Ryan v State of South Australia No. DCCIV-97-298 Judgment No. D3686

[1997] SADC 3686

RYAN  V  STATE OF SOUTH AUSTRALIA

Civil
Judge D. Bright

This is an assessment of damages.  At all material times the plaintiff was an inmate of the Cadell Training Centre.   He suffered injury, for which the defendant accepts liability, on 14 October 1992.     On that day he was required to work a cream separator in the prison kitchen.  It malfunctioned and a heavy circular lid was flung off, striking the plaintiff in the face and knocking him from his feet.    As he fell backwards, he struck his low back against the edge of some pallets which were stacked behind him.

He was at once aware of an injury to his mouth.   He was bleeding from a cut to the inside of his lip.   He was dazed.   There is some suggestion of fleeting concussion.   If it occurred, it was not of lasting significance.   He was treated with anaglaesics and little consequence was expected.  However, a few days later he complained of low back pain.   That was treated with physiotherapy and analgaesics.     A few days after that he says that he noticed and complained of neck pain.   That is not recorded in the records of the prison medical centre.

The plaintiff’s prior history is of significance.   He was born in 1953.  He left school in 3rd year (year 10).   He worked as a carpenter’s assistant.   He also embarked on a career of crime, with various property and street offences.

He moved to Perth in his mid 20’s.   He was, by then, a heroin user.   He hoped to get off heroin in Perth, but, after a period, fell back into the habit.   During his initial period of abstinence he found work as a brick paver.   He worked in that trade for many years.   His employer won prizes for paving.   The work was in plentiful supply.     The plaintiff was a good paver.   He could lay about 3,000 bricks a day on a prepared area.   To do this he walked along, bent double, putting bricks in place.   He also worked on preparing, levelling and spreading base material at sites for paving.   He moved bricks around sites to where they were needed.

I can only regard this as very heavy work.   It must have placed great strain on his spine.   He says that he had no particular problems.   By the end of a week he would be a bit sore and tired, but he would loosen up over the weekend and be ready to go on.   The fact that he did that work for years is quite inconsistent with his having more serious pain.

Examination after the subject accident has demonstrated that he suffers from an L4/5 spondylolisthesis.   That condition pre-dated the accident by many years.   Probably it occurred, or developed, in early childhood.  It was present throughout the years he worked as a paver.   I cannot exclude the possibility that it played some part in the soreness he would feel after a week of work.   As against that, I suspect that many men without that condition would  have felt much the same.   Clearly it was not then an incapacitating condition.

In 1980 he had a fall on a building site and hurt his leg.   This does not seem to have had long term consequences.          In 1985 he was pillion passenger on a motor bike which collided with a car.   He was thrown over the car.   He dislocated his right shoulder and may have strained his neck.    Soon after this he was gaoled in relation to heroin.

On his release, he returned to brick paving for several years.   He returned to South Australia, where he again worked as a paver.   He continued to work sufficiently quickly and skilfully to retain employment in a competitive trade.   I can reasonably infer that, although certain skills and techniques must be learned, brick paving is a trade which many people can learn relatively quickly.   It is not a trade in which the rarity of those skills means that practitioners are in high demand.

Once more he was imprisoned and, during this period, suffered the subject injury.   He was released in January 1993.   He was re-arrested in August 1996 and is still in custody.   During the period 93-96 he had no employment.  He was using heroin heavily.   It is difficult to attribute much of a lost chance to any back injury during that period, but there may be some.

I must turn to the nature of the injury.   As I have said, he had a pre-existing spondylolisthesis.   A person with this condition may, or may not go on to develop pain and limitation of movement.   It is an alteration to the alignment of the spine and it is reasonable to accept that there is at least a potential for problems to develop there.

As with all onsets of spinal pain, there is always room for debate about what caused or triggered that.   People naturally seek a cause, and tend to attribute it to some event of stress or trauma.   That attribution may be false -  pain comes on in many cases without there being any such identifiable cause.   Naturally, in some cases the cause will be clear.

In a case like the present, X-rays will show little or no change between the pre - and post - incident state.   The only difference will be complaint of pain.   Absolute proof of a link is not possible.

However, I need only deal in probabilities.   I am satisfied that an incident of hyper-extension at the site of a spondylolisthesis can stretch it open a little and cause it to become painful.   This incident appears to have involved hyper-extension, as his low back would probably have bent back as he fell back against the edge of the stacked pallets.   It was probably an incident capable of precipitating pain.

Whether it did largely depends on whether I believe the plaintiff.   In general, I do.  He appeared to tell his story in a moderate, reasonable way.  He did not appear to exaggerate.   He was not shown to be a liar by contrary evidence.   Really, the only serious dispute about his claim was based on the absence of notes of any neck pain.   That absence does not persuade me he is a liar.  

I find that he did suffer an injury which has caused his back to hurt after moderate lifting, bending or twisting.     It can be classified as mild to moderate disability  -  for what worth such relative terms may have.   I accept that he has a slight disability in his neck.

I note one defence argument.   It is based on the fact that heroin is a very effective analgaesic.   Accordingly, he may have had a back prone to pain long before the accident, but not known about it because of his heroin intake  -  or, at least, regarded it only as a normal concomitant of brick laying. The plaintiff was not high on heroin 24 hours a day for years before the accident.   His level of intoxication must have fluctuated,   if only during periods of incarceration.   It beggars belief that he could have been totally unaware of a problem despite the testing work that he did.

A corollary is the argument that, on release, he will again control his pain and be able to work as before.   I believe his condition has changed.   It may or may not be the case that, on release, he will, sooner or later, fall back into heroin use.   If he does, I reject the argument that it would restore his earning capacity.

I heard evidence from an orthopaedic surgeon to the effect that many people with spondylolistheses work hard and are not aware of them.   I accept that.  The plaintiff was one.   I also accept the evidence that a person’s  ability to cope with pain is related to many subjective factors, including motivation to work.   The absence of objective signs makes it hard to assess each case.

I can only rely on my assessment of the plaintiff and of his work.   He worked hard in the past.   If I may be permitted to be flippant,  he presents as "an honest crim".   With all his faults, I did not think he set out to paint a false picture of himself, his work and his problems.      In my opinion, one would only need quite a minor disability to be unfit for regular work as a brick paver.   I am satisfied that the plaintiff now has such a disability and will not again be suited for that work.

He made no claim for special damages.   I assess his non economic loss at $15,000, of which I attribute $9,000 to the past and $6,000 to the future.

His most difficult claim is for lost earning capacity.   He must remain in gaol until about March 2001.  He says he is off drugs and intends to remain so.   Such hopes must always be regarded with a certain caution, though I hope he can make it.   He is physically fit for a wide variety of work.   He is not trained in skills other than brick paving.   He is not well educated academically, but is quite intelligent enough to learn the skills of various "paper" jobs,   such as stock control/storeroom work and many other less physically demanding jobs.

His prospects of employment were, in any event, limited by his criminal record.   Many employers will not look on him favourably  -  and would not have done so, regardless of his injury.   I expect he will be out of work more than most for that reason.   Now he is further handicapped.   With his already limited prospects, further limits must be taken seriously.   But I do acknowledge that he was always likely to have less work than people with a better record.

He is in his 40’s, and I am not convinced that he would have kept up the pace of professional paving indefinitely.   He did have a spondylolisthesis, and was always more prone to develop pain than a person without that condition.

This is not a case in which I can usefully refer to actuarial tables.   I note that I must assess his future loss net of tax and with appropriate discount for present payment.       I assess economic loss at $50,000, which sum includes past loss.  

In the circumstances I shall make no award for interest on past lost earning capacity.     I shall allow interest on the $9,000 past non- economic loss for 4 years at 7% (this is not a Wrongs Act claim) and divide by two.   This gives a figure of $1,260.

I summarise

Non economic loss
past   $9,000.00
future $6,000.00
         Economic loss      $50,000.00
         Interest       $1,260.00
  $66,260.00

FRIDAY 17TH OCTOBER, 1997
         Assessment of damages in the sum of $66,260.  COSTS will follow the event, to be taxed if not agreed within 30 days.