KOCZWARA v VYSO Pty Ltd - [2001] WADC 17

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: KOCZWARA -v- VYSO PTY LTD [2001] WADC 17

CORAM: COMMISSIONER GREAVES

HEARD: 20-22 NOVEMBER & 6 DECEMBER 2000

DELIVERED : 8 FEBRUARY 2001

FILE NO/S: CIV 4361 of 1998

BETWEEN: ROBERT GERALD KOCZWARA
Plaintiff
AND
VYSO PTY LTD
Defendant

Catchwords:

Workers' compensation - Employer's liability at common law - Serious disability - Fracture of right medial malleolus complicated by sympathetic dystrophy and infection - Ankle injury contributing to multifactorial back pain aggravated by excessive weight - Pain in ankle and back after exertion - Plaintiff unable to walk for long periods of time without pain - Plaintiff prevented from continuing in pre-accident employment as labourer - Considerably reduced capacity to compete for alternative work - General damages for pain and suffering 15 per cent of a most extreme case $38,473.50 - Future pecuniary loss $240,526.60 - Total award $447,866.66

Legislation:

Workers Compensation and Rehabilitation Act 1981 s 93D(1)(2)(b) (repealed)

Result:

Judgment for plaintiff

Representation:

Counsel:

Plaintiff: Mr R E Keen
Defendant: Mr T Lampropoulos

Solicitors:

Plaintiff: D'Angelo & Partners
Defendant: Downings Legal

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

Black v Motor Vehicle Insurance Trust [1986] WAR 32
Jongen v CSR Ltd & Anor (1992) A Tort Rep 81-192

Case(s) also cited:

Grincelis v House (2000) 74 ALJR 1247
Husher v Husher (1999) 73 ALJR 1414
Linsell v Robson [1976] 1 NSWLR 249
Nolan v Hamersley Iron Pty Ltd [2000] WASCA 304
Purkess v Crittenden (1965) 114 CLR 164
Thomas v O'Shea (1989) A Tort Rep 80-251
Watts v Rake (1960) 108 CLR 158

COMMISSIONER GREAVES:

Introduction

The plaintiff seeks damages against his former employer independently of the Workers' Compensation and Rehabilitation Act 1981. It is a claim to which Part IV, Division 2 of the Workers' Compensation and Rehabilitation Act 1981 applies, prior to the repeal of s 93D, s 93E and s 93F of that division by the Workers' Compensation and Rehabilitation Act 1999 s 32(5). Pursuant to s 93D(1) of the Act prior to its amendment, damages can only be awarded to the plaintiff if his disability is a serious disability. Pursuant to s 93D(2)(b) of the Act prior to its amendment, a disability is a serious disability if, and only if, the future pecuniary loss resulting from the disability is of an amount that is at least equal to the prescribed amount.
Liability is not in issue and counsel were agreed that in accordance in Part IV Division 2 of the Act prior to its amendment, the plaintiff is entitled to an award of damages for pecuniary and non‑pecuniary loss if, and only if the disability which he has suffered in consequence of the admitted negligence of the defendant has resulted in a serious disability within the meaning of the Act, prior to its amendment.

The injuries suffered by the plaintiff and his disability

The case for the plaintiff in short is that injuries which he sustained on 12 June 1997 in the course of his employment with the defendant permanently destroyed his earning capacity. There is now no dispute that on that day the plaintiff was working at the Bunbury wharf assisting in the construction of a ship loader, which incorporated a shuttle weighing approximately 30 tonnes. The plaintiff was standing in front of the shuttle in order to place a wedge under the wheel of the shuttle as it moved into position. The shuttle travelled directly towards the plaintiff when his right foot was caught between the shuttle and a beam. The plaintiff gave evidence of these facts and said further that he guessed he was trapped for three to four minutes. He said he panicked a bit and tried to pull his foot out. He added: "… At the time I didn't realise it but I pulled muscle tendons in my back."
The plaintiff was admitted to Bunbury Hospital under the care of Dr Bairstow and Dr Thompson, orthopaedic surgeon. On 14 June 1997 Dr Thompson reported in part that the right medial malleolus fracture was significantly displaced but under anaesthetic the very large medial malleolus fragment was reduced into a satisfactory position and held with a 16 millimetre AO cancellous screw and washer, which appeared to give good stability.
The plaintiff gave evidence that he was in hospital for about 10 days during which he suffered severe pain in his ankle, taking 12 to 14 Panadeine Forte a day. He said that because of the pain in his ankle and foot, he wasn't really concerned at the time about his back. He said he could not get out of bed because all the muscles had been pulled in his back and they were all stiff. After discharge from hospital, the plaintiff said he had difficulty with underarm crutches and with his back, so he switched to elbow crutches and a wheelchair. After four weeks, he had the back slab removed from his right leg which was purple and black up to his knee. He said Dr Thompson referred him to the pain specialist, Stephanie Davies, because Dr Thompson thought the plaintiff could have developed reflex sympathetic dystrophy. The plaintiff said he experienced a hot and cold tingling sensation in his right foot up to the knee. He said he also experienced sharp knife like pains in the foot which continue to the present. The plaintiff told Dr Thompson that there was considerable improvement in his right ankle following the first sympathetic block administered by Dr Davies.
Dr Thompson reported on 21 August 1997 that a check x‑ray showed excellent alignment and the ankle fracture was joining up well. The plaintiff said that he could get more movement out of the foot without all the pain. He had three sympathetic blocks following the third of which he developed an infection which caused his foot to change colour and swell. He experienced throbbing and the pain increased tenfold. The pain occurred in his big toe up to his ankle and then to his knee. Sometimes the pain occurred on the other side of his foot. On examination on 28 October 1997, Dr Thompson found that the plaintiff's foot still looked a bit purple. The plaintiff had regained virtually the full range of ankle and subtalar movement. There was still significant swelling around the ankle and mid‑foot. The plaintiff gave evidence that his foot continued to get hot and cold. The plaintiff undertook a pain management course including pool therapy, which continued until recently. By January 1998, Dr Thompson found that the plaintiff's foot looked a much more normal colour than he had seen it before. There was still a moderate amount of swelling. The plaintiff could just about get his foot to the neutral position and had full plantar flexion. He said subtalar movements were about a third of what he would expect. By March 1998 x‑rays showed that the fracture was fully healed and in good position. By 28 April 1998, the plaintiff walked into Dr Thompson's surgery without a crutch and examination revealed that his ankle was not swollen and he had virtually regained the full range of movement. Nevertheless, pain and swelling appears to have continued in the plaintiff's right leg which the plaintiff said was aggravated by walking any distance. Dr Thompson reported on 13 October 1998 that in his opinion it was really quite difficult to work out why the plaintiff was having so much trouble.
Twelve months later, in his report of 1 September 1999, Dr Thompson stated that he found assessment of permanent residual disability in the plaintiff very difficult because the initial injury was to a large extent crushing and therefore affected the soft tissues. In addition to this, there was the development of a sympathetic dystrophy where again he expressed the opinion that the measurement of disability is difficult. On examination, he found the foot to be paler than the left and slightly colder. All pedal pulses were present. He observed the curved 10 centimetre healed surgical scar curving behind the medial malleolus. There was slight swelling present over the front of the ankle and around the medial malleolus. Ankle movements on the right were equal to the left but subtalar movement was only about two thirds. Mid‑tarsal movements were normal. Distal to the medial malleolus there was some hypoaesthesia when compared to the left foot. There was some sensitivity over the posterior neuro‑vascular bundle inferior to the medial malleolus.
The plaintiff gave evidence that following the third sympathetic block to his foot, his back seemed to be getting worse when he started walking longer distances. He said he can now walk approximately 500 metres to a kilometre before the aching across his tailbone develops. He said he can stand in one spot "pretty all right". He said he had cut down on walking to ease the pain in his back. He said he was taking 60 to 100 Panadeine Forte a month. He said he slept very little because he could not get into a comfortable position where he could relax to sleep.
The plaintiff gave evidence that at the present time he weighs approximately 130 to 140 kilograms. After the accident he reached 160 to 170 kilograms. If the plaintiff now undertakes social or domestic activities for several hours he has to lie down for a good rest to ease his back pain and elevate his foot. The plaintiff said that he lacked some confidence in driving a motor vehicle again but he was working on it.
By his report of 4 August 2000, Dr Thompson records that examination of the plaintiff's spine revealed that he is only able to forward flex to the extent of getting his fingertips to his patellae. Rotation and tilt did not appear to be limited and extension was about half that expected. Straight leg raising was normal on both sides. Dr Thompson was unable to elicit any neurological abnormality in the lower limbs apart from an absent right ankle jerk. Dr Thompson expressed the impression that the plaintiff's pain was probably arising from his facet joints rather than any damage to his vertebrae or intervertebral discs. He continued:
"I find it difficult to be emphatic but I would suggest that the pain that he is getting is multifactorial, partly related to his abnormal gait and partly related to his size. I do note that he denies any previous problems with his back."
In cross‑examination, the plaintiff agreed that his de facto wife provided him with information about the nature of the condition reflex sympathetic dystrophy. He agreed that his ankle condition had improved since the end of 1997. He stated that his back and leg pain had eased since he stopped walking long distances. He said that his back was now worse than his leg. He said he probably agreed that he can drive a motor vehicle.
In his report of 1 September 1999, Dr Thompson expressed the following opinion about the effect of the plaintiff's ankle injury:
"Mr Koczwara's ability to work has been adversely affected by the injury. Prior to the accident he was working as a heavy labourer with a steel construction firm. I do not think he will be able to return to this type of work simply because of the difficulty spending long periods of time on his feet and doing any sort of heavy lifting. He has lost some agility in the ankle which means that he will probably have difficulty getting out of the way of any dangerous situation in a hurry. In the steel construction field this is obviously a major problem.
I do not think that this man will ever return to the type of work he was doing before, so I do not think he is ever going to be totally fit for work. I do feel that he would be able to do lighter or sedentary types of duties in situations where he is not required to spend long periods of time on his feet, work on uneven ground or rough surfaces and is able to take spells from standing where he can sit and elevate the leg if necessary."
The plaintiff's general practitioner, Dr Bairstow, referred the plaintiff to Professor Andrew C Harper, occupational physician for an opinion. Professor Harper saw the plaintiff first on 27 March 1998. Professor Harper records that the plaintiff reported symptoms of right ankle pain, right foot numbness, swelling and discolouration, giving way of the ankle, low back pain, weight gain and mood changes. After examination of the plaintiff, Professor Harper reported to Dr Bairstow on 30 March 1998 that in his opinion the plaintiff's continuing limp with associated obesity was aggravating his low back pain. He found no indication of nerve root involvement with his lower back. He expressed the opinion that the plaintiff needed to proceed to specific strengthening exercises to stabilise muscles in his lower back and abdomen after reducing weight. Professor Harper reviewed the plaintiff on 20 November 1998 and records in his report of 23 November 1998 that the plaintiff reported considerable improvement in his symptoms. He is able to sit through the day and standing tolerance had improved. Walking tolerance was 30 minutes. His weight was 160 kilograms. Professor Harper reviewed the plaintiff finally on 11 August 1999 when the plaintiff reported very considerable improvement in his symptoms. He observes that x‑rays of 22 July 1999 revealed that the facet joints appeared within normal limits. Professor Harper continued:
"His work interest remains in sales but he says his attention has been focused on his physical rehabilitation. Approximately 1 year ago he completed a computer course of 30 hours duration. He says he did not enjoy it but he expressed some resignation to the need to learn how to use the computer in order to get a job."
Professor Harper reported his physical examination of the plaintiff on this review as follows:
"On examination, Mr Koczwara continues to be extremely overweight at 155 kgs. He was in no distress. He walked with a limp but with a considerably improved gait. He was able to stand on both heels and toes and he could balance on the right foot. There was no swelling in the right ankle but tenderness was present along the medial aspect of the ankle. There was very considerable improvement in range of movement of the ankle in all directions with near to normal ankle movement but movement was accompanied by crepitations and clicking. Range of low back movement was reduced with extension being 25% of normal. In forward flexion his hands reached the knees. Side flexion and rotation were within normal limits. There was tenderness over the spinous processes of L4 and 5."
Professor Harper expressed the following opinion in relation to the plaintiff's then work capacity as follows:
"His work capacity has been adversely affected.
At present he has a small degree of retained work capacity. He is permanently incapacitated for his pre‑accident manual work. He is capable of possibly 2 or 3 hours per day on 2 or 3 days per week in a sedentary occupation with restrictions. He needs to be able to change position as required and to alternate sitting and standing as needed. He needs to avoid driving, lifting, pushing, pulling, climbing, any activities requiring quick movements and overall he needs to avoid all manual work. He requires to avoid prolonged sitting or prolonged standing.
I anticipate him continuing to be partially fit for work in the future and his work capacity will be limited to sedentary non‑manual tasks.
It is difficult to estimate whether he will be able to return to full time work but there is a definite risk that his capacity will be limited to possibly 20 hours per week. As mentioned above he is permanently limited to alternative light work.
…
… At present he is not employable and he is unable to compete for gainful employment in the open job market. He requires training to facilitate re‑entry into the workforce. His future working career has been significantly compromised by this injury and the resulting disability."
In the course of his evidence Professor Harper explained that the basis of his opinion that the plaintiff was unable to compete for gainful employment in the open job market was based on the plaintiff's limited activity tolerance of standing and walking and sitting and his persistent symptoms. He said he was referring to the symptoms of pain and considerable reduction in ambulation which he said was related to the plaintiff's limp, his painful foot, his lack of confidence in it and his back pain. He referred to the post‑injury complications and confirmed his opinion that the plaintiff had signs of sympathetic dystrophy. He expressed the opinion that the plaintiff's work capacity has been significantly reduced because he has no other skills to call upon. The professor explained the basis of his opinion that the plaintiff was capable of possibly two or three hours a day on two or three days per week in a sedentary occupation. The witness referred to his assessment of permanent residual disability of the right leg below the knee at 20 per cent loss of effective function and residual disability of approximately 10 per cent loss of effective function of the thoraco‑lumbar spine and said he was speaking about how these injuries affected this plaintiff:
"The permanent disability is his … increased susceptibility to pain and his reduced tolerance of using his back, and in his foot it is the presence of pain, which is persisting in his case, and his altered gait associated with that, affecting his ambulation. …
… They started off probably not being linked to other than having been caused by the same physical event but his foot and his limp have most likely aggravated his back problems."
A little later Professor Harper continued:
"… I think that where this man is today is related to his weight, his back injury and his ankle injury. I think that in - the severity of the initial injury may well have been affected by his weight, and I'm thinking particularly about his back strain at that time.
… So I think that his weight was influential in the initial back injury. If we now go to the other end, to the present, we've got a man who has got ongoing back pain and the treatment of the sort of pain he has is weight reduction and exercise and exercise to strengthen muscles in abdomen and lower back, and you really can't effectively strengthen those muscles in the lower back until you've got a lot of weight off so the muscles can effectively do their thing. So his obesity is very much interfering with his ability to manage his back pain in the recommended way thus perpetuating his back pain. He is in somewhat of a vicious cycle. His foot problem has aggravated his back through limping and through the abnormal gait and we see that in a man with a foot injury and a limp for a long period of time they frequently develop back pain purely because of an asymmetric gait."
In cross‑examination counsel referred Professor Harper to his report of 30 March 1998 in relation to his physical examination of the plaintiff on 27 March 1998 some nine months after the accident. He agreed that he inspected the plaintiff's feet and that his observation of slight swelling of the right ankle was in comparison to the measurement of the left. He agreed that the range of movement was generally good. He confirmed his opinion that range of movement was slightly reduced in dorsi flexion and in inversion and that range of movement was generally good given his obesity and the injury. There was slight reduction in low back movement. Side flexion to the right, rotation and extension were normal. Straight leg raising was 90 degrees bilaterally and normal. The plaintiff's knee and ankle reflexes were normal and the power in his lower leg was normal.
Professor Harper went on to explain that he then expressed the opinion that he anticipated improvement in the plaintiff's low back because he felt that the plaintiff had a back strain which was not complicated by a disc herniation or any nerve root involvement and which he therefore expected should respond to some degree at least with exercise, weight loss, and muscle strengthening.

With reference to his report of 23 November 1998, and his statement that the plaintiff told him there had been considerable improvement in his symptoms, he said he was referring to the plaintiff's sitting, standing and walking tolerances. Counsel referred him to his statement that the plaintiff continued to walk with a gross limp which he said described the plaintiff's distorted gait.
Professor Harper was cross‑examined at some length about the plaintiff's driving ability, unaware of the plaintiff's evidence that he probably is able to drive. Professor Harper agreed that the plaintiff had mentioned no difficulty pushing down on the pedals of an exercise bike. Finally, counsel suggested to Professor Harper that although he expressed some initial optimism about the plaintiff's prognosis for a recovery, based on the plaintiff's complaints that recovery had not been achieved. Professor Harper agreed.
The plaintiff called his general practitioner of nine years, Dr Peter Bairstow. In his report of 1 May 2000, Dr Bairstow recited the fact that the ankle injury was subsequently complicated by a sympathetic dystrophy with associated regional pain syndrome and subsequently gait‑related problems also resulted in ongoing low back pain. He reported that the plaintiff complained of ongoing pain in his right ankle measured as 3 ‑ 4 on a 10 point scale, and ongoing milder low backache. He doubted the plaintiff's capacity to work for more than one to two hours a day on even clerical duties. He said that in view of his progress to that time over the previous two and a half years he believed the prognosis to recovery must be regarded as "extremely guarded". In evidence, Dr Bairstow said:
"At the time that he was seeing me he was continuously presenting with recurrent pain, pain when he sat down for a long period of time, pain when he stood up for a long period of time. He found that he needed to remain fairly mobile, finding that those symptoms limited his concentration."
Dr Bairstow explained his opinion that the plaintiff's prognosis to recovery must be regarded as extremely guarded when he said:
"I had been seeing him on a fairly regular basis and at no stage did I particularly regard him as comfortable. I would expect a fractured ankle to settle down over 6 to 8 weeks. In 3 months it really should be mostly settled and with the symptoms he had of sympathetic dystrophy, which I noted on occasions he still had signs of, I did not believe that it had settled as was being advised by the specialist and insurers. Basing my advice on the reports that I was being given by him, I did not believe he had settled. If he had not settled by 2 and a half years, then I could not advise that he would settle rapidly.
… Since his report of lower back pain I don't believe it has ever settled. It comes and goes, but he's a patient who I now recognise as having lower back pain. I routinely ask him about it, even if I would not record it in the notes, whenever I see him."
Dr Bairstow confirmed that he had no record of complaint by the plaintiff of low back pain prior to 14 June 1997. He also expressed the opinion that the plaintiff's continuing back pain is associated with his limp and he thought it inadvisable to regard the onset of the back pain as being totally associated with his weight. Counsel referred Dr Bairstow to his opinion in his report of 25 August 2000 that the plaintiff was an active and vigorous person prior to the accident. Dr Bairstow observed:
"From my contact with him as a patient, a father of children, husband of a wife who ‑ just the impression was a very active, vigorous man, not someone who sat around and did very little."
Dr Bairstow went on to say that since the accident the plaintiff has not demonstrated the same level of interest and needs to be encouraged. In his report of 25 August 2000, Dr Bairstow expressed the opinion that had the accident not occurred, he believed the plaintiff would have remained vigorous.
In cross‑examination, Dr Bairstow explained that he made his assessment of the plaintiff as an active and vigorous person before the accident from his observations of the plaintiff in his rooms, and discussions with his wife and children.
Counsel for the defendant asked Dr Bairstow whether it was his opinion that the plaintiff wished to pursue his rehabilitation and Dr Bairstow replied:
"At times, yes. At times I felt that he really wished to get on with it, and he felt or the impression I gained was that he felt he was being slowed down by the rehabilitation process. He wanted to be able to do specific things, and he felt that he had to wait for an approval process which didn't allow him to get on with his life. Now, that fits in with what I'm saying here. At other times however, he has been struggling to keep or the impression I had is that he has been struggling to keep to a programme, and I believe that has been from the pain and the depression associated with that pain."
The defendant called the orthopaedic surgeon, Mr F G Bell to give evidence of his opinion of the nature and extent of the plaintiff's injuries and disability. He was referred to his reports in exhibit 5. Counsel for the plaintiff objected to the statement contained at p 13 of exhibit 5. Mr Bell's opinion about the plaintiff's future employment seems to me to follow from his evidence about the nature and extent of the plaintiff's injuries and disability and it is that evidence which the court is required to consider in the determination of the issues which arise for decision in this case.
Mr Bell gave evidence that he had grave doubts whether the plaintiff ever suffered reflex sympathetic dystrophy but it is clear that he based that opinion only upon his observations when he saw the plaintiff and observed no symptoms of sympathetic dystrophy. He expressed the opinion that it is a relatively common condition which generally resolves within three to four years and did not cause significant problems in the long term. Mr Bell first examined the plaintiff on 3 May 1999 and in his report of 27 May 1999, Mr Bell records the plaintiff's complaints. He referred to the plaintiff's weight and observed that the plaintiff walked with a right ankle limp but nevertheless was fully able to stand weight bearing on both feet and there was no abnormal posture. The plaintiff was able to flex only fingertips to just below the knees which in Mr Bell's opinion was not surprising in view of his very large protuberant abdomen. He was able to extend without any dysrhythm but complained of some pain on extension and on hyperextension. Mr Bell also observed straight leg raising to be normal. The right ankle had minor swelling with a normal range of foot movement and slight pain at the extreme. His subtalar joint demonstrated normal mobility. X‑rays of the ankle and lumbar spine were normal. Mr Bell expressed the opinion:
"This man's greatest problem with regard to his back, foot and achieving employment is his gross obesity. According to my calculation he would be about double his ideal weight.
I think this man badly needs a vigorous course of physical training, needs to go on a diet. I think the use of lace up boots around his ankle may be of benefit, but even at the present time I believe he is capable of undertaking a part time job for a start, say 4 hours per day, 5 days per week in a partly sedentary job in which he can walk regular short distances and sit for short periods.
Whilst he carries the amount of weight he does there is substantial risk of having further injury to his back and onto other limbs.
…
I accept that this man has some degree of back ache and that he has suffered in the past an injury to his ankle, but with the normal range of movement now and in my view no evidence of sympathetic dystrophy he is capable of undertaking work.
I think his short term and long term prognosis is fair, largely because of the amount of weight he is carrying and which he is unwilling or unable to shed to any significant degree.
I do not find any good evidence that this man had a significant continuing back injury and the right ankle injury appears to have largely recovered.
I accept that he may have some start-up pain in his ankle for 6 ‑ 12 months yet but nevertheless that is not inconsistent with him doing a part time sedentary job.
The only major factor which I consider are contributing to his ongoing symptoms is his gross obesity.
I do not think that this man is capable of undertaking his pre‑accident occupation as a trades assistant in the general engineering industry either on a full time or part time basis. I think he would be at considerable risk of climbing to any height and having to negotiate girders and the like."
Mr Bell's report of 27 May 1999 was admitted into evidence by consent on the basis, as I understand it, that Mr Bell's account of the contents of the video which he viewed was not inconsistent with his evidence of his observations of the plaintiff. I was informed that the video was not shown to the plaintiff and it was not tendered in evidence.
Mr Bell saw the plaintiff again on 29 November 1999 and reported on 13 November 1999 to the defendant's insurers, where he expresses the opinion that the plaintiff has substantially improved not only in the foot but in his back since he last saw him, contrary to the plaintiff's account to him. In cross‑examination, Mr Bell largely accepted that his second report contained no information to demonstrate such improvement either on examination or otherwise. Counsel then suggested to Mr Bell that there was nothing in his reports which demonstrates that the plaintiff has an activity level which would enable him to undertake work for four hours a day, five days a week. Mr Bell accepted that in expressing this opinion he was expressing an opinion about the physical disability of the plaintiff alone. He accepted that on the plaintiff's history alone there was some doubt whether the plaintiff was capable of undertaking such part time work at the moment. He expressed the opinion, however, that the normal range of movement which he found in the plaintiff was very important in his assessment of the plaintiff's work capacity.
The defendant also called the occupational physician, Dr Peter Connaughton. His reports are contained in exhibit 11. Dr Connaughton had the opportunity of reading the reports of Dr Thompson and Mr Bell but not Professor Harper. Dr Connaughton saw the plaintiff once on 27 January 2000. He reported to the defendant's insurers on 9 March 2000. At p 4 of that report, Dr Connaughton states:
"In the low back he indicates symptoms primarily over the sacrum. There is a component of self limitation or inconsistency on the examination. He reports tenderness maximally over the mid sacrum with slight symptoms on lifting the skin and the sham rotation test. The axial load test is also moderately positive reporting back and right leg pain.
He has noticeably restricted voluntary movements with forward flexion only to 30° or 2 inches above the knees. He reports discomfort on left rotation and lateral flexion.
The knee reflexes are symmetrical, but the right ankle reflexes are more difficult to elicit than the left. Straight leg raising is to 60°.
The right calf circumference is 1cm less than the left."
Dr Connaughton gave evidence about this statement when he said:
"There are a number of tests for non‑anatomical back pain. … The sacrum doesn't move. There's no joint or disc or other function within the mid‑sacrum itself, so tenderness maximally over the sacrum is not expected in organic back pain. Lifting skin over the lower back again doesn't have any mechanical effect on the lumbar spine or the ligaments or the joints or tendons and if people say that reproduces their pain then that's inconsistent. The axial load test is asking someone when they're standing upright to not move their back and push down on the head, and if you stand on a set of scales you'll see that doesn't affect them. There's no mechanical load on the low back. If people say, 'That makes my back and legs sore,' then that's non‑organic. It means that the symptoms are not as a result of mechanical lumbar injury."
Counsel then asked Dr Connaughton to explain his statement about the plaintiff's restricted voluntary movements and he replied:
"It's comparing the range of movements or range and speed of movements when you're saying, 'I'm now going to test your back and I now want to see how much you can move your back,' in comparison to your observations when you're watching someone in the preceding hour - stand up in the waiting room, walk into your room, sit down, stand up and those sorts of things and see what the difference is when you say, 'I'm now testing your back,' and how they perform. Also, forward flexion to 30 degrees - you can flex forward to 45 degrees 50 degrees without actually putting any load on your back. You can flex at the hips. Hip flexion can give you 80 or 90 degrees, again without any significant mechanical low back load, and so if someone says, 'I can't touch my knees,' even in a spinal fusion if you fuse someone's spine from L3 to S1 they can touch their knees.
… When you're sitting down, your hips are flexed at 90 degrees to your back, and if you can't bend forward past 30 degrees, you can't sit down."
Dr Connaughton expressed the opinion that the plaintiff's lumbar symptoms are primarily related to his weight rather than the plaintiff's soft tissue strain injury and likened the plaintiff's weight to his carrying two 25 kilogram bags of cement at all times.
Counsel put to Dr Connaughton the evidence that the plaintiff had experienced no back pain prior to the accident and he said he treated that history in the case of this plaintiff as a 39‑year‑old who had been a stone mason with caution. He distinguished between back pain and back disability and said that the prevalence of back ache in someone of the plaintiff's age is about 25 per cent. Counsel suggested to Dr Connaughton that it was not open to disregard the plaintiff's ankle injury and limp in the context of his back ache and he responded:
"If you look at studies of people who have had leg injuries, knee reconstruction, ankle fusion, spinal scoliosis, there is not in fact a lot of evidence that significant gait disturbance causes major back disability. …
… You don't ignore a limp, but you weigh it against the other evidence."
He pointed out that the orthopaedic evidence is of no major back injury or significant back injury.
At p 5 of the report of 9 March 2000, Dr Connaughton expresses the following opinion about the plaintiff's vocational rehabilitation when he says:
"In view of his obesity and back aches his general physical capacity is going to be limited, however with some simple general precautions he could return to work on a full time basis. The usual advice for patients with his build and back ache would be to avoid heavy physically demanding labouring work involving heavy or repetitive lifting and bending. With regard to his right ankle I think it is most likely that his disability will continue to resolve over the coming months, and that relatively few restrictions will apply - except for very prolonged periods of walking or standing. Otherwise he is fit for a range of full time jobs - including a range of factory jobs, some clerical positions depending on his level of computer confidence, vehicle spare parts sales, video store attendant. Stores positions would depend on the individual physical requirements of the job."
Dr Connaughton explained that when he expressed the opinion that the plaintiff has a 5 per cent impediment of the right leg, he was speaking about the anatomical injury to the ankle joint and not making an assessment of the plaintiff's disability.

Has the plaintiff suffered a serious disability within the meaning of the Act? The assessment of future pecuniary loss

The evidence of Dr Thompson establishes that the plaintiff suffered a significantly displaced fracture of the right medial malleolus in the accident. I find that by March 1998, the fracture was fully healed and in a good position. I find the ankle injury was subsequently complicated by a sympathetic dystrophy and infection. I find those complications have now been resolved and are very unlikely to recur. I find that the plaintiff now walks with a limp which is aggravated by his weight. I find on the evidence of the plaintiff that he develops mild pain in his ankle if he walks more than 500 metres, which pain does not occur if he stands in one place. I also find that he is able to drive a motor vehicle. The evidence of the plaintiff was that his back pain is now worse than his leg and ankle pain and I so find. On the evidence of Dr Thompson, I find that the nature of the plaintiff's back pain is multifactorial but probably arose from his facet joints, which by 1999 were within normal limits. I accept the evidence of Dr Connaughton that the plaintiff's lumbar symptoms are primarily related to the plaintiff's weight and are not a result of lumbar injury. I accept his evidence that there is no orthopaedic evidence of major or significant back injury.
I find on the evidence of Dr Thompson, Professor Harper, Mr Bell and Dr Connaughton that the plaintiff's ankle and back injuries now prevent him from returning to his pre-accident employment as a labourer. I also find on their evidence that the plaintiff is now fit for a range of partly sedentary jobs for upwards of 20 hours per week. I find it is likely that his disability will continue to resolve so that in the future he may be capable of working longer hours. I also accept, however, the evidence of Professor Harper that this plaintiff, now aged 41, has a considerably reduced capacity to compete for the kind of alternative work which the evidence demonstrates he is capable of undertaking.
The evidence of the plaintiff was that he left Bunbury Senior High School at the age of 15, halfway through second year after which he worked for a short time in the north of the State for his uncle and then returned to Bunbury where he continued to live. He had a labouring job at Golden Fleece for 16 months after which he was employed as a gardener for six months at the Bunbury Technical College. He then travelled to the east for some 14 to 16 months and returned to Bunbury at the age of 20. He worked in an amusement centre for 18 months and then in a leisure centre, in a hot mixing firm, a nightclub and an engineering firm until its business closed in early 1992. He said he was unemployed for approximately 12 to 14 months and he ended up obtaining a work course as a stone mason with his wife's father for two and a half to three years. The nature of his engagement is not clear on the evidence but it appears he received remuneration from the Commonwealth Government until obtaining employment with the defendant. While he was employed by the defendant, he formed a partnership with his de facto wife with a view to conducting business in the supply of insulation paint through his employer.
In cross‑examination the plaintiff stated that he obtained work with the defendant because he thought he had the chance to earn good money as a "multi‑skilled" labourer. Counsel for the defendant asked the plaintiff about his plans when he joined the defendant and he replied: "I think things changed a bit when I had children. I had to settle down. I had to try and settle down." His two children were born in 1990 and 1994.
The evidence of Mr Desmond Murphy, superintendent of the defendant, was that he had known the plaintiff for 10 years and considered him to be a very good worker for whom there would be a position today if he were capable of undertaking it. Counsel for the plaintiff submitted that in the absence of other evidence the court could and should conclude that the plaintiff would have continued to work in his pre-accident employment until the normal retirement age of 65. Counsel for the defendant submitted that the evidence to the contrary is to be found in the evidence of the plaintiff's work history to which I have referred. He submitted that the plaintiff's high turnover of jobs and his period of unemployment suggested that the plaintiff would not have remained in employment with the defendant very long. He submitted that the likelihood is that the plaintiff would have left the employ of the defendant and had a period of unemployment before perhaps going on to some other work. I think that the evidence of Dr Bairstow and Mr Murphy is due some weight in this regard, because they have known the plaintiff, his family and work circumstances for many years. On this evidence and that of the plaintiff himself, I find that the plaintiff would have remained in the employment of the defendant until age 60.

Counsel for the plaintiff submitted that the reduction for contingency should be modest and referred to Black v Motor Vehicle Insurance Trust [1986] WAR 32. In that case, Wallace J, with whom Burt CJ and Brinsden J agreed said at 34:
"In assessing a plaintiff's loss of income earning capacity all the various future contingencies must be taken into account, provided that they are not too speculative. It was clear that the appellant would have retained his employment as a hospital orderly until he turned sixty-five a job which was within his intellectual and physical capacity. The preponderance of evidence before the learned trial judge is summed up in his opinion that the appellant was now virtually unemployable. It is erroneous always to make a deduction for contingencies as Windeyer J had to say in Bresatz v Przibilla (1962) 108 CLR 541. The Court should in each case have regard to the facts of that case. That very learned judge continued at 543-544:
'It is a mistake to suppose that it necessarily involves a 'scaling down'. What it involves depends, not on arithmetic, but on considering what the future may have held for the particular individual concerned. He might have fallen sick from time to time, been away from work and unpaid, he might have become unemployed and unable to get work. He might have been injured in circumstances in which he would receive no compensation from any source. He might have met an untimely death. Allowance must be made for these 'contingencies' or the 'vicissitudes of life' as they are glibly called. But this ought not to be done by ignoring the individual case and making some arbitrary subtraction. … Moreover, the generalisation that there must be a 'scaling down' for contingencies seems mistaken. All 'contingencies' are not adverse: all 'vicissitudes' are not harmful. A particular plaintiff might have had prospects of chances of advancement and increasingly remunerative employment. Why count the possible buffets and ignore the rewards of fortune! Each case depends upon its own facts. In some it may seem that the chance of good fortune might have balanced or even outweighed the risk of bad.'
This Court has in the past referred to the article on 'Actuarial Assessment of Damages' by J H Previtt in 35 Modern Law Review 140 at p 150. Therein the author speaks in terms of a discount range from 2 to 6 per cent for the usual contingencies of life. On the facts before the learned trial judge I would have thought that even taking into account the slim chance of the appellant becoming employed remuneratively a discount of 10 per cent would be the very upper limit of such an allowance."
That was a case in which the appellant was virtually unemployable and is of course distinct from the present. Counsel for the plaintiff in this case submitted that the plaintiff has allowed for a retained capacity by allowing a reduction of 15 per cent to cover contingencies and that retained capacity. Counsel for the defendant submitted that to reduce the plaintiff's claim by 15 per cent for retained earning capacity and general contingencies would be "totally inadequate", on his submission that the plaintiff would not have been continuously employed until age 65. Given the nature of the plaintiff's employment with the defendant, and notwithstanding the evidence for the plaintiff about his desire and ability to continue in that employment but for the accident, I accept the submission of counsel for the defendant that a 15 per cent reduction for contingencies in this case is totally inadequate, having regard also to the plaintiff's retained earning capacity. Counsel for the plaintiff accepted that it was for the court to determine the appropriate discount on the evidence. In my opinion, the appropriate discount on the evidence in this case is 5 per cent for general contingencies and 25 per cent for retained earning capacity being a total discount of 30 per cent.
I assess the plaintiff's future loss of earning capacity from 19 November 2000 to age 60 at the net weekly wage of $573.16, applying a multiplier of 599.5 as $343,609.42 less 30 per cent, being $240,526.60.
I conclude, therefore, that the future pecuniary loss resulting from the plaintiff's disability is greater than the prescribed amount and that therefore the plaintiff's disability is a serious disability within the meaning of the Act prior to its amendment, as I explained at the beginning of these reasons. Accordingly, the plaintiff is entitled to an award for pecuniary and non-pecuniary loss consequent upon the negligence of the defendant which I now proceed to assess.

Assessment of general damages other than future pecuniary loss

In relation to general damages for pain and suffering and loss of amenities, the assessment is to be made as a percentage of a most extreme case for which the maximum amount which may currently be awarded is $256,490. Counsel for the plaintiff submitted that the plaintiff is entitled to a substantial award under this head and should receive 40 per cent of the current maximum. He submitted that the plaintiff is left with continuing disability in his foot and back affecting many aspects of his daily living and particularly work prospects. I accept that the plaintiff's disability affects particularly his work prospects for the reasons which I have already given. I also accept that his continuing disabilities affect many aspects of his daily living. They limit him in domestic and social activity and are likely to continue to do so in the foreseeable future. They may improve if he loses some weight, but on the evidence I think that is unlikely. He is left with a limp and an inability to spend long periods of time on his feet or walk any distance. He suffers pain in the ankle after exertion and in his back. In my opinion, damages under this head should be assessed at 15 per cent of a most extreme case at $38,473.50.
In relation to past loss of earnings, I assess the award to which the plaintiff is entitled in accordance with the plaintiff's schedule and evidence, based on an income of $548.78 net per week to 30 June 2000 and $573.16 net per week from 1 July 2000 to 19 November 2000. I assess the plaintiff's entitlements under this head as follows:

12 June 1997 to 30 June 2000 159 weeks at $548.78 net per week	$87,256.02
1 July 2000 to 19 November 2000 20 weeks at $573.16 net per week	$11,463.20
*Fox v Wood*	$29,245.40
Total	$127,964.62
Plus interest on net loss weekly payments of $5,826.22 for 3.5 years of 3 per cent	$611.76
Total past loss	$128,576.38
Award	$128,576.38

In relation to past gratuitous services, I am of the opinion on the evidence of the plaintiff and his wife that the claim under this head is excessive. Accordingly, in my opinion, it would be reasonable to allow the sum of $5,000 for the three months after the plaintiff was discharged from hospital. Thereafter, in my opinion, the plaintiff should be allowed a sum to compensate him for lawn-mowing services only from 12 June 1997 to 19 November 2000 being 177 weeks at $6.25 or $1,106.25. The plaintiff is entitled to interest at 3 per cent for 3.5 years in the sum of $641.13 and an award under this head of $6,747.38. In my opinion the evidence does not establish an entitlement to an award for future gratuitous services.
The plaintiff claims future medical and travelling expenses for the rest of his life, which claim I do not consider to be reasonable on the evidence. I allow $5,000 for medical consultations and medication. I allow $500 for travelling expenses.
The plaintiff also claims the past and future loss of superannuation benefits. Counsel invited me to assess damages under this head other than in accordance with Jongen v CSR Ltd & Anor (1992) A Tort Rep 81-192. In my opinion, the evidence of the actuary, Mr Dermot Balson should not lead the court to make an assessment of past and future loss of superannuation benefits other than in accordance with the authority of Jongen v CSR. In accordance with the plaintiff's schedule, therefore, I assess past loss at $6,267.43 and future loss at $31,107.65 less 30 per cent for contingencies being $21,775.37, a total award under this head of $28,042.80.

Conclusion

The plaintiff is, therefore, in my opinion entitled to an award of damages as follows:
Future pecuniary loss  $240,526.60
Past loss of earnings  $128,576.38
Pain and suffering  $38,473.50
Past gratuitous services  $6,747.38
Future medical expenses  $5,000.00
Future travelling expenses  $500.00
Past and future loss of superannuation benefits    $28,042.80
$447,866.66
I will enter judgment for the plaintiff accordingly.