| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : ZDRAVKOVIC -v- REGAL CEMENT AND SALES PTY LTD [2004] WADC 206 CORAM : CHANEY DCJ HEARD : 26-30 JULY 2004 DELIVERED : 15 OCTOBER 2004 FILE NO/S : CIV 708 of 2001 BETWEEN : NOVICA ZDRAVKOVIC Plaintiff
AND
REGAL CEMENT AND SALES PTY LTD
Defendant
Catchwords: Damages - Personal injury - Soft tissue injury to cervical spine - Shoulder injury - Depression - Chronic pain disorder - Capacity for work - Turns on own facts
Legislation: Occupiers' Liability Act 1985 s 5
Occupational Health, Safety and Welfare Act 1984 s 19(1)
Workers' Compensation and Rehabilitation Act 1981 s 93E(3)
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Result:
Damages awarded in sum of $309,037 plus past loss of earnings to be further determined if not agreed Representation:
Counsel:
Plaintiff : Mr B L Nugawella
Defendant : Mr A P Hershowitz
Solicitors:
Plaintiff : Friedman Lurie Singh & D'Angelo
Defendant : Basile Hawkins
Case(s) referred to in judgment(s):
Fox v Wood (1981) 148 CLR 438
Jongen v CSR Ltd (1992) Aust Torts Report 81-192
Kschammer v RW Piper & Sons Pty Ltd [2003] WASCA 298
Pollock v Wellington (1996) 15 WAR 1
Thomas v O'Shea (1989) Aust Torts Report 80-251
Case(s) also cited:
Nil
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1 CHANEY DCJ: The plaintiff is a 48 year old man who was injured when he fell at work on 1 September 2000. At that time he was employed by the defendant, Regal Cement and Sales Pty Ltd in a position which he had occupied only for some 10 or 11 days.
2 Since the fall, the plaintiff has not worked in any capacity, but has been in receipt workers compensation payments and entitlements. In these proceedings claims against his employer damages for negligence, breach of the statutory duty, and a breach of the Occupiers Liability Act.
The plaintiff's background 3 The plaintiff was born in what was then Yugoslavia, and is now Serbia, in May 1956. He was schooled in Serbia until he was 14 years old. He left Serbia in 1973, and lived for one year in Austria where he worked in the area of residential construction. 4 Mr Zdravkovic came to Australia in 1974 and settled in Port Hedland. He worked in various manual labouring positions, as a railway worker and then as a trades assistant with various employers from 1975 until 1978, initially in Port Hedland and then in Karratha and Dampier. 5 In 1978, the plaintiff returned to Yugoslavia for a holiday but was immediately drafted into the army where he was required to serve for just over 15 months. He returned to Western Australia in 1980, again living in Port Hedland where he worked for Poon Brothers and then Transfield. 6 In 1981 the plaintiff returned to Yugoslavia where he stayed until 1985. While there he married. He then returned to Port Hedland, but stayed there only until the following year before returning to Yugoslavia where he remained for the next nine or ten years. 7 The plaintiff then returned to Port Hedland towards the end of 1996 where he worked for John Holland, a construction company. He was employed as a trades assistant. He ceased working with that company in mid March 1998, apparently because his wife was having difficulty settling in, and so the plaintiff followed her back to Yugoslavia in March 1998. He did not work whilst in Yugoslavia, but rather spent his time sorting out what he described as "a family problem". In March 1999, Mr Zdravkovic returned to Australia, and sought work in the construction industry with which he was familiar. It is apparent that Mr Zdravkovic promised his wife, on his return to Perth in 1999 that they would live in Perth rather than more remote areas, although the plaintiff said that he looked for work in the bush with a view to him earning good money while
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his family lived in Perth. He said that he applied for work at some 20 companies, including John Holland with whom he had previously worked. He was unsuccessful in obtaining work until eventually he obtained a job with the defendant, which he commenced in August 2000. 8 The plaintiff said that, when employed by John Holland, he earned around $1400 to $1600 take home pay each week, but with Regal Cement he was taking around about $450 net per week. 9 From that history, it can be seen that from the time he departed Australia for Yugoslavia in March 1998 until the present time, the only work which Mr Zdravkovic has had is the 11 days that he was employed by the defendant prior to his accident. 10 The plaintiff has two children, now aged 21 and 15. His wife does not speak English, and is not in paid employment.
The accident at work 11 Mr Zdravkovic was employed as a concrete labourer with the defendant. On 1 September 2000 the task allocated to the plaintiff was what would appear to be a routine task undertaken within the business on a regular basis. On the previous day, a number of concrete covers had been manufactured. The process of manufacture was as follows. A circular metal ring was laid on the concrete floor. There would then be mopped on to the floor within that ring a mixture of diesel and oil. In respect of some covers which required an inspection port, a smaller metal ring, approximately 300 to 350 mm deep, would be laid concentrically within the larger metal ring. Reinforcement would then be placed in the area between the two metal rings, and concrete poured into that space. The effect was to construct, when the concrete had set, a donut shaped circular concrete cover. The purpose of the lubricant mopped onto the floor within the mould was to prevent the concrete poured into the mould, adhering to the concrete floor of the factory. When the concrete had set overnight, the metal rings would be removed. Initially the outer ring would be removed, and then the inner ring. The outer ring was removed simply by lifting it onto its edge, and clear of the concrete. The inner ring was not a simple solid cylinder, but rather a rectangular sheet of metal bent into a circle, overlapping where the two ends met. A lever was attached so that when it was pulled from a position roughly parallel to the internal surface of the inner ring to a position where it pointed towards the centre of the ring, the diameter of the ring would be reduced, thus freeing the ring from the concrete which had set on the outside of it. A worker, wearing safety boots, would then step inside the ring, bend his knees and
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lean down so as to lift the ring, around his legs and then hips, up to waist level. The worker, with the ring being held by both hands around the area of his waist, would then step outside of the concrete cover, and remove the ring to wherever it was to be stored. The completed concrete cover, freed of the metal moulds against which it had been formed, would then be moved by the use of a forklift which could lift the cover using lifting lugs which had been inserted in the concrete in the course of its manufacture. 12 The task in which the plaintiff was engaged at the time of his accident was that of lifting the inner ring and removing it from a concrete mould. He stepped into the mould. The floor of the factory on which he had stepped within the inner ring was covered with lubricant. He lifted the ring around his waist in the usual manner. His recollection is poor as to precisely what then occurred, but he believes that he placed one foot on the concrete cover. He then believes that he stepped with his other foot across the cover and placed his foot on the floor of the factory just outside the outer perimeter of the concrete cover. At that point he slipped. Mr Zdravkovic was not able to say with precision as to how or where he fell, although he believes that he landed on another concrete cover which had been formed nearby on the floor. 13 According to Mr Ian Brown, the construction manager at the factory, he saw Mr Zdravkovic shortly after the fall had occurred. He said that he was lying with his legs and torso over the nearby cover with the inner ring still around his waist or legs. 14 The evidence as to the weight of the inner ring was somewhat vague. Mr Fitzgerald, a consultant in occupational safety and health and training, said in his report that the weight of the inner metal ring was 23.3 kilograms, although he was unable to recall, when he gave his evidence, how he arrived at that weight. Mr Brown accepted that the inner ring was approximately that weight, and I find that the inner ring did weigh approximately 23 kilograms.
The plaintiff's claim 15 The statement of claim pleads that, as a result of the incident described above, the plaintiff suffered a number of injuries comprising left shoulder injury, neck injury, chronic pain condition and psychiatric injuries including depressive disorder and adjustment disorder. It is pleaded that those injuries occurred as a result of the breach of a duty owed to the plaintiff by the defendant pursuant to s 19(1) of the Occupational Health, Safety and Welfare Act 1984 and, alternatively
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s 5 of the Occupiers' Liability Act 1985, and, or in the alternative, by reason of the negligence of the defendant. 16 The plaintiff particularises the allegations of negligence and breach of statutory duty. It is said that the plaintiff was required to work in unsafe conditions, which are detailed, and which relate to the process of lifting the inner ring of a mould described above. It is alleged that the defendant failed to take any reasonable measures to reduce or eliminate the unsafe conditions described, failed to provide a safe means of access and/or egress within the premises, and failed to provide any adequate or appropriate manual handling training in the procedures involved in lifting the inner ring as described. 17 In relation to those particulars of negligence and/or breach of statutory duty, the plaintiff gave evidence that he had received no training or instructions in relation to the process of lifting the inner ring from the mould. There was no challenge to that evidence by way of cross-examination, or any contrary evidence being adduced by the defendant. At the outset of his closing submissions, counsel for the defendant conceded that the allegation as to the lack of appropriate or adequate manual handling training was made out on the evidence, accepted that that failure to provide training amounted to a negligent breach of duty, and that that breach was properly a cause of the plaintiff's fall. The parties agreed in the course of closing submissions that, given that concession, the negligence of the defendant had been established, and there was no reason why I need consider other allegations of breach of duty, either at common law or under statute.
Contributory negligence 18 Notwithstanding the admission of its negligence, the defendant maintained that the plaintiff contributed to his injuries by his own negligence in failing to take sufficient precautions for his own safety. No particulars of the plaintiff's own negligence were sought or provided. 19 In closing submissions, it was put that the plaintiff's negligence consisted of his failing to use both feet to stand on the concrete mould before taking a small step onto the factory floor. 20 In cross-examination, Mr Zdravkovic agreed that he was wearing safety boots which he had been instructed to wear by the defendant's supervisor. He agreed that he knew that lubricant was used on the floors when moulds were poured. He agreed that when he stepped outside the concrete mould, holding the inner circular insert, he could not really see
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where he was going to put his foot. He said that he put one foot on top of the mould, where there was no grease. He did not think that he slipped at that point. Rather, he slipped when he stepped down with the other foot onto the concrete floor. The essence of the defendant's contention is, as I understand it, that Mr Zdravkovic should have put both feet on the concrete mould, and then carefully stepped down onto the factory floor. Instead, the defendant says, the plaintiff took an unnecessarily large second step in the process which consisted of removing his foot from the inner circle of the mould and stepping over the mould and onto the factory floor. In doing that, the defendant says the plaintiff failed to take reasonable care for his own safety, given his knowledge of the presence of lubricant on the floor, and presumably on the sole of his boots. 21 The outer ring of the concrete cover had a diameter of 1400 mm. According to Mr Fitzgerald, the inner ring had a diameter of approximately 585 mm. The radius of the outer ring was thus 700 mm, and the radius of the inner ring was 292.5 mm. The width of the formed concrete section over which Mr Zdravkovic stepped was thus approximately 410 mm. The evidence suggests that Mr Zdravkovic stepped onto the formed concrete from the centre of the cover. That was a small step. To then move the other foot from the centre of the cover to the floor beyond the formed concrete, a distance of something a little more than 410 mm is hardly an excessively long step. In my view, it is simply not a movement of a character that could be characterised as a negligent failure to take care for his own welfare. Having received no instruction as to the process he was to follow in removing the inner ring, the defendant cannot now complain that the plaintiff should have undertaken the task by following a careful, and somewhat unnatural, procedure as to how he placed his feet as he moved from the centre of the cover to the outer side of it. 22 In my view, there is no basis upon which the plaintiff can be found to be liable for contributory negligence causing the injury.
The plaintiff's medical condition 23 After the plaintiff fell, he was taken initially to the "smoko room" and then to his local doctor. He said he suffered from pain in his left shoulder, neck, head and upper back. He said that he is now living in pain, and has difficulty sleeping. His domestic relationships have suffered, his pain has interfered with his sexual relationship with his wife, and his relationship with his two daughters has suffered.
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24 The plaintiff has undergone physiotherapy and hydrotherapy. He has utilised a TENS machine to deal with his pain. Difficulties with funding by his employer's insurer have affected his treatment regime, although he said that he now undertakes hydrotherapy at a local pool at his own expense.
25 The plaintiff said that he suffers pain in his neck and has headaches every day, and has done since the accident. He utilises Panadeine Forte to manage the pain, and said that he takes four, sometimes six or seven per day. He also takes Zoloft, an antidepressant that has been prescribed by Dr Proud, the plaintiff's psychiatrist. He also takes Endep to assist with his sleep. 26 The plaintiff said that he used to assist his wife with some vacuuming on occasions and used to drive her to the shops. He now does not drive and does not assist in any domestic chores. 27 The plaintiff described constant pain in his left shoulder, at a level which fluctuates between 5 to 10 on a scale of 1 to 10. He also complained of pain in the upper back and neck and his head. He said that he is effectively unable to use his left arm at all.
The medical evidence 28 There was a considerable amount of medical evidence adduced at trial. Broadly, that evidence fell into two topics. The first was the nature of the physical injury suffered by the plaintiff, and the second was the plaintiff's psychiatric or psychological condition. The interplay between the physical symptoms which the plaintiff says he experiences, and the influence of his psychological condition upon his perception of those symptoms is fairly complex. It is necessary to examine both those aspects of the evidence to reach a conclusion as to the plaintiff's capacity for work, which, in terms of damages, is the most significant issue in the trial.
Evidence as to physical condition 29 The plaintiff called Mr Peter Anderson, who practised as an orthopaedic surgeon between 1963 and 1994 when he ceased surgical practice and became registered as a specialist in rehabilitation medicine. He first saw the plaintiff in October 2000, and not long after the injury. He recommended physiotherapy. In November 2000 he suggested that the plaintiff was totally unfit for work for three months as a result of his shoulder injury.
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30 Mr Anderson's final report was dated 4 May 2004. He referred to investigations revealing evidence of an abnormality in the region of the left acromioclavicular joint where there appears to be a gap between the acromion and the claricle. In evidence he said that there "seemed to be a minor abnormality in terms of ligamentous strain in the region of the acromioclavicular joint". He concluded with the opinion that:
"The fundamental problem that Novica has is his lack of communication skills in English with the expectation of undertaking physical work in Australia, having broken down with the result …. that he is no longer employable in his present condition." 31 In cross-examination, Mr Anderson made it clear that his opinion was based upon his clinical assessment of the patient, based on the subjective symptoms described by the patient, and his own clinical experience. 32 Dr David Kennedy is a sports physician who treated Mr Zdravkovic for about four months in the early part of 2001. In a report to the plaintiff's solicitors dated 5 February 2001, Dr Kennedy expressed the opinion that Mr Zdravkovic had sustained a permanent whole body disability of not less than 30 per cent being injuries and disabilities sustained to his left shoulder, left upper limb, cervical spine and depression. Mr Zdravkovic had 16 or 17 treatments at Dr Kennedy's practice between late February and early May 2001. 33 On a review in May 2004, on examination, Dr Kennedy described Mr Zdravkovic as a depressed looking man and assessed tightness and tenseness over the erector spinae and paravertebral musculature, worse on the left side and extending into the parascapular musculature. He found tenderness over the intervertebral discs and posterior facet joints from C2/C7. There was limited flexion and extension of the spine. As for the shoulder, Dr Kennedy found wasting of the muscles in the shoulder region and upper arm, although he did not think it was significant when compared to the other side. He said that there was only 10 degrees of passive movement in any direction in the shoulder joint with pain and resistance to any passive movements of the left arm and shoulder joint. 34 Dr Kennedy was of the opinion that Mr Zdravkovic has significant post-traumatic psychological problems with depression and anxiety and expressed the view that he will be unable to resume his pre-injury occupational duties or any employment for which he has appropriate
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education, skills, training or work experience. He said that that disability flows from "the nature and extent of the psychological problems and his perceived disabilities with respect to the functioning of his cervical spine and his left arm at the shoulder joint." Dr Kennedy expressed the opinion that there is a correlation between findings on ultra sound examination of subacromial bursitis and abnormality in the tendon, and the problems demonstrated by Mr Zdravkovic in his physical examination. 35 Dr Kennedy expressed the view that he thought that Mr Zdravkovic was guarding his shoulder and spine on examination. He did not believe that the plaintiff was malingering, but rather that he has a perception of significant problems with his pain and the use of his left arm, and is very reluctant to use it. He assessed Mr Zdravkovic, as of May 2004, as having a permanent loss of the efficient use of his neck of 20 per cent and a permanent loss of efficient use of his left arm at or above the shoulder joint of 20 per cent. He thought it difficult to separate the psychological factors from the physical disabilities, but the assessment which he had made was based on Mr Zdravkovic's physical loss. He did not consider Mr Zdravkovic's condition to be a "frozen shoulder". 36 Mr Desmond Williams is an orthopaedic surgeon. He first saw Mr Zdravkovic on 19 July 2001. He diagnosed the plaintiff as having a soft tissue injury to the cervical spine and soft tissue injury to the left shoulder. He described the initial presentation as a frozen shoulder syndrome requiring further evaluation and clarification of diagnosis. He observed in his initial report of 30 July 2001 that there are significant psychological elements with depression evident at review. His view was that the consequences he observed are a result of the accident at work on 1 September 2000. His initial opinion was that Mr Zdravkovic was unfit to return to his pre-accident work as a labourer. 37 Dr Williams saw the plaintiff for follow up on 13 March 2002 and again on 5 February 2003. In March 2002, Dr Williams referred the plaintiff to the surgical arthritis clinic at the rehabilitation hospital for support with rehabilitation and physiotherapy, but there was a problem with transport to that treatment, and Mr Zdravkovic did not ultimately attend the physiotherapy that had been arranged, although he was subsequently evaluated at the Royal Perth Rehabilitation Hospital. In his report of 25 February 2003, Dr Williams expressed the opinion that the plaintiff's shoulder stiffness is in excess of what one would expect from the original pathology and the progressive pathology that shows some supraspinatus tendonopathy and some degenerative change in the acromioclavicular joint. Dr Williams observed that "with his poor
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response to intervention and treatment schedules, in terms of assessing permanent residual disability it is difficult to be clear about what is permanent in terms of the longer term as we are seeing a current level of disability that is quite significant but with the prospects from the defined pathology of significant improvement with the passage of time". He described Mr Zdravkovic's prognosis as "unstable with a poor response to physical rehabilitation and a lack of ongoing physical rehabilitation and with interaction of psychological and physical factors in his presentation." 38 Dr Williams further reviewed the plaintiff on 19 May and 27 May 2004. He expressed the opinion in June 2004 that the plaintiff will not return to his pre-accident duties, that he has permanent residual disability in his cervical spine and left shoulder area, and that that situation is unlikely to change in the foreseeable future. 39 Dr Williams said that talking of a cure for the plaintiff is unrealistic. He suggested management of the plaintiff's condition with the object of resolving the pathology and minimising the symptoms, rather than hoping to effect a cure. He suggested management in the form of gentle swimming, gentle exercises or self mobilisation. Dr Williams' view of Mr Zdravkovic's pathology of the shoulder was that he suffered from adhesive capsulitis. He said that a lot of people describe adhesive capsulitis as a frozen shoulder. 40 As to the plaintiff's working capacity, Dr Williams expressed his view that he had the capacity to work at bench level with light sedentary activities. This view was based on the proposition that at bench or desk level the shoulder does not need to move a great deal. When asked whether, if the psychological aspects of Mr Zdravkovic's presentation were resolved, his shoulder problems may also resolve, Dr Williams said that there would still remain subacromial bursitis, and a degree of residual disability. 41 The defendant called Dr Alan Home, an occupational physician. Mr Zdravkovic was referred to him for examination on 9 May 2001. He examined Mr Zdravkovic, and on formal examination noted severe restrictions on active movement of his neck, or left shoulder. He did observe, both in respect to the neck and the shoulder, a greater range of movement "when distracted". He observed that there was no evidence of wasting in the left upper limb, and the measurements he took revealed that the left arm remains 1.6 cm larger in diameter than the right, and the left forearm is 2 cm larger in diameter than the right. Dr Home said that those measurements are consistent with a normal pattern of left arm dominant
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use and do not reflect a history of complete disuse for seven months which had been given to him by the plaintiff. He found objective clinical findings inconsistent with the history provided to him by the plaintiff and considered that depressive illness, for which Mr Zdravkovic was being treated at the time, was insufficient to explain the clinical presentation. As a result, Dr Home expressed the view that he did not consider that Mr Zdravkovic is currently incapacitated and that the disparity between objective and subjective findings could not be adequately explained by illness behaviour. He expressed the view that Mr Zdravkovic retains a capacity for at least light manual sedentary or semi-sedentary work on a full-time basis. 42 Dr Home reviewed the plaintiff again in March 2003. He then expressed the opinion that it is impossible to make an accurate physical diagnosis given Mr Zdravkovic's presentation of abnormal illness behaviour. He expressed considerable doubt about the true extent of physical disability but thought it reasonable to assess a small level of disability in the order of 5 to 10 per cent loss of the arm above the elbow. He again observed that there was a lack of wasting of the left arm which was inconsistent with the history conveyed to him by Mr Zdravkovic, of complete disuse of the upper limb in the 18 month period between his examinations. He concluded that, relying upon the objective clinical findings, the capacity for sedentary, semi-sedentary and light manual work is retained. He expressed the opinion, however, that given Mr Zdravkovic's subjective presentation, "rehabilitation will be unsuccessful". 43 Dr Home disagreed with the diagnosis of adhesive capsulitis (which he appeared to treat as being the same as "frozen shoulder"). He expressed the opinion that adhesive capsulitis is a condition which generally resolves itself over a relatively short period. 44 The defendant also called Dr John Bell, an orthopaedic surgeon, who ceased private practice in 2002 and now works only in the medico legal area. Mr Zdravkovic was referred to him for a report in mid-2001. He assessed Mr Zdravkovic as having a soft tissue injury to the left shoulder region with mild grade subacromial bursitis and rotator cuff tendonitis. He also diagnosed soft tissue injury to the cervical spine region being musculotendinous and ligamentous in nature mostly in the mid and upper trapezius muscles on the left. He noted that he had been on anti-depressants Zoloft and Endep since January 2001. Dr Bell noted that the lack of muscle wasting on the effected left arm suggested to him the presence of reasonable function of the left upper limb. He assessed
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Mr Zdravkovic as being unfit to perform his pre-accident heavy labouring work but suggested that alternative lighter duties are possible such as a car-park attendant or shop assistant. He thought it reasonable to assess a significant degree of disease conviction with abnormal illness behaviour. 45 Dr Bell was asked about Dr Williams' opinion that the plaintiff has adhesive capsulitis. He said that one usually associates adhesive capsulitis with the pathology of subacromial bursitis and rotator cuff tendonopathy of a more severe form than that exhibited by radiological examinations of Mr Zdravkovic. He said that he had graded Mr Zdravkovic's pathology as "mild" and that "one usually doesn't associate the mild degree with adhesive capsulitis although the pathology is the same type of pathology." He said that he usually associates the words adhesive capsulitis with the term frozen shoulder.
Evidence as to psychiatric condition 46 Each party called a psychiatrist to give evidence. The plaintiff called Dr Stephen Proud. He saw Mr Zdravkovic on 12 December 2000. His initial diagnosis was of an adjustment disorder with a depressed mood, although he also expressed the opinion that the plaintiff may be suffering from a pain disorder. He was of the view that the psychiatric problems were directly related to the plaintiff's accident at work and the ongoing pain and disability relating to that accident. Dr Proud treated Mr Zdravkovic on a regular basis throughout 2001. The plaintiff was compliant with the treatment regime followed by Dr Proud, which included the prescription of anti-depressant medication in quite high doses. By late 2001, Dr Proud expressed the view that Mr Zdravkovic's psychiatric disability would be permanent for the foreseeable future. 47 In his final report of 5 May 2004, Dr Proud revised his original diagnosis to one of major depression. That revision was based upon the conclusion that Mr Zdravkovic is "now sad all of the time with less irritability as well as his profound lack of interest and motivation". He considered he did not have sufficient information to consider the possible additional diagnosis of pain disorder. Dr Proud expressed the opinion that Mr Zdravkovic's incapacity for work at present relates mostly to his physical condition although he does have a current partial mild incapacity for work secondary to his depression which was likely to persist for the foreseeable future. He reaffirmed that the psychiatric disability is permanent and his prognosis is poor.
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48 Dr Proud agreed in cross-examination that there may be cultural factors associated with the plaintiff's ethnic background which may "complicate the picture". Speaking generally, Dr Proud said that his experience was that "with people of limited education from Slavic backgrounds, often minimal to moderate physical illnesses can result in a significant psychiatric disability that you wouldn't see …. in other cultural groups". He said that "this is not to say that he is not having psychological distress. That's separate".
49 Dr Helena Piirto, a consultant psychologist, was called by the defendant. The plaintiff was referred to her in January 2003 for a review and report. Dr Piirto diagnosed the plaintiff as having a chronic pain disorder associated with psychological factors and possible general medical conditions. In that regard, Dr Piirto said in her report: "I do feel that Mr Zdravkovic presents with a Chronic Pain Disorder associated primarily with psychological factors. It is not clear as to whether or not there is any underlying physical pathology, which can succinctly account for his profile. I do feel that his protective postures and limited mobility are in fact promoting tension, and that his symptoms do sound primarily muscular rather than articular or neurological. I am not of course an expert in this area but it is my strong impression that his experience of pain is directly related to his own wariness and fear of experiencing pain in the shoulder. He admits that if he doesn't move his shoulder, he in fact has little discomfort there. Unfortunately he then experiences tension elsewhere, primarily his neck. Hence I feel Mr Zdravkovic's pain disorder is primary associated with psychological factors, indicating that innate characterological structure and pre-existing and cognitive schema have had, and continue to have, a major role in the onset, exacerbation, amplification, severity and maintenance of his pain experience. It is important to emphasise that this pain is not intentionally or consciously produced." 50 Dr Piirto expressed the view that Mr Zdravkovic has a guarded prognosis. She was of the view that pre-existing psychological, social and cultural factors are most significantly responsible for his current presentation, and for that reason it is unlikely there can be a major improvement without the plaintiff obtaining some shift within parameters such as his psychological awareness, education and cognitive style. Therefore, she considered his pain disorder to be permanent. Because the social, cultural and educational factors were independent of the work
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place accident which brought about Mr Zdravkovic's pain, she expressed the view that his psychiatric impairment did not result from the incident at work on 1 September 2000. Dr Piirto accepted in cross-examination that the incident in September 2000 precipitated the plaintiff's response to pain, the precipitation occurring against a background of personality factors which she had identified. 51 Dr Piirto's opinion was that the pain disorder was likely to continue indefinitely. She thought that once psychological factors come into play so as to cause a person to think they are getting worse, it is difficult to resolve the pain disorder even if there is a resolution of identified physical complaints.
Conclusions on the medical evidence 52 I find that the result of the fall at work on 1 September 2000, the plaintiff suffered an injury to his cervical spine and to his left shoulder. The injury to the cervical spine was a soft tissue injury. It continues to cause pain to Mr Zdravkovic on movement of his neck. 53 It is a little difficult to determine the precise nature of the injury to the plaintiff's left shoulder, especially considering the different labels that the various medical witnesses attached to possible diagnoses. However, I accept that the pathology demonstrated by the ultrasound of the left shoulder taken on 25 October 2000, namely the thickening of the subacromial subdeltoid bursar with bunching on abduction resulted from the accident. Whether it is described as adhesive capsulitis, or frozen shoulder, I find that there is marked stiffness in the shoulder which results in pain on movement. 54 I accept that the degree of disability of which the plaintiff complains is significantly in excess of the disability which might be expected from the pathology demonstrated on radiological investigation. The estimation for that is found in the plaintiff's psychiatric and psychological response to the pain. Neither of the psychiatrists suggested that Mr Zdravkovic's perception of his disability was feigned. They accepted that, probably by reason of his psychological makeup and background, Mr Zdravkovic was genuinely affected by his pain response to the point of rendering his use of his left arm severely restricted. Dr Home made a number of observations in his reports to the effect that he could not explain the reported disability by any physical or psychological factors, but did not go so far as to suggest that the plaintiff was malingering. The other doctors accepted, in general terms, that the degree of disability complained of by Mr Zdravkovic was the real product
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of a combination of his physical injury and his psychological or psychiatric response to it. 55 It is likely that there is a degree of exaggeration in Mr Zdravkovic's description of his symptoms and his disability. I base that conclusion on the observations made, principally by Drs Home and Bell that there is no significant muscle wasting in the left arm. Some wasting of the shoulder was observed by Dr Williams, but he did not think it of particular significance. Dr Home and Dr Bell both said that they observed Mr Zdravkovic demonstrating a greater range of movement in the right arm and shoulder when "distracted" or not being actively examined than he showed under examination. Those observations also provide a foundation for concluding that the plaintiff may have a tendency to overstate his symptoms, or the degree of his restrictions on movement, than he actually subjectively experiences or perceives. In my view, however, that degree of exaggeration is of little significance in determining his overall disability. I find that the degree of disability which he subjectively, but genuinely, experiences is still sufficient to render him unfit for his former occupation, and for reasons which I will mention, unfit for any employment at the present time.
Plaintiff's capacity for work 56 I am satisfied that the plaintiff is presently incapacitated for any work for which he is suited given his physical and psychiatric condition, his lack of qualifications for anything but manual labour, his limited English language skills, and the unlikelihood of successful retraining. It was submitted by the defendant that the plaintiff had failed to discharge the onus of proving that he had lost his pre-accident earning capacity and had been unable to find alternative employment, or that his condition has prevented him from finding alternative employment – see Thomas v O'Shea (1989) Aust Torts Report 80-251. Thus it was said that the evidentiary burden on the defendant to show alternative employment opportunities that are open, including the state of the labour market and likely earnings, had not arisen. I reject that submission. As I have found, the medical evidence does establish that the plaintiff is unfit for his pre-accident work, and has thus lost his pre-accident earning capacity. The continuation of that condition has prevented him from finding alternative employment. It is not encumbant upon the plaintiff to produce evidence of attempts to obtain work since the accident in circumstances where he did not have the capacity to work.
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57 Dr Bell expressed the opinion that the plaintiff has the capacity to work as a car-park attendant or shop assistant. Neither in his reports, nor in his oral evidence, did Dr Bell set out the basis upon which he made that assertion. In particular, nothing was said as to the underlying assumptions as to the duties undertaken in such positions, and why they would fit the plaintiff's physical condition. For example, is it being asserted that, as a shop assistant, the plaintiff would have the ability to reach above his shoulder to stack or remove items from shelves? In the absence of any foundation for the opinion expressed, it can be given little weight (see Pollock v Wellington (1996) 15 WAR 1 at 3-4). There was no evidence as to the availability of work of the nature suggested by Dr Bell, and no evidence adduced as to the potential earning capacity of somebody working in those fields.
58 The prognosis for the plaintiff was generally considered by the medical witnesses to be poor. I agree. On present indications, there is no basis for identifying a period within which it might reasonably be expected that the plaintiff would be able to return to any form of employment. Having said that, however, this is a case where the future must be somewhat uncertain. Although four years have passed since the accident, the prospect of resolution of his physical symptoms, and a consequential improvement in his psychological problems, is a possibility that most medical witnesses recognised, even if they were not optimistic about it. That prospect, is, in my view, best brought to account in consideration of the appropriate allowance for contingencies on any assessment of future loss of income.
Calculation of past economic loss 59 The plaintiff has not worked since the accident on 1 September 2000. He was in receipt of workers' compensation payments until they ceased, apparently in February 2004. The circumstances of the cessation, and the weekly rate of compensation paid were not the subject of clear evidence. Two pay slips for the weeks ending 13 September 2000 and 20 September 2000 respectively showed that workers' compensation was then paid at $12 per hour for a 38 hour week, being a gross payment of $456, and a net payment of $379. 60 Mr Zdravkovic said, in evidence-in-chief, that he was earning something like $450 or $460 per week when working for the defendant. He said that in his previous employment with John Holland he had taken home in the vicinity of $1,400 to $1,600 per week. In cross-examination, he said that he had been working 50 to 55 hours per week. He said that
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when he worked Saturdays he took home about $520, but when he did not work Saturdays he took home about $420 to $430 per week. Given that he only worked with the defendant for a total of 11 days, it is a little difficult to rely too much on those broad figures, although there is little else in the evidence to go on. His evidence on those matters was not challenged, and accordingly, I accept that, immediately prior to his accident, the plaintiff was earning between $420 and $520 dollars net per week. For the purpose of calculating past economic loss, the plaintiff suggested taking an average of those figures, namely a net income $470 per week as the average net income from the defendant. Doing the best that I can with the evidence on the point, I accept that figure as the appropriate estimate of average income at the date of the accident. 61 The period from 1 September 2000 to judgment is 214 weeks. At the rate of $470 per week, that produces a figure of $100,580 as the net loss of income to the date of judgment before any adjustments for contingencies are made. 62 The plaintiff contends that there should be added to the past loss of income an amount to represent the loss of the chance of obtaining the more remunerative type of work that the plaintiff had previously undertaken with employers like John Holland. Tax returns tendered in evidence showed that the plaintiff had earned a gross income of about $57,000 in the financial year ending 30 June 1997, and a taxable income of $85,000 in the financial year 1998. 63 Mr Zdravkovic said that when he returned from Yugoslavia in March 1999 he began looking for work in the construction industry, being the type of work he did with John Holland. At that time, he said, there were no construction jobs available despite his "asking everywhere", and applying at John Holland and other construction companies. Eventually, in mid August 2000, he took the job with the defendant. In cross-examination, Mr Zdravkovic said that he had applied for work with some 20 companies in addition to John Holland. He said that he was looking to find a job in remote areas so that his family could live in Perth and he could work in the remote location and earn good money. He said that after he commenced working with the defendant, he still planned to leave Regal Cement if another job became available in the construction area. 64 The defendant subpoenaed John Holland's records in relation to the plaintiff. Those records were tendered by consent and contained no applications in writing for positions with the company in 1999 or 2000.
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Against the background of the plaintiff returning to live in Perth apparently because his wife was unhappy living in remote country areas, I am not persuaded that the attempts by the plaintiff to obtain work with a construction company were as extensive as he suggested. Whatever applications had been made, however, they produced no results over a period of some 18 months. At the time of the accident, the plaintiff had only just commenced work with the defendant. It is unlikely that, if he were indeed continuing to make efforts to find employment in remote areas, those efforts would have borne fruit for at least some considerable time after August 2000. 65 The defendant contends that there should be a deduction from the past economic loss to take account of the contingency that the plaintiff may not have been employed continuously throughout the period between the accident and the trial. That submission is based upon the plaintiff's work history since originally coming to Australia. He made several visits back to Yugoslavia for periods of some years during which time he did not work. The plaintiff had not been employed between mid March 1998 when he again returned to Yugoslavia, and August 2000 when he commenced employment with the defendant. 66 Whether either of those contingencies may have eventuated is, of course, a matter of some speculation. It is possible that the plaintiff may have obtained more remunerative work sometime in that four year period. It is equally possible that the plaintiff might have chosen not to work for some of that period, as he had done in the past. On balance, my view is that it is not appropriate to make any adjustment to the past loss of income by reason of positive or negative contingencies. Having settled in Perth and found employment in Perth, and given the difficulty he had experienced in obtaining work in the construction industry, probabilities are that the plaintiff would have continued to work for the defendant, at least for a few years. 67 The position in relation to the adjustment that is to be made to the damages for past loss of income to take account of the plaintiff's obligation to re-pay from any award of damages any workers' compensation payments that he has received (see Fox v Wood (1981) 148 CLR 438) simply cannot be ascertained on the basis of the evidence as it presently stands. That is a matter which I propose to give the parties the opportunity to consider and, if necessary, make further submissions, before the final amount of any judgment is ascertained. It is a matter that should have been resolved
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prior to trial, and should be capable of being resolved by agreement in light of my conclusions in relation to this head of damages. 68 Interest should be allowed on any amount in excess of workers' compensation payments at the rate of three per cent per annum calculated from the date of the accident. The rate of three per cent is allowed to take account of the fact that the loss is progressive through the period, including past loss of superannuation benefits.
Past loss of superannuation entitlements 69 The plaintiff is entitled to be compensated for the loss of compulsory superannuation contributions from his employer in relation to his past loss of earnings. The rate applicable for the financial years 2000/2001 and 2001/2002 was eight per cent of gross income. The rate since then has been nine per cent. A net income of $24,440 (being $470 x 52) represents a gross income of approximately $29,500, based on tables reproduced in CCH Australian Master Tax Guide 2004 at 42-005. An average rate of 8.5 per cent over the four years since the accident produces an amount of $10,030. From that should be deducted 30 per cent in accordance with the principles established in Jongen v CSR Ltd (1992) Aust Torts Report 81-192. That produces a figure of approximately $7,000, and I award that sum for past loss of superannuation entitlements.
Future economic loss 70 The plaintiff claims that, based on the presumption that he would have worked to the age of 65 (see Kschammer v RW Piper & Sons Pty Ltd [2003] WASCA 298 at [190]), he should be awarded damages for future economic loss based upon a loss of $470 per week until age 65, increased by 20 per cent for positive contingencies. The positive contingency allowance is based upon the proposition that there was a real chance of the plaintiff obtaining a higher paying job in the construction industry in future. The plaintiff's case is that that positive contingency outweighs any negative contingencies which might otherwise be applied. 71 The defendant suggests that the nature of the plaintiff's employment (being heavy labour), the plaintiff's "chequered" and intermittent employment history, the plaintiff's cultural and educational background, and the evidence of some pre-existing pathology (being a gap in the
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AC joint), all militate against the proposition that the plaintiff would have worked to age 65. The defendant contends that, on the basis of the evidence, it is reasonable to assume that the plaintiff will not work for some three years, but would then have had the capacity to return to full-time employment. It is also submitted that, if the plaintiff is fully incapacitated for his working life, it should be found that he would only have worked to age 55. 72 The defendant's submissions find little support in the evidence. Nothing in the medical evidence suggests that if the accident had not occurred, the plaintiff would not have had the capacity to continue to work in the type of work he had done during his working life. It is not clear what basis is suggested for the proposition that the plaintiff's cultural and educational background militated against him working to age 65. In my view the submission has no basis. None of the witnesses thought that the slight pre-existing gap in the AC joint would have resulted in any incapacity for the plaintiff independently of his accident at work. 73 I do accept that the employment history of the plaintiff suggests that he may well not have remained in constant employment for the next 17 years. That is a matter to be brought to account in relation to the allowance for contingencies, but is not a basis for assuming some early retirement age. 74 None of the medical witnesses identified a period of three years as a reasonable expectation of the period before which the plaintiff could return to work. No doubt the defendant has identified that period simply by way of suggestion of what might be a reasonable approach to allowing for a gradual return to work. It is nevertheless an entirely arbitrary suggestion. The question of the prospect of recovery and the potential for a return to work of some nature is, however, a significant factor to be considered in assessing future economic loss. 75 Dr Anderson thought it likely that the plaintiff would be unable to return to the workplace at all, given his physical and emotional condition, his limited skills, his limited language skills, and his cultural background. 76 Dr Kennedy expressed the opinion that looking "at (the plaintiff) in his total context …, unless his psychological and, to some extent his physical problems are addressed and rectified, then I couldn't see him returning to work". He saw little sign of change in work capacity in the three years since he first saw the plaintiff, but said that if his medical conditions were successfully treated, he would be unlikely to go back to
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physical manual work, but consideration could be given to some retraining. 77 Dr Williams' views as to the likelihood of the plaintiff recovering are referred to above. In relation to future work capacity, Dr Williams said in his report of 25 February 2003 that the plaintiff "has a capacity to work at bench level with light sedentary activities, and he would require appropriate vocational assessment of his education and training capacities and experience to make judgment as to whether this is practically possible in the medium to longer term". When questioned about that opinion, Dr Williams said that he based that comment on the orthopaedic assessment of the shoulder pathology. He added: "With this shoulder pathology, with God willing and some positive responses as he moves forward, he has the capacity to work at bench level because, as I mentioned, he has a good hand, a good wrist, a good elbow, and his limitations are lifting his shoulder out and up, so we rule out above shoulder activities. We rule out heavy lifting, repetitive upper limb activities; so we have a capacity at bench or desk level for what I term light sedentary activities." 78 Dr Home assessed Mr Zdravkovic as retaining a capacity for light manual sedentary or semi-sedentary work on a full-time basis. As already mentioned, Dr Bell suggested a possibility of lighter duties in a role such as a car park attendant or shop assistant. 79 Dr Proud considered that in terms of the plaintiff's capacity to return to work, the more significant factor was his physical condition, although he did have a current partial mild incapacity for work "secondary to his depression." He agreed that, for someone in the plaintiff's position, chances of recovery from depression are very good if there is a recovery from the physical injury. Dr Piirto thought that, from a psychiatric perspective, Mr Zdravkovic did have a capacity for work. 80 As indicated previously, I find that the plaintiff's prognosis is poor, and it is impossible to identify a period in which it might reasonably be expected that the plaintiff would be able to return to any form of employment. Given the limited pathology identified by the medical witnesses, I do find that there is some prospect the plaintiff will recover sufficiently to engage in some gainful employment in the future. That possibility must be recognised in an assessment of an allowance for contingencies.
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81 An assessment of contingencies also needs to take into account any possibility that the plaintiff may have found more remunerative work than that he engaged in with the defendant. He had earned as much as $85,000 in the financial year 1998. It was a very substantial increase in the earning from the previous financial year. Although I consider that the prospect of obtaining more remunerative work cannot be ruled out, and thus should be brought to bear as a positive influence on the allowance for contingencies, it is in my view a prospect of relatively low probability. The high income with John Holland was earned whilst Mr Zdravkovic was working in the north of the State. He had left that employment to return to Serbia to deal with family issues. The result of that was a decision to live in metropolitan Perth. On returning to Perth, he was unsuccessful over an 18 month period in obtaining any employment at a level of remuneration he had enjoyed whilst living in the north west.
82 The defendant contends that the intermittent work history of the plaintiff in the past should be brought to account in relation to future economic loss. I agree that it is a relevant factor to be considered. In the 26 years between when Mr Zdravkovic came to Australia in 1974, and the accident in 2000, the plaintiff had lived in Australia for a total of approximately eight years. For most of his time in Australia, at least prior to his return to Perth in 1999, he was employed. There appear to be substantial periods when he lived in Yugoslavia where he was not working, but the evidence as to that, or the reasons for that, is very scant indeed. 83 I find that, given his work history in Australia, the prospect is that the plaintiff would, but for his accident, have been likely to have continued in the workforce until age 65, albeit with a reasonable possibility of some periods of unemployment in that time. The prospect that the plaintiff would not have been employed constantly over the remainder of his working life should be brought to account in assessing an allowance for contingencies. 84 There should also be brought to account an allowance for the normal vicissitudes of life. It is apparent from the psychiatric evidence, and indeed much of the other medical evidence, that the plaintiff's background and cultural expectations have played a significant part in the level of disability to which he is now subject. Those factors suggest some degree of susceptibility to reactions to adversity which may have affected his prognosis for future employment.
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85 Taking all of those matters into account, in my view there should be applied an allowance for contingencies by way of a deduction from the calculation of his future loss of earnings of 20 per cent.
86 Allowing for a future working life of 17 years, the six per cent discount tabled produce a multiplier of 562.9. At a rate of $470 net per week produces a figure of $264,563 for future loss of earnings. Applying a reduction of 20 per cent for contingencies produces a figure for future economic loss of $211,650 which I round off to $212,000.
Future loss of superannuation entitlements 87 Based on a gross income of $29,500 per annum, the plaintiff's weekly gross income would have been $567. Nine per cent of that sum is $51 per week. Applying the multiplier of 562.9, less the 30 per cent Jongen adjustment and a further 20 per cent reduction for contingencies produces a figure for lost future superannuation entitlements which I round off and allow at $16,000.
Past gratuitous services 88 The plaintiff said in evidence that prior to the accident he assisted his wife in the home by vacuuming, and driving her to shops. He said he is now unable to drive the car, and unable to assist with the vacuuming. He said that he previously spent "maybe one and a half hours a week, two hours, about" on those tasks. That was not consistent with what Mr Zdravkovic told some of the medical practitioners whom he saw. For instance, Dr Proud recorded a history that "prior to the accident his wife used to do all the domestic chores and she continues to do the same now". A similar history of not doing domestic work was recorded in Dr Piirto's report of 15 January 2003. 89 The plaintiff's daughter, Jordana Zdravkovic, gave evidence that, prior to the accident, her father did "maybe five hours" on vacuuming a week. I do not accept that evidence which is neither consistent with her father's evidence, nor with what her father apparently told the medical practitioners. 90 The most likely version of the plaintiff's contribution to domestic affairs is what he told Dr Proud and Dr Piirto. To the extent that the plaintiff denied that he told Dr Piirto that he did not do any domestic work prior to the accident, I reject his evidence. I accept that there is no other reasonable inference open than that Dr Piirto recorded that history
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because that is what she was told. It is consistent with what was apparently told to Dr Proud. 91 There was some suggestion that the plaintiff should receive an allowance for past and future gratuitous services because he was no longer able to drive to the swimming pool. Some allowance for visits to the swimming pool for the purpose of undertaking hydrotherapy is appropriate, and any transportation costs associated with those visits is best dealt with in that context. In my view, the evidence does not support any award of damages under the head of past or future gratuitous services.
Past special damages 92 I was told from the Bar table that a total of $19,037 has been paid by the defendant's insurers in relation to past medical expenses relating to the plaintiff's accident at work. There seems to be no dispute that that sum should be awarded to the plaintiff by way of damages, notwithstanding that he will be obliged to reimburse the workers' compensation insurer in relation to the expenses incurred. An additional amount of $271.60 was claimed in the plaintiff's schedule of damages. That sum is said to relate to unpaid accounts of Dr Hamzah and Dr Tan. Neither of those outstanding amounts was proved, and in the absence of agreement between the parties that may have been incurred, and they relate to the plaintiff's accident, no award should be made.
Future special damages 93 The plaintiff claimed future special damages comprising future treatment expenses. The general thrust of the medical evidence was to the effect that there is little more that can be done medically for the plaintiff other than some gentle hydrotherapy and mild exercise. Dr Williams suggested that "an ultrasound guided injection of Marcaine and steroid would be appropriate and it can be repeated on one, two or three occasions". The plaintiff is likely to continue to require Panadeine Forte for pain relief, and to continue to take Endep. 94 The plaintiff prepared a schedule of a claim for future special damages which suggested a weekly expense of $29.84 plus an unspecified amount in relation to the injections suggested by Dr Williams. This is a relevantly minor aspect of the claim, and received little attention in the evidence. There will undoubtedly be some need for future medications, and it is desirable in the interest of his rehabilitation and pain management that the plaintiff continue to undertake hydrotherapy at his local
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swimming pool on a regular basis. Further medications will undoubtedly give rise to further consultations with his general practitioner. 95 The plaintiff's total claim, based on the calculated weekly expense for the rest of the plaintiff's expected life gave rise to a claim for $22,332, plus some unspecified amount for corticosteroid injections. The evidence does not support the need for the physiotherapy consultations claimed, nor for general practitioner consultations of the frequency suggested. The plaintiff's claim appears to seek costs of corticosteroid injections for the rest of his life, but the evidence does not extend beyond the suggestion that up to three such treatments might be appropriate. 96 In my view, the appropriate approach is to allow a global sum for future special damages rather than endeavour to make precise predictions as to the need for, and frequency of, future treatments. The evidence does not allow precise calculations to be done with any confidence. I would allow the sum of $15,000 by way of future special damages.
Non pecuniary damage 97 I was informed from the Bar table without objection that there had been a recording of an agreement or determination that the plaintiff's degree of disability is not less than 30 per cent for the purposes of s 93E(3) of the Workers' Compensation and Rehabilitation Act 1981. It follows that there is no restriction on the awarding of damages imposed by that Act. 98 The plaintiff's injuries, and his psychological response to them, have significantly affected his life. He has been diagnosed by Dr Proud as suffering from severe depression. The consequences of his accident are described above under the heading "The plaintiff's medical condition". 99 The defendant submits that the accident has had little effect on the plaintiff's enjoyment of life because, it was submitted, he did not do much in the way of recreational activities prior to the accident. It is true that the evidence suggests that, apart from working, the plaintiff did not lead a particularly active life, either domestically or socially. That fact does not, however, deprive the plaintiff of an appropriate award of damages to recognise the pain, inconvenience and distress which attends his daily living. 100 In my view, the appropriate award for general pain and suffering, loss of the amenities of life is the amount of $40,000.
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Conclusion
101 The plaintiff is entitled to an award of damages made up of the following components: Past economic loss - to be determined after further submissions or agreement between the parties. Past loss of superannuation contributions $ 7,000 Future economic loss $212,000 Future loss of superannuation contributions $ 16,000 Past special damages $ 19,037 Future special damages $ 15,000 General damages $ 40,000
102 As indicated above, the parties should confer and seek to agree the appropriate figures in relation to past loss of income in accordance with these reasons so that the amount of the final judgment can be determined.
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