Sutton v CRESTWORLD Pty Ltd T/as Medcalf Transport - [2001] WADC 107

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: SUTTON -v- CRESTWORLD PTY LTD T/as MEDCALF TRANSPORT [2001] WADC 107

CORAM: MACKNAY DCJ

HEARD: 19-23 FEBRUARY 2001

DELIVERED : 15 MAY 2001

FILE NO/S: CIV 1649 of 1998

BETWEEN: CRAIG SUTTON
Plaintiff
AND
CRESTWORLD PTY LTD T/as MEDCALF TRANSPORT
Defendant

Catchwords:

Negligence - Employer and employee - Duty of care - Breach of duty - Removalist's employee injured when removing furniture from container with use of hand trolley - Whether unsafe system of work - Turns on own facts

Damages - Plaintiff 30 year old removalist at time of accident - Low back, shoulder and other injuries - Plaintiff entitled to award of $484,735 including non-pecuniary loss $50,000, and future economic loss $212,203

Legislation:

Nil

Result:

Judgment for plaintiff in sum of $484,735

Representation:

Counsel:

Plaintiff: Mr D R Clyne
Defendant: Ms C P Crawford

Solicitors:

Plaintiff: D'Angelo & Partners
Defendant: Downings Legal

Case(s) referred to in judgment(s):

Black v Motor Vehicle Insurance Trust (1986) WAR 32
Bowen v Tutte [1990] A Tort Rep 81-043
Chappel v Hart (1998) 195 CLR 232
Electric Power Transmission Pty Ltd v Orgaz, unreported; FCt SCt of WA; Library No 7914; 3 November 1989
Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18
Jongen v CSR Ltd & Anor (1992) A Tort Rep 81-192
Kondis v State Transport Authority (1984) 154 CLR 672
Lock & Anor v Lock [2001] WASCA 20
Maghiar v Trajkovski & Anor [1999] WADC 158
Malec v J C Hutton Pty Ltd (1990) 169 CLR 638
McLean v Tedman (1984) 155 CLR 306
Purkess v Crittenden (1965) 114 CLR 164
Thomas v O'Shea (1989) Aust Tort Rep 80-251
Watts v Rake (1960) 108 CLR 158
Wyong Shire Council v Shirt (1980) 146 CLR 40

Case(s) also cited:

Akkari v WA Government Railways Commissioner [1968] WAR 182
Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301
Duyvelshaff v Cathcard & Ritchie (1973) 47 ALJR 410
Foufoulas v Strong Pty Ltd (1970) 123 CLR 173
Knight v Robert Laurie Pty Ltd [1961] WAR 129
March v E & M H Stramare Pty Ltd (1991) 171 CLR 506
Medlin v State Government Insurance Commission (1995) 182 CLR 1
O'Connor v Commissioner for Government Transport (1958) 100 CLR 225
Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492
State Government Insurance Commission v Hitchcock, unreported; FCt SCt of WA; Library No 970089, 11 March 1997
Vozza v Tooth & Co Ltd (1964) 112 CLR 316
Wade v Allsopp (1976) 10 ALR 353
Wagner v Midland Junction Abattoir Board [1963] WAR 84

MACKNAY DCJ:

Introduction

The plaintiff is aged 33 years, having been born on 21 June 1967.
On 25 August 1997 the plaintiff was in the employ of the defendant as a furniture removalist when he was injured after falling from a ramp whilst unloading a piece of furniture from a container loaded on a flat top trailer.
The plaintiff's claimed injuries include injuries to the cervical and the lumbar spine, the latter requiring a spinal fusion, an injury to the right sterno‑clavicular joint affecting the stability of the right shoulder, and depression.
The plaintiff alleges that the accident resulted from the negligence of the defendant, and that as a result of his injuries he is unfit for all forms of paid employment.
The defendant denies it was negligent or that the plaintiff was injured and says in the alternative that the plaintiff was also negligent by "failing to keep a proper lookout" and by failing to take adequate care for his own safety.
The defendant also alleges that the plaintiff has failed to mitigate any loss by failing to sufficiently participate in his rehabilitation and by failing to utilise his existing abilities to ameliorate his loss.

Accident

The matters that were common ground included the following.
The improvements to the defendant's premises included a warehouse, to which was despatched furniture manufactured in the Eastern States, that being received, stored and then sent on to retailers in various locations in this State.
On the day of the accident, Monday 25 August 1997, a container on a flat top trailer filled with furniture had arrived at the warehouse and had to be unloaded.
There was no loading bay or platform provided for that task to be performed.
Rather, the trailer was backed up in front of the front door and a ramp brought up and secured by straps to the rear of the trailer, the ramp resting on a ledge on the rear of the tray so that there was a drop from the container floor to the ramp.
The doors of the container were then opened and some items of furniture at the rear of the container manually removed, so as to create a space.
Prior to being sent to the defendant each item of furniture in the container had been covered in a blanket like wrap, that generally being secured with adhesive tape, and the wrap was left in place when the item was removed.
It was also common ground that on the day of the accident, once the rear items of furniture were removed, the four men involved, who apart from the plaintiff included Anthony Weir, who was and is the defendant's foreman at the depot, began to utilise two wheeled hand trolleys to remove other large items of furniture, including dressing tables.
There was initially some divergence as to what next occurred, although by the end of the evidence that had narrowed.
The plaintiff said in evidence that when the use of trolleys began the ramp was still in its original position, thus necessitating a negotiation of the drop with a loaded trailer, whilst both Mr Weir and Mr Guiney, the defendant's depot manager, said that in accordance with usual practice the ramp had been relocated on lugs that secured the container doors, the result of that being that there was instead a small rise of between 20 and 30mm.
The rise did require a person wheeling a laden trolley to stop, and then ease the trolley over the rise, Mr Weir said.
In closing counsel for the plaintiff Mr Clyne in effect invited me to proceed on the basis that the plaintiff's recollection on that point was inaccurate, and I will do so.
That left a further significant difference.
The plaintiff had placed a dressing table on his trolley, so as to wheel it out of the container. He said that the wrap on the dressing table was hanging down and that Mr Weir had tucked it up at the front of the trolley whilst he pulled the trolley back. He had then wheeled the trolley with the dressing table on it out of the container.
Mr Weir said that he had not done that, and had not observed either of the other workmen assist in that manner.
In any event the plaintiff wheeled the laden trolley out on to the ramp. Whilst on the ramp the wrap became caught up in a trolley wheel, and apparently jammed it.
The plaintiff's momentum and that of the laden trolley then caused both, including the dressing table, to leave the ramp, and the plaintiff to go through the air and to fall heavily on the ground.
The plaintiff said he then experienced pain in his right shoulder, and in the neck/shoulder region, had an ache in the back and also pain in the left knee.
The plaintiff continued to work for the balance of the day and the next day, before seeing his general practitioner, Dr Lawrence Ng.
After a short period off the plaintiff resumed work for about a week but then ceased again and has not worked since.

Liability

Although the claim was pleaded as an action in negligence and also in occupier's liability it was advanced at trial solely as an action in negligence and I will therefore treat it as such.
The plaintiff's particulars of negligence comprise the following:
"The defendant was negligent in that it:
5.1failed to provide the Plaintiff with proper or adequate equipment to remove furniture from the truck;
5.2failed to ensure that the Plaintiff had a suitable means of removing furniture from the truck such as using a properly constructed loading dock;
5.3failed to warn the Plaintiff of the danger of moving heavy furniture;
5.4failed to provide adequate assistance to the Plaintiff in the movement of heavy furniture;
5.5failed to provide the Plaintiff with any safety training or at all;
5.6failed to warn the Plaintiff that the furniture blanket used to wrap furniture could be entangled in the wheels of the hand trolley;
5.7failed to provide a safe system of work;
5.8exposed the Plaintiff to unnecessary risk of injuries which the Defendant knew or ought to have known."
The plaintiff's evidence was that ordinarily in the removal industry, when furniture was moved the wrap would be taken off an item of furniture prior to its removal from a truck, and he was more accustomed to that method.
He had been with the defendant for about four or five months prior to the accident, it appeared.
Mr Weir acknowledged in his evidence that there was a risk that a wrap would catch in a trolley wheel, and he said he had been aware of that at the time of the accident. The wrap was usually taken away from the wheels, where it would otherwise be, in the case of dressing tables like that carried by the plaintiff, by folding it up into the adhesive tape fastened around the wrap or by folding it on top of the item of furniture, Mr Weir stated.
Mr Guiney agreed that when an item of furniture was placed on a trolley the wrap could hang down, but also said that generally if in the way the wrap would be put on top of the furniture or around the tape.
There could be between 6 and 12 pieces of furniture in a container where the wrap could be near the wheel, Mr Guiney said, but some might be manually lifted out.
The defendant's employees "pretty well worked as a team" and were instructed to seek assistance as required, Mr Guiney said, and he had not taken any other action in relation to the risk that a wrap might catch in a trolley wheel as he had "noticed the boys were putting the wrap in the tape".
However, Mr Guiney also said, in re‑examination, that even where the wrap was put in behind the tape, if it was not secure the wrap could move as the trolley came down the ramp.
Dr Steven Chew, the engineer and ergonomist, provided a report and gave evidence for the plaintiff. He was of the view, inter alia, that the ramp was too steep for the task, and that some other method ought to have been utilised.
Amongst the examples given by Dr Chew were the use of a platform with a hydraulic ram or the use of a platform on a forklift.
The cost of the first, he said, would have been only "in the thousands", although a power source would also have been required.
Platforms were available and commonly used in the transport industry at the relevant time, Dr Chew said, and the cost of the second example would have been in the "low thousands".
Mr Guiney said he would have liked other equipment, which could be a lot safer and made unloading much faster.
A platform with a hydraulic ram would have been practicable, with a power source, he said.
Although he did not know the cost of that equipment Mr Guiney nonetheless thought it would have been outside the ability of the defendant to meet the same.
A platform and forklift would have been "beautiful", for the purpose of the initial manual unloading of the container, and in fact the defendant now had that equipment, but would not have been able to afford it at the time, Mr Guiney said.
Once the initial manual unloading was done the defendant's employees "go back to the walk - up board, mainly because working a forklift in a confined area is probably more dangerous than walking something down the (ramp)" he said, the area being "only 550sq m".
I should say at this point that Dr Chew was not asked his view as to the latter proposition, which is not self‑evident, and I would not regard the size of the area as an impediment to the use of a forklift and platform.
In relation to the weight of the dressing table, a table used in a demonstration seen by Dr Chew, which was a little larger than the "Deakin" model I would find the plaintiff carried on the day of the accident, was approximately 62kg. It would thus appear the Deakin model would have been of the order of at least 40/50kg.
The ramp in use at the time of the demonstration also had a flange or rim which extended onto the container floor, and was seen by Dr Chew, and Mr Guiney said that had been added about 12 months after the accident, as "we felt it was time to do that. It was a bit safer". Stripes were also painted on the edges at that time.
Reliance was placed by counsel for the plaintiff, inter alia, on the decision of the Full Court in Electric Power Transmission Pty Ltd v Orgaz, unreported; FCt SCt of WA; Library No 7914; 3 November 1989, and in particular on the following passage in the judgment (at pp 7 - 8) of Ipp J (with whom Malcolm CJ and Wallace J agreed):
'It has been held in several cases that where an employer knows that an employee will, in the course of his work, be required to move heavy objects, the employer's duty is to provide a safe system of moving such objects. It is sufficient to refer to Bankstown Foundry Pty Ltd v Braistina, Castro v Transfield (Qld) Pty Ltd (1983) 57 ALJR 619, Turner v The State of South Australia (1982) 56 ALJR 839, Fennell v Supervision and Engineering Services Holdings Pty Ltd and Klarich v Altec Engineering Services Pty Ltd, unreported, Full Court of the Supreme Court of Western Australia, Library No 5547, delivered 9 October 1984.
From these cases, the following can be extracted:
(a)A safe system of moving heavy objects will usually require the employer to give a warning or instructions that no employee should attempt to lift excessively heavy objects alone.
(b)Further, a safe system will usually involve both instructing employees to seek help in order to move excessively heavy objects and instructing fellow employees to provide that help when asked.
(c)The employer's duty is to take reasonable care to avoid exposing an employee to unnecessary risk from moving heavy objects, including the risk that injury may occur because of the failure of an employee to appreciate, through inadvertence, failure to apply his mind, an error of judgment or negligence, that an object is too heavy to be moved by him alone.
(d)An employer does not avoid the duty imposed on him by leaving it to the employee to work out a safe system himself; that would be an impermissible attempt by the employer to shift this duty on to the employee.
In the present case, the appellant had not provided any safe system of work whatever in regard to the moving of heavy objects, save for leaving the method of work to the common sense of the employees. That does not exculpate the employer in any way. See particularly Castro v Transfield (Qld) Pty Ltd, at p 620, Turner v The State of South Australia, at p 842 and the reasons for judgment of Burt CJ and Wallace J in Klarich v Altec Engineering Services Pty Ltd."
It was then said by counsel here that the principles set out could be extrapolated to this matter, the relevant danger here being that a wrap might jam a trolley wheel whilst the worker was on the ramp.
The starting point for any consideration of duty is of course the judgment of Mason J in Wyong Shire Council v Shirt (1980) 146 CLR 40.
Adopting the criterion for reasonable foreseeability set out, it is plain that there was a risk of injury here, on the evidence of the defendant's own witnesses.
The standard of care required was "that of a reasonably prudent employer and it is a duty to take reasonable care to avoid exposing the employees to unnecessary risks of injury. The degree of care and foresight required from an employer must naturally vary with the circumstances of each case": Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18 at 25 per Dixon CJ and Kitto J."
That inadvertence on the part of an employee may have to be guarded against was made clear in McLean v Tedman (1984) 155 CLR 306 where it was said by Mason, Wilson, Brennan and Dawson JJ (at 311 - 312):
"The standard of care expected of the reasonable man requires him to take account of the possibility of inadvertent and negligent conduct on the part of others. This was acknowledged even in the days when contributory negligence was a common law defence: Wheare v Clarke (1937) 56 CLR 715 at 723; Henwood v Municipal Tramways Trust (SA) (1938) 60 CLR 438 at 444. The employer is not exempt from the application of this standard vis-à-vis his employees, whether his obligation to provide a safe system of work is one which is expressed as a requirement of ensuring that the system is as safe as reasonable care can make it or is expressed as one which requires him to take reasonable care in providing such a system. The employer's obligation in this respect cannot be restricted to the provision of a system which safeguards the employee from all foreseeable risks of injury except those which arise from his own inadvertence or negligence. There are many employment situations in which the risk of injury to the employee is negligible so long as the employee executes his work without inadvertence and takes reasonable care for his own safety. In these situations the possibility that the employee will act inadvertently or without taking reasonable care may give rise to a foreseeable risk of injury. In accordance with well settled principle the employer is bound to take care to avoid such a risk."
The same Judges also said (at 313):
"The employer's obligation is not merely to provide a safe system of work, it is an obligation to establish, maintain and enforce such a system. Accident prevention is unquestionably one of the modern responsibilities of an employer: see Fleming, Law of Torts, 6th ed (1983), pp480 - 481. And in deciding whether an employer has discharged his common law obligations to his employees the Court must take account of the power of the employer to prescribe, warn, command and enforce obedience to his commands."
The duty of care is personal to the employer and is non‑delegable: Kondis v State Transport Authority (1984) 154 CLR 672, 688.
As to causation, in Lock & Anor v Lock [2001] WASCA 20 Malcolm CJ (with whom Pidgeon and Ipp JJ agreed) accepted that where there was a risk of physical injury, a duty on the part of the employer, and injury of that kind occurred, the position is as explained in Gaudron J in Chappel v Hart (1998) 195 CLR 232, 239:
"… the physical injury having occurred, breach of the duty is treated as materially causing or contributing to that injury, unless there is 'sufficient reason to the contrary' (Betts v Whittingslowe (1945) 71 CLR 637 at 649 per Dixon J. See also Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 467, per Mason J)."
Here, on the evidence of the plaintiff, Mr Weir and Mr Guiney, the risk that if not secured out of the way when a Deakin dressing table was moved on a trolley the wrap might interfere with a wheel was a real one.
Given that, the nature of the task, the approximate weight of the dressing table, the steepness of the ramp, the very real possibility that if a wheel jammed the worker might fall from the ramp onto the concrete floor, and the risk of serious injury if that occurred, I am of the view that a reasonable employer was bound to react to that risk.
That obligation was and could not in my view be discharged by limited observation of any informal practice on the part of employees to deal with the wrap themselves.
No other action was taken here, beyond a general direction that a worker should seek assistance as required, as Mr Guiney confirmed, although effective action could have consisted of just a warning or a direction that bulkier items be carried out of the container.
Further, although the plaintiff was an experienced removalist he had not previously unloaded furniture in this fashion, and had been with the defendant for only a limited time.

The accident occurred either because the wrap was left hanging down or because, having been put away from the wheel by the plaintiff or someone else, it fell down again.
In those circumstances insufficient attention was plainly given to the need to keep the wrap away from the wheels, in circumstances where the defendant was in breach of its obligation to at the very least warn that attention be given to that, and in the circumstances I would find that breach led to the plaintiff's injury.
I should add that although Mr Weir presented as a generally frank witness I did observe apparent discomfort on his part when asked about assistance with the wrap. He is of course still an employee of the defendant.
Mr Weir was the foreman at the time. Further, when asked what he did when the problem arose of a wrap being near a wheel he said:
"Well, I personally - I fold the blanket up and if I see anybody else having a problem I go and lend them some assistance."
The plaintiff, whose recollection was admittedly faulty as to placement of the ramp, was, however, in my view an honest witness. His version on this point is likely to be preferable to that of Mr Weir, in the circumstances, and I accept it.
I would therefore find that prior to the accident Mr Weir had indeed assisted the plaintiff with the wrap, and endeavoured to secure it away from the trolley wheels for him.
The failure of that assistance was then followed by the accident, and that confirms in my view the need for there to have been at least a warning, and attention given to the observance of the same.
It also highlights the frailty of the method relied on by the defendant.
Finally, it could be said in my view to justify, when taken with all of the other circumstances, the need for a direction that some items be carried or one or other of the two methods referred to above that were put forward by Dr Chew.
In that regard there is no real evidence that the defendant would not have been in a position to afford either of the methods suggested by Dr Chew, Mr Guiney not being an officer of the company and no financial records having been put forward. The cost of the equipment in either case was not great. The defendant has in fact now acquired the equipment the subject of the second of the proposed methods.
For the above reasons I consider the defendant is liable to the plaintiff in respect of the accident of 25 August 1997.
There is nothing to justify any finding of contributory negligence on the part of the plaintiff: see Orgaz per Ipp J p 4.

Damages

The plaintiff pleaded that he suffered injuries as follows:
"7.1.1Lumbar spine injury resulting in spinal fusion;
7.1.2Central disc protrusion at the C5/6 and C6/7 levels;
7.1.3Injuries to the right shoulder and neck;
7.1.4Compression of the C8 nerve root;
7.1.5Post traumatic stress and depression;
7.1.6Soft tissue injuries to cervical and thoracic spine;
7.1.7Centre and lower back, hip and groin pain;
7.1.8Shock, pain and discomfort."
Four medical practitioners and an occupational therapist were called on behalf of the plaintiff, and the reports of a fifth doctor were tendered by consent, together with a number of radiological reports.
The defendant called three medical practitioners and a rehabilitation counsellor, and tendered a report of another medical practitioner.
I have read those reports and heard the evidence of the witnesses, and in the circumstances it is neither necessary nor appropriate for me to attempt to summarise all of that material nor to make reference to it all.
The plaintiff's principal difficulties since the accident, it is said, have been depression, shoulder and neck injuries, and a low back injury.
In July 1998 the plaintiff was referred by his general practitioner to a psychiatrist, Dr Frederick Ng, and was then diagnosed as suffering from a major depressive disorder. The plaintiff was thereafter treated with psychotherapy and medication.
Throughout the period the plaintiff has, in Dr Ng's opinion, been unfit to work, although Dr Ng said in evidence that the plaintiff was now largely in remission, but with "breakthrough depression" periodically.
The plaintiff's depression had resulted in a chemical dysfunction, and that continued beyond the symptoms, the doctor said, and the depression and pain were related so that an increase in the latter exacerbated the former.
The plaintiff was presently treated with Prozac, and Dr Ng said that an attempt to "wean" the plaintiff off that medication ought be made in 12/18 months time, and if that was successful the plaintiff's work capacity could then be reviewed.
The end of the litigation would be likely to improve the plaintiff's symptoms, although not his need for treatment, Dr Ng said.
Another psychiatrist, Dr Febbo, examined the plaintiff on two occasions a week apart shortly before the trial, apparently for the defendant, and in a report of 6 February 2001, the doctor agreed that the plaintiff's history suggested the presence of residual depressive and anxiety symptoms, and that the plaintiff ought remain on Prozac for 12/18 months. In evidence Dr Febbo said the second statement had been made on the basis the trial would be further away.
In Dr Febbo's view the stress of the litigation was a major factor in the plaintiff's presentation, and the end of it would over the following months bring about a major improvement in the plaintiff's status.
From a psychiatric point of view the plaintiff was not presently unfit to work, the doctor said.
Dr Lawrence Ng originally reported that the plaintiff had sustained soft tissue injuries to the cervical and thoracic spine, right sterno‑clavicular joint and shoulder.
In November 1997, three months after the accident, the plaintiff was then seen by Dr David Walters, a rheumatologist, and that doctor has treated the plaintiff since that time, the present treatment modality being by way of periodic injection of cortico-steroid with local anaesthetic into the painful areas, that providing short term relief. The plaintiff also took medication and gained benefit from hydrotherapy, in the doctor's view.
Dr Walters said that he was of the belief that the plaintiff had injured his cervical spine in the accident and had also injured the attachments of his right upper arm to his trunk.
The doctor said he did not consider the plaintiff's condition would alter very much in the foreseeable future, and the plaintiff would be likely to require the same treatment.
In a report of June 2000 Dr Walters stated that the plaintiff was not then fit to return to employment of any kind that the doctor could imagine for him, and also said he did not visualise the plaintiff ever being able to do his pre‑accident or any other heavy work.
In a further report of January 2001 the doctor expressed similar views.
In evidence Dr Walters then said that if the plaintiff was to attempt clerical or administrative work there was a problem because of increasing pain when the plaintiff had to be in one place or posture for long, so that he had to change his position very frequently.
The doctor said he thought the plaintiff could work if he could be "as if he were at home", but was unsure whether that was a practical or realistic proposition.
Further, the plaintiff did need to lay down frequently, and it was difficult to see how that could be accommodated, Dr Walters suggested.
No structural abnormality in the shoulder or neck to explain the plaintiff's severe symptoms had been able to be demonstrated, Dr Walters agreed but said that he was unsure whether that showed that there was not one.
Although there was no muscle wasting in the shoulder area Dr Walters said there was some muscle wasting of the attachments posteriorly of the right upper limb to the chest wall.
Dr Walters did agree that finalisation of the litigation would bring a general benefit to the plaintiff's health.
In June 1998 Mr Skirving, an orthopaedic surgeon, saw the plaintiff at Dr Walters' request, and in a report of July 1998, tendered by the defendant without objection, that doctor stated that he had not been able to find any intrinsic lesion in the plaintiff's shoulder which would explain his continuing symptoms, and it was also difficult to explain the restriction in the cervical spine.
Another orthopaedic surgeon, Mr Janes, saw the plaintiff in October 1999 and his report was tendered by the plaintiff.
Mr Janes expressed the view that the plaintiff had some instability of the sterno‑clavicular joint with some degenerative change there, which had resulted in a long term abnormality in scapulo‑thoracic rhythm. The doctor said that he did not, however, consider that there was any major structural pathology in the shoulder. There could be further degeneration in the sterno‑clavicular joint in the future.
Dr Lawrence Ng said that the plaintiff's right shoulder and neck were his main problem. The plaintiff's sterno‑clavicular joint was unstable as it was not tethered properly, Dr Ng said. That prevented proper use of it, in his view.
Dr Ng said that he had a note that he had observed wasting of the right trapezius on 23 June 2000.
The doctor believed that even after the litigation was finalised the plaintiff's physical problems would prevent him from engaging in gainful employment. An appropriate figure for the loss of right upper body function in the plaintiff's case would be about 25 per cent, Dr Ng said.
Dr Marsden, an occupational physician who first saw the plaintiff for an insurer in May 1998, reported at that time that the plaintiff had sustained a fall in which he had suffered non‑specific soft tissue sprain injuries to the cervical spine and lumbo‑sacral spine with associated soft tissue structures and also a right shoulder disruption injury, which probably affected the sterno‑clavicular joint.
In evidence the doctor said the sterno‑clavicular joint was "slightly" unstable.
As to the finding of moderate supraspinatus tendonosis made in an MRI scan report of January 2001 tendered by the plaintiff, the doctor said that showed inflammation under the rotator cuff or beneath the point of the shoulder, and explained the plaintiff's problems with forward flexion and abduction to the side, together with a reluctance to rotate the humerus.
There was, however, no evidence of muscle wasting in the shoulder, the doctor said, and at times the plaintiff's presentation in relation to his neck and in particular in relation to his shoulder had been extremely dramatic.
The sterno‑clavicular instability in terms of work would cause the plaintiff to have problems with working over shoulder height, or operating a machine which required frequent quick movements of the arm, he thought.
The plaintiff had "reached a stage where he could start to look at alternative working roles", Dr Marsden reported in July 2000, and in evidence said he would be able to work "in a job where he can sit, stand and walk within his own reasonable time frame".
In relation to the cervical spine the doctor reported a 5 per cent loss of efficient function there, in January 2001, and in evidence said that the plaintiff did have a "slightly reduced range of movements".
Dr Marsden said that the plaintiff would probably be able to work in spare parts in a firm such as Coventries or Marlows, as they were "very good with the rehabilitation people" and took employees like the plaintiff on. Some of those employees did not, however, make the grade, the doctor conceded.
The defendant also called as a witness Dr Finch, who had seen the plaintiff in 1999 and had subsequently referred him to Mr George Wong, the neurosurgeon, in relation to the plaintiff's low back problems.
Dr Finch at that point considered each of the plaintiff's cervical spine and lumbar spine disabilities to be in the order of 10 per cent.
When asked by counsel for the defendant what conclusion he had reached about the role that the shoulder and shoulder girdle was playing in the pain reported the doctor said that he had omitted to make any comment about that and was really focusing on the plaintiff's neck and low back, although he went on to express some views about it, and to seek to infer that he had not thought "it was that severe".
Mr Wong carried out L5/S1 global fusion with instrumentation on the plaintiff's upper spine, which he later reported had resulted in an improvement of the plaintiff's back pain and referred buttock pain which could be quantified as a 50 per cent improvement, but which still left the plaintiff with a 20 per cent disability of the whole body.
In the doctor's view, and in relation only to the lumbar spine, the plaintiff had the ability to work in lighter duties which did not involve heavy lifting, repeated bending or working in awkward positions, which would permit work in such occupations as a console operator and a storeman.
Mr Wong said that "from a practical point of view I think in the longer term when people leave him alone from his back point of view I am of the view that he can (do) semi‑sedentary or sedentary‑type work".
The fusion could give rise to accelerated degenerative changes at the level above that fused, Mr Wong also stated.
Mr Wong said in evidence that the plaintiff had normal degeneration of the spine prior to the accident, and if the plaintiff had complained of back pain on and off for two years around 1988 that would affect the likelihood that the plaintiff would have been able to work to retirement, although no straightforward answer could be given in relation to that question.
In February 2001 the plaintiff also underwent a physical work performance evaluation conducted by Ms Pow, a senior occupational therapist, on behalf of CRS Australia.
In Ms Pow's assessment the plaintiff had participated fully in the tasks set for him, but "(b)ased upon Mr Sutton's present level of functioning, it is likely he will have difficulty managing even sedentary duties due to his limited sitting tolerance and restricted ability to use his right upper limb (his dominant side). His back pain limits his mobility and ability to assume various postures, and his right shoulder pain limits his ability to perform bilateral tasks, particularly if strength or above shoulder reach is involved".
The plaintiff was physically capable of sedentary work, Ms Pow said, but could not sustain that for an eight hour day, as he had a limited sitting tolerance, that being limited up to one‑third of a day, and did not have the endurance to work for an eight hour period in any event.
Ms Pow agreed that the plaintiff, however, did have the ability to carry out a range of clerical and administrative tasks.
Mr D'Castro, a psychologist and rehabilitation counsellor, and a director of a company formerly known as Rehabilitation Solutions but now named Working Life, had some involvement with the plaintiff between October 1997 and January 1999 and said that based on that involvement, what he was told by another employee of the company, and his reading of reports, it appeared the plaintiff was focused on finalising his workers' compensation claim, did not consider he was being assisted medically, and did not think he would work again, and for those reasons did not see any point in participating in vocational rehabilitation.
In relation to the CRS Australia work performance evaluation, Mr D'Castro said he would not utilise the method employed there, and the assessment was of only one day, with little reference to the normal activities of daily living.
Informal assessment over a period, with detailed questioning and consideration of medical information, was a more effective method of evaluation in his experience, Mr D'Castro said.
The plaintiff's evidence as to his history prior to the accident included the following.
The plaintiff attended Lockridge Senior High School, and left at the end of Year 10.
He then worked for Lloyd Chapman Motorcycles for about three and a half years, beginning as a general hand and finishing in spare parts. The latter work entailed the checking in and putting away of parts on arrival and the recovery and invoicing of them on sale. It did not entail the direction of others.
The plaintiff and his brother then began a franchise for a removal firm, Curtis Bros, in Melbourne, which eventually involved the plaintiff in both the driving of interstate trucks and the moving of furniture, and working as a foreman or in a supervisory role. The plaintiff also obtained a TAFE certificate in removal work after a very brief course.
After five years the plaintiff returned to Perth and worked for Cleanaway for a period. He was then employed by Allied Pickford prior to a return to Lloyd Chapman Motorcycles where he worked for a further period of around three years.
The plaintiff described his work at Lloyd Chapman Motorcycles on this occasion as being:
"I ran the counter, I assisted in workshop, I had to put together all the service kits for the workshop to continue. I had to book servicing and repair work into the diaries for the workshop, importing Ducati parts on a regular basis, and then having to unload all the containers, bring all the freight inside, put the bikes in the warehouse."
The work involved heavy lifting.
Although he described himself as a manager, apart from assistance with lifting and the like, the plaintiff did the work himself and did not direct others. The employer eventually "let (him) go" and he was unemployed for a period.
The plaintiff then found work with the defendant, initially on a casual basis, and then as a permanent employee.
In relation to his injuries, the plaintiff said he had had some physiotherapy for lower back pain prior to going to Melbourne, but could not recall a complaint recorded by Dr Lawrence Ng in June 1988 of low back pain on and off for two years, worse for the month prior to the consultation.
After the accident of August 1997 in the defendant's employ the plaintiff said that he ceased work because of pain, and received around that time some physiotherapy and chiropractic treatment.
His principal aches and pains in the months following the accident were described by him as:
"Neck, back, shoulder, right side - pains going down me arm; pains up both sides of me neck and across, connecting; pains all around under me right armpit; pains down the centre and both sides of me back and lower back pain. Me knee settled down; it wasn't an ongoing, major problem."
As to why the plaintiff attended Dr Frederick Ng he said:
"The main thing was depression, and I got very suicidal and really didn't want to continue with what my life had become at that time, and the way that my attitude changed towards my wife and my children was very disrespectful due to just because of what had happened, and the pain and the medication and the whole injury thing."
The plaintiff denied that he had shown a lack of commitment or a refusal to cooperated in relation to rehabilitation and said that he had done what he could.
As to his present work capacity the plaintiff said he was qualified as a removalist and had been employed as a shop assistant, had no other qualifications, and:
"I can sit for a bit. I have got to stand and then I have got to walk the pains out to a certain degree, and then on a number of occasions I literally lay down on the floor and relax for an hour or two at a time to get relief with medication.
The functional capacity evaluation undertaken at CRS says that you could sit for up to a third of the day, doesn't it?---Up to, yes.
So what I'm putting to you is if you were engaged in duties that allowed you to sit and stand as you felt it was necessary, then you would be capable of doing that, wouldn't you?---My concentration I feel would be greatly affected due to the uncomforts of going through that in time, yes. I could do it, but concentration on the job and keeping it together is another - would be involved.
This case no doubt has imposed stress and anxiety?---It has been a very not nice time.
And once it's out of the way you're more likely to be able to focus on particular duties that you might be able to acquire?---I have thought this over and over in my head for 3 and a half years and, to be honest with you, at the end of the day I think I'm going to be lost."

The plaintiff said his physical problems were now:
"Lower back pain in the buttocks, groin area, pain shooting down my right arm with numb fingers on a nightly basis, headaches, clicking and crunching in the neck pretty well every 2 or 3 hours of every day, consistent pain from the sterno joint through to the shoulder and round under the armpit and all down the inside of my right shoulder. Down the back of the inside right shoulder blade, that's the most common, and headaches in my neck and that.
How often do you get headaches?---They're pretty constant. They can drift in and out two or three times a day but it's not too often I have a day without at least one or two headaches.
Whereabouts do you get your headaches?---I get them pretty well from in my right neck area straight up to the base of the skull and at times they can come out through my temples and out through my eyes. They're the most common."
The plaintiff still receives physiotherapy, twice per week, for various problems from his lower back to his neck and shoulder, he said, and also attends for hydrotherapy two or three times per week.
He sees Dr Frederick Ng every four weeks, and Dr Lawrence Ng monthly.
Apart from Prozac, Celebrex, an anti‑inflammatory, and Losec, for his stomach, the plaintiff said that he takes several Panadeine Forte or other analgesic tablets each day.
There were many things he had not been able to do since the accident, the plaintiff said, and many of those he was still unable to do, including playing with his children, gardening, lawnmoving, house maintenance and vehicle maintenance, and it was also necessary for his wife to assist him with dressing with some clothes, the plaintiff said.
Apart from assistance received from his wife in relation to gardening, household work, personal help and vehicle maintenance, and paying for the cost of lawnmowing, the plaintiff said that his father and friends had also assisted with various tasks.
The plaintiff said that he had formerly engaged in many sporting activities, but was now unable to engage in any of the same.
The plaintiff's wife, father and a friend also gave evidence.
My general findings in relation to the plaintiff's injuries and the effect of them could be summarised as follows.
In the accident the plaintiff undoubtedly sustained a number of physical injuries, those of most significance being to the neck, right shoulder area and low back. As a consequence of those injuries he also suffered a psychiatric injury.
Those injuries are all ongoing, to an extent at least.
The plaintiff's appearance in the witness box was that of someone who has been significantly affected by the litigation, and that inclines me, in relation to that particular issue, to the views of those doctors called by the defendant who consider its conclusion will bring about a corresponding improvement in the plaintiff's presentation.
That is not of course to suggest the plaintiff is untruthful, and Mr Wong's comment as to the position the plaintiff would be in "when people leave him alone" is, with respect, particularly apt in my view.
I also accept the views of Mr Wong, a very experienced neurosurgeon and a treating doctor here, as to the plaintiff's present capacity to do semi‑sedentary or sedentary work, when that is evaluated simply from the point of view of his low back injury, and insofar as the plaintiff's claimed symptoms or the finding of Ms Pow's work performance evaluation are inconsistent with that, those must be ascribed to the plaintiff's present psychological state and the effect of the litigation.
As to that state, and in relation to the nature of the plaintiff's depression, I prefer the finding of Dr Frederick Ng that the plaintiff did suffer from a major depressive disorder, and that has resulted in him being unfit to work, taking into account that doctor saw the plaintiff when his symptoms were at their peak and has treated him since that time.
As to the future both psychiatrists consider the plaintiff should remain on Prozac for a period, Dr Ng suggesting 18 months as an appropriate time, with as stated a review of the plaintiff's work capacity then, and I would also incline to that, although accepting Dr Febbo's view that the plaintiff will improve significantly in a shorter period.
The plaintiff does have neck symptoms, although such are not on the evidence due to any disc protrusion, or sufficient to prevent him working, in due course at least.
That leaves the injury to the plaintiff's shoulder area, which is perhaps the injury in greatest contention.
It was common ground that the plaintiff has instability of the sterno‑clavicular joint, that the MRI report indicated some inflammation under the rotator cuff in the right shoulder, and that no other structural abnormality in the shoulder had been found.
Both Dr Walters and Dr Lawrence Ng found some muscle wasting on examination, although the extent of that would not appear to be significant, given the absence of any other report about it, and I would not find that was determinative of the issue.
The plaintiff himself tendered the report of Mr Janes, and that doctor expressed the view that there was no major structural pathology in the shoulder, a view apparently shared by Mr Skirving, and also held by Dr Marsden.
The latter doctor also spoke of the plaintiff's very dramatic presentation at times in relation to his shoulder symptoms, which would indicate the plaintiff's psychological difficulties and the stress of the litigation have been factors in his symptom level, particularly perhaps as the sterno‑clavicular joint has a tendency to dislocate.
Given the absence of evidence as to objective findings in the shoulder area, and in the light of the above, I would incline to the evidence of the latter doctors referred to and find that although the plaintiff does have some restriction of use of the right shoulder and arm, and some symptoms there, those things should not prevent him from engaging in any gainful employment, although restricting the forms of employment open to him.
Two things must be said about those findings.
First, insofar as any is a prognostication based on an expression of view that the plaintiff will improve, that is not and cannot be a finding on balance, but merely an adoption of one of many possible outcomes as being that most likely, and hence only the starting point for an assessment, such to be made by reference to all possible outcomes: Malec v J C Hutton Pty Ltd (1990) 169 CLR 638, 643.
Second, when assessing loss of economic capacity it must be recognised that the plaintiff was engaged in what was effectively manual labour at the time of the accident, and that he has undeniably totally lost the capacity to do his pre‑accident work, and in fact has lost the capacity to be employed in any of the jobs that he had been in over the 15 or so years that he had been in the workforce prior to the accident.
The plaintiff does not have a high level of education, has now not worked for over three and a half years, is still not capable of an immediate return to work, and has several disabilities, including psychological distress, all of which must be looked at together, when his economic capacity is considered.
In the circumstances there is a plain need to be realistic about his future employment prospects.
It is also necessary for me to make a finding as to the defendant's pleaded allegation that the plaintiff failed to mitigate his loss.
In Maghiar v Trajkovski & Anor [1999] WADC 158 I set out my understanding of the position where such a plea is made and I would follow that here:
"The onus rests on the plaintiff to establish his loss.
Where a loss is established but some part of it is said to have come about as a result of a failure on the part of a claimant to mitigate, there is a legal onus on a defendant to show, having regard to the likelihood of improvement and the steps required to try to achieve that, that the claimant acted unreasonably: Plenty v Argus (1975) WAR 155. If a defendant succeeds in doing that the claimant's damages in relation to the particular loss are limited to an amount assessed by reference to the degree of likelihood the step would have produced the improvement.
A tortfeasor must of course take his victim as he finds him; hence the 'eggshell skull' rule, so called.
It follows that a claimant has a predisposition to respond to injury in a neurotic manner does not assist a tortfeasor: Parker v Commonwealth of Australia (1975) 49 ALJR 221, 222; Sobiecka v Blanton (1960) Qd R 152, 164; Gribben v Woree Caravan Park & Motels (1970) Qd R 420; Brice v Brown (1984) 1 All ER 997.
The question is whether a claimant acted unreasonably in failing to mitigate his damage must then be considered in that light: Karabotsos v Plastex Industries (1981) VR 675, 680; Lorca v Holts' Corrosion Control Pty Ltd (1981) Qd R 261, 270."
There are two particular allegations made.
The second, that the plaintiff failed "to utilise existing skills and training to ameliorate his loss" is without substance.
The first is that the plaintiff failed to "participate fully, and appropriately with rehabilitation".
There is evidence of conflict between the defendant's rehabilitation provider and the plaintiff and of non‑attendance or poor attendance by the plaintiff at courses arranged by that entity.
When those things are set against the backdrop of the plaintiff's personal difficulties since the accident set out above, and in particular his psychological difficulties, I do not, however, consider that the defendant has discharged its onus of proof.
I should say that in the circumstances here, even had the plaintiff done all that was required of him, it is doubtful that any great progress would have been achieved, and the utility of such a rehabilitation process, run on behalf of a defendant, would seem doubtful when there is a common law action on foot in which it is denied that the plaintiff is disabled to anything like the extent alleged.
The heads of damage which have relevance, and my findings, are then as follows.

Non‑pecuniary loss

The plaintiff's injuries were significant, as was the effect of them on him. He has been left with permanent disabilities.
The allowance is to be assessed as a proportion of the amount that may be awarded only in a most extreme case, pursuant to s 93E of the Workers' Compensation & Rehabilitation Act 1981 (WA).
I would allow $50,000.

Special damages

These, apart from weekly payments of compensation were agreed in the sum of $61,462.43, and I allow that.

Past loss of economic capacity

I was informed that the quantum of the plaintiff's claim under this head had been agreed in the sum of $6,650, together with interest of $1,377.43, a total of $8,027.43.
In addition it was agreed that the plaintiff was entitled to an allowance for gross weekly payments of workers' compensation to 23 February 2001 in the sum of $93,970.50.
Those apparently continue, and I would not regard such as being caught by the parties agreement and would then allow a further sum under this head of $5,720, representing gross payments of compensation up to 11 May 2001.
The total allowance under this head, rounded off, is then $107,718.

Future loss of economic capacity

The evidence of each of Dr Frederick Ng and Mr Wong supports the view that the plaintiff may undergo some improvement in his capacity in the short term and I consider a reasonable approach, and in fact one suggested by the defendant as an alternative, is to regard the plaintiff as being totally incapacitated for a period and to then make a further assessment on the basis of partial incapacity for the period thereafter.
The period of total incapacity I will regard as one of 18 months.
For the assessment thereafter, in the circumstances I would with respect adopt the approach approved by the learned Chief Justice (with whom Wallace J agreed) in Bowen v Tutte [1990] A Tort Rep 81-043 at 68,086:
"Where it is clear that the plaintiff has suffered a loss of earning capacity, as where there has been a total loss of capacity to earn in the occupational profession for which the plaintiff has previously been employed, the Court will do its best to place a value on the loss, notwithstanding the absence of evidence of the availability of employment within the plaintiff's capacity and evidence of the amount which could be earned in such employment: see, for example, Ashford v Ashford (1970) 44 ALJR 195; Chelini v Northern Territory Port Authority (1976) 12 ALR 519; and Dessent v The Commonwealth (1977) 13 ALR 437 at p 447 per Mason and Aickin JJ. Consequently, the basic approach adopted by the learned trial Judge in the present case to take account of the existence of a residual earning capacity by the deduction of a percentage amount from the figure he calculated for total loss of earning capacity was correct."
As is often the case, the adoption of a particular percentage to represent retained earning capacity is something in respect of which minds could reasonably differ.
The defendant suggests 50 per cent, the plaintiff 20 per cent, after taking into account contingencies.
I have already referred to the true nature of the exercise.
In carrying it out I am of course entitled to give due weight to my assessment of the plaintiff and his prospects.
In my view, in all the circumstances the plaintiff ought be regarded at the end of an 18 month period as having a retained earning capacity of 35 per cent.
In relation to contingencies, there is no evidence that persons engaged in the removal business do not ordinarily work to the usual retiring age of 65 years.
Reliance is placed by the defendant on the plaintiff's history of early back pain.
Mr Wong gave some evidence about that but his views were heavily hedged about, and imprecise evidence of that kind has a limited utility: see Purkess v Crittenden (1965) 114 CLR 164; Watts v Rake (1960) 108 CLR 158; Thomas v O'Shea (1989) Aust Tort Rep 80-251.
That the plaintiff experienced low back pain over a period at a young age is in the circumstances in my view simply a matter to put on the negative side when considering the question of contingencies.
It should not be overlooked that the defendant invites me to assess the plaintiff on the basis that he has an ability to do other, non‑physical work, and in those circumstances the proposition that the plaintiff would in any event have not worked to ordinary retiring age has the potential for inconsistency.
It is trite that not all contingencies are adverse, and at the time of the accident the plaintiff was still a young man, and had previously engaged in more demanding employment, so that there was at that time potential for him to engage in better paid employment in the future.
I would make a deduction of 8 per cent for contingencies: see Black v Motor Vehicle Insurance Trust (1986) WAR 32.
The loss can then be calculated as follows.
For the first period of 18 months the agreed net wage is $450 per week and an appropriate multiplier would be 74.6. After the deduction for contingencies is made the sum derived, rounded off, is $30,884.
For the second period, to age 65 years, a multiplier for the whole period is 748.4, from which must be deducted the multiplier of 74.6, which gives a multiplier of 673.8.
When that is applied to the net wage of $450 per week a sum of $303,210 is derived, or after contingencies of 8 per cent, a rounded off sum of $278,953.
After making allowance for the retained earning capacity the loss for this period, rounded off, is $181,319.
The total allowance for future loss of economic capacity is then $212,203.

Past loss of superannuation benefits

An amount of $7,846.36 was agreed by the parties as the appropriate allowance under this head.

Future loss of superannuation benefits

The defendant invited me to assess this loss at a rate of 9 per cent on the gross wage of $559 per week, and I will do that, utilising the method adopted in Jongen v CSR Ltd & Anor (1992) A Tort Rep 81-192.
The calculation itself is of course in the same form as that in respect of future loss of economic capacity, and is as follows.
The value of the weekly contribution, after deducting 30 per cent, is, rounded off, $35, and for the first period the product of that and the multiplier, less contingencies, rounded off, is $2,402.
For the second period the loss, rounded off, is $14,103.
The allowance under this head is then $16,505.

Future medical expenses

I will adopt the defendant's life expectancy figure for the plaintiff of 43.98 years, there being a stated basis for it.
The plaintiff has not made good his claim for weekly physiotherapy but is, given the support of Dr Walters, entitled to have weekly hydrotherapy taken into account.
It is likely the plaintiff will require some physiotherapy for his low back in the future.
The plaintiff will also need ongoing psychotherapy for a period, and will also need to see his general practitioner and Dr Walters periodically.
The defendant's analysis of the plaintiff's consumption of medication, set out in its schedule, was not rebutted by the plaintiff, and I will therefore use it as a guide to the cost of medication and injections that the plaintiff is likely to require in the future.
The estimates in relation to the cost of future consultations with Dr Frederick Ng and the plaintiff's general practitioner would also seem reasonable.
I think the allowance for future physiotherapy and other attendances, including hydrotherapy, treatment or medication are somewhat low, given the plaintiff's life expectancy and the existence of ongoing disabilities for which treatment is likely to be required.
It must be recognised that a prediction which is required to span a period of over 40 years is inevitably a speculative one, and at the end of the day, and after consideration of the matters in respect of which guidance can be obtained, the question is really what appears reasonable, having regard to the stricture that it is only possible to award "fair, but not perfect" damages: Luntz, Assessment of Damages for Personal Injury and Death 3 ed (1990) par 1.1.5.
I allow $20,000 under this head.

Past and future gratuitous assistance

I accept that the plaintiff was disabled for a period following his lumbar fusion and would have required a substantial level of assistance, has required assistance from his wife, father and friends in relation to some heavy tasks at his house, including lawnmowing, and has also required paid assistance with lawnmowing.
Other assistance has been provided, but that has in large measure been a sympathetic response to the plaintiff's view of himself and his incapacity, and as appears above I do not in all respects share that, whilst the medical evidence is to contrary effect.
In the circumstances, any assessment of both the loss to date and for the future can only be both broad and modest.
I allow $10,000 under this head.
In summary:
Non-pecuniary loss  $ 50,000.00
Special damages  $ 61,462.43
Past loss of economic capacity            $107,718.00
Future loss of economic capacity         $212,203.00
Past loss of superannuation benefits     $    7,846.36
Future loss of superannuation benefits $ 16,505.00
Future medical expenses  $ 20,000.00
Past and future gratuitous assistance     $ 10,000.00
$484,735.79
The plaintiff is entitled to judgment against the defendant in the sum of $484,735.