Pugsley v Collins & Frank Whiddon Homes

[2009] NSWDC 174

CITATION:	Pugsley v Collins & Frank Whiddon Homes [2009] NSWDC 174
HEARING DATE(S):	9, 10, 11, 12 June 2009
JUDGMENT DATE:	29 June 2009
JURISDICTION:	Civil
JUDGMENT OF:	Williams DCJ at 1
DECISION:	see paras 82 to 93
CATCHWORDS:	WORK INJURY - non work joint tortfeasor - admission by payment of compensation for injury - contributory negligence - good samaritan - inferring alternative causes when medical evidence not called
LEGISLATION CITED:	Civil Liability Act 2002 Workers Compensation Act 1987
CASES CITED:	Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCCA 99 Consolidated Broken Hill P/L – v – Edwards 2005 NSWCA 380 Houston - v - Yore Contractors BC90203 270 Unrep., Hunt CJ at CL, 9/3/92 Jones – v- Dyldam Developments Pty Ltd 2007 NSWSC 754 JL Equipment Hire Pty Ltd – v- Registrar of the WCC of NSW 2008 70 NSWLR 704 Con-Stan Industries of Aust Pty Ltd – v- Norwich Winterther Insurance (Aust) Ltd (1986) 160CLR 226
PARTIES:	John PUGSLEY Daniel COLLINS T/as D & D Collins French Polishing THE FRANK WHIDDON MASONIC HOMES of NSW (Easton Park Retirement Village)
FILE NUMBER(S):	05664/07; 01357/08
COUNSEL:	Mr Lidden SC and Ms Fraser for Pltff Mr Teece for Collins Mr Austron for FWH
SOLICITORS:	Brydens Law Offices Stephen Teece Hicksons Lawyers

1. These two pieces of litigation concern a heavy desk and a bad back. They have been heard together. The desk was the property of the Frank Whiddon Homes (FWH). Mr Pugsley was an employee of FWH engaged to do general work at the Easton Park Retirement Village. A decision was made to have the desk repaired and French Polished and the successful tenderer for that task was Mr Collins, a French Polisher who had done other work for FWH. Mr Pugsley was asked to transport the desk from Easton Park to Collins’ premises.

2. Immediately a dispute arises as to that particular event because, as it turns out in the evidence, Collins maintains that it was he who picked up the desk, took it to his premises and unloaded it. If that were indeed the case, there would necessarily be a verdict for the defendants because the plaintiff says that he injured his back when he was unloading the desk at Collins’ premises.

3. I do not accept Collins’ version of the facts. To begin with, it was never suggested to the plaintiff that he had been to Collins’ premises on any other occasion and there is no evidence to suggest that he in fact had. Yet, Mr Pugsley was able to describe the general layout of the premises quite correctly. Further, Mr Edwards, another employer of FWH, called by FWH, gave evidence that he assisted Mr Pugsley and others to load the desk onto the truck that Mr Pugsley generally used at FWH to carry out his duties.

4. Mr Walton, another cabinetmaker that occupies the same premises as Collins, gave evidence that he occupied the front half of the premises and Collins occupied the rear. His evidence was not challenged. He also probably employed another person at the time the desk was delivered to those premises. Mr Pugsley said in evidence that when he arrived at the premises, there was one person standing at a bench at the front of the premises who was doing some sanding, but the person who came out to unload the desk, came from a door at the side of the premises. Mr Pugsley saw at least these two persons there on that day.

5. Mr Pugsley says that he assisted four other persons to load the desk onto his truck at FWH, tied the desk down and then drove it to Collins’ premises where he dropped the sides of the tray and untied the restraining ropes in preparation for unloading the desk.

6. Collins says that did not happen. He says he went to FWH in his truck, supervised 4 or 5 persons to transport the desk from an office to his truck and then load it on. He says he then drove the truck to his premises and unloaded the desk, he thinks with the help of Mr Walton, although he has no particular memory of that.

7. Apart from the fact that Mr Pugsley’s version of events is corroborated by other independent evidence, Collins’ evidence is in my view unreliable. He gave evidence before Judge Levy on an application to extend the limitation period. That evidence was preceded by a sworn affidavit. In the sworn affidavit he said that he was away from the premises at the time of the incident and did not witness it. In evidence before Judge Levy, although he says that by then he realised what the true situation was, i.e. that he had picked up the desk, he was asked “who did the pick up?” to which he replied “I can’t remember to be honest.” He conceded in cross-examination before me that this was not the truth. As to the confusion between his affidavit, his evidence before Levy DCJ and before me Collins said “I might have stuffed that up but as far as lifting furniture off the back of a truck, I have never had an accident and if I did do it, it would have been done properly” (TP 154/5). This it seems to me is the core of the issue of his reliability. Collins said on a number of occasions that he never has and never would have done what Mr Pugsley alleges he did so therefore he, Collins, must have unloaded the desk himself.

8. However there is also some documentary support for Mr Pugsley’s version from Collins’ own documents. Invoice 0031 (exhibit 4) is an invoice for a boardroom table that was french polished for FWH by Collins in July 2001. The quoted price included the words “pick up…table…delivered back.” No such words appear on exhibit G, Collins’ invoice for the desk in question.

9. In his evidence in chief before me he indicated that at the time he made the affidavit he actually couldn’t remember what had happened so he said he was away. However, he now says that he picked up the desk, loaded it upside down on the truck and delivered it to his premises and unloaded it with Mr Walton’s help. Either Collins has no real memory of the situation at all or else he has constructed a scenario from information that has subsequently come to hand. Either way, his version is at odds with other evidence and I accept Mr Pugsley’s version of this aspect of his case.

10. Mr Pugsley says the desk was very heavy. It conservatively weighed 135 kilograms according to the expert’s report. It took four or five men to manoeuvre it out of its office and onto the truck. It certainly required at least four men to unload it.

11. Mr Pugsley says that he was told by his supervisor at FWH that there would be three or four men at Collins’ premises to help him unload. Unfortunately that person cannot now be located to confirm or deny it but in evidence before Levy DCJ she indicated that in any event, she could not remember anything about the specific incident.

12. After Mr Pugsley had arrived at Collins’ premises, a person approached, who in all probability was Collins.

13. Mr Pugsley said to that person that “there were supposed to be three or four blokes who were supposed to help unload the desk”. The person responded “I’m it.” The desk in question can be seen in the photos exhibit C which formed part of the expert’s report. When it was loaded onto the truck, the drawers were at the tailgate end of the tray. That end was heavier than the other end. There was a slight lip to the tray of the truck so that the desk had to be lifted over that lip. Mr Pugsley says the person who came up to the truck, without saying anything further, then proceeded to take the end of the desk nearest the driver’s cabin and swing it off over the edge of the tray. Mr Pugsley, concerned that the desk could topple and become damaged, grabbed the other end and lowered it to the ground flexing his knees as he did so.

14. He was asked how the other person was moving the desk and he said that this person was lifting it but that he didn’t pay much attention to how the person was coping with the weight, because he was more worried about the thing falling onto the ground and becoming damaged which would cause him to loose his job, so he just grabbed the other end and lifted it off. He lowered it to the ground noting it was very heavy. He felt a twinge in his back and thought he’d hurt himself.

15. As counsel for FWH was at pains to point out and as he elicited repeatedly from Mr Pugsley, Mr Pugsley was experienced in dealing with heavy weights. Prior to his occupation at FWH he had worked as a truck driver for almost thirty years delivering supermarket produce to stores. Mr Pugsley acknowledged that he knew and was aware of the risks associated with heavy lifting, particularly the risk of injury.

16. Apart from denying that he unloaded the desk, Collins denied he would have acted in the way alleged by Mr Pugsley at all, as to do so would be something he, with his experience, would regard as foolhardy and irresponsible. I’m satisfied that the person who assisted Mr Pugsley to unload was in all probability Collins and that he behaved in the way described by Mr Pugsley.

17. Mr Edwards, the FWH employee, gave evidence that he spoke to Mr Pugsley at some stage shortly after he had returned from delivering the desk on 5/9/2002. He corroborates how the desk was loaded onto a truck belonging to FWH. He then gave evidence that “over the next couple of days we just had a conversation that there was no one at the end of the line to take it off.” Edwards asked how Mr Pugsley had got the desk off and was told “the owner or some gentleman and Mr Pugsley had taken it off the back of the truck’. He was then asked by Mr Austron “was there any conversation about any other men there?” to which Mr Edwards replied “No. They always said that – about – they went to lunch. That’s why they couldn’t get anyone to help him take it off.” Edwards said that Mr Pugsley didn’t tell him that he had been injured. In cross-examination by Mr Teece Mr Edwards said at TP164 “Well, as I said earlier - that Mr Pugsley had said that the owner - or the boss of the company - said that his boys were at lunch, and that him and the other fellow had taken it off the ute.” Later at TP165 he said “Like I said, what I can remember is Mr Pugsley - all Mr Pugsley said to me was there was no-one there to take it off. They'd gone to lunch, and him and another gentleman take it off the ute. That's it, that's all I remember.”

18. Mr Edwards acknowledged that he had not made any note of this conversation and had apparently only recently been asked to give evidence and remember it. However he was “one hundred percent sure” that the truck the desk was loaded onto belonged to FWH.

19. Mr Pugsley continued to work for the next few weeks but with increasing back pain. He took two weeks sick leave and some weeks annual leave without any improvement in his condition. He saw a Dr Ford, on September 2002 who was filling in for his usual GP, Dr Hing, at a local medical practice.

20. Collins’ case is essentially that I would not accept Mr Pugsley’s version of events and that there should be a verdict for the defendant. FWH’s case is that I would not accept Mr Pugsley, that Mr Pugsley wasn’t injured by this particular event, that all he suffered was an exacerbation of a previous degenerative condition, that he is fit for work and in any event, if Mr Pugsley is accepted, he was substantially if not wholly responsible for his own injuries, given his previous experience and knowledge of the risks of lifting heavy loads.

21. Oral evidence in this case was given by Mr Pugsley, Mr Collins, Mr Walton and Mr Edwards. No oral evidence was called from any medical practitioner or other expert. In that regards let me say at the outset that I am not a doctor. I am therefore not prepared to make assumptions about medical matters about which I have no expertise, nor am I prepared to draw medical inferences that I am unqualified to draw. If parties choose to run litigation in this way then they must accept the consequences.

22. FWH has tendered a lever arch file of documentation that includes medico legal reports, correspondence and documents produced under subpoena by Mr Pugsley’s General Practitioner and Professor Sekel, an orthopaedic surgeon who operated on Mr Pugsley’s spine in 1984, performing a spinal fusion at L5/S1. Defence counsel often seek to rely on the scrawlings of general practitioners in their record cards as being evidence of something a Plaintiff did or didn’t tell that Doctor. No attempt has been made to present this material in a readily accessible form. If counsel wish to simply dump a volume of documentary evidence into the proceedings without attempting to more specifically refer to what is actually relied on, they do their client a disservice.

23. I accept that Mr Pugsley has experience of lifting weights and was aware of the type of risks involved. I am also prepared to accept that he was told by FWH that there would be others at his destination to assist in the unloading. Whether or not that was something that was said to him without being checked or without being actually arranged, there is no evidence one way or the other. Maybe FWH presumed that there would have been enough people at Collins’ premises to assist. In fact if Mr Walton routinely assisted Collins to unload items and vice versa, (they both ran the same sort of business), there would potentially have been three people who could have assisted with the unloading namely Mr Pugsley, Mr Collins, Mr Walton and the employee who was sanding something at the front of the premises and, having regard to Mr Walton’s evidence, on the balance of probabilities all three would have been there.

24. I am satisfied that Collins was negligent in starting to unload the desk without seeking additional help. I am not satisfied that the Defendants have established that Mr Pugsley’s decision made I find, either in the agony of the moment or by being momentarily inadvertent, was such as amounted to contributory negligence on his part. He acted quickly in response to the initially negligent act of Mr Collins that placed Mr Pugsley’s employer’s valuable property in jeopardy and which also risked injury to Collins as well.

25. As to what relevance the remarks allegedly made by Mr Pugsley to Mr Edwards have in the scheme of things is difficult to understand. Firstly, Mr Pugsley denies he said that everyone was out to lunch. Why he would have said something like that escapes me because there is no way he could have known such a fact even if, as suggested, he arrived at Mr Collins’ place at about lunch time – a fact also disputed. But in any event, there was no one there to be out at lunch. Mr Edwards is trying to remember an unimportant conversation he had seven years ago and whilst I am sure he is doing his best I would not accept that his recollection is likely to be word perfect. Perhaps Mr Pugsley said words that intimated there was no one to help and that they may well have been at lunch. In any event I do not see that anything substantial turns on it. I would prefer Mr Pugsley’s recollection to that of Mr Edwards as he had more cause to remember surrounding events on that day than did Mr Edwards.

26. Further I do not accept that in hindsight that there is any scope for a degree of contributory negligence on Mr Pugsley’s part for refusing to lift the desk or telling Mr Collins to stop what he was doing, or ringing his employer to seek instructions faced as he was with a developing, and to him unstoppable, situation of immediate peril, at least to his employer’s property, and in which he was placed by Mr Collins’ actions, not his own.

27. There will therefore be a verdict for the plaintiff unreduced for contributory negligence.

28. Clearly Mr Collins was the person who was principally responsible for the situation developing. There is no evidence from FWH as to their part in all this except that Mr Pugsley was their employee, the desk was their property and they must have realised that it that needed more than just two men to unload it from the truck. The only evidence I have that any thought was given as to how Mr Pugsley would be aided in unloading the truck was that that Mr Pugsley says that he was told by his supervisor that there would be three or four men to help unload it. Whether any such arrangement was made with Mr Collins is unknown because on Mr Collins’ version of events it was he who did the unloading and not Mr Pugsley and no one at FWH can remember the details of the matter.

29. I do not accept that FWH would have known that Mr Collins could or would have been likely to act in the way he did. But I am satisfied FWH knew that the desk was heavy and could not be unloaded without help. It was their responsibility to ensure that, one way or the other, such in fact was the case. In accordance with authorities applied and referred to in Pollardv Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCCA 99, I apportion 25% blame against FWH and 75% blame against Mr Collins.

30. The facts in this case do not justify a comparison with the decision in Consolidated Broken Hill P/L – v – Edwards 2005 NSWCA 380. In that case the plaintiff made a deliberate and considered decision to ride a bike across a rail bridge when rail wagons were parked on it, leaving only a narrow space between the edge of the bridge and the edge of the wagons. The court reduced a one third/ two thirds contributory negligence finding by the trial judge to one of fifty percent. But that is not the situation in the present case and there is really no comparison.

31. The Plaintiff has also pleaded the "good Samaritan” provisions of the Civil Liability Act In my view, the plaintiff was not a good Samaritan as per the definition in s56 of the Act because it was always the case that he was being paid as part of his duties to unload the desk and therefore he was not assisting “without the expectation of payment.” In any event I have found there was in fact no contributory negligence on the part of Mr Pugsley.

32. One of the documents tendered by the defendant (exhibit 7) was a transcript of the proceedings before Levy DCJ wherein Mr Pugsley and Mr Collins both gave evidence. Mr Pugsley’s testimony was tendered on the basis that his responses to some questions raised issues of credit that would affect his testimony in the proceedings before me.

33. In regards to his back problems. In 1984 Mr Pugsley eventually commenced, but did not proceed with, a claim in the Workers Compensationn Commission as it then was. Mr Pugsley was examined and cross-examined over some 32 pages in exhibit 7. It appears that he also made a compensation claim for a work caused hernia, although apparently without seeing a solicitor. He was asked why he never saw a solicitor in regard to his back until his operation in 2005 and he responded because he never knew he could. It appears that solicitors were seen in regards to the 1984 accident who presumably advised him that he had no prospect of success. Not unnaturally perhaps that influenced him in regards to the latter back problem being non-compensable as being of the same nature as his earlier problem. It is clear that he did know that if his problem wasn’t work related then he had no claim.

34. He was cross-examined before me by Mr Austron who also appeared for FWH before Levy DCJ.

35. The General Practitioner’s H/W notes previously referred to contain these dated entries:17/7/86 – “back at work after spinal fusions L5/S1 from September 1984. 1/52 and pain gradually increased SLR√. Cannot touch toes (indecipherable) off 3/7 X-ray.” An X-ray result is then recorded. 15/08/1986 – “still has pain right and left leg SLR√ PTR√ (indecipherable) URTI.”

36. I do not see anything significant in these entries having regard to Mr Pugsley’s subsequent history.

37. There is no doubt that Mr Pugsley’s evidence as to the earlier workers compensation proceedings is difficult to understand and that there are discrepancies between his evidence before Levy DCJ and before me in regard to his knowledge of that situation, but looking at his evidence overall before Levy DCJ and the way in which questions were asked, the age of the earlier back situation and the events that have subsequently occurred and Mr Pugsley’s level of education and sophistication, I do not see anything sinister in regard to his evidence as to how he injured his back in 2002 and what has happened subsequently to that. I do not see in this material cause for me to regard his evidence as unreliable or inconsistent.

Damages:
38. Let me say at the outset that I am well satisfied that Mr Pugsley suffered an injury to his back in the lifting incident of 5 Sept 2002, and I do not accept that his current symptoms are a degenerative result of an L5/S1 fusion that occurred in 1984.

39. Mr Pugsley is aged sixty-one having been born on 24 January 1948. He completed year eight but did not obtain the intermediate certificate. He has had basically unskilled employment throughout his life, his substantial occupation being as a truck driver delivering produce to Franklins Stores. In late 1979/early 1980 he experienced backproblems and after initial treatment by his General Practitioner Dr Hing, he was referred to Professor Sekel, an orthopaedic surgeon. Dr Sekel carried out a number of investigations. He had a slipped disc at L5/S1 which between 1980 and 1983 progressed from 3 millimetres to 6 millimetres. Discography was arranged to exclude problems at the L4/5 level. The discogram showed the discs at L3/4 and L4/5 to be normal. It was decided to fuse L5/S1 and this was carried out on 7/5/1984. He progressed extremely well and by February 1985 he was fit to return to full duties.

40. In December 1989, he was returned to Dr Sekel complaining of postural pain at T4-5 level due to his truck driving. He was given a steroid injection and not seen again by Dr Sekel thereafter.

41. As much as I am prepared to trawl through the indecipherable notes of Mr Pugsley’s General Practitioner’s practice, they reveal that he had a hernia operation in 1990; he had symptoms of epilepsy in 2000 and was eventually diagnosed with that disease from which he still suffers. Probably one of the reasons he decided to stop truck driving for a job closer to home.

42. The first complaint of further low back pain occurred on 27 September, 2002, where Doctor Ford records “wake” or “work” 3/7 ago (which could be three days or three weeks) LBP (low back pain) on previous ? laminectomy 18 years ago, xray CT M/C today Pan/forte 20 R/Vwith xray/CT report. Symptomatic Rx Heat massage R/V”.

43. These notes were recorded by Dr Ford, who was a locum for Dr Hing his usual General Practitioner and who had been his General Practitioner for many, many years. Much was made of these notations in the doctors notes, without the doctor being called to give evidence. Mr Austron relied on the notes as recording “woke 3 days ago. low back pain”. It is said that this was indicative that Mr Pugsley did not suffer any injury to his back on 5 September 2002 and what he was experiencing was merely a recurrence of the pain he had in 1984. The doctors notes are not clear. If in fact the note reads “work 3 weeks ago LBP” that would coincide with an injury at work on 5 September 2002. Mr Austron also relies on the lack of a complaint of back injury to Mr Edwards on Mr Pugsley’s return from delivering the desk as confirmatory of no injury occurring on that day.

44. The fact is that on 31 March 2005, Mr Pugsley underwent an anterior and posterior spinal fusion at L4/5 ie the spinal segment directly above the L5/S1 fusion of 1984. The employer has paid workers compensation payments in excess of $200,000 on the basis of an acceptance of a back injury that occurred on 5 September 2002 in the course of Mr Pugsley’s employment with FWH.

45. Mr Lidden who occasionally attended court for the Plaintiff, argued that the employer was now estopped from arguing that Mr Pugsley’s injuries are not related to a work incident on 5/9/02. He made reference to two cases Houston - v - Yore Contractors BC90203 270 Unrep., Hunt CJ at CL, 9/3/92 and Jones – v- Dyldam Developments Pty Ltd 2007 NSWSC 754 (Simpson J). In the first case it was held that “the continued payment of WC by the insurer is capable of amounting to an admission by it that the worker was still incapacitated as a result of the injury.” This case was cited by Simpson J in the second case referred to. In that regard what needs to be remembered is that the admission sought to be relied on in this case is not that the employer has been negligent but rather that the employee did indeed injure his back in an incident on 5/9/02 and not at any other time or place and that the disability from that injury has continued.

46. Mr Austron has drawn to my attention to a case of JL Equipment Hire Pty Ltd – v- Registrar of the WCC of NSW 2008 70 NSWLR 704 which concerned the issue of an admission in workers compensation proceedings for a percentage lump sum and it’s effect on and proceedings at Common Law for damages. In particular, a s66 lump sum percentage agreement by the insurer in the Workers Compensation proceedings was sought to be used as an admission as to the threshold requirements of the Workplace Injury Management and Workers Compensation Act. In short the court held that the different nature of the two proceedings could not permit the agreement reached under s66 to operate as an admission in the damages proceedings which had not then even been commenced. One reason being the significantly different financial considerations faced by the insurer in regards to the different claims. The court also held that there was no estoppel by convention in the acceptance of the degree of s66 impairment in the Workers Compensation proceedings because that admission was confined to that claim and did not constitute an agreement by the parties, of that degree of impairment, for any other purpose.

47. The situation in the present case is somewhat different because in these proceedings the employer is seeking to suggest that Mr Pugsley sustained no relevant work related injury on 5 September 2002 despite having paid him over $200,000 in weekly payments and out of pocket expenses specifically relevant to such a claim. Estoppel by convention is a form of estoppel founded in the conduct of relations between the parties based on an agreed or assumed state of facts, which both will be estopped from denying ( see Con-Stan Industries of Aust Pty Ltd – v- Norwich Winterther Insurance (Aust) Ltd (1986) 160CLR 226 @ 244.

48. Whilst for reasons which I will shortly give, I am satisfied there is no substance in FWH’s submissions, I am also of the view that their conduct has given rise to a rebuttable presumption that Mr Pugsley injured his back in the lifting incident of 5/9/02. The insurer has had ample opportunity to investigate and refute the claim since it was made in November 2002 but has not done so causing Mr Pugsley to act considerably to his detriment.

49. But in any event I am well satisfied on the balance of probabilities that Mr Pugsley injured himself in the manner he described. Mr Pugsley said in evidence, and I accept, that on his return to FWH he told his supervisor that there had been no one at Mr Collins to help unload and that he had hurt his back. The supervisor said she would ring Mr Collins because help had been promised.

50. Mr Edwards said that when he spoke to Mr Pugsley, Mr Pugsley did not tell him that he had injured his back. Mr Pugsley said he continued to do his normal work but his back got worse and worse. He apparently took some two weeks sick leave and some weeks annual leave but his back was not resolving as it has in the past.

51. Dr Ford provided him with a medical certificate on 27/09/2002 and prescribed Panadeine Forte. On 30/09/02 he was given another medical certificate for 20/09/02-6/10/02. On an unknown date in November 2002, a note indicates “CT L/S deg changes” and two undecipherable medications. On 12/11/02 when he saw Dr Hing his usual General Practitioner there is a note “lifted desk off truck 5/9/02 C/O back pain.” He was referred for physio and a further CT of the lumbar/sacral spine and prescribed Tramil.

52. None of the medical certificates given to Mr Pugsley have been put into evidence.

53. Thereafter, as far as I can tell from the somewhat incomprehensible practice notes, he saw his General Practitioner about back issues on 19/11/02, 26/11/02, 3/12/02, 16/12/02, 30/12/02, 13/1/03, 20/1/03, 10/2/03, 24/02/03, 24/03/03, 31/03/03, 7/4/03, 14/4/03, 15/07/03, 28/07/03 and 11/08/03. There are many other entries and on 15/08/03 he had his first consultation with Dr Giblin an orthopaedic surgeon. Up to this point he had been prescribed Tramil and physiotherapy. The latter caused some improvement such that he was fit for light duties on 16/12/02 and had in fact returned to restricted duties.

54. Dr Giblin arranged an MRI and suggested an injection of steroid into the facet joint at L4/5 and L2/3. His next report is 4/08/04 when Mr Pugsley returned after an acute episode of low back pain without his symptoms settling. This may refer to an incident descried by Mr Pugsley when he went to step over the draw bar of a trailer but, because of problems of pain and numbness in his right leg, did not lift it high enough and consequently tripped and stumbled back but did not fall over. This incident I will refer to as the tripping incident because it loomed large in defence submissions as being the causative factor of his back getting worse and preventing him from working, rather than the lifting incident in September 2002.

55. Except for the fact that such an incident occurred, there is no evidence supportive of the suggestion that it had any long lasting complications and in any event I would find that one reason that incident occurred was because of the disabilities suffered by Mr Pugsley as a result of the back injury sustained in September 2002.

56. Doctor Giblin persuaded FWH’s insurer to fund a second fusion because of the pain Mr Pugsley was suffering (see his letter of 20/12/04). The procedure was carried out in March 2005 and by May 2005 Doctor Giblin reported him to be mobilising well and the irritation in his obturator nerve was also settling well. On 14/07/06 Mr Pugsley reported his pain at a level of 2/3 out of 10 and in September 2006 he was able to be referred to a Rehabilitation officer. In a medicol/legal report of 19/2/07 Doctor Giblin found Mr Pugsley’s injuries consistent with the incident of 5/9/02 and that this incident had resulted in a new injury to the L4/5 disc. He was unfit for work working involving repetitive bending, heavy lifting or prolonged standing.

57. Mr Pugsley’s employment at FWH had been terminated in 2004 because of his “inability to carry out his full duties since the injury of 5/9/02 and because there were no alternative duties available.” (see Ex H).

58. Dr Giblin thought there was a possibility he could need surgery at the L3/4 level because of symptoms in that area, the cost for which he estimated at $25,000. He needed to see his General Practitioner every 6 weeks and would need 4 hours of domestic assistance each fortnight. I accept, as did Dr Giblin, that Mr Pugsley‘s L5/S1 fusion was asymptomatic prior to the current incident. This opinion of Dr Giblin’s remained unchanged in September 2008.

59. Mr Pugsley has also been seen by Doctors Bodel, Conrad and Ellis medico- legally for his solicitors and Doctors Bornstein, Grant and Dalton for FWH.

60. Dr Bodel supports Dr Giblin, as does Dr Conrad and Dr Ellis. These three doctors are well known and respected professionals.

61. Dr Bonstein’s report is dated 3/9/03. Dr Grant’s is dated 1/12/04 and Dr Dalton’s is dated 14/5/04. In view of the fact that Dr Giblin is supported by Dr Bodel’s report of 19/11/08, Dr Conrad’s of 28/11/08 and Dr Ellis’ of 11/3/09 , I see little current relevance in the reports of the defendant’s practitioners and prefer the treating doctor whose reports are both current and supported by other current other medical opinion..

62. Unfortunately Mr Pugsley has also developed radiculopathy in his right leg and again that has been confirmed in the reports I am relying on.

63. Mr Pugsley has been assessed by a number of rehabilitation providers, the most recent of which is the EVA report of 31/1/08, a somewhat convoluted and unnecessarily complicated document. I prefer the medical opinions expressed by Doctors Giblin, Bodel, Ellis and Conrad to the opinion of Dr Mitchell expressed therein in, particular her work assessment of him being fit for a 38 hour week and overtime. The APM reports ceased in July 2007, perhaps because their assessment of Mr Pugsley‘s disabilities where somewhat more gloomy than those of EVA.

64. Mr Pugsley applied for Workers Compensation by submitting a form to his employer on 13/11/02. This was immediately after the first visit following the incident that he had had with his usual General Practitioner Doctor Hing on 12/11/02, (see exhibit D). The employer’s report of injury signed by the Personnel Co-ordinator is dated 20/11/02 (see exhibit E). Both forms indicate that Mr Pugsley was lifting a very heavy desk off the back of the ute and suffered a lower back injury. In the absence of evidence to the contrary, I presume that before submitting the claim, FWH would have taken some steps to satisfy themselves that what Mr Pugsley said had happened to him, did in fact happen.

65. Dr Bodel said as follows:-

I note the report of an MRI scan in the lumbosacral spine dated 11 August 2003. This shows evidence of dehydration and degenerative change at the L4/5 disc on top of the previous fusion at the L5/S1 level. There is no major external rupture, however, at that level.

A treatment report from Dr Mathew Giblin dated 19 February 2007 confirms that this gentleman has a previous L5/S1 spondylolisthesis and a fusion at the L5/S1 level "twenty years previously". He has subsequently developed back pain and right leg pain following the episode of injury described above. He also reports that he has had no other particular problems apart from his epilepsy and he outlines the various treatments undertaken which were initially conservative in nature.

The discogram, however, confirms that there was pain reproduction on injection at the L4/5 level and as a result of that he recommended the spinal fusion.

This went ahead on 31 March 2005.

He reports that post-operatively he had physiotherapy and core stabilisation programs and that was helpful. Dr Giblin indicated that on review on 12 April 2006 he felt that "although he was improving, considering his age and the extent of his surgery, I feel he was unlikely to get gainful employment in the future". I agree with that statement.

The most recent report from Dr Giblin is dated 29 September 2008. He again confirms the long history and the treatment protocol.

At the time of writing he had a good range of back movement but still there was the altered sensation at the inner aspect of the right thigh. He indicated that he may need to consider a further fusion at the L3/4 level although he thought it unlikely and he did not recommended regular physiotherapy. He states that he will need to see the general practitioner once every six weeks and would require domestic assistance at four hours per fortnight. The physiotherapy reports are noted and they are again consistent with the history given. The report of the discogram on 15 September 2004 confirms pain reproduction on injection at the L4/5 level. The treatment reports from Dr Salmon are also noted and the report from the vascular surgeon, Dr Michael Neale confirms that this gentleman was satisfactory before undergoing an anterior approach to the spine for the purpose of the spinal fusion.

The hydrotherapy report is also consistent with the history that I have been given. The various x-rays and other tests are also noted.

I would indicate the following: 1. This gentleman has suffered a disc rupture at the L4/5 level as a result of the work injury on 05 September 2002.

2. His continuing disability is a mechanical backache and irritative sciatica, principally in the right leg with some associated sensory change in the inner aspect of the right thigh.

3. This gentleman remains unfit for all work. I note that his nominated treating doctor indicates that he is fit for lighter duty activities with a 10kg lifting limit working 20 hours work per week.

This gentleman did attempt to return to work in 2007 but lasted only two or three weeks. From a practical point of view it is most unlikely that this gentleman will return to pain employment because of this persisting level of pathology .4. This gentleman has a guarded prognosis.

5. There is no need for ongoing treatment at the moment apart from analgesic medication and exercise.
65. Dr Conrad says as follows:- This man was involved in a work-related accident on 5 September 2002. As a result, he sustained a disc prolapse at L4/5, having had a previous lumbar fusion below this at L5/S1. This was treated by an anterior and posterior fusion procedure by Dr Matthew Giblin. He continues to have ongoing back pain and specific radiculopathy in the L4/5 region, especially having L5 radicular distribution and hyporeflexia in the right leg. At this stage, he needs conservative treatment and he may need pain management and physiotherapy from time-to-time.

He is not fit to resume work as a maintenance worker, such as he did at Frank Widdon Homes. At most he might be able to do about 10 to 12 hours per week of very light duties in a position where he is able to stand or sit at will and not lift anything more than 5kgs in weight or do repetitive lifting or bending. He might be able to do light duty cleaning work or similar work within the above parameters and not using heavy industrial vacuum cleaners or polishers .Should his family not be able to assist with his home and garden maintenance and housework, he might need about six hours per week of Home Care assistance.

His prognosis for recovery is poor.

66. Dr Ellis says as follows:-

As a result of the lifting strain at work on the 6th September 2002, Mr Pugsley has suffered musculoligamentous contusion, aggravation of degenerative change in his back.

Consequent on the back injury there are secondary effects in his right lower limb, referred pain and neurological deficit.

Radiological investigation, MRI revealed desiccation or internal disc disruption at the L4/5 disc and the L2/3 disc land a discogram performed by Dr Giblin demonstrated pain arising in the L4/5 disc. Anterior interbody fusion was performed at L4/5 and a posterolateral internal fixation and fusion at L4/5.

There has been some improvement in pain levels but pain and disability persist and he has lost his employment with Frank Widdon Masonic Homes where he is working as a general service officer in physically demanding work.

There is a pre-existing back impairment, a spondylolisthesis of L5 on S 1 which required fusion in 1985 which was followed by complete resolution of symptoms and he was asymptomatic prior to the injury at work on the 6th September 2002.

Consequent on the back injury there are secondary effects in his right lower limb, referred pain and neurological deficit, weakness, impaired light touch sensibility.

There is no evidence of psychosomatic illness, and no evidence of other abnormality, debility or injury contributing to his impairment assessment.

He will now remain unemployable, he is permanently unfit for physically demanding work requiring bending and lifting. His lifestyle is degraded with loss of recreational activities and the need for assistance at home in the maintenance of the home.

Continued medical supervision and conservative treatment for pain relief will be required, medications, consultations, intermittent physiotherapy are likely to cost at least $2,000 annually and the need is likely to continue.

Domestic assistance to the extent of 4 hours a week would be appropriate, his wife has had to return to work because of his unemployment and persisting impairment.

If his impairments are assessed according to the WorkCover Guidelines and the AMA Guidelines 5th edition his whole person impairment is assessed as follows.

There is spinal fusion at L4/5 with persisting radiculopathy, with impairment of activities of daily living, DRE category V impairment, WPI 27%. Deducting 10% or 2.7% for pre-existing impairment, the lumbosacral spinal fusion at L5/S 1, there is a residual WPI of 25% as a consequence of the injury at work on the 6th September 2002. Although asymptomatic prior to the injury spinal fusion performed previously at L5/S1 warrants a deduction of 10% for a second injury at the disc above.

67. Mr Pugsley gave evidence as to his current problems as did his wife. Mrs Pugsley had a well paid, enjoyable job with Nutrimetics. She and Mr Pugsley now live in a house with their daughter and son-in-law. She ceased working with Nutrimetics in order to provide Mr Pugsley with more assistance at home and she now works 20 hours P/W as a part time sales assistance at Target. I accept her evidence without reservation. Some criticism seemed to be made that since the accident the Pugsley’s moved from a smaller house to a larger house and that Mrs Pugsley’s decision to work 20 hours per week was a lifestyle choice and that she and her husband were basically settling into retirement. That was denied.

68. Mrs Pugsley estimates that she now spends in excess of 20 hours per week doing things around the house that formerly her husband used to do. The move to the larger house was to accommodate their married daughter. I reject that there were so called “lifestyle” changes as suggested in the defendant’s submissions. It is also clear that Mrs Pugsley was more able to deal with clerical work than her husband. She in fact filled out his various claim firms. I also accept that the only reason she left Nutrimetics was because of her husband’s ongoing disabilities.

69. While I accept that Mr Pugsley does not suffer any overt psychological illness, his mood has substantially deteriorated since the accident because of his disabilities. He is reluctant to take painkillers, although they have been suggested by Dr Giblin.

70. Mr Pugsley is aged 61. He continues to suffer from epilepsy although drugs largely control it. He is virtually unemployable in any meaningful sense. Whilst it has been suggested by Mr Lidden that he could have gone back to driving trucks I think that unlikely given his decision to work at FWH which was close to where he lived and it was for that reason attractive to him, not to mention his epilepsy.

71. Mr Lidden argued that the plaintiff’s past and future economic loss should be assessed on the basis of some notional truck driver’s income. In my view that cannot be substantiated. The plaintiff’s economic loss should be calculated on his earnings as at the date of the accident. A table setting out the Past Economic Loss to date has been drawn up by M/s Fraser and that is the more appropriate document to work from. I accept the plaintiff’s actual economic loss to date is $155,489 net. W/C weekly payments were to $110,717 and his income from all sources including W/C w as $142,407. The difference to be claimed is therefore $13,082.00 plus Workers compensation payments produces a figure of $123,799.00. He is entitled to 11 percent of that figure for superannuation entitlements being $13,618.

72. His out of pocket expenses have been agreed at $106,533.

73. As to non-economic loss and future economic loss I accept that although Mr Pugsley has a theoretical capacity for light sedentary work, in fact there is no realistic capacity and he is essentially unemployable (see Doctors Giblin, Ellis Conrad and Bodel). FWH terminated his services and were unable to find him any suitable light work. He is aged 61 at a point of economic downturn and is even less likely to be employable than might otherwise be the case. He has been on W/C since 2002 and has two fusions of his spine in a very essential area for carrying out the only skills that he has. Furthermore, I accept that his wife has had to give up what was an enjoyable and well paid job in order to spend more time assisting him. I accept that he would have worked to age 65. His future economic loss, based on his past net income, would be $480 x 189.6 x 85% = $77,357. Future loss of superannuation would therefore be $8,510.

74. The Fox v Wood component has been agreed at $24,893.00. The total amount of damages that can be recovered against the employer are therefore the sum of $123,799.00, $13,618, $77,357, $8,510 and $24,893.00, a total of $248,177.00.

75. Against Mr Collins, Mr Pugsley is also entitled to damages for non-economic loss, medical and hospital expenses and past and future domestic assistance. I would assess the plaintiff’s non-economic loss as being 40% of a most serious case, a figure of $180,000. The medical evidence establishes a need for past and ongoing domestic assistance. As well, I accept Mrs Pugsley’s evidence as to the fact that she has provided her husband a level of assistance, requiring her to have to change her job and work part time. These sort of self-assessments as to the hours involved must be essentially estimates rather than accurate logs of time spent. Rarely in fact do parties compile such a log. Having regard to her evidence and the medical evidence, I allow past domestic assistance of ten hours P/W at $20 per hour. However, there is no evidence that such was an immediately consequence following upon injury but rather a developing situation until the date of his operation. Doing the best I can, I allow that amount for a period of 5 years – a figure of $52,000.00. As to the future, the figure has to be adjusted to account for the likelihood of him requiring some form of assistance anyhow as he got older, bearing in mind that in the normal course of events, the necessity to carry out heavy tasks tends to be naturally avoided. There should in those circumstances be a greater than usual discount in accordance with the act. I allow 10 hours per week at $22 per hour discounted 30% for a life expectancy of 24 years, a figure of $113,622.

76. The total damages that may be awarded against Mr Collins consists of $248,177.00 and $180,000 and $52,000 and $113,622.00 – a figure of $593,799.

77. The damages against FWH are $248,177.00

78. The damages against Mr Collins are $593,799.00.

79. The employer’s fault component is 25%.The difference between Mr Collins’ damages and FWH’s damages is $345,622.00. 25% of the difference is $86,405.50.

80. There will therefore be a verdict for the plaintiff in accordance with these reasons together with costs.

81. The parties are to bring in short minutes of appropriate orders within seven days and have liberty to re-list the matter before then to adjust any mathematical errors or deal with any issues as to costs.

9 July 2009-07-09

82. This matter has been relisted in accordance with my directions at paragraph 81 of my judgment. There are some mathematical errors and a calculation oversight that needs to be corrected. I omitted to include the agreed O.P’s in the total of damages against Mr Collins, a figure of $106,533. It also appears that the past weekly payments now total $111,496 and the superannuation component of that is $13,703. The Fox v Wood component therefore also needs altering to $25,053 making the total amount of damages to be awarded against FWH as being $249,201.00.

83. In that regard I make orders in accordance with the minutes of order handed up by Mr Austron on Monday last which have been signed and sealed by me.

84. There will be consequential variations to the amount awarded against Mr Collins to take into account of the O.P’s and the above altered amounts. In addition Ms Fraser indicated that in my judgment I had not considered the issue of entitlement to and assessment of future O.P’s which had in fact been claimed by Mr Pugsley in the sum of $40,000 as a global figure. Mr Pugsley is not currently having any active treatment and avoids using prescribed analgesia if he can. Dr Bodel felt he needed ongoing analgesic medication and exercise. Dr Conrad felt he needed conservative treatment and may need pain management and physiotherapy from time to time. Dr Ellis felt that continued medical supervision and conservative treatment by way of medication, consultations and intermittent physiotherapy would cost about $2000 per annum and was likely to continue.

85. Based on a figure of $30 per week I allow the Plaintiff the sum of $18,800.00 for future O.P’s.

86. The verdict total against Mr Collins therefore comes to a figure of $720,156.00.

87. There will therefore be a judgment for the Plaintiff against Mr Collins in accordance with those calculations.

88. There will be a verdict and judgement for the plaintiff against Mr Collins in the sum of $602,417.00

89. Mr Collins to pay the Plaintiff's costs

90. There will therefor be a verdict and judgement for the cross claimant against the cross defendant in the sum of $150,604.00

91. Cross claimant to pay 25% of the plaintiff's costs assessed under the Workers Compensation Act 1987.

92. Cross defendant to pay the cross claimant's costs of the cross claim.

93. I grant leave to have the matter re-listed in order to correct any additional mathematical errors.