Steven Brown v Canberra Contractors Pty Limited and Sutherlands Communication Services Pty Ltd - [2014] ACTSC 30

STEVEN BROWN v CANBERRA CONTRACTORS PTY LIMITED AND SUTHERLANDS COMMUNICATION SERVICES PTY LTD

[2014] ACTSC 30 (2 April 2014)

DAMAGES – personal injury – causation of damage – plaintiff injured in workplace accident and then injured in a Second Accident – consequential decline of plaintiff’s mental health following the Second Accident – whether and to what the extent the plaintiff’s condition was caused by the Second Accident – the Second Accident was a necessary condition of the harm.

DAMAGES – personal injury – assessment of future earning capacity – whether the plaintiff is likely to obtain employment in the future.

Civil Law (Wrongs) Act 2002 (ACT) ss 43, 45, 46

Kallouf v Middis [2008] NSWCA 61
Magnou v Australian Wool Testing Authority Ltd [2007] NSWCA 357
Nominal Defendant v Livaja [2011] NSWCA 121

Strong v Woolworths (2012) 246 CLR 182

SC 551 of 2008

Judge: Master Mossop
Supreme Court of the ACT

Date: 2 April 2014

IN THE SUPREME COURT OF THE     )
  )          No. SC 551 of 2008
AUSTRALIAN CAPITAL TERRITORY           )

BETWEEN:STEVEN BROWN
Plaintiff

AND:CANBERRA CONTRACTORS PTY LIMITED
First Defendant

AND:SUTHERLANDS COMMUNICATION SERVICES PTY LTD
Second Defendant

ORDER

Judge:  Master Mossop
Date:   March 2014
Place:  Canberra

THE COURT ORDERS THAT:

1. Judgment be entered for the plaintiff against the first defendant in the sum of $548,658.

2. The usual order as to interest.

3. The first defendant is to pay the plaintiff’s costs of the proceedings.

4. The plaintiff is to pay the second defendant’s costs of the proceedings.

5. Orders 3 and 4 do not take effect if, within 7 days of the date of these orders, any party notifies my associate by email that it wishes to be heard in relation to costs.

6. Judgment be entered for the second defendant against the plaintiff.

Introduction

The plaintiff has claimed damages from the first defendant, Canberra Contractors Pty Limited and from the second defendant, Sutherlands Communication Services Pty Ltd. There were also two additional defendants but proceedings against both defendants have been discontinued. The plaintiff was injured in two accidents, the first on 22 March 2007 (the First Accident) and the second on 14 August 2007 (the Second Accident). He claims that both defendants are liable in relation to the First Accident and that the first defendant is liable in relation to the Second Accident.

The accidents

The plaintiff was employed by the first defendant as a labourer in 2005. In 2007 the first defendant was contracted to undertake civil engineering work relating to a new subdivision known as the Franklin 1A subdivision. The plaintiff’s tasks in relation to that work were labouring, driving excavators, rollers and compactors and setting out the location of roads.

On 22 March 2007 he was working with a foreman of the first defendant known as Paul D’Ambrosio. It had rained previously and the plaintiff and Mr D’Ambrosio were going to look at the next area where they needed to work, which was the location of a new dam next to the subdivision. He was walking from near a roundabout on the corner of Nullabor Avenue and Christina Stead Street to another point on the site where work was to be done and trod on the cover of a telecommunications pit. The pit had three separate concrete covers. The plaintiff trod on the middle one. Neither the plaintiff or Mr D’Ambrosio could recall whether the pit cover was sitting flush with its surrounds as it should have been. The concrete cover and one of the adjoining covers fell into the pit and the plaintiff also fell into the pit. He was assisted out of the pit by Mr D’Ambrosio who was walking near him at the time that he fell. As a consequence of the fall into the pit the plaintiff noticed a pain in his left ankle and both wrists. He had also scraped his back as he fell into the pit and in oral evidence he said that he also noticed that his lower back was aching. In cross-examination he retreated from any suggestion that he had injured it, instead saying that he had rubbed his back down the edge of the pit. The effect of this evidence was to suggest a superficial scraping rather than any deeper injury. He made a workers’ compensation claim which referred to the injury to his wrists and left ankle but made no reference to any back injury. He stayed seated for 10 or 15 minutes and then continued work for that day and the next week.

A week later he saw his general practitioner, Dr Pradith Southi. He had x-rays taken and had his left wrist and ankle put in plaster. He had the cast on his ankle for four weeks and then two weeks in a brace that looked like a ski boot.

On 14 August 2007 the plaintiff had his first day back at work on Franklin Stage 1, which was a different worksite to the Franklin 1A site. He was wearing an ankle brace which he was required to wear as part of his return to work on modified duties. He was subject to a restriction about walking on uneven ground. He had to walk between 30 and 50 metres over uneven ground to reach the site office. While doing this he rolled his left ankle and experienced severe pain. He arrived at the site office and spoke to the site foreman. He reported to him that he had just rolled his ankle walking from the car and that his ankle was aching. The site foreman responded by instructing the plaintiff to join a particular excavator operator and “go up and open the road crossing”. That exercise required him to walk on uneven ground again and then “climb down in the trench and expose the pipes”.

In order to expose the pipes the plaintiff would normally have stood with two feet flat on the ground at the base of the trench and scraped the shovel along the top of the pipes. He was not able to do that on the date of the accident. Because of his sore left ankle he could not put two feet flat on the base of the trench. He stepped down into the trench with his left foot and put his right foot onto the pipe. His right foot slipped on the pipe which was being exposed and he fell down on his back against the side of the trench. He noticed his back was aching while he was lying on the edge of the trench. He described in evidence an area corresponding to the L3 to S1 region of his spine. He said that he suffered severe pain at the time. He said that the pain in his back overtook the pain in his ankle. He climbed out of the trench.

The plaintiff’s ex-partner, Sandra Wheeler, gave evidence that on the evening of the Second Accident the plaintiff told her that his ankle was hurting again and that he also hurt his lower back. He saw Dr Southi the next day who recorded the basic details of the incident.

Matters no longer in dispute

There are a number of matters which are no longer in dispute.

First, the first defendant made no submissions in relation to a finding of negligence in relation to the Second Accident and I find that negligence is established. The first defendant knowingly gave the plaintiff tasks which were unsafe for him in circumstances where not only was it on notice of the restrictions on his duties associated with his return to work but where it had been told immediately before the Second Accident of an additional injury to his ankle making the task to which he was assigned inappropriate and potentially unsafe.

Second, the allegations of contributory negligence which appear in the pleadings of the first defendant in relation to the Second Accident and the second defendant in relation to the First Accident were not pursued.

Third, there was agreement in relation to a number of heads of damage if liability was established:

(a)    past economic loss including superannuation and interest was the sum of $200,000;
(b)   the Fox v Wood component was nil;
(c)    past medical expenses were agreed at $48,394;
(d)   future medical expenses would be $5,000;
(e)    past and future domestic assistance, including interest, would be $30,000;

Issues

These areas of agreement mean that the issues that the Court needs to decide are:

(1) whether the plaintiff established that the first or second defendants breached their duty of care in relation to the First Accident;

(2) the appropriate award of general damages and damages for future economic loss.

This second issue contains a number of sub-issues, which I will describe when I deal with it below at [34].

Has the plaintiff established that first or second defendants breached their duty of care in relation to the First Accident?

The telecommunications pit in question was approximately two metres by half a metre. It was a prefabricated plastic unit which sat in a hole dug with an excavator along the trench line in which a number of services were located. The pipes through which telecommunications cables would ultimately be blown were slotted in at either end of the prefabricated unit. The prefabricated unit had three concrete covers. Those covers were 495 mm wide and 650 mm long. The three covers sat next to one another in a line with their short ends adjoining. They were supported by a lip at the edge of the prefabricated plastic unit. That lip was approximately 20 mm wide. In addition to the lip, the covers were also designed to be supported by a crossbar which sat between the concrete covers. The profile of that crossbar was an inverted T and it provided support to the short ends of each cover where it abutted the next cover. On the three cover unit (which was known as a “nine pit”) there were two such crossbars, one on either side of the central cover. The ends of the crossbars sat in a slight recess in the lip of the prefabricated unit. However they were not fixed to the unit and hence, when they were in position, they prevented the unit from being compressed inwards but did not restrain the unit from being expanded outwards.

When the unit was properly installed and its lids and crossbars were in place each cover could not fall into the pit because it was supported in position on all four sides - on its two long sides by the plastic lip and on its two short sides by the metal crossbars, the ends of which rested on the plastic lip. In those circumstances a person stepping on the cover would not cause the cover to fall into the pit.

One circumstance in which a person treading on a concrete cover might fall into the pit was if the concrete cover was not sitting in place. If it had been lifted up and was sitting partially off the lip or the crossbar then it is possible that a person treading on an unsupported portion of the cover would cause it to give way and the person could fall into the pit. There was no evidence in the present case that the pit cover that collapsed was lifted up in this way although neither the plaintiff or Mr D’Ambrosio made any specific observations of it prior to the accident and hence could not say that it was not out of position.

Another circumstance in which a person treading on the concrete cover might fall into the pit was if the prefabricated unit was deformed out of shape so that it was not the regular rectangular shape in which it was designed to operate. This could occur if the short ends of the prefabricated unit were pushed inwards so that the long edges of the unit bowed outwards. That would cause the lip on which the concrete cover was designed to rest to be further apart than it should be and hence create the risk that the cover would not extend from the lip on one side to the lip on the other.

Such a situation could arise because the pit was put in place in an excavation which was subsequently backfilled. That backfilling provided the support to the outer edges of the unit that gave it its rigidity once in place. If, during the course of the backfilling, excess pressure was placed on the soil at the short ends of the prefabricated unit then that might lead to the long sides of the unit being bowed outward sufficiently to create the possibility that the concrete cover could be positioned so that it might not be sufficiently long to safely span the distance between the lips on either side.

There is also a possibility that such a situation might arise not from excess pressure on the short sides of the prefabricated unit but, instead, from inconsistent levels of compaction along the long sides of the unit. This might lead to the unit being deformed from its rectangular shape in a way that created the possibility that one or more of the concrete covers were positioned so that it might not be sufficient to safely span the distance between the lips on either side.

While Mr D’Ambrosio said that he had never seen the deformation of a unit so as to jeopardise its safety, Mr Dohrmann an expert engineer accepted that it was a possibility and I accept that evidence.

The existence of a situation where the prefabricated unit was deformed in such a way as to create a safety issue would not be inconsistent with the capacity to put the concrete cover in place so that it appeared to a casual observer to be properly installed and safe. That might arise if the width of the prefabricated unit exceeded the width of the concrete cover by more than 20 mm but less than 40 mm. If that was the case it would still be possible for the concrete cover to be balanced on the lip of the prefabricated unit but it would also be possible for the concrete cover to shift in one direction or the other a distance greater than the maximum width of the lip and hence one side could fall in.

The second defendant was responsible for installing the pits. There were four “nine pits” installed in the subdivision and 49 pits of all sorts in total. Nine pits had three covers and the other pits were smaller, having either one or two covers.

The order of work adopted by the second defendant was described by the sole director of the second defendant, Stephen Sutherland. The telecommunications pipes were put into service trenches above the water, gas and electricity pipes. After the telecommunications pipes were installed the prefabricated pit units were installed. The final height to be achieved by the top of the pits was identified by the second defendant by reference to marker posts put in the ground by the first defendant which showed the finished ground level. The pipes were fitted into the end of the telecommunication pit units and the height of the units adjusted by putting sand, which was left by the first defendant, into the base of the trench so as to allow the top of the pit to reach the correct height. On the nine pits there was a plastic separator bar which was placed across the short width of the pit about halfway up which was designed to ensure that when the trench was subsequently backfilled around the plastic unit, that process did not push the sides of the unit in too far. Having connected the pipes and placed the unit at the correct level, the second defendant would install the crossbars and the concrete covers. It was not responsible for the backfilling process. The first defendant was responsible for the backfilling process which would be carried out with a bobcat or backhoe.

When all of the telecommunication pipes and pits had been installed and backfilling completed, the second defendant was contacted by the head contractor and at that point the second defendant returned to the site and blew ropes along the pipes using compressed air before pulling the telecommunications cables through. That process involved the second defendant accessing the telecommunications pits and provided an opportunity to check that the pits and their lids were, following backfilling, still operating in the manner they were designed to operate and hence were operating safely.

Significantly, there is no evidence that this second stage of the process undertaken by the second defendant had been completed prior to the accident. Not only is there no evidence that the second stage of the process had been completed, the evidence is that while most of the backfilling had been completed, the final level of the soil had not been reached around the telecommunications pit because the top soil had not been put in place. The evidence of the plaintiff was that the topsoil would be approximately 100-150mm deep. In accordance with the system described by Mr Sutherland, this process would have occurred prior to the second defendant completing its work on the pit. Therefore I find that the second stage of the process involved in the second defendant’s work had not been undertaken.

At the point at which the second defendant left the pit it was in place with its covers on but within an unbackfilled trench. The evidence of Mr Sutherland was it was likely that he personally participated in the installation of the relevant nine pit and that the unit was left in a state where it was operating properly with its covers and crossbars in place. Prior to the plaintiff’s accident most of the backfilling exercise had been completed. That was not a process for which the second defendant was responsible.

Following the accident Mr D’Ambrosio did not find one of the crossbars for the pit covers. However he was able to put the cover back in place, consistent with the level of deformation of the prefabricated unit being less than 40mm.

Mr D’Ambrosio gave evidence that there was a riser on the pit. A riser is an additional piece of plastic designed to fit on the top of the pit so as to increase its height and hence allow it to accommodate a finished ground level higher than the top of the pit proper. His evidence was that the riser was more flimsy than the prefabricated telecommunications pit. He thought that it was more likely that the top might have flexed if there was a riser because of the difference in the flexibility of the riser as opposed to the prefabricated pit. He was adamant in his evidence that without the metal crossbar there is nothing holding the cover from falling in, notwithstanding that he could not explain as a matter of logic why that might be the case if the cover was made of concrete and was supported on either side by the plastic lip of the telecommunications pit. However Mr Sutherland gave evidence that there was no riser on the pit as installed and, so far as he was aware, no riser could be obtained for a nine pit. I prefer the evidence of Mr Sutherland that there was no riser installed in this case because he had a greater degree of familiarity and experience with the pit units both generally and as installed on this subdivision. Further, his evidence appeared to me to be more consistent with what was shown in Exhibit A photograph 6 and Exhibit 2.2.

Even recognising the possibility that the backfilling process might render what had been left as a functioning pit unsafe, if there was a duty upon the second defendant to fence the area off pending completion of the backfilling by the first defendant and final checking by the second defendant then the failure to do so would not be causally related to the plaintiff’s accident because any such fencing would have had to have been removed in any event for the backfilling process prior to the accident.

In summary:

(a) The most likely cause of the cover falling in when the plaintiff stepped on it was that the prefabricated pit unit had been deformed out of shape so that it did not safely hold the concrete cover.

(b) The cause of the pit being deformed from its designed shape was the manner in which the backfilling around the pit was carried out.

(c) The backfilling process had been partially completed by the first defendant with only the placement of 100 to 150mm of topsoil remaining.

(d) The second defendant had not yet returned to undertake the second stage of its installation process at which time it would have been able to inspect and identify any difficulties with the installation.

(e) Even if the second defendant had fenced off the pit that fencing would have needed to have been removed for the purposes of the backfilling operation and hence even if the second defendant was under a duty to fence it off (about which I make no finding) the absence of fencing was not causally connected to the plaintiff’s accident.

(f) It is also possible that the cover, although correctly in place at the time the second defendant left the pit, had been dislodged prior to the accident in some unidentified way. That is a possibility because neither the plaintiff nor Mr D’Ambrosio made any specific observation of the cover. However it is less likely than the first explanation because it is likely that if the cover was out of place to any significant degree then the plaintiff would have noticed it before standing on it. Even if the cover was out of place, that does not demonstrate any breach of duty by the second defendant which left the cover in its proper position.

(g) The second defendant left the nine pit with a crossbar installed. If it in fact was not present when the plaintiff fell into the pit then that was not a result of any breach of duty on the second defendant’s part. Had it been present it would not necessarily have prevented the pit cover from falling because its ends were not fixed to the plastic lips at the edge of the prefabricated unit.

Therefore I am not satisfied that the plaintiff has established any causally relevant negligence on the second defendant’s part and the claim against the second defendant must be dismissed.

In closing submissions, counsel for the plaintiff submitted that if the second defendant was not liable in negligence because the unsafe cover was the result of some inadequacy in the process of backfilling the trench around the telecommunications pit, then the first defendant was liable in negligence because it was responsible for the backfilling process. However I am not satisfied that the plaintiff is entitled to succeed in negligence against the first defendant on that basis. That is because that allegation was not pleaded against the first defendant and nothing in the way that the case was conducted demonstrated any acquiescence so far as the first defendant was concerned in the plaintiff departing from the pleaded case. On the contrary, it was clear that the first defendant conducted its case on the basis that the pleadings against it were limited and did not include a claim of negligence arising out of the backfilling of the trenches around the telecommunications pit.

My conclusion that the claim was not pleaded against the first defendant arises from the following matters.

(a) The Amended Statement of Claim in relation to the first defendant does not plead any fact relating to the backfilling of the trench.

(b) The particulars of negligence in relation to that incident are:

(i) Failure to provide a safe place of work, by way of warnings that the pit covers may not be safe to walk upon.
(ii) Exposing the Plaintiff to a risk of injury of which the First Defendant knew or ought to have known.

(c) The claim against the second defendant, in contrast, while not specifically pleading any facts relating to the backfilling of the trench around the pit referred to the terms of the contract between second defendant and the higher level contractors. The particulars of negligence included:

(f) Failure to backfill the area around the pit, so as to fully stabilise and support the outside of the pit, as soon as the lids were installed;
…
(j) Failure to ensure the pit was properly and safely installed including that the area around the pit was backfilled such that the walls of the pit could not move.

(d) Following the plaintiff’s and the second defendant’s opening, counsel for the first defendant said:

Your Honour, perhaps if I might say something just by way of completeness. I think it’s important that your Honour understand, and there’s no allegation as to this effect, that my client was not in any way involved in the installation of the pit. That is not part of its function. That had been subcontracted to the second defendant. There’s been reference to backfilling. In the statement of claim, there is no allegation against my client in relation to backfilling. There is an allegation about failure to backfill as against the second defendant, not against my client. It’s simply alleged against my client that we failed to provide a safe place of work by way of warnings that the pit covers may not be safe to walk on. That’s the sole allegation of negligence relating to this incident.

The plaintiff’s counsel did not demur to this statement.

(e) I do not accept that the particularised allegation that the plaintiff was exposed to a risk of injury of which the first defendant knew or ought to have known can in the circumstances that I have outlined above be used to permit the plaintiff to submit that because of inadequacies in the backfilling and the absence of evidence that the first defendant warned the plaintiff of those inadequacies it should succeed in its claim in negligence against the first defendant.

It appears to me that as a matter of substance the plaintiff chose to run its case on the basis of the allegation that the second defendant was responsible for backfilling and that it would be a denial of procedural fairness in the circumstances to permit the plaintiff to seek to establish negligence against the first defendant on the basis of or arising out of inadequate backfilling.

Finally, in relation to the generic failure to warn pleading against the first defendant in relation to the First Accident the plaintiff has not established that the first defendant was aware or ought to have been aware of the existence of a danger from the pit. Because the plaintiff’s case in relation to the pit focused on the actions of the second defendant and the likely mechanism by which the pit cover fell, the process adopted by, and state of knowledge of, the first defendant was not explored in any detail. I am not satisfied that the first defendant was or ought to have been aware of the risk of a pit lid collapsing because of deformation of the prefabricated unit. Mr D’Ambrosio had not seen it occur in his 14 years as a foreman for the first defendant. Whether it was a risk known to arise during the course of backfilling but prior to its completion was not explored. Even if the first defendant ought to have known of a risk of it occurring, I am not satisfied that the first defendant breached its duty in failing to warn the plaintiff that pit covers may not be safe to walk on. That is because I am not satisfied that, having regard to the nature and extent of the risk, the nature of the site and the work being carried out upon it, a reasonable person in the position of the first defendant would have taken that precaution: Civil Law (Wrongs) Act 2002 s 43(1)(c), (2). Therefore the claim against the first defendant in relation to the First Accident must be dismissed.

General damages and damages for future economic loss

Determining the appropriate awards of general damage and damages for future economic loss involves examining the nature of injuries arising from the Second Accident and how they contributed to his current condition as well as the extent to which the plaintiff’s current condition is a result of the Second Accident as distinct from the First Accident or other unrelated events in the plaintiff’s life.

In order to resolve these issues it is necessary to engage in a more detailed examination of the plaintiff’s history and the medical evidence.

Chronological review of plaintiff’s injuries and medical condition

The plaintiff was born in 1965 and was 48 years old at the conclusion of the hearing. He attended Downer Primary School and Watson High School. He ended his schooling during year nine when aged 14 years. After that he worked in his father’s carpentry business involving a variety of construction activities and quite a deal of gyprock fixing. He continued working there until 1994. In 1980 he commenced a relationship with Sandra Wheeler with whom he has three children. He separated from Ms Wheeler in 2011.

Between 1995 and 2005 he was self-employed as a subcontractor performing commercial fit outs. He also did other labouring work at a vineyard at Murrumbateman and in pine plantations. He was employed by the first defendant in February 2005. The First Accident occurred on 22 March 2007.

A week after the First Accident he consulted his general practitioner Dr Southi. Dr Southi’s notes record pain in the left ankle and pain in both wrists. There is no reference to any back pain at that point. An x-ray taken on 29 March reported the radiologist’s suspicion of an undisplaced fracture of the left ankle and that the image was consistent with an undisplaced fracture of the left wrist.

In April 2007 a further x-ray reported no fracture of the left wrist and an undisplaced fracture of the left ankle. By May 2007 the fracture of the left ankle was reported as having united.

The plaintiff was treated by James Dunstan, a physiotherapist at Gungahlin Physiotherapy who reported in May, June and July 2007 to Dr Southi. When the plaintiff first saw Mr Dunstan in May 2007 he had just had the boot removed from his left ankle and a plaster cast removed from his left wrist. By the end of July 2007 Mr Dunstan reported that the ankle and wrist injury had progressed quite well and that there was a decrease in stiffness and pain in his wrist and that his wrist was very close to 100% of previous function before the injury. While pain had decreased in his ankle it still felt unstable when he was walking on uneven ground. He noted that the plaintiff was “extremely compliant with all exercises and shows steady progression throughout each session”. He recorded that he was not able to return to work as a labourer because of the risk that walking on uneven ground would lead to another severe injury to his ankle.

The plaintiff saw Dr Geoffrey Stubbs, an orthopaedic surgeon, on 12 July 2007. Dr Stubbs reported to Dr Southi that a week after that First Accident the plaintiff’s left wrist and ankle were more uncomfortable rather than having got better. He said that the plaintiff’s wrist was fine but the ankle still caused troubles. He recorded that the left wrist was normal. Having examined the plaintiff and reviewed the x-rays Dr Stubbs was certain that there had been no fracture of the fibula at the plaintiff’s ankle. He suggested a U-shaped ankle brace and that the appropriate treatment was to get the plaintiff back to activity and preferably back to work. He anticipated that the plaintiff would have some “niggly tenderness for months and months”.

Later in July 2007 the plaintiff was assessed by a consultant at Konekt Australia Pty Ltd. The consultant recorded that the plaintiff appeared to be motivated to commence a return to work and was eager to do whatever he was able to in order to facilitate recovery and return to work. He “appeared to be in a positive frame of mind, and was easy to engage in conversation”. The report contemplated a medical review on 10 August and identified as a barrier to the plaintiff returning to work the necessity to walk across a variety of uneven terrain. The workplace assessment carried out at the time indicated the plaintiff’s medical restrictions as “No walking over uneven ground”. Copies of the report and the assessment were sent to the first defendant.

The medical review on 10 August 2007 discussed a graduated return to work. The plaintiff was keen to return to work and he was advised that he should exercise caution at all times while at work and should avoid working in trenches wherever possible.

However as indicated by my findings set out earlier, on the 15 August 2007 when he returned to work he was immediately directed to work in a trench and almost immediately suffered injury as a result of the Second Accident.

Dr Southi’s notes of what occurred on 15 August 2007 were “was asked by foreman to go into small trench and dig around pipes - wet ground. slipped and fell on back. twisted L ankl - worse again”. It is notable that there is a reference to the plaintiff falling on his back. It appears that the main complaint at this stage is a worsening of his left ankle.

On 20 August 2007 the plaintiff and a Konekt Australia rehabilitation consultant attended a medical review at which the plaintiff reported that his ankle had improved but that he continued to suffer some pain.

On 31 August 2007, following an MRI scan which showed no damage to tendons or ligaments within his ankle (although there was some bone oedema), he was certified as fit to return to work performing modified duties with certain restrictions.

On 14 September 2007 Dr Southi recorded significant weight loss due to a loss of appetite and noted in relation to the plaintiff’s left ankle “still sore Left ankl if walk on uneven ground”.

On 12 October 2007 Dr Southi records the first complaint of lower back pain, his notes saying “LBP for 2 wks”.

A Rehabilitation Progress Report from Konekt Australia indicates that in the period 18 September to 1 November 2007 the plaintiff continued to perform his pre-injury hours and suitable duties. His employer advised that the plaintiff had been continuing to manage his work status well and had not reported any concerns.

On 28 November 2007 an x-ray of the thoracic spine showed no fracture, mild scoliosis and moderate degenerative change.

On 29 November 2007 Dr Southi’s notes record:

stating that started to get lbp since fell into ditch. been working with lower back pain. getting worse. on 21.11.07 had to do Silicon all day and next day - worse lbp radiating up to midback. rot pain and stiff too now. no neurol. pain worse when bending/sitting/standing for long period. when get home lie down to rest... .

On 14 December Dr Southi recorded “LBP persisting”. He recorded that the plaintiff had a full range of movement but that his back was aching. He also recorded that his left ankle and wrist were now 100%.

A Rehabilitation Progress Report for the period 2 November 2007 until 18 December 2007 recorded that the plaintiff had been sent home from work on 17 December 2007 due to his work restrictions. The plaintiff reported that his ankle and wrist were feeling better but that he was experiencing back pain.

A Rehabilitation Progress Report for the period 19 December 2007 until 22 January 2008 recorded that the rehabilitation consultant attended the plaintiff’s appointment with Dr Southi on 21 January 2008. The consultant recorded that Mr Brown had said he experienced minimal discomfort in the left wrist and ankle and that the only issue now related to his lower back which he assumed was caused from the second fall. He reported sharp pain which radiated up the left side of the middle back and into the right gluteal region. He was observed by the Konekt consultant to be not able to sit down in the waiting room for more than 15 minutes.

The report of the Konekt consultant was consistent with the records of Dr Southi. By 21 January 2008 Dr Southi recorded that the plaintiff’s back had not become any better. He had radiating pain from his lower spine but no neurological signs. He could not sit for longer than 10 minutes or stand for longer than 10 minutes.

The first defendant told the Konekt consultant that the plaintiff “would not be permitted to return to work until he was almost at pre-injury duties status, as the employer was hesitant due to the injured area being the back when Mr Brown would usually have heavy/manual workload which included climbing in/out of trenches.”

In February 2008 Dr Southi recorded that the plaintiff was clearly expressing a desire to go back to work. It appears that the position of his employer was that he would not be allowed to go back to work unless fully fit. Notwithstanding that he was not fully fit the plaintiff was keen to go back.

On 13 March 2008 Mr Stuart Andrews of Fit to Manage reported to the first defendant’s workers’ compensation insurer. He recorded that the plaintiff was still suffering from lower back pain and proposed a regime of physical rehabilitation.

On 4 April 2008 Dr Southi records that the plaintiff had minimal pain but was still stiff. The plaintiff wanted to try working again and said he was having a strengthening programme starting in the next week. By 18 April 2008 Dr Southi recorded “back is better with only stretching programme from Stewart”. The reference to “Stewart” is likely to be a reference to Mr Andrews.

On 9 April 2008 the plaintiff saw Dr Ron Brooder, consultant neurologist, who reported to the plaintiff’s solicitors on 27 June 2008. He recorded that during the consultation and examination the plaintiff did not demonstrate any apparent functional disability. His gait and general mobility were normal. He reported:

Mr Brown had presented on 9 April 2008 with constant aching and throbbing low back pain, which was more severe on the left side. In addition to his predominantly left-sided low back pain, he was also developing an intermittent sharper pain extending into his left posterior thoracic region. He was also aware of a more long-standing constant aching pain in his left ankle. Any repetitive use of his left arm and hand would induce an intermittent aching pain in his left wrist extending from the dorso-radial aspect of his left wrist down into his left hand to involve his first web space as a “cramping” pain.

Mr Brown’s predominantly left-sided low back pain had developed following a fall at work on 14 August 2007. His more long-standing constant left ankle pain and also the intermittent pain in his left wrist had developed following an earlier work-related fall on 22 March 2007.

He was asked whether the plaintiff suffered injuries as a result of “the accident” and responded: “I would consider that, on the balance of probabilities, Mr Brown had suffered injuries as a result of the work-related accidents that had occurred on 22 March 2007 and also on 14 August 2007.” He did not consider that the injury on 14 August 2007 aggravated the injuries to his left ankle or left wrist which occurred at the time of the accident on 22 March 2007. He made the following diagnosis:

As a result of the work-related accident that had occurred on 22 March 2007 Mr Brown sustained a ligamentous injury involving the anterior and lateral aspect of his left ankle and a minor bone contusion along the inferolateral aspect of the anterior talus. He also sustained a ligamentous injury involving the dorso-radial aspect of his left wrist.

As a result of the work-related accident that had occurred on 14 August 2007 Mr Brown sustained aggravation to the multi-level degenerative changes involving his lumbar interverterbral discs and the degenerative changes involving the facet joints at the L4-5 and L5-S1 levels, particularly on the left side. It is likely that there has been a particular ligamentous injury involving his left L5-S1 facet joint.

In his prognosis in relation to the low back injury was as follows:

At this stage it would be premature to offer any assessment of Mr Brown’s long-term prognosis.

A period of just over twelve months has elapsed since the time of Mr Brown’s injuries to his left ankle and to his left wrist and there is a reasonable prospect that with the further passage of time and continued treatment his left ankle and left wrist injuries will improve. However, as his left ankle and left wrist pain have failed to respond to conservative treatment, there is a long-term risk that he may remain subject to continuing left ankle and left wrist pain to some degree indefinitely.

In addition, a period of less than eight months has elapsed since the time of Mr Brown’s low back injury and there is also a reasonable prospect that with the further passage of time, continuing physiotherapy and more specific treatment his low back pain syndrome will also improve. However, he does have underlying multi-level degenerative changes involving his lumbo-sacral spine and there is a significant long-term risk that he may remain subject to a continuing low back pain syndrome and an associated functional disability to some degree indefinitely.

On 17 April 2008 the plaintiff was assessed by Dr John Talbot, an orthopaedic surgeon, at the request of the first defendant’s workers’ compensation insurer. In relation to the Second Accident the plaintiff indicated to Dr Talbot that he injured his lower lumbar region on that occasion. While Dr Talbot had some concerns about the history that was because of a misunderstanding as to the date on which the First Accident occurred. The plaintiff described a constantly painful left ankle, mild lower back pain and constant aching in his left wrist. The doctor recorded that the plaintiff was currently standing or walking for nine hours a day but was coping with this satisfactorily and had no difficulty driving. He was currently working full duties and full hours nine hours a day but had only done so for four days so far. He was working on road construction in the Brindabellas. The doctor recorded that at this stage the plaintiff weighed 96 kg. In relation to his back the doctor diagnosed “aggravation of symptoms of early lumbar and thoracic spondylosis”. He also said “It is probable that the back pain is due to aggravation of allegedly previously silent degenerative changes in the thoracic and lumbar spine.” The degenerative changes in his spine would not normally be expected to be significantly symptomatic. He did not consider that Mr Brown’s capacity for work was in any way restricted.

On 2 May 2008 Dr Southi reports that “back is 90% better”. The plaintiff’s left ankle was, however, worse and was aching. The plaintiff was wearing an ankle support at work.

On 19 May 2008 Dr Talbot provided a supplementary report based on recent x-rays of Mr Brown’s ankle and wrists in which he indicated that the prognosis of the left ankle and wrist injuries was excellent.

On 23 May 2008 Mr Stuart Andrews of Fit To Manage provided a closing report to the first defendant’s workers’ compensation insurer. This report followed the completion of the physical rehabilitation program. It said:

At his final appointment [the plaintiff] reported that his lower back is now no longer symptomatic and has been feeling very good for several weeks which has meant that he is generally feeling much more mobile and able to perform a far greater range of activities than he was previously able to undertake before commencing the FTM program.

Mr Andrews reported that Mr Brown only had concerns relating to his ankle which he said he had “rolled three times recently” but that he was going to see a surgeon in the near future. The report stated that Fit to Manage had given the plaintiff an extensive stretching programme and encouraged him to continue with the exercises in the long term.

On 27 May 2008 the plaintiff saw Dr Graeme Griffith, consultant surgeon, at the request of the plaintiff’s solicitors. The plaintiff told Dr Griffith that he was frustrated and “fed up”. The doctor formed the view that he had chronic adjustment disorder reflected in depression-related sleep disturbance, chronic tiredness and lethargy, social withdrawal, irascibility and stresses in his relationship with his partner. He was reported as performing normal duties in his workplace notwithstanding his unstable ankle. He was taking no drugs or medication and having no physical therapy. He weighed 97.5 kg. Dr Griffith reported that in the injury of 22 March 2007 he suffered the following injuries:

1. Nervous shock – recovered.

2. Acute musculoligamentous sprain soft tissues of the lumbar spine – recovered.

3. Exacerbation of known lumbar spondylosis (without major disc injury or proven disc pathology).

4. Contusive injury to both wrists – the left remaining symptomatic.

5. Traumatic fracture of the left lateral malleolus – undiscplaced and now united.

6. ?minor fracture of the distal scaphoid on the lateral aspect (unproven and of no consequence).

7. Acute musculoligamentous strain left wrist.

Sequelae:

1. Persistent instability of the left ankle due to lack of proprioception and ligamentous laxity, leading to recurrent inversion injury – ongoing.

2. Minor discomfort left scaphoid fossa – right wrist virtually asymptomatic.

3. Now chronic adjustment disorder with manifestations of depression and anxiety.

Dr Griffith said that the prognosis of his wrists was excellent and that the prognosis of his left ankle was less positive. In relation to the left ankle he said there was no doubt that his ankle remained unstable and that the ligament was not secure. He thought that it was most unlikely that surgery on the ankle would be entertained. In relation to his back he said “[h]e requires no treatment for his back, having achieved a high level of core stability as a result of the efforts of both himself and Mr Andrews.”

On 2 June 2008 Dr Southi recorded that the plaintiff’s lower back pain had resolved and that the plaintiff had finished the Fit to Manage program but continued with stretching and sit-ups. He was still wearing the left ankle brace all the time at work.

On 24 June 2008 the plaintiff saw Dr Paul Miniter an orthopaedic surgeon who recorded that “his ankle has never gone back to normal and he is plagued by ongoing feelings of insecurity, stiffness and pain. His ankle has given way a number of times and whilst he does use an ankle brace with effect, he is finding it difficult to work.” He recommended an arthroscopic clearance of the ankle.

The plaintiff continued working for the first defendant during the first part of 2008. He was meant to be doing light duties but was in fact performing normal duties.

On 9 July 2008 the plaintiff was notified by letter that his employment was terminated. The reason stated in the letter was that the company would imminently complete a number of contracts and new projects were unavailable. In oral evidence the plaintiff described his back pain at this stage as “bearable”.

He said that between July 2008 until April 2010 he was applying for jobs at the rate of a couple of applications per week. He could only recall applying for gyprocking and sign writing jobs. His oral evidence about this lacked any detail.

On 24 July 2008 Dr Southi recorded that the plaintiff had been dismissed by the first defendant due to lack of work in the previous week.

On 4 August 2008 Dr Miniter performed an ankle arthroscopy, subtalar arthroscopy and stabilisation.

In September 2008 Dr Miniter reported that there had been a pleasing improvement in function of the plaintiff’s left ankle. In October he reported that overall the ankle was much better and the plaintiff no longer experienced instability.

In January 2009 the plaintiff saw Dr Miniter. The doctor recorded that the plaintiff needed no restrictions but recorded, ominously, in his history: “angry man” “not cooperatining” [sic]. Notwithstanding that by January 2009 the range of motion was much better and consistent with Dr Miniter’s expectations, Dr Miniter reported to Dr Southi that the plaintiff was recorded as being angry and expecting that the ankle would have returned to normal.

The plaintiff continued to suffer difficulties with his left ankle particularly when he walked on uneven ground. He twisted his ankle in February 2009.

In March 2009 the plaintiff tried for another job as a fruit packer.

In May 2009 he tried olive picking but suffered from sore wrists.

A workers’ compensation insurer’s Personal Injury Plan recorded that following the gym/strengthening programme with Fit to Manage his back injury had resolved. He had attempted two work trials but these had both aggravated his symptoms either in his wrist or ankle. In June 2009 he also attempted to work at a company making the roof trusses but suffered wrist and back pain within a few hours of starting. He reported to Dr Garth Eaton on 18 June 2009 that this work trial had hurt is back again as a result of repetitive lifting and twisting. He complained of a tight throbbing low back pain.

In July 2009 Dr Southi’s notes record that the plaintiff’s lower back pain got better but was aggravated by an incident at home. His wrist was recorded as being better. It appears that in that month he also started to deteriorate mentally, reporting to Dr Southi that he was not sleeping well, suffered from headaches, that he was frustrated and the pain in his back, wrists and left ankle was there all the time. He reported suffering from mood swings. At this point he was using Norspan transdermal patches to manage his pain. In late 2009 and the first half of 2010 he was taking Lovan, Endep, Norspan, Losec and Voltaren.

The plaintiff saw Dr Peter Wilkins, an occupational physician, at the request of the first defendant’s workers’ compensation insurer on 16 July 2009. Dr Wilkins recorded the plaintiff’s current complaints as “continuous pain in his lower back and left ankle as well as aching in his left wrist and continuous pain in his right wrist”. Dr Wilkins recorded that he had not worked since April 2008. His weight was recorded as 104 kg. He made diagnoses of the injuries to his ankle left wrist and right wrist and, in relation to the lower back, said “Lower back pain due to age-related degenerative changes, exacerbated by a lifetime of hard work”. He thought that given the excellent range of motion demonstrated for his back, left wrist and left ankle, the persistent reports of debilitating pain were not consistent with the history given although it was in relation to the right wrist. He agreed with Dr Miniter that the plaintiff “should be able to “push through” initial pain and discomfort over a period of months and eventually return to essentially pre-injury duties”. In relation to his back condition he thought that this was a condition of long-standing that was “aggravated… when he fell on the edge of a trench at work”. He thought that the aggravation had now ceased and that the plaintiff had an excellent range of motion.

In August 2009 the plaintiff was reviewed by Dr Miniter who reported to Dr Southi that the plaintiff’s left ankle was very good and any mild functional instability was manageable with a brace. He said that the plaintiff’s left wrist continued to be an issue and he suggested a review by an upper limbs surgeon.

At the end of 2009 the plaintiff’s workers’ compensation claim was finalised. It is not clear on the evidence how it was finalised although in evidence it was referred to as “a little court case”.

Between April and August 2010 the plaintiff subcontracted to and then was employed by Axis Construction Group. That was a company of which Paul D’Ambrosio was an owner. The plaintiff worked full time as a “trench spotter”. His job was to determine and mark out the levels of a trench so that the excavator could excavate to the correct depth for the laying of pipes.

In May 2010 Dr Southi recorded that he was “happy to be working and employed”. He recorded that the plaintiff was taking no analgesia but did suffer from some lower back pain.

However the plaintiff was dismissed from his employment with Axis because he had an altercation with the son of one of the other owners of the company. He grabbed the man by the neck or collar. Police were not involved. Had there not been the altercation, Mr D’Ambrosio said that Axis would have continued to employ the plaintiff.

Shortly after being terminated by Axis the plaintiff was employed by BMD Group. He worked for that entity for less than a month. BMD was doing civil engineering work on a new subdivision at Harrison. The plaintiff was doing light duties which he described as “giving levels, yes just helping them out with measurements, levels”.

In late October 2010 the plaintiff suffered an injury or aggravation of his back. Dr Southi recorded that the plaintiff had been working on a subdivision at Bonner, that he jumped into a trench and felt “a crack in the lower back and pain”. The plaintiff said that when working at Bonner he was working for Axis. Prolonged sitting, standing or working made his pain worse although Dr Southi recorded that the plaintiff wanted to continue working.

The plaintiff described that because significant rain had occurred, the nature of the work for BMD changed and it became heavier. He was unable to continue because he developed bad back pain.

In late 2010 he obtained a certificate relating to training to be a traffic controller. He made about three applications, had a couple of interviews for jobs but was not successful.

He also said that after being terminated by Axis he had applied for other jobs as a trench spotter with organisations which he referred to as Tread Lightly and Group One.

In January 2011 the plaintiff assaulted his partner, Sandra. He was arrested and placed on remand.

When in prison he reported feeling depressed. In oral evidence he described the reasons for his depression as being the fact that he could not work and whenever he got a job something would go wrong with his back, wrist or ankle.

Prior to the assault on his partner the plaintiff had, with Sandra’s assistance, applied for a disability pension. This was approved while he was in custody and the first payment was made on 27 August 2011.

When the plaintiff was released from prison there was another incident when the plaintiff threatened Sandra with a knife. He was on remand between June and August 2011. In August 2011 he was sentenced to serve periodic detention which continued from August 2011 until June 2012.

When he saw Dr Southi in August 2011 the doctor noted:

depression related to issues surrounding his life. Got industrial injuries which dragged on for long time causing constant pain and poor sleep, frustration and had resulted in alcohol - related family/domestic violence. was put in jail. feeling more depressed as now alone and in worse situation. has been asked to do soul-searching and sort himself out. using anti depressant and is looking for work. wants to go back to family. not drinking any more.

The plaintiff gave evidence that up until being sentenced to periodic detention he was continuing to look for work. His evidence was not detailed. He said he had applied for jobs in soil testing, painting, plastering and sign writing. Since then he said: “I just haven’t bothered”.

On 24 September 2012 he saw Dr Griffith for a second time. On this occasion the plaintiff reported that the Second Accident had “greatly aggravated his lumbosacral symptoms, which had remained aggravated at this situation since”. He also reported that the First Accident had not been associated with a major back injury because it simply involved a scrape on the posterior edge of the pit. While at the time of his last assessment symptoms referable to the lumbar spine were relatively nonintrusive that was no longer the case. The plaintiff reported continuous aching back and aggravation from protracted standing, sitting or any attempt to bend or lift as well as by cold weather. He reported that the left ankle remained symptomatic on the site of local pain. He reported using his ankle brace when it was symptomatic. He reported pain in both wrists. Dr Griffith recorded that the plaintiff seemed heavily pain focused but that there were no significant evidence of embellishment. Dr Griffith added to his previous diagnoses arising from the 22 March 2007 incident:

To the sequalae should be added:

1. Persistent lumbar paraverterbral myalgia associated with lumbar spondylosis (with no recent radiology).

2. Probable radiocarpal arthritis/athralgia (no recent films).

3. His left ankle remains unstable for the same reasons as those evident previously.

It is notable that Dr Griffith attributed the lumbar pain to the First Accident rather than the Second Accident notwithstanding the history that was given by the plaintiff. Dr Griffith reported that addressing psychological issues was of critical importance. He suggested attendance at a pain management clinic but recognised that the plaintiff’s country residence may make this difficult.

In October 2012 the plaintiff saw Dr Leon Le Leu, an occupation physician. At that stage he complained of pain in his right wrist all the time and aching in his left wrist all the time. He described suffering from lower back pain “24/7” and that some days he could not even get out of bed. He said that his left ankle ached “a bit” but was a lot better than it was and he could walk on it. He was taking Voltaren as well as Mirtazapine, the latter for depression. He weighed just under 82 kg. Dr Le Leu said that the Second Accident aggravated the plaintiff’s symptoms arising from the First Accident especially in the lower back, the left ankle and of the left wrist.

His prognosis was:

· It is likely that he will continue to suffer mild-to-moderate pain/discomfort in the left wrist and to a lesser extent the right (noting that he has excellent grip in both hands although the test on the right side increased wrist pain)

· The degeneration of the lumbar spine has probably been accelerated by both accidents

· The left ankle seems to have largely recovered so the prognosis is good here.

He recommended treatment by a psychiatrist. He said that the plaintiff is

permanently unable to perform work of a moderately to highly physical nature. He would be able to perform work of a light nature which might be sedentary or semi-sedentary but he has little or no background in “indoors” work and cannot operate a computer so would need to be retrained.

The list of possible occupations identified by Mr Le Leu that the plaintiff may be able to undertake provides a number of alternatives, many of which appear to me to be unrealistic having regard to his level of education, experience and his temperament. They include accountant/auditor, museum guide, research officer, valuer, social worker, proofreader and receptionist. However, the general thrust of what Dr Le Leu said as to light work is clear.

The plaintiff saw Dr Ron Brooder again on 6 November 2012 and that doctor reported to the plaintiff’s solicitors on 3 February 2013. Dr Brooder recorded that the plaintiff remained aware of constant or low variable aching pain from his mid-lumbar region into his lower back. This was aggravated by any increased physical activity particularly any activities involving prolonged or repeated forward bending or attempts at lifting and prolonged standing. His back pain would improve following overnight sleep. He still reported constant aching pain in his ankle and aching pain in both of his wrists. He reported being subject to persistent depression. During consultation and examination the plaintiff did not demonstrate any apparent disability and his gait and general mobility were normal. Dr Brooder recorded that the Second Accident was not associated with any aggravation to the injuries to the plaintiff’s left ankle or wrist that had occurred at the time of the First Accident. His diagnosis at that this point was:

As a result of the initial work-related accident that had occurred on 22 March 2007 Mr Brown sustained a ligamentous injury involving the anterior and lateral aspect of his left ankle and a minor bone contusion along the inferolateral aspect of the anterior talus. He also sustained a ligamentous injury involving the dorso-radial aspect of his left wrist and aggravation to a more long-standing injury involving his right wrist.

As a result of the further work-related accident that had occurred on 14 August 2007 Mr Brown sustained an aggravation to the multi-level degenerative changes involving his lumbar interveterbral discs and the degenerative changes involving the facet joints at the L4-5 and L5-S1 levels, particularly on the left side. It is likely that there had occurred a particular ligamentous injury involving his left L5-S1 facet joint.

Mr Brown has also developed secondary psychological changes with depression.

Dr Brooder considered that having regard to the period of time it had been present it was likely that his back condition was going to remain subject to persistent symptoms and associated disability to some degree indefinitely.

The plaintiff saw Dr Peter Wilkins on 15 November 2012 at the request of the first defendant’s solicitors. He had previously seen him in 2009. He had ceased taking all medications about one month previously. He weighed 82 kg. He complained of intermittent “deep” aching pain at the L3/4 level which was effort related. Dr Wilkins recorded that the range of movement was excellent apart from a reduction of extension by about one third of the normal range based on pain. In relation to his low back he said “In my opinion, both workplace falls would be highly unlikely to result in anything more than a musculoligamentous strain superimposed on pre-existing and long-standing degenerative changes in the area.” He considered that the plaintiff was capable of some work but not heavy manual labour involving repeated bending and lifting or carrying. His diagnoses were:

· Age-related degenerative changes of lumbar spine.

· Possible osteoarthritis left wrist (requires radiological confirmation).

· Possible osteoarthritis right wrist (requires radiological confirmation).

· Persistent left ankle “tightness”. However a range of movement was within normal limits.

He also said:

It is over three years since I first assessed Mr Brown. It is obvious that the intervening period had been difficult for him, his wife being diagnosed with breast cancer, suffering marital breakdown and estrangement from his former wife and children, a period of imprisonment and the unexplained persistence of lower back, left ankle and bilateral wrist pain. While the origin of his persisting pain is uncertain, I consider it would be unrealistic to link it causally to his two workplace accidents sustained in 2007.

He also saw Dr John Talbot on 19 November 2012. Dr Talbot referred to the operation undertaken by Dr Miniter and expressed the view that he was uncertain of the requirement for the surgery that was performed although he noted that the plaintiff felt that it was beneficial. He recorded the plaintiff’s complaints of pain and stiffness in both wrists, constant low back pain and intermittent sharp pain in his left ankle. He recorded his complaints of depression. He said he felt “utterly helpless and hopeless about his current situation”. In contrast to his demeanour at Dr Talbot’s earlier assessment the plaintiff presented as “an unsmiling, tense, agitated, angry, anxious man with blue eyes and a long bushy beard”. He weighed only 80 kg. Dr Talbot expressed his view that it was an urgent requirement to obtain an assessment by a consultant psychiatrist and then suitable treatment. He thought that this was far more urgent than assessing or treating the plaintiff’s organic complaints. In relation to the Second Accident he said “I consider that he exacerbated symptoms of a pre-existing lower lumbar condition in a subsequent fall in a trench after his return to work.” He thought that it was difficult to assess the extent to which the injuries caused a reduction in the plaintiff’s working capacity because of the non-organic overlay. Although recognising that it was outside his expertise, Dr Talbot thought that the plaintiff did not have a capacity for work until his non-organic condition had improved but focusing on his organic conditions, he believed that the plaintiff had the capacity for light suitable work such as the work he was undertaking on his six acre property.

Perhaps as a result of Dr Talbot’s strong recommendation, the solicitors for the first defendant obtained an assessment by Dr James Hundertmark, a consultant psychiatrist. The assessment was undertaken on 13 February 2013. Dr Hundertmark recorded that the plaintiff told him that “now he tells everyone that his symptoms are settled as he wants to finish the legal matter”. He reported to Dr Hundertmark, significant limitations because of his back and that he had stopped all his medications within the last few months. He felt angry and resentful towards all medical staff. The doctor said:

He had a gruff but relatively straightforward manner at interview. He spoke with a limited vocabulary. He made it clear that he was not keen to come to the assessment but did present. The most predominant emotion was one of frustration and underlying anger. His main theme is wanting this legal matter to be over.

Dr Hundertmark’s assessment was that the plaintiff suffered from an Adjustment Disorder but that it was not possible to attribute his emotional issues solely or substantially to the incident on 22 March 2007. He said “the weight of other factors in his life outside the work injury of March 2007 is significant”. He recorded that given the plaintiff’s psychological make-up he may not respond well to psychotherapy-based intervention. He assessed him as having the capacity to work from a psychiatric perspective. The formal diagnosis was Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood and he suggested that the plaintiff’s prognosis was fair to good from a psychiatric perspective.

Dr Hundertmark did not assess the relationship between the plaintiff’s perception of pain and his psychiatric state. He therefore appears to do little to address the issue raised by Dr Talbot. It is not clear what records he was given and indeed whether he was given Dr Talbot’s recent report of 19 November 2012. Although identifying the plaintiff’s prognosis as fair to good, the doctor did not explain how or when the plaintiff’s condition might improve.

In May 2013 the plaintiff saw Mr Tom Sutton, a psychologist. Mr Sutton’s assessment involved numerical testing as well as an interview. He recorded under the heading “Test Results & Conclusions” a number of points including:

(a) the plaintiff’s ability to think in abstract verbal terms was compromised;

(b) his pain management from a psychological perspective was very poor with maladaptive attitudes held too highly and adaptive beliefs too low;

(c) he was reluctant to permit any attempt to probe his internal psychological state but he had a highly developed aggressive demeanour and any emotional distress was experienced through somatic symptoms;

(d) his clinically elevated depressed thoughts and feelings would constitute a Major Depressive Disorder or Dysthymic Disorder but the injury and their consequences are only partial causes;

(e) he was only able to work in physical occupations where visuo-spatial reasoning was required;

(f) he had no psychological resources to manage change to his usual ways of coping which is physically confronting the world;

(g) his identity partly depends on his capacity to work and this appears to have been taken away from him through the injuries;

(h) his injuries contributed to his current separation from his family but his particular personality was the major cause;

(i) he lacked psychological insight and places all causation of his state onto external events;

(j) he was unable to put his internal distress into words; and

(k) there was no psychological treatment for his distress or improving his pain management that Mr Sutton could recommend because of the plaintiff’s lack of capacity for introspective insight.

The plaintiff saw Dr Le Leu on 1 August 2013. He recorded that the plaintiff was on a disability pension and had been when he saw him last time. He recorded that the plaintiff had constant pain in his right wrist and aching in his left wrist. Dr Le Leu recorded that the plaintiff described constant pain in his lower back, aggravated by sitting or standing for long periods. The plaintiff described his left ankle as continuing to ache although a lot stronger than it was. Dr Le Leu repeated the prognosis which he had given the year before. He recommended assessment by a psychiatrist and repeated the same opinion in relation to the nature of the work that the plaintiff could do.

The plaintiff’s ex-partner, Sandra Wheeler, provided short but significant evidence about the plaintiff. Ms Wheeler is employed as a sterilisation technician at the Canberra Hospital, is the mother of the plaintiff’s three children and, as recited above, separated from him in 2011. She was a credible witness. She described the plaintiff prior to March 2007 as being a happy, fun loving person. People liked being with him. He was a generous person and “busy, busy, busy all the time and, you know, just somebody that everybody loved to be with.” She described his participation in family life. She said “he was just, I suppose, normal.” She said that in doing tasks that he was familiar with he was very confident and in other matters he was not so confident but would give it a go. She described that he was 98% employed and that in those “little lulls” when he was not employed he would be doing odd jobs for people. She described him as somebody who could not sit at home and do nothing.

After the First Accident she said that he was complaining that his ankle was throbbing and his wrist was aching. She described him as being a little bit quieter after that accident. She said that his mood got progressively worse after the Second Accident. He described to her that he had hurt his ankle again and had also hurt his lower back in that accident. Rather than communicating with her how much pain he was in he would just become withdrawn and quiet. He wouldn’t talk to her for days. He became “just nasty and rude”. He had never behaved like that prior to the First Accident.

When he started working for Axis Constructions she could see a slight improvement in his mood because he had a purpose in life again. She said he would still come home in “a hell of a lot of pain” in his lower back and his left ankle. At the point where she was assaulted at the beginning of 2011 she described him as being “depressed, angry and violent”. While she recognised that he had always had a short fuse she said “But you have a short fuse, and you have a temper. I think there’s a difference. I could see a difference in a short fuse and the person that he is now is not the person he was.”

She separated from him in August 2011 because she “just couldn’t live with somebody that was like that any more”.

She described her phone interactions with him currently in which he is very polite but she does not look forward to the conversations because he is very quiet and it is like “trying to drag teeth from somebody to ask any questions”. She says he just does not want to talk and she is put “on a bit of a downer”.

She said that he had stopped complaining to her about pain in the last six months. Prior to that he complained about pain in his left ankle and in his back and in his wrist. She said that if he tried to do something then after about two or three hours the pain would return.

In cross-examination she said:

So you say that from your observations that this turning point that occurred in 2007, approximately at the same time as these two incidents at work? - Yes.

That’s your observation? - That’s my observation, yes.

And that his reaction to these incidents was so dramatic as to, in your estimation, lead to him becoming depressed and on occasions aggressive towards you? - Yes.

So you’ve put those incidents down to the work accidents, do you? - Well, I do because he wasn’t like that before he had the accident.

No? - So there was nothing else that had changed in our life except that bloody work accident. Excuse me.

…

You say or your observation is that what’s happened as a result of this accident seems to you to have caused such a dramatic change in your husband’s personality? - I’m saying the coincidence there is very, very high. That is my perception of why he’s like he is, yes.

Her evidence is significant in that it corroborates the decline in the plaintiff following the accident and also provides evidence of the significant importance so far as the plaintiff’s mental health is concerned of being engaged in productive employment.

Following the Second Accident the first documented complaints of lower back pain relate to early October 2007. The plaintiff continued in work up until being sent home on about 17 December 2007. Because of his lower back pain he was referred with great success to Fit to Manage and was able to return to work in the Brindabellas in April 2008. During April and May 2008 he reported to Dr Southi, Stuart Andrews and Dr Griffith that his back was substantially better. He was then terminated from his employment for reasons which are likely to have included the fact that having been twice injured at work he was a less attractive employee. While his back was largely symptom-free in April and May, following termination it was aggravated at home and during work trials which involved lifting and twisting. The position in 2009 is sketchy but when he returned to work with Axis Constructions it is clear that even doing trench spotting duties his back was sore and he was not able to cope with the heavier physical work at BDN. His life got somewhat out of control at the beginning of 2011 and he continues to have back pain.

I prefer the evidence of Dr Talbot, Dr Brooder and Dr Le Leu as to the connection between his back pain and the Second Accident to that of Dr Wilkins. Dr Wilkins considered that it was unrealistic to link his back pain causally to the workplace accidents in 2007 but did not explain why that was the case. Having regard to the reports of the other doctors it appears to me to be more likely that the plaintiff’s previously asymptomatic back was rendered symptomatic by the Second Accident. The concentrated efforts following that accident to improve his core body strength managed, in the short term, to get him relatively symptom-free but that did not last. The evidence of Dr Wilkins is not sufficient to establish that the causal link between the injury and his current symptoms was broken by the brief period in April and May 2008 when he was symptom-free or indeed by any other matter since then.

In terms of the plaintiff’s current psychological state I preferred the evidence of Mr Sutton to Dr Hundertmark. As I indicated above, the report of Dr Hundertmark does not provide enough reasoning in support of the conclusion that from a psychiatric perspective the plaintiff had the capacity to work. The evidence of Mr Sutton indicates appropriately his conclusions and the reasons why his psychiatric state is related to his injuries and also provides a better basis for understanding the prospects for psychiatric intervention in the future.

The extent to which the plaintiff’s current condition is a result of the Second Accident

The history set out above demonstrates the necessity, in order to assess general damages and future economic loss, to determine the extent to which the plaintiff’s conditions have been caused by the Second Accident. That is because his present condition arises from a number of identifiable matters including the First Accident, the Second Accident, the breakdown of his marriage and his isolation from his wife and children, the loss of employment with Axis Constructions as a consequence of the assault on another employee and spending periods of time in full-time custody and periodic detention as a result of his threats to and assault upon his wife. There are also some indications that his current state of inactivity is contributed to by the pendency of the litigation which has been outstanding for an unreasonably long time.

The starting point is ss 45 and 46 of the Civil Law (Wrongs) Act2002 (ACT) which sets out the test for causation:

45General principles
(1)A decision that negligence caused particular harm comprises the following elements:
(a)that the negligence was a necessary condition of the happening of the harm (‘factual causation’);
(b)that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (the scope of liability).

...

(3)In deciding the scope of liability, the court must consider (among other relevant things) whether or not, and why, responsibility for the harm should be imposed on the negligent party.

46Burden of proof
In deciding liability for negligence, the plaintiff always bears the burden of proving, on the balance of probabilities, any fact relevant to the issue of causation.

In Strong v Woolworths (2012) 246 CLR 182 the High Court considered s 5D(1)(a) of the Civil Liability Act (NSW) which is relevantly identical to s 45(1)(a) of the Civil Law Wrongs Act 2002 (ACT). Both tests are statutory statements of the “but for” test: see Strong at 425.

The plurality said (at 192):

Under the statute, factual causation requires proof that the defendant’s negligence was a necessary condition of the occurrence of the particular harm. A necessary condition is a condition that must be present for the occurrence of the harm. However, there may be more than one set of conditions necessary for the occurrence of particular harm and it follows that a defendant’s negligent act or omission which is necessary to complete a set of conditions that are jointly sufficient to account for the occurrence of the harm will meet the test of factual causation within s 5D(1)(A). In such a case, the defendant’s conduct may be described as contributing to the occurrence of the harm. (footnotes omitted)

The medical evidence supports a distinction between the injuries that were suffered in the First Accident and Second Accident. The plaintiff’s back was injured in the second accident and his ankle and wrists injured in the First Accident. The issue is whether or not the plaintiff has established that his current condition was caused in the sense required by s 45 by the back injury in the second accident or whether, even without the back injury, the injuries to his wrists and ankle and the various other matters that I have referred to above would have led the plaintiff to the situation which he is currently in.

The history recorded above demonstrates that initially the plaintiff was not only enthusiastic about getting back to work but also very compliant and motivated in relation to his rehabilitation. That appears to have changed following his ankle operation in August 2008. By January 2009 Dr Miniter was recording the emergence of an “angry man”. That change is consistent with Mr Sutton’s assessment of the plaintiff as somebody for whom the ability to work was very important. His return to work at Axis Constructions was observed by his wife to slightly improve his mood notwithstanding that he suffered considerably from pain at the end of each day. However he lost that employment as a result of his own actions and was not able to continue the heavier work at BMD group because his back could not cope with it. He continued with his attempts to get into the workforce, obtaining his traffic controller certificate but, following the assault on his partner in January 2011, remained on a downhill slide. After that point, the doctors appear to concur that psychiatric factors are the most significant ones for the plaintiff. It is significant that those psychiatric factors have led the plaintiff to not attempt to obtain work.

This is a case in which an accumulation of factors have led the plaintiff to where he is both physically and mentally. The issue is whether or not, even without his back injury, the plaintiff would nevertheless be in substantially the same position as he is now. In relation to the past, that is significant for general damages and in relation to the future, significant to both general damages and future economic loss.

In my view the evidence indicates that the plaintiff’s back injury was a factor which was necessary to complete a set of conditions that were jointly sufficient to account for the situation in which the plaintiff has found himself. Consistently with what the High Court said in Strong that is sufficient to meet the test of factual causation.

Assessment of damages

In relation to general damages, the plaintiff has suffered an injury to his lower back which rendered the underlying degenerative condition of his back symptomatic and gives rise to ongoing pain, particularly when aggravated by physical activity. The back pain was one of the factors which contributed to his loss of employment and change in outlook and behaviour which have had significant impact upon the plaintiff. However the First Defendant has not been found liable for the injuries to his ankle and wrists. I consider an award of general damages of $80,000 to be an appropriate award of general damages in relation to the Second Accident. Interest on half of that amount for the period since the Second Accident is $5,264 (6.58 x $40,000 x 2%).

In my view, the evidence establishes that the plaintiff, from a physical point of view, has the capacity to undertake light physical work. That work may increase his levels of pain but he is capable of doing it. That work includes the work of a trench spotter which he had previously been able to perform up until assaulting another employee and a traffic controller, a job for which he is qualified but in relation to which he has only made limited attempts to obtain work.

I adopt as applicable to the circumstances of this case the statement of principle in Nominal Defendant v Livaja [2011] NSWCA 121 at [65]:

There are distinctions to be drawn between injury and impairment or disability consequent upon injury, and between impairment or disability and diminished earning capacity. Because an individual has a physical and mental ability to undertake certain tasks, it does not necessarily follow that he has a significant residual earning capacity. Earning capacity must be measured by reference to the individual, when viewed with all his or her characteristics, in the labour market. When a person in middle age has spent all his or her life in a skilled or semi-skilled occupation which, as a result of injury, is no longer available, the identification of occupations which are theoretically available is only part of the task. There must also be a practical assessment of the likelihood of the individual obtaining employment in some such occupation.

The defendant bears an evidential onus concerning the issue of whether the respondent has a residual earning capacity that he is practically capable of exercising: Luntz, Assessment of Damages for Personal Injury and Death, 4th ed (2002) at [1.9.20]; Magnou v Australian Wool Testing Authority Ltd [2007] NSWCA 357 at [20]; Kallouf v Middis [2008] NSWCA 61 at [50].

The difficulty for the plaintiff is that he has a limited education, a long history of manual work and now a criminal history and a period out of the work force. He also has psychological problems which would be a disincentive to any future employer. Further, he has relocated to an area where the prospect of obtaining employment is less than if he was living in Canberra.

While the evidence led by the defendants on this issue was sketchy, I am satisfied that there is a real prospect, having regard to his previous employment as a trench spotter and his qualification as a traffic controller that the plaintiff could obtain such work in the future.

Undertaking both the theoretical and practical assessment contemplated in Livaja, I consider that the plaintiff will, following the conclusion of this case, have a practically realisable earning capacity. That earning capacity will be less than would have been the case had he not been injured in the second accident.

The plaintiff claimed that his pre-injury earning capacity was $850 net of tax per week. Exhibit L which identified his average weekly earnings pre-accident gave a figure of $1,010.54. The plaintiff and second defendant agreed that such a figure led to a net amount of $850. That agreement is not relevant as I have not found the second defendant liable. The first defendant submitted that the net figure was $811. The figure of $811 appears to be a net figure which appropriately takes into account the relevant marginal tax rates but does not take into account the Medicare levy. However, given that any error is one that is favourable to the plaintiff I will adopt the figure contended for by the first defendant of $811. Adjusted by reference to the changes in average weekly earnings in Exhibit M this gives a current net figure of $1,038.

Mr D’Ambrosio’s evidence was that if the plaintiff had continued to work for Axis Constructions he would currently be earning $900 to $1000 net plus weekend work plus overtime. Those figures would indicate that had he continued working for Axis he would not have suffered a financial loss of any significance.

Notwithstanding that the plaintiff was cross-examined by counsel for the first defendant about it, the only evidence of the potential earnings of a traffic controller was the answer given by the plaintiff that the hourly rate was $25 per hour. A figure of $32.49 per hour was put to the plaintiff but no evidence was tendered by the first defendant to support that hourly figure.

The plaintiff is unable to do the heavy physical work that he had in the past. Having regard to the underlying degenerative condition of his spine and his history of hard work he was likely in any event to render his back symptomatic if he continued in the heavy labouring work. He would in any event have had some limitations on his capacity to perform heavy work by reason of his wrist and ankle injuries.

While the plaintiff has suffered some diminution of earning capacity as a result of the Second Accident, the existence of other injuries which impaired him in any event, the prospect that his back would have been rendered symptomatic in any event mean that this is a case where it is appropriate to award damages for the future by way of a buffer rather than by discounting an award based on a complete loss of earning capacity.

If able to be employed as a traffic controller at a rate of $25 per hour for 30 hours per week the plaintiff would earn approximately $665 net. When compared with the amount that he might have earned in the construction industry of $1,038, this gives a loss of $373 per week. Alternatively, if he worked as a trench spotter then his earning capacity would be no more than $100 less than in an unimpaired state. I consider that it is more likely that the plaintiff will suffer by reason of his back injury an economic loss at the higher end of this range.

If he worked until age 60 then that would be a period of 11 years. Having regard to the plaintiff’s condition in his ankles and wrist which are independent of his back pain and the likelihood that he would be unable to continue with the kind of heavy physical labouring which he had in the past beyond the age of 60 in any event, I consider that this is an appropriate period during which he is likely to suffer economic loss as a consequence of the Second Accident and to adopt in assessing the quantum of a buffer for future economic loss

A weekly net loss of $373 for 11 years at a 3% discount gives a figure of $182,770 (multiplier 490). Superannuation notionally calculated at 13% would add $23,760. A weekly net loss of $100 for the same period would give a figure of $49,000 and a superannuation loss of $6,370.

The evidence indicates that as a result of his mental state the plaintiff is not presently able to obtain employment. In my view, it is likely that with the benefit of an award of compensation the plaintiff will have the capacity to get any appropriate assistance or, having regard to Mr Sutton’s comments on the unlikelihood of that, simply be forced to get on with his life.

Having regard to these figures an award of damages for future economic loss of $180,000 appears to me to be appropriate and adequately reflects both the existence of an impairment of the plaintiff’s earning capacity and the uncertainties associated with his other injuries and his degenerative back condition.

Summary

In summary the plaintiff is entitled to damages under the various heads as set out below.

General Damages

$80,000

Interest on past component

$5,264

Past economic loss (inclusive of superannuation and interest) (agreed)

$200,000

Future economic loss (inclusive of superannuation)

$180,000

Fox v Wood (agreed)

$0

Griffiths v Kerkemeyer – past and future (including interest) (agreed)

$30,000

Out of pocket expenses - past (agreed)

$48,394

Out of pocket expenses - future (agreed)

$5,000

TOTAL

$548,658.00

Orders

The orders of the Court are:

1. Judgment be entered for the plaintiff against the first defendant in the sum of $548,658.

2. The usual order as to interest.

3. The first defendant is to pay the plaintiff’s costs of the proceedings.

4. The plaintiff is to pay the second defendant’s costs of the proceedings.

5. Orders 3 and 4 do not take effect if, within 7 days of the date of these orders, any party notifies my associate by email that it wishes to be heard in relation to costs.

6. Judgment be entered for the second defendant against the plaintiff.

I certify that the preceding one hundred and fifty-six (156) numbered paragraphs are a true copy of the Reasons for Judgment herein of Master Mossop.

Associate:
Date: 2 April 2014

Counsel for the plaintiff:  R S McIlwaine SC
Solicitors for the plaintiff:  Maliganis Edwards Johnson
Counsel for the first defendant:  S H Pilkinton SC
Solicitors for the first defendant:                  Dibbs Barker
Counsel for the second defendant:                 A J Black SC
Solicitors for the second defendant:               Pogson Cronin Solicitors
Date of hearing:  17, 18 September 2013, 24, 25 February 2014.
Date of judgment:  2 April 2014

General Damages	$80,000
Interest on past component	$5,264
Past economic loss (inclusive of superannuation and interest) (agreed)	$200,000
Future economic loss (inclusive of superannuation)	$180,000
Fox v Wood (agreed)	$0
Griffiths v Kerkemeyer – past and future (including interest) (agreed)	$30,000
Out of pocket expenses - past (agreed)	$48,394
Out of pocket expenses - future (agreed)	$5,000
TOTAL	$548,658.00