Thompson v Maylands Cement Manufacturers Pty Ltd
[2000] WADC 292
•16 NOVEMBER 2000
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: THOMPSON -v- MAYLANDS CEMENT MANUFACTURERS PTY LTD [2000] WADC 292
CORAM: COMMISSIONER REYNOLDS
HEARD: 28-31 AUGUST, 4 SEPTEMBER 2000
DELIVERED : 16 NOVEMBER 2000
FILE NO/S: CIV 1683 of 1999
BETWEEN: PETER JOHN THOMPSON
Plaintiff
AND
MAYLANDS CEMENT MANUFACTURERS PTY LTD
Defendant
Catchwords:
Damages - Liability - Whether or not an accident happened at work as alleged by the plaintiff - Fall from a industrial cement mixer causing back and back related injuries - Plaintiff not a credible witness
Legislation:
Occupational Health Safety and Welfare Act (WA) 1985
Road Traffic Act
Result:
Plaintiff's claim dismissed
Representation:
Counsel:
Plaintiff: Mr I L K Marshall
Defendant: Mr D R Clyne
Solicitors:
Plaintiff: Paul O'Halloran
Defendant: Civitella Smith
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Nil
COMMISSIONER REYNOLDS:
Introduction
The plaintiff was born on 30 October 1962 and is 38 years of age. At all material times he was employed by the defendant as a foreman/leading hand. The defendant is a manufacturer of moulded cement products including lids for telephone exchanges and concrete soakwells. The plaintiff alleges that on or about 3 July 1993 whilst acting in the course of his employment with the defendant he fell off a large cement mixer from a height of approximately eight feet and landed striking his back on a retaining wall ("the accident"). The plaintiff claims that the accident was caused by the negligence and/or breach of statutory duty and/or breach of contract of employment of the defendant, its servants or agents. The plaintiff further alleges that he sustained injuries as a result of the accident which have in turn resulted in loss of enjoyment of life and loss of earning capacity.
The defendant has pleaded that at all material times it employed the plaintiff as a labourer. It denies that the plaintiff had any accident of the sort alleged and further denies that the plaintiff has suffered injuries, loss and damage as alleged or at all. The defendant has further pleaded that if the plaintiff has sustained any injuries, loss and damage then it was caused wholly or in part by a pre‑existing degenerative condition of his back. Further and in the alternative the defendant has pleaded that if the plaintiff has sustained any injuries, loss and damage then it was caused wholly or in part by his own negligence. Therefore both liability and assessment of damages are in issue in this particular case.
The accident and alleged breaches by the defendant as pleaded
At the commencement of the hearing counsel for the plaintiff sought to amend par 5 of the statement of claim which set out how the accident occurred. Counsel for the defendant did not oppose the amendment but commented on the differences between the particulars of the accident as initially pleaded with those in the proposed amendment. The plaintiff was given leave to amend par 5 of his particulars of claim and it was made clear that the defendant denied par 5 of the statement of claim as amended. Prior to amendment par 5 provided as follows:
"On or about the 3rd July 1993 whilst acting in the course of his employment with the Defendant the Plaintiff was climbing into a large mixer when he fell from a ladder located inside the mixer. He fell from a height of approximately 8 feet and as he fell he struck the hydraulic arm of the mixer. The Plaintiff landed on the left side of the small of his back in a pile of sand in which there were three sleepers ('the accident')."
Paragraph 5 as amended provides that:
"On or about the 3rd July 1993 whilst acting in the course of his employment with the Defendant the Plaintiff was climbing down a ladder which stood at the back of a mixer. The Plaintiff proceeded to transfer onto a hydraulic arm of the mixer arm which was approximately 10-15 mm wide when he fell backwards from a height of approximately 8 feet and landed in a position where he struck the lower part of the back on a three sleeper high retaining wall which was used to contain the sand ('the accident')."
In reference to "mm" in par 5 as amended should perhaps be "cm" but nothing turns on this.
Paragraph 6 of the plaintiff's amended statement of claim provides inter alia:
"The accident was caused by the negligence and/or breach of statutory duty and/or breach of contract of employment of the Defendant, its servants or agents.
Particulars of Negligence
The Defendant, its servants or agents were negligent in that they:
(a)failed to institute a safe system of work by ensuring ease of access to and from the mixer and by failing to ensure that the ladder was not too close to the hydraulic arm of the mixer and that it was bolted to a fixed point
(b)exposed the Plaintiff to a foreseeable risk of injury by requiring the Plaintiff to climb an unstable ladder
(c)failed to provide any assistance to the Plaintiff to effect the task at hand
(d)failed to devise a system of work which did not expose the Plaintiff to a risk of injury
(e)exposed the Plaintiff to a risk of injury of which it knew or ought to have known
(f)failed to warn the Plaintiff of the dangers associated with the work that he was required to perform."
Paragraph 6 of the plaintiff's amended statement of claim also provides that the defendant breached the Occupational Health Safety and Welfare Act (WA) 1985 by failing to provide and maintain a working environment in which the plaintiff was not exposed to hazard. The plaintiff also alleged that the defendant breached the terms of an employment contract between him and the defendant. I do not propose to set out the particulars of the alleged breaches of statutory duty and the employment contract. Broadly speaking the key issues are whether or not an accident actually occurred and if so then whether or not the defendant has breached its duty to the plaintiff by exposing him to a foreseeable risk of injury in the circumstances.
At the outset I wish to state that on my assessment of all of the evidence, in this particular case I need go no further than consider the first of these two mentioned issues because I have such a negative view of the plaintiff's credibility.
The plaintiff's pre accident history
The plaintiff was born in Western Australia and did his schooling at the John Forrest Primary School and the John Forrest High School. He left school about halfway through Year 10. When he was about 9 or 10 years of age he spent about 12 months at the Castledare Boys' Home. During his early teenage years he got into trouble for one reason or another for which he spent some time at Longmore, a secure facility for young boys.
After the plaintiff left school he travelled back and forth between Perth and the eastern states and worked on building sites with his father. When the plaintiff was about 20 years of age he moved to Mount Isa in Queensland where he worked as labourer at a copper smelter. He worked his way up to become an instructor and then a job shift foreman. Some of the work he did included using a jack hammer to break and remove bricks from inside a converter. The plaintiff left Mount Isa in 1983 and thereafter worked as a labourer or leading hand with a number of different employers. He commenced working for the defendant in 1991.
The construction of the mixer and the plaintiff's versions of the accident
The plaintiff's duties with the defendant required him to make a concrete mix in a large mixer. The mix was then used to fill moulds to produce a variety of pre‑cast concrete products. The plaintiff also drove a forklift and emptied and cleaned moulds.
The mixer was a very large piece of industrial equipment. There are several photographs in evidence of the same type of mixer used by the defendant. The horizontal drum mixing bowl of the mixer is housed in a rectangular steel girder‑like frame. The photographs show that the framework stands about 3 metres high, about 1½ metres deep and about 2½ to 3 metres from side to side. The mixing bowl is housed in the top half of the framework and is about 1½ metres in diameter. It is no doubt rotated by a motor of some sort. Within the bottom half of the framework is clear space. This enables a forklift carrying a large bucket in front of it to drive towards the mixer from behind and position the bucket underneath the mixing bowl for the concrete mix in the bowl to be dropped into when the mix is completed. The forklift would then reverse away from the mixer and take the bucket full of mix to wherever the mix is put into the moulds.
A vertical ladder was positioned on the front of the framework of the mixer housing. On a front view of the mixer the ladder could be seen standing against the front of the framework and positioned to the left hand side of the mixing bowl. There is an issue on whether the ladder was welded or tied in place. The plaintiff said that it was tied in place and removed when safety inspectors came to inspect the factory and later replaced after the inspections. I do not accept that to have been the case. In any event he said that it was always there when he worked on the mixer.
Two hydraulic arms about 2½ metres long protrude forwards from the outsides of the framework, one from each side. The fulcrum points of both hydraulic arms are positioned on the back part of the framework and about 5 five feet from the factory floor. These arms protrude about a metre or so in front of the framework of the main body of the mixer. A crossbar made of 100 mm diameter pipe runs across the front of the mixer connecting the two front ends of the hydraulic arms.
Two arms about 1 metre long protrude from the crossbar at a slight angle forwards and towards the floor. One of these arms protrudes from about one quarter of the way along the crossbar and the other from about three quarters of the way along the crossbar. These arms hold a large rectangular shaped bucket which is known as a hopper. The front or leading edge of the top of the hopper has a lip on it. When the hydraulic arms were in the down position the floor of the hopper was close to ground level and the lip rested on wooden sleepers. In the same down position the lip on the front of the hopper was about two foot from the factory floor and the crossbar was about four foot above the factory floor.
As I understand the evidence a sandpit bordered by old wooden railway sleepers stacked three high on their side was positioned in front of the mixer and the lip of the hopper rested on the top of the sleeper wall closest to the front of the mixer. This sleeper wall was about two metres long beyond each side of the lip of the hopper. This pit type set‑up bordered by the wooden sleepers was divided into two halves by another row of sleepers positioned down the middle so that if you stood behind it and looked towards the front of the mixer there was sand in that half of the pit on the left and stones in that half of the pit on the right. A mix consisted of three scoops of sand, two scoops of stones and one bag of cement. Water was added when the mix was in the mixing bowl.
When the hopper was filled with the ingredients making up the cement mixture the hydraulics would be operated to raise the hydraulic arms and thus the hopper so that the cement mixture would empty by gravity from the hopper into the mixing bowl. The defendant gave evidence that after the mix was emptied from the hopper into the mixing bowl the hydraulic arms were kept in the up position and he would climb the ladder to check the mix and turn on the water which flowed into the middle of the mixing bowl. He said that he would then go down the ladder and operate the hydraulics to bring down the hydraulic arms so that the lip of the hopper rested on the wooden sleepers. He would then start to put another mix into the hopper while the mixing bowl was still rotating the mix that had just been emptied into it.
When the hopper was in the down position resting on the wooden sleepers the hydraulic arms and the crossbar prevented ready access to the ladder by the operator if the operator was on the outside of the mixer having just filled the hopper or whatever. For the operator to access the ladder when the hopper was down he would have to stoop down to get under one of the hydraulic arms and the crossbar. Therefore to check the mix in the mixing bowl when the hopper was in the down position the plaintiff chose to step up onto the hydraulic arm and from there across to the top part of the ladder and from there up the ladder. To get back to the factory floor he would go down from the top part of the ladder and then step onto the hydraulic arm and then to the corner of the hydraulic arm and crossbar and jump into the sandpit. The plaintiff gave evidence that it was necessary for him to go to the top of the ladder when the mixing bowl was rotating to trowel the mix so that all of the cement and sand got wet. He also said that sometimes it was necessary to add more mix if the mix already in the bowl was too wet. He said that he had to check the water about three to four times per mix and sometimes more.
The plaintiff gave evidence that the mixer was positioned on a side of the factory shed which was completely open to the outside and that only the forward part of the hydraulic arms and the hopper were covered by the shed roof. The plaintiff said that while it was not raining at the time of the accident the hydraulic arms were wet from rain earlier in the day. If this was so then it was likely that wind blew some of the rain under the shed roof.
The plaintiff described the accident as follows. The hopper was in the down position and he was coming down from the top of the ladder having just checked the mix in the mixing bowl. He stepped off the ladder and put his left foot onto the hydraulic arm on the left side of the mixer as you look at the mixer from the front. He then put his right foot on the corner where the crossbar joined the hydraulic arm. He says that he was in this position and ready to turn when he slipped backwards. He said that the bar that he slipped from was smooth because he had walked up and down it so often with his boots on that the paint had come off and the surface had become smooth.
During the plaintiff's examination‑in‑chief he was asked and said:
"Yes? --- I landed on my - from the back - from the bottom of my bum, well, say from the top of my bum here to my shoulders here were flat on my back from the lip of the hopper - you see in photograph 5 on the left‑hand side the lip on the end of the hopper.
If you would hold it up to his Honour, yes? --- On the lip there.
Yes? --- From there back.
Right? --- From where that lip is my feet went down into the pit. It's right where the lip is on the corner there, but I landed next to it, here sort of thing. See where the corner is, straight down there I went.
You mean straight down from the corner you're indicating? --- Of the left‑hand side, yeah. I went straight down there.
Immediately prior to having this accident what had you been doing? --- I was coming down after checking the mix. I was coming down off the hopper - off the ladder.
What was the position of the hydraulic arm? --- It was down at the time. I had a mix in ready to go in.
Approximately what distance did you fall? --- I'd say - I'm not sure - a metre, 2 metres. It was from there to the bottom.
What did you land on? --- This half up landed in the sand and I winded myself and this half here, about this much on my back, the bottom half of it, landed right on the sleepers and my feet went down the pit, dangling like this. I sort of got bent this way, not forward.
You're referring to how many centimetres of your back, the lower part of your back? --- If I could - from here up was in the sand and from here to here hit the sleepers.
The lower back hit the sleepers and the mid to upper back hit the sand? --- Sort of on my bum. It was just around here."
Photograph 5 is a view of the front of the same type of mixer taken by a person standing several metres directly in front of the mixer and it shows the hydraulic arms and hopper as I have previously described. When the plaintiff gave the evidence which I have just set out he physically pointed to that part of his buttocks just below the top of the hip as being that part of his body which landed on the sleepers.
The plaintiff also gave evidence that: "I believe it (the accident) was between the 20th June 1993 and the 3rd July 1993." He said that he believes this to be the case because it was about a week or few days after he injured himself in the accident that he hurt his finger at work and went to see Dr Atlas at the Mirrabooka Medical Centre about his finger. He said that he spoke to Dr Atlas about both his finger and the accident. He believes that he saw Dr Atlas on about 7 July 1993.
In the plaintiff's affidavit sworn on 2 October 1998 in support of his application for leave to commence this action he made the following statements on the timing and circumstances of the accident:
"3.On or about the 3rd July 1993 I injured my lower back whilst working as a Foreman and Leading Hand with the Defendant. I mistakenly told my Solicitor and the Doctors that my accident occurred on or about the 20th June 1993. However, on searching my records I believe it was approximately the 3rd July 1993.
4.The circumstances of this accident are that I was climbing into a large mixer and fell off the ladder which was inside the mixer from a height of approximately 8 feet. As I fell I hit a hydraulic arm and then landed in a pile of sand in which there were three sleepers."
In a report dated 8 August 1997 Professor Harper, an occupational and public health physician, set out the description of the accident given to him by the plaintiff as follows:
"On 20.6.93 he fell backwards from a height of approximately 8 ft, landing on his feet and falling backwards knocking his lower back against a low wall and hyper-extending his back."
In a report dated 21 August 1997 Mr Watson, a neurosurgeon, set out the description of the accident given to him by the plaintiff as follows:
"Mr Thompson provided me with the history that in the context of his working as a labourer with Maylands Cement he was climbing into a large mixer and fell off a ladder which was inside the mixer from a height of at least 2 metres. As he fell down he hit a hydraulic arm and then landed in a pile of sand in which there were three sleepers. He fell onto his left side and small of back and complained immediately of lower back pain and left leg pain and pain radiating into his buttock."
In a report dated 6 November 1998 Dr Home, an occupational physician, set out the description of the accident given to him by the plaintiff as follows:
"Mr Thompson does recall that he worked as a leading hand and labourer with Maylands Cement between 1990 and March 1995. He recalls that some time in June 1993 he suffered an injury to his lower back. When I advised that his first radiographs were taken on 6 July 1993 (this is evident from the date on the films) he recalled that his accident must have occurred on 3 or 4 July 1993.
He recalls that he fell backwards whilst descending a ladder after checking water and mixture in a concrete mixer. He placed his left foot on a hydraulic arm and it slipped. His buttocks landed in sand and he recalls that he was in a semi‑reclined position. His feet and legs were below his buttocks dangled over some steps.
He states that he took a deep breath, his boss came around the corner and saw him lying down and he advised the boss what happened."
The plaintiff attended on Mr Edibam, an orthopaedic surgeon, for assessment on 21 August 2000. In a report dated 23 August 2000 Mr Edibam set out the history given to him by the plaintiff. Mr Edibam initially referred to the plaintiff having attended on a general medical practitioner, Dr Atlas, in 1992 for aching in both legs. Mr Edibam then set out the description of the accident given to him by the plaintiff as follows:
"Mr Thompson's symptoms improved after a few weeks and there were no further complaints until 3 July 1993 when he fell backwards from a mixing machine as he was descending a ladder but with his right foot on an hydraulic arm. He slipped on his right foot, then landed on his buttocks and back, hitting a number of wooden sleepers.
As he was lying on his back with his legs dangling, Mr Thompson was noticed by his manager, who helped him to stand and advised him to attend a medical practitioner."
The plaintiff was cross-examined on the differences between his description of the accident in his affidavit filed in support of his application for leave to commence proceedings and as initially pleaded in his statement of claim on the one hand and as pleaded in his amended statement of claim and in his evidence-in-chief on the other. He said that the first description was "just a little bit out" and that his current description is "more detailed".
In my opinion the plaintiff's current description of the accident is significantly different in material respects to his initial description. He no longer says that he fell from the ladder. He says that he slipped and fell from the hydraulic arm. He no longer says that he hit his back on the hydraulic arm as he fell. His initial description was that he landed on his back in a pile of sand in which three sleepers were located and he now says that his lower back struck the sleepers when he landed.
During cross-examination the plaintiff said that the reference to the height of eight feet was "just a guess" on his part. It seems to me that it would have been possible to fall from a height of eight feet if you fell from the ladder but not if you fell from the hydraulic arm. The plaintiff agreed in cross‑examination that the hydraulic arm would have been equivalent to about his shoulder height above the factory floor. He said that he is about five foot seven inches or five foot eight inches tall.
The photographs in evidence of the same type of mixer show that each hydraulic arm of the mixer would have tilted slightly downwards from the fulcrum point on the side of the main housing of the mixer when the hopper was in the down position. They also show that the end of the hydraulic arm nearer to the fulcrum point would have been about four foot or so above the factory floor. I have referred to the height at the fulcrum end because the plaintiff mentioned that the floor area underneath the hopper when it was in the down position had been built up. I seriously doubt that any such build up would have caused the hydraulic arms to be above the horizontal position when the lip of the hopper rested on the wooden sleepers.
The plaintiff worked on the mixer for a number of years and would have been very familiar with its relative dimensions. He would have stood by the hydraulic arms repeatedly each day and day after day for a number of years. I have no doubt that he would have had a very good idea of the height of the hydraulic arm above the factory floor by simple reference to his own body height and having regard to what part of his body was level with the hydraulic arm when he stood beside it. There is simply no room for him to have honestly and/or reasonably believed that the hydraulic arm would have been more than two feet above his head when he stood beside it. I have no doubt that the plaintiff knew well before he commenced any legal proceedings in relation to the accident that the hydraulic arms were not as high as about eight feet above the factory floor.
Bearing in mind the relative positions of the various parts of the mixer and in particular bearing in mind the position of the ladder with the hydraulic arms, the crossbar and the hopper and also that the sand pit was in front of the hopper and well forward of the ladder, on my assessment it is extremely unlikely that the plaintiff could or would have fallen from the ladder and into the sand pit. On my assessment, if the plaintiff fell from the ladder as he initially described then he would most likely have fallen into the space bordered by the front of the main housing of the mixer, the hydraulic arms and the crossbar joining the hydraulic arms and not into the sand pit. The plaintiff's changed description of the accident positioned him near the join of the hydraulic arm and the crossbar and much closer to the sand pit so as to make falling into the sand pit a real possibility.
Evidence of the plaintiff and other witnesses at the work place concerning an accident
The plaintiff gave evidence that he was working alone on the mixer when the accident happened and so no one else observed it. He gave evidence that shortly after the accident one of his employers "came round the corner when I was lying flat out on my back". He identified this person as Peter Swan ("Mr Swan") and said that he was the son-in-law of Bob Harris ("Mr Harris") who was the owner of the company. The plaintiff said that Mr Swan worked every day and that Mr Harris worked about once a week or once a month.
The plaintiff gave evidence that he continued to work after the accident. He said that he did not work on the mixer for about two weeks immediately after the accident. He said that another employee, Mark Pearce ("Mr Pearce") worked on the mixer during this time. The plaintiff gave evidence that thereafter he occasionally worked on the mixer but "most of the time I was training up the new fellows on the mixer". The plaintiff gave evidence that before the accident he did an average of 25 to 30 mixes a day. He said that after the accident he probably did six mixes a day and sometimes none at all. He said that it all depended on who was working on the mixer at the time. He said that he reduced the amount of work he did on the mixer because "my back was killing me".
The plaintiff gave evidence that after the accident he hired and fired people working at the factory. He said that after Mr Pearce left he employed Bruce Lyndsey ("Mr Lyndsey") to work on the mixer. He said that when Mr Lyndsey left he employed a person named Ian Pearce to work on the mixer and then again when Ian Pearce left he employed a person named Leonard to work on the mixer. The plaintiff gave evidence that while each of these other people worked on the mixer his duties included driving the forklift, preparing and cleaning the moulds, cutting wire, doing the wages and organising stock. He also gave evidence that between June 1993 and June 1994 he did the paperwork to record the number of mixes each day and the hours of work of other employees. He said that Mr Swan took the time sheets home for his wife to do the wages. The plaintiff's employment with the defendant came to an end on or about 23 March 1995.
Mr Pearce gave evidence that he has known the plaintiff for about 14 years. He said that he had not seen the plaintiff for the last seven years because he has been working away from Perth. Mr Pearce gave evidence that the plaintiff arranged for him to work with the defendant in May 1993. He said that he was required to empty and clean moulds, make mixes occasionally and anything else he was told to do. Mr Pearce said that prior to the accident the plaintiff generally made all the mixes. He also gave evidence that he hardly ever saw Mr Harris at the factory. He said that the ladder was welded to the top of the framework and tied at the bottom.
Mr Pearce gave evidence that one day in June 1993 Mr Swan told him to help the plaintiff because the plaintiff had come off the mixer. Mr Pearce said that for the balance of that day he and the plaintiff each made a few mixes. He said that the plaintiff "didn't incapacitate himself, if you know what I mean. He'd hurt himself, took a little bit of time to rest and seemed to be okay but not ‑ just to take it easy.".
Mr Pearce gave evidence that he stopped working for the defendant on 17 July 1993 and began to receive workers' compensation payments in connection with a neck injury. He gave evidence that he worked daily with the plaintiff from the date of the accident until he left on 17 July 1993. He also gave evidence that after the accident the plaintiff continued to work on the mixer and that he also did mixes depending on how the plaintiff felt. He said that "some days I wouldn't do any because he'd be fine but some days I'd do a couple because he wouldn't be fine.". He also said that after June 1993 he might have done two or three mixes each day.
During cross-examination Mr Pearce said that he was first asked to give evidence on the Friday of the week before the trial. During Mr Pearce's evidence-in-chief he said that he believed that his neck or back injury resulted from heavy lifting and jumping off the mixer into the sand pit. During cross‑examination he agreed that he made a statutory declaration in support of his claim for workers' compensation in which no mention was made of him working on the mixer. Mr Pearce said that the reason for such omission was that he made the statutory declaration when he was in hospital and on drugs. After further cross-examination and when it was put to him that he did not jump off the mixer he said "no, most probably no, then I didn't.".
Mr Pearce gave evidence during cross-examination that after he hurt his own back he did not help the plaintiff with any mixes. With the assistance of his statutory declaration in support of his application for workers' compensation he agreed that he attended on a medical practitioner on 9 July 1993 complaining of a sore lower back. Putting the two together he would not have done any mixes after 9 July 1993. This is clearly inconsistent with his earlier evidence that after June 1993 he might have done two or three mixes each day.
Mr Pearce gave evidence that on 9 July 1993 before he went to see a medical practitioner about his back the plaintiff showed him some tablets and said that they eased back pain. Mr Pearce said that he had seen the plaintiff taking tablets prior to that date. When it was put to Mr Pearce that the plaintiff would have got some tablets from Dr Atlas only a few days before on 5 July 1993 he said that the tablets he had seen the plaintiff taking must have been old tablets.
Mr Lyndsey gave evidence that he has known the plaintiff for about eight or ten years. He first met the plaintiff at a hotel. He said that the plaintiff hired him to work with the defendant. Mr Lyndsey was generally vague. During his evidence-in-chief he said that he was not sure when he stopped working for the defendant but thought it was in about 1995. In cross‑examination he agreed that he worked for the defendant from 17 October 1994 to 22 December 1994. He also agreed that he had a few days off during this time and that he worked under a false name.
Accepting that Mr Pearce stopped working for the defendant on 17 July 1993 and that Mr Lyndsey started on 17 October 1994 the plaintiff's evidence that he employed Mr Lyndsey to work on the mixer after Mr Pearce left is simply not true.
Mr Lyndsey gave evidence that he "did a fair bit" of the mixing work when he was employed by the defendant. He said that the plaintiff did "a couple of hours a day maybe" of mixing work. He said that the plaintiff drove the forklift around and told other employees what to do. He said that the plaintiff did not do a lot of heavy lifting or anything like that. Mr Lyndsey also said that Mr Harris was only at the factory on a couple of days a week and that on occasions Mr Harris mentioned to him that the plaintiff's back was "knackered".
During cross-examination Mr Lyndsey gave evidence that he had a number of jobs, quite a few of which involved heavy work, at about the time he worked for the defendant. When asked whether it was fair to say that he had very little recollection of exactly what he did when he worked for the defendant he said "I was going through a bad time at the time. I was going through a divorce …". He also indicated that he was drinking alcohol heavily at the time.
Frank Steven Osborne ("Mr Osborne") has known the plaintiff for about 15 to 20 years. He said that the plaintiff "more or less got me the job" at the defendant's factory. He said that he worked with the defendant from November/December 1991 until early January 1992. He did general labouring work including putting moulds on the racks to dry, cleaning up and driving a forklift.
Mr Osborne said that the plaintiff mainly worked on the mixer. He also said that he did not observe the plaintiff having any difficulties when working on the mixer. He said that he regarded himself as a hard worker and that the plaintiff was better than him.
Mr Harris is the managing director of the defendant company and commonly regarded as the owner of the business. He said that he started the business from scratch about 27 to 30 years ago. He said that the plaintiff worked for the defendant for about five or six years. He said that the plaintiff was employed as a general hand and did most of his work on the mixer. He described the plaintiff's work performance as excellent. He said that he worked three or four days a week when the plaintiff worked for him.
Mr Harris gave evidence that the top and bottom of the ladder were welded to the frame of the mixer. He also said that no one had ever reported falling off the ladder or off the mixer. He also said that he sold the mixer (the mixer used in June/July 1993) and bought a new one about seven years ago. He said that the plaintiff was still working for him when he bought the new mixer.
Mr Harris gave evidence that the plaintiff kept a note of the number of mixes done each day in an exercise book. He said that the plaintiff did not keep time records. He said that Mr Swan and his daughter (Mr Swan's wife) did. During cross-examination he rejected the suggestion that Mr Swan had a learning difficulty which would have prevented him from doing the time records. When timesheets were put to Mr Harris during cross-examination he identified the handwriting on them as his daughter's.
Mr Harris said that he never had a discussion with the plaintiff about the plaintiff's back. He said that the first he heard of the plaintiff having a bad back was when the plaintiff commenced proceedings against the defendant for unfair dismissal. As I understand it these proceedings were commenced sometime in 1995 after the plaintiff stopped working with the defendant in March 1995. Mr Harris said that it was not until a couple of years after the unfair dismissal proceedings that he first became aware of the plaintiff alleging that he fell off the mixer. He said that he became aware from the contents of a letter received from the plaintiff's solicitors.
Mr Harris gave evidence that there was no agreement between him and the plaintiff in or about June/July 1993 that the plaintiff would not go on workers' compensation. He also said that he never had a conversation with the plaintiff in which he said compensation would be there whenever the plaintiff needed it.
Mr Harris gave evidence that he recalled Mr Pearce working at the factory. He said that he never put Mr Pearce on the mixer because the plaintiff had hurt his back.
Mr Harris gave evidence that usually about 14 or 15 mixes were made each day. He said that it could have been as high as 20 mixes in a day if they were busy. In cross-examination it was put to Mr Harris that after the plaintiff told him that he had hurt his back in an accident the plaintiff ceased to work to the level that he once did. Mr Harris replied that the plaintiff "continued to work normal conditions until the day he left.". Mr Harris also gave evidence that the business was only small and there was not enough work for a permanent forklift driver. He also said "there's no light duties in a cement yard".
Mr Harris gave evidence that he continued to have an excellent relationship with the plaintiff to the time that the plaintiff stopped working with the defendant. He said that the plaintiff was not dismissed and that he had no idea why the plaintiff suddenly left.
During cross-examination Mr Harris agreed that there were occasions when the plaintiff worked for the defendant that he received pay under a false name. Two false names were used. He gave evidence that this happened as a result of an approach or approaches from the plaintiff.
Mr Swan is a son-in-law of Mr Harris. He started work with the defendant at the cement factory in 1983. He said that he runs the company on a day‑by‑day basis. In cross-examination he agreed with the proposition that Mr Harris could work as little as one day a week or as much as four days a week. He said that he employed the plaintiff in about 1990 as a general labourer and that the plaintiff later became his right hand man and worked on the mixer. He described the plaintiff as an excellent worker.
Mr Swan said that he never saw the plaintiff having to pick himself up from the sand pit in front of the mixer. He also said that the plaintiff never told him that he had fallen from the mixer. He also said that he never received any complaints about the ladder or the mixer from the plaintiff. He could not recall whether the ladder was welded or bolted to the mixer but said that it was never removed when the plaintiff worked for the defendant.
Mr Swan gave evidence that when the plaintiff worked for the defendant the only injury he was ever aware that the plaintiff suffered was an injury to his finger. He said that he first became aware of an allegation by the plaintiff that he had fallen off the mixer when he received a letter from the plaintiff's solicitor in relation to this particular claim. Mr Swan gave evidence that he did not observe the plaintiff have any difficulties at work from the time the plaintiff arrived until the time he left. In cross‑examination he rejected the proposition that after June/July 1993 the mixing work was shared around rather than as before when the majority of it was done by the plaintiff.
During cross-examination Mr Swan rejected the suggestion that the defendant came to rely heavily on the plaintiff. He agreed that the plaintiff kept a record of the number of mixes done each day. He said that there were times when the plaintiff noted the hours of work by other employees. He rejected the proposition that bookwork was not one of his strengths and indicated that there were times when he noted the hours employees worked. He identified the handwriting on timesheets shown to him as being that of his wife. I should add at this point that Mr Swan did not present as a person with any learning difficulty.
Mr Swan gave evidence that he did not know why the plaintiff decided to stop working with the defendant. He said that the plaintiff telephone him on a Tuesday and told him that he was finishing up at the end of the week and asked to have his money ready. Mr Swan said that he did not ask the plaintiff why he was leaving and that the plaintiff did not tell him why he was leaving. Mr Swan said that the plaintiff subsequently commenced proceedings against the defendant for unfair dismissal. He said that the plaintiff was not sacked.
Mr Swan gave evidence that the plaintiff did not report an accident to him in June/July 1993. He said that no other workers were told to assist the plaintiff with his duties at or from that time. In particular he said that he did not tell Mr Pearce to do the heavy work because the plaintiff had a bad back. He also said that he did not hear Mr Harris tell Mr Lyndsey to do heavy lifting because the plaintiff had hurt his back. Mr Swan also gave evidence that he was not aware of the plaintiff aggravating a back injury by falling into the sand pit in 1995.
During cross-examination Mr Swan agreed that there were occasions when the plaintiff was paid under false names. He said that the plaintiff asked for his wages to be paid in false names because he was having trouble. Mr Swan did not know what the trouble was but said that the defendant had received a few letters from the collector of maintenance in relation to the plaintiff. He said that he and Mr Harris agreed to pay the plaintiff using false names for a short period of time so that the plaintiff would not leave.
Bradley Thompson ("Mr Thompson") is the younger brother of the plaintiff. He did not work with the defendant and so he was not privy to any occasion involving the plaintiff falling from a mixer.
Mr Thompson said that in about 1993 when the plaintiff separated from his wife the plaintiff moved in to live with him in Bassendean. The plaintiff gave evidence that he separated from his wife about three to six months after he says the accident occurred. Mr Thompson said that towards the end of 1994 the plaintiff moved to a place in Stuart Street which was much closer to the defendant's factory. Mr Thompson also said that sometime before the end of 1994 he commenced living with his brother at the place in Stuart Street.
Mr Thompson gave evidence that when he first moved in with the plaintiff at Stuart Street the plaintiff "was working and everything went fine and then suddenly he's just started deteriorating about 95. I was only there for about probably two months before he started, you know, complaining about his back and the pain.". Mr Thompson added that at this time he was using Panadeine Forte tablets prescribed for him by Dr Connolly and that the plaintiff kept asking him for some of his tablets. He said that he gave the plaintiff some tablets every now and then. Mr Thompson gave evidence that it was probably eight months before he moved into the place at Stuart Street that he first gave the plaintiff some of his tablets for pain relief. He agreed that he first started giving the plaintiff tablets in late 1993 but added that it would only have been "once in a blue moon". He said that he was not aware of the plaintiff getting his own medication before 1995. Mr Thompson was being prescribed Panadeine Forte at the time in relation to a hip replacement.
I find that both Mr Pearce and Mr Lyndsey were unreliable witnesses and where their evidence and the evidence of the plaintiff conflicts with the evidence of Mr Harris and Mr Swan I prefer and accept the evidence of Mr Harris and Mr Swan. I accept Mr Osborne as a reliable witness but given the very short time that he worked for the defendant and observed the plaintiff his evidence is of no real significance when considered with the evidence as a whole. I find that Mr Thompson did his honest best when he gave his evidence. It should be noted that he gave evidence on a limited range of issues and that he was not privy to any accident or the reason why the defendant did or did not do things of a domestic nature when living at the place in Stuart Street.
In particular I find that there was no appreciable difference in the amount of work the plaintiff did on the mixer after June/July 1993 compared to the amount he did before. I do not accept that he primarily performed light duties after June/July 1993. Even accepting that he did some paperwork namely noting the number of mixes and occasionally recording other employee's working hours and that he also drove a forklift, these duties would not have taken up much time and further and in any event I do not think that they would have taken up any more time after June/July 1993 than they did before.
I accept that the plaintiff had some back pain from July to October 1993 which was treated by medication and physiotherapy. It does not necessarily follow from this that the plaintiff had an accident at work in June/July 1993 as alleged by him. This evidence needs to be considered in light of the evidence as a whole. The plaintiff had complained of back pain in 1990, 1991 and 1992 and he also had a history of back pain before then, his pathology at L4/L5 suggests an injury before June/July 1993, he continued to work on the mixer after June/July 1993 and he sought no treatment at all from October 1993 to March 1995. In addition to all of this the plaintiff lacks credibility. An accident does not need to occur for a worker with a history of back pain who is continuing to do heavy work to suffer from a flare up of back symptoms.
Absence of complaint of an accident to medical personnel
The plaintiff consulted Dr Atlas, a general medical practitioner, at the Mirrabooka Medical Centre on 5 July 1993. Dr Atlas gave evidence that on this occasion the plaintiff complained of a painful left middle finger. He said that the plaintiff told him that he had dropped a slab of concrete on his finger three months prior to the consultation. Dr Atlas also said that during this consultation the plaintiff told him that he had suffered from back pain for the previous 12 months and pain down his left leg. Dr Atlas arranged for x-rays to be taken of the plaintiff's finger and saw the plaintiff again on 8 July 1993 when the x-rays were available. The consultation on 8 July 1993 mainly concerned the plaintiff's finger and there was only a brief discussion regarding treatment options for the plaintiff's back. Dr Atlas gave the plaintiff some samples of anti‑inflammatory medication for pain relief.
Dr Atlas gave evidence that he saw the plaintiff again on 22 July 1993 and on that occasion the plaintiff told him that "his back was killing him". He assessed the plaintiff as having mechanical back pain and referred him for physiotherapy. He said that the plaintiff returned in September 1993 and asked for a repeat prescription of Panadeine Forte and stated that he was attending physiotherapy. Dr Atlas did not see the plaintiff again until 23 March 1995 when the plaintiff consulted him at the Camboon Medical Centre.
Leanne Roddy ("Ms Roddy") is a physiotherapist. In 1993 she worked at the Osborne Park Hospital which was part of the North Metropolitan Health Service ("the Health Service"). She gave evidence that she treated the plaintiff on six of the 10 occasions he attended the Health Service for treatment. She said that she conducted the initial assessment of the plaintiff on 7 September 1993 which included taking a history from the plaintiff. She said that the plaintiff told her on 7 September 1993 that approximately eight to nine months earlier he sustained an injury at work which had gradually worsened over the following three months to the point where it was interrupting his sleep and resulting in pain radiating down his leg. She said that the plaintiff also told her that he had no past history of back injury prior to this specific incident. The plaintiff told Ms Roddy that the pain radiating into his groin and posterior thigh had been present for the previous one to two months before the initial appointment. It seems on the evidence that Ms Roddy focussed her treatment of the plaintiff to the L3/L4 area and the left sacroiliac joint. The plaintiff's last attendance at the Health Service for treatment was on 25 October 1993. The notes on the plaintiff at the Health Service indicate that the plaintiff said on this last occasion that he was "going up north to work".
I consider it significant that the plaintiff made no complaint at all about any accident at work in June/July 1993 when he attended on Dr Atlas, Ms Roddy and other physiotherapists at the Health Service in July to October 1993. Indeed the histories given by the plaintiff were inconsistent with any accident having occurred in June/July 1993.
When the plaintiff saw Dr Atlas on 23 March 1995 he complained of back pain. He told Dr Atlas that he had done something to his back on the previous Saturday and that he had not been to work since the previous Tuesday. Dr Atlas prescribed some anti-inflammatories and certified the plaintiff unfit for work. The plaintiff saw Dr Atlas again on the following day, 24 March 1995, complaining of pain. He told Dr Atlas that he had an accident at Mount Isa when he was 21 years of age and injured his back when operating a jack hammer. He also told Dr Atlas that "he had been okay until 1993, again after which his back had settled".
The plaintiff did not tell Dr Atlas that he had been injured at work in 1993. Further, the plaintiff did not tell Dr Atlas on 23 or 24 March 1995 that he had hurt his back on the previous Saturday in an accident at work. He did not give Dr Atlas any details on how he had hurt his back.
Because Dr Atlas did not believe the plaintiff's back pain to be work related, on 24 March 1995 he made out a sickness benefit certificate rather than a first medical certificate for a workers' compensation claim. The plaintiff attended on Dr Atlas again in May and June 1995 to obtain more Panadeine Forte and made no mention of any accident at work. On 27 June 1995 Dr Atlas made out a further sickness benefit certificate because the plaintiff continued to complain of back pain. Thereafter the plaintiff did not attend on Dr Atlas again until 16 June 1998.
The plaintiff attended on Dr Sam, a general medical practitioner on 5 April 1995 complaining of back pain. After examination Dr Sam prescribed Panadeine Forte for pain relief. The plaintiff also attended on Dr Sam on 17 May and 15 June 1995 complaining of back pain. It can be noted that the plaintiff was attending on Dr Sam and getting Panadeine Forte for back pain at the same time that he was attending on Dr Atlas to obtain Panadeine Forte for back pain.
Dr Sam gave evidence that his notes were not as thorough as they otherwise would have been because the plaintiff did not indicate that his back pain was work related. He said that the plaintiff first indicated that his back pain was accident related on 6 February 1996. However even on that occasion the plaintiff made no mention of any accident at work in June/July 1993 or March 1995 and gave no details on how any accident occurred. The plaintiff saw Dr Sam again on 19 February, 16 March, 26 March and 28 March 1996 complaining of back pain and on at least one occasion was given a prescription for more Panadeine Forte.
The plaintiff attended on Dr Connolly at his Inglewood practice on 11 occasions from 21 March 1995 to 31 January 1996 inclusive. The plaintiff complained to Dr Connolly of low back pain and pain radiating into his right buttock. I will refer to the plaintiff's pathology later but suffice to say at this point that right buttock pain could not be caused by any accident in June/July 1993 as described by the plaintiff because even on his version he landed on the region of his left buttock. Dr Connolly said that the plaintiff initially consulted him to get Panadeine Forte. On later occasions Dr Connolly treated the plaintiff with Naprosyn suppositories, Doloxene and Endep.
During the time that the plaintiff attended on Dr Connolly he made no mention at all to Dr Connolly of any accident at work in June/July 1993 or March 1995 or at any other time at work. As a consequence Dr Connolly completed a number of Social Security certificates rather than first medical certificates for a workers' compensation claim.
Dr Connolly gave evidence that on 27 September 1995 he put it to the plaintiff that he was doctor shopping. He said that initially the plaintiff denied it but then admitted to seeing Dr Sam. Dr Connolly had recently prescribed Panadeine Forte for the plaintiff on 11 August, 16 August and 21 September 1995. He told the plaintiff that he would not prescribe him any more Panadeine Forte if he was seeing another doctor. The plaintiff attended Dr Connolly's practice again on 16 October 1995 when Dr Connolly was not there and obtained a prescription for more Panadeine Forte from another doctor. On 1 November 1995 Dr Connolly noted that the plaintiff was using heroin three times a day.
The plaintiff first attended on Dr Kennedy, a general medical practitioner, on 8 February 1996. He complained of low back pain and pain radiating down his left leg. Dr Kennedy prescribed Panadeine Forte for pain relief.
In a report dated 26 August 1999 Dr Kennedy set out that when he first saw the plaintiff in February 1996 the plaintiff complained of severe back pain that resulted from an accident in July 1993. During cross‑examination Dr Kennedy was referred to his notes made on 8 February 1996 and agreed that they made no mention at all of any accident in July 1993. Dr Kennedy indicated that he could have become aware that an accident occurred in July 1993 and referred to it in his report dated 26 August 1999 from information he had received from a specialist sometime before he completed his report on 26 August 1999 and not from the plaintiff.
The plaintiff next attended on Dr Kennedy on 18 July 1996. From 18 July 1996 to December 1996 inclusive the plaintiff attended on Dr Kennedy on 22 occasions. Dr Kennedy gave evidence to the effect that the plaintiff frequently required Panadeine Forte for back pain. He said that on 7 March 1997 the plaintiff told him that he had a problem with heroin but was no longer using it. Dr Kennedy said that if he had known that the plaintiff was using heroin he would not have prescribed Panadeine Forte for him.
The plaintiff continued to see Dr Kennedy between 1997 and 2000 inclusive. Dr Kennedy made a note on 5 May 1998 that the plaintiff told him that he had pain radiating down his left leg to his knee. I find that this is the first time that the plaintiff mentioned to Dr Kennedy that he had been involved in an accident in 1993. No circumstances of any accident were noted by Dr Kennedy.
The plaintiff was referred to the neurological department at Sir Charles Gairdner Hospital by Dr Atlas and seen by Mr Knuckey, a neurosurgeon, on 13 June 1995. He was seen by neurosurgeons on 4 July and 1 August 1995. On 11 December 1995 he was seen by the Registrar of the department of pain management at Sir Charles Gairdner Hospital. Dr Goucke is the head of the department of pain management at Sir Charles Gairdner Hospital. He first saw the plaintiff in December 1995 and thereafter treated the plaintiff until at least last year. Treatment has included various medications and a spinal cord stimulator. The plaintiff stopped using the spinal cord stimulator about two years ago. The plaintiff made no mention at all of any accident at work in June/July 1993 to Mr Knuckey, the Registrar of the pain management clinic at Sir Charles Gairdner Hospital or Dr Goucke. It seems that the first time Dr Goucke was aware that he was treating the plaintiff for a work related injury was on 16 July 1998 when a note was made that the plaintiff had made a workers' compensation claim.
The first mention in any of the medical reports and in the oral evidence of the various medical witnesses of the plaintiff telling a medical practitioner or physiotherapist of an accident at work in June/July 1993 and giving details of it is to be found in the report of Professor Harper dated 8 August 1997 and addressed to the plaintiff's solicitors. The plaintiff attended on Professor Harper on 8 August 1997. Professor Harper set out the history of the problem in his report and stated inter alia:
"On 20.6.93 he fell backwards from a height of approximately 8 ft, landing on his feet and falling backwards knocking his lower back against a low wall and hyper-extending his back.
Initially he reports he was unable to move and had pain in his lower back and was winded."
I have already mentioned that the plaintiff did not attend on Dr Atlas after 27 June 1995 until 16 June 1998. On 16 June 1998 the plaintiff requested Dr Atlas to provide a first medical certificate for a workers' compensation claim relating to a fall from a mixer at work in June 1993. Dr Atlas made out a first medical certificate on 16 June 1998 which provided a diagnosis of mechanical back pain. He also stated on the certificate that the plaintiff was totally unfit for work for three days from 23 March 1995 to 25 March 1995.
The fact that Dr Atlas did not state on the certificate that the plaintiff was unfit for work from sometime in June/July 1993 because of mechanical back pain is consistent with his evidence that the plaintiff saw him on 5 July 1993 essentially because of a finger injury and that the plaintiff's complaint of back pain on that occasion was secondary. I consider it significant that on 5 July 1993 Dr Atlas actually made out a first medical certificate for a workers' compensation claim by the plaintiff only in relation to the finger injury and that the part of the consultation which related to the plaintiff's back was claimed on the public health system. In my opinion this shows that on 5 July 1993 the plaintiff was well aware of the significance of telling a doctor that an injury was related to an accident at work. However the plaintiff did not tell Dr Atlas that his back pain was caused by an accident at work when he could easily have done so.
In November 1995 the plaintiff was receiving a sickness allowance from the Department of Social Security. Payment of the sickness allowance was made the subject of a review in November/December 1995. The review required the provision of a treating doctor's report and a pension claim form completed by the pensioner. On or about 10 November 1995 Dr Connolly completed a treating doctor's report in which he stated that the plaintiff had a back injury from 1993 which was supported by a CT scan taken in August 1993 which showed a L5/S1 small right posterio-lateral disc protrusion impinging on the origin on the right S1 nerve root. I will deal with the plaintiff's pathology later but suffice to say at this point that the pathology set out by Dr Connolly is not consistent with the plaintiff's version of the accident in June/July 1993 because the plaintiff says that he fell on his left buttock. Further, this right sided pathology would not produce symptoms in the left leg.
In the pension claim form completed by the plaintiff on or about 27 November 1995 which was to be considered with Dr Connolly's treating doctor's report the plaintiff was required to answer a number of questions including "Have you had an injury, illness or condition for which you could claim compensation or damages? (eg accident at work…)" to which the plaintiff answered "No". When cross-examined on this question and answer the plaintiff said that he did have an accident at work and suggested that he answered the question incorrectly as a result of confusion on his part because he was on heroin at the time. I do not accept this explanation. The plaintiff also sought to explain the absence of any indication of a work accident in June/July 1993 on his pension review form to:
1.him believing in November 1995 that he was out of time to make a workers' compensation claim, and
2.that because he had fallen out with Mr Harris and Mr Swan they would not support any workers' compensation claim by him.
I do not accept either of these explanations by the plaintiff. Further and in any event the second of these two explanations could not properly explain any inaccuracy.
The plaintiff was asked why if an accident happened in June/July 1993 he did not give any details of it to Dr Atlas on 5 July 1993 or any other medical practitioner until 8 August 1997 when he attended on Professor Harper. I find that the plaintiff's evidence on this issue was extremely unsatisfactory. He gave a number of explanations. He said that he did not tell doctors about hurting his back at work because (1) "he had sued them (his employer) for unfair dismissal" and "thought I'd get them (his employer) back like that", (2) that they were busy at work at the time and he had an agreement with Mr Harris that he would not go on workers' compensation because "he was paying me in a different name", (3) that he did not want to get Mr Harris into trouble, again because he was being paid in a false name, (4) that he "didn't want to go on compo", (5) that Dr Atlas told him that he would need a certificate from Mr Harris to go on workers' compensation and that if he thought he would not get one then he "will have to go and claim unfair dismissal", (6) that he was going to get another job with another employer anyway and (7) that when Dr Atlas was asking questions to try and find out how he hurt his back he did tell Dr Atlas what he did at work although he did not say that he had an accident at work.
The plaintiff did not give these explanations in a comprehensive and ordered fashion but rather on my assessment moved from one to another thinking that the one he had just mentioned may not be considered adequate. I do not accept any of them.
The plaintiff accepted and I find that he was not being paid under a false name in June/July 1993. I also find that he was not being paid under a false name in March 1995. I further find that the plaintiff did not have any agreement with Mr Harris that he would not claim workers' compensation. Indeed at one point in the plaintiff's evidence he said that Mr Harris told him that if his injury got worse "compo" was there. I mention this not because I accept that Mr Harris said it but to highlight an internal inconsistency in the plaintiff's own evidence.
I find that the plaintiff left the defendant's employ for his own reason or reasons and was not sacked. On his own version he was "mad" because he was sacked. If before March 1995 when the plaintiff says he was sacked he had some agreement with Mr Harris about not seeking workers' compensation and/or he did not want Mr Harris to get into trouble then I would have thought that any sacking would have paved the way for him to pursue a workers' compensation claim for an injury sustained in an accident at work particularly if it was genuine and his back pain was as bad and debilitating as he made it out to be.
Various histories given by the plaintiff
Dr Atlas gave evidence that the Mirrabooka Village Medical Centre notes show that the plaintiff first attended on 7 October 1991 and gave a history which included back pain since 1990. The plaintiff's next attendance was on 16 November 1991 when it was noted that he complained of ongoing left loin pain. The plaintiff further attended in March 1992 and it was noted that he complained of back pain and also of pain in the left pelvic rim loin area on examination. It was also noted that he had a full range of movement even though it caused pain.
Dr Atlas gave evidence that the Mirrabooka Village Medical Centre notes show that in April 1991 the plaintiff complained of low back pain only on movement. He also complained that the pain was worse when he rolled over in bed. The pain was not considered severe enough to need treatment. However x‑rays were obtained of the thoracic lumbar spine at the time.
I have already mentioned that when the plaintiff attended on Dr Atlas on 24 March 1995 and complained of back pain he told Dr Atlas of a previous incident of back pain when he was 21 years of age and working on a jack hammer at Mount Isa. I have also referred to the evidence of Ms Roddy that when she first saw the plaintiff on 7 September 1993 he gave a history of feeling a sharp pain in his left buttock at work nine months earlier. This would have placed it at late December 1992/January 1993 and so before June/July 1993. Ms Roddy also gave evidence that the plaintiff gave no history of back injury although he stated that he did a lot of bending and lifting at work. Ms Roddy also gave evidence that the plaintiff reported no significant history of injury.
Dr Kennedy gave evidence that the plaintiff told him that he had never had back pain prior to this accident in 1993. He did not say when the plaintiff told him. I have already mentioned that Dr Kennedy first saw the plaintiff on 8 February 1996 which is just more than 2½ years after June/July 1993 when the plaintiff alleges that the accident happened.
Dr Kennedy completed a treating doctor's report form on 29 December 1995 for the review of the plaintiff's sickness allowance by the Department of Social Security. He stated in response to a question on diagnosis that the plaintiff had low back pain which started in 1983 when he was injured at work. I note that this coincides with the time that the plaintiff was at Mount Isa.
When the plaintiff was seen by the neurosurgeon, Mr Knuckey, at Sir Charles Gairdner Hospital on 13 June 1995 it was noted that in August 1993 there was a spontaneous onset of posterior left leg pain and that following investigations by the plaintiff's general medical practitioner the cause of the pain was unclear. I have no doubt that the note of a spontaneous onset reflected what the plaintiff told Mr Knuckey at the time.
When the plaintiff first attended the pain management department of Sir Charles Gairdner Hospital on 11 December 1995 he saw Dr Radici who was then the Registrar. Dr Radici set out in a report dated 11 December 1995 that the plaintiff had a history of approximately three years of left leg and back pain in the absence of any obvious proceeding injury. This history dates the onset of pain in about December 1992 which is about six months or so before the alleged accident in June/July 1993. I note that this coincides with the timing of the onset of pain that the plaintiff gave to Ms Roddy.
Dr Radici also set out in his report that the plaintiff had worked in the past as a bricklayer and concreter and had at least two traffic accidents in which he may have injured his back but certainly no obvious trauma in the lead up to him developing initially thigh pain and back pain. I have no doubt that Dr Radici set out this history based on what the plaintiff had told him. It is interesting to note that the plaintiff made no mention of any work related accident or trauma in June/July 1993 or March 1995 to Dr Radici in December 1995 but actually gave Dr Radici other possible explanations for his back pain.
When Dr Sam saw the plaintiff on 28 March 1996 he noted that the plaintiff was also seeing Dr Lindy Roberts at Sir Charles Gairdner Hospital. He said that the plaintiff complained of back pain and he noted "back pain, leg pain, pinched nerve six years ago, right leg pain, Panadeine Forte" (Dr Sam's emphasis). Dr Sam understood that the plaintiff must have had an accident or some injury six years before 28 March 1996. I note that this goes back to 1990 which coincides with the history the plaintiff gave to Dr Atlas on 7 October 1991.
When the plaintiff saw Professor Harper on 8 August 1997 he complained of a work accident on 20 June 1993. Professor Harper stated in his report dated 8 August 1997 that:
"He says his health prior to the accident was 'perfect' at which time he was working long hours and had no back pain, medical problems or previous injuries."
I have no doubt that the plaintiff gave this history to Professor Harper. It is interesting to note that the plaintiff gave this history knowing that it would be used in the preparation of a medico-legal report to be provided to his solicitors. The history given by the plaintiff to Professor Harper on 8 August 1997 conflicts with a number of other histories he gave before then.
Mr Watson gave evidence that when he first saw the plaintiff on 21 August 1997 that the plaintiff denied any symptoms of lower back and left leg pain prior to June 1993. The plaintiff was sent to Mr Watson by his solicitors. This is another occasion on which the plaintiff knew that his history would be used for the preparation of a medico-legal report to be provided to his solicitors. Although Mr Watson properly left the issue of the plaintiff's credibility to someone else to decide he knew from the pathology which showed some calcification at the L4/L5 level that the plaintiff had an old injury involving this level which would have predated June/July 1993.
When the plaintiff saw Dr Home on 3 November 1998 at the request of the defendant's solicitors he told Dr Home that he had no past history of back pain prior to 1993. He told Dr Home that he recalled tearing a muscle in his right hamstring when he was 20 years of age. I note that this coincides with the time when the plaintiff was in Mt. Isa. He denied that he had any other medical complaints and could not recall any history of any motor vehicle accidents. This is inconsistent with the histories he gave to Dr Kennedy and Dr Radici. If the plaintiff had been in at least two motor vehicle accidents as he told Dr Radici I do not accept that he could have forgotten one or both or all of them by the time he saw Dr Home.
When the plaintiff saw Dr Bowles, an occupational physician, on 17 August 2000 he denied that he had any problems with his back prior to June/July 1993. However he related having some back and leg discomfort in 1992 from jumping off the mixer but said that it settled with Dencorub and that it did not stop him from working.
While referring to the plaintiff's attendance on Dr Bowles I also wish to mention that in a report dated 20 August 2000 Dr Bowles referred to the plaintiff having an accident in 1995 when he fell from the mixer and being sacked three days later. This was obviously a reference to whatever happened, if anything, in March 1995 when the plaintiff attended on Dr Atlas. The first time that the plaintiff told any medical practitioner that his back pain in March 1995 was due to a fall off a mixer at work was when he told Dr Bowles on 17 August 2000.
When the plaintiff saw Mr Edibam on 21 August 2000 he told Mr Edibam that his general health was good, he denied any involvement in any motor vehicle accidents and said that he had sustained a hamstring strain during employment in the Northern Territory 10 years previously. The timing of the hamstring strain is consistent with the time that the plaintiff was at Mount Isa and the history he gave to Dr Home of tearing a hamstring when he was 20 years of age.
On 2 November 1995 the plaintiff first attended the Next Step Clinic which was part of the WA Alcohol and Drug Authority ("the Clinic"). When the plaintiff gave evidence he said that he started using heroin in about March 1995 and had "tried to get into the Clinic … for quite a while" before November 1995. The notes of the Clinic were subpoenaed by the defendant and various entries were put to the plaintiff during cross‑examination.
The notes show that the plaintiff told someone at the Clinic that he used "Pethidine in 1982 to 1983 for three years". At one point the plaintiff said that he could not recall saying this to anyone at the Clinic. He then said that he told everyone about the hamstring injury in Mount Isa because he did not want to lie. He then indicated that he wrongly told someone at the Clinic that he had used "Pethidine in 1982 and 1983 for three years" to make out that his back pain was "really bad" so that he would be accepted as a patient at the Clinic. The plaintiff also gave evidence that he wrongly told someone at the Clinic on 2 November 1995 that he was using three or four Panadeine Forte tablets a day, that his last hit was yesterday, that he had first used heroin four years ago, that he had used $300 worth of heroin daily for the last 12 months and that he used heroin three times per day, so that he would be accepted into the Clinic. The plaintiff described what he told the staff at the Clinic as "total bullshit".
On a later occasion and sometime between November 1995 and April 1996 the plaintiff told someone at the Clinic that he had back pain four years ago. This would relate back to about late 1991/first half of 1992 and so before June/July 1993. The plaintiff gave evidence that "I made out as much as I could so I could get in there".
The plaintiff started a Methadone programme on 17 April 1996. He gave evidence that he only had about 16 or 17 hits of heroin at a cost of $100 each between about March 1995 and 17 April 1996. He told someone at the Clinic that he was first offered heroin when he was 29 years of age. He gave evidence that he did not use heroin after starting the Methadone programme. In cross-examination he agreed that he told someone at the clinic on 8 May 1996 that he had recently taken two hits of heroin at $200 per hit but said that this was wrong and that he said it to try and get an increase in his dosage of Methadone.
Pathology
A CT scan taken on 3 August 1993 demonstrated a left lateral to far lateral disc herniation at the L4/5 level with some adjacent calcification. It also demonstrated a right sided and right of centre L5/S1 disc protrusion. A further CT scan was undertaken on 28 March 1995 and this again demonstrated the same findings at the L4/5 level to the left. It showed a little left lateral vertebral lipping of the L4 inferior vertebral end plate which impinged on the exiting left L4 nerve root with attenuation of the surround epidural fat. The CT scan in March 1995 again demonstrated the previous findings at the L5/S1 level to the right.
I have already mentioned that the plaintiff gave evidence that he landed on his left buttock area when he fell from the mixer. On 28 July 1993 the plaintiff attended the Mirrabooka Medical Centre and complained of chronic pain in the left buttock and left upper thigh. He complained to Dr Kennedy of severe low back pain in the left buttock and radiating pain down his left leg. He complained to Dr Connolly of low back pain and pain going into his right buttock. He complained to Professor Harper of pain in the low back, left leg, left groin, swelling behind the left knee and tingling in the left foot. He told Dr Home that after the accident he experienced pain in his left buttock and some tingling in his left thigh. He complained to Dr Home on 3 November 1998 of pain radiating from the left buttock to the left thigh above the knee. He complained to Mr Edibam on 21 August 2000 of left sciatic pain ie pain down the back of the leg. The plaintiff gave evidence that the pain in his left leg was "knife like" and ran down "the back" of his leg.
I accept evidence given by Mr Edibam that if you have impingement at L4/L5 effecting the L4 nerve root then the femoral nerve and not the sciatic nerve would be involved. This would result in pain to the front of the thigh and on the inner side of the leg and not down the back of the leg. The plaintiff's complaint to Dr Home of pain in the thigh above the knee is consistent with his pathology at L4/L5. However the plaintiff has mostly complained and currently complains of pain down the back of his left leg and I find that this is not related to his pathology at L4/L5 effecting the L4 nerve root. The evidence of calcification at L4/L5 shown in the CT scans taken on 3 August 1993 is consistent with but not necessarily indicative of an old injury ie an injury before June/July 1993. I have already mentioned that in a report dated 21 August 1997 Mr Watson stated that calcification at the L4/L5 level indicated that this was in part an old injury. However he gave evidence that there can be degeneration resulting in calcification without a great deal of symptoms. Professor Harper gave evidence to the same effect when he said that calcification does not occur without some pathology but he did not know whether or not it caused the plaintiff any symptoms.
While I accept what both Mr Watson and Professor Harper have had to say about the calcification at the L4/L5 level, given the combination of the calcification, the plaintiff's history of heavy duty work over many years and his complaints of back pain on various occasions before June/July 1993 I find that he probably did hurt his back during the course of work before June/July 1993 which gave rise to some pathology and symptoms.
I also find that the plaintiff's pathology of intracanal disc prolapse at the L5/S1 level is on the right side and would not affect the plaintiff's left side. Therefore it is not the cause of any pain in the plaintiff's left buttock or left leg. Further, it is not the cause of any tingling in the plaintiff's left foot. The plaintiff did not complain of any pain in the right leg to Dr Atlas or Dr Kennedy and has generally complained of left sided pain. He says that he landed on his left side when he fell from the mixer. There is no evidence to suggest that a fall on the left side would cause a disc prolapse on the right side.
I appreciate that Dr Connolly set out in his report to the Department of Social Security that the cause of the plaintiff's pain was a right sided disc prolapse at L5/S1 but he no doubt did so because the plaintiff complained to him of right sided pain. The plaintiff did not give Dr Connolly any history of falling off a mixer and landing on his left side. While it is an indisputable fact that the plaintiff has this pathology at L5/S1, given the plaintiff's evidence on how the accident occurred and that he complains of left sided pain I find that the plaintiff's L5/S1 pathology and Dr Connolly's evidence does not lend any support to the plaintiff's claim of an accident in June/July 1993.
I find that the plaintiff's pathology at the L4/L5 level it is not responsible for any pain in the back of the plaintiff's left thigh.
Notwithstanding these findings on the plaintiff's pathology the question still remains whether or not the plaintiff had an accident in June/July 1993 that rendered him symptomatic or exacerbated his L4/L5 pathology and/or aggravated at least some of his pre-existing symptoms. I am mindful that a person may genuinely suffer from symptoms even though no pathology is shown on a CT scan to support it. Sometimes there may be evidence of pathology but no symptoms.
In the final analysis whether or not I am satisfied that an accident happened in June/July 1993 depends on my assessment of the plaintiff's credibility. In this case I have no confidence at all in basing any finding of fact on the plaintiff's evidence.
Video surveillance of the plaintiff
Video surveillance of the plaintiff was taken on 24 September 1998, 13 July, 20, 24 and 29 December 1999, 5, 6, 17 and 18 January, 9, 14 and 18 February, 16 and 17 March, 9 May, 4, 11, 17 and 21 August 2000.
On 21 September 1998 the plaintiff attended on Professor Harper for review. He told Professor Harper that his walking tolerance was approximately 10 minutes, that he was unable to do any housework and that he did not shop and would not venture out alone. The video taken only three days later shows him walking, bending over to light a cigarette, bending at the waist and reaching through a car door and then getting into the driver's seat of the car without any apparent discomfort. The video did not depict a person who would be reasonably justified in not going out alone.
The plaintiff told Mr Watson on 13 September 1999 that he lived with two friends who did everything for him around the house. On 31 July 2000 the plaintiff told Mr Watson that his friends were not currently living with him and that he was having difficulty even mobilising sufficiently to feed himself. On 7 August 2000 the plaintiff told Professor Harper that he was now able to leave the house during the day because his brother "was in town" and "takes him out". Video surveillance several months before on 16 March 2000 showed him riding a Harley Davidson motorcycle, filling it with petrol at a petrol station and entering a shop and coming out carrying a bag. Video surveillance shows the plaintiff refuelling a car on 4 August 2000 and walking around on 11 August 2000 and on both occasions he had no apparent discomfort. The plaintiff indicated that it was very hard for him to ride his Harley Davidson. He said that he only rode it after he had taken some pills and had a lie down. He demonstrated in the witness box how he had to grit his teeth in a determined way when he rode it.
The video surveillance material shows that the plaintiff at the very least grossly exaggerated his condition to Mr Watson and Professor Harper and that he was in no apparent discomfort when he rode his Harley Davidson motorcycle.
The video surveillance film also shows the plaintiff walking with a stick when he visited some medical practitioners for further consultation or review. It is clear when observing the video material that the plaintiff did not have any real need for a stick because he placed little or no weight on it. The plaintiff gave evidence that he took a stick to medical appointments in anticipation of being sore and needing the assistance of the stick after he had been jabbed and poked by the medical practitioner. A video film taken on 17 January 2000 shows the plaintiff walking into a court building without any sign of a limp and walking out of the building later with his legal counsel and limping. I have no doubt that the limp was feigned to mislead his counsel on the existence and/or severity of his symptoms. Otherwise the video films show the plaintiff walking normally.
The video surveillance material was shown to various medical practitioners. In a report dated 29 August 2000 Mr Edibam stated that it showed an individual "who does not display any signs of pain, discomfort or any dysfunction in his lumbar spine". Mr Edibam had great reservations in accepting the plaintiff's symptomatology of back pain.
In a report dated 24 August 2000 Dr Bowles stated that the video material showed that apart from the plaintiff limping on the way to his surgery and when in the company of his legal counsel there was no evidence of any ongoing impairment or physical derangement displayed by the plaintiff. He also stated that the video material was irrefutable evidence that the plaintiff had recovered to a significant extent from the alleged injury or condition if one had occurred.
In a report dated 24 August 2000 Mr Watson stated that the video material showed the plaintiff carrying out movements of much greater flexibility than he had ever observed the plaintiff carrying out in his surgery. The video material caused Mr Watson to state in his report that he believed that the plaintiff had clearly made a significant recovery from his injuries.
In a report dated 23 August 2000 Dr Goucke stated that the video material showed the plaintiff to be "functioning for all intense and purposes, normally" and indicated that he had "a good prognosis".
Dr Kennedy gave evidence that the way the plaintiff was depicted in the video material was not the way he normally presented to him. Dr Kennedy also said that riding a Harley Davidson motorcycle was inconsistent with his presentation.
Professor Harper first saw all or most of the video surveillance material in the courtroom during the hearing. He said that the plaintiff's movements as shown in the video material were smooth and rhythmic and did not demonstrate restriction. He was most reluctant to make clinical assessments on the basis of the video material and considered it necessary to talk with the plaintiff about what they showed before he commented any further on them. He said that pain was affected by the heat of the day and whether the plaintiff had taken medication just prior to being filmed. He added that some people suffering from pain had good days and bad days. The plaintiff gave evidence that he had good days where he could do almost anything and bad days.
I accept the need to consider the factors mentioned by Professor Harper but I have no doubt that none of them or any combination of them provide a satisfactory explanation in the plaintiff's case. The video material as a whole shows that the plaintiff has at the very least grossly exaggerated his condition to medical practitioners.
I have already mentioned that the video surveillance material shows the plaintiff riding a Harley Davidson motorcycle. It also shows him driving a car. The plaintiff was disqualified from driving a motor vehicle on all of the occasions he was shown to be driving in the video material. The plaintiff was disqualified from driving as a result of offences against the Road Traffic Act and/or non payment of fines. The plaintiff seemed to have no problem at all with driving whilst legally disentitled. When it was put to him in cross-examination that he was disqualified from driving when he rode the Harley Davidson on the occasions he was filmed on video he replied "but do you know what it is like to ride a Harley".
Video surveillance material taken only about two weeks before the hearing shows the accused waiting at a car park. He initially said that he did not recall the location and why he was there at the time. He then said that he was waiting there to buy some cannabis from a third party. I have no doubt that he knew the location and the purpose he was there as soon as he saw the video.
In my opinion the video surveillance material as a whole shows that the plaintiff has not been truthful to various medical practitioners about his symptoms and what he has and has not been able to do since at least as far back as September 1998.
Assessment of the plaintiff's credibility
The plaintiff gave his evidence in a most unsatisfactory manner. In cross-examination he failed to readily respond to straightforward questions, gave answers which did not respond to the questions and was inconsistent and evasive. Further I find that he was inventive and particularly so when he gave explanations. In short, when the plaintiff left the witness box he left behind an extremely bad impression.
In addition to all of this:
1.The plaintiff could not be specific on when the alleged accident occurred. There is even a conflict between the plaintiff's evidence and the evidence of Dr Atlas on when the plaintiff injured his finger. Given the evidence of Dr Atlas I do not accept the evidence of the plaintiff on when he injured his finger. This in turn casts a shadow over the plaintiff's evidence that he recalls that the alleged accident happened in June/July 1993 because it happened about a week or a few days before he hurt his finger and saw Dr Atlas on 5 July 1993.
2.The plaintiff has given materially different accounts on how an accident occurred.
3.The plaintiff attended on a medical practitioner on 5 July 1993 but did not complain of any accident at work within the previous two weeks or so.
4.After June/July 1993 the plaintiff did not complain about an accident at work until 1996.
5.The plaintiff did not give a medical practitioner any details of an accident at work in which he fell from a mixer until 8 August 1997 when he saw Professor Harper.
6.The plaintiff did not tell a medical practitioner of any accident at work in March 1995 in which he slipped from a mixer until 17 August 2000 when he saw Dr Bowles.
7.The plaintiff did not attend on any medical practitioner or physiotherapist or anyone at all for any treatment from October 1993 to March 1995 and there is no record of him using any prescribed medication during this period.
8.The plaintiff gave inconsistent accounts of the history of his back and leg symptoms.
9.The plaintiff's explanation for making certain statements to staff at the Clinic which are inconsistent with his evidence in support of this claim is that he lied to staff at the Clinic.
10.If the plaintiff told the Department of Social Security that he did not injure himself at work when he had done so because he thought he was out of time to make a claim for workers' compensation and because he thought that Mr Harris would not support any such claim then he deliberately gave false information to the department.
11.The plaintiff gave histories to some medical practitioners on the effects of his injuries on his everyday living which are clearly inconsistent with his activities captured on video surveillance.
12.The video surveillance which shows the plaintiff walking without a limp when entering a court building alone and walking with a limp when leaving with his legal counsel indicates that the limp was likely feigned to mislead his legal counsel.
13.The plaintiff worked under a false name to avoid paying money to the Collector of Maintenance for the maintenance of his wife and/or children.
14.The plaintiff showed contempt for the law by driving a car and riding a motorcycle when legally disentitled to do so.
I also repeat all of my other comments and findings set out herein for the purpose of making a finding on the plaintiff's credibility.
The combined weight of all of this leads me to find that the plaintiff cannot be believed on anything at all which could operate to support his claim in the absence of some independent and credible corroborative evidence.
Conclusion
For all these reasons I reject the plaintiff's evidence that he was involved in a work accident in June/July 1993 as pleaded in the amended statement of claim and as described by him in his evidence. Accordingly I think that the plaintiff's claim should be dismissed.
Given my rejection of the plaintiff's evidence that an accident occurred it follows that there was no breach of any duty of care by the defendant and it is simply not possible to go about making any theoretical assessment of any damages.
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