Guinery v S H Gowing & Co Pty Limited

Judgment 1The plaintiff Mr Stephen Anthony Guinery of Quirindi brings an action for damages for personal injuries sustained by him on 25 September 2003. The plaintiff's cause of action is in the tort of negligence, although, in addition, the plaintiff claims in the statement of claim a breach of contract. 2Unfortunately for the plaintiff, the defendant is his former employer. That means that the damages which he might recover are limited by the provisions of Pt 5 of the Workers Compensation Act 1987. Pursuant to s 151G of that Act, the only damages that may be awarded to the plaintiff are damages for past economic loss due to loss of earnings and damages for future economic loss due to the deprivation or impairment of his earning capacity. 3Prior to the commencement of these proceedings the plaintiff recovered lump sums under s 66 of the Workers Compensation Act for eighteen percent whole-person impairment and a sum of $15,000 for pain and suffering, anxiety and distress resulting from that loss pursuant to s 67 of the same Act. 4As I have already mentioned, the plaintiff's cause of action is alleged to have arisen on 25 March 2003. The proceedings were commenced by a statement of claim filed on 5 July 2012, some nine years later. The first "plea" in the defence filed on 27 August 2012 is this: "The defendant notes the plaintiff's allegations in relation to injuries sustained have been brought out of time pursuant to s 151D and are statute barred." 5That is hardly an appropriate way in which to raise such a plea. The defendant's noting something is not the defendant's making an averment. However, the parties have approached the matter as if this were a formal averment. 6The plaintiff has not filed any notice of motion seeking the Court's leave to proceed against the defendant out of time, but an application was made orally by Mr Beauchamp for the plaintiff pursuant to s 151D(2) of the Workers Compensation Act 1987. That subsection is in the following terms: "A person to whom compensation is payable under this Act is not entitled to commence court proceedings for damages in respect of the injury concerned against the employer liable to pay that compensation more than 3 years after the date on which the injury was received, except with the leave of the court in which the proceedings are to be taken." The following subsection makes it clear that the provisions of the Limitation Act 1969 do not apply to any action that is governed by the Workers Compensation Act 1987. 7The first thing that must be noted is that, pursuant to s 151H of the Workers Compensation Act 1987, no damages may be awarded unless the injury results in the death of a worker or in a degree of impairment of the injured worker that is at least fifteen percent whole-person impairment [WPI]. Accordingly, the plaintiff could not bring any proceedings in this Court unless it was agreed by the parties, or the plaintiff had been awarded, a lump sum that was equivalent to fifteen percent WPI. 8Although Dr WGD Patrick, a general surgeon retained by the plaintiff's solicitors, diagnosed an eighteen percent WPI on 14 October 2008, it was not until 1 August 2011, when Dr J Dixon Hughes, an Approved Medical Specialist under the workers compensation legislation, certified that the plaintiff had twelve percent WPI referable to his low-back condition that the plaintiff reached the statutory threshold, because, earlier, it had been agreed that the plaintiff had a four percent WPI referable to a right hip injury and two percent WPI referable to the effects of an inguinal hernia. Thus the plaintiff could not commence proceedings until on or after 1 August 2011. 9The workers compensation legislation makes it clear that the plaintiff could not commence proceedings until after not only had the eighteen percent WPI been agreed but also that it had been paid, as well as an appropriate lump sum pursuant to s 67 of the Workers Compensation Act 1987. 10There are then a number of procedural hurdles under both the Workers Compensation Act 1987 and the Workplace Injury Management and Workers Compensation Act 1998 that an injured worker must jump through before he can commence proceedings in this Court. I have been told, without objection, that a pre-filing statement of claim was served upon the defendant on 10 January 2012. Pursuant to s 316 of the 1998 Act, the defendant was required to serve a pre-filing defence within twenty-eight days of service of the pre-filing statement of claim. However, a pre-filing defence was not in fact served until 13 February 2012, out of time. However, the fact that the pre-filing statement was out of time gave the plaintiff no comfort at all because, if the defendant failed to comply with the provisions of s 316, the plaintiff could still not commence proceedings until forty-two days after the service of his pre-filing statement of claim, and within that forty-two days the pre-filing defence was in fact served. The serving of the pre-filing statement of claim stopped the clock from running, as far as the limitation period was concerned. 11Mr Odling, for the defendant, did not raise any positive objection to the defendant's oral application. He merely pointed out that the Court had to grant leave and the Court had to be satisfied of the matters of which it must be satisfied in accordance with the authorities interpreting s 151D(2). Mr Odling made it clear that he was bound by his instructions not to make any concession but raised no positive assertion against the granting of leave. 12Suffice to say that the injury is a frank injury. It is clear that it was reported at the time. The defendant called not a scintilla of evidence to suggest that it was in any way prejudiced by the late commencement of the proceedings, and in essence the only delay was in the period essentially from 1 August 2011 until 10 January 2012. In the circumstances, it appears to me to be both just and equitable that the Court grant leave to the plaintiff to commence these proceedings on 5 July 2012. 13Paragraphs 4 and 5 of the statement of claim are these: "4. On 25 September 2003, the plaintiff, together with four or five colleagues, was in the process of manually unloading a large crate from the back of a tabletop truck. The defendant had not supplied the plaintiff or his colleagues with any equipment, such as a forklift, in order to manoeuvre this crate. The ground surface of the defendant's premises was uneven. 5. The plaintiff sustained a significant injury during the course of unloading the crate, when the weight of the crate suddenly shifted. Consequently the plaintiff took the full weight of the crate. Under the weight of the crate the plaintiff was knocked to the ground and felt severe immediate pain, centralised around his stomach area." The averment of the "stomach area" should be seen as being used in the popular sense, the stomach in fact being the abdomen rather than the actual organ known as the stomach. 14The defendant trades as Gowings Toyota at Quirindi. It clearly is an outlet selling Toyota motor vehicles. The plaintiff is, by occupation, a motor mechanic. The plaintiff had two periods of employment with the defendant. He worked for them between 1984 and 1988. He recommenced employment with them in 1991. In both those periods of employment he was a motor mechanic. 15The evidence is that, in addition to selling Toyota motor vehicles and servicing them, the defendant services all other types of motor vehicle, including motorcycles, sedans, trucks and buses, and one might add, probably, also numerous four-wheel drive vehicles. The size of the trucks was not indicated, but the plaintiff made it clear that he had worked on all forms of motor vehicles, so the trucks could be from small utility trucks or small table-top trucks through to much larger vehicles. 16At the defendant's premises in Quirindi there were six or seven tradesmen, including the plaintiff, an apprentice motor mechanic, a man in charge of spare parts, who was assisted by a lady, and a rural merchandise salesman, as well as female office staff and the "boss", Mr Bruce Gowing, one of the two sons of the founder of the business, which, during the plaintiff's more recent period of employment there, achieved its fiftieth anniversary. 17There were regular - that is, daily - deliveries of material to this business, the deliveries being by truck. On 25 September 2003 the defendant had brought to its premises by truck a ride-on lawnmower, which was in a large crate which was on top of a pallet. I had some difficulty conceiving of a ride-in mower which would fit on top of a pallet and not exceed the pallet's width or depth. However, a history recorded by Dr W G D Patrick answers my difficulty. That history is this: "Mr Guinery was at work. He was with other men, possibly 4-6 altogether, man-handling a very large crate on uneven sloping ground. He states that Gowings Toyota at Quirindi was a relatively small company - there was no forklift there. These large crates contained unassembled large ride-on lawnmowers. On the day of his injury, one such large crate was taken to the back of a large table top truck. Because the ground was uneven, the men were lifting at somewhat different heights. At times, one of the lifters would have no weight at all, and a moment later another lifter might be taking nearly all the weight. On the day of injury, Mr Guinery felt a sudden surge in the weight he was taking to the extent that it dragged him down and he felt 'something go'." Accordingly, the large crate contained an unassembled ride-on lawnmower. That explains my difficulty in understanding the plaintiff's evidence. 18The truck pulled up at the rear of the defendant's premises. It pulled up on sloping, uneven ground which was covered by gravel. The tray of the truck sloped to one side. The plaintiff and, I infer, some of his work colleagues were on the lower side of the table-top truck. The plaintiff told me that the truck driver mounted onto the tray of the truck and was pushing the crate on its pallet towards the workers on the ground. Suddenly and without any warning, the crate came in the plaintiff's direction with a rush. He took the full force of the weight, which pulled him to the ground. The plaintiff estimated that the weight of the crate on its pallet was between 200 and 300 kilograms. The pallet/crate struck the plaintiff in the abdomen - the plaintiff indicated immediately below his belt line, not quite in the hypogastric abdomen but a little above it. 19It would certainly have caused a difference in intra-abdominal pressure. The plaintiff described feeling winded, as if he had been crash-tackled whilst playing Rugby League. He was knocked to the ground and, when he got up, he had to go and sit down. He felt sore all over. In particular, he mentioned that his arms felt sore, his shoulders and back felt sore, as well as his abdomen feeling sore. 20Two days later - I infer on 27 September 2009 - the plaintiff noticed, when he was rising from his bed wearing only underpants, that there was a lump in his right groin the size of half a cricket ball. He consulted his general practitioner, Dr Frances Thatcher of Murrurundi, who referred him on to Dr Grant Miller, a general surgeon practising in Muswellbrook. 21The plaintiff made it clear that this large crate on a pallet had in fact been palletised because obviously its weight required it to be lifted by a pallet-moving device such as a forklift or even hand-operated pallet jack. 22The defendant company had no forklift. However, from time to time it would "borrow" a forklift from another business in Quirindi, which was one kilometre away. That forklift was a registered motor vehicle, so it could travel on public roads. It could, accordingly, have been called for by Mr Bruce Gowing and used to lift this crate on its pallet off the back of the tabletop truck and then carried into the defendant's premises. However, that was not done. Mr Gowing merely directed a number of male staff members to try to lift this heavy burden off the back of the truck. 23The defendant asked the plaintiff no questions, in essence, on the question of liability and called not a scintilla of evidence. There was no evidence that the defendant could not have "borrowed" the forklift truck of the nearby business, which it was wont to borrow from time to time. There was no evidence that the defendant could not afford to have its own forklift. There was no evidence that the defendant could not afford to have a manually-operated pallet jack whose tynes could be raised to the height of a tabletop truck. There is no evidence to suggest that the defendant could have sought to unload the pallet containing this crate on top from level ground, whereby the weight of the pallet suddenly slipping down a slope would not occur, even if, as recorded in the history obtained by Dr Patrick, some six men were required to work in lifting this crate on its pallet off the back of the truck, the weight was easily within their lifting ability. For example, if there were only four men involved and the weight was 200 kilograms, each man was required to lift fifty kilograms. If the weight was 300 kilograms and there were six men involved, each man was required to lift fifty kilograms. Going back to imperial units, each man was required to lift a 100 kilogram weight. There was no evidence to suggest that that is an acceptable work practice in our modern community. 24At the end of the case the only submission on the question of liability was that the plaintiff's evidence was somewhat "vague". Considering the passage of time, one might forgive a plaintiff having a somewhat vague recollection of something that occurred almost ten years ago. However, the plaintiff's actual recall was not tested in any way by cross-examination. 25In the circumstances, I have no hesitation in finding that the defendant was negligent in failing to obtain the use of a forklift in order to lift this heavy crate on its pallet off the back of the tabletop truck and to convey it into the defendant's premises, or in failing to park the truck on an even surface. 26Contributory negligence has been pleaded in the defence but there is no evidence which supports any such allegation, nor was there any cross-examination directed to that issue. Accordingly, the plaintiff is, in my view, entitled to recover damages undiminished by any contributory negligence on his part. 27The plaintiff's immediate concern after this event was the lump in his groin. The plaintiff got to see Dr Grant Miller on 12 January 2004. Dr Miller diagnosed a moderate-sized, right, direct, inguinal hernia. He accepted that it had been caused by the strain at work on 25 September 2003. He proceeded to herniorrhaphy on 3 February 2004 at Muswellbrook District Hospital. At operation Dr Miller confirmed a moderate-sized direct inguinal hernia which was of "reasonably recent" origin. The surgeon used a gauze mesh to close the defect in the plaintiff's abdominal wall. 28From what has been subsequently diagnosed, it would appear that the surgery practised was not a complete success. Dr Miller thought that the plaintiff would be off work for at least two weeks and then would be fit for some light duties only. The plaintiff himself told me that his employer and he himself believed that he would be only off work for some six weeks. In Sydney, of course, anyone with a hernia would be expected to take six months off work. The expectations of Dr Miller, the plaintiff and the defendant were blasted. Eventually the plaintiff was off work from 3 February 2004 until 25 April 2004. It appears that the plaintiff then returned to work, essentially on light duties, for a few weeks. However, as far as his groin was concerned, the plaintiff had ongoing symptoms. The plaintiff told me of symptoms in his groin, obviously referring to the area of the iliac fossa, extending into his scrotum and in particular affecting his right testicle. 29The plaintiff also told me that he had ongoing back pain, especially in the lower part of his back on the left-hand side, and he had also developed right hip pain. The onset of the back pain and the right hip pain is uncertain as to its timing. However, the medical practitioners in the current case have accepted a causal relationship between the plaintiff's injury on 25 September 2003 and the condition of his back and hip, as well as his groin. 30Under s 326 of the 1998 Act, a medical assessment certificate pursuant to medical assessment carried out under the provisions of that Act is conclusively presumed to be correct before this Court as both to the degree of permanent impairment of the worker as a result of the injury and the nature and extent of the loss suffered by the worker. In other words, because there is a binding AMS assessment, the Court need not concern itself with questions of causation. 31Because of the plaintiff's ongoing symptoms in his right groin he was referred by his general practitioner to Dr Ramin Samali, a consultant neurologist. Dr Samali obtained a history that the ongoing pain became worse with movement or physical activity, including work. The pain started in the medial third of the inguinal canal and extended down towards the right scrotum and around the right testicle. The doctor believed there was a possibility of osteitis at a suture in the area of the pubic tubercle. That is where the mesh had been sewed into the plaintiff's body to cover the defect in the abdominal wall. 32Dr Samali also raised as a possibility a nerve entrapment syndrome, in particular an entrapment of the ileo-inguinal nerve, which had the same distribution as the plaintiff's pain. In his report to Dr Thatcher, Dr Samali said this: "As far as operating for this condition, due to the fact that there is mesh present at the hernial repair it would increase the risk of getting infection around the mesh and it would be quite difficult to find the offending nerve to treat it as everything would be scarred and almost possible to fully dissect. There would also be a risk of recurrence of the hernia and general weakness of the inguinal canal. In summary, my opinion is that there is an entrapment of the ileo-inguinal nerve associated with either the sutures at the time of the hernial repair or as the result of a scarring associated with the mesh." 33Dr Samali recommended non-operative treatment and, in particular, treatment with local anaesthetic. As a result of that opinion the plaintiff was referred to the Hunter Pain Clinic, where he came under the care of Dr Marc Russo, who describes himself on his letterhead as a consultant in pain medicine, but whose formal qualifications are as an anaesthetist. 34Dr Russo's first report bears the date 17 November 2004. I infer that the plaintiff saw the doctor on that day or shortly prior to that time. By that stage the plaintiff was still on light duties, working only thirty hours per week. The plaintiff did not tell me that but his memory is obviously defective in that regard. Dr Russo confirmed the diagnosis of probable ileo-inguinal neuralgia and recommended neurotomy. That was carried out shortly thereafter but only gave the plaintiff some temporary benefit. 35By 25 January 2005 Dr Russo expressed the view that he would treat the plaintiff only with analgesics or the like in one form or another. The first form was an analgesic cream to be applied "over the area". I do not know whether that means over the area of the iliac fossa, which bears the inguinal canal, or whether it included the scrotum. The plaintiff has remained under Dr Russo's care since that time. 36In the meantime the plaintiff persisted with working for the defendant but felt that he had been "sent to Coventry", that he was regarded by his boss and his workmates as a potential liability, and he frankly admitted that one of his work colleagues described him as a "bludger". Although the plaintiff was reluctant to tell me, I accept that he was complaining of pain; that his complaints in that regard were not accepted by his workmates; and his workmates needed to deal with heavier aspects of the work that the plaintiff felt he could not do, and that caused him to be shunned. 37The plaintiff reluctantly - and I use that word advisedly - decided to give up working for the defendant. He had worked there for many years happily. The same is recorded in Dr Thatcher's report of 22 February 2007. Dr Thatcher recorded this: "He states he felt intimidated at work because 'they can't see my pain and felt he was making up the pain'. He was happy at work at Gowings as a mechanic and had been there long time, he felt depressed and frustrated at the way he was treated." 38That history is not felicitously expressed but it makes the point that the plaintiff had been a long-time servant of Gowings at Quirindi. He had been happy working there but after his injury he was feeling pain. His workmates knew that he was complaining of pain and they were not treating him well, resulting in the plaintiff's feeling depressed and frustrated. The plaintiff decided to find alternative employment. He left the defendant on Friday 14 January 2005 and, I infer, commenced with his new employer on the following Monday, 17 January 2005. His new employer was EDI at Werris Creek. He worked there as a trades assistant; that is, as an offsider to a tradesman. That is in fact a demotion in status for this plaintiff. 39The plaintiff's curriculum vitae is exhibit A. The plaintiff was born on 21 May 1957. If my mathematics be correct, he turned sixteen in 1973. He obtained the school certificate. He then obtained an apprenticeship as a motor mechanic with DL & MJ Clark, who ran the NRMA depot in Wallabadah. The plaintiff completed that apprenticeship. After completing his apprenticeship with the Clarks at Wallabadah, the plaintiff worked on, both as a mechanic and a tow truck operator for that firm. In 1984 he commenced his first period of employment with the defendant. In 1988 he opened his own business at Quirindi, doing work as a mechanic, repairing and servicing cars and issuing green slips for the RTA. 40In 1990, whilst his business was still running in Quirindi, he went to the United Kingdom and worked with Stevens Cars in Wiltshire. That business was near Pewsey and Salisbury. He worked in the United Kingdom for two years, both servicing and repairing British and European motor vehicles. 41On his return to Australia he was confronted by Mr Bruce Gowing at his home before he had overcome jet lag. Mr Gowing offered him a job. The plaintiff accepted the offer but asked if he could postpone starting for one week in order that he recover from his journey and get his affairs in order. The plaintiff then worked on with Gowings as a motor mechanic, the alternative title for which is automotive engineer. 42As I have mentioned, the plaintiff has worked as an automotive engineer/motor mechanic since completing his four-year apprenticeship, which would have been at the end of 1978. He then worked also as a tow truck operator. 43In 1979 he obtained a certificate as a panel-beater journeyman from the New England TAFE. In the same year he obtained a craftsman's certificate as an automotive engineer. In 1980 he obtained a certificate from TAFE in engine tuning and electrical service, a post-trade qualification. In 1992 he obtained an automotive airconditioning licence from TAFE. In 1994 he obtained a certificate from Toyota as a master craftsman. In 1995 he obtained a certificate from Daikin Clutch in diagnosis and development, obviously in relation to transmission systems. In 2000 he obtained a certificate in electronic fuel injection and engine management diagnosis from the Institute of Automotive Mechanical Engineers. The plaintiff told me that in addition he has gained the skills of a welder. 44The plaintiff is clearly a highly-qualified tradesman or automotive engineer who has done his best to keep up with his trade and to increase his skills and abilities. The last certificate to which I referred was granted nearly three years before the accident now in question. 45For a man who had worked from 1978 to 2005 as a specialist tradesman, to reduce to the rank of a trades' assistant would be demeaning. The only positive for the plaintiff is that the work with EDI was much better remunerated than his work with Gowings at Quirindi. 46The parties have told me that at the current time, if the plaintiff worked for Gowings, he would be earning $800 per week net, but the plaintiff's current weekly earnings with an associate of EDI, to which I will shortly refer, are $1,356. The parties have approached this case on the basis of those figures being relevant at all material times, that is, as far as the past is concerned. 47As a trades' assistant, the plaintiff's work at EDI Werris Creek involved cleaning, sweeping floors, assisting tradesmen in the workshop, carrying out repairs and cleaning locomotives. There was no degree of heavy lifting involved, because the occupational health and safety with EDI at Werris Creek was well regulated and there was both an overhead crane and forklifts to do any heavy manual lifting. However, the plaintiff made it clear that his work did involve bending, some lifting, moving around, agility, and, probably, working in confined spaces at times. 48In more recent times the plaintiff changed his employer. However, the new employer, Pacific National, ran out of the same workshops at Werris Creek as did EDI, and in fact the uniform of the one business was the uniform of the other, each uniform bearing the name both of EDI and of Pacific National. 49On 6 March 2012 the plaintiff joined Pacific National as a trainee locomotive driver, and on 14 May 2012 obtained a promotion to a "bulk operations second person", which essentially means he was the assistant to the locomotive driver of a train carrying bulk goods. However, it appears the plaintiff's work was largely confined to the Werris Creek depot. His work might be described by those of us with longer memories as the fireman in the locomotive, the assistant to the engine driver. 50The plaintiff has continued to suffer from symptoms in his groin. He has continued to suffer from symptoms in his back and has continued to suffer from symptoms in his right hip. The plaintiff told me that with the passage of time his symptoms have become worse. The plaintiff told me that he had to stop working for EDI as a trades assistant because his symptoms were becoming too much for him; work was having an adverse effect upon those symptoms. The work with Pacific National was lighter in character and the plaintiff persists in doing that, but, as far as he is concerned, he is almost at the end of his tether, and is considering giving up his job. 51I believe I should at this stage return to consideration of the medical evidence. Initially, as I have earlier mentioned, Dr Russo prescribed a compound analgesic cream. By 5 April 2005 he added to that tramadol slow release 100 milligrams during the day. The plaintiff's medication range has increased with the passage of time. He now takes tramadol twice per day, both in the morning and the evening. He also takes Durotram XR, which is a painkiller. He also takes Norspan in the form of a patch, which releases, at forty micrograms per hour, another painkiller, which is used to go with paracetamol of which the plaintiff takes two, three times per day. The forty micrograms of Norspan is the maximum permissible dose. The plaintiff also takes Norflex. 52Because of his numerous medications the plaintiff becomes constipated, the result of which he takes Coloxyl, and he has been placed on the antidepressant Zoloft by Dr Thatcher. Dr Thatcher clearly diagnosed depression when the plaintiff saw her on 6 April 2006. In addition, Dr Russo has advised the plaintiff to take up to 350 millilitres of grapefruit juice twice a day, which has a synergistic effect with one of the painkilling medications the plaintiff takes. Subsequently, Dr Russo has also advised the plaintiff to eat a large number of prunes per day in order to help deal with the constipation caused by his drug ingestion. 53Dr Patrick first saw the plaintiff on 22 August 2005. That was some seven months after the plaintiff started working for EDI at Werris Creek. At the time of that consultation the plaintiff gave, as part of his history, this: "Mr Stephen Guinery himself is working casually, employed through Labour Co, New England (a labour exchange based in Tamworth) actually working with EDI Rail at Werris Creek. He is carrying out trades assistant type work, although he himself is a qualified automotive mechanic/engineer. His home town is Quirindi NSW. He tells me that another coal mine has been opened up at Werris Creek, and there are more trains coming through now, also the wheat for transporting. He's working there casually, somewhat irregular hours, but usually working about 38 hours per week." 54The plaintiff in his evidence made no mention of the intervention of a labour exchange at Tamworth, and the inference I draw is that although the plaintiff may have been introduced by that labour exchange to EDI, the plaintiff's work at EDI became permanent. For a matter which I will canvass later, it is worthwhile noting that as at August 2005 the plaintiff was advising Dr Patrick of the opening up of a second coal mine at Werris Creek. 55In addition to the problem in the plaintiff's right groin, the plaintiff advised Dr Patrick of some discomfort around the right hip region and discomfort in the right buttock, which Dr Patrick appears, from my reading of his report, to believe to be related to the low back. On examination Dr Patrick noted that there was a slight spinal scoliosis, in that there was a prominence of the right thoracic region when the plaintiff flexed forward. On repeated examination he noted a diminution of both the right knee jerk and ankle jerk compared to the left. A diminution of such jerks is an objective sign of a problem with one of the nerves in the leg coming from the spine. 56Dr Patrick in his first report recommended that there be radiological investigations, including an MRI of the thoracicolumbar spine and of each hip, and possibly some radionuclide scans of the hips. Dr Patrick expressed the view that the plaintiff was permanently incapacitated for physical work involving heavy lifting or carrying, frequent bending, prolonged stooping or walking in awkward situations, or activities which might result in significantly increased abdominal strain. 57Dr Patrick saw the plaintiff again on 17 June 2008. On questioning, the plaintiff told Dr Patrick that there was pain in the upper buttocks and low back which had been definitely getting worse over the preceding eighteen months without there being any further injury. On examination Dr Patrick noted that there had been considerable stiffening of the spine since the plaintiff was seen by him on 12 August 2005. The plaintiff was only able to flex achieving fingertips to just below the knee, that is, forward flexion was limited to about fifty degrees. The problem with scoliosis was again noted. 58The doctor noted significant muscle guarding evident, paravertabrally in the lumbar spine. That is not an objective finding. However, the doctor went on to make objective findings. He found muscle wasting of the plaintiff's right leg. He also found significant diminution of the knee and ankle jerks on the right side. Straight leg raising test gave a positive sciatic stretch test at sixty-five degrees on the right side. Dr Patrick diagnosed right lower limb radiculopathy clearly referable to a spinal lesion. As far as Dr Patrick was concerned it did not surprise him the plaintiff was then having difficulty doing his work with EDI. Nevertheless, the plaintiff persisted with that work for a further three and a half years. 59On 31 March 2009 the plaintiff was seen by an approved medical specialist appointed by the WCC, that is, Dr Sikander Khan, a general surgeon. On examination Dr Sikander Khan noted that the plaintiff pointed out the L5-S1 distribution of pain in a leg. Patients with spinal conditions often complain of pain in the right leg. He had pain in a leg. Most complaints are generally amorphous; they are generalised complaints. A patient who is able to describe exactly to a medical practitioner a dermatomal distribution is clearly describing something genuine, unless he or she is learned in medicine. The plaintiff is not such a person. His being able to indicate the L5-S1 distribution in the right leg indicates to me a problem with the disc at that level. 60Dr Khan went on to describe a thirteen percent WPI, giving a seven percent assessment for impairment of the lumbar spine, a four percent impairment because of the right hip and two percent impairment because of an injury to the "digestive system", being the hernia. 61By 5 November 2010 Dr Russo came to the view that the plaintiff was having a low back problem radiating down his left leg on this occasion in either the L5 or S1 nerve root distribution. As Dr Russo is by training an anaesthetist, I would not expect from him the degree of certainty of either a general surgeon or an orthopaedic surgeon, let alone a neurosurgeon or neurologist. 62Dr Russo recommended some investigations and that led to an MRI scan being carried out on 19 November 2010. That shows a loss of disc height at L5-S1 and an annular fissure at L5-S1, with a right paracentral disc bulge which was impinging the theca and mildly effacing the S1 nerve root. Of course, that is completely consistent with the findings on examination early in May by both Dr Patrick and Dr Khan, that is, that there is an L5-S1 tear of the annulus fibrosus, leading to an extrusion of the nucleus pulposus to impinge upon the S1 nerve root, causing pain in the S1 dermatomal distribution. 63After the MRI was carried out, Dr Russo recommended some treatment by way of injection of local anaesthetic and steroids into the plaintiff's back. On 11 February 2011 Dr Russo reported that the plaintiff had undergone a caudal epidural injection of local anaesthetic and steroid with a piriformis injection, which led to resolution of the plaintiff's leg pain. In his report of 11 February 2011, Dr Russo made this comment about the plaintiff's work: "At this stage, I've recommended he continue at work, whilst pacing himself and avoiding the heaviest aspect of his job in terms of lifting engine blocks, etc." There is no evidence that the plaintiff was required to lift engine blocks at EDI, although I can easily infer that he may well have done so when he was working at Gowings. 64On 25 March 2011 the plaintiff saw Dr Patrick for the third time. Again, Dr Patrick noted wasting of the right thigh and calf, a marked diminution of the right ankle jerk and, I infer, the right knee jerk, the doctor referring to ankle jerks twice. Obviously one is a reference to the knee jerk. Again, straight leg raising on the right gave a positive sciatic stretch test at sixty degrees. Dr Patrick expressed a gloomy prognosis. He said this: "The prognosis is for ongoing residual symptoms with likely gradual deterioration with the passage of time." 65He went on to express the view that, were the plaintiff to lose his job with EDI, he believed it unlikely that the plaintiff would be able to find suitable alternative employment. He went on to state this: "He is permanently incapacitated for work of a physical nature involving heavy lifting/carrying, frequent bending, prolonged stooping, or working in awkward situations, significant squatting, or working down low to the ground, or handling a lot of steps/stairs or ladder work." Dr Patrick then diagnosed eighteen percent WPI based on having a twelve percent WPI referrable to the lumbar spine. 66The plaintiff was sent by the WCC to Dr J Dixon-Hughes, a general surgeon, as an Approved Medical Specialist on 1 August 2011. Dr Dickson-Hughes' assessment was consistent with that of Dr Patrick. He diagnosed an L5-S1 disc injury with S1 radicular symptoms and signs in keeping with right-sided radiculopathy. 67The only other medical opinion before me is from Associate Professor Paul Myers, a general and vascular surgeon. Associate Professor Myers was qualified by the defendant's solicitors. Dr Myers examined the plaintiff on 7 November 2011 and also on 5 November 2012. In essence, Associate Professor Myers did not believe that there was anything wrong with the plaintiff. He said that notwithstanding that he found, objectively, wasting of the right leg both in the calf and the thigh. The doctor does not even advert to the significance of such wasting at all in his reports. 68He found anomalous the straight-leg-raising test but such anomalies were not found by anybody else. As far as the radiological investigation was concerned the doctor said this: "This annular fissure is most unlikely to be still present eight years following injury from 2003." I find that to be a novel proposition. A fissure is another way of saying a tear. If the annulus fibrosis of the disc is torn, I do not know how it would mend itself. I have not come across such a phenomenon previously, since I started practising in medico-legal fields in 1976. 69Associate Professor Myers was unable to account for the plaintiff's symptoms at all. He thought that he was fit to do any work, including his current work at Pacific National, as well as the work he had done for EDI and as well as the work he did for the defendant. 70There are in the medical reports before me some statements about the plaintiff made by medical practitioners. For example, Dr Thatcher tells me this: "I feel that Mr Guinery is a very genuine and honest person." 71Dr Patrick has described the plaintiff on a number of occasions as being "quite genuine" and "well motivated". Of course, I am not bound by any such determination by a medical practitioner. However, I point out that Dr Thatcher, until she left Murrurundi to move to the Northern Territory, had been the plaintiff's general practitioner for a large number of years and had seen him fairly regularly. Dr Patrick has seen the plaintiff on at least three occasions. 72Having heard and seen the plaintiff for myself, I would describe him in much the same way as both Dr Patrick and Dr Thatcher. His curriculum vitae speaks volumes about him. He could be described as hard working, well motivated, genuine and, as far as I am concerned, a man of probity, a plaintiff whose word I can reliably accept. Earlier I described what the plaintiff said about how he is coping with his work. In a report of 10 November 2011 Dr Russo said this to the plaintiff's general practitioner at the Scone Medical Practice, to which the plaintiff started going when Dr Thatcher moved to the Northern Territory: "However, if he does any form of routine manual labour at work, his pain flares up and that's been a repetitive feature now for a number of months, and the amount of work that it requires to flare him up is getting consecutively less and less. I really feel that Stephen is jeopardising his medical health with continued physical labour at work and it is medically appropriate that he look at retirement. I have advised him of that." 73It is to be noted that that is an opinion expressed by Dr Russo to the plaintiff himself and to the plaintiff's general practitioner. It is not an opinion expressed at the request of a solicitor. Nevertheless, the solicitors did request confirmation and Dr Russo in his report of 19 October 2012 said this: "It continues to be my opinion that Mr Guinery is jeopardising his medical status with the continued physical labour at work and it is medically appropriate that he look at retirement. It is my opinion that he will be unable to work until the age of 67 in his current position. It is certainly my opinion that your client's employment will likely come to an end, based on this medical necessity, sooner rather than later." 74Quite properly, Mr Odling for the defendant has referred me to the fact that the last report by Dr Russo, which describes the plaintiff's work, is that of 11 February 2011, where the doctor appears to have believed the plaintiff was still engaged in lifting engine blocks. That may well be so. However, it is clear from his report of 10 November 2011 that Dr Russo accepted the plaintiff's statements that doing routine manual labour caused increasing pain, which was increasing as time went by, and that is exactly what the plaintiff told me and I accept it. 75Another general practitioner from the Scone Medical Centre is Dr Beesoon Doyal. He had a discussion with the plaintiff on 23 August 2012 and expressed this view: "Indeed, ongoing employment is detrimental to the client's medical health. It is also unlikely that he'll be able to work in the future, especially in the field that he is employed, given that this involves strenuous activities and exertion. If anything, contemplating office-type duties (with restrictions and flexibility) will be better for him, but that would require a change of career altogether with further upskilling and training programme [sic]. It is very likely that the patient's employment will come to an end sooner rather than later, and this will help him enormously with regards to his pain for which he is taking many analgesics." Clearly there are faint echoes of the earlier opinion of Dr Russo, expressed in his report of 10 November 2011, in the report of Dr Beesoon Doyal of 23 February 2012. 76Dr Patrick has weighed into this argument in a supplementary opinion of 10 October 2012. He expressed this view: "Mr Guinery would now be 55-years-of-age, and with his level of ongoing continuing symptoms at his low back with the effect on both lower limbs, and the ongoing symptoms referable to his hernia repair, I do believe that it is likely the time has come where it is appropriate for Mr Guinery to indeed look at retirement, and I do believe that on the balance of probabilities, it is very unlikely that he would have been able to continue working till normal retirement age in any event." 77Again, Mr Odling very properly pointed out that Dr Patrick's last examination was on 25 May 2011, when the plaintiff was employed by EDI as a trades assistant and was not aware of the change to lighter work with Pacific National in March 2012. It is also clear from Dr Patrick's supplementary report of 10 October 2012 that he was aware of the opinions earlier expressed by Dr Russo, which may have helped him come to the conclusion which he expressed. 78Suffice to say that I am not bound by any particular medical opinion but I can accept what the plaintiff himself told me that, as far as he is concerned, his work is such that, while it may not require heavy lifting, it does require other stresses on his back and his groin and his hip, and his symptoms are now getting to the stage where he believes he ought give work away; that he is coming to the end of his tether. 79Essential to the determination of the plaintiff's damages is consideration of two particular issues. As I have earlier mentioned, the plaintiff is now earning more than he would have earned had he stayed with the defendant. The defendant's attitude is essentially that the plaintiff is not suffering any current economic loss and indeed all the plaintiff seeks really is a cushion or buffer to account for a perhaps early retirement; a retirement which might not actually occur, especially if, for example, the plaintiff becomes a locomotive driver and has a "fireman" to assist him rather than being the assistant to the locomotive driver. 80The plaintiff, however, maintains that but for injury he would have left Gowings and entered the coalmining industry. I wholly accept that the plaintiff, uninjured, would have sought to enter the coalmining industry. That he was unhappy with the level of his remuneration at Gowings is clear from the fact that in either 2002 or 2001, when he was in his mid-forties, the plaintiff applied to join the New South Wales Police Force. He fulfilled all of the criteria required to be sworn in as a probationary constable of police. He satisfied the "educational" requirements, which required either a university degree or a trade. He satisfied all the intellectual demands to be a police officer. He also, in his mid-forties, satisfied all the physical demands required of him to be a member of the police force. He was put in a "general pool" of those seeking to be taken into the police force. There were two other pools, one I infer for those who had high tertiary qualifications and another for those who had a favoured employment status, such as persons from the Aboriginal community or from ethnic minorities, which the police force were seeking to recruit actively to counter any suggestion of institutional bias. Unfortunately, the plaintiff was not offered any appointment as a probationary constable of police. 81The important fact at the current stage is that he was dissatisfied with his pay with Gowings and sought higher remuneration because he had then, as he has now, a wife and three children to support. It is clear that the plaintiff was aware of openings in the coalmining industry, because he mentioned them to Dr Patrick when interviewed on 12 August 2005. The plaintiff says that, uninjured, he would have taken up a job in the mining industry. The defendant categorises that as merely the plaintiff's desire and that all that the plaintiff has lost is the chance of obtaining employment in the mining industry. 82Exhibit B is the 2011 Hays Salary Guide. It says a number of things about the mining industry. Page 136 is a "sector overview" for "resources and mining". That overview is divided into two parts, one for Australia and one for New Zealand. I ignore the latter section. Significant parts of what is said about resources and mining in Australia are these: "Australia's booming resources and mining sector is restoring growth across the nation as it spearheads our economic recovery. But amid such buoyancy comes a significant challenge in the form of a shortage of appropriate skills, which could yet cast a shadow over the resources sector. Over the past year, skills shortages began to hit the sector hard, with new start-ups, expansion projects and aggressive hiring activity reducing Australia's candidate pool. In this boom cycle, where big projects are making unprecedented demands on this tight labour market, we expect the impact to be greater than ever before ... At the same time, the expansion of existing mines and a number of new mines saw the requirement climb for experienced Mine Engineers across the country, both underground and open pit." 83Later on the overview refers to interstate recruitment and in particular the need for mining engineers, geologists, geotechnical engineers and senior level "strategic candidates" being recruited from interstate. It then refers to a need for flexibility amongst employers. It goes on to say this: "Most employers have found that adhering to a rigid criteria [sic] and a long recruitment process will not secure top talent. This flexibility extends to the level of experience required. There are still few opportunities for unskilled people, or those without relevant industry experience. Yet considering transferable skills will allow an employer to open their vacancy to a wider pool of talent, who may have the desired behaviours and cultural fit, and who, with a little training, can become a valued asset. Given rising demand and falling supply, salaries are increasing as employers compete for available expertise. Remuneration and benefits packages are already gaining momentum as sought after candidates choose between offers, and employers act to retain existing staff. Further salary trends are seen in New South Wales' coal sector, where salaries are now starting to match those offered in Western Australia. This is exacerbating Western Australia's skill shortage." 84The last paragraph of this section of the overview is this: "As we move forward, there is no doubt that the resources boom will fuel a continued and highly competitive talent race which will reshape our labour market. Thus salary pressure will remain a constant companion in the year ahead." 85It is clear to me that in 2010 there became an unprecedented demand for experienced workers in the mining industry and in particular in the New South Wales coalmining sector, where record salaries were being recorded, equivalent to those being offered in the Western Australian iron mining areas. Furthermore, it was necessary for employers to exercise flexibility in their recruiting. They could no longer just require persons with experience because, if only experienced persons could be employed, the pool available would be constantly diminishing rather than increasing. That is merely a matter of logic. Another thing that I must bear in mind is that, when a mine opens, there is a lot of work to be done before mining operations can commence. There is obviously a construction stage, and that in fact is adverted to in exhibit B. 86Exhibit C is a number of job advertisements obtained by the plaintiff over the recent two years. A large number of them require previous underground mining experience or work with underground mining equipment. However, the same thing applies to such requirements; that unless they be overlooked, the workforce cannot be expanded. Some of these jobs are extremely well remunerated. For example, there was an advertisement for diesel fitters to work in the Gunnedah, Boggabri and Narrabri region. They are offered salary packages of $175,000 plus superannuation and $500 a week accommodation allowance. There is a large demand for mechanics and fitters, such as diesel fitters. An advertisement for a coalmine at Boggabri, 45 kilometres north of Gunnedah, indicates that a project fitter was required and that experience in auto electrics and airconditioning maintenance would be highly regarded. The plaintiff has experience in both auto electrics and in airconditioning. 87The question is, is it probable - that is, is it more probable than not - that the plaintiff, if he sought to enter the mining industry uninjured, would be offered a job. Bearing in mind in particular what is said in exhibit B and from certain aspects of the plaintiff's evidence, I accept it is more probable than not that he would be so taken up. 88Mr Odling, for the defendant, referred to the fact that there might be trade union problems (that preference might be given to members of a trade union) and that there might be some preference for "mates" or for "younger men". However, I have to approach any case of this nature on the basis that everyone would do what he or she are required to do by law. As to trade union preference, I need only refer to exhibit 1, tendered in the defendant's case, the plaintiff's letter of offer from Pacific National. Under the heading "Freedom of Association" the following is stated: "It is also brought to your attention that all employees, as well as Pacific National are bound by the Freedom of Association provisions in the Workplace Relations Act. These provisions mean that employees cannot be treated differently because they are or are not a member of a union. Whether you elect to join a union is a decision for yourself, and you are expected to respect that choice in relation to other employees in the workplace. Please note that it is illegal for employees or Pacific National to coerce an employee to join or not join a union." 89The provisions of anti-discrimination legislation clearly indicate that no discrimination can be offered to the plaintiff because of his age, his sex, his sexual orientation, his marital status or any other peculiar status or any other irrelevant matter such as, for example, his race. The plaintiff is clearly an intelligent, well-presented and articulate man, and I have no hesitation in finding that he would have been offered a job in the mining industry had he applied for one. 90The question which then arises is when might that have occurred? There is force in the argument put forward by Mr Odling that as the plaintiff's condition has worsened with time, earlier in time - that is, for example, 2005 - he may have found it easier to seek employment in the mines. The plaintiff told me that working at Werris Creek with EDI/Pacific National, he has become aware that someone he formerly worked with was a manager of a coal mine at Werris Creek and another fellow with whom he worked at EDI became a workshop manager at another mine, and the plaintiff believed that that gentleman's qualifications were less than his own. The plaintiff submitted, with the mathematical precision that is only usually attributable to me, that the plaintiff should be seen as being eligible to join the mining workforce in 2006 - that is, seven years ago - but only claiming for six years' past economic loss, in essence submitting that the plaintiff would have found an opening in the mining industry by April 2007. 91However, based on what I read in exhibit B, and bearing in mind what it says about what had happened in the year 2010, I believe it to be appropriate to take the view the plaintiff would have entered the coalmining industry in the Werris Creek / Gunnedah area in the year 2010. Therefore I accept that for the last three years the plaintiff would have been earning an appropriate wage in the coalmining industry. 92The parties have agreed that the average salary which the plaintiff might command in the coalmining industry is $94,500 per annum net, which is less than the statutory maximum prescribed by section 34 of the Workers Compensation Act 1987, which is $96,694 per annum net. Accordingly, I approached this case on the basis that from three years ago, the plaintiff would have been earning $94,500 per annum net which is $1,817 per week net. 93The other consideration is when will the plaintiff leave his current job. Will he retire early, as he himself said and as the medical practitioners, whom I accept, say he will? As I said, the plaintiff is well-motivated and hardworking. He works to support his family. His wife is dependent upon him. At the current time he has three dependent children. His son Lucas is 17 and currently in high school. His second son Logan is 14 and his daughter Ruby is six. 94I accept the plaintiff will work on for as long as he feels able. That ability will increase if he becomes a locomotive driver, although that may require long standing. It certainly requires climbing in and out of locomotive trucks on small ladders and that can be problematical for a man with a dodgy hip, groin and back. Doing the best I can, I believe the plaintiff is likely to stop working once he turns sixty. At that stage, the plaintiff's two sons will both have left school, and he will have only one child left at school. In other words, I accept that he will work on for a further four years. The plaintiff was born on 21 May 1957. He is currently fifty-five years old and will, within the next two months, turn fifty-six. 95The plaintiff has put his case through his counsel in a number of ways, and a fourth way emerged in the course of submissions, a combination of the first and third ways in which the plaintiff put his case. 96The first way the plaintiff presented his case was to award him the difference between what he would be earning in the coalmining industry and what he is currently earning for six years into the past and into the future until his retirement age of sixty-seven. That is the maximum period of time permissible with the Workers Compensation Act 1987. If my mathematics be correct, that would require an allowance of $143,925 for the past and $207,585 for the future, plus an allowance of course for lost superannuation benefits. 97The second way the plaintiff put his case was to allow him the loss of his current earnings from the end of the present year until his retirement at the age of sixty-seven. That amounts to a lump sum of $554,892.40, plus superannuation. It was submitted on behalf of the plaintiff that there should be no allowance for the vicissitudes of life because the period into the future is so short. 98The third way the plaintiff put his case was to allow him the amount between his earnings in the coalmining industry and his current earnings from six years into the past until reaching the age of sixty and then allowing a full economic loss into the future, which I need not bother to calculate. 99The way that I have approached this case is a combination of the first and third ways; in fact, the fourth way adopted by Mr Beauchamp in the course of argument. As I have already indicated, I would allow the plaintiff firstly the period off work from 3 February 2004 until 24 April 2004, which is agreed to amount to $6,875.68. That includes an allowance under Fox v Wood. 100I allow the plaintiff economic loss for three years into the past, a difference of $461.30 per week, being the difference between his earnings in the mining industry, had he gone into that industry, and what he is currently earning. If my mathematics be correct, that amounts to $71,963. I allow eleven percent of that for loss of past superannuation benefits. That amounts to $7,915.93. 101For the future I allow four years' loss of $461.30. The multiplier is 189.6. The total is $87,462. I then allow for seven years' loss at the rate of $1,817 per week, being the weekly amount derived from net annual earnings of $94,500. The multiplier is 309.4 and the multiplier for the deferral of that sum for four years is 0.823. That amounts to $462.74. The total of sums I have allowed for the future is $550,136. However, I do deduct therefrom fifteen percent because of the vicissitudes of life. 102True it is that for the plaintiff, now being almost fifty-five years of age, twelve years into the future is not a particularly long period of time. However, vicissitudes can affect anybody at any stage and, furthermore, one has to consider that there could well be, in the future, a downturn in the mining industry, especially if coalmining is deemed to be politically incorrect by those who wield power in the Commonwealth of Australia. Applying a fifteen percent discount, the sum payable for future economic loss is $467,615.60. 103I must allow for future loss of superannuation. I allow thirteen point two percent of future economic loss for future loss of superannuation benefits. In choosing that percentage I have taken into account the decision of the Court of Appeal in Najdovski v Crnojlovic [2008] NSWCA 175. The appropriate lump sum is $61,725.26. 104If my mathematics be correct, which is always problematical, the total of the sums I have allowed is $616,095.47. From that must be deducted the defendant's defence under the Workers Compensation Act of payments made, and that amounts to the first of the figures I have mentioned, $6,875.68. Accordingly, the verdict will be for $609,219.79. Any further reasons for judgment required, Mr Beauchamp? BEAUCHAMP: Your Honour, it's against my interests to say this, but I think your Honour probably has to apply the vicissitudes to future superannuation. HIS HONOUR: No, I don't, because it's already in the 15% I took off for the future earning loss, otherwise I'd be-- BEAUCHAMP: Of course, your Honour, yes, I understand. So it's only on the allowed loss. Yes, I understand that, your Honour. HIS HONOUR: Yes, it's only on the net amount of the-- BEAUCHAMP: Yes, otherwise we'd be doubly penalised. Yes, I appreciate that, your Honour. HIS HONOUR: Yes, all right. BEAUCHAMP: The only other matter is, your Honour is no doubt aware, that at mediation there are-- HIS HONOUR: Is it about costs? I only want to know if you want further reasons. BEAUCHAMP: No other reasons required. HIS HONOUR: Mr Guest, do you require any further reasons? GUEST: No, your Honour. 105HIS HONOUR: For those reasons I give verdict and judgment for the plaintiff against the defendant for $609,219.79. The calculations which I have made will be marked for identification 2. HIS HONOUR: There's argument about costs is there? BEAUCHAMP: Not really, I don't think, your Honour. GUEST: I think in this case, your Honour, the costs will be costs as agreed or it's just the usual order. HIS HONOUR: The usual order. I order the defendant to pay the plaintiff's costs.