Perkins v R Slater and Sons Pty Ltd (ACN 005 863 187)

[2021] VCC 2061

IN THE COUNTY COURT OF VICTORIA

AT WARRNAMBOOL

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

GENERAL LIST

Case No. CI-19-05724

AARON JOHN PERKINS	Plaintiff
v
R SLATER & SONS PTY LTD (ACN 005 863 187)	Defendant

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JUDGE:	HIS HONOUR JUDGE BROOKES
WHERE HELD:	Warrnambool
DATE OF HEARING:	17, 18, 19 and 20 May 2021
DATE OF JUDGMENT:	21 December 2021
CASE MAY BE CITED AS:	Perkins v R Slater & Sons Pty Ltd (ACN 005 863 187)
MEDIUM NEUTRAL CITATION:	[2021] VCC 2061

REASONS FOR JUDGMENT
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Subject:NEGLIGENCE

Catchwords:              Employer’s duty to employee

Legislation Cited:      Occupational Health and Safety Regulations 2007

Judgment:                  Judgment for the plaintiff.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J P Brett QC with Mr G Pierorazio	Stringer Clark
For the Defendant	Mr B Myers with Mr T Storey	Thomson Geer

HIS HONOUR:

1By his Statement of Claim dated 28 November 2019, the plaintiff alleges injury to his lumbar spine was caused by the defendant’s negligence; alternatively, breach of its statutory duties owed to him pursuant to the Occupational Health and Safety Regulations 2007. The plaintiff seeks damages for pain and suffering only.

2It is common ground the plaintiff suffered injury to his lower back on 27 April 2015, when he attempted to single-handedly lift a cast-iron bollard which was still attached to the ground by one single bolt after another two bolts had been unsecured. 

3The plaintiff alleges that this lift was performed in a manner which was in accordance with the method he had used consistently on a particular project under the direction of the defendant.  If he discharges the onus of proof with respect to this allegation, there is no issue that such a method would be in breach of the employer’s duty to him. 

4The defendant alleges that the lift was contrary to a system of work in which the plaintiff had been instructed.

5The defendant further disputes the plaintiff’s evidence that it was an accepted practice at the relevant site to remove and load bollards single-handedly and the defendant disputes that the plaintiff was expressly instructed to do so.

Background

6The defendant, R Slater & Sons Pty Ltd, is a family-run business which had been operating for more than seventy years.  It performed civil construction works for local councils, including Barwon Water.  During early 2015, the defendant was engaged by Corangamite Shire Council to perform streetscape works in Camperdown, Victoria.

7The plaintiff was employed by the defendant as a labourer on 8 December 2014 and he commenced working at the Camperdown project on or about 16 March 2015.

8By paragraph 7 of its written submissions dated 4 June 2021, the defendant submits the Court is required to:

“(a) determine whether the defendant had, in fact, devised, implemented and maintained a safe system in relation to the task of removing and loading bollards (i.e. a 2-person lift);

(b) determine whether the defendant departed from such a system – including whether the plaintiff was directed by Matt Slater to lift the bollards by himself using a bear-hug method;

(c)assess the plaintiff’s credit, both in terms of whether his evidence can be considered reliable, and whether he can be considered a witness of truth;

(d) determine whether the defendant was negligent and/or breached the duties it owed under the OHS Regulations;

(e) if the defendant was negligent or in breach of duty, determine whether the plaintiff’s own actions contributed to his injury;

(f) if required, assess the quantum of damages to be awarded to the plaintiff.”[1]

[1]Submissions on behalf of the defendant, paragraph [7]

9In basic terms I accept this submission.

The evidence

10The plaintiff’s and the defendant’s witnesses, Matt Slater (“Slater”) and Josh Drayton (“Drayton”), gave varying estimates as to the weight of the bollards, ranging from 30 kilograms to 100 kilograms.  In essence, nothing turns on this variation, as it was agreed between the parties that anything which weighed more than 20 kilograms was a two-person lift.[2]  Further, the defendant submits, and I accept, that given the bollard was still bolted to the ground by at least one bolt when the plaintiff went to lift it, “its actual weight had nothing to do with the plaintiff’s injury”.[3]  In other words, the plaintiff had to contend with, not only the weight of the bollard, but the extra force required to release it from the bolt.  Both parties agreed that this was an unsafe practice.  The plaintiff’s case was that his supervisor, Slater, had instructed him to lift the bollards by himself and he had adopted this method on a number of occasions and a number of days prior to the injury.  The defendant, mainly through the plaintiff’s supervisor, Slater, denies that any such instruction was ever given and that this was a single instance to its knowledge, which was performed unexpectedly by the defendant in explicit contravention of the system laid down by it.

[2]Site Induction Booklet, exhibit 8, Defendant’s Court Book (“DCB”) 105

[3]Submissions on behalf of the defendant, paragraph [11]

11The plaintiff explained the system as follows:  First, most of the bolts securing the bollard to the ground had rusted and it was necessary to spray them first with WD40, then the bolts would be undone with a sprocket wrench, and because most were rusted, you would have to brace the bollard with your foot and pull as hard as possible.  Sometimes the bolts would break off and it would be necessary to drill the bolt out by use of a hand drill.  The bollards stood on a “collar” which was approximately two inches high above the footpath.  The bolts would be attached to a base plate.  Once this process had been completed, the operator would “wobble” the top of the bollard to ascertain that the bolts had been unsecured.  He would then lift the bollard off the collar by himself. 

12The plaintiff stated that he and his supervisor, Matt Slater, were present on site every day. 

13The plaintiff suggested to Slater that the bollards should be lifted by virtue of a sling on the excavator rather than a one-person lift.  Slater allegedly replied that that would take the excavator away from the main job and the suggestion was refused.

14The plaintiff further stated that while he was attending to his work, another worker would be cracking nuts on another bollard, and there was one person per bollard.  The system he was required to perform was to bend at the knees and grab the bollard in a bear hug while in a squatting position, and he lifted 90 per cent of bollards in this manner.  He was never told that this was not the correct way to lift the bollards.

15The plaintiff further alleged that a vertical lift was required because of the presence of the collar.  He estimated a weight of 60 kilograms, and at the time he was fit and strong and could bench press 100 kilograms in the gym.

16On many occasions, Slater was on the excavator doing his duties.

17On one occasion, the plaintiff said he told Slater that a traffic-management issue he was pursuing was unsafe and the reply was that if the plaintiff did not want to do the job, “he’d find someone else that would”;[4] however, the plaintiff conceded he later changed his mind.

[4]Transcript (“T”) 56, L5-6

18On the day of the injury, being 22 April 2015, the plaintiff said he signed on with Slater and Drayton.  Thereafter, he said he went straight onto the bollards and did not receive any help from Drayton.

19The plaintiff said the process was fine for the first few bollards, but on the last one the “heads” snapped and he found that the drill could not perform its task.  He said he got a bit flustered and he asked Slater for the excavator to move the bollard.  He stated that Slater agreed and he heard the bolts crack.  Thereafter, the plaintiff said he did a quick “wobble” and he went to lift the bollard as usual, but found that maybe one of the bolts had not quite been penetrated, and he felt a pain in his back like he had been stabbed.  He said he had performed this task in front of Slater at least ten times.

20The plaintiff said he was crying and he felt his face had gone as red as a tomato. Slater replied “Oh, you’re not joking, are you?”,[5] and he was relayed to the Colac Hospital by the other two men.

[5]T59, L12-13

21The plaintiff further stated he attempted a return to work in September 2015, but only lasted a few minutes before he jarred his back.  He knew then he could not return to work as a labourer and was very upset. 

22The plaintiff underwent surgery as a last option, whereby three of his lumbar vertebrae were fused, and this was performed on 10 September 2017.  A further operation had to be performed on 13 December 2017, and the plaintiff stated he felt this procedure had given him his life back. 

23Under cross-examination, the plaintiff was shown the Safe Work Method Statement dated 16 March 2015,[6] and the variation thereof, dated 30 March 2015,[7] and his signature to both documents, dated 23 March 2015 and 30 March 2015 respectively.[8]  He agreed that it was his signature and that he had possibly read the documents.  He stated, on most occasions, he just walked in and signed same and he cannot, at this point, remember any documents at all.  He was asked to recall the first day meeting onsite, and he said he could not remember any meetings thereafter.  When asked if the extra hazards noted in the document dated 30 March 2015 had been brought to his attention, he stated he could not remember.  He stated the way that he performed the task was the way he had been shown by either Adam or Matt Slater.

[6]DCB 200

[7]DCB 211

[8]DCB 212

24The plaintiff stated the verbal instructions were:

(a)   spray the bolts with WD40;

(b)   crack the bolts with a short racquet wrench;

(c)   wiggle the top to see if each bolt was free;

(d)   lift the bollard of its space by means of a “bear hug” and thereafter leave it standing on the footpath.

25He had been shown or told this method by either Matt or Adam Slater, and he was pretty sure it was Matt Slater.

26The plaintiff further stated under cross-examination that he estimated there was a one-millimetre gap between the collar and the inside of the bollard.  He stated he never left it lying on the ground, it was always left standing next to the collar.  He then lifted it onto the trailer and once onto the truck.  He said he would tilt the bollard into his left arm, and then grab the base with his right hand and put it onto the trailer.  While he was performing this task, Slater would be still digging on the excavator. 

27As to whether Drayton was onsite, he said it was very rare or sporadic.  He further stated that Slater did not lift the bollards much, but when he did, it was exactly the same way.  He conceded that occasionally the two of them did it together, because it was quicker.

28When it was put to him that Slater would say there was a 6-millimetre gap between the collar and the bollard, and therefore it was pretty loose and could be tipped, he replied that it was not how it felt to him. 

29Although he agreed in a previous affidavit he had alleged that he would lay the bollards on the ground, he disagreed with the proposition and said that he always stood them up.  He further stated he may have missed the point in the affidavit.  Further, he stood by his evidence that he was shown how to bearhug the bollards, compared to his Answer to Interrogatory 5, where he stated: 

“I was never instructed how to lift the bollards other than being told to wiggle the bollards from side to side before lifting them to ensure they didn’t remain bolted to the ground.”[9]

[9]Plaintiff’s Court Book (“PCB”) 57

30When it was put to him that the pre-start toolbox meeting was held every day, he stated it was not held every day, but there was a discussion every day during the 25-minute trip in the car to the site.[10]  He further stated, “trust me … If two person lift was offered to me I would have taken it”.[11]  He further knew that it was unsafe for a one-person lift, but he said “my job was threatened … many times”.[12]  He further stated that he spoke to Slater about it and asked if the sling method could be used.  This was some weeks before the incident.  He was told that it would take the excavator away from the main job and it would take too much time.  Upon being asked why he did not complain to Adam, who was a senior in the organisation, he stated “I wanted to protect my job, I wanted to do what was right by my family”[13] in order to keep his job.  He stated that Slater belittled him and this occurred not long after he was first employed.  He said that his relationship with Slater started to get worse and he would talk to other co-workers about the problem and was told “just confront him”.[14]  He found his relationship with Slater very stressful.

[10]T113

[11]T114, L21-23

[12]T115, L23-24

[13]T119, L19-20

[14]T120, L8

31When it was put to him that he had cracked the bolts, not with a hand drill, but with a pressure drill from a generator, he stated that it was possible that was how it was performed.

Analysis

32It is common ground that the plaintiff attempted to lift a bollard by himself, which was still bolted to the ground by at least one bolt, such that the attempt was clearly an unsafe practice, and if either specified or tolerated by the defendant, would clearly sound in negligence. 

33It was also common ground that the bollard was in excess of 20 kilograms and may have weighed either in the region of 30 to 40 kilograms or 50 to 100 kilograms.  The defendant concedes that because the bollard was still bolted to the ground, the force required by the plaintiff was therefore in excess of whatever the weight was.[15]

[15]Submission on behalf of the defendant dated 4 June 2021, paragraph [11]

34The evidence advanced by the defendant as to its system of removing and loading the bollards was contained in its Answer to the plaintiff’s Interrogatory number 17, where it described the system as follows:

“Working with one bollard at a time, once the bolts affixing the bollards to the ground had been removed, it was necessary to wobble the top of the bollard in each direction to ensure that it was free of its fixtures. 

The bollards were then lowered to a horizontal position on the ground by the top of the bollard (with the base still leaning against the ground taking the bollard’s weight).

Using a two-man lift with the assistance of a co-worker, the bollards were then lifted a short distance to a nearby tandem trailer … .”[16]

[16]PCB 62

35The system was further explained in the “Site Induction Booklet”.[17]  Therein, Matt Slater was nominated as being in charge of safety and the environment and also occupational health and safety.  Also contained therein was a statement to the effect that incident investigations shall be conducted as required, with investigations being used to look at the cause and identify actions to prevent reoccurrence.[18]  Further, the documents stated that work instructions would be given each day at the pre-start meeting conducted by the project manager, David Vickers, or the site supervisor, Luke Vickers.[19]

[17]Exhibit 8

[18]Exhibit 8, DCB 99

[19]Exhibit 8, DCB 100

36Further, explicitly there was an instruction:

“… do not exceed to lift in anything more than 20kg, if the items weigh more than this a 2 person lift is requires (sic) or mechanic lifting machine is to be used.”[20]

[20]Exhibit 8, DCB 105

37Further, the Occupational Health and Safety Policy was explained in a number of dot points, including:

“•     To identify and control all potential hazards in the workplace through hazard identification and risk analysis.

•     To ensure all potential accidents/incidents are controlled and prevented … .”[21]

[21]Exhibit 9, DCB 125

38Under s2.1, entitled “PRE-START SITE/PROJECT HAZARD ANALYSIS”,[22] at s.2.3.2, it is specified that the daily pre-start meetings will be minuted.[23]

[22]DCB 148

[23]DCB 150

39It is further stipulated that the site supervisor and the safety officer are to develop a safe working method statement (“SWMS”).[24]

[24]DCB 169

40Further, a pre-start meeting checklist is to be prepared, where there is a review and update of the SWMS.  This was in fact signed by the plaintiff, but undated.[25]

[25]DCB 197

41In the review of the SWMS dated 30 March 2015, the brief on the project is relevantly described “REMOVE EXISTING BOLLARDS AND LOAD INTO TRAILER”.[26]  “Major hazards on the project site” are identified relevantly as:

“–     …

–     LIFTING OF EXISTING BOLLARDS

–     MANUAL HANDLING

–     PLANT + EQUIPMENT FAILURE

–     LOADING OF TRUCK

–     LOADING BOLLARDS INTO TRAILER.”[27]

[26]DCB 198

[27]DCB 198

42“Specific controls to be used” are described thus:

“–     …

– 2 PERSON LIFT OF BOLLARDS/MECHANICAL LIFTING IF REQUIRED

–    USE CORRECT MANUAL HANDLING TECHNIQUES

–    …

–    TAKE CARE LOADING BOLLARDS 2 PERSON LIFT OR USE EXCAVATOR

–    SWMS.”[28]

[28]DCB 198

43Then, finally, under this section, “Any other issues relating to the Project”, it is recorded:

“–     SWMS REVIEWED TO REFLECT REMOVAL OF BOLLARDS AND PROCESS TO BE USE[D] AS DISCUSS WITH SHIRE.”[29]

[29]DCB 198

44In the first SWMS signed on 16 March 2015 by Matt Slater, directions were given for steps to be taken for filling out SWMS’s.[30]  They were described as follows:

[30]DCB 201

“1.Discuss with relevant employees, contractors and HSRs what work will be high-risk, the tasks, and associated hazards, risks and controls.

2.   In the ‘Sequence’ column, list the work tasks in sequence to how they will be carried out.

3.   In the ‘Possible Hazards’ column, list the hazards and risks for each work task.

4.   In the ‘Control Measures’ column, select the hazard or risk.

Control levels

1.   Eliminate any risk to health or safety associated with construction work.

2.   Reduce the risk to health or safety by any one or any combination of the following:

• Substituting a new activity, procedure, plant, process or substance

•Isolating persons from the hazard, such as barricading, fencing or guardrailing, or

•Using engineering controls, such as changing the way the work is done.

3.  Use administrative controls, such as changing the way the work is done.

… .”[31]

[31]DCB 201

45In the written documentation prior to injury, there is no mention of the bolts being rusted and difficult to remove.  There is no mention of a drill being used to remove the bolts, or any method to be used thereafter if a bolt cannot be removed by this method.

46The oral evidence given about the system was that one man would spray the bolts with WD40 in order to make them more amenable to being removed and then another man would visit each bollard thereafter with a wrench and try to remove the bolt.  If this method was not successful a drill would be used and this could sometimes take up to twenty minutes.

47The plaintiff himself gave evidence that he asked Slater to use the excavator to push the steel fixed bollard free of its mountings and he believed that he heard the relevant bolt “snap”.  Slater denies that the excavator was so used and that it had only been used in this way before, sometime before the injury occurred. 

48In any event, there was no written statement as to how it would be adequately ascertained that the bolts had been fully removed, other than by wobbling the top of the bollard.  The documents are silent as to what would occur if the previous methods had not been successful.

49Therefore, on the defendant’s evidence, the plaintiff has attempted to lift the bollard off the base where no adequate written or oral instruction has been given as to the system to be followed to adequately ascertain whether the bolts had been fully removed and what methods should be employed if the “wobbling” is not sufficient. 

50In my view, it should have been a method designed and enforced that provided for a foreseeable situation in which the plaintiff found himself just prior to the injury occurring.

51Clearly, on the defendant’s evidence, the system for attempting to remove bollards which were still affixed to the ground, even after wobbling had occurred, was left to Slater and/or the plaintiff to devise a system.  No such method was stipulated by Slater, and the plaintiff, on his own part, swore that he was following a system that, at its highest, was demonstrated by Slater, and at its lowest, was tolerated by Slater, for many days prior to the injury occurring.

52Drayton, for his part, does not recall seeing the plaintiff lift bollards by himself, but equally does not give evidence that he and the plaintiff lifted bollards together.

53Of course, the plaintiff’s evidence goes further than the breach as described above.  He stated he knew it was unsafe to lift in the manner attempted, but that he had been directed to do so by Slater under threat of losing his job.  Slater, for his part, denied there was any friction between the two men and that they had an amicable relationship, both during work hours and before and after same. 

54On balance, I prefer the plaintiff’s version as to their relationship.  According to the plaintiff’s wife, whom I accept as a witness of truth, the plaintiff had complained to her about Slater, his attitude to safety and that he is “so arrogant”.[32] 

[32]T233

55Further, in the Action Report following the injury, Slater was nominated on page 1 as “Report made by Matt Slater”.  Therein, he wrote that the injury occurred when the plaintiff was “lifting cast iron bollard off base.  One bolt still attached …”.[33]  Then, on page 2 of the report, under the box titled “Cause of problem”, it was ticked “poor recognition of hazard”.  Slater stated that he sought advice from a director as to how to fill it out, because he was inexperienced in the job.  Clearly, the document is silent as to whether that was poor recognition by Slater or the plaintiff.  Then, on the third page under the heading “Corrective Action or Improvement Applied”, someone has written “TRAINING IN MANUAL HANDLING PROCEDURES”, but this was not completed by Slater.  The document is then signed by the project and quality managers, but the supervisor’s section has been crossed and has not been signed by Slater.

[33]DCB 216

56Once I accept that the plaintiff followed a system that was, at the least, tolerated by Slater and a safe system was not enforced, I do not find that there was any contributory negligence on his part.

Quantum

57Both Senior Counsel for the plaintiff and Leading Counsel for the defendant made succinct and generally consistent submissions with respect to the assessment of general damages in this matter.

58Relevantly, the plaintiff submits:

“The Plaintiff was born on ### 1983 and is currently 37 years of age.  He is married with care of five children.  Prior to commencing the subject employment he had obtained licenses to operate plant with a view to eventually –

(a)  working with plant, and

(b)  possibly setting up his own plant business.[34]

[34]        T36, L7-19

His only prior back pain was some … muscular pain the previous Friday[35].  Prior to this injury, he was family-orientated, hardworking, sporty, a hands-on father and playing for a local cricket club[36].  He loved children, played golf and was an avid gardener[37].

[35]        T38, L14-18

[36]        T219-220

[37]        T221, L6-24

He suffered a very serious injury at the L4/5 and L5/S1 levels on his lumbar spine.  In her compelling evidence, his wife Chelsea described the events of the night of injury at T.224.24-225.22.

The nature of his injury was such that the Plaintiff underwent a number of invasive procedures –

(a)a right sided sacroiliac joint block on 11 September 2015 (through pain specialist, Dr Chandler);

(b)a bilateral L3/4/5 medial branch blocks (sic) on 3 March 2016 and again on 20 April 2016 (also through Dr Chandler);

(c)a bilateral L3/4/5 radiofrequency denervation on 3 June 2016 (through Dr du Toit, another pain specialist).

During this time, the Plaintiff’s mental state and behaviour deteriorated dreadfully, as given in powerful evidence by Chelsea at T.227-236.

On 10 December 2017, the Plaintiff underwent a two-level fusion at L4/5 and L5/S1, performed by Mr. G. Nair.  Due to a robot malfunction, he had to return for the operation to be completed on 13 December 2017, staying at a hotel in the interim.  The Plaintiff’s experience was described by him at T.72-74.

Although the Plaintiff clearly conceded that there was a great improvement as a result of the operation, it was clear during his evidence that he was in pain, sitting and standing regularly and generally clearly evidencing pain.  This was confirmed by Chelsea at T.244.17-29. 

Surveillance was shown which was a depiction of a fragment of time; the Plaintiff was under surveillance for a total period of 18 days.  We submit that nothing in the video material is inconsistent with the Plaintiff’s evidence and presentation.

As for the Plaintiff’s present condition, the most recent evidence is that of Dr. Ivers in a report of 16 April 2021[38].  He considered that –

[38]        Exhibit O

‘… the work injury is entirely responsible for [the Plaintiff’s] presentation and the need for surgery[39].’

[39]        DCB 71

He further considered that –

‘… there will be permanent symptomatology related to the work injury[40].’

[40]        DCB 72

The Plaintiff will now be restricted to light or sedentary employment[41].   Dr. Ivers further considered that –

[41]        DCB 72

‘Any functional overlay would appear to be minimal …[42]’

[42]        DCB 73

Finally, Dr. Ivers opined that –

‘The prognosis is guarded.  He has undergone significant surgery with reasonable results.  He has residual symptoms referrable to his lumbar spine which will be permanent[43].’ 

The Plaintiff’s return to employment goes very much to his credit and attests to his character.  However, he has moved to Queensland by reason of the weather[44].  He is now unable to pursue his preferred profession as a plant operator with his own business.  He has been through a dreadful time which almost cost him his marriage,  and he remains permanently affected.

In our submission, an appropriate award for pain and suffering damages would be $300,000.”[45]

[43]        DCB 73

[44]        T,79 L8-20, T240, L7 ꟷT241, L3

[45]Plaintiff’s final submissions, paragraphs [37]-[45]

59On the other hand, defence counsel submit, inter alia:

“The plaintiff is not currently having any treatment for his injury and none is planned.

In October 2018 the plaintiff’s then GP Dr Vigneswaran described the plaintiff as having gained significant mobility and pain reduction following his surgery, that he had a capacity to have a graduated return to suitable work, progressing to pre-injury hours over 6 weeks. He opined that there were no restrictions to social or domestic duties.[46]

[46]Exhibit H

The plaintiff has not had a GP since leaving Victoria in December 2020.

The plaintiff has found an alternate career in aged care which does not involve heavy manual handling. The aged care work does involve some manual handling, such as pushing wheelchairs and princess chairs, and assisting residents to ambulate which the plaintiff has done and is capable of doing.[47] The plaintiff told his new employer in October 2019 that he had entirely recovered from his back injury and surgery.[48]

[47]T176, L7-16

[48]T17, L6 ꟷ T177, L3

The plaintiff has found his new career to be very rewarding. He told the Court ‘… it is the most satisfying thing I have ever done with my life apart from having children … it can be heart breaking at times but it can be massively rewarding when you know that you’re helping someone improve their quality of life’.[49]

[49]T80, L8-13

…

The defendant submits that the plaintiff and his family have now been reunited for some years and are making a new life together in Queensland.

The plaintiff has returned to his previous hobbies of cycling, walking, gardening (including mowing and whipper snipping) and he continues to enjoy his previous hobbies of arts and crafts and creative writing. He is able to join in most activities with the children.[50] The plaintiff has also resumed fishing and can cast a line without problem.[51] He has returned to cooking most of the meals for the family and performs his share of the household chores.

The plaintiff was able to take an extensive caravanning holiday, with his wife and their 5 children, over several months from Victoria to Bundaberg. The plaintiff agreed that camp would have to be set up on a pretty regular basis, sometimes staying just a couple of days at a particular spot. Caravanning involves a lot of reaching and bending.[52] The defendant submits that this is not a venture the plaintiff would have undertaken if he suffered from the sort of pain and restriction he displayed in Court.

The plaintiff has bought 6 acres intends to have a house built and have a hobby farm. That he plans such a lifestyle is indicative of his own view of his capacity.

The plaintiff has not been prescribed or taken any prescription medication for his back since the immediate aftermath of the surgery. He takes little in the way of over-the-counter medication for his pain.

The defendant submits that the plaintiff’s presentation in Court was in significant contrast to his movement as seen in the surveillance footage taken just a week or two previously in which he was seen to repeatedly bend and freely move with no sign of pain or restriction. The plaintiff agreed that the footage was a fair representation of how he is on a day-to-day basis.[53]

There is some reference in the tendered medical reports to a risk that the plaintiff may develop degenerative changes above the level of the fusion however neither the nature of the risk nor any likely timeframe is quantified in any manner that would enable the Court to assess it for the purpose of considering the plaintiff’s claim for damages.[54]

If the Court finds that the defendant was negligent or relevantly breached the Regulations contrary to the defendant’s primary submission that the plaintiff’s case must fail, then in all the circumstances the defendant submits an appropriate figure for pain and suffering damages ought to be no more than $225,000.”[55]

[50]T185, L5-11

[51]T173, L6-15

[52]T184, L18-19

[53]T184, L11-17

[54]Exhibit K

[55]Submissions on behalf of the defendant, paragraphs [185]-[194]

60In my view, both parties have submitted figures that are “within range” for an injury of this type.  However, doing the best I can, I consider the defence submission is “closer to the mark” and propose to award general damages in the sum of $250,000.

61I will hear the parties as to any subsequent orders.

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