidence and showed some indignation when asked how he was inured and his resultant condition. One may readily describe him as a “character” as Ms Vayanos did, certainly “colourful” in his manner, and, I think, someone not easy to forget after being seen on a regular basis. Even so, it is appropriate to temper with caution after the lapse of a few years the recorded conversations by Ms Vayanos of what the plaintiff told her. However, the thrust and effect of what the plaintiff was said to have told her were maintained in her evidence.

Incident causing personal injury to the plaintiff

18 The plaintiff described the nature of the duties performed as a technical aide at Concord Hospital after commencing employment on 28 August 1995. Training was received in sterilisation procedures but in no other aspects of the work. He tended to be vague and disjointed in doing so, he was not a good historian, but it seemed that one of his regular jobs was to move dirty laundry in cotton bags by lifting the bags about one metre from the ground onto a trolley and pushing the loaded trolley about 200 metres for the laundry to be sterilised. Each bag was said to have weighed more than 30 kilograms and on an average day something like 28 bags were lifted. He spoke to the manager during October 1995 and told him the bags were too heavy to lift but nothing was done. Then, in November 1995, it was later clarified as 11 November, as the plaintiff was lifting a bag he said, “I couldn’t move … My back like couldn’t move when after lifting my back couldn’t move and pain and in the morning I go to the doctor”. The doctor was a general practitioner, Dr M Piliotis.

19 Although the plaintiff said he attended Dr Piliotis on the same day as the incident and had an x-ray of his back, Dr Piliotis in a report dated 9 September 1997 to the defendant referred to the first attendance as being on 1 December 1995 after he went to Royal Prince Alfred Hospital by ambulance on 27 November 1995 when the on-going low back pain became much worse. Dr Piliotis arranged for an x-ray of the lumbo sacral spine on 1 December 1995 which showed “a mild tilt of the spine to the right compatible with muscle spasm … marginal osteophytes of the lower three vertebra but no significant bone abnormalities are seen and the disc spaces, facet joints and sacroiliac joints appear normal”. However, from a CT scan on 7 December 1995 of the lumbar spine ordered by Dr Piliotis he reported it showed “facet joint degenerative change at 3/4” and “a disc prolapse at L5/S1 with indentation of the left L5 and left S1 nerve root.” A diagnosis was made of “an L5/S1 disc prolapse with left L5 and S1 nerve root entrapment” as a result of the lifting injury at work in November 1995. Dr Piliotis reviewed the plaintiff on 8 December 1995 and gave him a certificate for light duties. That position was confirmed by Dr Piliotis on reviewing the plaintiff on 12 December 1995 as he was managing with light duties.

20 The plaintiff said he was away from work for some days, presumably returning on light duties about 9 December 1995, but after a couple of days he said the manager at work put him back on his pre-injury heavy lifting duties which he performed until May 1997. During that period the plaintiff said he had back pain “all the time” and it started to get “worse” with pain radiating down his left leg.

21 In early-May 1997, the plaintiff said with his back in doing the heavy lifting at Concord Hospital that “I collapse after that, couldn’t work any more”. He has not returned to work at the hospital nor in any other employment. The plaintiff agreed in examination-in-chief that Central Sydney Area Health Service terminated his employment at Concord Hospital but from a Termination of Employment Advice it appears in fact he terminated the employment effective as of 26 June 1998 and that was confirmed in a Centrelink Employment Separation Certificate dated 29 June 1998 showing the plaintiff voluntarily resigned on 26 June 1998.

22 Dr Piliotis reported that the plaintiff on 8 May 1997 experienced a sudden exacerbation of his back pain and on seeing him on 16 May 1997 noted “obvious distress due to the severity of his pain”; Dr Piliotis referred him to the Emergency Department at Royal Prince Alfred Hospital. When reviewed at the hospital, medication was prescribed and he was discharged for continued bed rest at home. After a further review by Dr Piliotis, the plaintiff had another x-ray which revealed spondylitic degeneration and narrowing of the spinal canal; physiotherapy was arranged. Dr Piliotis certified the plaintiff as unfit for any form of work.

23 On review by Dr Piliotis on 24 July 1997, the plaintiff stated physiotherapy was not really helping his condition. The doctor reported:

In particular he had felt on-going pain in the left lower back region with radiation down the posterior aspect of the left thigh and left leg with associated numbness. He had experienced considerable difficulties in sleeping and was attending physiotherapy twice weekly and taking Digesic tablets for the pain. The pain was felt to be exacerbated by coughing and sneezing.

24 Dr Piliotis referred the plaintiff to an orthopaedic surgeon, Dr John Bentivoglio, for assessment and, in particular, for consideration of decompressive spinal surgery. Dr Piliotis concluded that the plaintiff’s long-term prognosis depended on the result of any such surgery but “he would certainly be unfit to return to any form of manual labour in the future involving significant lifting and bending.”

25 After employment at Concord Hospital was terminated, the plaintiff lived at a hostel called Kendall Home. Then, although the dates and duration were not made clear, he came under notice of the police and was charged with a number of criminal offences involving the use of drugs for which he served imprisonment. Latter, he was released from Cessnock gaol during December 2002 and commenced a methadone programme to rid his heroin habit.

26 The plaintiff said his back problems have continued to the present time and he had pain in the back “all the time” as he had also in the left leg which prevented him from concentrating; he took Panadeine Forte and Valium on a daily basis and consulted his general practitioner, now either Dr Harry Huber or Dr Salim, once a fortnight. He ceased physiotherapy three years ago because it did not help.

27 Socially, the plaintiff said he was not involved and occupied his time by shopping and, at his doctor’s suggestion, kept active by walking. Friends carried the shopping bags for him and sometimes did his clothes washing, ironing and cleaning of his one bedroom home unit which he said he could not do – the total time occupied in those tasks by friends was about one to one and a quarter hours per week.

28 The plaintiff was firm in the view that he had been unable to work since he left Concord Hospital because of his back problem but for which he would have continued that employment, which he enjoyed, and stayed in Australia where he had a “good future”. As to the possibility of surgery, as suggested by Dr Bentivoglio to relieve the back problem, the plaintiff said he was told the success rate is only 40 per cent and he was not prepared to have the operation at that degree of risk for fear of ending up in a wheelchair. It is instructive, however, as to the plaintiff’s attitude and approach to work to refer to a memorandum dated 26 February 1997 from his manager at Concord Hospital to the Human Resource Services Manager concerning several incidents at the workplace involving the plaintiff since he commenced in August 1995. The incidents related to attending for duty smelling of alcohol, smoking marijuana on duty, unauthorised absence from work, unmanageable and aggressive behaviour towards a supervisor, refusal to carry out an instruction by a supervisor and abusive and aggressive behaviour to supervisors and staff. The memorandum concluded:

I have concerns with Mr Hariss continuing and deteriorating disruptive behaviour and insubordinate attitude. He is a difficult person to manage and has an aggressive manner and a very short temper which causes many staff to feel intimidated. He has been moved from certain sections where his performance has been the subject of concern and he has clashed with all supervisors at one stage or another in his brief employment with the department.

29 Significantly, it was recorded that on 25 February 1997 the plaintiff refused to continue work and requested medical advice because “he felt he was being overworked”. However, when the supervisor attempted to discuss the situation with him he “erupted into the stream of abuse and aggression usually displayed in such discussions”. The memorandum added:

His manner was agitated, his demeanour aggressive and his language foul. He marched out of the room slamming doors as he usually does and shouting as he left only to return and commence the stream of abuse and aggression towards supervisors, staff and myself. The discussion culminated with Mr Hariss telling me to ‘fuck off’ whilst displaying an overtly aggressive stance. He departed from my office and slammed the door so hard I felt compelled to check it for damage, there was none fortunately.

30 The relevance for present purposes of those matters is the cogency of the plaintiff’s assertion as to how he injured his back on 11 November 1995 by a claimed unsafe system of work over a period of some months and, more importantly, whether in fact the employer had failed to take reasonable steps for his safety in the workplace in the method of work adopted. One may, as I do, seriously doubt the plaintiff’s narration of the events causing him injury at work, particularly when he shortly thereafter returned to full duties which he continued to do for about 18 months until May 1997 when he ceased work and sought compensation. Ms Vayanos, as will be seen, had some doubt about the ability in common law proceedings to establish negligence in the employer. The history of prior back pain in July 1992 and January 1993, despite the plaintiff’s denial, seriously adds to the doubt and to his credibility. The doubt was compounded in cross-examination by the plaintiff’s reliance on lack of memory concerning details of when he first felt pain in his back and his constant speaking over the cross-examiner’s questions in a forceful and argumentative fashion when tested on this aspect.

31 In the result, I have formed the view that the plaintiff had, even if his evidence of the incident and nature of the work be accepted, barely an even chance in establishing negligence in Concord Hospital as his employer for an unsafe system of work. There may be no doubt, according to the medical evidence to which I will come, that the plaintiff has pathology in his back resulting in disability. But, how and when that occurred are far from comfortably established on the probabilities. The plaintiff’s work behaviour, lifestyle, drug abuse, detention and immigration difficulties complicate any assessment.

Medical opinion of plaintiff’s condition

32 The plaintiff first consulted Dr Bentivoglio on referral by Dr Piliotis on 30 July 1997 when the symptoms in his back worsened dramatically in May 1997 after the incident at work in November 1995 when back pain was experienced. Dr Bentivoglio arranged for a CT scan which he said “shows that he has a discal abnormality at the L5/S1 level on the left side … accounting for his symptoms.” The plaintiff was reviewed from time-to-time by Dr Bentivoglio who considered more aggressive lines of treatment than physiotherapy were required to lessen the continuing symptoms, which fluctuated in severity, of low back pain radiating down to the left leg and foot region. In a report to Dr Piliotis of 30 January 1998, Dr Bentivoglio noted the plaintiff was not anxious to have such more aggressive treatment and, in the absence of operative treatment to excise the L5/S1 disc which would not render him entirely asymptomatic, there was little that could be done to lessen the complaints. Dr Bentivoglio last saw the plaintiff on 24 April 1998 and, in a report to the defendant dated that day, said a history was obtained of “lifting an object at work around October 1995 when he experienced back pain … not had problems with his back prior to that”. The opinion was then expressed:

This gentleman would have developed an L5/S1 disc lesion as a result of the repeated bending he had to do at work. He still has evidence of ongoing nerve root irritation … will always need to avoid activities which are arduous in nature or which require him to do bending and twisting movements of his back …

I would assess that this gentleman has a 20 per cent permanent impairment of his back and a 15 per cent permanent loss of efficient use of his left lower limb at or above the knee region (taking into consideration any loss he has below the level of the knee region) as a result of referred symptoms into his lower limbs.

33 In a report dated 9 September 1997 to the defendant, Dr Piliotis detailed a history of the plaintiff in November 1995 “lifting rubbish at work when he injured his lower back”. After clinical examination and review of the radiological investigations, Dr Piliotis diagnosed an L5/S1 disc prolapse with L5 and S1 nerve root entrapment. He summarised the position and gave a prognosis as follows:

In summary the abovenamed patient sustained an intervertebral disc prolapse at the L5/S1 level with irritation of the left L5 and S1 nerve roots as a result of a lifting injury sustained at work in November 1995. His presentation was consistent with the history provided by the patient.

He had originally made gradual improvement with rest and physiotherapy and he had made a gradual return to full duties. Due to continuing heavy lifting and bending at work the patient sustained exacerbation of this condition to a marked degree and this has rendered him considerably disabled and incapacitated with respect to any form of employment.

He does not appear to have made significant improvement with physiotherapy and I feel that it likely he will require some form of decompressive surgery in the future. I understand that this is also the view of Dr Bentivoglio … The patient’s long-term prognosis will depend on the result of any such surgery. He would certainly be unfit to return to any form of manual labour in the future involving significant lifting and bending.

34 Dr Christine Harris, a consultant physician in occupational medicine, examined the plaintiff on 11 July 1997 for the then employer’s workers compensation insurer. After noting “a very vague history of gradual onset of low back pain in November 1995 associated with heavy lifting at work”, in a report of the same day she opined that the plaintiff “has certainly got degenerative changes in the lumbar and lumbo-sacral spine and as such symptoms may have been precipitated by the nature of the work which he was doing.” Dr Harris considered the plaintiff not fit for his pre-injury employment and only for light duties without extensive bending, lifting and twisting. She concluded his condition was “due to underlying degenerative/constitutional changes in his spine but significant contribution due to the nature of his work cannot be excluded at this point”.

35 An orthopaedic surgeon, Dr Frank Machart, examined the plaintiff on 23 July 1998 for the employer’s workers compensation solicitors and reported on 25 July 1998. He opened with the comment that the plaintiff “was a poor historian … claimed inability to remember details of his condition or treatment … claimed he had a poor memory and could not remember what job he was doing prior to his taking a job at Concord Hospital as a technical aide in 1995. … eventually remember that he worked as a machine operator at some stage.” Dr Machart thought the details that were provided made it appear that the back pain developed gradually as opposed to a single injury causing disability. After taking a history, making a clinical examination and viewing radiological evidence, Dr Machart gave an opinion of “mild to moderate degenerative changes in his lumbar spine … evidence of a small disc protrusion … presentation today not in keeping with the mild severity of his condition noted radiologically”. It was then added:

My assessment is that this gentleman has constitutional degenerative changes in his back. It is not clear, but it is possible, that a disc protrusion at the lumbo-sacral junction has occurred as a result of his activities in November 1995. Acceptance of this scenario is dependent on due consideration as to whether Mr Hariss is a true witness to his condition. There are discrepancies in my examination of Mr Hariss that cast a shadow of doubt as to whether this is the case.

The small disc protrusion at L5/S1, in my opinion, could have given symptoms of temporary nature and gradual improvement would be expected with treatment, i.e. rest. There is no indication with this type of pathology that deterioration would have occurred without any further provoking or aggravating activity to the extent that Mr Hariss portrays.

36 Dr Machart considered the plaintiff not fit for heavy labouring work but fit for light work of a sedentary nature such as office work, deskwork, courier work, ticket collection, gatekeeping and light cleaning. No treatment, and specifically not surgery, was recommended. For the future, some degree of back pain of a non-severe nature may be expected.

37 Dr Richard Johnston, a surgeon, examined the plaintiff on 14 September 1998 for the workers compensation insurer and reported on 15 September 1998. A past medical history from the plaintiff of good health and with no lower back pain or lower back injury prior to 1995 was recorded. A social history of smoking 10 cigarettes a day and taking occasional alcohol was recorded also but with no mention of illicit drug use. Dr Johnston noted on examination that the plaintiff “walks and moves in a most bizarre gait … He has a walking stick but having watched him enter the waiting and consulting room his walking stick does not seem to contribute to weight bearing … without his walking stick he can stand independently on both feet, he can stand straight and walks normally but cautiously.”

38 Dr Johnston accepted that the plaintiff did sustain a lower back injury in 1995 which was aggravated in 1997 at work. Mild to moderate degenerative changes were seen in the lumbar spine from the x-rays and CT scan with discal pathology at the L5/S1 level and L5 nerve root damage on the left side. He considered the employment at Concord Hospital was a substantial contributing factor to the plaintiff’s condition. Fitness for employment was reduced and resultant partial incapacity with an inability to engage in repeated lower back flexion or lifting any weight in excess of 10 kilograms. The prognosis was poor.

39 Dr Johnston assessed the plaintiff as having a 15 per cent permanent impairment of the back compared to a most extreme case and a permanent loss of use of his left leg at or above the knee of between 5 and 10 per cent; previous asymptomatic degenerative disease was considered to contribute to 5 per cent of the total loss or impairment. Even so, and accepting the plaintiff had a genuine lower back problem, Dr Johnston thought “his presentation today suggests a significant level of exaggeration and embellishment”.

40 The defendant had the plaintiff examined by Dr Alan Searle, a consultant orthopaedic surgeon, on 15 November 1997. Again, there was no history given of any symptoms or injury to the back prior to the November 1995 work injury or of any abuse of drugs. In his report of 27 November 1997, Dr Searle expressed this view:

The lifting injury at work in November 1995 caused a prolapse of the L5-S1 disc and a bulge of the L4-5 disc. These disc lesions may have been predisposed by some degenerative change before the actual lifting injury. The degenerative changes which are apparent on his x-rays were caused by the general nature and conditions of his employment. These degenerative changes were also aggravated by the injury in November 1995.

The symptoms and disability resulting from the aggravation of his lumbar spondylosis and the disc lesions are persistent and permanent, and together with the psychiatric complication they cause a severe degree of disability. He is permanently unfit for work which requires prolonged sitting or prolonged standing, lifting or repeated bending, or regularly travelling moderate distances.

With regard to prognosis there will be a gradual increase in the symptoms and disability with the passage of time as the degenerative changes progress. Treatment will continue to be conservative, as at present, and current treatment costs will continue indefinitely. However he is at risk of a further major protrusion of either disc, possibly with minimal stress on the lumbar spine. If this should occur he may need surgical treatment in the form of a disc excision. This would cost $10,400.00 in today’s terms including hospital, surgical and anaesthetic fees.

41 Dr Searle considered the November 1995 work injury resulted in a 30 per cent permanent impairment of the back and 10 per cent permanent loss of efficient use of the left leg at or above the knee to include the whole limb.

42 Dr Searle reviewed the plaintiff on 24 February 1999 for the defendant and in a report of 2 March 1999 said his opinion was unchanged. He added that the plaintiff was “severely disabled and is probably unemployable”; he had a 40 per cent possibility for disc excision in the future. Dr Searle added that degenerative changes accounted for no more than one per cent of the plaintiff’s impairment.

43 On 22 January 1998, Dr James Bodel, an orthopaedic surgeon, saw the plaintiff at the request of the workers compensation insurer. In a report dated 2 February 1998, he found the plaintiff was left with a 15 per cent overall permanent impairment of function in the back; he said one-third was due to constitutional factors unrelated to work and the remaining two-thirds due to the specific injury that occurred at work in November 1995. Also, Dr Bodel found a 5 per cent overall permanent loss of efficient use of the left leg at or above the knee, incorporating an assessment for permanent loss of efficient use of the left leg below the knee including the foot; he considered it to be a work-related injury.

44 In a fuller report on the same day, Dr Bodel set out the history taken, clinical examination and radiological investigations. He considered the disc rupture at L5/S1 to have resulted from the November 1995 work incident as aggravated by the nature and work conditions subsequently. He thought the plaintiff’s complaints to be quite genuine so that he was not fit to return to the pre-injury work. Although surgery was not then indicated, it may be considered in the future; in the meantime, an exercise programme was encouraged.

45 Dr Bodel examined the plaintiff again on 24 June 2005 for the plaintiff’s present solicitors in this professional negligence claim. Effectively, the earlier expressed opinion was repeated other than adding a guarded prognosis against a return to any form of paid employment because of a lack of transferable skills. Also, domestic assistance was estimated at about four hours per week for household maintenance and cleaning.

46 The absence from the medical reports of any history given by the plaintiff of the back pain experienced in July 1992 and January 1993 must be of concern in determining a causal link between the nature of the work and the plaintiff’s condition, as were the references in the reports to degenerative change and constitutional factors affecting his back. Dr Bodel gave oral evidence and, to some extent, those matters were addressed. This evidence included:

Q. Having regard to the findings at both 1998 and 2005 would you agree that it’s likely that having regard to the development of a limp, the further diminution of the circumference of the left calf and the observation of a 2 level disc rupture or two disc ruptures in 2005 as against one in 1998 that the man’s condition in 2005 represents the process of the degenerative condition that he had and that you opined upon as being present prior to the incident that he had at work?
A. That’s an interpretation, yes, I would accept that.

...

Q. If you were to assume that he presented at a hospital, Royal Prince Alfred Hospital, in I think June of 1992?
A. Yes.

Q. And again in 1993?
A. Yes.

Q. And made complaints of back pain together with other matters?
A. Yep.

Q. Would that fit with a pattern of degenerative change in his spine over a period between 1992 and about 2005 when you last saw him?
A. That’s an explanation but were any x-rays taken at that time, because really the diagnosis of a degenerative process would need to have some sort of imaging to be able to determine that that’s the case. The gentleman was still in his 20s at the time that you’re referring to. As I said earlier, it’s unusual to have significant lumbar degenerative change at that age.

...

Q. But if it was symptomatic then assuming in this man the degenerative condition that he had was symptomatic in 1992 and 1993 would you agree with the proposition that the ingestion of heroin may mask those symptoms in that man?
A. Yes, heroin is a pain reliever, probably the most potent that we have.

Q. A degenerative spinal condition might become symptomatic without any traumatic episode, is that right?
A. Yes, correct.

Q. If one has a degenerative spinal condition earlier than the general run of the population there is a greater chance that that degenerative condition will ultimately become symptomatic causing pain, discomfort and affecting if one is engaged especially in physical labour affecting one’s capacity to work in a physical kind of job?
A. Yes, with increasing symptoms associated with degenerative change on the assumption that that’s what’s causing his increasing symptoms, yes, it would be increasingly difficult for him to work in physical labouring work.

Q. Without any traumatic episode such a degenerative condition may become symptomatic and force an individual who has such a condition to cease doing physical labour?
A. Yes.

47 The plaintiff, as I have earlier said, clearly has a spinal disability. However, there are on the medical evidence in this case issues in proceedings at common law as to its causal connection with the work at Concord Hospital, even if the employer be found negligent, and the degree of seriousness of the injury. Those were matters very much in the mind of Ms Vayanos in acting for the plaintiff and advising on the choice between him seeking workers compensation or modified common law damages. For instance, as Dr Piliotis recorded, the x-ray of the plaintiff’s lumbar spine on 1 December 1995, a few weeks after the alleged work incident, showed “a mild tilt of the spine to the right compatible with muscle spasm … no significant bone abnormalities are seen and the disc spaces, facet joints and sacroiliac joints appear normal” – that would seem consistent with the x-ray taken on 24 July 1992 which showed “a scoliosis convex to the left. No fracture detected” – and a CT scan, a perhaps more informative guide, of the lumbar spine on 7 December 1995 disclosed “facet joint degenerative change is noted at 3/4. At 4/5 there is a disc prolapse at L5/S1 with indentation of the L5 and S1 nerve root”.

48 Those developments in pathology were, on Dr Bodel’s evidence, consistent with an early degenerative condition by engaging in physical labouring work even absent any traumatic episode. As I understand it, even absent also any negligent conduct by the employer requiring physical labouring work to be done. Indeed, Dr Harris referred to “degenerative changes … precipitated by the nature of the work” and Dr Machart thought the back pain developed gradually rather than from a discrete incident where the plaintiff had constitutional degenerative changes in his back. Dr Machart, however, did accept the possibility the disc protrusion occurred from the November 1995 lifting activities but that that was dependent on the plaintiff being a true witness to his condition. Dr Bentivoglio, the treating specialist, considered the L5/S1 disc lesion developed from the repeated bending by the plaintiff at work. Dr Piliotis, the treating general practitioner, on the other hand, attributed the injury to the November 1995 incident.

49 Dr Johnston, Dr Searle and Dr Bodel, qualified either by the defendant as the plaintiff’s then solicitors or by the workers compensation insurer, all related the plaintiff’s back condition to the November 1995 work incident in the context of the nature and conditions of the work according to the history given by the plaintiff. Of course, that was in the absence of knowledge about the 1992 and 1993 complaints of back pain and the dependence on heroin for about 15 years. Also, Dr Johnston in September 1998 noted presentation by the plaintiff suggesting a “significant level of exaggeration and embellishment”.

50 In April 1998, Dr Bentivoglio assessed the plaintiff as having a 20 per cent permanent impairment of his back and a 15 per cent permanent loss of efficient use of his left leg. In September 1998, Dr Johnston assessed a 15 per cent permanent impairment of the back and between 5 and 10 per cent permanent loss of use of the left leg. In November 1997, Dr Searle assessed a 30 per cent permanent impairment of the plaintiff’s back and a 10 per cent permanent loss of efficient use of the left leg. In January 1998, Dr Bodel assessed a 15 per cent permanent impairment of the back and a 5 per cent permanent loss of efficient use of the left leg; those assessments by Dr Bodel were attributed as to one-third from constitutional changes unrelated to work and the remaining two-thirds to the November 1995 work incident.

51 Rather then acceptance of one assessment over the others, it would seem reasonable to take into account all assessments of permanent loss or impairment related to the work concerned as showing, overall, about 15 to 20 per cent permanent impairment of the plaintiff’s back and about a 5 to 10 per cent permanent loss in the efficient use of the left leg.

Workers compensation benefits

52 The plaintiff was paid wages by his employer following the November 1995 incident for absences due to the injury until he ceased work in early-May 1997. However, weekly payments of workers compensation were not made because, on enquiry by Ms Vayanos on 13 June 1997, the plaintiff had not completed a claim form until 6 June 1997 and it was then being processed with GIO General Limited as the insurer. On 15 July 1997, GIO accepted liability for the workers compensation claim and weekly payments together with payment of medical expenses were made.

53 On 23 December 1997, Ms Vayanos wrote to the insurer claiming lump sum compensation pursuant to the Workers Compensation Act – s 66 for 30 per cent permanent impairment of the back in the amount of $18,000 and for 10 per cent permanent loss of efficient use of the left leg at or above the knee in the amount of $7,500; and s 67 for pain and suffering. Dr Searle’s opinion was relied upon. On 20 February 1998 the insurer offered to settle the s 66 claim as to $6,000 for 10 per cent impairment of the back and $3,750 for 5 per cent impairment of the left leg – that counter offer was no doubt based upon the assessment by Dr Bodel made in January 1998. At this time, the plaintiff was in the Villawood Detention Centre but on 3 March 1998 he instructed Ms Vayanos to reject the counter offer by the insurer. Conciliation of the issue was proposed on behalf of the plaintiff on 26 March 1998 but on 3 April 1998 the workers compensation Resolution Service decided that the dispute was more appropriate for determination by the Compensation Court of New South Wales. The insurer on 14 April 1998 advised it was not prepared to increase its previous offer. On 24 April 1998, after instructions from the plaintiff, Ms Vayanos filed an application in the Compensation Court for relief under ss 66 and 67 in the terms originally proposed to the insurer and quantifying the s 67 claim at 75 per cent of a most extreme case. Otherwise, the plaintiff continued to receive weekly benefits plus medical expenses.

54 It was during this period of the chronology that the parties exchanged the reports of Dr Bentivoglio, Dr Searle, Dr Harris, Dr Frances Doull (radiologist as to CT scans on 20 May and 4 August 1997) and Dr Piliotis.

55 On 26 June 1998, when the plaintiff resigned his employment, the insurer ceased payments of weekly compensation benefits but those payments were restored on the plaintiff completing an employment declaration for payment direct to him rather than through the employer.

56 The hearing of the application under ss 66 and 67 occurred in the Compensation Court on 8 April 1999 and was settled in the sum of $100,000 by way of a commutation approved by Hughes CCJ. The settlement monies were paid to the plaintiff on 29 April 1999.

57 It was common ground that the benefits received by the plaintiff under the Workers Compensation Act totalled $137,403.45 made up of $12,652.74 for out of pocket expenses, $24,750.71 for wages and $100,000.00 commutation benefit.

Relationship between the parties

58 As indicated, the plaintiff retained the defendant on 6 May 1997 in relation to the injury sustained by him at Concord Hospital on 11 November 1995. He was seen by Ms Vayanos. She deposed that the plaintiff consulted the defendant because he had problems with money after his weekly compensation payments were stopped and legal advice was sought. From this initial meeting, as noted earlier, Ms Vayanos contacted the employer and weekly benefits were resumed shortly thereafter.

59 At the first meeting, the plaintiff accepted that Ms Vayanos asked him how the incident concerning his back occurred. Ms Vayanos recorded a view that the injury appeared to have arisen from the nature and conditions of the work rather than an isolated incident. I interpose that that view receives support, as I have earlier said, from most of the medical opinion. Ms Vayanos said she followed her usual practice by obtaining from the plaintiff his contact details, documentation held, letters from the employer and insurer and authority to access medical records.

60 Ms Vayanos said at the initial meeting, although the plaintiff had an accent, she had no difficulty in understanding him as she was familiar with clients who had English as a second language; she was satisfied he understood her as he responded to all questions appropriately and never requested an interpreter.

61 Ms Vayanos deposed to the following conversation at the first meeting:

Hariss: My friends have suffered injuries at work and they got money. They [meaning his employer] were negligent. The trolleys didn’t work. They didn’t give my any help.

Me: that might be right, but to succeed when the employer is at fault, you must have a serious enough injury to get the money. If you fail to show this, you will lose your case and you lose your rights to claim any lump sum payments in a workers compensation claim. We’ll have to see what the medicals show. We have three years form the date of the injury to claim negligence.

62 The plaintiff denied the reference to friends getting money and he did not remember talking about the trolleys. However, he agreed Ms Vayanos referred to this need for the injury to be serious enough, according to the medicals, to succeed when the employer was at fault; but he did not remember Ms Vayanos saying if he failed to show that he would lose the case and the right to claim lump sum workers compensation. He said she told him there were 12 months from the date of injury to claim negligence.

63 Ms Vayanos said she recalled the plaintiff repeatedly referred to Concord Hospital being “negligent” and they had a conversation, accepted in terms by the plaintiff, to the following effect:

Hariss: the hospital is negligent, they didn’t provide me with any trolleys for the heavy linen. Also I have done a sterilisation course and got my certificate. I know how to sterilise and they are not doing it properly.

Me: Whether the hospital is sterilising properly is not relevant.

64 Ms Vayanos gave evidence that throughout 1997 and 1998 she had conversations with the plaintiff during his frequent visits to the defendant’s office when he referred to a need for money and of being “sick of Australia. I want to go home to Indonesia. I want my money. Then I will go.” The plaintiff said “I don’t say it like that. I fighting to stay in Australia so long and until I get it now.” Of course, at this time the plaintiff’s resident status was far from settled, he had been in detention as an illegal immigrant, was subject to deportation orders, had served terms in prison for drug offences and it was not until 12 September 2001 he was granted permanent resident status. In acknowledging this, the plaintiff said if he were deported to Indonesia “I will sue from there.”

65 The plaintiff maintained that Ms Vayanos did not explain to him the difference between workers compensation and common law at all. He said “I don’t understand at all, I just say to them, ‘I want you to charge him with the negligence and if you could … have to put him in the gaol’”. Against that, Ms Vayanos said on more than one occasion she informed the plaintiff, who said “OK”, to this effect:

Adi, there is a difference between the Compensation Court and common law. In the Compensation Court, you can get a lump sum for injuries for your back, arms and legs and you can also get weekly payments. You don’t have to prove that your employer was negligent. Only that you were injured at work and that your injury is the type that you can get money for under the Workers Compensation Act. With a common law matter you might get a bigger lump sum but if you lose at common law you lose everything. I don’t think your injuries are bad enough for a common law claim. Let’s see what the medical reports say.

66 Ms Vayanos said she also advised the plaintiff, who again said “OK”, to this effect:

“Adi, the medical evidence doesn’t support a claim in negligence or common law as it is referred to. You need to meet the threshold for common law and the medical evidence does not support that. You have problems with your back which are not related to work. We are getting further medical reports. Your employer may be negligent, but if you injuries are not severe enough, you are not going to get any money at common law.”

67 In December 1997, after receipt of Dr Searle’s report of 27 November 1997, Ms Vayanos confirmed her earlier advice to the plaintiff as to the seriousness of his injuries not supporting a negligence claim and advising continuation of the workers compensation claim with a review on receipt of more medical evidence. She recommended commencing proceedings in the Compensation Court on the basis that although the plaintiff may not get as much money the outcome would be more certain for him. She said the plaintiff responded by saying:

I’m hurting, I have no money. I need money to live. I don’t know if I am staying in Australia or not. I need my money quickly … I want to be certain about getting my money. I want my money.”

68 On 3 March 1998, Ms Vayanos briefed Mr Malcolm Choat of counsel to advise and appear generally. Although the brief was entitled “In the Compensation Court of New South Wales,” Ms Vayanos said that having briefed Mr Choat on numerous occasions she knew that if the evidence indicated possible common law proceedings then he would raise that issue.

69 Mr Choat provided a preliminary advice on 7 March 1998 relating to the offer of settlement then existing from the employer as to s 66 of the Workers Compensation Act and suggesting further details be given to the employer as to the s 67 claim; a report from Dr Bentivoglio as the treating specialist on further examination of the plaintiff should be obtained. The plaintiff was provided with a copy of counsel’s advice.

70 Having in mind the plaintiff’s continuing problems with money and immigration issues, Ms Vayanos considered the Compensation Court proceedings should be commenced before obtaining Dr Bentivoglio’s report. And, so, on the plaintiff’s instructions, she filed on 24 April 1998 the application for determination in the Compensation Court. Progressively thereafter, she forwarded to Mr Choat copies of medical reports obtained for the plaintiff and those served by the employer.

71 On 10 August 1998, Mr Choat conferred with the plaintiff and Ms Vayanos; counsel provided a written advice on 11 August 1998. Not insignificantly, counsel noted the plaintiff to be a “vague historian” and with discrepancies in relation to dates of injury and presentation of pain in the back and leg. Ms Vayanos recalled Mr Choat commenting during the conference that a common law claim was not feasible because the medical opinions did not support a conclusion that the claim would exceed the necessary common law thresholds – proceeding by way of workers compensation was recommended. Indeed, in the advice, counsel noted the claim to be limited to ss 66 and 67.

72 It ought be noted that on 15 September 1998 the employer’s solicitors served on the defendant a copy of a radiological report from Dr J Talbot-Stern of the plaintiff’s lumbosacral spine on 16 May 1997. It stated:

There is mild scoliosis of the lumbar spine, with convexity to the left. No fracture or dislocation of the lumbar spine is seen. The disc heights are preserved. No abnormality is seen in the part of the sacrum which is visible.

73 That report is consistent with the radiological report by Dr Kuan at Royal Prince Alfred Hospital on 24 July 1992 referred to earlier following the alleged assault on the plaintiff at that time.

74 Importantly, with the service on the defendant of the reports by Dr Kuan, Dr Talbot-Stern and Dr Johnston, Ms Vayanos became concerned about the plaintiff’s credibility with the varying histories he had given and failure to advise previous injury to his back. Shortly after 28 September 1998, the plaintiff attended the defendant’s office and spoke to Ms Vayanos. She reported, again, his anxiety for money with certainty because he may have to leave Australia. The opportunity was taken by her, as she said, to further explain the situation when injury be sustained at work as between workers compensation benefits and damages at common law. The explanation was somewhat detailed and lengthy; there is no need to repeat it as it is fully set out in Ms Vayanos’ affidavit. Suffice it to say it covered the two different forms of relief, what was required for each and the implications of obtaining one over the other. Importantly also, the three year limitation period within which common law proceedings had to be commenced was mentioned. The plaintiff was said by Ms Vayanos to be against an operation; although he said the employer was negligent and caused his injury, “because I might have to leave Australia I need my money quick.” She suggested a second opinion be obtained from counsel.

Negligence of the employer

128 The finding made makes it strictly unnecessary to consider the negligence of Concord Hospital as the employer in any notional common law trial which may have been brought by the plaintiff. However, this aspect was fully argued and, so, I feel bound to shortly say something about it.

129 Earlier, I expressed the view that on the facts the plaintiff had barely an even chance in establishing negligence of the employer for an unsafe system of work. The evidence of the plaintiff himself would be crucial in this respect. However, I do not consider it reaches a sufficient level of credibility or cogency on the probabilities to make out a case.

130 The plaintiff’s narration of what occurred, originally said to be in October 1995 but later refined as 11 November 1995, was vague and lacking in detail. It is true he was lifting a bag of soiled linen onto a trolley and that the trolley was broken when he felt pain in his back, but really no more appears than that. How and in what way, one may ask, was the employer negligent. It is true that an employer has a duty to provide a safe place and system of work for an employee exercising reasonable care for his own safety and it may be added that the duty is of a relatively high degree and non-delegable in nature: see Nicol v Allyacht Spars Pty Limited (1987) 163 CLR 611; Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301; Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1; and O’Connor v Commissioner for Government Transport (1959) 100 CLR 225. As Windeyer J observed in Sungravure Pty Ltd v Meani (1964) 110 CLR 24 at 36:

A safe system of work is one that is safe for an average workman taking reasonable care for his own safety.

131 The established system of work is far from clear from the plaintiff’s evidence and the effect of the broken trolley, even how it was broken, was not stated. The plaintiff said he found the work too heavy – and that may well have been so for him, particularly if he had, as the medical reports suggest, a pre-existing injury with constitutional/degenerative changes in his low back. But, in my view, that does not mean there was necessarily an unsafe system of work, rather it shows the work was unsuitable for the plaintiff himself. I find no negligence to have been shown in Concord Hospital as the employer so that any common law claim for damages arising out of the November 1995 incident would have to be unsuccessful.

132 Of course, workers compensation is provided as the available remedy where an employee suffers injury arising out of or in the course of employment even absent negligence or fault in the employer. An injury so sustained from the nature and conditions of work, particularly over a period of time, is the classic situation for the application of workers compensation relief. Here, the medical reports support this approach.

Damages

133 Ordinarily, and though liability in a defendant not be found, one would proceed to assess damages in the event the matter were to go further. However, in the particular circumstances of this case, in light of the findings made, my view is that to do so would not be appropriate. I will not do so because I see no utility in it.

134 A principal finding against the plaintiff has been his credibility. Also, a view of the medical reports, as recited earlier, would indicate to me a lack of support for the total incapacity and unemployability claimed by the plaintiff in his evidence to such an extent that the thresholds set out in ss 151G and 151H of the Workers Compensation Act for modified common law damages have not been exceeded. Whether that be so depends very much, it seems to me, on findings as to the plaintiff’s evidence. In light of my findings, I simply see no utility in my going further to assess damages. I think it would be unfair to the plaintiff to so do if otherwise he were successful in establishing liability against the defendant and for the negligence of the employer.

Conclusion and orders

135 For the foregoing reasons, I conclude that the defendant did not breach his professional duty towards the plaintiff in the handling of the plaintiff’s case arising out of the alleged incident at Concord Hospital in November 1995. The plaintiff’s claim must fail and the defendant is entitled to a verdict accordingly.

136 I will hear the parties on costs before making final orders.

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29/06/2007	-	Final orders made. - Paragraph(s) Final orders:1) Verdict and judgment for the defendant against the plaintiff.2) Plaintiff to pay the defendant's costs of the action.
18/09/2008	-	Judgment titled amended due to database issues. - Paragraph(s) None.