Occupational Safety and Health Act 1984

Workers' Compensation and Rehabilitation Act 1981 (as amended)

Bicknell v Australian Telecommunications Commission (1993) 10 WAR 373

Crombie v Uniting Church in Australia Property Trust (WA) (1997) 17 WAR 291

Guest v NRMA Insurance Ltd [2002] WADC 115

Hamilton v Nuroof (WA) Pty Ltd [1956] HCA 42; (1956) 96 CLR 18

Kuligowski v Metro Bus [2002] WASCA 170; (2002) 26 WAR 137

Kuligowski v Metro Bus [2004] HCA 34

McLean v Tedman [1984] HCA 60; (1984) 155 CLR 306

Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164

Woods v Multi-Sport Holdings Pty Ltd [2002] HCA 9; (2002) 76 ALJR 483

Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40

Abalos v Australian Postal Commission [1990] HCA 47; (1988) 171 CLR 167

Blair v Curran [1939] HCA 23; (1939) 62 CLR 464

Hamilton v Nu-roof [1956] HCA 42; (1956) 96 CLR 18

Malec v Hutton [1990] HCA 20; (1990) 169 CLR 638

McNair v Press Offshore Limited (1997) 17 WAR 191

Re Monger; ex parte Industrial Progress Corporation Pty Ltd [2001] WASCA 281

Thomas v O'Shea (1989) Aust Torts Reports 80-251

United Construction Pty Ltd v Maketic [2003] WASCA 138

Waddington v Silver Chain Nursing Association [1998] WASCA 331; (1998) 20 WAR 269

Watts v Rake [1960] HCA 58; (1960) 108 CLR 158

1 GROVES DCJ: The plaintiff was born on 2 May 1939 and is now 65 years old. At all material times he was employed by the defendant as a tractor driver engaged in the harrowing, rolling and watering of tracks at the Ascot Racecourse. The plaintiff alleges that he was injured in an incident at work ("the incident"), such incident said to have been occasioned by the negligence of the defendant and/or in consequence of the breach of statutory duty and/or breach of contract by the defendant. Both liability and quantum are in issue.

2 The allegations relied on by the plaintiff were pleaded as follows:

"5. (a) On or about 25 January 1995 ("the material date"), at Ascot Racecourse, Ascot in the said State, the Plaintiff was, in the course of his employment with the Defendant, engaged in watering the tracks ("the employment duty").

(b) In order to carry out the employment duty the Plaintiff used a tractor with an attached water tanker.

(c) The tractor was owned at all material times by the Defendant.

(ii) a motor vehicle as defined in the Motor Vehicle (Third Party Insurance) Act 1943 and the Road Traffic Act 1974.

6. Whilst carrying out the employment duty on the material date:

(a) the Plaintiff used a tractor with a water tanker;

(b) the water tanker had a tap at the back and a lever at the front;

(c) the lever was connected to the tap by means of a long wire;

(d) the tap was defective and had been modified by the attachment of a metal weight to hold it closed;

(e) the Plaintiff reached back and pulled on the lever so as to open the tap;

(f) when the Plaintiff pulled on the lever the tap jammed causing significant force to be exerted through the Plaintiff's right elbow and shoulder ("the accident").

7. As at the material date the Defendant had not repaired the defective tap.

8. As at the material date the Defendant had not assessed the risks involved in the manual handling aspects of the employment task relating to the operating of the lever.

9. As at the material date the Defendant had not warned the Plaintiff of the dangers of pulling on the lever attached to the defective tap.

10. The accident was caused by the negligence and/or breach of contract of employment of the Defendant, its servants or agents.

10.1 The Defendant, his servants or agents were negligent in that he or they:

(a) required and/or allowed the Plaintiff to use the tractor with a defective tap on the water tank;

(c) failed to provide adequate information, instruction, training or supervision as necessary to enable the Plaintiff to perform his work in a manner so that he was not exposed to hazard;

(d) failed to provide a safe place or system of work.

10.2 The Plaintiff repeats the particulars of negligence herein as particulars of the Defendant's breach of its contract of employment with the Plaintiff.

The Defendant, its servants or agents were in breach of the Occupational Safety and Health Act 1984 ("the Act") and/or the Occupational Safety and Health Regulations 1996 ("the Regulations") in that it or they failed to provide and maintain a working environment in which the Plaintiff was not exposed to hazard and in particular:

(a) (i) contrary to s 19(1)(a) of the Act failed to provide and maintain a workplace, and system of work in which the Plaintiff was not exposed to hazard;

(ii) contrary to s 19(1)(b) of the Act failed to provide such information instruction, training and/or supervision of the Plaintiff as was necessary to enable the Plaintiff to perform his work in such a manner that he was not exposed to hazard;

(iii) contrary to s 19(1)(d) of the Act failed to provide the Plaintiff with adequate equipment to protect himself against hazard;

(iv) contrary to regulation 3.1 of the Regulations, failed to identify and/or assess and/or control and/or reduce each hazard to which the Plaintiff was likely to be exposed.

(v) contrary to regulation 3.4 of the Regulations, failed to identify each hazard likely to arise from manual handling, assess the risk of injury or harm resulting from each hazard and reduce the risk of injury or harm.

(b) The Plaintiff repeats the particulars of negligence herein as particulars of the Defendant's breach of its statutory duties to the Plaintiff.

(a) The Defendant, its servants or agents, were in breach of the term of the contract of employment referred to in paragraph 4 herein in that it or they:

(i) invited or required the Plaintiff to perform work that was dangerous or unsafe to the Plaintiff;

(ii) failed to supply the Plaintiff information, instruction, supervision, assistance and facilities to ensure that the work performed by the Plaintiff would be carried out in a safe manner;

(iii) failed to warn the Plaintiff of any and all dangers associated with the work that he was invited or required to carry out;

(iv) exposed the Plaintiff to hazard and/or danger in the course of his employment.

(b) The Plaintiff repeats the particulars of negligence herein as particulars of the Defendant's breach of contract of employment with the Plaintiff.

11. As a result of the accident the Plaintiff sustained injury to the right arm and shoulder and lower back and has developed depression."

3 The defendant admits that the plaintiff used a tractor with a water tanker which had a tap and a lever and was engaged in watering the tracks at Ascot Racecourse but otherwise the allegations in par 5 and par 6 are not admitted. The allegations in par 7, par 8, par 9 and par 10 are denied by the defendant.

4 In particular, as to par 10 of the statement of claim the defendant pleads as follows:

"10. Further, or in the alternative, if the Plaintiff suffered loss and damage as a result of the injuries alleged by him (which is not admitted):

(a) The Defendant says that the Plaintiff has retained earning capacity to work in gainful employment; and

(b) The Defendant avers that the Plaintiff has failed to mitigate his loss by utilising and/or exploiting his retained earning capacity to attempt to obtain and/or engage in remunerative employment.

11. Further, or in the alternative if the Plaintiff suffered injury, residual disability, loss and damage (which is not admitted) the Defendant says that such injury, residual disability, loss and/or damage was not caused by the accident but was caused or contributed to by a pre-existing degenerative or other medical condition of the Plaintiff's shoulder/right elbow and/or lower back.

11A Further, or in the alternative, if as a result of the accident the Plaintiff sustained injury to his right arm, then such injuries were mild; and not incapacitating, and the effects of the injuries have been overtaken by the progression of pre-existing degenerative changes in the Plaintiff's right elbow and shoulder, such that any ongoing complaints and disability may not reasonably be attributed to the accident."

5 The defendant does not admit that the plaintiff sustained injury as alleged in par 11 and pleads as follows:

"15. Further and in the alternative, if the Plaintiff is entitled to damages as claimed or at all (which is denied) then the damages that can be awarded to the Plaintiff are capped in accordance with the provisions contained in Division 2 Part IV of the Workers' Compensation & Rehabilitation Act 1981 (As Amended) ("the Act").

(a) The Plaintiff has not obtained nor has he recorded a determination in the Conciliation & Review Directorate of a relevant degree of disability of not less than 30% in accordance with Section 93E(a) of the Act.

(b) The Plaintiff has recorded an Agreement in the Conciliation & Review Directorate of a relevant degree of disability of not less than 16% in accordance with Section 93E(3)(b) of the Act.

(c) Pursuant to Section 93F(1)(b), where a relevant level of disability of not less than 16% has been recorded in accordance with the Act, the maximum amount of damages that can be awarded for the most extreme case of that disability is an amount equivalent to the prescribed amount calculated in accordance with Section 93F(1)(a) of the Act.

(d) The Plaintiff has not suffered the 'most extreme case' of the disability for which he has obtained a not less than 16% determination of his relevant degree of disability, and accordingly, is not entitled to the maximum amount of damages prescribed by Section 93F(1)(b) of the Act.

(e) Furthermore, pursuant to Section 93F(1)(a), the amount of damages to be awarded is to be a proportion, determined according to the severity of the alleged disability, of the maximum amount of damages that can be awarded."

6 The allegations made in par 11 of the statement of claim are put in issue by the plaintiff in the reply to defence as follows:

(a) by a decision made on 20 September 2001 in proceedings between the Plaintiff and the first named Defendant in the Directorate of Conciliation & Review, it was found that the accident was the cause of all shoulder, arm, hand and psychiatric symptoms then complained of.

(b) the Defendants are accordingly estopped and precluded from maintaining the assertions pleaded in paragraph [11]."

7 As to liability the real issue centres around the circumstances of the incident itself. Whether or not and if so when such incident occurred is in issue. So too is the system of work and the method used for operating the lever so as to open the tap at the rear of the water tanker. Involved in the resolution of these issues is a determination of the plaintiff's credibility as a witness and also some of the other witnesses called.

8 The authorities make it clear that in order for a plaintiff to succeed in a claim of this nature it must be established that:

(a) the defendant owed a duty of care to the plaintiff;

(b) there was a breach of such duty of care by the defendant;

(c) any such breach was causative of the plaintiff's injuries.

9 In other words whether the plaintiff's case is founded in tort, contract or breach of statutory duty, the fundamental elements of the plaintiff's case must be established: see Bicknell v Australian Telecommunications Commission (1993) 10 WAR 373.

10 I now turn to the evidence relevant to these questions.

11 The plaintiff was born on 2 May 1939. He left school at age 14 years. He was brought up on a farm in Western Australia and worked in farm based activities for a number of years after completing his schooling. He travelled to the United Kingdom where he studied at a Bible School and married. Upon his return to Australia he went back to farming and then for about three years was engaged in the tyre industry. On leaving that he became a life and general insurance salesman for several years and rose to the position of a broker. He found that to be a most stressful occupation and suffered a breakdown. In the summer of 1987 the plaintiff was engaged by the defendant as a tractor driver on race days at Ascot Racecourse. In the summer of 1988 the plaintiff again went to the United Kingdom and upon his return at end 1988 he continued his employment with the defendant. Initially he drove for four hours per day and later that increased to 6-8 hours and then up to 10-12 hours per day in 1991. The procedure adopted was that the plaintiff would keep a record of his hours worked and at the end of each month submit that to the defendant for payment. The job involved harrowing rolling and watering of tracks at the Ascot Racecourse.

12 Insofar as the incident is concerned the plaintiff was engaged in watering the training track. To undertake this duty the plaintiff used a Chamberlain tractor with an attached water tanker. The water tanker was attached by a goose neck arrangement centrally to the rear of the tractor and behind the driver's seat. Photographs tendered at trial (exhibit 1) best illustrate the arrangement. It might be described as follows. At the rear of the water tanker is a swinging gate water valve that allows water to pass from the tank to a distribution bar/spray manifold at the very rear of the tanker. When operating, a strip approximately two metres wide will be sprayed behind the tanker with water discharging through the spray bar. The water valve has a lever located over the top of the valve and when raised the lever opens a gate to allow water to pass through the valve. The gate is a tapered circular disc that engages with a corresponding slot in the body of the valve to control the flow of water. The gate valve is opened by the operator of the tractor by means of a bell crank lever and cable. The bell crank lever is located on the left side of the goose neck (as one looks at it standing directly in front of the tanker) and behind the driver. Effectively the lever is located in line with, but above the tractor driver's head height and is operated by the driver leaning and reaching backwards and pulling down on the lever. To open the valve the hand lever is pulled downward and then rearward until the cable attachment point passes below the pivot centre. The valve remains in the open position until the driver lifts the hand lever a short distance to release it above the pivot centre and the valve is closed by gravity assisted by a weight on the valve actuation arm. The bell crank lever is connected to the valve by means of a steel wire cable which passes along the top of the tank and down to the lever on the valve.

13 It was the plaintiff's practice to reach back behind him with his right arm to pull the hand lever down to open the gate valve and similarly when he closed the valve. On the occasion complained of he said that he leaned back to turn the water on. The lever jammed. He kept pulling down on the lever to free it up but to no avail. In the course of doing that he felt excruciating pain in his elbow. Despite that he got off the tractor and went to the rear of the tanker and released the lever. He noticed that a metal counter weight was up on the pipe and the lever was jammed. He fixed the problem, got back on the tractor and continued to work for the remainder of the day.

14 The plaintiff said that he mentioned the incident to the defendant later that day. The defendant was at the time working on the starting barrier as it was a race day. The plaintiff said that the main discussion had been about getting the valve cleaned up to avoid it sticking again.

15 The plaintiff's evidence was that he had always used his right arm and hand when operating the lever. He also said that when he had seen the defendant using this machinery that the defendant had also used his right arm and hand to operate the lever. The defendant denied that to be the case and said that it was his practice to use his left arm and hand to operate the lever.

16 It was the plaintiff's evidence that from time to time there were problems with the lever and this would be caused by a build up of dirt in the valve which would cause the release gate to jam. It depended on how dirty the gateway was but it generally jammed when the lever was being pulled down to open the gate valve. The plaintiff complained about this to the defendant. He said that two or three times each summer the valve would be disassembled and maintenance undertaken to clean the valve.

17 Paul Anthony Lockyer assisted his father at Ascot from late 1992 until July 1995. He mainly assisted driving a Massey Ferguson tractor doing harrowing and rolling but occasionally he drove the water tanker. In 1994/95 he spent about three hours per week on the water tanker. He too, would use his right arm to pull the lever down to open the gate valve to commence watering. He said that it was usually a small action but occasionally the lever would jam and he would have to give it a sharp/quick tug to open the valve properly. In cross-examination he said that he naturally used his right arm to operate the lever as it was easier to reach from the seated driving position and that gave more manoeuvrability to operate the lever. He said it was important to align the tractor and tanker with the fence and drive straight.

18 Another of the plaintiff's sons, Christopher John Catchlove Lockyer also assisted his father at Ascot. He mainly drove the water cart. It was his evidence that both his father and the defendant had demonstrated to him the operation of the lever by using the right hand. Further, by using the right arm enabled him to look back to see that the water sprayer was operating. If he were to have used his left arm he would not have been able to do so. He also said that on one or two occasions the lever had jammed and on each occasion he had given it a sharp or hard pull down to open the valve.

19 On the other hand it was the defendant's evidence that he instructed the plaintiff in operating the water tanker. In the first instance he took the tanker out with the plaintiff sitting along side him to observe its operation. On the next occasion he went out with the plaintiff operating the equipment. The defendant said that he demonstrated the operation of the lever using his left arm to pull the lever down. He said that he had always used his left arm. Whilst he observed the plaintiff using the equipment he was not able to say that the plaintiff did it differently. He said that the machinery would be inches away from the rail and the driver would be focused on going forward and that the lever could be pulled down without looking back. He also said that the gate valve operation was simple and easy, that on the odd occasion it could be a bit stiff but no excessive force was needed. He denied that the plaintiff had ever reported to him any difficulties in operating the lever and nor had he been involved with the plaintiff in cleaning sediment from the valve. In fact he said that there was no rust or sediment build up in the valve and that it might go two years or so before needing to clean out the gate bar/spray pipe.

20 John Ellis Ransom had worked for the defendant back in 1982/1983. He drove the water cart full-time at Ascot and Belmont to maintain the training track. It was his evidence that he would pull the lever with his left arm and that he had never experienced any difficulty with the operation of the lever. He conceded in cross-examination that the right arm could be used although it would be difficult and he suggested that the driver might not have control of the tractor.

21 It was said by Mr Martin Simms a consulting engineer called by the defendant, that operation of the valve control lever was most naturally accomplished using the left hand which required the operator to raise the left arm such that the humorous was at approximately 45 degrees above horizontal. His report describes the action as being not dissimilar to reaching behind the left shoulder to grasp a passenger safety belt tongue. On the other hand when he attempted to operate the lever with his right hand he found that action to be awkward, requiring high body and neck rotation and the adoption of an unnatural pose. He also found on a number of occasions when he was testing the equipment that the valve did stick which required additional force to be used to open the valve.

22 By my observation of the photographic evidence and from hearing the witnesses I am satisfied that the lever could be operated with either the left or the right hand. Either way it required some rotation of the torso and the arm being raised and reaching back and above head height to pull the lever down. By using the right arm I accept that it would make it possible to look back along the side of the tanker to ensure its alignment with the side fence and to see that water was flowing as it sprayed out from the back of the tanker.

23 Despite evidence to the contrary I have no reason not to accept the plaintiff's evidence to the effect that it was his practice to use his right arm to operate the lever in the manner which he described. His evidence was corroborated by that of his sons who similarly used the right arm.

24 On the evidence also I am satisfied that from time to time the valve would jam and would require extra force to be applied on the lever to cause the valve to open.

25 It would seem that the force required to open the valve was low on most occasions. Mr Simms measured the force required at approximately three kilograms. However, on occasions when the valve tended to stick more force was required. That force was not measured by Mr Simms because under a steady pull it approached the limit of the spring balance used by him for testing purposes and which had a limit of 20 kilograms. There was a risk of the balance detaching if the valve suddenly opened. Mr Simms' evidence was that if the valve did stick "a short sharp pull on the lever readily freed it". The force required however was in the order of 20 kilograms or upwards.

26 Whilst the gate valve (body and gate) is bronze and is not liable to rust surface deposits and sediment could build up in the gate valve as was evident from photograph 10 attached to Mr Simms' report. That could cause the valve to stick.

27 All of that is consistent with the plaintiff's evidence. It is consistent in that:

(ii) when it did jam a short sharp downward pull down on the lever was required to open it the valve;

(iii) sediment would built up in the gate valve; and

(iv) from time to time maintenance was required to clean the sediment to make the valve easily operable by the operator.

28 It follows therefore that I accept the plaintiff's evidence insofar as those matters are concerned. It is supported by the evidence of other witnesses and in particular by the defendant's engineer Mr Simms.

29 The duty of an employer "is that of a reasonably prudent employer and it is a duty to take reasonable care to avoid exposing the employees to unnecessary risks of injury. The degree of care and foresight required from an employer must naturally vary with the circumstances of each case": Hamilton v Nuroof (WA) Pty Ltd [1956] HCA 42; (1956) 96 CLR 18 at 25 per Dixon CJ and Kitto J.

30 In McLean v Tedman [1984] HCA 60; (1984) 155 CLR 306, 313 Mason, Wilson, Brennan and Dawson JJ said that:

"The employer's obligation is not merely to provide a safe system of work; it is an obligation to establish, maintain and enforce such a system. Accident prevention is unquestionably one of the modern responsibilities of an employer: see Fleming, Law of Torts, 6th ed (1983), pp480-481. And in deciding whether an employer has discharged his common law obligations to his employees the Court must take account of the power of the employer to prescribe, warn, command and enforce obedience to his commands."

31 In Crombie v Uniting Church in Australia Property Trust (WA) (1997) 17 WAR 291 at 300, Malcolm CJ said:

"In Wyong Shire Council Mason J (with whom Stephen and Aickin JJ agreed) held that the existence of a foreseeable risk of injury did not in itself dispose of a question of breach of duty. The magnitude of the risk and its degree of probability remained to be considered with other relevant factors. As his Honour said in Wyong Shire Council (at 47 - 48):

'In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position.

The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable. But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors.' "

32 In Woods v Multi-Sport Holdings Pty Ltd [2002] HCA 9; (2002) 76 ALJR 483 at 39 et seq Gleeson CJ said:

"Because the concept of foreseeability in the law of negligence has been taken to embrace risks which are quite unlikely to occur, and to mean only that a risk is not one that is far-fetched or fanciful, many of the cases which discuss the approach to be taken by a tribunal of fact in deciding whether there has been a breach of a duty of care speak in terms of balancing the magnitude of the risk with the cost or inconvenience of preventing it. But, as Mason J pointed out in Wyong Shire Council v Shirt, ultimately the question of fact is what a reasonable person, in the position of the defendant, would do by way of response to the risk.

...

Where it is claimed that reasonableness requires one person to provide protection, or warning, to another, the relationship between the parties, and the context in which they entered into that relationship, may be significant. The relationship of control that exists between an employer and an employee, or of wardship that exists between a school authority and a pupil, may have practical consequences, as to what it is reasonable to expect by way of protection or warning, different from those which flow from the relationship between the proprietor of a sporting facility and an adult who voluntarily uses the facility for recreational purposes. I say 'may', because it is ultimately a question of factual judgment, to be made in the light of all the circumstances of a particular case."

33 Consistently however with the approach adopted by Mason J in Wyong Shire Council, Taylor J said in Electric Power Transmission Pty Ltd v Cuiuli [1961] HCA 3; (1961) 104 CLR 177 at 183: "...the duty of an employer does not extend to guarding against every conceivable risk however remote or fanciful..."

34 The employer is only required to take reasonable care for the safety of employees. This "does not mean that he must safeguard them completely from all perils": Vozza v Tooth & Co Ltd [1964] HCA 29; (1964) 112 CLR 316 at 318, per Windeyer J."

35 Accepting the plaintiff's evidence as to the valve sticking I also have no reason not to accept his evidence that he did from time to time complain to the defendant that the valve was sticking. The fact of the valve sticking combined with the awkward upper bodily movement required to pull the lever on (whether that be with the right or left hand) suggests to me that the system employed was not in all the circumstances safe. The combination of twisting, reaching back above head height and pulling down on the lever and the fact that when the gate valve jammed, a short hard pull was required, in my view exposed the plaintiff to the risk of injury. It was not a simple straightforward and easily undertaken task. Whilst it was not repetitive the high impact of the occasion when force was required was such that there was a real likelihood that injury could be sustained. It was not without risk and, in my view that risk was foreseeable.

36 That risk could have been avoided. The sticking of the valve could have been avoided by regular scheduled maintenance to ensure that it did not stick or jam. The plaintiff called Mr W J Apgar, a qualified engineer/scientist with extensive experience in engineering, industrial research and development, consulting, design and forensic engineering. He said that to avoid the awkward motion required to operate the lever a lever and Bowden cable system could have been installed which placed the operating lever in a position that could be comfortably operated by the operator while facing forward. Optionally, a power valve operating system using a dash mounted switch or valve could have been readily implemented.

37 The fact that other mechanisms might have been used does not, of course, evidence negligence. It is accepted that comparison of alternatives only becomes relevant where the system in question carries a foreseeable risk of injury: Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40. I am satisfied to the requisite standard, ie on the balance of probabilities, that inherent in the method of operation was a foreseeable risk of injury.

38 I reject the defendant's evidence that he was not aware of the problem of the sticking valve. On the plaintiff's evidence maintenance was undertaken two or three times during the summer months and in winter. The problem presented itself when the defendant's engineer Mr Simms attended to inspect the equipment. The plaintiff's sons both spoke of occasions when the gate valve jammed. It was not an isolated incident. Nor was it something that had not happened previously. It was likely to happen again unless appropriate steps were taken.

39 In all the circumstances I am satisfied that the defendant was negligent in failing to maintain the equipment, that the system of work was not safe, and that he was in breach of his duty of care to the employee.

40 In his statement of claim the plaintiff contends that he suffered injury "on or about 25 January 1995...". His evidence was that it was a race day at Ascot and that the defendant was working on the starting barrier. He claims that he told the defendant that he had hurt his elbow on the day. Most of the discussion then concerned the fact that the gate valve was sticking. The plaintiff continued work for the remainder of the day. He subsequently spoke with Dr George O'Neil at his church who referred him to Mr Peter Connaughton whom he saw on 20 February 1995. In the meantime he took painkillers to alleviate the pain. He complained to Mr Connaughton of a sore right elbow and forearm symptoms and having experienced a viral illness. He described the onset of symptoms as being towards the end of January. He was concerned that the symptoms had appeared about one week after spraying herbicide at Ascot. The plaintiff gave no history of any acute event or incident. On examination he reported right shoulder symptoms while the right arm was being put through a variety of movements. He was diagnosed as having a viral illness, right lateral epicondylitis and anxiety relating to various issues at work.

41 The plaintiff again attended on Mr Connaughton on 22 March 1995 when a first medical certificate (exhibit 27A) issued. The date and place of disability is stated as January 1995. The workers' description of how the disability occurred is stated as: "pulls a lever on a water tanker with R arm whilst driving a tractor." The worker's description of the injury is described as "painful right elbow and forearm". Mr Connaughton's diagnosis was "right lateral epicondylitis." Mr Connaughton considered the plaintiff to be "fit" but required further treatment. The plaintiff was referred to orthopaedic surgeon Mr Alan Prosser whom he saw in March 1995. Injection of local anaesthetic and steroid to the lateral epicondyl in March gave relief of the pain.

42 It was the defendant's evidence that there was no mention to him by the plaintiff of having suffered any injury in the early part of 1995. An employer's report form to SGIO Insurance (exhibit 35) under the hand of the defendant records day and date of occurrence as "advised of problem some time in March 1995". The form asks the question "Do you agree with the details of the occurrence as provided on the worker's claim for compensation form?" which is answered with a tick in the Yes box and the words "it is possible". That form was signed by the defendant and is dated 4 July 1995.

43 The defendant's wife Aino Marshall who apparently does all the paperwork for her husband's business gave evidence that it was in May 1995 that the plaintiff reported to her that he had an arm condition. She said that both Mr and Mrs Lockyer came to her gate and she assumed that they were there to discuss a letter which she had earlier caused to be sent to the plaintiff. She said that the plaintiff asked "a favour" of her to pay a doctor's bill. Upon enquiry she was told by the plaintiff that he had torn a tendon in his arm and he indicated to his left elbow. Upon the plaintiff's enquiry about worker's compensation he reportedly said: "Just say it aggravates when I'm driving the tractor, its no problem and I will continue working." Mrs Marshall paid the account but put it through for workers' compensation after 1 July. She continued to see the plaintiff and said that she heard no further mention of the elbow condition.

44 I attach no weight to Mrs Marshall's evidence. As contentious as those matters are they were not put to the plaintiff in cross-examination. The rule in Browne v Dunn (1983) 6 R 67 was not observed. The plaintiff had no opportunity to respond to Mrs Marshall's assertions. Fairness dictates that I should not have regard to that evidence.

45 Two issues arise. First, as to when the plaintiff allegedly suffered the injury and secondly, as to whether or not the injury was caused in the manner alleged by him. As to the first of those questions I have no reason not to accept the plaintiff's evidence. Whilst the first medical certificate gives 20 January and the statement of claim states 25 January as the date of the incident, the plaintiff recalled it as having happened on a Saturday race day at Ascot. Upon checking the racing calendar some time later he identified 21 January as being the race date. I accept his evidence on that.

46 As to the second question the plaintiff's description as to how the injury occurred has been consistent insofar as giving a history to medical practitioners and to the workers' compensation insurer. Furthermore, the defendant agreed so far as the details of the occurrence are concerned that "it is possible". Also, the plaintiff had no prior history of injury or pain in the right elbow. It was not the sort of injury which required immediate medical attention. Simple analgesics were used to abate pain. When the pain persisted the plaintiff sought medical attention. That would not be an unusual pattern in responding to this type of injury.

47 Having regard to the evidence and accepting as I do the plaintiff's evidence and I have no reason not to accept his evidence on these matters I am satisfied on the balance of probabilities that he did sustain injury in the manner claimed and consequently I find that the defendant's breach of duty of care was causative of the plaintiff's injury to the elbow.

Workers' compensation and claim of issue estoppel

48 On 10 December 1999 the plaintiff filed a Form 22 referral of a question of degree of disability in the Conciliation and Review Directorate of Workcover Western Australia. The Form 22 described the injury as "right arm" which it said occurred on 25 January 1995. Notice of the application was given to the defendant following which a Form 23 Notice of Objection was filed by and on behalf of the defendant employer. A question having arisen pursuant to s 93D(10) of the Workers' Compensation and Rehabilitation Act 1981 (WA) ("the Act") the objection was referred to a review officer. On 6 February 2001 the review officer delivered his decision. The defendant successfully appealed that decision and the decision of the review officer of 6 February 2001 was quashed and the matter remitted back to the review officer for further consideration in accordance with the appeal Magistrate's reasons.

49 On 20 September 2001 the review officer published his Reasons for Decision.

50 In those proceedings the defendant made the admission for the purpose of those proceedings that the plaintiff had suffered a disability to his right elbow in the course of his employment. What was at issue in those proceedings was the extent of the resultant disability claimed to have been suffered as a consequence of the injury. Accepting liability for the purpose of those proceedings of course is not determinative in these proceedings of the issue as to whether the injury was in fact sustained as a result of negligence and/or breach of statutory duty and/or breach of contract by the employer. The review officer's decision determined the extent of the disability.

51 In his reasons the review officer found using the common law causation test that:

"(a) The compensable disability included the elbow, shoulder and hand.

(b) There was psychiatric illness caused by the same disability.

(d) The hand, shoulder and elbow had been asymptomatic prior to January 1995.

(e) The permanent loss of use of the right arm as a whole could be assessed at 20% with the psychiatric disability assessed at 5%."

52 The right elbow problem is documented from 20 February 1995 when the plaintiff saw Mr Connaughton. He later complained of right shoulder pain. According to medical testimony to which more detailed reference will be made later in these reasons "the right shoulder became particularly symptomatic in about July 1995, with findings suggesting rotator cuff impingement or tear". Furthermore, by October 1995 the plaintiff was being referred to Dr O'Connell for psychiatric review.

53 By his reply to defence the plaintiff contends that the defendant is estopped by reason of the review officer's decision made on 20 September 2001 from denying that the incident was the cause of all shoulder, arm, hand and psychiatric symptoms then complained of. The defendant contends that the review officer's findings cannot be said to involve the determination of a substantive issue for the purposes of the common law proceedings. It is said the determination does not establish any right except to contend for common law damages.

54 Since the trial of this action the High Court of Australia has delivered its reasons for decision in Kuligowski v Metro Bus [2004] HCA 34. In dealing with the application of "issue estoppel" the High Court said at par 21:

"In his speech in Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2) Lord Guest, after noting that the doctrine of issue estoppel had been accepted by Australian courts for a number of years, indicated that, for the doctrine to apply in the second set of proceedings, the requirements were:

(2) that the judicial decision which is said to create the estoppel was final; and,

(3) that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies."

55 Kuligowski had a similarly tortuous litigious history. Kuligowski suffered injuries in an accident at work. He failed in workers' compensation proceedings against his employer Metro Bus in the Conciliation and Review Directorate of Western Australia. He then obtained two orders from a Deputy Registrar of the District Court of Western Australia. The first order granted leave to Kuligowski to institute proceedings in the District Court for damages at common law in relation to the injury. The second order dismissed an application by Metro Bus that Kuligowski's claim be dismissed. Those orders were then set aside by a Commissioner of the District Court who accepted a contention advanced by Metro Bus that an issue estoppel arose from a decision in the workers' compensation proceedings. The Full Court of the Supreme Court of Western Australia, by majority (Kuligowski v Metro Bus [2002] WASCA 170; (2002) 26 WAR 137 (Malcolm CJ, Steytler and Templeman JJ; Wallwork and McLure JJ dissenting) dismissed an appeal from the Commissioner's orders and an appeal was brought by special leave to the High Court. Kuligowski was successful on his appeal to the High Court. In the course of its reasons the High Court considered, inter alia, whether the decision of the review officer was a final decision for the purposes of issue estoppel and whether the issues arising in the District Court proceedings were the same issues decided by the review officer.

56 As will be readily apparent those issues similarly arise in these proceedings.

57 In this case there is no dispute about the satisfaction of requirement (3). As to that the High Court said at par 22:

"The second review officer was not sitting as a 'court' in any strict or conventional sense, but it was common ground that:

'the doctrine of estoppel extends to the decision of any tribunal which has jurisdiction to decide finally a question arising between parties, even if it is not called a court, and its jurisdiction is derived from statute or from the submission of parties, and it only has temporary authority to decide a matter ad hoc.'"

58 As was the case in Kuligowski the controversy here is centred on requirements (1) and (2).

59 As to requirement (2) the High Court said at par 25:

"A 'final' decision, then is one which is not of an interlocutory character, but is completely effective unless and until rescinded, altered or amended. The fact that an appeal lies from a decision does not make it any less final. It must be 'final and conclusive on the merits': 'the cause of action must be extinguished by the decision which is said to create the estoppel'."

"The decision of the second review officer was final, because it was 'completely effective unless and until it should be rescinded, altered or amended'."

61 As to requirement (1) that being whether it was the same question the High Court said at par 40:

"In Ramsay v Pigram [1968] HCA 34; (1968) 118 CLR 271 at 276, Barwick CJ encapsulated what was involved in answering that question by saying:

Long standing authorities, in my opinion, warrant the statement that, as a mechanism in the process of accumulating material for the determination of issues in a proceeding between parties, an estoppel is available to prevent the assertion in those proceedings of a matter of fact or of law in a sense contrary to that in which that precise matter has already been necessarily and directly decided by a competent tribunal in resolving rights or obligations between the same parties in the same respective interests or capacities, or between a privy of each, or between one of them and a privy of the other in each instance in the same interest or capacity. The issue thus determined, as distinct from the cause of action in relation to which it arose, must have been identical in each case.'"

62 The High Court concluded that in the proceedings under the Act no findings were made which operated in the manner alleged as issue estoppels nor was the structure of the legislation and the nature of the proceedings such that it could be said...that the necessary findings must be treated as having been actually litigated and determined.

Were issues "actually litigated and determined"

63 The question at issue is whether or not matters pertaining to causation were "actually litigated and determined" in the proceedings before the review officer. The ultimate issue determined by the review officer is stated at par 88 of his Reasons dated 20 September 2001 (exhibit 41):

"As to causation generally, I accept the employer's submission that I have jurisdiction to determine an assessment of degree of disability which is a consequence/symptom of the disability for which compensation has been paid or is payable. Further, I accept that I 'should have regard to those degrees of disability which are made up of the consequences or symptoms of compensable disabilities under the Act (within the meaning of section 5) in respect of which liability to pay compensation is not in dispute.'"

64 In determining that issue it was necessary that the review officer make findings insofar as the physical disability of the plaintiff was concerned. He said at par 111:

"The areas of challenge explored by the employer extended over the following;

whether the worker's disability consisted of the elbow only or the elbow, shoulder and/or hand;

whether the history of injury as related by the worker to the doctors is reliable;

whether the alleged disabilities to the elbow and/or hand were caused by an independent cause;

whether the worker has exaggerated his symptoms;

whether the alleged disabilities to the shoulder, hand and psyche must be compensable disabilities as defined in section 5 in their own right;

whether the alleged disabilities were symptomatic prior to the material date;

whether the worker's failure to undertake recommended medical treatment renders assessments unreliable insofar as permanency is concerned."

65 As to those matters the review officer made the following findings:

"That the injuries to the right hand and shoulder were not separate disabilities but were a consequence of the disability sustained to the elbow. (Par 112).

That there was no reason to conclude that the history of injury as related to the doctors was unreliable. (Par 113-116)

That there was no evidence to suggest that the alleged disabilities to the elbow and/or hand were caused by an independent cause. (Par 117)

That there was no reason to consider that the plaintiff had exaggerated his symptoms. (Par 118)

That prior to the incident the plaintiff although suffering from a degenerative process in his shoulder and elbows was symptom free. (Par 122)

No findings were made as to failure to mitigate or take recommended medical treatment. (Par 119 and par 120).

66 As to whether the plaintiff's psychiatric condition was a consequence of the physical disability the review officer found (adopting his earlier findings) that the psychiatric illness from which the worker suffered was a consequence of the physical disability.

67 My judgment in these proceedings necessarily involves consideration of those matters on which the review officer has made findings. Those matters were specifically raised by the defendant in the proceedings before the review officer. My view is that those matters have been "actually litigated and determined" and that the findings made operate as issue estoppels. The findings were made on an appropriate basis in that the review officer applied the common law test. I find that I am bound by the review officer's findings as to the injuries sustained and other matters which the review officer's decision necessarily involved.

68 If I am wrong in that I would nevertheless have come to similar findings on those issues as the review officer did. The review officer in making his findings carefully analysed the medical evidence which was before him and the submissions made by defence counsel. I incorporate the analysis and conclusions of the review officer seriatim into these Reasons.

69 Since the review officer's findings were made further medical reports for the purpose of trial and evidence of the various medical witnesses heard. For completeness it is appropriate that I also take into account that further medical evidence.

70 Dr John Ker, consultant physician in rehabilitation medicine, reviewed the plaintiff on 8 January 2003 (exhibit 15, report 8 January 2003). His findings on clinical examination were reported as follows:

"When I examined Mr Lockyer, I found that he had a substantive curtailed range of right shoulder movements with extension of 15 degrees, abduction of 30 degrees, flexion of 25 degrees, internal rotation of 70 degrees and external rotation of 20 degrees. All of these movements were carried out passively. The extremes of movement he reports as being painful and attempts to move his arm beyond this reproduce pain not only in the right gleno-humeral region but also along the medial border of the right scapula. Your client also reports that there is tenderness over the site of the right acromio-clavicular joint.

At the elbow his range of flexion and extension is profoundly curtailed with a loss of 40 degrees of extension and I found that pronation and supination movements were undertaken comfortably only through 60 per cent of their normal range. There was generalised tenderness over the lateral epicondyl but more localised over the medial epicondyl and I found that attempts at wrist extension or finger flexion in the right hand also reproduced some local discomfort."

71 It appeared to Mr Ker that the plaintiff's range of elbow and shoulder movements had substantively reduced since his previous examination conducted in February 1999. In describing the severity of injury he reported that the plaintiff "...demonstrated quite substantive limitation of function of the right upper limb suggesting an injury of moderate to marked severity." He did not believe that the plaintiff either then, or in the foreseeable future, had any form of useful work capacity. His prognosis was that there was little prospect of substantive improvement in the right arm.

72 Mr Alan Wang, orthopaedic surgeon, also reviewed the plaintiff in January 2003. He reported (exhibit 17, report 2 January 2003):

"On clinical examination I note Mr Lockyer remains severely disabled from his right shoulder. He indicates ongoing antero-lateral pain, and his active forward flexion today is 45 degrees, his active abduction 40 degrees, external rotation is 45 degrees, he can get his hand posteriorally only to the back pocket. His strength in shoulder movements is poor with give way weakness due to pain."

73 Mr Wang had earlier diagnosed the plaintiff's right shoulder condition as "...chronic impingement syndrome subsequent to a rotator cuff tendon tear and bursitis" (report 11 November 2000). He described the severity of injury as "...a moderate severe injury to the right shoulder." He expressed the view that the mechanism of injury, ie pulling on a stiff tractor lever was consistent with causing a rotator cuff tendon tear and impingement syndrome. At the last review it was Mr Wang's opinion that there was no change in the diagnosis of the right shoulder condition. His report states:

"He currently has severe disability from a full thickness tear of the supraspinatus tendon with impingement. He has not retained any significant work capacity as a tractor driver. He is likely to require further treatment and this is a right shoulder arthroscopy acromioplasty and an attempt at repair of his torn rotator cuff tendon. His disability without surgery is unlikely to improve over time. The prognosis is that Mr Lockyer is likely to remain as he is into the short to medium term without further treatment."

74 Dr Boon Loke, a consultant psychiatrist, first assessed the plaintiff on 11 August 1999 and most recently on 10 January 2003. He noted that the plaintiff had been consulting a private psychiatrist, Dr Geoffrey Dixon, who had prescribed him Amitriptyline (Endep) and Venlafaxine. On the Montgomery and Asberg depression rating scale the plaintiff was within the range of "mild depression". Dr Loke diagnosed the plaintiff as having dysthymic disorder and assessed him as having depressive symptoms as minor in severity (exhibit 16, report 15 January 2003).

75 Dr David Kennedy an industrial and sports physician examined the plaintiff on 21 April 1999 and concluded that he had a permanent residual disability in the functioning of the right upper extremity, ie shoulder and elbow, of 40 per cent (exhibits 20, report 13 July 1999). Upon review in January 2003 Dr Kennedy concluded that the plaintiff's level of disability remained the same as previously (exhibit 20, report 16 January 2003).

76 Dr John Bell, a consultant orthopaedic surgeon, examined the plaintiff on 27 May 1999, 6 March 2001 and again on 10 January 2003. He initially assessed the plaintiff as having sustained a soft tissue injury in the right upper limb musculotendinous in nature with diffuse aches. On examination on the last occasion he noted:

"[The] elbow lacked 15 degrees of full extension and he indicated discomfort with all movements of the right elbow and the right shoulder. He moved his right shoulder only around 30 per cent of range of movement lacking some 100 degrees of abduction and demonstrating no external rotation at all."

77 He was guarded in his prognosis it being a matter of concern that the plaintiff displayed a degree of "disease conviction" and had a very negative outlook on his situation. Dr Bell noted discrepancies between the plaintiff's symptoms and clinical findings. In support of that view he opined that moderate wear on the palms of both hands and reasonable muscle tone in the right arm and forearm were suggestive of reasonable activity with the right upper limb. It was his opinion that it was reasonable to assess the plaintiff as being unable to perform his tractor driving duties, however alternative lighter duties were possible.

78 The plaintiff first saw Alan Prosser, Orthopaedic Surgeon, on 27 March 1995 when he noted that the elbow condition was "...most likely due to lateral epicondylitis." He reported that injection of local anaesthetic and steroid to the lateral epicondyl in March and July gave good transient relief of the plaintiff's pain. With recurrence of pain however, the plaintiff chose to proceed with surgical release for lateral epicondylitis, which was undertaken in September 1995. In July 1995 Mr Prosser noted that the plaintiff's right shoulder became symptomatic after an episode of influenza. X-rays indicated rotator cuff tears and sclerosis around the greater tuberosity of the humerus. Injection of steroid improved the shoulder pain. Mr Prosser's report of 3 December 1995 states:

"There has been some recurrence of pain. The underlying problem is likely to be degenerative, but Mr Lockyer does note that his work involves reaching up behind his shoulder for a lever to operate the machinery, which may well be an aggravating factor in the onset of his shoulder pain and may be a perpetuating factor in the future. The shoulder pain may also be related to altered use of the limb in relation to the elbow disability."

79 During 1995 there was minor tingling in the hand in an ulnar distribution, and nerve conduction studies confirmed low grade compression of the nerve. During 1996 numbness in the little finger and aching in the forearm became more troublesome, together with the onset of mild weakness in the intrinsic muscles. Nerve conduction studies were repeated in February 1997 showing increased compression of the ulnar nerve and minor dysfunction of the median nerve in the carpel tunnel. An ulnar nerve decompression was undertaken in March 1997, decreasing the more severe pain in the forearm and lessening the tingling in the hand.

80 In his report of 1 January 2001 (exhibit 19) Mr Prosser reported:

"It is possible that a single incident as currently reported by Mr Lockyer could have initiated the onset of disability with rotator cuff tear in the right shoulder, and with lateral epicondylitis in the right elbow. Both problems could also be aggravated by repetitive use of the arm as recorded in 1995. The relationship is based on the temporal relationships, and the position of use of the arm. As noted in previous reports, both the shoulder disability and the elbow disability are also degenerative in nature."

"Mr Lockyer's condition has not changed since late 1995, and there is no evidence that he has made any recovery. It would appear there has been some progression of his depressive disorder. ... On Mr Lockyer's current presentation, he is not fit to return to his pre-accident employment duties as a tractor driver in either a full-time or part-time capacity. ... On the medical grounds alone, of the physical structure and function of his right upper limb, Mr Lockyer would be restricted to occupations that did not involve significant elevation of his shoulder. With those provisos, Mr Lockyer would have the physical capability for work as a sales assistant, a clerk, or an insurance sales person. It was emphasised that Mr Lockyer does not present as fit for any alternative employment.

It is speculative as to whether the claimant's current symptoms and ongoing incapacity for work are related to injuries he sustained or to pre-existing degenerative conditions. The main objective restriction of function currently is the right shoulder where a pre-existing degenerative condition is more clearly contributing to his disability."

82 Mr Prosser further noted that there was potential for the plaintiff's disability to be significantly improved by surgery to his right shoulder for arthroscopic assessment, decompression of the rotator cuff, and arthroscopic or open repair of the tear in the supraspinatus tendon. He considered that shoulder pain and range of movements could be significantly improved. At the elbow, no further medical treatment was suggested. Mr Prosser assessed the plaintiff as having "...a 15 per cent permanent disability of the right arm above the elbow."

83 Dr Geoffrey Gee, a consultant in pain management, reviewed the plaintiff on 6 January 2003. He noted some discrepancy between the plaintiff's symptom presentation and his clinical findings. There did not appear to be any obvious wasting in the upper limbs and he noted variations between his voluntary and passive movements of the right shoulder. He concluded that the plaintiff "...would appear totally incapacitated or unfit for work." The incapacity in his opinion related to the degenerative condition of the shoulder. He did not believe that the symptoms at the elbow were responsible for any incapacity. It was his belief that ultimately the plaintiff may have developed incapacity from performing his pre-accident duties because of his pre-existing age related degenerative condition of the shoulder, notwithstanding the injury to the elbow. He concluded the plaintiff had sustained a permanent loss of function in relation to his elbow as a result of the January 1995 incident and assessed that disability at 10 per cent. That does not take into account any assessment insofar as the shoulder is concerned.

84 The plaintiff had a past history of depression. In about 1980 he suffered a breakdown when a business venture/investment failed. His depressive condition was continuing for about 10 years. In July 1994 a friend of the plaintiff was murdered whilst in prison. The plaintiff had to deal with that and matters pertaining to the estate. That resulted in litigation. No doubt that was a distressing circumstance for the plaintiff to have to deal with.

85 At about the time he sustained injury at work and in the months following there was conflict as between he and his employer over his performance of the work required of him. There had been incidents in the course of the plaintiff's work which had resulted in WATC expressing concern to the defendant with the consequent possibility that the defendant's contract would not be renewed. The conflict is evidenced in exchange of correspondence (exhibits 3, 5, 6, 7, 8 and 9). Whilst there is an issue as to whether or not the plaintiff received the letter of 19 April 1995 (exhibit 5) at that time nothing in the end result turns on that. That conflict with his employer would clearly have been most stressful and concerning for the plaintiff.

86 At about this time, mid 1995, Mr Connaughton, his treating physician, referred the plaintiff to psychiatrist Dr O'Connell upon whom the plaintiff attended for about 12 months.

87 Mr Connaughton in his report of 10 January 1996 noted that:

"One of the main problems is that there appears to be significant conflict between himself and his employer and this was evident from when I first saw him in 1995. He attributes "stress" to this and his preference is to leave that job. He said that he felt the conflict with his employer may end up in court."

88 At some later time the plaintiff's mother went through a terminal illness and again that would have to have been stressful for him.

89 More recently, it is apparent that the plaintiff was resentful about a number of issues and particularly the medico-legal process. This coincided with the lead-up to proceedings in the Conciliation and Review Directorate to which reference has earlier been made.

90 Consultant psychiatrist, Dr Geoffrey Dixon, examined the plaintiff on 26 October and 14 November 2000. On presentment the plaintiff expressed concern about his lack of prospects in the work market and his anxiety about his financial situation as he was then receiving no wages, he had a very restricted lifestyle and he would never lose the pain or go back to work. Dr Dixon found the plaintiff "...was suffering from a major depressive disorder which was reactive to the injury he sustained to his right arm..." There is no question in Dr Dixon's mind that the plaintiff's psychiatric disorder was secondary to the accident. Dr Dixon considered that the psychiatric problems were causally related. He said in his evidence that "...if he hadn't had the accident he wouldn't be depressed." By reason of the depressive disorder he regarded the plaintiff as being totally unfit for work. He prescribed the anti-depressant Efexor.

91 The defendant referred the plaintiff to Dr Zelko Mustac, also a consultant psychiatrist. He saw Dr Mustac on 3 April 2000 who diagnosed him as having a major depressive illness which appeared to have become worse over the preceding 6-12 months. It appeared to Dr Mustac that the plaintiff's depressive illness had arisen out of consequences of his work accident including his conviction that he had limited opportunities for future employment.

92 When last reviewed by Dr Mustac on 7 January 2003 he reported that the plaintiff's depressive illness was ongoing but that he regarded it as of mild severity and at that time appeared to be largely in remission. Nevertheless, the symptoms were still there.

93 Whilst the plaintiff was vulnerable to depressive illness and there were a number of unrelated factors in his life which were no doubt stressful I am nevertheless satisfied that as a consequence of his injured state there was legitimate cause for stress, anxiety and depression. It is not possible to disentangle the unrelated factors. Anxiety about his financial situation, dealing with the pain, frequent attendances on doctors and specialists, proceedings and appeals in relation to the workers' compensation proceedings and financial insecurity and emotional issues were, and I accept, matters which affected the plaintiff's health and wellbeing.

94 The defendant tendered four surveillance video tapes (exhibit 14). The video surveillance tapes dated from 6/7 March 1996, 25 August and 28 August 1998, 30 March, 5, 14 and 19 April 1999, 13 February and 6 March 2001. During those videos the plaintiff is observed to undertake a number of activities in particular, walking and driving his motor vehicle, entering and alighting from that vehicle, filling the vehicle with petrol and undertaking simple shopping activities. At particular times he was variously bending to about 70 degrees, lifting a jerry can into the back of his car with his left arm but using his right hand to position it in the boot of his car, pushing a lightly laden supermarket trolley and carrying a small shopping bag to his car.

95 The plaintiff was shown carrying out what might be described as normal every day activities and it appeared that there was little restriction in the movement of his right arm. Upon reviewing the recordings Dr Ker reported:

"At no time did any of the activities that I observed in any way demonstrate (the plaintiff) to undertake activity which appeared at variance to his previous reports to me or at variance with my clinical examination findings."

96 He maintained his opinion (13 August 2003) that the plaintiff was not fit then or in the foreseeable future for any form of useful work.

97 Likewise, Dr David Kennedy viewed the video surveillance and reported that there was nothing to cause him to change his assessment. In his report of 7 August 2003 he maintained his opinion that the plaintiff:

"Was totally unfit for any occupational duties for which he has the appropriate skills training, work experience and education, and will remain unfit for any occupational duties on the open labour market in the future."

98 On the other hand Dr Mustac after viewing the video surveillance reported that what he saw on the tapes was not consistent with the plaintiff's use of his right arm during interview. He considered that the activities shown on the surveillance video were inconsistent with the plaintiff's alleged injuries and reported inability to perform certain tasks or engage in certain activities. In my view Dr Mustac in making those observations is commenting on something outside his field of speciality. The evidence of Dr Ker and Dr Kennedy, given that it is within their areas of specialisation is preferred.

99 In the end result however no conclusion one way or the other can be drawn from the surveillance videos.

100 Insofar as the circumstances of sustaining injury are concerned I have found the plaintiff's evidence to be credible and that there was no reason not to so find.

101 The defendant suggests that the plaintiff has exaggerated his symptoms in that there are manifest inconsistencies on examination and overstatement of his disability. I do not accept that submission. Whilst there is some evidence, eg Mr Prosser and Dr Gee, noting inconsistencies between complaints of disability and clinical observations, or "disease conviction" as described by Dr Bell, they are of a relatively minor nature when regard is had to the overall clinical findings. Furthermore, the "discrepancies" are contradictory of each other. Dr Gee wanted to compare voluntary movements with unassisted movements whereas Dr Bell advised that he encouraged patients to assist their own movements. Likewise, measurement of arm "wasting" can be misleading if muscle tone is not taken into account. Dr Bell thought that examining wear on the palm of the hands was a more important criterion than wasting. With respect to those views no absolute conclusion can be drawn suggesting unrestricted use of the arm.

102 The plaintiff presented in the witness box as a person of mild disposition who related his circumstances in a measured and straightforward way. He was controlled in response to what was an extensive and aggressive cross-examination. The defendant called Mr R J G Old, an employee of WATC. Mr Old described the plaintiff as a firm friend of some 35 years and described him as being a Christian spiritual man of good character.

103 The plaintiff's wife, Daphne Joan Lockyer works as a patient care assistant at King Edward Memorial Hospital. She has observed the effect which the injury and subsequent legal, emotional and social aspects have had on the plaintiff. She physically assisted the plaintiff post his operations and continues to do so. She described the plaintiff as being frustrated in not being able to do things which he had been able to do and of his suffering pain either in the arm or shoulder after attempting certain activities. Whilst I should not attach great weight to her evidence it is nevertheless consistent with the plaintiff's account of his circumstances to the various medical practitioners.

104 In all of the circumstances I find the plaintiff to have been a credible witness, one who has suffered his disability with frustration to the extent of depression and without exaggeration. I am not of opinion that he has overstated his disability.

105 The review officer made no finding on this issue considering it to be beyond his jurisdiction and a matter to be dealt with by this Court. (Par 119).

106 The plaintiff did pursue a vocational rehabilitation programme (exhibits 30 and 38).

107 In 1996 in an attempt at rehabilitation he undertook a work trial in the office of the Church of Christ at Midland. That lasted for approximately 12 weeks. He undertook general office duties which included answering telephone calls and overseeing a yard cleaner. He is a naturally right handed person. By reason of the pain and difficulty with his right arm he was not able to write or use a keyboard.

108 In 1997 he assisted two friends who were pest exterminators by minding their office, opening mail and answering telephone calls. That lasted for about 16 weeks working five to six hours per day. Again he had disability with pain and swelling at and below the right elbow and his right shoulder movements were moderately restricted. He was not able to manage work at the computer.

109 Further, it was the plaintiff's evidence that it was his belief that by reason of his disability and age his opportunities for gainful employment were minimal if at all. Not being able to use both hands would preclude him from undertaking shop assistant, storeman or service station attendant work. He does not have the skills or qualifications to undertake general clerical or travel agent's work. His mental state would preclude him from undertaking telemarketing or telephone sales work.

110 Mr Connaughton in considering the plaintiff's ability to retrain said that "...age and work experience indicates that he would not readily obtain employment."

111 The plaintiff intended to work to age 65 which age he has now reached. It would not be unreasonable in the circumstances to conclude that the plaintiff was not in any event motivated to engage in any further gainful employment.

112 The weight of medical evidence confirms the unlikelihood of the plaintiff undertaking gainful employment since his employment was terminated in September 1995.

113 On the balance of probability and having regard to the evidence I conclude that the plaintiff by reason of his disability was not capable of being gainfully employed in any occupation. It is my finding that he had no retained earning capacity to work in gainful employment. It is my finding that he has not failed to mitigate his loss by utilising and/or exploiting any retained earning capacity by attempting to obtain and/or engaging in remunerative employment.

114 In par 11A of the Defence the defendant contends that the effects of any injury to the right arm has been overtaken by the progression of pre-existing degenerative changes in the plaintiff's right elbow and shoulder such that any ongoing complaints and disability may not reasonably be attributed to the accident.

115 In pleading that, the onus is on the defendant to "disentangle" the degeneration (see Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164). Upon my analysis of the evidence the defendant has not discharged that onus. The condition was asymptomatic prior to the incident. He made complaint of pain/soreness in the shoulder to Mr Connaughton only a matter of months after the incident. Furthermore, it was the evidence of Dr Ker that there was no degeneration in any joint other than the injured shoulder. Therefore I conclude that the degeneration is consequential upon the injury sustained.

116 I adopt the findings made by the review officer which are detailed in pars 51 and 65 of these Reasons. Further, it is my finding that:

1. Since the review officer's findings and up to trial the plaintiff's physical condition both in respect to the right elbow and right shoulder have not improved but rather that the right shoulder condition has deteriorated further.

2. The plaintiff has a substantive limitation of function of the right upper limb.

3. Such disability has been causative of pain, suffering, loss of amenities and loss of enjoyment of life.

4. The depressive illness is continuing although mild in severity.

5. The plaintiff is and will in the future be restricted in household and gardening activities and other leisure or recreational pursuits.

6. He was not able to return to his pre-accident employment and has been rendered unfit for any alternative employment.

117 The plaintiff has recorded an agreement in the Conciliation and Review Directorate of a relevant degree of disability of not less than 16 per cent in accordance with s 93E(3)(b) of the Act.

118 Section 93F of the Act provides, inter alia:

"1. Unless an agreement or determination that the degree of disability of the worker is not less than 30% is recorded for the purposes of section 93E -

(a) the amount of damages to be awarded is to be a proportion, determined according to the severity of the disability, of the maximum amount that may be awarded; and

(b) the maximum amount of damages that may be awarded is amount A, but the maximum amount may be awarded only in a most extreme case of a disability of less than 30% in degree."

119 In those circumstances the maximum amount of damages, both pecuniary and non-pecuniary, that can be awarded for the most extreme case of that disability is an amount equivalent to the prescribed amount calculated in accordance with s 93F(1)(a) of the Act.

120 The parties are agreed that the s 93F "cap" is an amount of $284,615.

121 The defendant contends that the plaintiff has not suffered the "most extreme case" of the disability for which he has obtained a not less than 16 per cent determination of his relevant degree of disability and accordingly is not entitled to the maximum amount of damages prescribed by s 93F(1)(b) of the Act.

122 Furthermore, pursuant to s 93F(1)(a) the amount of damages to be awarded is to be a proportion, determined according to the severity of the alleged disability, of the maximum amount of damages that can be awarded.

123 Section 93F(1)(a) uses the expression "severity of the disability", whereas s 93D and s 93E speak of "degree of disability". I accept the defendant's submission that it would therefore seem that the proportional severity is not determinable according to the percentage degree of disability. Otherwise there would be no reason to assess quantum, every case being determined according to a percentage of the maximum amount according to the percentage degree of disability agreed or determined.

124 Nor is it possible to discern what Parliament intended by the use of the words "may be awarded only in the most extreme case of a disability of less than 30 per cent in degree".

125 Nevertheless, the section suggests that amount A constitutes a damages cap which creates a scale within which all damages, economic and non-economic must be proportioned. The closest analogy is found with reference to s 3C of the Motor Vehicle (Third Party Insurance) Act 1943 which caps damages for non-pecuniary loss in similar terms.

126 The question as to the method to be adopted in the awarding of damages, bearing in mind the "cap" contained in s 93F was discussed by Viol DCJ in Guest v NRMA Insurance Ltd [2002] WADC 115 pars 77-89. His Honour concluded (par 87) that by reason of the particular wording used it was suggestive that a discretionary assessment was necessary rather than a mathematical calculation. For the reasons which his Honour expressed I accept that is the appropriate interpretation. I adopt also the view of his Honour that the wording of s 93F "...suggests some consideration of the overall economic and non-economic consequences to the plaintiff as a result of the accident."

Consideration of economic and non-economic consequences

127 Section 93F(3) of the Act provides that no entitlement to damages is created by sub-section (1) and that the sub-section is subject to any other law that prevents or limits the awarding of damages. What I would understand by that is that it is nevertheless incumbent on the plaintiff to prove loss. Necessarily, that task must be undertaken in determining the overall economic and non-economic consequences to the plaintiff.

128 It is clear that the plaintiff suffered an injury of moderate severity to his right elbow in the incident. He underwent a series of investigations and operations. Thereafter the shoulder complaint caused the plaintiff trouble and continues to do so. I accept also that his depressive condition can also be attributed at least in part to the consequences of the incident. Whilst I accept that the plaintiff may have had a vulnerability to a depressive illness it is undoubted that the consequence of this incident has if not caused, then contributed to, his bouts of depressive illness since. It is not possible to disentangle the extent to which such condition may be attributed to the incident or to other issues.

129 It is reasonable to conclude that the plaintiff has suffered many, if not the majority of symptoms and sequelae pleaded in par 13 and par 24 of the statement of claim.

130 Having regard to these matters and the evidence generally, an appropriate award of damages for loss of amenities would be in the region of $60,000.

131 I accept that the plaintiff was unable to work in his pre-accident occupation or alternative employment and has been so incapacitated since 12 September 1995. He is an individual who is unskilled, past middle age, who has suffered a work injury. Given the findings as to his physical condition and his depressive illness I have concluded that he had no retained earning capacity. Adopting the method of calculation set out in the plaintiff's schedule of damages his past loss of income to trial is in the order of $250,000. On the same basis his future loss of earning capacity to age 65 taking into account contingencies would be in the order of $40,000.

132 It is my finding also that having regard to the evidence the plaintiff would be entitled to superannuation contributions on both past and future earning capacity, a modest allowance for travelling expenses and also a reasonable allowance for past and future gratuitous services. The schedule of damages also details a claim for past medical treatment expenses in the order of $1,591.10, past medication expenses in the sum of $9,782.40 and future surgery in the approximate sum of $6,000. As to the latter item the evidence of Mr Wang and Mr Prosser clearly indicates that such surgery may be beneficial to the plaintiff. Those items would be allowed. Allowance would also be made for future medication expenses (claimed at $11,232.20), future specialist attendance expenses ($852), future general practitioner attendance expenses $1,232, future psychiatrist attendance expenses ($1,227) and future hydrotherapy and physiotherapy (approximately $7,000).

133 When all is taken into account I am satisfied that the "severity of the disability", having regard to "the overall economic and non-economic consequences to the plaintiff" puts the plaintiff "in a most extreme case of a disability of less than 30 per cent in degree".

134 On this basis the plaintiff would be entitled to the maximum allowed under the Act.

135 I will hear counsel as to the appropriate orders to be made.