John Ross La-Verty v Livestock and Meat Authority of Queensland
[2000] QSC 20
•1 March 2000
SUPREME COURT OF QUEENSLAND
CITATION: John Ross La-Verty v Livestock and Meat Authority of Queensland [2000] QSC 020 PARTIES: JOHN ROSS LA-VERTY
(plaintiff)
and
LIVESTOCK AND MEAT AUTHORITY OF QUEENSLAND
(defendant)FILE NO: 1905 of 1995 DIVISION: Trial Division DELIVERED ON: 1 March 2000 DELIVERED AT: Brisbane HEARING DATE: 10, 11, 12 February 2000 JUDGE: Chesterman J ORDER: Judgment for the defendant CATCHWORDS: TORTS – NEGLIGENCE – DAMAGE – CAUSATION – GENERALLY – plaintiff injured in accident at abattoir when carcasses fell off rail system - whether accident exacerbated pre-existing back condition or whether accident caused fresh injury – damages assessed.
Workplace Health & Safety Act 1989 s 9
COUNSEL: Mr Douglas SC and Mr Holyoak for the plaintiff
Mr Campbell for the defendantSOLICITORS: Mr Smith of McInnes Wilson for the plaintiff
Mr Balaam of Heiser Bayly Mortensen for the defendant
CHESTERMAN J: The only live issues in this action are whether the plaintiff sustained an injury to his lower back shortly before he ceased working for the defendant and, if he did, the amount of damages he should recover. Although the defendant did not admit that its system of work was unsafe it did not dispute the plaintiff's evidence to that effect. The real contest between the parties is whether the plaintiff suffered some hurt late in 1992 by which a pre-existing back condition was exacerbated, or a fresh injury was inflicted.
The defendant has for years owned and operated an abattoir at Churchill near Ipswich. The plaintiff was employed there as a chiller hand for about 10 years until he ceased work on 16 November 1992. He attributes the onset of disabling back pain to an event which occurred on 16 September 1992.
The plaintiff's work as a chiller hand required him to push sides of beef, which were suspended from an overhead network of rails, along those rails to various processing points in the abattoir. By the time carcasses reached the chiller room they had been bled, skinned, dehoofed and sliced longitudinally in two. The average weight of a side of beef was about 110 kilograms.
The overhead rails consisted of a single steel track suspended from the ceiling. They were about 11 feet above the floor. The carcasses were suspended beneath a roller which moved along the top of the rails. Attached to the roller and beneath it was a hook on which the sides of beef were impaled.
The rail network allowed the beef to be moved to different parts of the abattoir. Rather like points in a railway system there were gates which allowed the beef to be pushed along one length of rail rather than another. If a gate were "open" the roller would move along the rail in a straight line. If the gate were closed a short span of rail would be inserted in a gap between adjoining rails and the roller and its load would be diverted, left or right, onto a different part of the rail network.
Gates were manufactured of galvanised steel and were of a rudimentary construction. Each consisted of three parts connected by two bolts one of which operated as a hinge and the other as a pivot. The gate was, of course, 11 feet above the floor. A lanyard was attached to a steel loop at the end of a lug welded to the top part of the gate. It was attached by a horizontal bolt which operated as the hinge to the middle section at one end of which was a vertical bolt which operated as the pivot. The bottom part was fixed. When the lanyard was pulled down the upper most part of the gate moved upwards in a vertical plane on the hinge. As it did it pushed the middle, pivoting, part forward. When fully advanced that part supplied a span of rail over which the roller would run to change direction. By jiggling the lanyard, or pulling it slightly sideways, the top plate would move downwards into a horizontal position where a span of rail would slot into the adjacent track so that a roller could move over it in a straight line.
With constant use the nuts which held the hinge and pivot bolts in place would loosen. The result was that sometimes a gate would only partially open or close so that the span of rail would not fit neatly into the appropriate slot. When that happened the roller would encounter a gap through which it fell, bringing down the side of beef.
The phenomenon was not uncommon. All the witnesses called who had worked at the abattoir had experienced it. Some, like the plaintiff and Mr Towers, had been hit by the falling rollers and/or carcasses.
When a fall occurred one of the maintenance fitters employed by the defendant would be summoned. He would bring a ladder and spanner and tighten the nuts. It would take about fifteen minutes to mend the gate.
The gates nearest the entry to the chiller room carried the most traffic. The nuts on those three or four were most prone to work loose and were the cause of most falls. The defendant did not implement any system of inspection or preventative maintenance. Its fitters responded to a failure in the gates but were not directed to inspect the bolts on a regular basis to prevent their working loose. I am satisfied from the evidence of Mr Collingwood that there was time available early in a shift when a routine inspection of the gates could have occurred without disrupting production. The gates could have been inspected and, if necessary bolts tightened, as part of a routine programme. The gates most often used could have been inspected more often than others. Such a routine inspection was an obvious precaution that would have taken little effort and involved no cost. I am satisfied that such a precaution would probably have prevented the nuts loosening to the extent that the gates did not fully open or shut.
The defendant knew that the bolts worked loose and that carcasses fell as a result. It also knew that on occasions its employees had been injured by just that occurrence. It had available to it a cheap and convenient means of preventing the risk of such injury but did not implement it. The defendant failed to provide a safe system of work and failed to ensure the plaintiff's safety at work as required by s 9 of the Work Place Health & Safety Act 1989.
As I mentioned the real contest is whether the plaintiff was injured by reason of the defendant's negligence and/or breach of statutory duty. The plaintiff's account is that on 16 September 1992 he was pushing four sides of beef along the rails in the chiller room. He opened the gate "to go straight ahead and as soon as the first roller hit on the .. gate it half shut and half opened and then .. before you could .. blink .. you had the whole four down on top of me". He was knocked up against the adjacent wall and fell to the ground. A workmate, Mr Towers, came to his aid and helped him to his feet. When Mr Towers first arrived the plaintiff was lying on the ground "a little bit stunned". He got to his feet after a few minutes and felt groggy. The production foreman, Mr Dagg also arrived. He enquired whether the plaintiff had been hurt and was told that given a few minutes he "should be right". The plaintiff was able to resume work and kept on working until 16 November. He did, however, feel sore in the lower part of his back and legs. The pain persisted and increased until on 16 November he was unable to continue. On that day he consulted a doctor. That was the first occasion he had sought medical assistance since he was hurt on 16 September.
Mr Towers worked for the defendant between April 1990 and September 1996 as a chiller hand. He knew the plaintiff because they were fellow workers but the two men were not friends. Mr Towers recalls that sometime between two and seven weeks prior to the plaintiff ceasing work he was hit by an object falling from the overhead rail. Mr Towers was at the entrance to the chiller room where the plaintiff was working. He heard what sounded like "carcasses coming off the rail". He went into the room and saw the plaintiff on his feet or "partially getting off the floor". Two sides of beef were on the floor and the plaintiff was "getting up away from them". The plaintiff and the sides of beef were beneath a gate. The plaintiff seemed "a bit dazed and groggy and not real stable". Mr Towers appears to have assumed that the plaintiff's condition had been caused by a blow to his head. (T109.55). He remembered that the plaintiff appeared healthy and strong before this episode and was able to carry out his duties without difficulty. Things were different afterwards. The plaintiff "had trouble pushing beef along and just struggled at work. He just couldn't handle that work in the chiller".
On 5 January 1983 the plaintiff had been the victim of a similar fall. He was training a new employee who had "left the gate open". Presumably the plaintiff was describing a circumstance in which the trainee had not been alerted to the need to ensure that the gate was completely open or shut. Both men were behind a number of sides of beef which they were pushing along the rail. When the lead roller came to the gate it fell, as did the others. The plaintiff was thrown "sort of up against the wall and the roller struck (him) on the head splitting (his) protective helmet". The plaintiff said he had "a small amount of time" off work which he estimated as one or two weeks. He suffered "a bit of pain" in his back as a result, but it was very limited and after his one or two week period of recuperation he returned to work. Between then and 1992 he had back pain on "odd occasions" but he "had very little time off" work.
The defendant suggested that the plaintiff had invented his account of injury by falling carcasses in the weeks prior to his leaving work. I am, however, persuaded that an incident something like that described by the plaintiff did occur. There are two reasons. The first is Mr Towers' testimony. I am not inclined to think that he joined with the plaintiff in a conspiracy to give perjured evidence. Such a possibility was not put to him. In fact, his evidence was not substantially challenged in cross-examination.
The second reasons is that the defendant's own register of accidents shows that the plaintiff was involved in an accident in the relevant timeframe. The defendant’s foreman recorded in a notebook any accidents which came to their notice. If a foreman did not himself observe an accident it would ordinarily be reported to him and he would make a note of it. The book was kept in a cabinet on the killing floor. All the foremen had access to it and would make a note of any incident which they observed or which was reported to them. Periodically the book would be sent to the office where a member of the clerical staff would transpose the notations into the register. There is such an entry which concerns the plaintiff for 28 October 1992. It shows that he suffered an injury in the chiller room; that he suffered an abrasion to the head and that he was "hit on head with roller".
Despite an extensive search no trace can be found of the foremen's notebook. However, if the defendant's system worked as intended, the incident which the plaintiff describes would have been reported to a foreman who would have made a note which would, in time, have been passed to the office girls for transcription into the accident register. Indeed, it will be recalled, the plaintiff asserted that Mr Dagg witnessed the immediate aftermath of his accident. There is no entry for the plaintiff in September or October 1992 save for the one just discussed. The description of that incident strongly suggests that it was of the type recounted by the plaintiff. For a roller to hit him on the head it must have been dislodged from the overhead rail.
The register of accidents is in a standard form. The information which comes from the notebook is made to fit into the particular categories into which the form is divided. There is obvious scope for error in making the fit. Equally there is scope for error in the foreman's description, particularly if it was of an event relayed to him and not observed.
Nevertheless the register is contemporaneous evidence of an incident on 28 October 1992 similar to that which the plaintiff describes.
Recognising the force of this point counsel for the plaintiff sought leave to amend the statement of claim to allege that the plaintiff was injured in an incident between about 16 September and about 28 October 1992. The defendant opposed the application because the plaintiff had, in his evidence, asserted confidently that he was injured on 16 September. The plaintiff's case proceeded on the more general basis that he was injured some weeks before 16 November 1992. The defendant could identify no prejudice to it should the amendment be allowed and I will give the plaintiff leave to make the desired change.
I am satisfied that the plaintiff did receive a blow while working in the chiller room on 28 October 1992 when a roller dislodged from a defective gate and fell on him. The only debate of substance is whether the blow is the reason why the plaintiff complains of back pain and has given up work.
Although his evidence is that he was fit and essentially pain free prior to the incident what he said about his condition closer to the event is quite different.
The earlier accident in January 1983 was more severe than the plaintiff had remembered. He was off work for a little over six weeks. In July that year he lost 10 days off work with a strained back which he attributed to the earlier incident. He sought medical attention and was prescribed rest, psychotherapy and an anti-inflammatory drug. Five years later, in March 1988 the plaintiff consulted another general practitioner for the "recurrence of an old back injury" which "first occurred after four 'bodies' fell on him". In his claim for compensation the plaintiff said that the condition had occurred "over a period of time" and was, as he told the doctor, the recurrence of an old back injury.
On 14 March 1989 the plaintiff reported an injury to his back and had three days off work. On 5 May 1989 he reported to a local doctor that he had chronic lower back pain for which Brufen, an anti-inflammatory, was prescribed.
On 15 August 1991 the plaintiff again lost time from work because of back pain. In his claim for compensation he described it as "recurring back pain in my lower back" which was "from a past injury which happened at work". In a statement given to an officer employed by the Workers' Compensation Board ("the Board") on 19 December 1991 the plaintiff said:
"In August 1991 I noticed I was starting to get spasms in my back. I was working in the chillers .. and I do a lot of pushing bodies along in the freezer ... I have been getting back pain from time to time and I am on medication ... I have been taking Brufen which didn't seem to help. Over a period of a couple of weeks I noticed the spasms and backache getting worse. I had just been getting prescriptions for medication from time to time. However on 15 August 1991 I found I couldn't get up in the morning without the nerves pinching in my back ... ."
On 18 August 1992 the plaintiff consulted Dr Yeates, a general practitioner at Boonah, complaining of pain. He apparently reported that he had had back problems "off and on for years". He complained of aching limbs, apparently legs, the right worse than the left. It also appears that he had a chest infection for which antibiotics were described. A different anti-inflammatory drug was prescribed, presumably for back pain. It does not appear that the plaintiff lost any time off work.
On 18 November 1992, two days after the plaintiff ceased work, he went to the defendant's office to make a claim for workers' compensation. The form was filled in by Mrs Sharman a clerk who wrote down the information given her by the plaintiff at the time she wrote it down. He then signed it. The details of injury are said to be "lower back" which occurred "over a period". In answer to the question "What were you actually doing when the injury was sustained?" the answer was "Over a period of time the back has got worse". To the next question, "How did the injury occur? The answer was "About eight years ago two beasts fell on back and it has got worse." An identical account is given in the employer's report to the Board. It was filled in the next day, 19 November 1992 by Mrs Sharman from the information provided to her by the plaintiff.
On 27 November 1992 the plaintiff attended an officer of the Board and gave details of his claim for compensation. What he said was written down in the form of a statement by the officer and signed by the plaintiff. It read:
"I suffered a back injury in January 1983 when bodies of beef fell on my back. I was on compensation for a short period of time. The injury settled down and on the odd occasion I get a sharp pain down the right side of the leg. Since 1983 I have had two separate back claims ie. 1989 and 1991 which were unrelated to the incident of 1983. These other injuries were muscular.
About a couple of months ago I began to experience pain in the lower right side of the back along with sciatica. There was no specific incident however I put it down to the heavy work I do at Ipswich Regional Abattoir . ... about 2 weeks ago I woke up in the morning when I felt severe pain in the right lower region ... I consider this injury is similar to the injury of 1983 and could be due to the injury suffered then ... ."
The plaintiff complained of persisting back and leg pain after ceasing work. He consulted his local general practitioners in Boonah and was referred to Dr Leigh Atkinson, a neurosurgeon who saw him on 18 December 1992, and noted that the plaintiff had told him that:
"He injured his back in 1983 when two carcasses fell on him. He has had intermittent back pain since then. Two months ago he developed further pain radiating down into the right thigh."
On 11 January 1993 Dr Atkinson again saw the plaintiff and in his report of 12 January recited the history given him by the plaintiff. It was that:
"He injured his back in 1983 when two carcasses fell on him. He developed back pain which has been present since then. Two months ago he developed pain radiating down the right sciatic distribution. He has now been off work for the past 8 weeks. He continues to complain of pain. He feels that he could not return to work."
The plaintiff's general practitioner also referred him to Dr Ryan an orthopaedic surgeon. He reported on 4 February 1993 that the plaintiff:
"Dates his injury from 1983 when carcasses fell on him at work and he was off work six weeks. His pain started when he was at work and developed over about two months from September 1992."
In 1995 the plaintiff was examined by Dr Reye, an orthopaedic surgeon, at the request of the Board. Dr Reye's report of 24 April 1995 says this:
"He stated that, in January 1983, carcasses he was pushing along an overhead rail fell and struck him on the back of the neck and in the dorsel and lumbar region. He was off work for a short period but was then good. He had had two or three similar occurrences since. From about five months after the first incident he began to notice intermittent pain in the lower back on straightening after bending. This gradually increased in frequency and severity especially over the two months prior to his ceasing work in November 1992, having woken with severe pain on 17 November 1992."
The plaintiff did not dispute that he gave the histories which the doctors have recorded. The action was commenced by the issue of a writ on 14 September 1995. The accounts given by the plaintiff subsequently are quite different. On 18 November 1996 the plaintiff was examined for forensic purposes by Dr Gillett, orthopaedic surgeon, who reported:
"(the plaintiff) states that in late 1992 he was working for the Ipswich Regional Abattoir where he had worked for some 23 years. the last 10 was (as) a chiller hand. His job was to pack the chiller room with carcasses of beef. On this day, four sides of beef fell onto him. That they weigh approximately 100 kilograms per side. He was hit from behind and was knocked sideways towards the ground. He couldn't get up for a period of time and then got up and had a sore lower back and kept working. He worked on for a two week period and just progressively got worse."
Mrs Coles, an occupational therapist, who saw the plaintiff on 14 October 1997 reported, on 12 January 1998, that the plaintiff:
" ... confirmed that he was injured on or about September 1992. He said that he was working as a chiller hand .. when four sides of beef fell on him and knocked him against a wall. He felt pain down both legs .. and slight back pain. It gradually became worse over two weeks and .. he had to leave work."
Dr Olsen, a consultant in occupational medicine examined the plaintiff on 15 December 1998 and reported that the plaintiff:
"... was injured at work in an incident which occurred one to two weeks prior to 16 November 1992. This date is the date that (the plaintiff) last worked. The incident occurred in the order of 10 days prior to that."
The plaintiff must prove that he was injured as a result of the incident which I have found occurred on 28 October 1992. He has described two wholly different origins for his present complaints of back pain and disability. He first ascribed his difficulty to the accident of January 1983 in which his back was hurt. The plaintiff is slightly built and his work was relatively heavy. He described a combination of these factors and the earlier accident as being to blame for his incapacity. It was only after he commenced legal proceedings which offered a financial recompense should he prove an injury caused by the defendant's negligence within three years that he claimed to have been hurt by falling carcasses in November 1992.
It is, in my opinion, probable that the first version given by the plaintiff before he was distracted by the possibility of a substantial award of damages is the correct one. If the plaintiff was injured three weeks or so before he ceased work, or even if, as he first thought, two months before that event, and that he had experienced increasing pain and disability from that incident until he could no longer continue at work, I do not believe it possible that the plaintiff would not have reported the fact when claiming compensation or when seeking assistance from the doctors. At a time when his only concerns were to obtain treatment for his condition and compensation for his lost wages he gave a consistent narration which omitted any reference to a back injury in the few weeks or months prior to 16 November 1992. He could not have forgotten it. Nor could he have overlooked its significance if in truth his symptoms dated from it.
The plaintiff sought to explain his earlier answers by saying that when providing his account to the Board’s employees and the doctors he was in considerable pain and may not, for that reason, have given an accurate history. With respect to the claim for compensation made on 18 November 1992 the plaintiff asserted that he had spoken to a clerk at the Board’s office in Ipswich a day or so earlier and provided information to support a claim for compensation. He was then given the form to sign already filled in. He signed without reading the brief description of the circumstances contained in the form.
I cannot accept these explanations. It is clear from Mrs Sharman’s evidence that the plaintiff himself gave her the information which she wrote on the form while he was sitting or standing near her desk. Nor is it feasible that when giving the doctors an account of the origins of his pain and disability he would not recall, or not think it worth mentioning, that he had been deluged by butchered beef which had knocked him to the ground bringing on intractable pain.
There are some aspects of the plaintiff’s testimony which cause me to have reservations about it. In the first place it was his case that the production foreman, Mr Dagg, came upon the scene of the accident shortly after it occurred. Mr Dagg had no recollection of such an event. He did recall the plaintiff being injured by falling beef but dates it many years before November 1992 and believes that 1983 was the “timeframe” in which that incident happened. He cannot recall making a note of any incident involving the plaintiff and falling beef in 1992.
Another curiosity about the plaintiff’s evidence is that he claimed that Mr Dagg had made a record in the foreman’s notebook of his 1992 accident. Notwithstanding this, some time later, he approached another foreman, Mr Retschlag and repeated to him what had happened to ensure that Mr Retschlag made a note of it in the book. His avowed reason for doing so was that he was not sure that Mr Dagg had recorded the incident. It was never satisfactorily explained why the plaintiff would not have asked Mr Dagg whether a note had been made and if not, to ask him to make it. Nor is it easy to understand why the plaintiff would bother Mr Retschlag with the tale when he had nothing to do with the incident. In the event it is note worthy that Mr Retschlag did not corroborate the plaintiff’s evidence. When the plaintiff gave evidence he knew that the defendant had been unable to locate the notebook. I have a suspicion that this aspect of the plaintiff’s evidence was a self serving attempt to reinforce his assertion that he hurt his back late in 1992.
The third aspect concerns a similar attempt. On 16 November 1992 the plaintiff consulted Dr Yeates. The doctor’s consultation notes are in evidence. The note for that date reads:
“Painful back radiating to R leg. On examination non tender straight leg raising normal. Scoliosis obvious clinically. For x-ray. Beef fell on back”.
The last four words are in different handwriting. The plaintiff’s solicitors requested a Dr Carne, presumably a partner of or successor to Dr Yeates, to provide a typewritten transcription of the notes. This was done on 30 October 1996. The transcript (which is wrongly dated 16 October 1992) does not include the words “beef fell on back”. I infer that the plaintiff informed someone in Dr Yeates’ practice of that additional information, probably on an occasion when he consulted a medical practitioner after October 1996. The only obvious motive is to generate apparently contemporaneous corroboration for the plaintiff’s claim.
In the result I am not satisfied that the incident of 28 October 1992 precipitated or exacerbated pathology in the plaintiff’s back. I am not satisfied that that incident was a cause of the plaintiff’s present complaints. I am not prepared to accept the plaintiff's version of injury sustained in that incident which he gave in evidence.
Counsel for the plaintiff placed considerable reliance upon the evidence of Mr Towers who, it will be recalled, said that he noticed the plaintiff working with difficulty after the incident whereas before it he appeared untroubled. Although I expect that Mr Towers has given his honest recollection it is not sensible to prefer a nine year old memory of his observations of a fellow worker which, at the time, he had no particular interest in observing, to a contemporaneous verified account provided by the person in the best position to know what his condition was and what had caused it. That is, it seems preferable to accept the plaintiff’s signed, written account of what led to his ceasing work.
It follows that the plaintiff has not proved that the defendant’s unsafe system of work has caused the injuries of which he complains. There must, accordingly, be judgment for the defendant.
I should say something about quantum which I will assess briefly on the hypothesis that the plaintiff did, contrary to my findings, suffer a back injury on 28 October 1992.
It is worth noting that Dr Atkinson found evidence of abnormal illness behaviour. Similarly Dr Reye who, as I mentioned, saw the plaintiff in April 1995 at the request of the Board noted that “tests for a non-organic element were markedly positive”. Dr Dickinson who examined the plaintiff in August 1998 at the request of the defendant made the same finding. He noted “(the plaintiff’s) lumbar spine appears stiff, but many of the physical findings reflect illness behaviour and probably hyperbole”.
There is more than a hint in these reports that the plaintiff is able to do more than he admits and thus his decision not to work is more deliberate than forced. Nevertheless as I understand what is required by this hypothetical assessment of damages I should ignore this evidence which I would otherwise be inclined to accept. The facts as I find them to be are that the plaintiff was not injured in 1992 but did suffer a degree of back pain which troubled him at work. The pain had been with him since 1983, on an off, increasing in frequency and severity. His disability is not as severe as he described but what work he is actually fit for and whether he could obtain it were not matters explored in evidence. The hypothesis on which I must assess damages is that the plaintiff suffered an injury on 28 October 1992 which led within weeks to his incapacity for work. Consistent with this hypothesis I must ignore the evidence that he has exaggerated his symptoms and degree of disability.
The plaintiff’s account was that he worked for some two months after his accident. The period must have been three weeks. He worked with increasing pain which began to radiate into his groin and included his left leg, having initially involved only the right. The pain was so severe at times that he was unable to move. He consulted his general practitioner, Dr Yeates who referred him to Dr Atkinson who did not believe the pain could be helped by surgical intervention and recommended an early return to work programme. Dr Yeates sought a second opinion from Dr Ryan who thought the symptoms were due to disc degeneration with no prolapse and no nerve root pressure. Dr Ryan recommended a rehabilitation programme with the object of the plaintiff returning to work within a few weeks.
Apparently unsatisfied with these opinions the plaintiff was referred to Dr Blue who thought his symptoms were due to a lumbo sacral disc derangement and requested a MRI scan. This revealed gross degeneration of the lumbo sacral disc and early degeneration at L 4/5. Dr Blue performed a spinal fusion of L4 to S1.
The plaintiff is left with low back pain radiating to both legs as far as the ankles. He has difficulty with sensation in his legs which makes him prone to fall over. The pain is present constantly but varies in intensity. He is unable to sit for any length of time and he cannot drive long distances. The plaintiff described his condition as being totally disabled for the 12 months following his leaving work. The operation performed by Dr Blue improved things. Before it he was bent over with pain but afterwards could straighten up. A brief attempt to return to light work was unsuccessful. His activities are restricted. He lives in the village of Kalbar in a rented house. He spends his time pottering around the house and garden. He performs household chores, though slowly and with the adoption of unusual postures to avoid bending and lifting. His only recreation is fishing. His pain has affected his sexual activity. He is separated from his wife and lives alone. He has discomfort while sleeping and puts a pillow between his legs to ease the pain.
The plaintiff was born on Christmas day, 1950. He was 42 when he stopped work and is now 49. He left school at 14. His only occupations have been as a manual labourer.
Doctor Gillett whose report is principally relied upon by the plaintiff thought he had suffered aggravation of pre-existing degenerative changes in the spine which pre-existed the incident of late 1992 and occurred at two levels. Doctor Gillett thought that the incident described by the plaintiff would be consistent with further derangement of the spinal processes and that the incident had accelerated the degeneration by a period of some five to ten years. In oral evidence, when the doctor was made aware of the plaintiff’s complaints of back pain between 1983 and 1992, he shortened the period of acceleration to about five years.
I therefore assess damages on the basis that the plaintiff’s condition has been brought forward by five years. Without the alleged incident he would have been 47 when forced to give up work rather than 42 and in those five years his enjoyment of life would not have been hampered by pain.
The assessment is:
Pain, suffering and loss of amenities $30,000.00
Interest on $30,000 at 2% for 7 years $4,200.00
Past economic loss ($345 net per week for 5 years) $89,700.00
Interest on past economic loss (after deduction of receipts from
the Board and Department of Social Security of $40,000 approx.) $7,500.00
Past loss of superannuation benefits (6% of $89,700) $5,382.00
Special damages $21,141.85
Interest on special damages paid by plaintiff $597.55
Fox v Wood component $8,893.25
Past care $3,000.00
Interest on past care $444.00
Total $170,858.65
Less refund to Board $83,072.48
$87,786.17
There will be judgment for the defendant.
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