Ronkovich v Eveans

[1998] QSC 184

IN THE SUPREME COURT

OF QUEENSLAND

No. 6290 of 1997
Brisbane

Before Justice Byrne

[Ronkovich v Eveans & Ors]

BETWEEN:

BRENDON PETER RONKOVICH

Plaintiff
AND:

PETER G. EVEANS, ROZA IRIS EVEANS,

JANOS JOZSIF ZSOLCZAY AND IRIS MAUDE ZSOLCZAY

Defendants

REASONS FOR JUDGMENT - BYRNE J.

Judgment delivered 17 September 1998

CATCHWORDS:     NEGLIGENCE - personal injuries - duty of care of employers in rural industries - plaintiff suffered from an uncommon degenerative condition of the spine - whether plaintiff has proved that some negligent act or omission of the defendant contributed to his injury in circumstances where there is an indeterminate causal relationship between work and injury - assessment of damages must reflect that the onset of symptoms may have been accelerated by other non-tortious trauma.

Counsel:Mr K.R. Geraghty for the plaintiff

Mr R.R. Douglas QC for the defendants  

Solicitors:Porter Hulett for the plaintiff

Bowdens for the defendants                 

Hearing Dates:  4 to 7 August 1998

IN THE SUPREME COURT

OF QUEENSLAND

No. 6290 of 1997
Brisbane

Before Justice Byrne

[Ronkovich v Eveans & Ors]

BETWEEN:

BRENDON PETER RONKOVICH

Plaintiff
AND:

PETER G. EVEANS, ROZA IRIS EVEANS,

JANOS JOZSIF ZSOLCZAY AND IRIS MAUD ZSOLCZAY

Defendants

REASONS FOR JUDGMENT - BYRNE J.

Judgment delivered 17 September 1998

1. In the “Courier-Mail” published on 15 October 1990 the defendants advertised for a “fit and reliable” farm labourer to work at their market garden at Thornlands. The plaintiff's application for the position eventually succeeded and he started there on 18 October 1990. His employment was terminated eight days later, essentially because limitations associated with an old injury to an ankle meant that he could not be expected to cope satisfactorily with the work. In the meantime, some event or state of affairs at work seems to have contributed to discomfort in the plaintiff’s lower back.   His case is that the back pain and associated disability were caused by the defendants' breach of the duty of care owed to him as their employee.

2. When the plaintiff was employed by the defendants he presented as a healthy,  fit, 20 year old male experienced in manual labour. Unfortunately, he also suffered from an uncommon, degenerative condition of the spine - an irregularity of the facet joint at the L3/4 level. The plaintiff did not know of the abnormality, which was probably congenital in origin. This defect, asymptomatic before the plaintiff began to work for the defendants, probably is the source of  low back pain which the plaintiff first experienced on 25 October 1990.

3. Although work at the market garden appears to have triggered the pain at the site of the defect, the circumstances in which the plaintiff sustained his injury are mysterious. The plaintiff's primary case now is that excessive or inappropriate use of a 3.5 kg sledge hammer to drive many wooden stakes into the hard sub-soil of cultivated capsicum patches contributed to the onset of  symptoms. This hypothesis has not always been the explanation advanced for the injury. However, before discussing the plaintiff’s other accounts of the circumstances concerning his injury, mention should be made of the nature of his work.

4. The farm was a small enterprise with 12 acres of farming ground. Zucchini and capsicum were grown. When the plaintiff was retained, about 50,000 capsicum plants were growing in rows about 60 m long. Each row contained about 300 plants. The capsicum was planted over about 4 acres by seedlings under plastic mulch. In a season, weeding was done twice. In 1990 the first, by far the more extensive, took place about 3 or 4 weeks before the plaintiff started work. The second weeding was among the plaintiff's tasks.

5. The plaintiff was also to lay out and afterwards drive wooden stakes into the capsicum beds to support the growing plants. The stakes were initially loaded onto a trailer from a pile on the ground, and the plaintiff was involved in this work. After the stakes were removed from the trailer, they were placed at the end of the rows. These were hardwood stakes, 910 mm long. Most were otherwise 25 mm x 25 mm, destined to be placed along the rows at 6 m intervals. Stakes placed at the end of each row were 25 mm x 50 mm. There were about 24 stakes per bed. After all the stakes were laid out over the capsicum patches, the plaintiff used a lump hammer to stand stakes up in the ground so that they could be driven in on a second pass using a sledge hammer. The weight of the hammer, including its wooden handle, was 3.5kg.

6. Although the zucchini crop had been mostly picked when the plaintiff began work, there was still some zucchini harvesting to do. This was another of the plaintiff's jobs. The system required the picker to start at the end of a row carrying a bucket. Typically by the time the picker reached the end of the 60 m long row, he would be carrying 8-10 kg of zucchini, which was then emptied into a bin.

7. The evidence of Ms Brandi discloses that the plaintiff was engaged in shifting irrigation pipes. Mrs Sladden saw him “picking up some plastic”.

8. The coincidence in point of time between the onset of symptoms and the work, and that the work was strenuous, combine with the medical evidence to indicate that there is a causal relationship between the work and the injury. But it is not at all clear how the work and the injury are connected, and attempting to ascertain the relationship between them is rendered particularly difficult by the variety of things the plaintiff has said on the topic.

9. Letters from Drs Arrowsmith[1] and Craddock[2] record that the plaintiff presented to Dr Craddock, a general practitioner, on 25 October complaining of discomfort in the lower back and  of an area of anaesthesia on the anterior aspect of the right thigh. According to Dr Craddock’s letter, “This was claimed to be brought on by having to lift heavy weights at work.” The plaintiff later came to assign other reasons for his complaints.

   [1]Ex. 2.

   [2]Ex. 3.

10. In completing an application form for Sickness Benefits on 15 November 1990, the plaintiff (i) said that he was injured on “6/11/90", having “last worked” on “5/11/90"; (ii) indicated that he had not claimed workers’ compensation for his “lower back problem” and did not intend to make such a claim;[3] and (iii) in answer to an invitation to describe “how and where” the injury occurred,  wrote “continues” (sic) “bending” and “lifting at work” and “at home”.

    [3]Before he commenced, he had made five claims for workers' compensation.

11. On 14 December 1990 the plaintiff applied for workers' compensation, declaring that his “lower back strain” occurred “on the farm grounds” on 24 October, at noon, in the middle of his shift. The application required him to warrant the truth of the statements in it. These included assertions that he had last worked for the defendants at noon on 25 October and, answering the question, “How did the injury occur?”, that continuous “bending and lifting” were to blame. Another question asked what he was actually doing when the injury occurred. The plaintiff replied: “Continues (sic) bending & lifting (weeding & carrying wooden steaks) (sic)”.

12. On 30 January 1991 the plaintiff signed a statement in support of his application for workers’ compensation. In it he said that he commenced work with the defendants on 18 October 1990. The statement mentions an experience of pain in the right ankle at work on 19 October,  that he had had problems with his right ankle ever since an accident in “1979/80", and continues:

    “I returned to work on 22/10/90 & my back felt fine. On the 22/10/90 & 23/10/90 I spent the day hitting stakes into the ground, placing the stakes out etc to support the plants that were growing. This was fairly light work & I wasn’t experiencing any pain in my back.

I went to work on 24/10/90 & was working on lifting out agricultural pipes. The pipes were covered with plastic & soil & I had to walk along reefing the tubes out from under the soil. I was bent over the whole time while I was doing this, therefore placing a lot of strain on my back. I’d spent about 4 hrs in the morning pulling up the pipes.

I began to experience pain in my back & noticed that my right thigh had become numb. I reported the problem to Peter Evans & left work to consult Dr. Craig.  Dr. Craig sent me for x-rays but could find nothing wrong. I was experiencing a lot of pain in my lower back so decided to consult Dr. Craddock the next day (25/10/90).

Dr. Craddock referred me to Dr. McCombe who sent me for a CT scan etc. McCombe told me that 2 of the discs in my back are bulging & that I’ve placed a lot of strain on my lower back...

I wish to apply for compensation from 25/10/90 until I am fit to return to work.  I last worked 4 hrs on 25/...”

1. The plaintiff, by signing the form, declared that he had read it carefully and that he believed the statements in it to be true.

2. According to a report of 1 February 1991[4], Dr McCombe, the orthopaedic surgeon who treated the plaintiff, was informed that the plaintiff was “ laying water pipes ... and whilst performing this he noticed stiffness in his back  ... He noticed sudden pain in his low back whilst bending ...” However, in a report to the plaintiff’s solicitors in July 1993, Dr McCombe said that in “September or October 1990 there had been a gradual onset of pain. There was no sudden injury ...”.

   [4]see Ex. 4.

3. The plaintiff was interrogated about the relationship between work and injury.[5] In response to a question concerning the time when the “accident” occurred, he swore:-

   “There was no accident as such. However on the 24th October 1990 it was in the morning that I first felt pain. After lunch I again felt pain.”

   [5]Ex. 32.

1. Asked what specific task he was performing when the accident occurred, the plaintiff answered:

   “There was no specific accident, but the specific task which I was performing when I felt pain was weeding. After lunch on the 24th October 1990 I also suffered pain when I moved an irrigation hose.”

2. Mr Davis, a consultant psychologist, spoke to the plaintiff in mid-March 1993.  In his report of 30 March 1993[6], Mr Davis wrote that the plaintiff had “injured his back in October 1990 whilst lifting some heavy lengths of water pipe ...”. The source of this information was not disclosed. Presumably the information came from the plaintiff or his solicitors.

   [6]Ex. 38.

3. Yet another version emerged in the plaintiff's evidence. This time the lower back pain was explained largely by reference to sledgehammering stakes into the capsicum beds. The plaintiff spoke of swinging the sledgehammer through 360 degrees to strike the stakes into sub-soil which was so “hard” that it was “like concrete”. On average three such firm blows were needed to drive a stake about 10 inches into the sub-soil. He claimed that this activity was repeated many times over a three day period, that the hammering left him “sore all over”, “totally exhausted virtually every day”, and was the most physically demanding of his tasks. Next down the scale of difficulty was weeding. Picking the zucchinis was said to be “relaxation” in comparison to the demands of stake-driving and weeding. Asked to relate the physical problems experienced at work, the plaintiff spoke of a “bruising pain” which he attributed to swinging the hammer. He continued working for a time, he said, but eventually the pain became so acute that he had to stop. He was, he said, on his way to tell Mr Eveans that he could not keep working when, walking along a driveway, he “bent down” to pick up a piece of agricultural pipe and experienced a tearing sensation in the lower back. He fell to the ground. Mr Eveans noticed this and told him to go home. He says he returned the next day and continued with more hammering-in of stakes until he could take no more and left permanently.

4. It is difficult to decide what the plaintiff did or when. His evidence about these and other things is unreliable. His testimony was often not so much actual recall as guesswork, exaggeration and the product of attempts at advancing his interests. The passage of time between incident and trial would not have assisted his recollection. He acknowledged that his memory was unreliable, attributing failures of recollection to the medication he has taken over the years. But there are other reasons to entertain reservations about his veracity and his reliability. Some of them - those which relate especially to his evidence concerning sledgehammering - may as well be mentioned now. In cross-examination, the plaintiff insisted that by 26 October 1990 it had definitely crossed his mind that the hammering was responsible for his back pain. He was, however, unable to explain the absence of a reference to the hammering as a possible cause of his back complaint in the application for sickness benefits made in mid-November. He sought to suggest that the “lifting” referred to in his application for workers' compensation was a reference to lifting the sledgehammer, which is most unlikely. He could offer no explanation for the things said in his detailed statement to the Board in January 1991. Nor could he suggest why there was no record of hammering by the medical practitioners mentioned. He was not asked about the discrepancy between his answer to the interrogatory concerning the circumstances surrounding the onset of symptoms and the account he gave in evidence.

5. About eight weeks after the plaintiff finished work, Mr Eveans discussed the nature and extent of the plaintiff's work in a report to the Workers' Compensation Board[7] in which he described his recollections as not “100% accurate” and no more than “a good guide”. Mr Eveans recorded that the plaintiff started work on 18 October and that day “did 8 hours light weeding”. The report said that he returned on the following day to do about two hours of similar work before leaving suffering ankle swelling and pain caused by a previous injury. According to the report, the plaintiff returned to work on the 22nd and spent about eight hours placing stakes into the capsicum patch. The plaintiff, Mr Eveans wrote, was not there on 23 or 24 October. The report continues:

   “Returned 25/10/90 and worked 6 hours (with stakes & hammering them in with a 7 lb sledge hammer) ... This is the day he told me about his upper leg and at this stage he did not know what was causing it. Returned 26/10/90, I told him it was his last day as he was unsuitable for the job. He did 4 hours hammering/weeding then he left because of leg pain.”

   [7]Ex. 42.

1. Mr Zsolczay made entries in a diary, but his notes are very brief, and they do not discriminate between work done by the plaintiff and work done by others. Moreover, the entries, which were all made in or about 1993, were based on notes in his mother's diary as well as things Mr Eveans related to him. These terse notes are  neither contemporaneous nor comprehensive and cannot be regarded as a completely accurate record. Nonetheless, mention should be made of the entries, which seem distinctly more reliable than the plaintiff's testimony. For 18 October one of them is “weeding capsicums”. This accords with Mr Eveans' report that the plaintiff did eight hours light weeding that day. For Friday the 19th, the diary mentions several farm activities, including “lined up some stakes in capsicum”. The diary makes no reference to weeding that day. Neither Mr Eveans' report nor Mr Zsolczay's diary suggests that the plaintiff was sledgehammering on that Friday, and it cannot be concluded that sledgehammering was among the tasks he performed then. However, it does seem probable that the plaintiff left work on that day after about two hours because of problems associated with his old ankle injury. The weekend then intervened. Mr Zsolczay's diary mentions “laying out stakes” on the Monday. He thinks that the plaintiff helped in that work, which accords with Mr Eveans' report, and is probably correct. Entries for the 23rd and 24th are consistent with Mr Eveans' report that the plaintiff did not attend on either of those days. So it seems that the plaintiff next returned on Thursday the 25th. For that day, the diary records “layed (sic) out rest of stakes. Hammering stakes in (inner stakes)”. This is a reference to work performed by the plaintiff and, perhaps, Mr Zsolczay. Mr Eveans' report indicates that the plaintiff was involved in such work that day; in cross-examination the plaintiff agreed that he worked for six hours on the 25th, laying out and hammering stakes in. That is not to say that all the plaintiff's work on the 25th concerned stakes.

2. On some of the few days that the plaintiff worked at the farm, it is likely that he picked zucchini. He had been encouraged by Mr Eveans to vary his work and probably accepted that advice. In picking zucchini, no doubt he adopted a bent posture as he moved along. That he was involved in “light weeding” is also apparent. That too was relatively demanding work in which the plaintiff frequently adopted a bent posture.

3. So far as the nature and extent of the sledgehammering are concerned, the plaintiff's account is unconvincing. He may well have hit stakes three blows on average with the 3.5 kg sledgehammer, for that estimate substantially accords with Mr Zsolczay's experience. Probably he drove stakes through cultivated surface soil into firmer sub-soil, occasionally to a depth of 10 inches, using the sledgehammer, for that would accord with what Mr Eveans told Mr Cook, the private investigator, in 1993. But I am persuaded that his evidence overstates the number of days on which he used the sledgehammer, exaggerates the volume of hammering he did, and misstates the demands and stresses of that work. There are several reasons for my reluctance to accept his testimony on this topic. Apart from my general reservations about his veracity, no hammering was mentioned in any of the accounts given before the litigation began of the circumstances surrounding his injury; and in his statement to the Board in January 1991 the plaintiff characterized the hammering referred to as “fairly light work”. His evidence is also inconsistent with Mr Eveans' report and Mr Zsolczay's diary, which I prefer to the plaintiff's evidence as indicators of what he did.

4. It is possible that such hammering as the plaintiff did is related in some way to his symptoms. Muscle fatigue from physical exertion can predispose a back to an increased risk of injury, and on the day the plaintiff consulted Dr Craddock suggesting that the lifting of heavy weights explained his pain, he had been sledgehammering stakes. But other causes are at least as likely. If, as his application for workers' compensation suggests, the plaintiff did a deal of bending and lifting shortly before experiencing back pain, that could have rendered the degenerative condition symptomatic for the first time. Picking up agricultural piping after lifting stakes or weeding presents as another possibility. Prolonged bending could have produced the pain, as the plaintiff appears to have thought when he sought sickness benefit and workers' compensation. In short, in all the circumstances, it cannot be concluded that it is more probable than not that sledgehammering, as distinct from other work done on the 25th, was responsible for the back pain.

5. The plaintiff's case as developed in Mr Geraghty's address is predicated on two factual findings: that the sledgehammering was, in nature and extent, of the order of that to which the plaintiff testified; and that such hammering was a cause of the pain experienced on 25 October 1990. Neither contention is established on the probabilities.

6. Is there some other basis on which the claim can succeed? Has the plaintiff proved that some negligent act or omission of the defendants contributed to his back pain in circumstances where there is an indeterminate causal relationship between work and injury? Could it be said, for example, that the defendants ought reasonably to have foreseen that the plaintiff confronted a relevant risk of injury in his work and taken steps to guard against it.

1. Employers in rural industries do not generally arrange for CT scans of prospective, apparently healthy and strong, farm labourers, nor otherwise subject them to medical examinations calculated to reveal the kind of unusual defect which afflicted the plaintiff. Acting reasonably, the defendants could not have been expected to have found or anticipated such an abnormality. Nor could they have been expected to arrange their work practices to take account of the remote possibility that the plaintiff may have had such a defect rendering him susceptible to the onset of symptoms. As the late Professor Fleming put it[8], “ordinarily no more is demanded in the way of care than precaution against the risk of what might injure normal individuals”. And I accept the evidence of Drs McCombe and Olsen to the effect that a normal spine of a 20 year old male would cope satisfactorily with the tasks undertaken by the plaintiff at the farm.

   [8]The Law of Torts, 9th ed. (1998), p.234.

2. Dr Olsen is an occupational health and safety consultant with qualifications in medicine and engineering. He has conducted a farm where zucchini and capsicum were grown. His evidence is acceptable. He considers that the defendants should have advised the plaintiff to vary his workload. In substance, that is the advice Mr Eveans gave the plaintiff when he started. Dr Olsen also considers, and I accept that, the nature and extent of the weeding actually done by the  plaintiff was “light work by farm standards” which did not expose the plaintiff to unreasonable risk of injury. Dr Olsen does not regard the zucchini picking performed by the plaintiff as likely to produce spinal injury. And on the facts he assumed concerning the plaintiff's use of the sledgehammer - assumptions which do not understate the nature and extent of that activity - he considered that there was no significant hazard to which the plaintiff was exposed in that work. As Dr Olsen said[9]:

   “The small crops farm work ... was far from excessive and was certainly not at a level of musculoskeletal exertion that would be likely to cause injury ... [T]he work provided by the defendant was safe, there were no significant risks to the health and safety of the plaintiff ... the defendants did not deviate from normal safe rural practice in regards to small crops farming ... [T]here was a reasonable system of work with no likelihood of a person such as the plaintiff suffering injury.”

   [9]see Ex.46.

3. “It has long been recognized that what is a reasonable standard of care for an employee's safety is ‘not a low one’.”[10] Even so, the plaintiff has not proved that the defendants failed to observe an appropriate standard of care - a conclusion which makes it unnecessary to consider whether the inability to say what occasioned the pain means that no act or omission of these defendants is shown to have been a cause of his injury.[11]

   [10]Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301, 308.

   [11]cf Green v Chenoweth QLR 16/5/1998; Keeys v State of Queensland [1998] 2 Qd R 36, 41; Hallmark-Mitex Pty Ltd v Rybarczyk, CA 11009 of 1997, 4 September 1998.

4. There is no suggestion of breach of statutory duty. In my judgment, the plaintiff's case in negligence fails. I turn to the assessment of damages.

5. Many of the components are agreed. The amount for services gratuitously provided is agreed at $2,880. Special damages are agreed at $18,459.99. The Fox v Wood factor is acknowledged to amount to $4,332.85. The refund due to the Board is $54,464.24. There appears not to be any dispute as to the amounts required to be paid in respect of past hospital, medical and the like expenses. No contentious issue was suggested in respect of the computation of interest. The main items in dispute relate to pain, suffering and loss of the enjoyment of the amenities of life, and the amount which ought to be awarded for diminution in future earning capacity.

6. Dr McCombe discovered that the injection of  anaesthetic into the region of the L3/4 facet joint alleviated the plaintiff's back pain, which shows that the degenerative abnormality was the site of the pain. The pain persisted. In June 1991 Dr McCombe performed an L3/4 postero-lateral spinal fusion with internal fixation by Steffe screws and plates. Four weeks later he reported to the Board that the plaintiff  was completely pain-free. On 20 September Dr McCombe reviewed the plaintiff and reported that his activity level was quite high with “minimal pain”. A few weeks later the plaintiff slipped when emerging from a shower, landing on his buttocks. In his report of 24 November 1991, Dr McCombe described the pain that the plaintiff had experienced since the fall as being situated in the left loin and “quite a different pain to his pre-operative symptoms”. The plaintiff was sent to physiotherapy. After a while, he complained of pain at the surgery site. In March 1992 Dr McCombe removed the screws and plates. By May 1992 he was able to report that the plaintiff was left with back pain of moderate intensity which was aggravated by bending. He expected that the plaintiff would eventually be fit for light work and suggested that rehabilitation be directed towards finding work with lighter duties that did not involve bending and lifting. Dr McCombe considered that the plaintiff was almost ready to return to work when in September 1992 he was involved in a car accident.[12]

   [12]Mr Douglas QC did not suggest that ongoing symptoms are attributable to the fall in the shower or the motor vehicle accident rather than to work with the defendants; and Dr Curtis's evidence accords with the view that there is a causal relationship between present symptoms and the work injury: see p.7 of Ex.10.

7. On 21 July 1993 Dr McCombe reported that the low back pain would be permanent and restrict the plaintiff to light to moderate work. He thought that the disability represented a 5% whole body disability; he did not anticipate that the condition would change with time.

8. Dr Curtis, an orthopaedic surgeon, has given acceptable evidence concerning the probable site of the plaintiff's pain, the extent of his complaints and limitations, and  as to the likely progression of the degeneration of L3/4 facet joint had the injury at work not supervened. He shares Dr McCombe's opinion that the fact that the pain was relieved by anaesthetic injected near the L3/4 facet joint demonstrates that the joint was the source of the pain. He also considers that, although it is possible that the plaintiff may not ever have attained his current state of incapacity had the injury not occurred in October 1990, progressive degeneration was likely, especially had he continued in demanding labouring work. In a report of 27 May 1998[13], Dr Curtis wrote:

   “After an interval of some 10-15 years from the date of the accident, the whole of his current disability would have been attributable to the development of pre-existing degenerative changes.”

   [13]Ex. 10.

1. The assessment of damages must reflect that prospect as well as the contingency [14] that the onset of symptoms might have been accelerated by other non-tortious trauma like taxing activity at home, at work or in recreation. Two considerations, however, tend to suggest that the plaintiff might not have suffered similar symptoms for some years. He had been active in sports without incident. Secondly, as Mr Geraghty submitted, had the plaintiff not been injured in October 1990, his old ankle injury would have precluded employment as a farm labourer or in other such physically demanding work.  All considered,  it is appropriate to calculate the damages on the basis that some non-tortious intervention or progressive degeneration would have reduced the plaintiff to much the same state in 10 years in any event.

   [14]Wynn v NSW Insurance Ministerial Corporation (1995) 184 CLR 485, 498-499.

2. Dr Curtis has described the complaints and restrictions in his report of 17 February 1998.[15]  Pain radiates out to the iliac crest on either side of the mid-lumbar region. The plaintiff is aware of discomfort and, at times, pain in both calves. He experiences numbness in the front of the left thigh. Back pain is present constantly to a greater or lesser extent, aggravated by standing in a stooped position, such as when brushing teeth or shaving, when washing, or attempting other activities. Sitting endurance is limited to 30-60 minutes; standing still for 5 minutes. The plaintiff can, however, walk for unlimited periods. He has pain after repeated bending or lifting. He experiences pain at night which disturbs sleep, and for which he takes sedatives and muscle relaxant medication. He is conscious of stiffness in the back. There is surgical scarring. No further surgery is anticipated.

   [15]Ex. 10.

3. Curtailment of recreational and sporting activities will remain. The plaintiff said that his pain contributed to the termination of his de facto relationship, but I am not inclined to act on this evidence, there being no corroboration of that perception.

4. As the psychologist, Mr Davis, explains, the plaintiff suffers from a chronic adjustment  disorder with moderately depressed mood. He tends to manage his pain inappropriately; his anger control difficulties are significant. Mr Davis expects that “targeted psychological intervention” directed at introductory pain management, anger control strategies and self-esteem enhancement may assist. That seems appropriate.[16]

   [16]Mr Davis’s letter of 4 August 1997 (Ex. 8) indicates how the cost of that treatment should be computed. The figure should be added to the amounts otherwise assessed.

5. The plaintiff is a person whose earning prospects and general enjoyment of life largely depended upon exploiting his physical capacities. The pain, psychological distress and the restrictions associated with his injury and its aftermath constitute a significant affect upon his life.

6. The plaintiff was born in September 1970. He left school in Grade 9. His interests lay in manual work and automobiles. Before working with the defendants, he had been employed in a variety of capacities. He had also often been unemployed for lengthy periods.

7. The case appears to have been conducted on the assumption that the plaintiff's answers to interrogatories[17]  may be treated as a reliable statement of his pre-injury employment history. According to those answers, these are the facts. The plaintiff was unemployed from December 1985 to the end of January 1986. In the year ended 30 June 1988 he earned about $880 in spray-painting and approximately $2,500 as a tradesman’s assistant. He was unemployed from mid-June 1988 until mid-April 1989. In the year ended 30 June 1989 he earned $1,537 from fibre-glassing and derived a small amount of other income from work.  In that year, as in the previous income year, he derived social security benefits. The plaintiff was unemployed from mid-July 1989 until mid-December 1989 and for about three weeks in June/July 1990. In the year ending 30 June 1990 his net earnings were: $963 from fibre‑glassing, $4,531 from work as a laundry hand, $3,617 from washing and detailing cars, and $1,871 as a trainee fibre-glasser. In aggregate, his earnings in that year amounted to less than $10,000. The total amount earned net after tax in the year ended 30 June 1991 is less than $4,200. Before commencing with the defendants, the plaintiff derived about $2,400 in work with paints and about $100 for a couple of days die-casting. The plaintiff estimates that he was unemployed for about 80 weeks in the five years or so before his injury.

   [17]Exs. 24, 30.

8. Forming a view about what work the plaintiff has done since 1992 is not easy. Neither Mr Douglas nor Mr Geraghty attempted the exercise. The plaintiff’s evidence concerning post-injury work is no more than a rough indication. If his tax returns in recent years are as reliable as the false return he filed for the 1991 year[18], they will not disclose the true state of his financial affairs either. Probably the plaintiff worked for about two months delivering seafood, worked for a short time as a spray painter, spent some weeks supervising fire security systems, and worked for a month in late 1996 as an estimator. He may have had another job or two for brief periods. This seems clear enough, however:  that for about a month from July 1994, and then again from November 1994 to March 1995, he worked as a salesman with a Bumpa T Bumpa franchisee until his employer lost the franchise and the business associated with it. The plaintiff was well regarded in that position. In the Brisbane area, there are many outlets selling automotive parts or that provide similar job opportunities. 

   [18]in which he omitted to mention receipts from the defendants despite having received a group certificate.

9. In January 1996 the plaintiff successfully applied for a disability support pension. In his application he described his spinal injury as the source of “severe pain in all aspects of working” and ascribed a lack of concentration to his depression. He also asserted that his medical condition stopped him from driving a car as well as from using public transport. Asked if he could do any work, he answered no. He indicated that there were reasons why he could not participate in any rehabilitation or training programme. One question enquired if he wanted help to get a job. Because he had by then decided that he did not intend to work again, he ticked the “No” box.

10. Dr Curtis considers that the plaintiff is capable of appropriate light work that permits him to change position at will and to work at his own pace. At such work, he should be capable of managing until his expected time of retirement.  Dr Adam believes that the plaintiff can perform some less physically demanding work, perhaps as a sales assistant, or some other work which does not require heavy lifting, or sustained or repetitive bending and stooping. These views accord with Dr McCombe's opinion, and I accept them. The plaintiff has not worked for much of the time since about 1993 because he has preferred not to do so. He can drive a car, and I do not accept that he cannot travel in public transport over such distances as are likely to be encountered in travelling to work. Economic loss from about 1993 appears to be more the result of a decision to obtain a pension than the product of a loss of earning capacity that is causally related to the injury.[19]

    [19]cf Medlin v State Government Insurance Commission (1995) 69 ALJR 118, 124-125.

11. The plaintiff's limited educational attainments reveal that he has never been suited for clerical or other essentially sedentary occupations. Although his old ankle injury limited the available job opportunities, the injury at the farm has further restricted his employment prospects. For a while the injury and its consequences effectively precluded the plaintiff from any work. Since at least the beginning of 1994, however, the plaintiff has been capable of carrying out light work of the kind involved in his Bumpa T Bumpa job. Yet his constant low back pain and its psychological consequences reduced his prospects of obtaining employment; other things being equal, employers would have preferred applicants without his limitations.

12. The many uncertainties surrounding what the future held for the plaintiff but for the injury, coupled with the unsatisfactory nature of the plaintiff's evidence, make the assessment especially difficult. But “the difficulty inherent in the assessment of damages provides no reason for the Courts to shirk the task of arriving at the estimate most likely to provide fair and reasonable compensation.”[20] On the basis the assessment is to be approached, the plaintiff, put shortly, falls to be compensated for 10 years pain, suffering and loss of the enjoyment of the amenities of life, and for the same period in respect of diminution in future earning capacity. For the former, $45,000  is awarded, of which $37,000 is apportioned to the pre-trial period. The assessment of the latter component has to reflect such things as the remuneration the plaintiff has derived from his post-accident employment[21], the risk [22] that he would have encountered substantial bouts of unemployment in the years to come, the fact that much of the economic loss since at least early 1994 is not compensable, and other vicissitudes, including contingencies that are not adverse. This is no mathematical exercise;  it is one of estimate and impression.  For diminution in earning capacity until trial, $60,000 is awarded. In respect of diminution in future earning capacity, $10,000 is allowed.

    [20]Todorovic v Waller (1981) 150 CLR 402, 413 per Gibbs CJ and Wilson J; cf Roe v Cullinane Turnbull Steele & Partners (No 2) [1985] 1 NZLR 37, 48; J.L.W. (Vic) Pty Ltd v Tsiloglou [1994] 1 VR 237, 241-246; Truss v Brazier [1993] 1 Qd R 691, 697.

    [21]which  cannot be established clearly, but which seems unlikely to have exceeded $10,000.

    [22]which the pre-injury employment shows is significant.

13. The action is dismissed.