Sloan v Service Stream Limited
[2020] SADC 98
•28 July 2020
DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
SLOAN v SERVICE STREAM LIMITED
[2020] SADC 98
Judgment of Her Honour Judge Schammer
28 July 2020
TORTS - NEGLIGENCE - CONTRIBUTORY NEGLIGENCE
TORTS - NEGLIGENCE - ESSENTIALS OF ACTION FOR NEGLIGENCE - DAMAGE - CAUSATION
DAMAGES - MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT - MEASURE OF DAMAGES - PERSONAL INJURIES - LOSS OF EARNINGS AND EARNING CAPACITY
The plaintiff claims damages for personal injuries allegedly sustained by him on 13 March 2013, while undertaking pit and pipe installation work for the defendant, under a labour hire contract with the plaintiff’s employer, Skilled Group Limited (Skilled).
The plaintiff claims to have suffered a significant injury to his lower back, with psychological sequelae, when he attempted to lift a ‘P9 pit’ with two other workers, during the course of that employment.
The plaintiff had previously sustained injuries to his lower back during the course of his employment in 2009, 2011 and on 7 January 2013.
At the time the plaintiff applied for employment with Skilled, he was certified unfit for work, and was in receipt of workers compensation benefits, arising from the back injury sustained on 7 January 2013.
The plaintiff did not disclose the fact of his prior back condition (or any prior work-related back injury) in his application with Skilled.
Whether the defendant was negligent or in breach of any statutory duty and if so, whether and to what extent the plaintiff’s negligence contributed to the incident.
Whether the defendant’s negligence caused the plaintiff harm, and what harm, having regard to the nature and extent of the plaintiff’s pre-existing back condition and pre-existing anxiety.
Held:
1. The defendant was negligent.
2. The plaintiff was contributorily negligent.
3. The plaintiff’s damages, as assessed, are to be reduced by 40% to reflect his contributory negligence.
4. The defendant’s negligence caused the plaintiff harm, namely:
(a) an aggravation of the plaintiff’s pre-existing lumbar spondylosis and degenerative disc disease, from which the plaintiff had recovered no later than 2 April 2014;
(b) a minor, and ongoing, contribution towards the plaintiff’s minor depressive illness.
5. Damages assessed in the sum of $80,355.06.
Orders:
1. There will be judgment in favour of the plaintiff as against the defendant in the sum of $48,213.04.
2. I will hear the parties as to costs.
Civil Liability Act 1936 (SA) ss 31, 32, 34, 35, 36, 39, 44, 52, 54, 58; Work Health and Safety Act 2012 (SA) ; Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001 (SA) ss 3, 7; Workers Rehabilitation & Compensation Act 1986 (SA) ss 35, 36; Return to Work Act 2014 (SA) s 66; Superannuation Guarantee Charge Act 1992 (Cth) ; Superannuation Guarantee (Administration) Act 1992 (Cth) , referred to.
Holyoak v Ivanoff (1995) 183 LSJS 21; Bowden v Colbey [2005] SASC 387; Fox v Wood (1981) 148 CLR 438; Wyong Shire Council v Shirt (1980) 146 CLR 40; Clare & Gilbert Valleys Council v Kruse [2019] SASCFC 106; Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; Joslyn v Berryman (2003) 214 CLR 552; Consolidated Broken Hill Ltd v Edwards [2005] NSWCA 380; Pennington v Norris (1956) 96 CLR 10; March v E & MH Stramare Pty Ltd (1991) 171 CLR 506; Wallace v Kam [2013] HCA 19; Purkess v Crittenden (1965) 114 CLR 164; Ridolfi v Hammond [2012] NSWCA 3; Eicas v Dawson [2016] SASCFC 124; Calvaresi & Rota Forma Pty Ltd v Lawson & Lawson (1995) 184 LSJS 147; Wheeler v Page & Harris (1982) 31 SASR 1, considered.
SLOAN v SERVICE STREAM LIMITED
[2020] SADC 98Introduction
The plaintiff, Eugene Sloan, was an employee of a labour hire firm, Skilled Group Limited (Skilled). Skilled assigned its labourers, including the plaintiff, to work on projects undertaken by Service Stream Limited (defendant). Those projects included the removal and installation of inground pits used to house and access cabling associated with the rollout of the National Broadband Network (NBN).
The plaintiff claims to have suffered a significant injury to his lower back, with psychological sequelae, when attempting to lift a P9 pit with two other workers during the course of his employment with Skilled, for the defendant, at Sefton Park on 13 March 2013 (incident).
Following the incident, the plaintiff made a claim for workers compensation, which claim was accepted. He continued to receive weekly payments of income maintenance pursuant to that claim until on or about 30 May 2014, when Skilled determined that he had ceased to be incapacitated for work, as a result of any injuries sustained in the incident.
The plaintiff claims damages from the defendant on the basis that the incident and his resulting injury, loss and damage, were caused by the defendant’s breach of common law and/or statutory duty and in particular, by their failure to provide appropriate training or instruction with respect to the lifting of the pit and/or appropriate assistance to enable the pit to be safely lifted.
The defendant denies any alleged breach of duty, or, in the alternative, pleads that any damages awarded to the plaintiff should be reduced to the extent to which the plaintiff’s negligence caused or contributed to such injury, loss and damage.
Further, the defendant denies that the injuries as alleged, were caused by the incident and pleads that any disability and/or incapacity suffered by the plaintiff is the result of a pre-existing medical condition.
Primary issues in dispute
There is no dispute that the P9 pit that the plaintiff was attempting to lift when he suffered the alleged injury, was heavy (with its weight estimated variously within a range of 60 kg[1] and 72 kg[2]) and somewhat awkward to lift, having regard to its dimensions and shape. However, there was a divergence of opinion as to whether a P9 pit could be safely lifted by two people and/or moved without mechanical assistance.
[1] T 67.15 per the plaintiff.
[2] T 514.37 per Mr J Berry.
The plaintiff completed an Application for Employment with Skilled on 24 January 2013. There is no dispute that as at that date, he had not been certified as fit to return to work, nor had he returned to work, following an alleged work related back injury sustained on 7 January 2013. The plaintiff did not disclose this, or that he had suffered prior work-related back injuries in 2009 and 2011, in the application for employment. The plaintiff admits that non-disclosure, but claims to have fully recovered from the effects of the injury sustained on 7 January 2013 at both the time he applied for employment with Skilled and when he commenced employment with them. The defendant denies the plaintiff had fully recovered as claimed.
There is no dispute that Skilled, and therefore the defendant, were unaware of the plaintiff’s prior history of back injury at the time he commenced working for Skilled, with the defendant and/or at the time of the incident. As such, in issue and for my determination is whether the defendant breached the standard of care required of it, having regard to the information it had, or ought reasonably to have had, at the time of the incident.
In addition, I must determine whether the plaintiff’s failure to disclose his prior back injuries to Skilled (and therefore the defendant) and/or to engage in employment which he knew required him to engage in heavy manual lifting in light of his history of prior back injury, and/or the manner in which he lifted the pit, amounts to contributory negligence, and if so, to what extent any damages awarded to him should be reduced on account of such negligence.
The plaintiff underwent radiological examination of the lumbar spine both before and after the incident. There is a dispute as to the extent to which (if at all) apparent changes reported in that radiology over time reflect the occurrence of any new injury or injuries at the time of the incident, and/or indicate a progression of pre-existing degenerative changes of the plaintiff’s lumbar spine.
Put another way, in issue is, did the incident cause any permanent worsening of the plaintiff’s pre-existing back injury, or did it result merely in a temporary aggravation of that pre-existing condition?
Further, the consensus of the medical evidence is that the plaintiff’s claimed level of pain and physical impairment cannot be (fully) explained by his organic injuries. There is no dispute that at the time of the incident the plaintiff was taking medication for what he described as longstanding anxiety. A further issue for determination is whether the plaintiff has developed a depressive illness as a result of the incident, and if so, the nature and severity of that illness.
As such, by way of summary, the issues in dispute and for my determination are:
1Was the defendant negligent or in breach of any statutory duty of care owed to the plaintiff. Fundamental to this question is a determination as to whether the system of work utilised by the defendant with respect to the installation of the P9 pit by the plaintiff was unsafe, having regard to the circumstances of that particular installation and the training and/or instruction provided to the plaintiff and/or his work partner, Mr Woodfield, in the context of the defendant’s lack of knowledge of the plaintiff’s prior history of back injury.
2If the defendant was negligent or in breach of duty, was the plaintiff contributorily negligent, and to what extent.
3What, if any, injury or injuries suffered by the plaintiff were caused by the defendant’s negligence or breach of duty.
4What is the appropriate assessment of the plaintiff’s claim for damages.
Hearing
The trial was heard over seven days commencing Monday 3 February 2020.
At the commencement of the trial, the plaintiff was granted leave to amend the Statement of Claim to plead a claim for damages for past voluntary services.
The plaintiff gave evidence and called the following witnesses:
1Mr Edward Woodfield, who worked alongside the plaintiff during his employment with Skilled, and was lifting the P9 pit with the plaintiff at the time of the incident;
2The plaintiff’s mother, Ms Janice Hamilton;
3Mr Paul Carney, neurosurgeon;
4Dr Dion Suyapto, occupational physician;
5Dr Cuong Ding Le, general practitioner;
6Dr Trevor Simounds, general practitioner; and
7Dr Warwick Blakemore, psychiatrist.
The defendant called evidence from:
1Mr Jay Berry, a former employee of the defendant, who recalls assisting two other workers to move the P9 pit at Sefton Park on the relevant date;
2Mr Steve Waddington, an employee of the defendant, who held the position of field supervisor with respect to pit and pipe installation as at March 2013;
3Mr Nathin Castle, who was employed by the defendant as a Construction Project Manager as at March 2013;
4Associate Professor Brian Brophy, neurosurgeon;
5Dr Kar Loong Ng, occupational physician; and
6Dr James Hundertmark, psychiatrist.
Both parties tendered numerous exhibits, which included reports written by the various medical witnesses, radiological reports, taxation returns, pay slips and payment summaries. A schedule of past special damages, agreed only as to quantum, was provided after the hearing had concluded, in accordance with leave granted to do so.
The court was not provided with a copy of any recovery notice listing what payments had been made by way of workers compensation to the plaintiff as a result of the incident. The plaintiff relied on the information contained in the taxation returns, supplemented by the plaintiff’s evidence and the material tendered in Exhibit P3 ‘Schedule of Past Earnings’, to provide the evidentiary basis for the calculation of the claim made for damages for past and future loss of earning capacity.
The Trial Book included a copy of an Affidavit of Loss (Statement of Loss) sworn by the plaintiff on 19 April 2018. However, the Affidavit of Loss was not tendered as evidence and therefore is to be regarded only as an extension of the pleadings.[3] Nevertheless, it should be noted that the Affidavit of Loss contains numerous factual errors insofar as the answers to sub-paragraphs (1)(b)(iv) and (v) bear no correlation with the information provided in the tendered taxation returns and the answer at paragraph (1)(d) omits to make reference to a previous injury sustained by the plaintiff to his lower back on 7 January 2013.
[3] Holyoak v Ivanoff (unreported, 18 August 1995, SASC, Perry J); Bowden v Colbey [2005] SASC 387.
Counsel for both parties delivered oral closing addresses, however, in addition, the defendant provided a written Outline of Closing.
At the conclusion of the trial, the parties were ordered to provide a Schedule of Past Special Damages to the court. That Schedule was inaccurate and incomplete. Further, the absence of any information confirming what gross payments had been paid by Skilled (in its capacity as an exempt employer) to the plaintiff by way of workers compensation, and for which it sought recovery, created insurmountable difficulties in the court properly assessing damages, having regard to the well-known principles set forth in Fox v Wood.[4]
[4] (1981) 148 CLR 438.
After a further short hearing on 13 May 2020, on 5 June 2020 the court received the following additional materials:
1Amended Schedule of Special Damages – intended to replace the schedule as tendered following the trial.
2Schedule of payments made by Skilled to the plaintiff by way of workers compensation for income maintenance and for earnings in alternative duties.
Assessment of the Witnesses
The plaintiff presented as if he was in considerable and constant pain, and appeared generally unwell, with a grey and pallid complexion and bags under his eyes.
He requested the ability to stand and sit as required during the course of his evidence, and was often grimacing or sighing in apparent pain. Upon the conclusion of his evidence, the plaintiff regularly moved from his seat in the body of the court.
The plaintiff was not an impressive witness. As will be outlined in further detail, there were internal inconsistencies in the plaintiff’s evidence and numerous inconsistencies in his evidence when compared to what was recorded in the tendered documents.
During examination-in-chief, the plaintiff’s evidence was, initially, given in very general terms. As that examination continued, and additional documents were tendered, more specific evidence was given by the plaintiff on certain issues (such as periods of prior employment and past offender history), often in response to leading questions, with that evidence, in certain circumstances, at odds with the plaintiff’s earlier evidence on the same topic.
The plaintiff did not give a full and accurate history to the various medical practitioners who examined him, in numerous instances failing to make any reference to the fact he had suffered an injury to his back in January 2013, and/or providing inaccurate information as to when he had suffered other previous back injuries.
The effect of the plaintiff’s inaccurate history to those practitioners was to understate the fact of or resulting impact of any earlier injuries and to overstate the potential significance of the incident as a cause of any ongoing symptomology. Although the plaintiff sought to explain the inaccuracy of the history he gave to Mr Carney as being due to the effects of his medication, he was otherwise seemingly able to accurately recite other aspects of his history to Mr Carney.
The internal inconsistencies in the plaintiff’s evidence and the omissions in the history provided by the plaintiff to the various specialists and doctors who have examined him, cause me to have considerable doubt as to the reliability of the plaintiff’s evidence.
The plaintiff acknowledged he had lied on various applications for employment, including his employment with Skilled, in failing to disclose any prior back injuries. This acknowledgement was made in the face of clear documentary evidence to that effect. The defendant stated that he knew if he had truthfully completed the application(s), he would have been unsuccessful in obtaining the position(s).
The plaintiff acknowledged he had been fired from prior employment for dishonestly manipulating a medical certificate and had been convicted for numerous prior offences of dishonesty, including being convicted of numerous counts of Centrelink fraud on two separate occasions. Again, this evidence was given in the context of there being documentary evidence confirming that prior offending.
The plaintiff justified his previous failures to comply with court ordered bonds and/or to refrain from driving while not authorised to do so, on the basis that those breaches arose out of necessity.
While the plaintiff should not be judged on his criminal past, and more recently has not offended, the reality is, that he has demonstrated the capacity and tendency to deceive others, over an extended period of time, in order to benefit himself, and to ignore court or administrative orders in order to achieve his stated ends.
I am conscious that nearly seven years had passed since the incident and the date of trial and that, at times, the plaintiff was being asked to provide significant detail about matters which had occurred more than 10 years ago. The plaintiff continues to take medication to address his ongoing complaints of chronic pain, and has reported memory difficulties. This may explain some of the inconsistencies in the plaintiff’s evidence.
However, due to the combination of these matters, I have proceeded with considerable caution with respect to the plaintiff’s evidence. After carefully analysing the plaintiff’s evidence, I am unable to accept that evidence as being both reliable and credible unless it is otherwise corroborated by evidence which I accept as being both reliable and credible.
Mr Woodfield, Mr Berry, Mr Castle and Mr Waddington all gave their evidence in a very straightforward manner. My impression was that they were all honest witnesses, doing their best to recall as much as they could, as accurately as they could, having regard to the passage of time.
When the evidence of these witnesses is carefully analysed, there is much consistency in that evidence, with the differences capable of being explained by reference to each individual witness’ experience and their role at the relevant time.
I accept that Mr Woodfield was giving an honest and independent recollection of the incident and its surrounding circumstances, in the sense that I accept his relationship with the plaintiff is only that of a former co-worker, rather than as a friend or confidante. I do not consider Mr Woodfield to be a ‘barracker’. Insofar as it may be suggested that Mr Woodfield had tailored his evidence to support that of the plaintiff, I reject any such suggestion.
The evidence of Ms Hamilton, the plaintiff’s mother, was of limited assistance to the court on the primary issue, namely the cause of the plaintiff’s ongoing significant complaints of chronic pain. Ms Hamilton did not give any evidence about her observations of the plaintiff after any of his earlier back injuries and gave very general evidence as to her observations of the plaintiff since the incident and the assistance she has provided to him.
While generally an honest witness, Ms Hamilton was very supportive of her son and the evidence she gave depicted the plaintiff in only a positive light, in terms of his pre-accident history. My perception of Ms Hamilton’s evidence was that she downplayed (and/or glossed over) the difficulties the plaintiff had experienced in his life before the incident, including the impact on him of the earlier back injuries, his prior drug addiction, offender history and the instability and lack of security he had faced in term of his employment history. This, coupled with the lack of detail in Ms Hamilton’s evidence, means it is of only limited weight and assistance to the court.
As to the expert witnesses, each approached their assessment of the plaintiff on the assumption that the history he provided to them as to his previous injuries, employment and other history, symptoms and restrictions, was an honest and accurate history. Insofar as that history was not honest or accurate, then the underlying assumptions upon which any such opinion was based, will be inaccurate. Although those aspects of the plaintiff’s history which can be demonstrated as inaccurate, by reference to the documents, were explained to some of the expert witnesses and their opinion sought based on those inaccuracies being corrected, insofar as any other aspects of his history were unreliable, or not honestly expressed, those opinions will remain tainted by that unreliability or inaccuracy.
I consider that each of the expert witnesses gave their evidence honestly, with some, more than others, prepared to carefully consider the impact on their initial opinions of new information provided to them, which may have differed to that upon which they had relied. I will discuss the evidence of each of the expert witnesses in more detail below.
The Plaintiff
Personal History
The plaintiff (date of birth: 12 August 1971) is currently 48 years of age and at the time of the incident was aged 41. He is currently single and has an adult daughter who lives independently of him.
The plaintiff was born in Port Pirie and lived there as a young child, until his family moved to Adelaide for reasons associated with the plaintiff’s asthma. The plaintiff then completed primary school at Star of the Sea School, Henley Beach and commenced secondary school at St Michael’s College. The plaintiff gave evidence that he was expelled from this school after being found in possession of marijuana on the school grounds.
The plaintiff completed Year 11 at Underdale High School and left school in Year 12 to commence a plumbing course through TAFE. Before completing that course, he was offered and accepted an opportunity to work with his uncle in Darwin. Unfortunately, that opportunity proved to be short lived. After only a few weeks the plaintiff returned to Adelaide, where he spent some time unemployed, before obtaining unskilled work.
Since then, the plaintiff has worked for various employers (including labour hire companies), generally in unskilled labouring and/or factory work, interspersed with periods of unemployment (including periods when he could not work because he was in custody).
The plaintiff has a White Card and a qualification in asbestos handling, but otherwise holds no academic or trade qualifications.
Illicit Drug Use
The plaintiff’s daughter was born in 1998. He said his relationship with his daughter’s mother broke down when his daughter was aged one, explaining that the couple no longer loved each other, and that his ‘drug use was pretty bad back then’.[5] He said he had difficulty dealing with the separation and was using marijuana anywhere from ‘five to six times per day.’[6]
[5] T 22.8.
[6] T 22.19.
The plaintiff commenced smoking methylamphetamine in about 2004 and said he soon became addicted. His methylamphetamine use ‘spiralled’ following his father’s death in late 2005, such that he was taking it up to three or four times per day.[7] The plaintiff explained that after being remanded in custody for offending in late 2005 or early 2006, he underwent a voluntary rehabilitation course and was prescribed an anti-depressant, Avanza 30mg. He said the Avanza ‘helped me straight away or within two weeks, I felt better about myself, a lot clearer, and sort of went along that path’.[8] He said he had not taken amphetamines since his release from custody with respect to that offending.[9]
[7] T 23.18-30.
[8] T 25.9-11.
[9] T 25.1-21.
Prior Offending History
The plaintiff acknowledged he had a criminal record, and said this was something from his past, of which he was not proud.
A Crimtrac Referral Report containing details of the plaintiff’s offender history was tendered as Exhibit D18. The plaintiff’s offender history, as described in that document, is summarised in Annexure A hereto. That Annexure should be read in conjunction with and forms part of this judgment.
The plaintiff’s involvement with the criminal justice system began when he was aged 17, when he committed several traffic offences and then continued, with more serious offending, including multiple offences of dishonesty during the period 2000 to 2012. Since the incident, the plaintiff has only two convictions for offending on 16 November 2014, when the plaintiff drove with excess blood alcohol and therefore in breach of his probationary licence conditions.
The plaintiff’s criminal history is relevant insofar as it provides an explanation for certain periods in his life when he has been unable to work, as he has either been on remand in custody or serving a term of imprisonment. It is relevant both to my assessment of the plaintiff’s credibility and reliability as a historian, and to the extent to which I can rely on the evidence of the medical specialists who have, as the basis for the opinions expressed by them, assumed that the plaintiff’s reported history to them is accurate.
It also provides an insight into the nature of the plaintiff’s life, up to and including late October 2012, noting the incident occurred on 13 March 2013.
The plaintiff gave evidence that since being released from custody in November 2006, he was ‘trying to keep on the straight path, not taking any drugs’,[10] that he had accommodation first in an OARS house, and then closer to his family in Brompton, and that his sister had helped him get a job in the civil construction industry.[11] As to his physical health in the period between his release from prison in 2006 and when he started a contract in 2009 he said:[12]
Yeah, I was actually pretty fit, pretty health (sic) then. I had come a long way.
[10] T 26.11-12.
[11] T 26.11-17.
[12] T 27.18-19.
The overall effect of the plaintiff’s evidence-in-chief as to the period after November 2006, until 2009, was that it was a positive period, during which he successfully addressed his drug addiction and obtained employment.
However, in cross-examination, when being queried about his inability to recall various instances when he had breached court bonds since then, the plaintiff gave the following evidence:[13]
[13] T 161.28-34; T 162.2-37.
Q.So you gave an undertaking to the court that you would be of good behaviour or the like and you were willing to break that bond; is that right.
A.I wasn't willing to break it, it just happened unfortunately.
Q.So these things just happen, do they.
A.Well yeah, that's right.
…
Q.In 2010, do you remember being before the court for an application to enforce your good behaviour bond following your offence for criminal trespass in 2006.
A.Yes.
Q.So you broke that bond, did you.
A.I could not say, sorry. If I did, I did do imprisonment.
Q.No, you didn't do imprisonment.
A.So I couldn't have been that bad of a person for breaking a bond.
Q.Sorry I didn't hear that.
A.I couldn't have been that bad of a person if I broke a bond. If I broke the bond I'd be in gaol. I don't understand that. I can't remember that.
Q.You can't remember that. You can't remember being given a further six month bond -
A.No.
Q.- following the breach of the offences that put you in prison.
A.No.
Q.Is that because you lie all the time.
A.No, that's because my life was a mess, it was all over the shop, trying to get everything back on track. I was living in an OARS house. Yeah, I don't know.
Q.So your life was a mess at that stage; tell me about your life.
A.Well, I just come out of gaol. I had nowhere to live, I had to live in a halfway house full of criminals and me. Yeah, I was just really trying to get on my feet, get my own place so I could see my daughter again.
Q.This offence occurred on 24 July 2008, which is two years after you left gaol.
A.Yeah, yep.
Q.So you were still in the halfway house; you hadn't got on your feet by then.
A.No, it took me three years before I got on my feet.
The plaintiff acknowledged that there were aspects of his history that demonstrated dishonesty. He gave the following evidence:[14]
[14] T 166.35-167.14.
Q.Stealing or whatever it was that got you an 18-month good behaviour bond for being dishonest; that's a big deal, isn't it.
AYeah, yeah, it's being dishonest.
Q.And you consider yourself an honest person.
A.I do now.
Q.You do now.
A.Yes.
Q.But not then.
A.Not when I was back on methamphetamine and that.
Q.So you were back on meth in 2011, were you.
A.No, I said not when I was - when I come out of gaol in 2006 I never touched it again. I haven't touched the drug since.
Q.Yes but we're at 2010, 2011 - five or six years after you got out of prison - and I am asking you whether or not you thought that you were a dishonest person.
A.I didn't class myself as a dishonest person, no.
The plaintiff explained that he had to drive on occasions during 2007 and 2008, despite not being licensed (or disqualified), because he had to drive for work. He gave the following evidence:[15]
[15] T 159.29-160.38.
Q.So an offence in 2007, for a hearing in early January 2008, were you charged with failing to truly answer.
A.I couldn't say, sorry.
Q.Have you ever been charged.
A.Yes.
Q.For failing to truly answer.
A.Yes.
Q.So you were dishonest to somebody.
A.Yes.
Q.Who was that to.
A.To the police officer.
Q.So, for whatever reason, you decided not to tell the police officer the truth.
A.I gave another name.
Q.Another name.
A.Yes.
Q.Not your own name.
A.Yes.
Q.Why was that.
A.Because I was disqualified.
Q.So you were driving again disqualified and you thought that to try and get out of it, you would tell a white lie and give somebody else's name; is that correct.
A.That's correct.
Q.At the same time, in early 2008, were you also convicted of driving unregistered motor vehicle and also driving under disqualification, a separate time.
A.Yes.
Q.In 2008, were you charged another two times for driving unregistered motor vehicles and driving uninsured motor vehicles and not holding the appropriate licence.
A.Yes.
Q.So that was four times in a year, effectively, that you were charged on separate occasions.
A.Yes.
Q.This is after you started getting yourself back on track following your gaol sentence.
A.Yes.
Q.Why did you continue to drive in that manner; did you not just care about the rules.
A.No, it was really more for work. I only drove because I had no other way of getting to work.
Q.So it's okay to break the law if you have got no other -
A.I have to live. It's either work or be homeless, one of the two.
Q.So the only alternative was, on four occasions, to break the law.
A.Unfortunately, yes.
I have highlighted this evidence as it, in part, explains my inability to rely on the plaintiff’s evidence either as to its honesty or accuracy, unless that evidence is supported by other credible and reliable evidence.
Prior Employment History
Set out hereunder is a schedule containing details of the plaintiff’s pre-incident employment history (as far as is known), prior back injuries and any periods during which the plaintiff was in custody.
Date Detail/Employment Notes Aug 2003 – Feb 2006 Wormald Fire Systems.[16]
Fire Service Technician.
Sacked from this employment for misconduct.[17]27 May 2006 Commits offences:
1 x non agg serious criminal trespass in a place of residence;
1 x agg assault;
2 x damage property;
1 x theft.[18]Subsequently remanded in custody for 4 months and spent 4 months on home detention.[19] Approx. 2007 Employed for first time by BMD Constructions Pty Ltd.[20] Labouring, 6-month contract on Bolivar Rd upgrade. Jan 2009 - Nov 2009 Employed for second time by BMD Constructions Pty Ltd.[21] At Christies Beach Wastewater plant.
Earning $25.00/hour.[22]
Sacked from this employment for serious wilful misconduct in falsifying a sickness certificate.[23]6 Aug 2009 First back injury.[24] Plaintiff in receipt of income maintenance from 10 Aug 2009 to 28 Nov 2009. 1 July 2009 - 29 Dec 2009 Orange Recruitment.[25] Plaintiff could not recall nature of work undertaken.[26]
Gross income $130.0016 Nov 2009 – 2 June 2010 Centrelink – Newstart.[27] Benefits received intermittently during this period when not working. 9 Dec 2009 – 30 June 2010 Clements Industrial.[28] Plaintiff could not recall nature of work undertaken.[29]
Gross income $612.009 Dec 2009 – 30 June 2010 Tandem Australia.[30] Plaintiff could not recall nature of work undertaken.[31]
Gross income $316.0020 Jan 2010 - 27 Jan 2010 BDS People Pty Ltd.[32] Laying sewer pipes.[33]
Gross income $789.0018 Feb 2010 - 30 June 2010 United Project Services.[34] Laying pipes at West Beach.[35]
Gross income $940.0030 Mar 2010 – 25 June 2010 Hays Specialist Recruitment Pty Ltd.[36] Pipe laying, factory work, shop fit out.
Earning $25.00/hour[37]
Gross income $3,822.00[38]12 July 2010 - 30 June 2011 Centrelink – Newstart.[39] Received for ‘most of that period’. 12 – 26 Sept 2010 SOS Employment Pty Ltd.[40] Net Income $480.26. Dec 2010 (one day) SOS Employment Pty Ltd.[41] Net Income $164.42. Jan 2011 (3 weeks) SOS Employment Pty Ltd.[42] Net Income $1,992.18. 7 Mar 2011 - Approx. April 2011 RED Appointments Pty Ltd.[43] Pipe laying, $25.00/hr, 5 days/week, 7 am until 4 pm.[44]
Net income $2,135.004 April 2011 – 29 April 2011 SOS Employment Pty Ltd.[45] Net income $3,449.96 (incl workers comp payments). 18 April 2011 Second back injury.[46] Plaintiff received income maintenance of $1,712.07 gross. Late May 2011 - June 2011 Montica Consulting Pty Ltd.[47] Pipe laying.
Earning $25.00/hour, 5 days/week, 7 am- 5 pm.[48]
Net income $2,792.001 July 2011 – 2 Sept 2011 Centrelink – Newstart.[49] Taxable Income $1,677.00. 5 Sept 2011 – 4 Feb 2012 AR Contracting Pty Ltd.[50] Initially laying water mains at Lewiston.[51]
At Alice Springs – digging holes and laying stormwater pipes with excavator.[52] Resigned due to heat.[53]
Working 50-55 hrs/week, $19.35/hr + overtime.[54]
Net income $18,014.0019 Feb 2012 - 18 Mar 2012 SOS Employment Pty Ltd.[55] Net Income $4,420.55. 26 Mar 2012 - 30 June 2012 Centrelink – Newstart.[56] Taxable income $1,975.00. Between Mar 2012 - 23 May 2012 REC Group Pty Ltd.[57] Laying stormwater.[58]
Net income $1,650.00Between Mar 2012 – 23 May 2012 MRCG Pty Ltd (MRC Constructions).[59] Site clean-up labouring, around $25.00/hr, 7 am until 3.30 pm.[60]
Net income $1,022.00Between Mar 2012 – 23 May 2012 Interstate Enterprises Pty Ltd (ATS Recruitment).[61] Pipe laying, some factory work, around $25.00/hr, 7 am until 3 pm.[62]
Net income $1,438.0024 May 2012 – 14 Aug 2012 In custody – serving sentence[63] Sentence 2 months and 21 days.
Drive in a reckless or dangerous manner and drive under disqualification/suspension.11 Aug 2012 – 8 Feb 2013 Centrelink – Newstart.[64] Taxable income $4,688.00. Oct 2012 SOS Employment Pty Ltd.[65] Gross income $198.00. 26 Nov 2012 – late Jan 2013 ANCOR (Newsagents House).[66] Packing stationery into boxes.[67]
Net Income $5,618.00 (includes income maintenance after third back injury).7 January 2013 Third back injury.[68] Plaintiff did not return to work with ANCOR thereafter. Received income maintenance totalling $1,967.78.
4 February 2013 Commenced employment with Skilled.[69] 13 March 2013 Incident. [16] Exhibit D4; T 23.18-22.
[17] T 23.33-24.1.
[18] Exhibit D18.
[19] T 24.18-21; noting this includes a term of imprisonment of 4 weeks imposed on 12 July 2006, backdated to commence on 27 May 2006, for offending in October 2000 comprising two counts of acting under false pretenses and two counts of unlawful possession.
[20] T 26.21-30.
[21] Exhibit D4.
[22] T 119.35-120.19.
[23] T 34.5-35.6.
[24] Exhibit P3; Tab A.
[25] Exhibit P1 p 130.
[26] T 125.18-31.
[27] T 123.36-124.16; Exhibit P1 p 129.
[28] Exhibit P1 p 139.
[29] T 124.17-125.1.
[30] Exhibit P1 p 137.
[31] T 125.2-17.
[32] Exhibit P1 p 131.
[33] T 125.32-126.14.
[34] Exhibit P1 p 136.
[35] T 126.15-34.
[36] Exhibit P1 p 128.
[37] T 127.9-10; 128.1-3.
[38] This income was erroneously included in the plaintiff’s 2011 taxation return.
[39] T 128.4-18; Exhibit P1 p 145.
[40] Exhibit P3, Tab B; T 128.19-129.3; The plaintiff gave evidence that the work he did for SOS Employment was always pipe laying, save for one job which involved galvanizing poles for the rail electrification; T 129.1-3.
[41] Exhibit P3, Tab B.
[42] Exhibit P3, Tab B.
[43] Exhibit P1 p 154.
[44] T 131.38-132.24.
[45] Exhibit P3, Tab B.
[46] Exhibit P3, Tab C.
[47] Exhibit P1 p 155.
[48] T 132.36; 133.1-8.
[49] Exhibit P1 p 166.
[50] Exhibit P3 p 4 and Tab D; T 189.22-33.
[51] T 38.30-39.3.
[52] T 40.5-41.19.
[53] T 41.29-35; 191.3-21.
[54] T 135.38-136.29.
[55] Exhibit P3, Tab B.
[56] Exhibit P1 p 166.
[57] Exhibit P1 p 157.
[58] T 138.29-38.
[59] Exhibit P1 p 157.
[60] T 137.28-138.12.
[61] Exhibit P1 p 157.
[62] T 138.13-28.
[63] Exhibit P3, Tab E; Exhibit D18.
[64] Exhibit P1 p 181.
[65] Exhibit P1 p 171.
[66] Exhibit P3, Tab G; Exhibit P1 p 171.
[67] T 44.11-16.
[68] Exhibit P3, Tabs F-G.
[69] Exhibit P10.
There are no taxation returns in evidence pre-dating the 2010 financial year. However, the plaintiff gave evidence that in around 2004 he was working with Wormald Security as a service technician and that while so employed, he developed an addiction to methylamphetamine, causing him to become very angry and impatient. He said he was sacked from that employment after he yelled in anger at a woman at work, after she had startled him.[70]
[70] T 23.18-22; T 23.33-24.1.
Thereafter, the plaintiff spent four months in custody and four months on remand after offending involving his ex-girlfriend.[71]
[71] T 24.18-21.
The plaintiff’s first employment in the civil construction industry was for BMD Constructions Pty Ltd (BMD) in 2007, this being a six-month contract, working on the Bolivar Road upgrade, working as a labourer. Thereafter, the plaintiff obtained intermittent employment working for various labour hire firms (and direct employers) undertaking similar work, as and when it was available.
The plaintiff commenced a second contract with BMD in or about 2009, during which period he suffered his first back injury on 6 August 2009 (see discussion below). The plaintiff gave evidence that following his return to work on light duties after that injury, his employment was terminated when he falsified a sickness certificate (provided for an unrelated illness) by changing the date to extend the alleged period of incapacity. By reference to a letter from Employers Mutual to the plaintiff, this was in or about November 2009.[72]
[72] Exhibit P3, Tab A, p 4.
Between December 2009 until April 2011, the plaintiff secured intermittent employment with numerous entities, interspersed with periods of unemployment. This work predominantly comprised pipe laying, but also occasional factory work and a shop fit out.
On 18 April 2011, the plaintiff sustained his second back injury while undertaking employment with SOS Employment Pty Ltd, working on the Torrens Island Upgrade (see discussion below). After about two weeks off work following that injury, he returned to work on or about 30 May 2011 with another labour hire company, Montica Consulting Pty Ltd, ‘pipe laying, doing the soil line at Mile End’.[73]
[73] T 132.36.
The plaintiff was unemployed and in receipt of Centrelink benefits from July 2011 until early September 2011.[74] Thereafter the plaintiff gave evidence that he obtained employment with AR Contracting Services, working with them for approximately eight months.[75] He said he was initially working at Lewiston, ‘laying water main pipe, which is very light, and just running around with the water truck, driving the water truck’.[76]
[74] Exhibit P1 p 166.
[75] T 40.7.
[76] T 38.38-39.2.
The plaintiff said that his bail conditions (imposed after he was charged with driving while disqualified in May 2011) were varied to enable him to continue to work for AR Contracting in Alice Springs. He described this work as digging holes with an excavator and laying massive stormwater pipes. He said the work was not as heavy as he had done before, because the lifting was done by excavator.[77] He said he worked around 50 to 55 hours per week and received a base hourly rate of $19.35, plus overtime.[78]
[77] T 40.25-41.17.
[78] T 135.38-136.26.
The plaintiff gave evidence that he left that employment and returned to Adelaide, without having another job to go to, because the heat took a toll on his body.[79] He obtained other short periods of employment working with SOS, and other labour hire companies, interspersed with some time unemployed, until he served a term of imprisonment with respect to the May 2011 driving offences, from 24 May 2012 until 14 August 2012. [80]
[79] T 41.29-35; T 191.3-21.
[80] Exhibit P3, Tab D.
Other than a brief period of employment with SOS in October 2012,[81] the plaintiff did not return to work thereafter until commencing a short-term contract with The Associated Newsagents Co-Operative (SA) Limited (ANCOR), described by the plaintiff in his evidence as ‘Newsagents House’, on 26 November 2012.
[81] Exhibit P1 p 171; Exhibit P3.
The plaintiff gave evidence that his work at ANCOR involved packing stationery as ordered into boxes. He described that work in the following terms:[82]
You’d pick up your order and you’d have aisles of where everything was, you’d go around with your cart, it was a bit like shopping, pick out your order, put it onto your cart, take it back to the main bay area where you would pack it, label it and pallet it, put it on a pallet.
[82] T 44.11-16.
The plaintiff said he was employed by ANCOR as a casual, working from 8 am until 4 pm, on about a three-month contract.[83]
[83] The plaintiff’s time sheets were in evidence (Exhibit P3, Tab G) and show that during the period of just over six weeks commencing Monday 26 November 2012 until Monday 7 January 2013 inclusive), the plaintiff worked 20 days and a half day with ANCOR, and had three days absence on sick leave.
On 7 January 2013, the plaintiff suffered his third back injury during the course of that employment and did not return to work at ANCOR following that injury (see discussion below).
The plaintiff applied for employment as a labourer with Skilled on 24 January 2013, and commenced such employment, working with the defendant as a pit and pipe installer, on 4 February 2013. The incident occurred during the course of that employment on 13 March 2013.
Previous Injuries
The plaintiff gave evidence that he had suffered work related injuries to his back on three occasions prior to the incident.
First Back Injury – 6 August 2009
The plaintiff gave evidence that he suffered his first back injury while undertaking his second contract with BMD Constructions. He said that the work at BDM involved the laying of stormwater, sewer pipe and water mains. He described that work as follows:[84]
Q.That work involved what specific physical tasks.
A.Just, again, just spotting an excavator, like, digging, and then just laying some sand for your bed, then just grading it and then compacting the soil was pretty heavy with the leg rammer; you would get it into the trench and then you would lay your pipes, seal the pipes, then the foreman will come around and check the grade, check the grade, the fall was right, and then we would backfill the hole.
Q.You would backfill the hole manually.
A.Yeah - no, the excavator or a bobcat would tip the soil into the trench and we would go along and level it out and compact it with a compactor, or a leg rammer, as it's called.
[84] T 27.23-36.
The plaintiff said the injury occurred in around August 2009 when he was potholing for a gas line. The task of potholing involved standing up and using a crowbar, in a downward motion, to dig away at the soil, keeping his knees bent and his back straight.
The plaintiff said on the day he was injured he had been potholing for around five to six hours, having commenced that work at around 9 am, with a lunch break in between. He said the injury occurred at around 3 pm and described it in the following terms:[85]
A.By this time, with the crowbar, we were actually applying downward force (DEMONSTRATES), but the crowbar was actually taking - it was, like, the hole was as deep as the crowbar, so I'm practically squatting down to the ground, applying downward force, and I felt this sharp pain down my left side.
Q.Down your left side.
A.Yeah.
Q.Which particular part of the body.
A.It was mainly around my hip, around my lower back and my buttock.
[85] T 29.5-15.
The plaintiff gave evidence that he was ‘limping around’[86] and had looked for the foreman to report the injury, but the foreman had left the site.
[86] T 29.26.
He said; ‘the pain was unreal’,[87] that ‘it was unbearable actually’[88] and that after having a shower, he cooled down and could not straighten up properly, and was taken to a doctor.[89] He said that the next day his symptoms were worse, with the pain radiating down his left leg. He was not suffering any symptoms on his right side.[90]
[87] T 30.21.
[88] T 30.24.
[89] T 30.24-31.
[90] T 30.37-31.6.
The plaintiff said he subsequently consulted Dr Suyapto at the Gillman Clinic. However, an imaging report for a CT of the plaintiff’s lumbosacral spine dated 7 August 2009 (being the day after the alleged date of this injury) states that the referring doctor was Dr Tham of the Semaphore Day/Night Clinic. When reminded of this, the plaintiff recalled he had seen Dr Wee Ch’ng at that clinic in relation to that injury.
Neither Dr Tham nor Dr Wee Ch’ng were called to give evidence, nor were any of the records from the Semaphore Day/Night Clinic in evidence to establish when the plaintiff first consulted Dr Tham with respect to the injury, or what description he provided to Dr Tham as to how that injury had occurred.
The CT lumbosacral spine records findings, inter alia:[91]
[91] Exhibit P1 pp 107-108.
…
L4/5:
No disc bulge nor nerve root impingement is evident.
No canal stenosis is evident.
No foraminal stenosis is evident and the L4 nerve roots appear to exit freely.
The posterior facet joints show no degenerative change.
L5/S1:
There is annular laxity and a focal left posterior disc bulge with left S1 nerve root impingement in the canal.
No canal stenosis is evident.
No foraminal stenosis is evident and the L5 nerve roots appear to exit freely.
The posterior facet joints show no degenerative change.
The SI joints appear normal.
The retroperitoneum appears normal.
The visualised paraspinal muscles appear normal.
COMMENT:
Left posterior disc bulge at L5/S1 with left S1 impingement in the canal.
The plaintiff said Dr Wee Ch’ng prescribed painkillers and physio and ‘she said I would need a few months off, three to four months off to recuperate’.[92]
[92] T 32.9-10.
He said this was the first time he had ever experienced any strains to his back, although he acknowledged he had previously had strains in his knee ‘or just little niggles here and there’,[93] but said; ‘they just went away, weren’t even worth reporting, just work through them’.[94]
[93] T 30.5-11.
[94] T 30.14-15.
The plaintiff lodged a claim for workers compensation following this incident, which claim was accepted.[95] This claim bore Claim Number 7265919/5.[96] The plaintiff was not cross-examined as to the nature or existence of any earlier claims.
[95] Exhibit P3, Tab A, p 1.
[96] Ibid.
The plaintiff gave evidence that he went back to work at BDM undertaking light duties about four months after the injury. He said these duties included office duties, cleaning offices and cars, and working in the safety shop.
On 11 November 2009, Dr Wee Ch’ng apparently certified the plaintiff no longer incapacitated for work as a result of that injury. Acting on that information, Employers Mutual Limited, as agent for the WorkCover Corporation, determined to cease payments of income maintenance to the plaintiff as of 28 November 2009.[97] The plaintiff said he did not challenge this decision as ‘I was on the mend then anyway, I felt I was getting to full fitness’.[98]
[97] Exhibit P3, Tab A, pp 4-5, noting the certificate was not in evidence.
[98] T 34.6-35.15.
As previously stated, the plaintiff’s employment with BDM was terminated when he falsified a sickness certificate. The plaintiff appeared to try to justify having done so, as he claimed his boss, after initially being very supportive, and having told him that he valued him as a worker, then changed tack and tried to fire him on the basis that he did not believe he had sustained the injury at work.[99] As to falsifying the certificate he explained:[100]
I did that because I didn’t want to be there. After the manager’s comments etc, of firing me it just sort of killed my will to work for them.
Second Back Injury – 18 April 2011
[99] T 32.19-33.1.
[100] T 34.20-22.
The plaintiff gave evidence that after his employment with BMD was terminated, he ‘had a couple more months off so I felt fully fit’[101] and then returned to labour hire work doing ‘light civil work’,[102] laying conduit for electrical.[103] He said that from 2009 to 2011 he was ‘pretty well okay, I was good, until 2011 I had a strain’.[104]
[101] T 35.19-20.
[102] T 35.21.
[103] T 35.19-24.
[104] T 35.26-27.
The plaintiff described this incident as occurring in around September 2011, at a time when he was employed by the labour hire firm, SOS, assigned to work for SEM Civil on the Torrens Island upgrade. He described the injury as occurring in the following circumstances:[105]
[105] T 36.11-36.
Q.What were you doing at that time.
A.I was backfilling a trench. We dug the hole with the excavator, laid some electrical conduit, then we were just pushing the dirt back in with our shovels because we didn't have a machine to do it there.
Q.How long had you been doing that job that day.
A.A good six hours.
Q.When did the injury occur.
A.Late arvo.
Q.When you say 'arvo', you mean afternoon.
A.I mean - it was around 4 o'clock.
Q.Can you describe the symptoms that you felt at the time.
A.Just had a bit of loss of breath, just felt this sharp pain in my hip.
Q.Which side.
A.Left side.
Q.When you say 'sharp pain' in your hip, was it the same sort of area as your BMD injury in 2009.
A.Yes.
Q.What did you do next.
A.I just knocked off work, because I kept working, didn't really think much of the injury at the time because it didn't really stay there. I just completed backfilling for the day, then I went home. After I cooled down, then I've noticed the pain was unbearable again. It was around my hip and my buttock.
The plaintiff said he went to see a doctor at the Old Port Road Medical and Dental Clinic (Old Port Road Clinic) the following morning, and that doctor suggested treatment comprising physio, medication and rest. He said he also consulted Dr Suyapto at the Gillman Clinic over a period of a few weeks. Dr Suyapto gave him a certificate for time off and prescribed anti-inflammatory medication and a painkiller, Endone.[106]
[106] T 37.21-37.
The plaintiff gave evidence that when he last saw Dr Suyapto in relation to that injury, Dr Suyapto had said he was fit to work with no restrictions, but that there was no longer any work available for him with SOS. As to any symptoms at that time he said:[107]
There was nothing really there anymore, I was feeling pretty well fit again.
[107] T 38.9-10.
The plaintiff lodged a claim for workers compensation following this injury which was accepted. The printout of those claim details records the injury as occurring on 18 April 2011 and that WorkCover reimbursed SOS a sum of $1,712.07 by way of income maintenance paid to the plaintiff, consistent with the plaintiff having about two weeks off work following that injury.[108]
[108] Exhibit P3, Tab C, pp 4-5.
Exhibit P3 contains copies of three WorkCover Medical Certificates relevant to this injury. The first certificate is dated 19 April 2011 and was provided by Dr Peter Likos of the Old Port Road Clinic. Dr Likos was not called to give evidence and the records of that attendance are not in evidence.
On the certificate, Dr Likos described the injury as occurring on 18 April 2011 during the course of the plaintiff’s employment with SOS, with the ‘worker’s stated cause’ for the injury being ‘[l]ifting a heavy PVC pipe at work’.[109] Dr Likos certified the plaintiff unfit for work from 19 April 2011 to 21 April 2011 because of a ‘lumbar strain with (L) sciatica.’[110]
[109] Exhibit P3, Tab C, p 2.
[110] Exhibit P3, Tab C, p 1.
The second and third certificates were provided by Dr Suyapto of the Gillman Clinic. In a certificate dated 20 April 2011, Dr Suyapto described the cause of the injury as ‘[l]ifting’.[111] Dr Suyapto certified the plaintiff as unfit for work from 20 to 22 April 2011 and fit for modified duties from 25 to 29 April 2011 being ‘4 hours daily, max lifting 5 kg, no bending and twisting. No prolonged static posture’ due to ‘discogenic back pain’.[112] In a certificate dated 29 April 2011, Dr Suyapto certified the plaintiff fit to return to pre-injury duties on that date.[113]
[111] Exhibit P3, Tab C, p 2.
[112] Exhibit P3, Tab C, p 2.
[113] Exhibit P3, Tab C, p 3.
From the whole of the plaintiff’s evidence it is clear that that the injury he described as having occurred in September 2011 at SOS was in fact sustained on 18 April 2011.
The plaintiff was not cross-examined as to the inconsistency in what the three WorkCover Medical Certificates state as to the cause of the injury (namely lifting) compared to his evidence as to the alleged cause (shovelling dirt in order to backfill a trench).
Dr Suyapto gave evidence and copy of the records of the Gillman Clinic relating to the plaintiff’s consultations between 29 October 2004 and 2 July 2015 were in evidence.[114]
[114] Exhibit P11.
As to the 2011 injury, Dr Suyapto’s records indicate that he saw the plaintiff on only two occasions, namely on 20 April 2011 and 29 April 2011.
On the first occasion, Dr Suyapto reported a history that the plaintiff had a sore back after ‘[l]ifting two days ago’,[115] with tenderness over the lower back at L5/S1 and some restrictions upon bending, with flexion limited to between 10 to 20 degrees, when one would expect it to be the in order of 60 to 70 degrees. The straight leg raising test produced a positive result on the left side, meaning that the plaintiff had reported either pain or a shooting sensation upon lifting the left leg, consistent with there being some irritation from a disc injury. However, he had no loss of sensation and his reflexes were normal.[116]
[115] Exhibit P11 p 10.
[116] T 383.15-384.26.
The plaintiff was reviewed by Dr Suyapto on 29 April 2011, at which time Dr Suyapto’s notes record that he was feeling much better, had full movement, but was still suffering a ‘mild ache’.[117] Dr Suyapto gave the plaintiff a full clearance for work, albeit he advised him to take it easy and to be aware of lifting and bending.[118]
[117] Exhibit P11 p 10.
[118] Ibid.
In evidence, Dr Suyapto confirmed that his findings upon examination in April 2011 were ‘explicable’ by reference to the results of the CT lumbo-sacral spine undertaken on 7 August 2009 which demonstrated the presence of a disc bulge at L5/S1 and that he did not order any further imaging be undertaken at that time.[119] However, Dr Suyapto was not asked if, as at April 2011, he knew that the plaintiff had suffered an earlier injury to his back in August 2009, and/or if he was aware of the results of the CT lumbo-sacral spine. Dr Suyapto was not examined about the method by which he recorded his notes and therefore the accuracy of the history recorded therein.
[119] T 385.7-10; T 385.25-28.
Dr Suyapto characterised the injury sustained by the plaintiff on 18 April 2011 as a strain to the lower back, from which he considered the plaintiff had made a full recovery at the time of the assessment on 29 April 2011.
Third Back Injury - 7 January 2013
The plaintiff sustained a further and third work related injury to his lower back while working with Newsagent’s House (ANCOR), packing stationery boxes, on 7 January 2013.
The plaintiff gave the following evidence:[120]
Q.There was a significant incident during your employment with Newsagents House, can you tell us about that.
A.Yes. I had an order and I had to reach on the bottom shelf, reach and grab a box, I think it weighed about eight kilo, and I pulled it back out and I felt my left - a twinge in my left back.
Q.What sort of movement were you doing at the time.
A.I had to move to my left and under sort of twist and then pull the box out.
Q.What symptoms did you feel.
A.I just felt like a sharp pain in my left back again where my buttock and my hip - sort of took my breath away but I just continued on with that [order].[121]
[120] T 44.33-46.4.
[121] Noting there is an obvious error in the transcript wherein the word ‘water’ appears instead of ‘order’.
The plaintiff said the injury had occurred around 2.30 or 3 pm, but that he kept working until knock off time. When he got home he had a shower and when he cooled down he ‘noticed the pain in my left side and through the night it just got worse and worse’ such that he hardly slept.[122]
[122] T 46.25-26.
The plaintiff said that the next day he consulted Dr Le at the Old Port Road Clinic, who prescribed physiotherapy, anti-inflammatory medication and Endone. He underwent physiotherapy, including the use of a TENS machine, to manipulate the muscles.
The plaintiff made a claim for worker compensation arising from this incident, which claim was accepted for a closed period, namely 8 January 2013 to 6 February 2013. He received $1,967.78 by way of income maintenance during this period.[123]
[123] Exhibit P3, Tab F, p 1 and Tab G.
The plaintiff did not return to work with ANCOR after this injury.
Dr Le gave oral evidence, and two reports prepared by Dr Le dated 13 February 2013 and 26 August 2014 were tendered.[124] Dr Le issued five WorkCover Medical Certificates which relate to this injury bearing the dates 8 January 2013, 10 January 2013, 14 January 2013, 20 January 2013 and 29 January 2013.[125]
[124] Exhibit P1 pp 13-14 and pp 21-22.
[125] Exhibit D5.
The Old Port Road Clinic records for the period 1 May 2012 to 29 January 2013 are attached to Dr Le’s first report.[126] The records for the period 17 December 2012 to 22 January 2015 were also tendered. [127]
[126] Exhibit P1 pp 15-20.
[127] Exhibit P9.
On 8 January 2013, Dr Le took a history from the plaintiff that he had noticed left lower back pain and left hip pain the night before, after having lifted boxes repeatedly at work on 7 January 2013, with such boxes weighing up to 8 kg.[128]
[128] The plaintiff was not cross-examined as to the apparent inconsistency in his description of how the injury occurred, and when he first developed symptoms, as compared to that recorded by Dr Le in his notes. Dr Le was not asked to explain the process by which he recorded his notes of consultation with the plaintiff, nor whether it was possible the plaintiff may have reported having suffered the injury after bending to retrieve a box from a low shelf, and having felt immediate sharp pain, having regard to what was recorded in his notes.
Examination by Dr Le reportedly showed stiffness of the back with marked restriction of all range of movement of the back. The plaintiff was tender over the lower back, more so on the left side. Dr Le recommended he rest and prescribed analgesic and anti-inflammatory medication. He certified him unfit for work from 8 January 2013 to 10 January 2013.
Dr Le reviewed the plaintiff on 10 January 2013, at which time the plaintiff still had significant back pain and stiffness, with little change clinically. Dr Le certified him unfit for work from 10 January 2013 to 13 January 2013.
At review by Dr Le on 14 January 2013, the plaintiff still had pain in the left lower back and left buttock, moderate restriction of back flexion and mild restriction with other ranges of movement. Physiotherapy was recommended. Dr Le certified him unfit for work from 14 January 2013 to 20 January 2013.
On 20 January 2013, the plaintiff reported there had been some improvement in his back pain, but he still had pain in the left buttock. He had a stiff back, with moderate restriction of flexion and extension of the back and mild restriction with other ranges of movement. Dr Le recommended the plaintiff continue with the same treatment, namely rest, medication and physiotherapy. He certified the plaintiff unfit for work from 20 January 2013 to 27 January 2013.
The plaintiff returned to see Dr Le on 29 January 2013, at which time Dr Le noted his condition had continued to improve. The plaintiff was still complaining of mild left buttock pain and upon examination there was still mild restriction with flexion and extension, but no significant tenderness. Dr Le certified the plaintiff unfit to work from 28 to 29 January 2013, but:[129]
…fit to return to modified/other duties from 30th January 2013 to 14th February 2013
with the following restrictions: trial of office/sitting duties for 4 hours/day and 5 days/week no lifting/pulling/pushing/freq back bending…
[129] Exhibit D5 p 5.
The Certificate indicated that Dr Le would re-assess the plaintiff on 14 February 2013, and recommended he continue with physiotherapy and back exercises.
Dr Le confirmed the plaintiff did not return for review on 14 February 2013, and that he next saw him on 12 August 2013 for an unrelated illness.
In cross-examination, Dr Le was asked to explain what differences in a patient’s presentation may cause him to certify the patient unfit for work, rather than fit for modified duties. He gave the following evidence:[130]
A.It depend on the presentation and on examination. If a patient appear to be significantly in pain and with significant restriction of the movement of the back then I make my judgment that he is not - or she not fit to return to any kind of work. So I put a medical … unfit for any duty.
Q.What about in terms of modified duties. Does that depend on the occupation they're in.
A.That depends on my - the patient symptom and my clinical assessment as well.
[130] T 491.1-10.
Dr Le gave evidence that when he saw the plaintiff on 20 January 2013, he considered he was not capable of going back to any work at that time and needed to rest.[131]
[131] T 492.11-18.
Dr Le also explained that his practice was to complete a WorkCover Medical Certificate at the time of the consultation with the patient, and that he always explained to the patient what he was going to write on that certificate and what they should do. As such, he agreed with a proposition put to him that when he saw the plaintiff on 29 January 2013, he would have told the plaintiff not to engage in lifting, pulling, pushing and frequent back bending.[132]
[132] T 492.21-31.
Dr Le had no recollection of being told by the plaintiff, on that occasion, that he had applied for a labouring position with Skilled. Theoretically, if he had been so advised, he said he would have advised against that, and agreed that this was because the plaintiff’s back was not ready.[133] In re-examination, Dr Le confirmed that an opinion as to a patient’s fitness to work was based both on the patient’s clinical condition and the actual duties required of the patient.[134]
[133] T 493.32-494.13.
[134] T 501.14-29.
Dr Le’s notes of consultation for the attendances in January 2013 contain no reference to any psychiatric or psychological symptoms. During examination-in-chief, Dr Le explained that he was assessing the plaintiff for a straightforward back injury, and that he had no reason to assess (or investigate) him for any such symptoms.[135] In cross-examination, he said he was unaware that the plaintiff was being treated with Avanza at that time, as he had not asked him.[136]
[135] T 485.22-34; T 486.18-21; T 487.16-19; T 487.33-488.16, noting that the records from the Old Port Road Clinic include a record of a consultation with a Dr Miller on 17 December 2012, wherein it is noted that the plaintiff’s prescriptions, as at that date, included Avanza 30 mg 1 daily m.d.u.
[136] T 499.4-6.
The plaintiff gave evidence that he did not return to see Dr Le after 29 January 2013, as he did not have any light duties to go back to, as his job with Newsagents House had finished.[137]
[137] T 195.24-26.
The plaintiff claimed to have had about four sessions in total with the physiotherapist following this injury and said that at the time of the last session he ‘[r]eally had no symptoms then, I had no pain, nothing at all’.[138] He said, of the physiotherapist, that ‘she said I was practically ready back to full fitness’.[139] He described the physiotherapist as a female throughout examination-in-chief on this topic.[140]
[138] T 48.11-12.
[139] T 48.9.
[140] T 47.19-48.9.
There is no record of the plaintiff ever consulting a female physiotherapist with respect to this injury. Exhibit P3 contains a printout of the WorkCover Claim Details for the third back injury.[141] Included on that printout is a reference to payments made for physiotherapy services made to ‘Mr Sandeep Kumar Thakur’, for payments made on 24 January 2013, 31 January 2013 and 1 February 2013.[142] In addition, two payments were made to Mr Thakur for ‘Other therapeutic aids/appliances’ on 24 and 31 January 2013. The printout does not specify the date the physiotherapy services were rendered.
[141] Noting that, in error, three payments made to Dr Le on 10 January 2013, 14 January 2013 and 4 February 2013 relevant to the third injury, appear on the WorkCover printout of payments relating to the second back injury see Exhibit P3, Tab C, p 5.
[142] Exhibit P3, Tab H, p 2.
In cross-examination, several extracts from the ‘Back in Motion’ physiotherapy case notes were put to the plaintiff. He was never questioned as to why he had referred previously to the physiotherapist as a ‘she’. The questions put to the plaintiff in cross-examination as to the advice he was receiving from his physiotherapist all used language to suggest the advice was provided by a male, and the plaintiff adopted the same language in response to such questions.[143]
Employment with Skilled/for the Defendant
[143] T 196.14-21.
Application
The plaintiff completed an Application for Employment as a labourer with Skilled on 24 January 2013 (Application).[144]
[144] Exhibit D1.
In the Application, the plaintiff stated he was not currently employed, but did not state when his last job finished. He gave his address as 11 Belfast Street, Taperoo. He did not complete the details on page 2, as the Application was apparently accompanied by a resume.[145] A copy of that resume was not in evidence.
[145] T 50.17-26.
On page 3 of the Application is a section entitled ‘Section 4: Health’ which states:
We require you to provide us with the following information about your health so that we can ensure, in the event your employment application is successful that:
·in respect of the work you will perform, the risks to your health and safety and the health and safety of others is minimised so far as is reasonably practicable;
·you are capable of performing the genuine occupational requirements of the position you are employed in; and
·you have disclosed to us any pre-existing injuries or diseases suffered by you that you are aware of that could be affected by the nature of the position you ae employed in.
Question 2 asked; ‘Do you have any medical conditions that may affect the health and safety of yourself or others having particular regard to the nature of the position(s) you are applying for?’, which the plaintiff answered by ticking the ‘No’ box.
Question 3 asked; ‘Do you experience or suffer from any of these conditions or have you ever had difficulties with the following…’ It then listed numerous conditions, with boxes to tick, if applicable, which conditions included ‘[l]ifting/carrying or moving weights’, ‘[b]ack injury/conditions’ and ‘[b]ending/twisting’. The plaintiff did not tick any of the boxes in response to question 3.
Question 4 asked; ‘Do you have any pre-existing injuries, diseases or medical conditions that could be affected by manual handling tasks?’, which the plaintiff answered by ticking the ‘No’ box.
Question 6 asked; ‘To assist in determining measures to address your workplace health and safety, please provide details of all previous injuries or conditions which may be affected by the work you are likely to perform in the position you have applied for...’ A box provided for such injuries/conditions to be listed and details provided. The plaintiff left that box blank.
On page 4 of the Application, the plaintiff signed a declaration which included the following terms:
1.I understand that any offer of employment to me by any member of the SKILLED GROUP LIMITED group of companies (“the Company”) is based on the accuracy of the information provided by me in this application, attached resume/CV, skills experience & capabilities record and any other employment related documents, and I declare that such information is, to the best of my knowledge and belief, true and correct.
I understand that if any of the information provided by me is false or if I have not disclosed any information to the Company which would significantly affect its decision about whether or not to employ me, my offer of employment may be withdrawn or my employment terminated.
I acknowledge that if I do not disclose information or if I knowingly provide false or misleading information regarding any pre-existing injury or disease which I know about and which may be affected by the nature of my proposed employment; and my injury or disease recurs, is aggravated, exacerbated or deteriorates arising out of or in the course of or due to my employment, I may not be entitled to be paid workers compensation for any aggravation, exacerbation, deterioration or acceleration of that pre-existing injury or disease under the provisions of relevant workers’ compensation legislation.
The plaintiff acknowledged during his evidence-in-chief that the information given by him in the Application was untruthful.[146]
[146] T 51.26-29.
He gave the following evidence:[147]
[147] T 51.26-52.7.
Q.Having regard to that information that we’ve just gone through on the form, was the information that you put in this document when you applied truthful.
A.No.
Q.Okay. What should you have put on the form.
A.I probably should have ticked 'Back injury/conditions'.
Q.Right and that would have been a reference to what.
A.In reference to the old injury, 2009 and the reason I didn't tick that or hadn't ticked them before was because I thought I'd never get a job.
Q.Why did you think that.
A.'Cos I had applied at places before and they'd said, when I had ticked I had a back injury and asked them why I didn't get the job, they said ''Cos you've got a back injury' or 'You've had previous injuries with your back'. That's the reason I didn't get the job. So after that I didn't really tick that 'cos I thought that would hinder my chances of getting jobs.
Q.You knew it was untruthful at the time.
A.Yep.
He explained that this was not the only job application wherein he had been untruthful in relation to having a prior back injury.[148]
[148] T 52.8-15.
Exhibit D4 is a copy of the plaintiff’s application for employment with AR Contracting Pty Ltd dated 1 September 2011, being after the plaintiff’s first and second back injuries, sustained respectively on 6 August 2009 and 18 April 2011. In that application, the plaintiff answered ‘No’ to a question if he had ever previously suffered from a back condition or spinal disorder. In a resume accompanying that application the plaintiff described himself as ‘Fit and healthy and observing OH&S’ and as ‘Reliable and physically strong’.
When asked if there was any other reason he did not disclose the fact of his prior back injury in the Application with Skilled, the plaintiff stated:[149]
[149] T 53.18-34.
A.I was feeling fit, I was - you know, ready to go back to work, didn't feel like anything was hindering me 'cos, you know, I couldn't wait to get back to work at that time and also because of the nature of the injury, the client sees it and then I'll never get work.
Q.Did you see Dr Le after signing this form.
A.I think I did, yes.
Q.Do you recall what he said to you about your condition at that time.
A.Said to continue with my last physio and I should be ready to go back to work.
Q.Did you go to the physio.
A.Yes.
Q.After the physio examined you what, if anything, did the physio say about your condition at that time.
A.She said my condition had healed, I was ready to go back to work. (my emphasis)
In cross-examination, the plaintiff was asked why he had not disclosed his prior back injury in the Application. He gave the following evidence:[150]
[150] T 205.4-35.
A.Because if I disclosed I had previous back injuries I wouldn't get the job.
Q.Because you knew that you had a condition that could be affected by manual handling tasks, that's correct isn't it.
A.No, it's not that, it's just my history of having a back injury, I was at risk I would never get the job, full stop.
Q.You didn't think you had a condition that could be affected by manual handling tasks.
A.No, not at that time, no.
Q.Three workers compensation claims isn't enough to give you a condition or injury that could be affected by manual handling tasks even though all three of those involved a level of manual handling.
A.Well, like I've said I have always come back fit, always recovered.
EXHIBIT #D1 MFI D1 TENDERED BY MR TILLEY. ADMITTED.
Q.Mr Sloan, are you happy to lie to your advantage.
A.No.
Q.So you don't consider filling out those applications to be a lie.
A.Misleading.
Q.Misleading, is there a difference between misleading and lying.
A.No, not really.
Q.It is a lie.
A.Yes.
Q.You are happy to lie to your advantage.
A.I was just didn't disclose everything fully because I knew I wouldn't get a job.
The plaintiff did not recall reading the declaration in the Application prior to signing it.[151]
[151] T 52.35-37.
The plaintiff also signed and completed two other forms as part of the Skilled application process on 24 January 2013. One was entitled ‘Skills, Experience & Capability PROCESS WORKER/TRADE ASSISTANT’ and the other was entitled ‘Skills, Experience & Capability WAREHOUSING & DISTRIBUTION’.[152] Each form includes a section entitled ‘Important Capabilities Information’ which states:
Your position with SKILLED may require you to perform the following tasks. In an effort to enable SKILLED to determine safe working appointments, you are required to record any difficulties you have in being exposed to any conditions or activities stated below.
[152] Exhibit D1.
The plaintiff was asked to indicate with a tick any of the listed items with which ‘you will or might have any difficulties’. Those items included; ‘Digging/Shovelling’, ‘Perform manual handling (lifting, bending, twisting, loading, squatting, pulling and pushing) and ‘Perform repetitive work duties’. The plaintiff did not tick any of the items as listed.
In cross-examination, the plaintiff said that although as at 24 January 2013, he had not yet been certified fit to return to (any) work by Dr Le following the injury at ANCOR, he did not think he would have any problems performing manual handling tasks. He said; ‘I thought I was fine, I knew I was fine’ and said his back ‘wasn’t that bad’ and the injury was ‘just a strain’.[153] He said that he ‘felt fit, I was ready to go’.[154]
[153] T 201.1-18.
[154] T 202.14.
That evidence is simply inconsistent with Dr Le’s findings upon examination, namely that on 20 January 2013 the plaintiff reported to him that although there had been some improvement, his back was stiff, with moderate restriction of back movements and on 29 January 2013, again, while the plaintiff’s condition was improving, he reported mild left buttock pain and still had mild restriction of back movement. Indeed, the plaintiff’s presentation to Dr Le on both of those occasions was such that Dr Le considered him unfit for any work, let alone work involving manual lifting, bending and twisting. Either the plaintiff was not being truthful in his presentation to Dr Le, and was feigning or exaggerating his symptoms and complaints, or his evidence on this topic was untruthful.
The plaintiff said that he knew he was applying for work as a labourer. He said he knew the work involved putting in telecommunications pits, but he did not know what that work entailed, or whether it would be heavy work, as he had not done that work before and had not enquired as such.[155]
[155] T 203.34-204.11.
Interview
The plaintiff recalled being called back the week after to undergo an interview and a five-minute dexterity test. He described this test as follows:[156]
You twist, touch your toes, bend down as if you were lifting something up, see how your manual handling was, and that was it, really.
[156] T 55.20-22.
He said he felt good after that test, by which he explained he meant ‘fully fit, raring to go,’ with no difficulties or symptoms.[157]
[157] T 56.1-7.
Thereafter the plaintiff was offered a position by Skilled, working as a pit installer with the defendant. At the interview, he was given a brief description of what that job would entail, namely that it involved breaking up old asbestos pits, removing them and putting new pits in, all being part of the rollout for the NBN.[158]
[158] T 57.25-35.
Induction
The plaintiff gave evidence that on the day he commenced employment with Skilled, he underwent an induction with the defendant for approximately one hour. The plaintiff said the induction was held ‘at Service Stream’ and involved about 15-20 people in the room, with information provided by a person speaking, with the aid of slides on a projector.
As to what the induction covered, the plaintiff gave the following evidence:[159]
A.It was about safety, handling asbestos, that was it.
Q.Did any of the induction involve information about manual handling.
A.Yes, it did.
Q.What sort of information were you given.
A.Just the usual information on keep your back straight, bend your knees.
[159] T 58.16-22.
The plaintiff said the induction did not include any specific information about how he might do the job, or any demonstrations as such, nor was he given any information about the pits at that time.[160]
[160] T 58.29-59.11.
On the Job
The plaintiff commenced work for Skilled with the defendant on 4 February 2013.[161] He explained that he was partnered with Darren, and that they went to get a van and then drove back to Service Stream. He arranged to meet Darren the next morning at Tapleys Hill Rd, Fulham Gardens and explained he was ‘dropped off by a mate I was living with’,[162] being seemingly inconsistent with his later evidence, namely that he was living with his mother at that time.[163]
[161] Exhibit P10 records the plaintiff’s first day of work as 3 February 2013, however that is a Sunday. There was no evidence the plaintiff ever worked weekends with Skilled.
[162] T 60.18.
[163] T 89.15.
The plaintiff’s entitlement to damages for non-economic loss is governed by s 52 CLA.
In assessing such damages, the court must assign a numerical value (scale value) on a scale of between 0-60, where ‘0’ represents a case in which the non-economic loss is not sufficient to justify any award of damages, and ‘60’ being a case where the injured person has suffered non-economic loss of the gravest kind. Damages are then calculated by multiplying the scale value as per s 52(2).
Damages for non-economic loss can only be awarded if the court is satisfied that an injured person’s ability to lead a normal life was significantly impaired by the injury for a period of at least seven days, or medical expenses in excess of the prescribed minimum have been reasonably incurred in connection with the injury. I am satisfied the plaintiff meets those requirements.
At the time of the incident the plaintiff was 41. He was living with his parents, and had recently suffered the third prior back injury.
As previously stated, I reject the plaintiff’s evidence that prior to the incident he had completely recovered from any prior back injury he had sustained based on the evidence of Dr Le as to the plaintiff’s presentation in late January 2013, and the fact of the plaintiff’s long standing lumbar spondylosis and degenerative disc disease.
I do not doubt that as the plaintiff had not worked at all since 7 January 2013, that he was feeling somewhat rested when he commenced work with Skilled on 4 February 2013. However, I am satisfied that at that time he was not physically fit to undertake heavy manual work in any event because of his pre-existing back condition.
I reject the plaintiff’s evidence that at the time of the incident he had an active social life, and was regularly undertaking activities such as playing golf, kicking a football, watching football and meeting up with his friends at the pub. I do not doubt that on occasions the plaintiff socialised, and undertook a degree of physical activity before the incident. However, he continued to do so after the incident, as evident in the histories he provided to Dr Suyapto and Dr Le during the first year after the incident.
Further, the plaintiff’s evidence of his pre-incident lifestyle needs to be considered in the context of the following matters:
·The plaintiff’s lengthy criminal record dating back to 1988/89.
·The plaintiff’s admitted addiction to methylamphetamine from around 2004 to 2006 and subsequent remand in custody and then on home detention from late May 2006.
·The plaintiff’s evidence that it had taken him around three years to get back on his feet after his release from custody in 2006.
·The fact and impact of the three prior back injuries.
·The plaintiff’s further incarceration during 2012.
·The plaintiff’s lack of any stable employment.
·The plaintiff’s inability to drive for various periods due to either court ordered or administrative disqualifications of licence.
·The plaintiff’s lack of any permanent fixed address during the period from 2009 to 2013, during which the plaintiff’s address is variously recorded as:
-Third Avenue, Cheltenham in August 2009.[597]
-Cedar Avenue, Royal Park in April 2011.[598]
-Russell Terrace, Woodville in July 2011.[599]
-Hilton St, Birkenhead in July 2012.[600]
-Belfast St, Taperoo in January 2013.[601]
-Bray Avenue, Semaphore Park (Ms Hamilton’s address) in March 2013.[602]
-Brebner Drive, West Lakes in July 2013.[603]
[597] Exhibit P3, Tab A.
[598] Exhibit P3, Tab C.
[599] Exhibit P1 p 140.
[600] Exhibit P1 p 156.
[601] Exhibit D1.
[602] T 89.15.
[603] Exhibit P1 p 169.
I accept that the incident resulted in the sudden onset of left sided back, hip and leg pain and that as a result, the plaintiff was unable to work for a period of several weeks, before returning to alternative duties with HR Products in early May 2013. However, as previous stated, the plaintiff’s condition improved throughout 2013, despite a number of aggravations, and only deteriorated during 2014 and thereafter, as a result of the progression of the plaintiff’s pre-existing lumbar spondylosis and degenerative disc disease (in the context of further aggravations).
I accept Dr Ng’s evidence that as at 2 April 2014, the plaintiff was unfit for heavy labouring duties and only fit for light to medium duties. However, that was the case, irrespective of the incident.
The plaintiff gave general evidence about the impact of his injuries on his social, sporting, domestic and recreational activities, which was not time specific.
I accept that in the months immediately after the incident, the plaintiff’s pre-existing back condition was further compromised as a result of the incident, which contributed to his inability to undertake the manual work associated with his move from his mother’s home to his apartment at West Lakes, such that he was reliant on the assistance of friends. I further accept that in the months immediately after the incident, the plaintiff’s ability to undertake tasks such as vacuuming, weeding, lifting and bending was further compromised than it would have been in any event because of the impact of the incident on his underlying back condition.
The plaintiff spent several weeks recuperating before returning to light duties, and was required to spend time that may have been devoted to other pursuits, undertaking Bowen therapy, consulting doctors, and attempting other avenues of rehabilitation as suggested by his treating doctor. There remains some minor contribution to the plaintiff’s minor depressive illness from the incident.
Having regard to my findings as to the nature of the injuries caused in the incident, I assign a scale value of 9. This equates to an award of damages for non-economic loss of $13,770.00.
Loss of Earning Capacity
As outlined in Eicas v Dawson,[604] an injured person is compensated for their loss of earning capacity as a result of the compensable injury, not ‘loss of earnings’. Nevertheless, information as to past earnings is of assistance to the court insofar as it demonstrates how a plaintiff was exercising his earning capacity in the past, and what that capacity was likely to have been, but for the injury (and/or other contingencies).
[604] [2016] SASCFC 124 at [106] per Lovell J.
I am satisfied that the plaintiff was unable to exercise his pre-incident earning capacity from the day of the incident, until 2 April 2014, by which time he had recovered from the effects of the injury sustained in the incident.
I accept Dr Ng’s opinion that as at 2 April 2014, the plaintiff’s pre-existing back condition rendered him unfit for heavy physical work, and that he was fit only for work with restrictions on lifting of up to between 10-15 kg, with no frequent or sustained bending, twisting or stopping.
Having regard to all of the evidence I find that at the time of the incident, the plaintiff was, in any event, unfit for heavy physical work, because of his pre-existing back condition. He was only fit for light to medium duties at that time in any event.
Although it is possible that at some time, in any event, between 13 March 2013 and 2 April 2014, the plaintiff may have aggravated his pre-existing back condition in other circumstances, impacting on his demonstrated ability to undertake the lighter aspects of his work with Skilled, I cannot be satisfied of that on balance.
I accept that the aggravating effects of the incident on the plaintiff’s pre-existing back condition compromised his ability to work with Skilled until 2 April 2014. The plaintiff is not entitled to compensation for the first week of incapacity.[605]
[605] Section 54(1) CLA.
The plaintiff continued to be paid a combination of a salary and income maintenance by Skilled after the incident. As previously stated, the evidence of such payments was less than satisfactory.
I received no schedule or similar outlining when the plaintiff’s workers compensation payments were reduced to 80% of ‘notional weekly earnings’ in accordance with s 35A of the Workers’ Rehabilitation and Compensation Act 1986 (SA) (WRCA) and/or any schedule outlining what was claimed to be the plaintiff’s past pecuniary loss.
Having regard to Exhibit P4, I accept that under the WRCA, income maintenance payments are likely to have reduced to 80% of notional weekly earning as from 27 weeks post incident. This was on or about 19 September 2013.
Skilled seeks to recover a sum of $29,431.15 pursuant to s 66(7) of the Return to Work Act 2014, for payments it made to the plaintiff by way of income maintenance from the date of the incident until the plaintiff’s payments were terminated on or about 31 May 2014.
In accordance with my earlier findings, the plaintiff had recovered from the physical effects of the injury sustained in the incident by no later than 2 April 2014. Thereafter I am not satisfied that the incident has resulted in any additional physical incapacity for work, over and above that caused by the plaintiff’s pre-existing condition.
The total of income maintenance paid by Skilled to the plaintiff from 21 March 2013 to 2 April 2014 was (about) $22,576.97.00, say $22,600.00 (gross).
In accordance with the principles outlined in Fox v Wood,[606] the award of damages for past loss of earning capacity, insofar as it includes amounts sought to be recovered on a gross basis by a workers’ compensation insurer, is to be assessed on a gross basis.
[606] (1981) 148 CLR 438.
The total paid during the period before 19 September 2013 was about $10,400.00 and the total paid thereafter (at only 80%) was (about) $12,200.00. These are all gross sums.
The 20% difference in the income maintenance paid to the plaintiff, when compared with notional weekly earnings, during the period 19 September 2013 to 2 April 2014 is (about) $3,050.00 (gross). However, the plaintiff’s loss with respect to this component is to be calculated on a net basis.
The plaintiff’s 2014 notice of assessment, demonstrates that his net earnings for that year (after payment of appropriately assessed tax and the Medicare levy) totalled $39,459.05. Gross income was $45,390.00. [607]
[607] Exhibit P1 p 190.
Doing the best I can on the available information, I estimate the plaintiff’s net loss to reflect the 20% reduction in his payments from 19 September 2013 to 2 April 2014 in the sum of $2,500.00.
I accept that the incident plays a minor role in the plaintiff’s ongoing minor depressive illness. It is extremely difficult to assess what, if any, additional loss the plaintiff has incurred to his earning capacity, over and above the limitations posed by his pre-existing degenerative back condition as a result of that depressive illness. Even if I am wrong, and the plaintiff’s psychological condition is as diagnosed by Dr Blakemore, his evidence was that this represented a 10% disability, with only a partial incapacity for work, particularly work involving memory or concentration.
The plaintiff has predominantly undertaken unskilled manual work, and, as he acknowledged in his evidence, he is unlikely to have been successful in procuring either the employment with AR Contracting or Skilled if he had disclosed his previous back condition to those employers during the application process.
Further, the plaintiff has an extensive criminal record with convictions for multiple offences of dishonesty. The applications completed by the plaintiff with AR Contracting and Skilled did not include any questions relating to the plaintiff’s criminal history. However, there are a range of occupations that require the provision by an applicant of material relating to their prior criminal record. Despite the absence of specific evidence on this issue I am satisfied that the plaintiff’s criminal record, in any event, is likely to preclude him from obtaining employment in certain government work and light to medium work wherein he would be in a position of trust or required to handle money.
I am satisfied a small additional award of damages should be made to compensate the plaintiff for the minor contribution made by the incident to a small additional ongoing impairment to his earning capacity caused by the minor depressive illness. I award the plaintiff an additional sum of $5,000.00 for past loss of earning capacity.
This results in an award of damages for past loss of earning capacity in the sum of $30,100.00, comprising:
·Income Maintenance (gross) $22,600.00
·20% differential (net) $2,500.00
·Additional (net) $5,000.00
As to the future, I am not satisfied that the physical injury sustained by the plaintiff in the incident contributes to his ongoing physical incapacity for heavy labouring work, or to any other physical inability he may now have for light to medium work, having regard to the progression in the plaintiff’s condition since the plaintiff was assessed by Dr Ng in April 2014.
I accept that the plaintiff’s minor depressive illness plays a minor role in an additional minor impairment to the plaintiff’s earning capacity. The plaintiff’s earning capacity is, in any event, substantially restricted because of his pre-existing back condition, having regard to his prior skill set, experience and criminal record.
The plaintiff is now 49. The present value of a loss of $1.00 per week to age 67 is $620.00.[608]
[608] Exhibit P1 p 206.
Using a broad axe approach, I allow a sum of $15,000.00 for damages for future loss of earning capacity.
Superannuation Loss
The plaintiff is entitled to damages to reflect his loss of superannuation benefits since the incident, noting he would have been paid superannuation pursuant to the Superannuation Guarantee Charge Act 1992 (Cth) and the Superannuation Guarantee (Administration) Act 1992 (Cth), at a rate of between 9-9.5 per cent of gross wages.
In accordance with the practice adopted by this and other courts, I award the plaintiff a sum calculated by reference to 11 per cent of the plaintiff’s net past loss of earning capacity ($7,500.00), namely $825.00. In addition, I calculate the superannuation levy on the gross sum of $22,600.00 in the sum of $2,090.50 (calculated at a rate of 9.25 per cent).
I award a sum of $2,915.50 for past loss of superannuation.
I assess damages for future loss of superannuation in the sum of $1,650.00, being 11 per cent of the award made for damages for future loss of earning capacity.
Future Medical Expenses
In accordance with my findings, I am not satisfied that the incident is a cause or contributing factor to the plaintiff’s present back condition, and as such, he is not entitled to be compensated for any future costs he incurs by way of treatment for the same.
The Updated Schedule of Special Damages demonstrates that in accordance with the plaintiff’s evidence,[609] he consulted with Ms Anne Williams, Psychologist, on an approximate monthly basis, from September 2018 to 6 January 2020.[610]
[609] T 104.29-33.
[610] Amended Schedule of Past Special Damages at p 2.
It was an agreed fact that the cost for each therapy session was $150.00 (presumably plus GST, having regard to the amounts in fact charged by Ms Williams).
I accept the plaintiff may benefit from occasional treatment with a psychologist, in the long term. However, the contribution of the incident to the need for such treatment is minimal. I consider it reasonable to compensate the plaintiff for the cost of attending one therapy session per year with Ms Williams, which equates to a present weekly cost to the plaintiff of $3.17 (inclusive of GST).
The whole of life multiplier is $868.00.[611] The present value of a loss of $3.17 per week is $2,751.56. I reduce that sum by 15% for contingencies to $2,340.00.
[611] Exhibit P1 p 206.
As to ongoing medication, the plaintiff was first prescribed Avanza 30 mg/day in about 2006 and was still taking that prescribed dose as at the date of the incident. The dose was only increased to 45 mg/day several years after the incident. The plaintiff takes Avanza both for pre-existing anxiety and for depression. I am not satisfied that the minor contribution played by the incident in the plaintiff’s ongoing depressive illness was a necessary condition of the increase in that prescription.
I award the plaintiff a sum of $2,340.00 for damages for future medical expenses.
Voluntary Services
Pursuant to s 58(1) CLA, damages are only awarded to allow for the recompense of gratuitous services provided by a parent, spouse, domestic partner or child of an injured person. Such damages cannot exceed an amount equivalent to four times State average weekly earnings unless the court I satisfied that the gratuitous services are (or were) reasonably required by the injured person and that if not provided voluntarily, it would be necessary for the plaintiff to pay for the provision of such services.[612]
[612] Sections 58(2)-58(3) CLA.
The plaintiff pleads only to an entitlement to damages for voluntary services rendered by his mother.[613]
[613] Second SOC at [29].
The plaintiff’s mother gave evidence that about two to three months after the incident, the plaintiff moved from her home to a two story-apartment at West Lakes. She said she would vacuum, sweep and mop the floors, clean the bathroom and clean the oven for the plaintiff on either a weekly or fortnightly basis. She also helped him with transport to various appointments, would carry his shopping and cook meals for him.[614] She gave evidence the assistance she provided reduced when he moved to live in his present home, although there was no evidence as to precisely when that was.
[614] T 414.15-31.
There was no evidence estimating the number of hours Ms Hamilton spent assisting the plaintiff per week (at any time).
Ms Hamilton conceded in cross-examination that when the plaintiff was living with her (before the incident) she cooked and cleaned for him, in any event.
I am satisfied that for a period of about 11 months after the plaintiff moved from his mother’s home to the West Lakes apartment, until April 2014, Ms Hamilton rendered assistance to the plaintiff with cleaning, shopping and transport, albeit whether the plaintiff was legally able to drive then in any event is uncertain. Despite an absence of specific evidence on the hours of assistance provided, I am satisfied that this equated to three hours per fortnight, averaged over that (nearly) 11-month period (say 47 weeks).
There was no evidence as to relevant market rates for the provision of such services. The plaintiff made no submission as to the appropriate rate to be adopted. The defendant suggested that the appropriate rate was either $25.00 or $30.00 per hour, in accordance with recent decisions of this court.
In those circumstances, I will adopt a rate of $30.00/hour. This equates to a sum of $2,115.00.
Thereafter, I consider any need the plaintiff has for gratuitous assistance from his mother is unrelated to the incident.
There was no evidence that the plaintiff had paid any of his friends (or others) to provide domestic assistance to him.
I award a sum of $2,115.00 for damages for past voluntary services.
Special Damages
The Amended Schedule of Special Damages medical expenses (including medication costs) incurred by the plaintiff in the sum of $20,374.04. This sum is agreed as to quantum, but not liability.
The Schedule includes expenses paid by Skilled, Medicare and the plaintiff. Included in the expenses paid by Skilled are costs for administrative tasks associated with the management of the plaintiff’s workers’ compensation claim (telephone attendances as between doctors and claims consultants) which are not recoverable by way of damages as against the defendant.
The Schedule also includes expenses that relate to treatment of the plaintiff’s physical injuries after 2 April 2014 and medication costs for Avanza (Mirtazapine). In accordance with my earlier findings, those costs are not recoverable by way of damages.
Using the terminology in the Schedule, I allow the following by way of Special Damages:
Item A - being amounts paid by Skilled for services rendered on or prior to 2 April 2014, namely, $9,004.56 being the sum claimed ($10,608.40) less a sum of $1,603.84 being:
·21/3/13 Telephone Call (p 3)[615] $41.30 plus GST
[615] The page number reference is with respect to the bundle of copy invoices attached to the Schedule of Past Special Damages dated 28 February 2020. The Amended Schedule of Past Special Damages provided on 5 June 2020 did not include a further bundle of copy invoices, but did include Annexures 1 and 2 being Medicare History statements.
·18/4/13 Telephone Call (p 5) $20.65 plus GST
·1/5/13 Brief Phone Call (p 8) $22.80 plus GST
·31/7/13 Brief Phone Call (p 14) $23.10 plus GST
·11/10/13 Telephone Call (p 24) $25.06 plus GST
·10/10/13 Telephone Call (p 25) $23.10 plus GST
·8/1/14 Telephone Calls x 2 (p 30) $50.12 plus GST
·3/3/14 Telephone Call (p 39) $25.06 plus GST
·7/3/14 Telephone Call (p 39) $25.06 plus GST
·11/3/14 Telephone Call (p 39) $25.06 plus GST
·CHG Tax Invoice 30 April 2014 (p 40) $60.90 (incl GST)
·CHG Tax Invoice 30 April 2014 (p 41)[616] $230.40 (incl GST)
[616] Save for consult on 2 April 2014.
·CHG Tax Invoice 30 April 2014 (p 42) $119.40 (incl GST)
·CHG Tax Invoice 30 April 2014 (p 43) $71.60 (incl GST)
·Reimbursement - pharmacy expenses (p 44) $79.90 (incl GST)
·CHG 10 June 2014 (p 48) $173.42 (incl GST)
·CHG 10 June 2014 (p 49) $143.73 (incl GST)
·23/7/14 Dr Kapur (p 50) $123.10 (incl GST)
·4/2/15 Telephone Call (p 51) $45.75 (incl GST)
·29/10/14 Dr Kapur (p 52) $123.10 (incl GST)
·23/9/16 CHG (invoice not provided) $123.10 (incl GST)
Item B – allow contribution of $80.00
Item C – disallowed.
Item D – disallowed.
Item E – disallowed.
Item F – disallowed.
Item G – disallowed.
Item H – disallowed.
Item I – disallowed.
Item J – disallowed.
Item K – disallowed.
Item L – disallowed.
Item M – allow contribution of $220.00 with respect to the services provided by Ms Williams as set forth in Annexures 1 and 2.
This equates to a sum of $9,304.56. I award special damages in the sum of $9,304.56.
Interest on Past Pecuniary Loss
The plaintiff is entitled to interest on the net component of the award made for damages for past loss of earning capacity ($7,500.00), past superannuation loss ($2,915.50) and past out of pocket expenses incurred by him.
The majority of the plaintiff’s past special damages were paid for by Skilled (Item A). Medicare contributed to the expenses listed in Items B and M. The plaintiff’s actual ‘out of pocket’ expenses, for which I have allowed a component by way of damages, is a sum of approximately $150.00.
I award a sum of $2,535.00 for such interest, calculated at a rate of 6.5% per annum.[617]
[617] $7,500.00 + $2,915.50 + $150.00 = $10,565.50 x .065 x 7.38 years divided by 2 = $2,534.14, say $2,535.00.
Interest on Past Voluntary Services
In accordance with recognised authority, I consider the appropriate rate of interest for damages for past voluntary services ($2,115.00) to be 4 per cent per annum.[618]
[618] Calvaresi & Rota Forma Pty Ltd v Lawsonand Lawson (1995) 184 LSJS 147; Wheeler v Page & Harris (1982) 31 SASR 1.
I award a sum of $625.00 for interest on past voluntary services.
Summary
I assess the plaintiff’s damages in the sum of $80,355.06 comprising:
Non-economic loss (9) $13,770.00
Past Loss of Earning Capacity $30,100.00
Future Loss of Earning Capacity $15,000.00
Past Superannuation Loss $2,915.50
Future Superannuation Loss $1,650.00
Future Medical Expenses $2,340.00
Past Voluntary Services $2,115.00
Past Special Damages $9,304.56
Interest on past pecuniary losses $2,535.00
Interest on past voluntary services $625.00
TOTAL $80,355.06
The plaintiff is entitled to 60% of such damages, namely $48,213.04.
Orders
1There will be judgment in favour of the plaintiff as against the defendant in the sum of $48,213.04.
2I will hear the parties as to costs.
Annexure A
Plaintiff’s Antecedent History as extracted from Exhibit D18[Contents not for publication]
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