Paul Robert Rankin v Tower Scaffolding (ACT) Pty Limited and Rovera Scaffolding (ACT) Pty Limited - [2014] ACTSC 5

PAUL ROBERT RANKIN v TOWER SCAFFOLDING (ACT) PTY LIMITED AND ROVERA SCAFFOLDING (ACT) PTY LIMITED
[2014] ACTSC 5 (28 January 2014)

NEGLIGENCE – PERSONAL INJURY – claim by employee against employer – system of work – scaffolder employed to construct stage – plaintiff required to carry transoms from stack on stillage – stillage on sloping ground – unsafe system of work – plaintiff exposed to risk of injury of which first defendant ought to have known – employer negligent
NEGLIGENCE – PERSONAL INJURY – claim by employee against employer’s contractor – scaffolder employed to construct stage – no evidence second defendant placed stillage on sloping ground – duty of care not established
DAMAGES – PERSONAL INJURY – injury to ankle – pre-existing osteoarthritis – prior injuries – severe pain – adjustment disorder with mixed anxiety and depressed mood – plaintiff will remain physically unable to perform work of a heavy physical nature – plaintiff unsuited to office or computer work – likely plaintiff will not rejoin workforce

No. SC 166 of 2007

Master Harper
Supreme Court of the ACT

Date: 28 January 2014

IN THE SUPREME COURT OF THE       )
  )          No. SC 166 of 2007
AUSTRALIAN CAPITAL TERRITORY    )

BETWEEN: PAUL ROBERT RANKIN

Plaintiff

AND: TOWER SCAFFOLDING (ACT) PTY LIMITED

First Defendant
ROVERA SCAFFOLDING (ACT) PTY LIMITED
Second Defendant

ORDER

Judge:  Master Harper
Date:  28 January 2014
Place:  Canberra

THE COURT ORDERS THAT:

judgment be entered for the plaintiff against the first defendant in the sum of $752,000.00.

judgment be entered in favour of the second defendant.

the claim by the first defendant against the second defendant for contribution or indemnity be dismissed.

the plaintiff’s costs of the proceedings against the first defendant be paid by the first defendant.

the second defendant’s costs of the action by the plaintiff against the second defendant be paid by the plaintiff.

the second defendant’s costs of the first defendant’s claim for contribution or indemnity be paid by the first defendant.

the orders as to costs be stayed for 21 days from the date of these orders.

This is a claim for damages for personal injury. Liability and quantum are in issue. The plaintiff was employed by the first defendant as a scaffolder. His injury happened late in October 2005 on a grassed area at the University of Canberra, while he was moving scaffolding components.

His solicitors commenced these proceedings in March 2007 against the first defendant (the employer) only. In June 2008, they joined the second defendant. The second defendant had delivered the scaffolding to the site.

The pleadings

The action went to trial on an Amended Statement of Claim filed in September 2010. In that document, the plaintiff asserted that the first defendant had agreed to carry out scaffolding work for the second defendant at the University. The second defendant had delivered what was described in the pleading as a silage container to the premises on or about 27 October 2005. On 27 October 2005 the plaintiff was unloading transoms from the container by himself, in preparation for the erection of the scaffolding. The container, it was said, had been placed on sloping ground by the second defendant. The container initially held about eight transoms stacked on each other, weighing about 60 kilograms each. When stacked correctly the transoms were supposed to interlock, preventing the stack from moving or collapsing. As the plaintiff was lifting a transom from the container the remaining stack of four transoms collapsed onto him, crushing his right ankle.

The conventional duty of an employer to an employee was pleaded, including a duty not to expose the plaintiff to a risk of injury of which it knew or should have known, as well as a duty to provide a safe place and system of work.

The duty of care pleaded against the second defendant was a duty to take all reasonable care to ensure that the plaintiff did not suffer injury or damage due to things done or omitted to be done by the second defendant’s employees.

Particulars of negligence alleged against the employer included requiring the plaintiff to lift and remove the transoms alone; failing to provide adequate manual assistance for that purpose; failing to ensure that the container was placed on level ground and in a location where it could be unloaded safely, failing to ensure that the transoms had been properly interlocked when stacked in the container; failing to instruct the plaintiff in how to remove the transoms safely; failing to carry out a risk assessment in relation to the tasks required of the plaintiff; failing to supervise the plaintiff; and failing to provide competent co-workers.

The particulars of the second defendant’s negligence set out in the Statement of Claim were identical, with the addition of: failing to modify the containers to prevent transoms from slipping on each other while being unloaded; and failing to deliver the transoms in a container which prevented them from slipping while being unloaded.

The defence of the first defendant simply denied all of the factual assertions relevant to negligence, without asserting any different facts. In addition, the first defendant alleged that the plaintiff had been guilty of contributory negligence. In further and better particulars in correspondence, the first defendant’s solicitors said that the plaintiff had failed to heed a direction by Anthony John Hill, a director of the first defendant company, not to move the transoms by himself.

In further particulars by letter, the solicitors for the first defendant said that the transoms had been stacked in containers packed in such a way that they could not fall out, and that the containers had been placed on an even concrete path. To the extent that the plaintiff had been injured while working alone, which they denied, they said that he had done so contrary to express instructions from Mr Hill, in disregard of his own safety.

The second defendant in its defence denied any duty of care to the plaintiff, denied any breach of any such duty, and alleged contributory negligence for the same reasons as the first defendant.

The solicitors for the first defendant filed a notice claiming indemnity and contribution from the second defendant, repeating the particulars of negligence alleged by the plaintiff against the second defendant.

The plaintiff was born in July 1963. He was 42 at the time of the accident and is now 50. He grew up at Eden on the far south coast of New South Wales. He left school after year 9 and worked in a number of different occupations in the timber, fishing and building industries. He did not gain any formal qualifications but did achieve a ticket as a plant operator and later as a scaffolder. In 1982, at age 19, he broke his right ankle in a motorcycle accident. He appears to have made a full recovery from that injury so far as symptoms were concerned, but the fracture led to the development of arthritis in the ankle joint. The plaintiff’s evidence is that the arthritis was asymptomatic at the time of his injury in 2005, and there is no evidence to the contrary.

In March 1997, the plaintiff had a son. His relationship with the mother ended in some acrimony but the plaintiff remains close to his son, now aged 16, and for some years his son has lived with him every second week and for half of school holidays.

In September 1998, in the course of his work driving a forklift truck, the plaintiff suffered an injury to his neck and low back.

He started working as a scaffolder in the early 2000s. He moved to Canberra in the early 1990s and has lived in Canberra since then. By the time of his injury he was working for the first defendant on a casual basis, that is working on call as required.

Liability – the plaintiff’s evidence

The plaintiff was unable to recollect the date of his injury in October 2005, and there is some inconsistency in the contemporaneous documentation. The plaintiff completed a workers’ compensation claim form on 4 November 2005, and gave the date in that document as 25 October, a Tuesday. In the Statement of Claim, and some other documents, the date is shown as 27 October. It is of little moment, but it seems to me that 25 October is more likely to be the correct date.

It was the plaintiff’s first day on a job at Canberra University. He was contacted by Mr Hill by telephone and asked to work on the day. He said that he was given fairly vague directions to “look for Bernie and his boys”. Bernie was a principal with B & M Scaffolding, another firm engaged on the same job. The plaintiff had worked with Bernie on previous occasions. He arrived at the site at about 7:00 or 7:30 am. He could not find where he was supposed to go and telephoned Mr Hill, but while he was talking to him he saw Bernie driving past and followed Bernie in his car. As he got out of his car, Bernie went away to do something else but the plaintiff found on site two men he knew and two he did not know. The two he knew were Josh Dunn and “Big John”. Josh Dunn was also employed by the first defendant. The plaintiff thought that Big John worked for B & M. He discussed with them what was to be done. The job involved the erection of a stage for a music festival, and an adjoining tower for lights and a cameraman. Two men were working on the stage and two on the tower. They did not need the plaintiff at that point to help with either of those tasks. He busied himself in moving scaffolding equipment from where it had been delivered, to the tower and stage. The stage was to be a large square structure of scaffolding with a plywood floor on top of it.

The plaintiff said that he did not see Mr Hill at the site before he started work. He commenced to carry timber boards to the stage, and next began carrying what he described as jacks and one-metre standards. He then began to carry loading bay transoms. These had been delivered in what the plaintiff called stillages to a position five or ten metres from the tower and about twenty metres from the stage.

Photographs were tendered of transoms and of the containers, which are correctly called stillages. A transom is a little like a short ladder. It is rectangular in shape and made of steel. One of the long sides is of steel piping (that is, hollow and having a circular cross-section). The other long side is of steel with an L-shaped cross-section. The transom has five evenly placed cross-pieces at right angles to the sides and between them four cross-pieces at an angle of some 45°. The cross pieces are of hollow piping. Each transom is 2.4 metres long and 500 mm wide, and weighs approximately 48 kg.

A stillage is a metal frame used for storing and transporting scaffolding components such as standards and transoms. The stillage has four vertical corner posts, and a rectangular base with two longer sides and two shorter sides. Parallel to the short sides are two cross-pieces, regularly spaced in the middle of the frame. The corner posts have wider feet. The base is a little above ground level. The stillage has no other ends or sides or top, and the posts, sides and cross-pieces are all of hollow steel piping. The precise dimensions of a stillage were not in evidence but it is apparent from photographs that it is perhaps a little over half as long as a transom, and a little wider. It appears from one of the photographs that about eight transoms can be stacked horizontally in a stillage, with both ends protruding. This would leave space for perhaps two or three transoms to be stacked vertically in the remaining space.

Whilst it is not entirely clear from the photographs, the evidence is that when properly stacked, the edges of the transoms interlock. The evidence is that the stillages, loaded with transoms, were delivered to the site with the transoms strapped into position. The straps were of thin flat metal. The practice was to cut the metal straps with tin snips in order to unload the transoms.

The plaintiff said that he first unloaded some stillages packed with boards and jacks, which he carried across to the tower or stage. He then came to unload a stillage packed with transoms. He said that this had been delivered to an area with “a bit of a raised garden bed on it” so that it was not level. He went to the high side but realised that this would be difficult. He then went to the lower side of the stillage. He thought that there had been perhaps eight or ten transoms in the stillage. He was asked to describe the stack of transoms, and said “I presume they put the flat ones down first and then rotate them over and then they stand some up horizontally, I suppose, and put them in sort of to lock the rest from sliding across the stillage”. (He seems to have meant to say vertically rather than horizontally). He decided to remove the transoms standing vertically first, because they were on the lower side and easier to get to. They were heavy, and he had to lift them one at a time. As he lifted each one out of the stillage, he carried it down to the stage, a distance of about twenty metres. After he had removed all of the vertical transoms, he came to the horizontal stack, which he approached from the lower side. He said “that’s when I went around the other side, grabbed the top one, lifted it and then the damn things just fell down and squashed my leg inside the stillage”. He said that he had had to step into the stillage so that he could reach over and grab the top transom. He stepped in with one leg only, and the other on the outside. He could not get his leg out quickly enough because he had hold of a transom, and had the weight of it in his arms.

In order to extricate himself, the plaintiff said that he had to lift three transoms off his leg and push a fourth one out of the way. There was no one else in the immediate vicinity when this happened. The plaintiff cried out and two of the men came over to see what had happened to him.

He took his boot off and realised that he had some bruising and bleeding. His foot and lower leg began to swell. It was treated a little later with ice. He recalled some indentation on his lower leg.

He had a packet of Panadol in his car and took some.

His recollection was that the incident happened at about 8:30 am. As far as he could remember, the transoms had not been strapped when he commenced to unload the stillage.

He did not see Mr Hill until lunchtime. He told him what had happened. Mr Hill told him to take it easy. The plaintiff did not want to go home, and worked on, or tried to, for most of the rest of the day although he thought he had gone home a little earlier than usual. He had found it painful to walk on the right leg.

His evidence was that he had received no specific instruction on that day about unloading the stillages, nor had he received an such instruction earlier in the course of his employment with the first defendant. He denied that he had been directed not to move items out of stillages on his own. He said that it was not unreasonable for one person to be expected to unload and carry a transom a short distance on level ground, and that “if you couldn’t do it you probably wouldn’t have a job the next day”. He explained that he meant by this that “if you can’t compete with the other fellows then they’re not going to give you a ring and say come on in”. It might be different on a housing site with rough terrain, but generally this was a task one man would do alone. He had not asked anyone to help him unload the transoms. There had not been anyone available to do so. The rest of the workers on site were busy with other tasks.

In cross-examination the plaintiff was shown a photograph, and agreed that this was of the area where he had been working on the day of his injury. The photograph showed a generally level open area adjacent to a building known as Building 1 at the University. The photograph shows concrete paths, with a large grassed area between the main path and the building. On the other side of the path is an area covered in tanbark. There is a suggestion that part of the tanbark area may be raised but it is cut off to the left side of the photograph and not easy to be sure whether that area is level or slightly undulating. I did not have the benefit of a view. The photograph was taken by an investigator, Ross Grace, who gave oral evidence in the first defendant’s case. Mr Grace took a number of photographs, including of the stillages and transoms, and obtained signed statements from Mr Hill, Mr Dunn and Mr John Ahosivi, the man referred to by the plaintiff as Big John.

The plaintiff maintained his position in his evidence in chief, that the ground where the stillage had been placed which he was unloading at the time of his injury was on sloping rather than level ground. He accepted that most of the stillages had been placed on level ground but maintained that at least one and possibly a couple of others had been on the raised garden bed, on a slight slope.

The plaintiff was cross-examined about a history appearing from a report by Dr Robyn Schellenberger, an orthopaedic surgeon who examined the plaintiff at the request of his own solicitors in September 2006. Dr Schellenberger was no longer practising by the time of the trial and apparently could not be found for the purpose of giving oral evidence. The history she recorded in her report was as follows:

Mr Rankin stated that on 27/10/2005 when working for Tower Scaffolding at the University of Canberra he was part of a team that had to erect an outdoor stage for a concert. About 9.00 am just before “morning smoko”, five of the team including Mr Rankin had to move 8 large metal loading bay transoms from a stack of 8-10 on a pallet. Each transom measured 8 metres long, 600 mm deep and 50 mm wide. After lifting a few transoms, they began to lift another, which upset the remaining transoms in the stack that slid off the pallet and dropped onto Mr Rankin’s right lower leg crushing the lower leg and foot. Two transoms hit his shin, one hit the ankle and a third hit the foot below the ankle. The ankle and foot were crushed by the transoms against the pallet trapping his right foot. He was in so much pain that it made him catch his breath. Fellow workers wanted to help lift the transoms off his leg and foot but Mr Rankin was concerned they might make the pain worse and he preferred to take his time lifting each transom off his leg and foot, by himself. By then he had severe pain from the right mid shin down into the right foot below the ankle.
After removing the transoms and regaining his composure he managed to pick himself up and hobble about. He reported the injury and remained on site doing what he could. He did not seek immediate treatment as he was hopeful he had only sustained bruising that would settle spontaneously.

Counsel for the second defendant put to the plaintiff that he had given this history to Dr Schellenberger, and that it was accurate, particularly where it was inconsistent with his oral evidence at trial. The plaintiff did not accept this. His evidence was that where the history in the report differed from his evidence, the report was inaccurate.

I did not have the benefit of a letter of instructions from the solicitors to Dr Schellenberger, and do not know precisely what background information the solicitors provided. Where Dr Schellenberger commences the history with the words “Mr Rankin stated that”, I do not know whether the plaintiff gave the history to the doctor orally in the course of the consultation, or whether she was provided with a statement in writing with her instructions. The inconsistency between the recorded statement and the oral evidence is troubling but I bear in mind that Dr Schellenberger was qualified to provide an expert medical opinion, rather than to concern herself with much detail about precisely how the plaintiff had sustained the injury. As against that, I must bear in mind that Dr Schellenberger saw the plaintiff less than a year after the injury, and almost six years before he gave evidence at the trial. I must accept that his memory is likely to have been more reliable in September 2006 than in May 2012.

Counsel for the second defendant also cross-examined the plaintiff about the history he had given to his general practitioner, Dr Sharma, when he first saw her on Saturday 29 October 2005. He was cross-examined from her notes, which were not tendered. It was put to him that the doctor had recorded “hurt right ankle Tuesday. Dropped 30 by 40 kg by two loading bay trans. Lifted one up. Two fell from stack down and crushed his right ankle”.

Without having the notes in evidence I am at something of a disadvantage in interpreting the evidence on this point. I do have the benefit of a report prepared by Dr Sharma to the plaintiff’s solicitors in September 2006, in which she says that the plaintiff came to see her on 29 October 2005 and stated that two 30-40 kg loading bays had dropped on his right ankle whilst at work, being part of the scaffolding. She said in the report that the plaintiff stated that as he lifted one up, two fell down and crushed his right ankle. Understandably, she did not go into any further detail in the report about the mechanics of the injury. The evidence about the history given by the plaintiff to Dr Sharma a few days after the injury is insufficiently clear for me to draw any conclusion from it, particularly to the effect that it was inconsistent with his evidence at trial.

Liability – the other evidence for the plaintiff

The investigator, Mr Grace, after some delay located “Big John” Ahosivi and took a signed statement from him, but all he could remember was the plaintiff telling him, after the event, that he had hurt his leg when a transom somehow fell onto it. He did not see the accident because he was working some distance away at the time, and the plaintiff did not explain exactly how the accident happened. He did not have any recollection about how the stillages were placed when they were delivered to the site.

Joshua Dunn also made a statement to the investigator which was typed and signed, with some handwritten amendments.

Mr Dunn’s statement to the investigators gave his full name, address, mobile telephone number and date of birth. The statement is dated 4 May 2007. I set out the important parts of it:

3.I was employed by Tower Scaffolding Pty Ltd during all of 2005. I am now employed by Trojan Scaffolding.
4.I remember working with a scaffolder named Paul Rankin in late 2005 when we were helping to build a stage at the University of Canberra.
5.I think the pallets of scaffolding equipment were placed on a concrete path, near the grass where the stage that was being built. I do not remember any pallets or containers being stacked on top of other pallets or containers. All of the containers were resting on flat ground.
6.The scaffolding equipment including some ledger transoms that were packed inside stillage containers. Each transom is made of steel and is about 2.4 metres long and 500 mm wide. Each transom weighed about 50 kilograms.
7.I do not remember exactly how the transoms were stacked in the container. However I think they must have been packed in the normal way. I do not remember anything unusual about how they were stacked.
8.I think that Tony Hill told myself and Paul Rankin to get the transoms out together. We had to carry them about 20 metres from the container to where the stage was being built.
9.I think that most of the work, about ninety percent, was done by the two of us both lifting one transom. However when we were just moving transoms from one place to another, it is possible that one transom would have been carried by one worker.
10.I do not remember any transoms falling out of a container.
11.The stage that we were building was about ten metres long and twenty metres wide and only about one metre high. In other words, there was no need for any high scaffolding and the job was not dangerous.
12.I can remember that an accident of some kind happened to Paul Rankin, but I do not remember exactly how it happened. I have a vague memory that when Paul was getting one of the transoms out of a container he somehow dropped it on his ankle. As far as I recall, only one transom was involved. It happened quickly and I am not sure if I saw exactly what happened.

Paragraph 9 of the typed statement was altered with a ballpoint pen, apparently at the time Mr Dunn signed the statement, to read:

9.I think that all of the work, one hundred percent, was done by the two of us both lifting one transom. The transoms were never lifted by one worker alone.

The statement appears to have been signed, in the same pen, by Mr Dunn and witnessed by Mr Grace.

Mr Dunn was 18 at the time of the incident and 25 when he gave evidence. He had been working in the scaffolding industry for six to twelve months at the time, having left school at year 11. He said in chief that his memory of the job was vague. Mr Hill had picked him up from home and dropped him at the site. He thought that he would be working with Mr Hill but realised when he got there that he would be working with B & M, not his normal crew. Mr Hill dropped him off and told him to go and help put up the stage. He did not see Mr Hill again on the day, until lunchtime, after the plaintiff had injured himself. He did not recall receiving any other instruction from Mr Hill on the day. Mr Hill was only on site for two minutes.

Mr Dunn said that he had then walked over to the stage and started passing items to Big John. He had not been involved in unloading any of the pallets. He observed the plaintiff unloading the pallets but did not help him.

His evidence was that on occasions he had lifted transoms out of pallets or stillages, when he had been the only one available to do it. He said that if someone else was available they would help, but if not he would attend to it on his own. From time to time he had observed other staff members lifting transoms on their own. He said that it had made no difference whether Mr Hill was about at the time or not.

Mr Dunn said that he did not see the plaintiff injure himself. He saw him on the grass, walked over and asked what had happened and the plaintiff said he had injured his ankle.

Cross-examined, Mr Dunn said that he did not remember providing a statement to an investigator. He was sure he had made a statement only to those representing the plaintiff. When shown the statement, he initially agreed that it bore his signature, although a few questions later he said that the signature seemed to be his. He agreed that the address and date of birth were correct, and that the mobile phone number could have been correct. He had changed his telephone number several times since then and did not remember it accurately.

He was shown the photograph of the area of the job, and agreed that it appeared to be flat. His memory was that the grassed area was flat, although he was “pretty sure there was hills somewhere”. He said he would never have used the word “containers”. He had little memory about the stillages and said that he had not had much to do with them on the day.

After further cross-examination, Mr Dunn somewhat surprisingly volunteered that he thought that the statement must be a forgery. He did not remember making or signing the statement. He was not a friend of the plaintiff and had had almost no contact with him since the day of the injury.

He disagreed that Mr Hill had told him and the plaintiff to get the transoms out together on that morning. He disagreed that Mr Hill had been at the site all day. He said that this was simply not true and that it just did not happen with scaffolding. For two people to unload transoms from a stillage would waste too much time.

He said that he had not helped the plaintiff to carry any of the transoms, and that he had not himself carried any transoms on that day. He had never carried a transom on site with another worker.

Mr Dunn was then asked about the handwritten alterations to the statement. He was asked whether the changes were in his writing. His answer was that it could very well be but could also very well not be. He repeated that he thought that it was a fraudulent document. He said that he would have remembered going over a document and changing it. He repeated that it was regular practice for one person to lift a transom without assistance.

At about this point in the cross-examination, senior counsel for the first defendant applied for an adjournment to qualify a handwriting expert. The application was supported by counsel for the second defendant.

In the course of argument on that application, counsel for the plaintiff informed me that his instructing solicitors had obtained a signed statement from Mr Dunn in July 2008. That statement has not found its way into evidence, although it was marked for identification. Counsel for the plaintiff informed me that he had been unaware of the existence of the earlier statement until it was shown to the witness in Court. I refused to adjourn the hearing in the middle of Mr Dunn’s cross-examination. He came back into court and continued his evidence. Mr Dunn was shown the statement to his own solicitors of July 2008. It was put to him that the signature appeared identical to the signature on the 2007 statement. He maintained that he had not signed the 2007 statement, saying that he had only ever made one statement as far as he could recall, and had no recollection of ever being contacted by or interviewed by an insurance investigator.

Counsel for the plaintiff tendered without objection a copy of the workers’ compensation claim form completed by the plaintiff, headed “worker’s report of injury”. The document bears the plaintiff’s signature with the date of signature 4 November 2005. Clearly incorrectly, it gives the date of the injury as 25 November 2005, when it should have been October. Consistently with all of the other evidence, it gives the time of the injury as about 8:30 am. The plaintiff’s description of the incident is as follows:

“I lifted a loading bay tranny, two of the ones stacked below fell, crushing foot, ankle and leg between them and metal palit [sic]”.

A report of Mark Dohrmann was tendered. I allowed objections to some portions of that report, and the balance went into evidence without opposition.

Mr Dohrmann is a consulting engineer with post-graduate qualifications in ergonomics. He has practised for some 35 years. There is no challenge to his expertise in relation to the actions and effects of forces and movements.

Mr Dohrmann interviewed the plaintiff and obtained a history from him, generally consistent with the plaintiff’s oral evidence. He accepted that the stillage from which the plaintiff was unloading transoms at the time of his injury had been placed on sloping rather than level ground. He explained that transoms were designed to be placed as horizontal members of scaffolding, to support a floor. They were designed to carry heavy weight. He accepted that the plaintiff had first removed about three transoms which were stored vertically on the low side of the stillage, and that he had then placed his right foot inside the stillage. He accepted that when the plaintiff lifted the top transom from the horizontal stack, the stack collapsed onto his right lower leg. The transoms had effectively fallen downhill.

Mr Dohrmann noted that the Occupational Health and Safety (Manual Handling) Regulations 1997 (ACT) had been in force in the Australian Capital Territory at the time of the incident. Their objective was to ensure that employers took all reasonably practicable available steps to ensure that equipment and containers were safe when manually handled, that work practices involving manual handling were designed to be safe, and that the working environment was designed to be consistent with safe manual handling activities. The regulations required the employer, where a manual handling task was likely to be a risk to health and safety, to carry out an examination and assessment of the task, including the actions and movements involved in manual handling, the location of the loads and the distances they had to be moved, the weights and forces involved, the characteristics of the loads and of any equipment used in the manual handling task, and the work environment generally. The regulations imposed on the employer a duty to minimise the risk to health and safety, if necessary by redesigning the manual handling task, and by ensuring that each employee involved in the task received appropriate training and supervision.

Mr Dohrmann’s opinion was that the system of work for unloading transoms from stillages was not safe having regard to relevant industry standards. The possibility of instability during unloading should have been recognised in advance, and procedures adopted to eliminate or minimise the risk of the transoms moving while being unloaded. Mr Dohrmann took the view that 48 kg (the agreed weight of a transom) was too heavy for one person to lift and probably even unsafe for two people to lift and carry, because of the risk of back strain injury.

He noted that the plaintiff had been confronted with a situation where he had to lift a heavy transom on his own. For him to try to lift a transom whilst standing with both feet outside the stillage would have carried an increased risk of back injury. In the circumstances it was understandable and justifiable for him to have placed one foot inside the stillage, closer to the load, so that he could keep his back straighter and reduce bending.

In Mr Dohrmann’s opinion, the employer could have taken a number of steps to reduce or eliminate the risk of injury. These included the carrying out of an audit of manual handling work as required by the regulations; providing training to employees in the position of the plaintiff; ensuring that the lifting of transoms was shared between two people; ensuring that stillages were placed on level ground before unloading; carrying out a risk assessment; and closer supervision.

Liability – the oral evidence for the first defendant

Oral evidence was given by Mr Hill, and also by the insurance investigator, Mr Grace.

Mr Hill signed a typed statement prepared and witnessed by Mr Grace, on 4 May 2007, eighteen months after the incident. He said that he had been a director of the first defendant company since its formation in about 2003, and had been the plaintiff’s immediate supervisor. The plaintiff had been a casual employee for a period of about eight months, until he left in November 2005. He had been an average to good worker, performing manual tasks associated with scaffolding.

Mr Hill had been asked at short notice to help with the erection of the concert stage at the University of Canberra. The work was being done with the assistance of another business, B & M Scaffolding. The second defendant had held the contract with the University for the job, with the first defendant and B & M as subcontractors. The second defendant supplied the scaffolding, delivering it to a courtyard at the University about 50 metres from where the stage was to be erected. Mr Hill, who had a ticket as a forklift driver, used a forklift truck borrowed from the University Union store to move the scaffolding equipment from where it had been delivered to a location nearer to the grassed area where the stage was to be erected. He said in his statement that he clearly recalled that the whole of the site was on level ground. He used the forklift to place each item of equipment on a separate part of a concrete pathway near the grass where the stage was to go. He did not place any containers on sloping ground.

The stillages had been delivered by the second defendant already stacked.

Mr Hill said in his statement that he clearly recalled saying to the plaintiff and to Mr Dunn words to the effect “You and Josh get the transoms out together. Will you be right doing that?” Both employees had said there was no problem with that task. They both began carrying transoms a distance of ten to twenty metres from where Mr Hill had placed the stillages. Each transom was carried by the two men, even though it was not uncommon for one worker to carry a single transom. On the occasion, he said, it seemed quicker having the two men lift and carry the transoms.

Mr Hill said that he did not take any notice of exactly how the transoms were stacked inside the stillages.

The stage was to be about one metre off the ground, and about ten metres by twenty metres in area. There had been no need for any high scaffolding and the job was not a dangerous one. Mr Hill did not see the plaintiff’s accident. He was facing in the opposite direction, he said, working near the stage. He recalled that the plaintiff approached him at some stage and said that he had dropped one of the transoms as he was getting it out of the container, and that it had scraped against his leg. He had said words to the effect “It just fell as I got it out”. The plaintiff took a shoe off to show him some redness on the leg near the ankle. Mr Hill asked whether he was all right or whether he wanted to go home. The plaintiff said that he was all right, and kept working for the rest of the day. He had about a week off work early in November 2005, and then returned to normal duties. The plaintiff told Mr Hill some time during November 2005 that he had been offered a full-time permanent position with another scaffolding company. Mr Hill agreed that it would be in the plaintiff’s interest to accept the job as Tower could not provide such a position.

The first defendant ceased to trade some eighteen months before trial, and by the time he gave his oral evidence Mr Hill was working as a sales representative for another scaffolding company.

Mr Hill gave evidence generally following his statement. He said that he had arrived on site on the day of the plaintiff’s injury between 6:30 am and 7:00 am, and that he remained on site for the whole of the day. He recalled picking Mr Dunn up from home, and driving him to the job. He said that there had been a truckload of stillages delivered by the Rovera truck, three or four of which had been loaded with transoms. He said that he had moved them with the front end loader as the first job of that morning, and that he had given directions to the plaintiff after moving all of the stillages. It was then that he had asked the plaintiff and Mr Dunn to unload the stillages and to carry their contents to the site for erection of the stage.

I asked Mr Hill in the course of his evidence in chief whether he remembered having a conversation with the plaintiff in which he gave him directions. His answer was “Yes, yes. As in, I would have had to have a conversation with him, because I have to explain what I want done”. Asked by his own counsel to do his best to remember the conversation, he said that he asked the plaintiff and Mr Dunn to unload the transoms out of the stillages and to bring them forward to the site where they were building. He said that he saw them performing that task. He did not see the plaintiff lifting a transom by himself.

He confirmed that he did not see the incident in which the plaintiff was injured, but maintained that he was on site at the time. He said that after it had happened, the plaintiff came up and said “I’ve dropped a transom down the side of my ankle, or down the side of my leg”. At this request the plaintiff then removed his shoe and showed him the injured portion of his leg.

Cross-examined by counsel for the plaintiff, Mr Hill said that he could not be sure of the date of the incident, or what day of the week it was. He said that it had been a single-day job. It had taken until about 3:00 pm. Because he was the boss, he had stayed there longer than other employees.

He explained that B & M Scaffolding had agreed on a price for the job with Rovera, the second defendant, and had asked his company to come in to the job with them, sharing the price equally. He said that there would have been a written contact. It is apparent that no such contract was discovered or produced. Certainly there was no contract in evidence, and no contract was relied on in the plaintiff’s pleadings against Rovera, or in the first defendant’s claim for indemnity or contribution.

Mr Hill was asked about the system of instruction he had in place. He said that he instructed casual workers on each day they were working for him, although there were days when he left them on site on the basis of their knowledge and experience of what they had to do. This was unavoidable because his business had as many as forty men on different sites at the same time. The main criterion for his employees was that they held a ticket as a scaffolder. If he was satisfied that they knew what they were doing and had the appropriate experience, he was happy to leave them on site to do their job. Of his roughly forty employees at that time, a little over half were permanent, and the balance were casuals. The company might have had eight or ten jobs at different sites at the same time. Mr Hill agreed that he was ultimately responsible for supervising all of those jobs, and the staff working on them. He would try to get around to as many of the sites as he could each day, but on some days he did not do this but rather worked on the same site all day. If he needed to keep in contact with staff at other sites he would use his mobile phone.

Mr Hill said that on the day in question he helped to build the scaffolding for the stage. His recollection was that he had been working with B & M staff.

Mr Hill agreed that in answer to an interrogatory by the plaintiff he had replied as follows:

45.What training (if any) did the defendant give the plaintiff in relation to the work method for unstacking transoms?
As the plaintiff was an experienced scaffolder (with at least five years experience of working on construction sites) he did not require specific training as to how to perform the work.

He agreed that it had been unnecessary to supervise the plaintiff closely in the performance of work such as unloading of a stillage, and unnecessary to give him specific directions about such a task. It was something his employees did every day.

Mr Hill had gone on to say in his answer to that interrogatory that the task of unloading transoms from stillages was carried out by two workers working together. He said that this was not a reference to the task generally, but to the particular job the plaintiff had been engaged in on the day of his injury. He was asked whether on other days transoms might be unloaded by one worker alone. His response was that if he was not there, he could not answer how they unloaded them. They might move them together, or they might do them one at a time. This was something he left to the workers to work out for themselves, depending on the job. There might be jobs where there just were not enough workers around for two of them to lift every transom. He accepted that he had seen his employees carrying transoms on their own, and that he had carried transoms many times on his own, over his thirty years as a scaffolder. It was a different thing putting a transom in place in scaffolding. This was difficult and required two men, particularly when working at height.

Mr Hill accepted that he had no recollection of any particular instructions he had given to the plaintiff on jobs before the day of his injury. Nor did he have any recollection of particular instructions he had given subsequently. Nevertheless he was insistent that he had a recollection of his conversation with the plaintiff on the morning of his injury.

He agreed that he had refreshed his memory some two days before giving his evidence, from the statement he had made to the investigator. He did not accept that his oral evidence was based entirely on the statement. He said that he would have spoken to the plaintiff and Mr Dunn together, because that was how he operated.

He was asked to recollect the specific events of the day. He said that he was trying to think back. When he went to a scaffolding site to start a job, he had given directions on how to carry out the job and how he wanted the scaffolding unloaded. He had given directions about what each employee’s job was to be, and how he wanted the scaffolding built. He gave those directions to his employees at the start of every job, if he was there. He agreed that it had not been his practice on every job to tell his employees that transoms had to be unloaded by two men. He had often lifted a transom by himself and he knew that a lot of his workers regularly did the same thing.

He was asked whether he had given any instruction about where an employee should stand when lifting a transom, or whether he had left them to their own devices in that regard. He said that he had left them to their own devices, and he had never instructed an employee not to put a foot into a stillage before lifting a transom.

He was asked whether the particular job required the erection of any structure other than the stage. He answered in the negative. He was asked whether there was a tower being erected as well, and replied that there was not.

He accepted that he was giving evidence about events of some seven and a half years earlier, and that his memory of particular events on the day had probably faded over that time. He had agreed that the injury had not appeared particularly significant to him at the time, and that his recollection of events was no longer perfect.

In other answers to the same interrogatories, Mr Hill had affirmed that the stillage containing the transoms had been delivered from the Rovera yard at Hume to the site by Rovera, on a Rovera truck, having been loaded by Rovera staff at their yard. The transoms had been interlocked within the container and strapped to secure them. Mr Hill had inspected them at the site.

No one from Rovera gave evidence. There is accordingly no evidence from that avenue as to when the Rovera truck arrived at the site to deliver the scaffolding equipment. There is evidence that the truck was equipped with a crane for the purpose of unloading and loading. There is no evidence as to whether the driver was alone or had a co-worker with him, or as to how to the crane worked. I am not clear whether the load was unloaded initially to the ground by Rovera staff, and later moved by Mr Hill using a forklift truck, or whether Mr Hill used the forklift to unload the stillages from the back of the truck. If the latter, it seems reasonable to assume that he was there to meet the truck when it arrived. It seems inherently unlikely that the truck driver would wait for a lengthy period for assistance in unloading it, when there was a crane available on the back of the truck to unload it immediately. What precisely happened in that regard is not important in arriving at findings of fact as to how the plaintiff’s injury occurred, but it is of relevance to Mr Hill’s memory of what happened on the day (or perhaps the day before) and hence as to the reliability of his evidence generally.

On 31 October 2005, Mr Hill completed a workers’ compensation notification form. On that form he recorded the time and date of injury as 2:30 pm on 27 October 2005, the injury as a sore or bruised ankle, and as to how the injury happened, “dropped transom on leg”.

This form was completed before the employee’s report was completed by the plaintiff. It seems likely to me that the stated date of injury was wrong, as well as the time of injury. The latter supports to some extent the plaintiff’s evidence that he informed Mr Hill of his injury after lunch on the day. I do not place much significance on Mr Hill’s description of the injury.

The only other witness called in the first defendant’s case was the investigator, Mr Grace. It was clear that he was called in an endeavour to satisfy the Court that Mr Dunn had indeed signed the typed statement, and made the handwritten changes to it when doing so.

Mr Grace has legal qualifications and many years ago practised as a solicitor. He subsequently worked for a time as a probation and parole officer in New South Wales. Since then he had been working as an investigator for 24 years before giving his evidence. He had conducted over that time thousands of investigations and thousands of interviews.

Refreshing his memory from file notes, he was able to say that he had initially spoken to Mr Dunn by telephone, having been given his name and telephone number by Mr Hill. He had made a number of telephone calls in an endeavour to make contact and arrange to take a statement from him. He could not recall where he eventually carried out the interview. He said that it was his usual practice to prepare a skeleton statement from other information, which he took to an interview to form the basis of the final statement.

It is apparent to me that he did so on this occasion because some of the wording in Mr Dunn’s statement is identical with wording in Mr Hill’s earlier statement – for example, the size and height of the stage and the fact that there was no need for high scaffolding and that the job was not dangerous.

Mr Grace’s evidence was that the handwritten alterations on Mr Dunn’s statement were in his (Mr Grace’s) handwriting, as was the date of the document, and his signature as witness. Mr Dunn’s signature was in Mr Dunn’s handwriting, and Mr Grace had seen him sign both pages.

He did not purport to recall his interview with Mr Dunn in detail. His practice was to sit down and read through the statement with the witness, and ask whether anything needed to be changed or added. He usually had his laptop computer with him and could have the statement retyped if there were substantial alterations to be made.

I asked Mr Grace whether he had identified Mr Dunn in some way, or asked for any form of identification. He said that he had not asked to see a driver’s licence or any formal identification, but he was satisfied that it was the right person because of his knowledge of the facts. There had been nothing unusual to suggest that it might not have been Mr Dunn. He explained that it was a feature of his work that when undertaking an investigation he would put in an intense effort for a short time, but after reporting to his client he would usually never see the persons from whom he had taken statements again.

This was the first time Mr Grace had ever had to give evidence in a civil matter about any statement he had taken, and the first time there had ever been an issue about the authenticity of a signature on such a statement.

Damages – the plaintiff’s evidence

The plaintiff said that after he removed the transoms from his leg and got it out of the stillage, he sat on the gutter for a while sitting there. The leg began to swell with bruising and some blood. After a while he took his boot off. A little later he was able to get some ice. He noted lumps or bumps and indentations on the muscle of his lower leg. He had some Panadol in his car and went and took some tablets after about twenty minutes. His recollection was that the injury happened at about 8:30 am or 9:00 am. The union bar opened nearby at about 12:00 noon and the plaintiff went in and got some ice which he applied to his ankle.

He did not see Mr Hill until lunchtime, when he told him what had happened. He was able to walk, but was in considerable pain.

He tried to work on but left a little early to go home. He applied ice at home and washed the wound as well as he could. He put some first aid gel on it. The pain interfered with his sleep for the first couple of nights, and had not been good since then. He would get up and take a couple of Aspro, wait for a while and then go back to bed. He thought that he did not go back to work for the next two days after the accident, but was not certain about this. After some time he made a claim for workers’ compensation which was accepted.

He saw his general practitioner, Dr Rashmi Sharma, on 29 October, four days after the injury. She prescribed rest, ice, compression and elevation (RICE), alternating with heat packs.

The plaintiff went back to work as soon as he could but there were no real light duties available and he saw himself as more of a hindrance than a help, although he tried to do as much as he could. His ankle and foot continued to swell, to the extent that if he took his boot off during the day he would find that he was unable to put it on again. He was taking painkillers and this affected his work.

The following month he was offered a job with Waco, another scaffolding company, which was full-time and permanent, and also lighter work. He had worked for Waco previously. He was put onto a government site where the work was a lot easier. They were provided with cranes to lift scaffolding. There was much less lifting and carrying. He also had a sympathetic foreman. But he realised after a few weeks that he was unable to cope with the work. He could not keep going. He resigned.

Dr Sharma continued to see him. She prescribed painkillers, anti-inflammatories and physiotherapy. In May 2006, she referred him to an orthopaedic surgeon, Dr Klar, whose advice was that he should have a fusion of the ankle. He gave up smoking before the operation, because Dr Klar would not perform it while he was smoking. He did not smoke for some months but after the operation he took it up again.

During 2006 he was given injections into the ankle but these were not helpful. He had a work trial with Repco Auto Stores which did not work out. He could not cope with walking on concrete floors or lifting and his computer skills were inadequate. This was in about December 2006.

The workers’ compensation insurer sent him to do a computer course, which he did not find easy or particularly satisfactory. His reading and writing skills, he said, are not great.

He found himself a security course he wanted to do, in the hope of getting a job as a security monitor, but the insurance company would not pay for it and he did not take it further.

In June 2007, Dr Klar operated to fuse the right ankle. The plaintiff was discharged from hospital on crutches with his leg in a cast. He had a couple of falls on steps, and slips on tiles. The plaster was removed in October 2007. The plaintiff said that he was sore and stiff and had trouble walking on the foot. He wore a “moon boot” for a period of time, a plastic boot with inflated airbags inside it. This was removed in about February 2008.

He became depressed, anxious and irritable, and was prescribed Lyrica for this. He was also prescribed Oxycontin, a strong morphine-based painkiller.

In May 2008, he was referred to Dr Garth Eaton at the Canberra Injury Management Centre, where he undertook a rehabilitation programme involving gym and swimming pool activities. The chemicals in the swimming pool affected his pre-existing psoriasis and he was unable to continue with hydrotherapy. He spent some time on exercise machines including an exercise bicycle. He had a number of sessions with a psychologist.

In November 2008, he had a work trial at a fishing shop which was unsuccessful. There was the suggestion of some further computer training offered by the insurer but there was apparently a breakdown in communication between the plaintiff, his general practitioner and the insurer, as a result of which this did not proceed.

Asked about any other attempts at work, the plaintiff said that during 2010 he had been asked by a friend to help out for a day on a building site but had lasted only about two hours and had to be taken home. Otherwise he had looked for jobs in the newspaper but had not found anything appropriate for him.

His car was automatic and equipped with cruise control, and he used his left foot for the brake, although he still tended to use his right foot instinctively in an emergency which was immediately painful. He was able to walk but not to run. He tried to avoid walking on uneven ground which sometimes led to cramps. He also had difficulty walking uphill and, even more so, downhill. His house had a number of steps down from the back door to the clothesline, which caused him difficulty hanging out washing and bringing in firewood.

By the time of trial, the plaintiff was seeing his general practitioner from time to time, generally for repeat of subscriptions. He tried to keep up with exercises which had been prescribed for him by a physiotherapist, in his own time. He was no longer on Lyrica or Oxycontin. He was taking Tramadol, Codalgin Forte (apparently a generic brand of Panadeine Forte) and Sertraline, an antidepressant.

He had had some help at home paid for by the insurer, but did not like people he did not know coming into his house. He had had help from friends and from his son who generally mowed the lawn, and hung washing on the clothesline. His son also did some cooking, and carried firewood into the house in the winter. The plaintiff tried to do most things around the house himself and did not like asking for help.

He had never been on Centrelink benefits. He had lived on workers’ compensation.

His ankle was still painful and, following the fusion, permanently restricted in movement.

He volunteered in chief that he had in past years drunk too much and lost money on poker machines. In July 2010, he had been convicted of a drink-driving offence and had lost his licence for six months.

I realised as counsel for the plaintiff came to the end of his examination in chief that although he had led evidence of the 1982 motorbike accident in which the plaintiff had fractured his right ankle, and other more minor injuries over the years, he had not made mention of a 1998 work injury which had been mentioned by his solicitors in particulars they had supplied to solicitors for the other parties. I mentioned this to counsel for the plaintiff who then asked him about it. Prompted by this, the plaintiff recalled that he had injured the discs in his neck and low back. He said that he had to wait for these to settle down. The best thing he found was getting out and getting a full-time job. The condition had been painful for a couple of weeks but, he said, then went away. The injury had occurred while he was driving a frontend loader for his then employer. Asked whether his neck or back had given him any problems since then, he replied “Not really, no, but not – no, it doesn’t wake me up, doesn’t bother me at all anymore”. He said that he had been going through Family Court proceedings at the time and that the stress of this had exacerbated his symptoms, but once the proceedings were over and he got back to work his symptoms settled down and “it's pretty right now”. I asked the plaintiff whether he still got a bit of lower back pain at times. He replied “No, not really, only if I’m stationary too long, and standing on my left leg most of the time. But I found when I was physical it was better”.

In cross-examination, the plaintiff was asked to comment on a record in a medical report of December 2006 where he had told a doctor that he drank over a dozen cans of beer a day, and had been doing that for the previous few months. It was also recorded that he occasionally smoked marijuana. He accepted that both of those statements were correct. He had smoked marijuana on and off since then. After his operation he had been depressed and had drunk far too much but did not accept that he had drunk as many as a dozen cans every day. He agreed that he did not go for a day without drinking.

The same doctor recorded in October 2008 that the plaintiff had told him that he had gambled excessively on poker machines and horse races, and had lost more than $20,000.00 since 2007. The plaintiff thought that this was probably correct. He said that he now limited himself, putting aside $20.00 for alcohol and $20.00 for poker machines, and going to a licensed club once only every two to four weeks.

He agreed that he had suffered from bouts of depression in the early 1990s, when his partner became anorexic and died. He was also significantly depressed in more recent years when a later relationship broke up and there was a dispute about custody of his son.

He was asked about a note by his general practitioner in September 1998 that he complained of pain in the mid-back and low back, so severe that he was unable to sit for prolonged periods. His injury at that time had arisen when he was jolted around on the seat of a front-end loader. He had seen an orthopaedic surgeon, Dr Ashman, in December 1998 complaining of continuing low back pain and left leg pain which was not getting any better.

He was asked whether he still had any problem with his low back. He said that he had not had any problem since the Family Court matter had settled and he had got back to physical work, prior to his accident in 2005.

He agreed that he had been referred to Dr John Corry, a rehabilitation specialist, in April 1999, and had complained of chronic spinal pain mainly in the low back since his injury the previous September.

He also accepted that in March 2003 he had been referred to the Pain Management Unit at the Canberra Hospital with severe neck and low back pain, related to the injury of October 1998.

He had brought a claim for workers’ compensation in respect of that injury, which was eventually settled for an amount between $100,000.00 and $150,000.00, the figure including his claim for long service leave and redundancy pay.

The plaintiff was cross-examined extensively by counsel for the second defendant in relation to a questionnaire he had filled in for the Canberra Hospital Pain Management Unit in October 2002. The history he gave in the questionnaire was of the 1998 injury, caused by jolting while driving a front-end loader. He complained of depression, frustration and pain which varied from aching to spasms and sharp stabbing pain. He recorded the areas of pain as the eyes, temples, forehead, neck, shoulders, back, arm and left knee.

The questionnaire listed a number of words to describe the present pain of the person completing it. The plaintiff chose the words: “throbbing, shooting, stabbing, sharp, pinching, burning, tingling, aching, tender, exhausting, sickening, frightful, cruel, blinding, intense, piercing, tight, cool and dreadful”. He listed the medication he was taking at the time as Zoloft, Panadeine Forte, Vioxx and Tramal. He gave his occupation at the time as Batcher-Allocator level 1, and accepted in cross-examination that in October 2002 he had not yet started working as a scaffolder. He gave his current source of income as unemployment benefits and work status as unemployed due to pain. Asked how long it had been since he had last worked, he replied that he had not worked since September 1998 apart from one attempt which lasted a week. This had been during the previous twelve months. He rated the level of his pain at the time he completed the questionnaire as 6 out of 6 (very intense). He rated himself 6 out of 6 for tension and anxiety and 6 out of 6 for irritability.

Counsel for the second defendant asked the plaintiff a number of questions which I infer were grounded upon investigation material. For example, he asked the plaintiff what coloured vehicle he drove and whether he had driven to a supermarket during the previous year to go grocery shopping on his own. He asked how many shopping bags the plaintiff might have carried from the supermarket back to the car, and whether it might have been more than four. He asked whether there had been any occasions in the previous year when the plaintiff had carried two bags and a case of beer from a store to his car. The plaintiff agreed that he quite possibly had engaged in these activities. Counsel asked him whether during the previous year he had on a regular basis carried a slab of beer and some grocery items from a liquor store at or near a supermarket to his car. His response was “define regularly”. He subsequently conceded that he might have done so every couple of weeks.

I infer that counsel for the second defendant had evidence available to call should the plaintiff have denied these activities. In the event no such evidence was called.

Counsel for the second defendant also asked the plaintiff a number of questions about fishing at or near Eden. I infer from the content of those questions that there existed some investigation material which could have been called in evidence if the plaintiff had given answers inconsistent with it. He agreed that he had been fishing from the wharf at Eden with his son. He agreed that he had probably taken an Esky with him as well as fishing gear. He agreed that he had a pair of bib-and-brace style waders which he had probably used during the previous year. He had been fishing at a river, and this involved walking on uneven ground, including through sand, to get from where he parked his car to the water. He had stayed overnight. He said that if someone had been watching him, if they had watched him for the next day they would have seen him sitting and doing very little. When he tried to do something, he was exhausted for the next couple of days. He thought that he had camped on the south coast only once in the previous year, but was not entirely sure.

He had been fishing a couple of months before the trial at a lake near where he lived in Canberra. He was not able to stay long, apparently because of the need to walk on uneven ground.

He had driven to Eden over the previous few months a couple of times to see his mother. Six weeks to two months before trial, he had been to pick his mother up to bring her back to Canberra for medical treatment, and he thought that he might have gone fishing for an hour or so during that trip.

Counsel for the second defendant asked the plaintiff why, when asked to give a full medical history to a number of doctors he had seen for the purposes of the case, he had said nothing about his 1998 neck and low back injury. His answer was that it had not been relevant to his 2005 leg injuries. He had given a history of the 1982 fracture to his ankle, because that had been relevant. He had had other injuries he had not mentioned either – a broken thumb, a sprained wrist, a burn. These had to his mind not been relevant either.

One of the doctors had recorded a history of some injuries and surgical procedures, and then written “He denied other injuries, accidents, operations and illnesses”. It was put to the plaintiff that he had made a conscious decision not to disclose his history of neck and back problems to that doctor. His response was that he was not having problems with his neck or back at the time he saw the doctor. As far as he was concerned he was over it.

The medical evidence

None of the treating doctors gave oral evidence. The only medical witness who gave oral evidence was Dr Graeme Griffith, a consulting surgeon who had provided four medico-legal reports to the plaintiff’s solicitors. Reports of treating doctors and other doctors who had seen the plaintiff for medico-legal purposes were tendered without objection.

Senior counsel for the first defendant tendered two reports by Dr Paul Miniter, orthopaedic surgeon, and counsel for the second defendant tendered a report by Dr Anthony Smith, also an orthopaedic surgeon. Although none of the doctors apart from Dr Griffith was cross-examined, I adopt the usual practice of the Court in drawing no inference adverse to opposing parties in not requiring doctors for cross-examination where there is a clear difference of opinion on the medical evidence. It has been common experience that medical practitioners giving expert opinion evidence in these circumstances will generally adhere to the opinions they have previously expressed, and that to require their attendance for cross-examination simply adds to the length and cost of the trial, usually to little or no purpose.

The plaintiff’s general practitioner, Dr Sharma, prepared three reports (21 September 2006, 17 March 2008 and 30 December 2008). She said in the first report that the plaintiff had come to see her on 29 October 2005 with a history of injury to the right ankle at work, causing immediate swelling and pain. He had had the Thursday and Friday off work (29 October was a Saturday). He had gone to the hospital on the Friday in severe pain but due to the long waiting time he had not been seen there.

On examination he had abrasions on the right lower leg, anterior shin and ankle, with a tender lateral mallelous with swelling and bruising around and below it. There was also tenderness and swelling over the medial malleolus.

Dr Sharma referred the plaintiff for an x-ray of the right ankle which did not show a fracture but revealed osteoarthritis of the talocrural joint. In January 2006, she referred him for an MRI scan of the shin, which showed scarring of the periosteum and confirmed osteoarthritis of the ankle. She referred him for physiotherapy, and he also received some massage treatment.

The last time she had seen him prior to that report was earlier in September 2006. He had complained of continuing soreness of the ankle and shin with prolonged walking or standing. These also led to swelling. His condition in her view was stable. It had not worsened but had not improved to pre-injury level. She did not think that that time that he would be able to return to work as a scaffolder. He would not be safe to work at heights and would be limited to sedentary work. His prognosis was guarded. His ankle symptoms were likely to worsen and he would probably come to fusion in the long term.

Dr Sharma reported again in March 2008. She thought that the plaintiff might have developed a chronic regional pain syndrome. His symptoms were consistent with this. His lower right leg was still swollen, with temperature changes and pain. He had developed depression and frustration over his physical limitations and inability to go back to work. She gave him a trial of Lyrica, a neuropathic pain medication.

He had undergone a right ankle fusion in June 2007. His recovery from this procedure had been complicated by falls. In August 2007, he had fallen down stairs because his crutches had not been properly fitted for his height. In October 2007 he had another fall down stairs. He had yet another fall later in October 2007. Imaging showed two undisplaced stress fractures, one of the base of the first metatarsal, and the other of the second metatarsal. Despite this, his fusion seemed to have consolidated. He continued to have severe restrictions on his ability to work. He lacked the skills for sedentary work. He needed retraining for such jobs. He had shown interest in working as a security guard in a monitoring room. His prognosis was poor in view of his continuing pain in the right lower leg and foot, and possible chronic pain syndrome, complicated by his understandable depression and frustration.

In December 2008, Dr Sharma said that the plaintiff’s condition had worsened since her last report. His limp was more marked and he displayed pain avoidance behaviour. He was seeing a psychologist to help with pain management, and developing strategies to help with his depression. Dr Sharma did not think that his condition was stable. He felt that his pain was becoming worse, waking him at night. He had even suggested amputation of his foot as a possible solution. He did not seem to be getting much help from painkilling medication. He was not fit to return to manual labour. He had few computer skills and no office skills. He might be able to work in the building industry if a sedentary job could be found for him. His prognosis remained guarded.

Dr Robyn Schellenberger, orthopaedic surgeon, saw the plaintiff in September 2006, prior to his fusion operation. He gave her a medical history of his motorcycle accident at age 19 in which he fractured his right ankle; surgery to his left elbow years ago; a hernia repair; and fractured fingers and fractured ribs from accidents which he had fully recovered. She said that he denied other injuries, accidents and illnesses. The point was made by counsel for the second defendant during cross-examination of the plaintiff that he had not told her anything about his neck and low back injury in 1998, and this is patently the case.

Dr Schellenberger thought that the plaintiff was prone to progressive ankle-joint arthritis in the future, and could ultimately become a candidate for an ankle fusion operation.

Her prescience in that regard proved justified when Dr Brendan Klar, orthopaedic surgeon, performed the fusion operation in June 2007. Four reports by Dr Klar were tendered, the last of which followed a review in September 2007. X-rays showed good fusion across the ankle joint. The plaintiff was to wear an Aircast (a moon boot) and was able to return to weightbearing as tolerated, and to driving a motor vehicle. He had been referred for further physiotherapy for strengthening and gait retraining. There was a possibility that he might develop reflex sympathetic dystrophy but Dr Klar hoped that he would not.

The plaintiff’s solicitors referred him to a Melbourne psychiatrist, Dr Stephen Stern, for assessment and report. Dr Stern saw him on two occasions, in December 2006 (prior to the fusion operation) and in October 2008. In his first report Dr Stern noted that the plaintiff was depressed and short-tempered, and also tearful at times. He complained of disturbed sleep. He was drinking over a dozen cans of beer a day and occasionally smoked marijuana. He had made a compensation claim for a low back injury in 1995 (probably a reference to the 1998 injury) and had been off work for a few months without total recovery. He still had recurrent low back pain. Dr Stern diagnosed an adjustment disorder with mixed anxiety and depressed mood, accompanied by alcohol abuse. The plaintiff’s psychiatric state was related to the injury to his right ankle in October 2005 and his continuing pain. He had a past history of depression which predisposed him to his current psychiatric disorder. His psychiatric prognosis depending largely on improvement or resolution of his physical symptoms.

In his second report, Dr Stern noted that the plaintiff had undergone a right ankle fusion in June 2007, but that this had not been helpful. He had been left with constant pain and swelling of the right ankle. The plaintiff also complained of recurrent pain in the low back. His mood fluctuated. He continued to be depressed, tearful and short-tempered, and he continued to drink up to a dozen stubbies of beer a day, and to smoke marijuana every few days though not when his son was staying with him. He was smoking twenty to thirty cigarettes a day. He had gambled excessively on poker machines and racing since 2007 and thought that he had lost more than $20,000.000. He had seen a psychologist for six sessions during 2007 and early 2008, without much benefit. There had been no obvious improvement in his chronic adjustment disorder with mixed anxiety and depressed mood. This was related to his work injury of October 2005. His psychiatric condition had stabilised. It was possible that he would be left with chronic anxiety and depression in reaction to his chronic pain.

Dr Miniter saw the plaintiff in Sydney in January 2007 at the request of the first defendant’s insurer. The plaintiff gave him a history of his ankle fracture twenty-five years earlier but not of his neck and low back injury in 1998. Dr Miniter thought that the plaintiff had suffered a significant injury to the right ankle. He accepted that there were no marked symptoms in the ankle before the 2005 injury. It was likely that the aggravation caused by the injury had become permanent and a severe problem. He thought that the plaintiff had presented as a genuine individual. There was, however, in his opinion no doubt that the majority of his problem pre-existed the 2005 incident. He had previously suffered from osteoarthritis of the right ankle, since the motorcycle accident twenty-five years earlier, with some aggravation of the arthritis caused by the incident in October 2005. His pain was severe and would prevent him from continuing to work in the medium term. The main factor causing his symptoms was the osteoarthritis in the right ankle. There was no doubt that his symptoms were much worse than before the 2005 injury, but it was difficult to determine an accurate association between that injury and the plaintiff’s current issues. Dr Miniter thought that the majority of any aggravation caused in October 2005 had settled by the time he saw the plaintiff, or at least he would assume that. He found it impossible to quantify accurately the contribution of the motorcycle incident and the 2005 injury to the plaintiff’s condition at the time he saw him. He required an ankle fusion. He thought that an ankle fusion would have eventually been required in any event, regardless of the 2005 injury, but that it was difficult to determine when this would have occurred. The majority of his symptoms were related to his pre-existing condition, that is prior to the 2005 injury. Notwithstanding this, Dr Miniter accepted that the ankle had presented little if anything by way of symptoms before the 2005 injury. He noted that twenty-five years had passed between the initial injury and his appointment with the plaintiff. Dr Miniter found it impossible to determine when symptoms might have developed requiring ankle fusion, but he thought that on the balance of probability this would have come to pass by 2015. He acknowledged that this was conjecture on his part.

Dr Griffith is a Melbourne surgeon who visits Canberra from time to time to carry out medico-legal assessments. He saw the plaintiff four times in Canberra: in September 2007, June 2008, December 2009 and February 2012. He prepared four reports which are in evidence. Characteristically his reports are each lengthy and detailed. He spent eighty minutes with the plaintiff for his first report. He has not recorded in his reports the length of time he spent at the review appointments.

The plaintiff gave Dr Griffith a history of previous injuries and surgery, including his 1982 motorcycle accident, but did not mention his neck and low back injury in 1998.

Dr Griffith took the view that prior to October 2005 the plaintiff was probably suffering from asymptomatic osteoarthritis of the right ankle joint dating from his motorcycle accident. The injury in October 2005 had caused major aggravation of the arthritic joint, causing it to become symptomatic, and accelerating the progress of the arthritis to the extent that a fusion was required.

At the first consultation, the plaintiff was still recovering from the fusion surgery and his leg was still in a cast. By the time of his second report the cast had been removed. Fusion had been successful but there was marked muscle wasting of the lower right leg. The plaintiff continued to complain of excruciating pain in the right toes and heel, particularly on walking. He was not coping psychologically, and in Dr Griffith’s opinion exhibited all of the manifestations of an ongoing chronic adjustment disorder with elements of depression and anxiety. His presentation was entirely consistent with his history of unremitting chronic pain in the right ankle and foot. Dr Griffith thought that he was suffering from a neuropathic pain state of the right ankle, possibly the end point of a chronic regional pain syndrome type 1. Physically his fusion was sound and the post-traumatic fractures following his falls in October 2007 had united. He had virtually no movement in his subtalar joint. He remained unfit for his previous work. He might be able to return to work in a clerical or similar position, for example security monitoring, if his depression was better dealt with. His prognosis was guarded. Pain states of that nature were notorious for their chronicity and for their intrusiveness. The psychological sequlae were of major importance in getting back to a normal lifestyle or to employment, something often not addressed satisfactorily by those treating professionals whose primary focus was on the mechanical aspects of the injury. Dr Griffith thought that the multifaceted approach offered by Dr Eaton should be of great benefit to him.

When Dr Griffith saw the plaintiff in December 2009, he was convinced that he was suffering from chronic regional pain syndrome type 1. His presentation and behaviour were of resignation and frustration, but not particularly demonstrating embellishment or exaggeration.

Dr Griffith saw the plaintiff again in February 2012. He remained markedly symptomatic. In Dr Griffith’s view he was continuing to suffer from a chronic regional pain syndrome in the lower right leg, accompanied by a chronic adjustment disorder with depression and anxiety. He was still drinking regularly and smoking. He remained unfit for physical work.

Dr Griffith gave oral evidence. He agreed in cross-examination by counsel for the second defendant that he had been unaware of the plaintiff’s injury to the neck and low back in 1998, and unaware of any symptoms in those areas of the body.

Dr Griffith was informed of the plaintiff’s completion in October 2002 of the questionnaire for the Canberra Hospital Pain Management Unit. He said that the way in which the plaintiff had completed that questionnaire was indicative of a significant chronic pain state. He was aware that there was a waiting list of some months to be seen by that unit at all. Dr Griffith added that if the plaintiff had been taking Panadeine Forte in the quantities he indicated in the questionnaire for some years, this would suggest a fairly significant pain state needing relief, and probably also dependence on codeine, which is an opiate. The taking of Tramal, a strong analgesic, in addition to Panadeine Forte suggested that the plaintiff had a high level of pain perception.

Dr Griffith said that where a chronic pain state had continued for more than four years, the prospects of a full recovery were poor in principle.

Dr Griffith was asked whether, if it had not been for the accident in October 2005, the plaintiff would have been able to continue in heavy manual work until the age of 60, having regard to the chronic but asymptomatic osteoarthritis in the right ankle dating from the 1982 accident. He thought that the plaintiff would probably not have been able to continue working to the age of 60, though this was a matter of speculation and one had to bear in mind that there had been no symptoms until October 2005 when the plaintiff was 42, the fracture having happened when he was 19. Pressed about the probabilities, he thought that the plaintiff would have been able to work for at least another five years after 2005 as a scaffolder, and that there was a 50% chance that his osteoarthritis would have become symptomatic and prevented him from working in heavy physical work until normal retirement age.

Dr Griffith thought that the plaintiff would probably have been able to work for a maximum of ten years if it had not been for the accident. It is unclear to me, reviewing the transcript, whether the doctor meant ten years from 2005 or ten years from when he gave his evidence in May 2012. He said in re-examination that the plaintiff could possibly have gone on to normal retirement age but that he would probably not have been able to do so. This depended on the individual and his perception of pain, but it was in the area of conjecture.

Dr Eaton first saw the plaintiff in March 2008, on referral from Dr Klar. Dr Eaton diagnosed the plaintiff as suffering from complex regional pain syndrome type 1, with recurrent major depressive disorder. He arranged for the plaintiff to undergo a cognitive behavioural pain management program including psychological counselling, pain management education and an exercise and stretching programme. He thought that the plaintiff had gained some value from this programme, but his pain had continued and he remained depressed, frustrated and angry. He did not seem to be able to move forward with his life and did not accept his situation. Dr Eaton thought that all of this would be less of a problem if the plaintiff could secure appropriate employment. His prognosis was guarded, and it seemed likely that he would have chronic right ankle pain of fluctuating severity indefinitely. He was totally and permanently unfit for scaffolding and other heavy physical work, and would require extensive assistance to find suitable employment.

Dr Eaton reviewed the plaintiff in February 2012, a few months before the trial. His diagnosis remained the same. He thought that the plaintiff was incapacitated for work permanently, and that his psychological condition was a contributing factor to this. He was only ever likely to be fit for sedentary work, for example, light manual work in a seated position.

Dr Knox, psychiatrist, saw the plaintiff in March 2012 for a report at the request of his solicitors. He concluded that the plaintiff had developed a chronic psychiatric disorder in the form of an adjustment disorder with mixed anxiety and depressed mood. He was unlikely to be assisted by psychological counselling by reason of his personality, although Dr Knox still recommended that arrangements be made for him to see a psychologist for six sessions of counselling. Despite this he thought that the plaintiff’s psychiatric condition was likely to be permanent, and that he was likely to be permanently and totally incapacitated for work by reason of both physical and mental health problems.

Counsel for the second defendant tendered a report by Dr Anthony Smith, orthopaedic surgeon. Dr Smith saw the plaintiff in February 2009. He was aware of the ankle injury at age 19 but not aware of the neck and low back injury in 1998. He thought that the plaintiff, having had a successful ankle fusion operation, should be fit to return to work, the object of the exercise of the fusion being to relieve the pain and enable the patient to engage in whatever activities they wished to engage in.

His opinion was that the 2005 injury had caused an aggravation to the condition of the right ankle, and that by the time he saw the plaintiff the aggravation had long since ceased. His symptoms by then were in Dr Smith’s opinion a consequence of the motorcycle accident in 1982. The plaintiff had been, in his opinion, incapacitated for no more than three months by the accident of October 2005. He might have required some domestic assistance during the first month or two.

Liability – analysis of the evidence

The factual findings to be made in this case depend upon an assessment of the evidence of the plaintiff, his employer Mr Hill, and his fellow employee Mr Dunn. Some assistance is available from contemporaneous documents.

It is regrettable that the action did not come to trial until some five and a half years after the plaintiff’s injury. I must take into account the fact that the injury would not have appeared particularly serious at the time, either to Mr Hill or to Mr Dunn, in each case making it somewhat less likely that the events would be imprinted on their memory than if it had been an obviously very serious injury.

There is no doubt that on the date of the incident in October 2005 the plaintiff suffered what was later confirmed to be a serious injury to his right ankle. Having said that, he was able to work for the rest of the day and it would not have been apparent to others there at the time that the injury was as serious as it turned out to be.

I am satisfied that the incident happened on Tuesday 25 October 2005. All of the evidence supports that conclusion, despite the fact that other dates were written into earlier forms and records.

I am satisfied that the plaintiff suffered an injury to his leg while unloading transoms from a stillage on site at the University of Canberra. There is no evidence other than that of the plaintiff himself as to precisely how this happened. I accept his evidence that, for the purpose of unloading transoms from the stillage, the plaintiff placed his right leg inside the stillage. I accept that somehow, in the course of this activity, one or more transoms fell against his shin and ankle. Whilst it is not possible to be certain about the mechanism of the movement of the transom or transoms, it seems to me more likely than not that this happened because the stillage was on something of a slope. If it had been on entirely level ground, it is hard to see how the accident would have happened at all. I am accordingly minded to accept the evidence of the plaintiff that the stillage was on something of a slope, perhaps because it had been placed wholly or partially on a garden bed adjoining the path and lawn. I bear in mind that there had been a truckload of stillages unloaded on to the general area. I accept the evidence that each stillage had been placed on the ground, and that none had been unloaded one on top of another.

To the extent that there is some suggestion in the evidence that the plaintiff might have lifted a transom and then dropped it on to his leg, I reject that. It seems to me far more likely that in the unloading operation, while his foot was in the stillage, a transom or perhaps more than one transom moved onto his lower right leg. I accept that each transom weighed about 48 kg, and that such movement, even of one transom, would have been sufficient to cause injury in those circumstances.

There is no doubt that the plaintiff’s credibility was damaged by his failure to give the doctors who examined him for the purposes of the case any history of his 1998 neck and low back injury. I understand his explanation, that he did not see this as relevant to his lower leg injury, but it seems to me more likely than not that his failure to record that part of his medical history was deliberate and designed to assist his case. It is clear from the evidence that far from making a speedy and complete recovery from the 1998 injury, the plaintiff had been troubled by continuing severe symptoms in the neck and low back for some years after it, and I think it likely that he did not want the doctors or the Court to know about that.

As against that, the evidence is that he was able to work as a scaffolder for a lengthy period, certainly a couple of years or more, before the 2005 injury.

The plaintiff in the 2002 questionnaire to the Canberra Hospital Pain Unit had painted a picture of serious disability arising from the 1998 injuries. Either his answers in that questionnaire were truthful, or he exaggerated the effect of those injuries at that time. He might have had some motivation to do so, if his workers’ compensation claim following the 1998 injuries had not yet been resolved. It also seems to me that at that time he was feeling sorry for himself because of the break-up of a domestic relationship. This is supported by some of his comments in the questionnaire about the behaviour of his spouse. An example is his answer “I don’t have a partner but the one I had would be jumping for joy at the thought of me in pain – and if I believed in voodoo dolls I would ask someone to check her bedroom dresser”.

To the extent that it is necessary for me to make a finding about this, I lean towards the view that the plaintiff exaggerated the effect of his symptoms in his answers to the questionnaire in October 2002. If they were true, they would seem inconsistent with his ability to engage over the next three years in heavy physical work as a scaffolder.

The plaintiff’s credibility as a witness was also undermined by the cross-examination by counsel for the second defendant about his fishing. It was apparent from his answers that he had not intended to volunteer anything about his fishing activities, and that his answers to questions about these activities were carefully considered in the context of how much information the defendant’s investigators might have about them. I was left with the impression that the plaintiff had engaged in fishing with his son to a rather greater extent than he admitted. This generally had the effect of casting doubt on his evidence about what he could and could not do at home, and in shopping and other tasks of an everyday kind.

It is not unusual, in personal injury litigation, to encounter a plaintiff who seems motivated to make the most of his opportunities. A plaintiff in these circumstances must be taken to realise that the focus is on him, and that the damages he might recover will be significantly influenced by the image he presents. I did not come to the view that the plaintiff was inherently a dishonest man, but it did seem to me that he was putting his best foot forward in his evidence, and would not be likely to have volunteered information which might be to his detriment in terms of the assessment of damages. I accordingly approached his evidence with some scepticism, accept where it was independently corroborated.

At the same time, I was not particularly impressed by the evidence of Mr Hill. To be fair to him, many of his answers were framed in terms of what he would have done as opposed to what he remembered doing. An example: his evidence was that the job at the University of Canberra was a one-day job and that he had unloaded the stillages as his first task on the morning of that day. This is inconsistent with the evidence of the plaintiff, which I accept, that he arrived at work at between 7:00 am and 7:30 am and that the stillages were already unloaded, on the ground, and ready for their contents to be carried to the site of the stage. It seems to be more likely than not more likely than not that Mr Hill did move the stillages, either from the truck or from a position on the ground where they had already been unloaded from the truck by Rovera staff, but that he did this the day before the plaintiff’s injury. Generally I was not satisfied that Mr Hill had a particularly clear recollection of the events of the day. I prefer the evidence of the plaintiff, that Mr Hill was not present on site when he was injured, but rather arrived on site at about lunchtime on the day when the plaintiff reported the injury to him.

I accept that Mr Hill was at the site briefly in the morning, to drop Mr Dunn off, but I think it likely that he left soon after, probably to attend at other Tower worksites during the course of the morning. I prefer the evidence of the plaintiff, that he was not given any instruction on that morning to carry transoms with Mr Dunn rather than on his own. I do not accept Mr Hill’s evidence that he gave that direction on that morning.

As to Mr Dunn: I generally accept the evidence of the investigator, Mr Grace, that he obtained a statement from Mr Dunn, attended him when the statement was signed, made handwritten changes to the statement as he went through it with Mr Dunn, and witnessed it. I utterly reject Mr Dunn’s evidence that his statement was a forgery. I am not sure how he locked himself into that position in his oral evidence. I think more probably than not he no longer had any independent recollection of having made the statement. I should say that I do not for a moment think that Mr Dunn deliberately gave false evidence, and I reject the suggestion made to him by counsel for the defendants in cross-examination that he committed perjury.

However, I do not accept Mr Dunn’s evidence that he and the plaintiff were directed by Mr Hill to unload and carry transoms together rather than individually. I really cannot explain how it came about that Mr Dunn made a statement saying one thing, amended it to say something a little different, and five years later gave evidence completely inconsistent with either version. It is enough for me to say that I accept that when the plaintiff was injured, he was in the process of unloading transoms from the stillage on his own, and that he had not been directed to unload and carry transoms with Mr Dunn, or with the assistance of another employee. I accept his evidence that it was a common thing on a building site for one employee to take a transom out of a stillage and carry it to the scaffolding site, whilst two employees were required to place the transom into position as part of the scaffolding.

I am also persuaded that the system of a single employee unloading and carrying a transom was an unsafe one. I accept the evidence of Mr Dohrmann that a transom of 48 kg or thereabouts was much too heavy for one man to lift out of a stillage and to carry alone. It was unsafe primarily by reason of its weight and the risk of a back injury, but it seems to me that it was also an unsafe system of work to allow one employee to remove a transom from a stillage without assistance.

I cannot make a precise finding as to how it came about that the transom or transoms came to move or fall against the plaintiff’s leg. It seems to me more likely than not that this was because the stillage had been placed on a slope, even if not a particularly steep one. I reject any suggestion that the plaintiff picked a transom up and then dropped it onto his leg. It seems to me far more likely that, while the plaintiff had his right leg inside the stillage and was in the process of lifting a transom from a stacked horizontal position, somehow the load of transoms fell towards his leg and struck it.

Regardless of the regulations in force, this seems to me to have been an inherently unsafe system of work. This conclusion is supported by the regulations. The first defendant, through its director and manager, Mr Hill, should have had in place a safer system. I am satisfied that the injury would not have happened if the stillage had been placed on level ground and if transoms had been removed and carried by two employees together, rather than by the plaintiff alone.

A properly conducted risk assessment would, in my opinion, have led to this conclusion in advance, and would have avoided the injury.

I am accordingly satisfied that the first defendant, as the plaintiff’s employer, failed in its duty to provide him with a safe system of work, and not to expose him to a risk of injury of which it ought to have known.

I am not satisfied that there was any negligence on the part of the second defendant, Rovera. I cannot be satisfied on the evidence that it was a Rovera employee who unloaded the stillage and placed it on sloping ground. In any event, I am not persuaded that Rovera owed any relevant duty of care to the plaintiff.

Senior counsel for the first defendant did not address at any length on contributory negligence. I am not satisfied that on the evidence the plaintiff did anything which amounted to contributory negligence.

The plaintiff is therefore entitled to succeed against the first defendant but must fail against the second defendant.

Damages – analysis of the evidence

Whilst I accepted the thrust of the plaintiff’s evidence, I had some reservations about the severity of his symptoms. The reliability of his evidence was called into question by his failure to mention his 1995 work injury to the neck and lower back, both by way of history to the doctors who saw him for the purposes of this case, and in his evidence in chief until I asked him about it after his counsel had said that he had no further questions. The plaintiff had clearly had significant neck and low back symptoms which he had decided not to tell the Court about.

The reliability of his evidence was also damaged by his failure to be open and honest about his physical activities, in particular his fishing activities, until these were brought out in cross-examination and until, I thought, he realised that the second defendant probably had investigation material available to be adduced in evidence if he did not make appropriate admissions.

Because of this, I was and remain somewhat dubious about his evidence generally about the severity of his symptoms. I take account of the fact that the opinions of the doctors are based to a considerable extent on their acceptance of his complaints, which may well have been to some degree exaggerated.

Having said that, I must accept that the plaintiff has suffered from severe pain and restriction of movement in his right ankle. I am sure that he would not have had the fusion operation if the pain had not been such as to warrant this in his mind. Similarly, I am satisfied that he has taken painkilling and other medication to the extent he had, principally because of the severity of his pain.

I have some trouble with the opinion of Dr Smith and Dr Miniter, that the plaintiff’s complaints and symptoms should be seen as the result of the 2005 injury only for a limited period, and thereafter should be seen as the result of his 1982 motorcycle accident. It may be that to some extent the issue is one of a different concept of causation by doctors and lawyers.

I am satisfied that any symptoms the plaintiff had in his right ankle prior to October 2005 were minimal and not such as to interfere with his capacity to undertake heavy physical work, and to engage in recreational activities including fishing, walking on uneven ground, and kicking a football with his son. In other words, if he had any symptoms in the right ankle related to the 1982 fracture, these were minimal and of no consequence in his life.

I am satisfied that after the 2005 injury, he developed severe symptoms of pain and restriction of movement in the ankle.

I accept that it is reasonable to see the 2005 injury as aggravating pre-existing osteoarthritis in the ankle. But I am not persuaded by the opinions of the medical specialists that there was any significant likelihood of that osteoarthritis becoming symptomatic, in the absence of some traumatic incident, for many years if at all. It must be borne in mind that orthopaedic surgeons see and treat patients with osteoarthritis in an ankle joint only because their condition is causing symptoms of pain and restriction of movement. People with asymptomatic osteoarthritis in a joint are not referred to or seen by orthopaedic surgeons. I do not accept that a practising orthopaedic surgeon has the expertise to express a helpful opinion as to when such a condition might become symptomatic in the future in the absence of trauma. None of the orthopaedic surgeons in this case referred to any studies about this matter. I take the view that they are likely to have been relying only on their own experience, which perforce will have been limited to treating and assessing patients complaining of symptoms. I am not satisfied that the orthopaedic evidence helps me to arrive at a view about when, if at all, the plaintiff’s ankle condition might have become symptomatic in the absence of an injury or traumatic incident. At the same time, I must take account of the fact that the plaintiff had osteoarthritis in the right ankle, albeit asymptomatic, and that he had had, for a period of years after the 1998 injury, painful symptoms in the neck and low back. It seems to me that the combination of these factors would justify a greater than usual reduction in damages for the future than would be appropriate for a man of the same age with no pre-existing deficit.

I am satisfied that the injury of October 2005 is at least a cause, and more probably than not the sole cause, of the plaintiff’s continuing pain and restriction of movement in the lower right leg.

There is no issue on the medical evidence about the psychological or psychiatric consequences of the injury for this plaintiff. Dr Stern and Dr Knox generally agreed that the plaintiff if suffering from a chronic psychiatric disorder, being an adjustment disorder with mixed anxiety and depressed mood. The evidence is that he is predisposed to that condition by a past history of depression, but there is no evidence that his condition is likely to have arisen in the absence of such a physical injury. The psychiatrists agree that his psychiatric state is causally related to the injury of October 2005.

There is no real issue that whilst the ankle fusion operation of June 2007 was technically successful, it has not had the desired effect of removing his pain. I accept that the pain will be with him permanently.

There is no question that he is and will remain physically unable to resume scaffolding work, or work of a heavy physical nature. The only work he has ever done in the past has been in that category. He is, I accept, unsuited to office or computer work. His capacity for work is reduced not only by his pain and physical symptoms, but also by his psychiatric condition. It is now more than seven years since the injury. There may be a limited range of jobs the plaintiff is capable of doing, but it is hard to imagine that he would be the successful candidate in applying for such a job, having regard to his physical and psychological disabilities. I think it far more likely than not that the plaintiff will not re-join the workforce.

The conventional age for retirement has for many years been 65 years. I can take judicial notice of the fact that government policy is to increase this to 67 years over time. I can also assume that for occupations involving heavy physical work, it may be more usual to retire at 60 years, although there will be Government encouragement in the future to increase this also. The plaintiff was 42 at the date of his injury and is now 50. I propose to adopt 60 as his likely retiring age if it had not been for the 2005 injury, and to calculate his damages for loss of earning capacity for the future accordingly, taking into account the factors I have previously mentioned.

Counsel for the plaintiff seeks an award of $120,000.00 for general damages for pain and suffering and loss of enjoyment of life. Counsel for both defendants submitted that an appropriate range was $100,000.00 to $120,000.00.

I am satisfied that the level of the plaintiff’s pain has been and continues to be severe. I am also satisfied that the loss of his capacity to work has had a marked effect on his quality of life. He had a pre-injury tendency towards depression which has been triggered by the severity of his physical injuries and what he would reasonably see as the hopelessness of his situation. There is no reason to suppose that the injuries have reduced his expectation of life. He is now 50 and can expect to live for 30 years or a little more. I am persuaded that $120,000.00 is an appropriate award for general damages.

The plaintiff is entitled to interest on the proportion of that sum applicable to the past. I apportion the general damages award equally between past and future. The past component should be seen as spread relatively evenly over the period since the injury, but weighted somewhat more heavily towards the early period after the injury. The applicable interest rate is 4% per annum. For interest on the past portion of general damages I award $12,000.00.

A document was tendered in the plaintiff’s case listing payments made by the first defendant’s workers’ compensation insurer. This includes the amount of each payment, and, for periodical payments of compensation for lost earnings, the period each payment related to. The last period for which the plaintiff received compensation in that category was up to 16 May 2010. The list also shows commutation payments, though not the date of those payments. Payments were made of $147,500.00 to the plaintiff’s solicitors, $17,500.00 to Medicare and $10,000.00 to the plaintiff himself. It seems reasonable to infer that these payments were made on or about 16 May 2010. The total of the commutation payments was $175,000.00. I can assume that the payment of $17,500.00 to Medicare was one required by statute, and that Medicare would, some time after receipt of that payment, have paid an amount representing the bulk of the $17,500.00 to the plaintiff, after deducting any payments by Medicare which were related to the injury. There is no evidence of what such payments might have been, but it seems unlikely that there would have been any, considering that generally speaking the plaintiff’s medical expenses related to the accident until that time had been paid by the insurer. In all, including the commutation sum, treatment expenses and periodical compensation, the insurer has already paid out $408,911.88.

Up to trial, the plaintiff had claimed, and Medicare had paid, a further $1,200.00 for expenses. This would have covered general practitioner visits to that time, at about $600.00 per year. Additionally the plaintiff incurred expense for medication.

I note that the plaintiff’s solicitors stated in the last Statement of Particulars filed, in August 2009, that to the best of the plaintiff’s knowledge all of his medical and out-of-pocket expenses had been paid by the first defendant’s insurer.

The evidence is that at the time of his injury in 2005 the plaintiff was earning $840.00 net per week. There is no evidence that the plaintiff suffered any actual loss of earnings, while his payments of workers’ compensation continued. The evidence does not descend into detail as to how much the plaintiff would have been earning as a scaffolder at the date of trial or the date of judgment. It seems reasonable to assume that over the intervening period of a little over eight years there would have been some increase in his earnings. I propose to adopt a net figure of $1,000.00 a week for the period since commutation of his claim for workers’ compensation in mid-May 2010, and for the future.

The plaintiff’s evidence at trial was that he was still taking Tramadol, Codalgin Forte and Sertraline, an antidepressant. There were no receipts tendered and the evidence does not go into detail about how much his medication was costing. The workers’ compensation schedule reveals that over the period from the injury until commutation the insurer paid amounts to Calwell Capital Chemist amounting to several thousand dollars, in additional to some reimbursement to the plaintiff for chemist expenses. In the absence of evidence about specific amounts after commutation, and at the present date, all I can do is award a generalised figure for past and future medical and chemist expenses. I am satisfied on the evidence that the plaintiff has proved a past and future loss in this regard, and must do the best I can to quantify it.

If I had found the second defendant liable, I would have had to give judgment against that defendant for an amount which was inclusive of the payments made by the first defendant’s insurer. Because I have found only the first defendant liable, the damages payable by that defendant should not include the amounts it has already paid.

I cannot be satisfied on the evidence that the plaintiff has incurred any expense up to the date of commutation which has not already been paid by the insurer.

The insurer, over the period of four and a half years from the injury until the date of commutation, had paid almost $10,000.00 in chemist expenses – something over $2,000.00 a year. I propose to allow a figure of about $2,000.00 a year, or about $40.00 a week, for chemist expenses since then and into the future.

I make a small allowance for the likelihood that the plaintiff will be put to some additional expense, perhaps for physiotherapy or massage, in the future.

For past expenses since May 2010 I allow $10,000.00. The plaintiff has probably paid most of this by way of chemist expenses, although he may well have claimed on Medicare for all or part of the doctors’ bills. I allow $1,000.00 for interest on past expenses. As to the future, I note that the multiplier for a man aged 50, using the 3% tables, is 442 to age 60, 608 to age 65 and 981 to death. I take into account the fact that the plaintiff might ultimately have required treatment in any event as his arthritis progressed. For future treatment expenses I allow $25,000.00.

For past loss of earnings, I am unable on the evidence to find that the plaintiff suffered any loss during the period from his injury until the date of commutation. For the period of some three years and eight months since then I calculate his notional loss at $190,000.00. This must be discounted to reflect the possibility that his earnings might have been reduced by reason of the ordinary vicissitudes of life and the factors specific to this plaintiff. I allow $170,000.00 for past loss of earnings. As this roughly equates to the amount of the commutation payment, and as there was no specific claim for interest, or any calculation put during closing addresses, I do not make any allowance for interest on that figure.

For loss of earning capacity for the future, as I have said, I propose to adopt a rate of $1,000.00 net per week, and the multiplier to age 60 of 440. I reduce the resulting figure by 30% to recognise the ordinary vicissitudes of life, and the factors specific to this plaintiff. I allow $310,000.00 for future economic loss.

To compensate the plaintiff for the loss of superannuation benefits, I allow 9% of the amounts awarded for past and future economic loss, which I round to $43,000.00.

As to the Griffiths v Kerkemeyer component, to compensate the plaintiff for his need for assistance in the house and garden, it seems to me reasonable to allow about three hours per week at about $20.00 per hour. For the past I award $25,000.00 plus interest which I calculate at $6,000.00.

For the future I adopt a multiplier of 700, and discount by 30% for vicissitudes general and specific, to arrive at a rounded figure of $30,000.00, which I award.

Conclusion

The individual components of the award of damages are as follows:

General Damages

$120,000.00

Interest on past component

$12,000.00

Past treatment expenses

$10,000.00

Interest thereon

$1,000.00

Future treatment expenses

$25,000.00

Past economic loss

$170,000.00

Future economic loss

$310,000.00

Loss of superannuation benefits

$43,000.00

Griffiths v Kerkemeyer – past

$25,000.00

Interest thereon

$6,000.00

-     Future

$30,000.00

$752,000.00

I repeat that this figure is in addition to the amounts already paid by the first defendant’s workers’ compensation insurer.

There will be judgment for the plaintiff against the first defendant in the sum of $752,000.00. There will be judgment in favour of the second defendant. The claim by the first defendant against the second defendant for indemnity or contribution will be dismissed. I propose to make orders for costs which follow the event, but to stay the costs orders for 21 days in case a party wishes to make application for a different order. Such an application may be made informally by email with copies to the other parties. In the event that I receive notice of intention to make such an application within the 21-day period, the stay will be extended until further order of the Court.
I certify that the preceding two hundred and twenty four (224) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Master Harper.
Associate:
Date: 28 January 2014

Counsel for the Plaintiff:  Mr AR Muller
Solicitors for the Plaintiff:  Slater & Gordon
Counsel for the First Defendant:  Mr SH Pilkinton
Solicitors for the First Defendant:  Dibbs Abbott Stillman
Counsel for the Second Defendant:                  Mr MA McDonogh
Solicitors for the Second Defendant:                 Boyd House & Partners by their agents Ken     Cush & Associates
Date of hearing:  14-18 May 2012
Date of judgment:  28 January 2014

General Damages	$120,000.00
Interest on past component	$12,000.00
Past treatment expenses	$10,000.00
Interest thereon	$1,000.00
Future treatment expenses	$25,000.00
Past economic loss	$170,000.00
Future economic loss	$310,000.00
Loss of superannuation benefits	$43,000.00
Griffiths v Kerkemeyer – past	$25,000.00
Interest thereon	$6,000.00
- Future	$30,000.00
$752,000.00