Papadopoulos v Fabian Trial Pty Ltd [1998] VSC 125

9. The first issue, then, which I must determine is whether the plaintiff did suffer some injury when assisting to lift the machine on the day in question. Evidence that he did so was given by the plaintiff and by a former workmate, Mr Tomkinson. The thrust of their evidence was that in the first part of that day they worked at a site in Sunshine. The compactor, one of two on site, had been unloaded and put to use. During the morning the boss, Mr Vassallo, instructed Mr Tomkinson and two other workers to move to another site - leaving he, the plaintiff, and a backhoe operator at the Sunshine job. It was necessary to reload the truck with items of equipment including one of the two compactors. Mr Tomkinson estimated its weight at 80 - 100 kgs. The plaintiff gave evidence that it weighed 100 kgs, but his evidence on the point was vague. In any event, it was evidently heavy, and it made an awkward lift. The two men carried it to the side of the truck from the work site, a distance of 10 (or perhaps 15) metres. They put it down and checked for a spot on the tray of the truck on which to place it . The truck was a cabover Bedford with a tray. It had drop sides and a drop rear panel. It was not equipped with any lifting apparatus. The sides and rear panel were at the time in the erect position. They acted to contain on the tray a body of material, some of which was roped to the sides. The two men lifted the compactor, one on each side and holding handgrips on its base plate. They had to lift it above chest height, the plaintiff the more so because he was some inches shorter than his workmate. Then they had to heave it onto the truck.

12. According to the plaintiff, in the course of the lift he felt a sharp pain in his lower back which radiated into the left buttock and thigh and down his left leg to his toes. According to the workmate, when the plaintiff and he had lifted the compactor up to the necessary height and heaved it as was necessary, the plaintiff had said 'Oh, my back'. He had appeared to be in absolute agony. He could hardly stand up. His workmate told him to go and report the injury.

15. The plaintiff said that he did report the injury. The boss said he would have to stay on site for the rest of the working day. He did so. At the day's end, back at the defendant's yard, he again mentioned the incident to the boss. The workmate gave evidence which confirmed the making of those reports.

18. The plaintiff was cross-examined in a way that might have suggested, to an intelligent man, that it was being put to him that only he and the boss and the backhoe operator were ever on site on the particular day; further, that there had not been an occasion when equipment was loaded back onto the truck in the course of the working day. But those matters were never squarely put to him; and it is my clear impression that the plaintiff is not a man of considerable intellect.

21. It was put to the plaintiff in cross-examination that the truck had not been at the site that day; and that he had made no complaint of injury to his boss. These matters he denied.

24. The workmate who gave evidence in support of the plaintiff was not cross-examined to suggest that he had not been at the same worksite as the plaintiff on the day in question; nor that the plaintiff's account of what had occurred when reloading the truck so that some workers could move to another work site had not occurred. His quite graphic account of the lift, and of the plaintiff's immediate complaint of injury, and of the plaintiff's appearance thereafter was not the subject of cross examination at all. The same situation applies to his evidence that on two occasions on that day the plaintiff had told Mr Vassallo about his back problem, on the second of which there was discussion about the plaintiff seeing a doctor. Again, it was not put to him, in light of evidence given later by Mr Vassallo, that he was not even employed by the defendant on that day.

27. According to the evidence of the plaintiff and Mr Tomkinson, the men on site at the critical time were the two of them, Mr Vassallo, another gentleman named Mike Papadopoulos, a Mr Azzopardi, and the backhoe operator. The plaintiff gave evidence that the other Mr. Papadopoulos (not a relative) and Mr Azzopardi were respectively a friend and a relative of Mr Vassallo.

30. Of the other men who were (or were alleged to be) on site at the time only Mr Vassallo gave evidence. His evidence was to the effect that he and the plaintiff worked at a site at Ardeer on 25 April 1994. The two of them apart, only a backhoe operator was on site that day. Mr Tomkinson was not employed by him at the time and did not work on the site that day. The other Mr Papadopoulos was not then employed by him. Necessarily, no incident such as the plaintiff recounted had occurred. There was a compactor on site. It would have been loaded onto the defendant's utility ( for the truck was not there) at the end of the day by he and the plaintiff. The plaintiff had not reported any injury. At the end of the day the plaintiff had said he was 'stuffed' - which Mr Vassallo took as just an expression of fatigue.

33. The plaintiff's counsel pressed me to conclude that it could be expected that the defendant would have called the other Mr Papadopoulos and Mr Azzopardi in the ordinary course of things; and that I should infer, from the defendant's failure to call them, that the evidence they could have given would not have assisted the defendant - in which case I could more readily draw the inference that the plaintiff had suffered injury in the course of a lifting incident as described.

36. It may be accepted that an inference adverse to a party can be drawn, in some circumstances, even if the potential witness was equally available to both parties: Earle v Castlemaine District Community Hospital [1974] VicRp 86; [1974] VR 722 at 728 per Little J. It should also be accepted that the inference may be drawn even though the party against whom it is directed gives or calls some evidence upon the critical point: Earle at 730 per Little J, at 731 per Gillard J, and at 735 per Lush J. Those things said, the evidence in the present case upon which I was urged to draw an inference adverse to the defendant was thin. I do not conclude that the potential witnesses were not equally available to both sides. I see no reason in the particular circumstances to draw an inference adverse to the defendant by reason of its failure to call one or both of them. Indeed, it was not made clear just what consequences should be said to flow from an inference that the witnesses, if called, would not have assisted the defendant's case. There was no evidence that either of the men witnessed the incident of which the plaintiff and Mr Tomkinson gave evidence, or was present when a report of injury was made to Mr Vassallo. It may be that the plaintiff could say no more than that the potential witnesses did not support the defendant by giving evidence of their non-attendance at the particular site on the particular day - which assumes that they had any reason to recall that day.

39. Mr Forsyth of counsel, for the defendant, apart from relying upon the evidence given by Mr Vassallo, relied upon histories given by the plaintiff to the treating general practitioner, to his orthopaedic surgeon, and to a consulting engineer; to documents which the plaintiff completed in connection with his accident compensation claim; and to one of the plaintiff's answers to interrogatories. The plaintiff, he contended, had in substance admitted either that there had been no incident at all on 25 April; or else that, if there had been an incident, it had played little or no part in the development of the spinal condition which is at the heart of the plaintiff's claim.

42. The plaintiff signed a claim for compensation. It is dated 24 May 1994. It stated that he suffered 'pain in left side of leg', the area of the body affected being in 'lower back and left leg' in consequence of 'heavy lifting'. The date of injury was said to be 25 April 1994. Although the plaintiff stated that he had no previous pain or disability affecting that area he said also that he first became aware of the injury or condition on 22 April.

45. The claim form did not identify a particular lifting incident. It was ambiguous in its references to 22 and 25 April. That ambiguity was explicable by the plaintiff's viva voce evidence before me. Generally, I think, the document should not be read as containing any admission against interest by the plaintiff.

48. The claim form was accompanied by an initial medical certificate. Part of the certificate contained an account of the injury and its cause signed by the plaintiff. That account was to the effect that the injury or condition first happened on 26 April and that it developed immediately. He became aware of it, reported it and last worked on that day. The cause ascribed was 'heavy lifting at work concreting'.

51. So far, reference to 26 April rather than 25 April apart, I doubt that the certificate should be read as constituting an admission against interest by the plaintiff. It is true that this account did not refer to a specific incident on the specified date. But it asserted a sudden onset of disability on a particular day.

54. The certificate, however, in a section completed and signed by the attending general practitioner, referred to the plaintiff having had 'sharp pains in lower back for last few months while on job'. That history was recorded in a section which enquired whether the injury complained of by the patient was an aggravation or re-occurrence of a pre-existing condition. The plaintiff said in cross-examination that he was not sure whether he had given the doctor such a history. He thought, but could not be sure, that he had suffered sharp pains in his lower back for a few months prior to Anzac Day.

57. Mr Forsyth elicited from Dr Cheung, the general practitioner whom the plaintiff consulted on 26 April 1994, the history noted at that consultation: "Left sciatica; 5 years as a concreter". Dr Cheung said also that the plaintiff had told him that 'he felt it was due to five years of lifting weights and working with concrete'.

60. The history noted by Dr Cheung, and the plaintiff's rationale, say nothing about any incident on 25 April. Neither the history nor the rationale give any hint of the timing of the onset of the sciatica. The defendant is assisted by the plaintiff's failure to identify the incident now relied upon.

63. Mr Forsyth next relied upon a history said to have been given by the plaintiff to Mr Ian Jones, his treating orthopaedic surgeon, at a consultation on 17 June 1994. The history was noted in the language of medical men, not the words of the plaintiff. Its gist, however, was this: that the plaintiff had told the doctor of the onset of slight pain extending into his left leg 5 months earlier; of there having been no prior history of back injury or incident (or symptoms); and of consulting his general practitioner in approximately May 1994 complaining of increasing leg pain and aching in his lower back.

66. The plaintiff said that he had told the doctor he had pains, he wasn't sure about the dates. He had told the doctor about the incident upon which he now relies. He did tell Mr Jones that he had consulted his doctor in about May 1994 because of increasing symptoms.

69. I do not doubt that the plaintiff gave Mr Jones the history that was recorded. I doubt that he referred to the specific incident upon which he now relies. There is no doubt that in part the history recorded by Mr Jones was wrong - that is, with respect to the time of the plaintiff's first consultation with the general practitioner and the history which he then gave.

72. Transcript is an imperfect instrument. It does not disclose what the judge sees, nor the manner in which evidence is given. Contrary, perhaps, to the impression created by the transcript, the plaintiff did not dissemble. His understanding of questions was not good. His uncertainty seemed to me to flow from that poor understanding. He seemed to have a quite poor sense of time. He was easily led. Examination in chief flattered his capacities. These matters bear upon my assessment of the plaintiff as an historian. I take him to be a poor historian. It is possible to accept that he told Mr Jones what the latter recorded and yet that he told the truth about an incident which occurred on 25 April 1994, and its subjective effect upon him.

75. Mr Forsyth relied further upon a history said to have been given to McNicol Smith, a surgeon who examined the plaintiff on the defendant's behalf for medico legal purposes. The history was of gradual onset pain affecting the left thigh and the left leg; with cessation of work on 1 May 1994. The plaintiff agreed that that is what he told the doctor. But he seemed confused and unsure when asked whether he had reported the incident upon which he now relies.

78. Mr McNicol Smith was not called, but his reports were tendered. In light of one answer given by the plaintiff I am prepared to conclude that he gave the history which the doctor noted. That history aids the defendant by its absence of any reference to the incident which allegedly occurred on 25 April 1994, and by its emphasis upon progressive development of disability. On the other hand, the reported date of work cessation was wrong - bearing again upon the plaintiff's capacity as an historian.

81. I should next briefly refer to a history which the plaintiff accepted that he gave to Mr Purdey, a consulting engineer, who interviewed him in connection with this proceeding. Its apparent gist was that an incident occurred a few days prior to 25 April, that this caused back pain and led to the plaintiff consulting his doctor. The plaintiff did not in fact attend a doctor in the days before 25 April. The plaintiff's acceptance that he had given such a history, when the transcript is examined, is shown to be attended by confusion; as, I am sure, was the history as recorded itself.

84. Mr Forsyth drew the plaintiff's attention to his answer to defendant's interrogatory 3(c)(i). That interrogatory asked whether in the six months prior to the happening of the accident the plaintiff had suffered any and what injury to those parts of the body which he alleged were injured in the accident. The plaintiff's answer was 'no'. He said it would have been true. He didn't lie about these things. The thrust of the cross-examination was that his answer was inconsistent with the history given to various doctors. I do not think that is necessarily so. It depends upon how the word 'injury' was understood.

87. Late in the plaintiff's case the defendant's paymistress was called. She produced a wages book. It showed, inter alia, that in the week ending Wednesday 27 April 1994 the plaintiff was paid for 4 days' work, 1 day's public holiday and a Saturday. The public holiday was presumably Anzac Day, Monday 25 April. That is the day on which the plaintiff claims to have been injured. According to the wages book Mr Azzopardi was paid on the same basis, so far as Anzac Day was concerned. There is no record of any work by either Mr Tomkinson or the other Mr Papadopoulos in that week.

90. If the wages book could be relied upon, it would obviously aid the defendant. But unfortunately it cannot be relied upon.

93. The unchallenged evidence of the plaintiff and Mr Tomkinson was that they worked on Sundays and were paid cash. That was evidence upon which they were not cross-examined, although it was later controverted by Mr Vassallo. Understandably, but bearing upon its reliability, the wages book says nothing about any such payments.

96. Mr Tomkinson gave unchallenged evidence that he was always paid in cash, save for one year when he received a group certificate. He gave unchallenged evidence that he was working with the plaintiff at the time of the incident which the plaintiff fixes (by reference to his seeing the doctor on the following day) as having occurred on 25 April 1994. According to the paymistress Mr Tomkinson was 'actually not on the books'. He 'worked as a sub-contractor'. There appears to be no business record of what he was paid in 1994. Mr Vassallo did not go so far as to say that Mr Tomkinson did no work for the defendant in 1994.

99. The other Mr Papadopoulos, according to the wages book, was terminated in September 1993. The paymistress said that she was not aware of his staying on, or working for cash. Yet according to the plaintiff and Mr Tomkinson he was working on 25 April 1994.

102. The defence admits that the plaintiff worked on 25 April. So did Mr Vassallo in his evidence. So also, in a guarded way, did the defendant's answer to plaintiff's interrogatory 9.

105. In deciding whether the plaintiff has proved the occurrence of an incident causing him spinal injury on 25 April 1994 there is to be considered the evidence of the plaintiff and Mr Tomkinson, the evidence of Mr Vassallo and the matters raised by Mr Forsyth. In addition, there are circumstances which indirectly bear upon the matter.

108. First, there is evidence that the plaintiff worked for the defendant, undertaking heavy work for some years before 25 April 1994. There is no evidence that he consulted a doctor about his back or that he lost time off work because of a back condition in that period. Indeed, the only medical evidence is that he did not consult a doctor about any back complaint before that day. However, after 25 April he hardly worked for the defendant again.

111. Second, the plaintiff appears to have made no complaint of back trouble to his workmate Tomkinson prior to 25 April. The witness was asked a rather ambiguous question about the state of the plaintiff's back in the days preceding the day of the incident (T90). I took his answer to be that he had no knowledge of problems with the plaintiff's back before that day.

114. Third, Mr Vassallo gave no evidence, nor called evidence, to the effect that the plaintiff had been observed to have a spinal disability, or had made complaint of having any such disability, before 25 April 1994.

117. Fourth, the authorised insurer's litigation manager provided a serious injury certificate: see s135A(4)(a)(i) of the Accident Compensation Act 1985 in its pertinent form. The effect of the certificate was to consent to the plaintiff bringing a proceeding to recover damages in respect of injury sustained on 25 April 1994. That injury, according to the sense of the section - although the section was couched in unecessarily obscure language - must have been the necessary 'serious injury'. In the event, it appears to me that the certificate evidenced an admission made by a person with authority to bind the defendant.

120. I have carefully considered whether the plaintiff's failure on a number of occasions to mention the incident upon which he now relies should outweigh the impact of the circumstances which run in favour of acceptance of his evidence and that of Mr Tomkinson. It is certainly surprising that, on a number of occasions, he did not specifically identify the incident. Having heard the plaintiff give his evidence, and bearing in mind the evidence of the neuropsychologist, Dr Burton, I am sure that he functions, intellectually, at quite a low level; and that he is, perhaps explained by that circumstance, a poor historian. That said, I would have expected the plaintiff to identify by his history an event which had a major effect on his health. In the end, however, I am persuaded by consideration of all the pertinent evidence that such an incident did occur. I consider it is likely that the incident was productive of severe low back pain radiating to the left buttock and leg. I further consider it likely that there was a period of time before this incident when the plaintiff, in the course of work, suffered low back pain. I consider it probable that such pain had been experienced for a period of a few months prior to 25 April, rather than a few days. I consider it likely that the pain was intermittent - fitting the description noted in the initial medical certificate of 'sharp pains...while on the job'. I further conclude that the pains, though sharp, were not sufficiently frequent or severe to cause the plaintiff to consult a doctor, or to take time off work, or to desist from any part of his duties.

123. The plaintiff was, in my opinion, a credible witness. So was Mr Tomkinson. Many important parts of their evidence, so far as the alleged incident was concerned, were never challenged in cross-examination. That was starkly so in the case of Mr Tomkinson.

126. I was not impressed, on the other hand, with Mr Vasallo's evidence. So far as the events of the day are concerned, it was studded with the language of uncertainty. Moreover, the general effect of his evidence led me to seriously doubt his reliability as a witness. A series of denials that he made - for instance, that prior complaints about the nature of aspects of the work had been made to him, and that the business engaged in very little Sunday work (the plaintiff, none at all) - were not credible. He often refused to answer questions on the grounds that the answers might tend to incriminate him; likewise to produce private books pertaining to the business - even though he claimed that entries in those books would relevantly disclose a negative: that is, that Mr Tomkinson had not worked on 25 April.

130. I have already described the task which the plaintiff says he was undertaking when he was injured.

133. Mr Vassallo, the personification of the defendant, said that the job was commonly done in such a way. The effect of his evidence was that the system of work described was consistent with the industry practice. No worker of his had been injured, he said, when lifting a compactor in this way.

136. In one respect Mr Vassallo qualified his evidence that, upon the plaintiff's account, he had been doing the job in the common fashion. Mr Vassallo said that one of the side panels of the truck (had it been there - which he denied) could have been lowered. If that was done, he said, the lift was only to just above waist height.

139. I am satisfied that the system of work in which the plaintiff was engaged at the critical time was a system of work implemented and maintained by the employer. I am satisfied that the system of work did not require workers to loosen ropes and lower a side panel; but rather, that to undertake necessary lifts of compactors with the side panels in the elevated position was part of the system. Each of the plaintiff and Mr Tomkinson so described the system. Neither was cross-examined to suggest the contrary.

142. Neither were either of the plaintiff or Mr Tomkinson challenged in respect of their evidence as to the height of the top of the side panels when they were in the upright position; or as to the height of the tray. In the circumstances, I prefer their evidence upon those matters to the contrary evidence given by Mr Vassallo.

145. Unaided by the opinion of a consulting engineer, I would conclude that a system of work which required two men of considerably different heights to lift the heavy and awkward compactor to chest height or above, then to heave it away from them and lower it to the tray floor must have imposed great strains on the men's backs, most particularly the back of the smaller man - here, the plaintiff. The potential for spinal injury in those circumstances was in my opinion foreseeable indeed.

148. I am quite unimpressed by Mr Vassallo's reliance upon industry practice. If there was such a practice then - depending always upon the particular circumstances - its use was probably in breach of the duty of care by employers to their workers. It may not have been in breach if lifting of compactors was undertaken by more workers jointly, and to lower heights. But that possibility need not be explored.

151. In the case of the defendant, adherence to the alleged practice was accompanied by a complete absence of knowledge of what the law required of employers where manual lifting by workers was required. The provisions of the Occupational Health & Safety (Manual Handling) Regulations 1988 were a closed book to Mr Vasallo. Grandjean's 'Fitting the Task to the Man' (1986) suggests that, particularly when the load was lifted to the necessary height and the arms were extended to heave it onto the truck, the weight borne was excessive.

154. Mr Vassallo relied in part, in asserting that the system of work was satisfactory, upon the proposition that no man who worked for him had been injured when undertaking the task. That was to ignore the plaintiff. It was also to ignore what I am satisfied were a number of prior complaints made by employees of the defendant, including the plaintiff, that the job was too heavy.

157. I am satisfied that, when prior complaints were made, Mr Vassallo told the complainants that if they didn't want to do the work, he could get other workers from the CES at a lower, subsidized, hourly rate. I am further satisfied that when it was suggested that a backhoe and chain be employed to do the job, Mr Vassallo replied in substance that he paid the backhoe operator to dig and the labourers to labour. To use the backhoe would be too time consuming and costly. I am satisfied, again, that when it was suggested that a crane be fitted to the truck, Mr Vassallo responded that it would cost too much; and that he would have to get another truck. Evidence supporting these findings was given by the plaintiff and Mr Tomkinson. It was unchallenged in cross-examination. Mr Vassallo's denial of prior complaints, and of the remarks attributed to him, lacked force.

160. There was, I am satisfied, one inexpensive and practical way of alleviating risk of injury in lifting the compactor on and off the truck - the fitting of a mechanical crane with a manual winch. The report of Mr Purdey so asserts. There was no contrary evidence. This was not the only inexpensive method of alleviating the risk - as Mr Purdey's report makes clear at page 3.

163. In all the circumstances that I have described, I consider that the plaintiff has made out a very clear case of negligence on the defendant's part. The unsafe system of work which the defendant implemented and maintained carried with it a foreseeable risk of injury. The defendant was specifically put on notice of concerns by workers that the job was too heavy. Sensible suggestions about alleviating the risk were made and ignored. The risk could had been inexpensively alleviated.

Was the plaintiff guilty of contributory negligence?

167. Mr Forsyth conceded that, upon the plaintiff's account of the incident, he had been carrying out a system of work which his client had implemented and maintained. He rightly conceded that, in those circumstances, the various allegations of contributory negligence made by the defendant were not maintainable. He excepted from that concession particular (j), that is:

"If the plaintiff's duties caused the plaintiff stress or pain, failing to advise the defendant of the same in all the circumstances".

171. In my opinion the defendant has not made out that allegation. On the footing that the plaintiff had experienced intermittent sharp pains in his lower back over a period of a few months before 25 April 1994, I cannot say that the plaintiff failed to take reasonable care for his own safety by not advising the defendant of that fact. The plaintiff is a simple man who was doing a heavy job that his employer had declined to make any easier. Moreover, he was not a man with an understanding of the physiology of the spine such that he should reasonably have appreciated that continued work might or was likely to lead to him suffering a disc prolapse. Finally, I am confident, having regard to Mr Vassallo's response to other complaints by workers, that any report of back symptoms made by the plaintiff would not have led to any change to the plaintiff's duties or to his not suffering injury in the manner in which in fact he did.

175. I am satisfied that, by reason of the incident described, the plaintiff suffered a large L5-S1 disc protrusion with compression of the left L5 nerve root. That conclusion follows from the opinion of the treating surgeon, Mr Jones, at T153 lines 25-31.

178. I am further satisfied that, prior to surgery, the disc protrusion caused the plaintiff to be extremely disabled. The observations made by Dr Cheung on 26 April 1994 and by Mr Jones at the time of his first consultation on 17 June are in point. The plaintiff tended, in his evidence, to play down the observed severity of his disability.

181. The plaintiff underwent surgery on 16 August 1994. The disc material which was compressing the L5 nerve root was removed; more material was removed from within the L5-S1 disc space.

184. The plaintiff remained in hospital for about eight to ten days after surgery. He was in a lot of pain initially. His back problems aside, he developed a kidney infection.

187. He was discharged, but the kidney infection returned. He was admitted to the Essendon Hospital and the infection was treated. Either when he was in hospital immediately after surgery, or on his re-admission, a catheter was inserted. It remained in situ for at least eight days.

190. The kidney infection caused him much pain. It lasted for at least three to four weeks. But thereafter he has had no kidney problems.

193. The plaintiff told me that the operation relieved the symptoms which he had been experiencing in his left leg. He has been left with constantly occurring pain in his lower back. He has some pain all the time. It is worse in cold weather. It is aggravated by activity - things such as cutting the grass, hanging up clothes, walking with his children. He drives his car but gets back discomfort after 30 - 45 minutes. He is able to do a lot of things, but characteristically he has to lie down after activity. He had physiotherapy for a period after surgery. He was prescribed exercises. He does them each day. Once or twice he stopped doing them and his symptoms worsened. Exercises apart, he takes painkillers when necessary. He is not receiving medical treatment for his back. He has not done so for a considerable period.

196. The plaintiff's evidence in respect of his spinal symptoms and their effects upon him was almost completely unchallenged. That fact apart, I consider that it was reliable; and given with a tendency to understatement.

199. A body of medical evidence was adduced - partly viva voce, mostly by reports. So far as spinal injury is concerned, it supported the plaintiff's account. I particularly refer to the evidence of Mr Jones, the treating surgeon, which I accept in the present connection. He told me that the plaintiff had done better than he had expected. But the plaintiff's longer term outlook - over a 10 - 20 year period - is most likely one of slowly deteriorating back function, with gradual increase of back pain and possibly some leg pain; but hopefully not requiring (surgical) treatment. Continuation of physiotherapy - type exercises is advised. The doctor further remarked that he has never been able to detect any functional symptoms whatsoever in the plaintiff. That is consistent with my own impression, seeing and hearing the plaintiff give his evidence, that he is a straightforward man who did not exaggerate his disability.

202. According to the statement of claim the plaintiff suffered other injuries by reason of the defendant's negligence - anxiety, depression and mental reaction to trauma.

205. The plaintiff gave evidence that before 25 April 1994 he was a happily married man with three young children. After that day and before surgery he was depressed and upset. He was sick, had lost his job and his earnings. He was the sole provider for the family, and had been proud of that. Pressures built up, there was no money to pay the bills. There were sexual difficulties. His wife couldn't cope. He left their rented accommodation and went back to live with his parents. After his operation he and his wife formally separated. The oldest child resided with him (and still does). The younger children stayed with his wife (they still do). There has been and remains regular access. Eventually the plaintiff and his wife divorced. She has a new companion. The plaintiff had a later relationship, but it failed.

208. The plaintiff gave evidence, further, that he continues to remain anxious, depressed and upset. He feels badly about not working. He has children to support. He depends upon the largesse of his aged mother and his brother. He was humiliated when his father died and he did not have the money to buy a tombstone. He used to enjoy a variety of sporting and recreational activities. These have been curtailed.

211. At one stage, the plaintiff said, he was prescribed Prozac. He took it for a while. It did no good. He got more depressed and upset. He used to cry a lot at night. After he stopped taking it he was very tense for several weeks. He consulted a psychiatrist about twice, but he did not continue that attendance because 'I felt to myself that there was no problem with my head'.

214. I am sure that the plaintiff attempted to give me an accurate account of the emotional problems he has suffered since April 1994. I consider that he did not overstate or overdramatize the situation in any way.

217. I turn to the relevant medical evidence. His treating general practitioner, Dr Cheung, said that when the plaintiff was first seen about his back condition 'he was certainly quite demoralised'. Dr Kornan, the psychiatrist, examined the plaintiff three times for medical legal purposes. In summary, he considered that the plaintiff 'has consistently been obviously anxious and depressed in a noticeable way'. He 'has looked drawn and had lost weight and generally didn't appear all that well'. Dr Kornan attributed his condition primarily to the incident of 25 April 1994 and its after effects. In these after effects he included the breakdown of the plaintiff's marriage - although he expressed the opinion that the incident may not have been the only significant factor in the breakdown which occurred very soon after April 1994. He considered that other stresses have played some part in ongoing psychiatric disabilities. Thus, the unexpected death of the plaintiff's father, and ongoing tensions trying to deal with his 3 children.

220. Dr Kornan expressed the opinion that the plaintiff's psychiatric condition is likely to be permanent. The main reason for the plaintiff's work incapacity is his physical disability. The psychiatric condition adds to the overall incapacity. It tends to make the plaintiff's physical injuries seem worse to him. Dr Kornan foresaw problems with concentration, and with the plaintiff being able to produce a product to a required standard over a period of time, were he to obtain employment.

223. If the marriage breakdown was not attributable in fact or law to the incident of 25 April 1994, and so had to be viewed separately, it would not have, according to Dr Kornan, any incapacitating effect.

226. Dr Mendelson, a psychiatrist, gave viva voce evidence for the defendant. He examined the plaintiff on the defendant's behalf one occasion - on 1 October 1998. In his opinion, although the plaintiff described some emotional symptoms, he was not then suffering from a specific diagnosable mental disorder such as a depressive illness, a generalised anxiety disorder or a psychotic condition. According to the doctor the plaintiff had manifestations of anxiousness which did constitute a level of psychiatric impairment. But there was no evidence of any work incapacity arising as a consequence of any such impairment. He conceded that the plaintiff's emotional problems might impact upon his enjoyment of life.

229. Medical reports of Drs Cole and Barnes, psychiatrists, were tendered. Dr Cole had interviewed the plaintiff three times for medical legal purposes at the request of the plaintiff's solicitors. Dr Barnes had interviewed the plaintiff once at the request of the defendant's insurer. Each of those two doctors agreed, in substance, with the evidence of Dr Kornan as to the presence of anxiety and depression and its connection with the incident upon which the plaintiff now relies. Dr Barnes expressed the opinion that the medical injury has 'resulted in an incapacity for the worker'.

232. The opinion of Dr Mendelson plainly differed from the opinion of the other psychiatrists in respect of contribution by emotional problems to work incapacity. Otherwise the difference was, I think, more one of terminology than substance. Be that as it may, I prefer the evidence of Dr Kornan (supported by the evidence of Drs Cole and Barnes) to the opinion of Dr Mendelson. Dr Kornan had the advantage of interviewing the plaintiff on a number of occasions. His opinion appeared to me to have a sound and logical basis, and to be compatible with the plaintiff's presentation when the latter gave his evidence.

235. I consider, further, that I should accept Dr Kornan's opinion that the incident relied upon by the plaintiff was a cause - though not necessarily the only cause - of the breakdown of the plaintiff's marriage. I hesitate to conclude that it was the only cause because the breakdown took place so soon after the plaintiff was injured.

239. Said for the plaintiff to be pertinent to his ability to get and hold down a job in the future is his intellectual status. This was assessed by the neuropsychologist, Dr Carol Burton, on two occasions - in August 1997 and in September 1998. Her investigations revealed that the plaintiff had low average intellectual functioning - with a full scale IQ of 82. His non-verbal intellectual skills were better than his verbal intellectual skills. His power abstract thinking was weak, his mental arithmetic was poor, and he had impoverished general knowledge.

242. Dr Burton considered that the plaintiff's strengths are largely of a practical and manipulative nature. He does not have 'the verbal intellectual capacity to undertake retraining in clerical or office work'. He 'would not be able to work in any job which involves making calculations or handling money'. He has some problems with concentration. These may relate to his anxiety and depression and pain; or they may be an exacerbation of pre-existing difficulties.

245. Dr Burton's evidence upon these matters was unchallenged. I accept that evidence. It was consistent with the plaintiff's evidence, which I accept, that he left school at age 17 having failed Year 11 at a technical school - his particular failures being in English and Maths; and his successes being in practical work. It was consistent also with the plaintiff's employment history which was, save for part time work in a coffee shop which his father operated at one stage, unskilled labouring work - for the most part heavy in nature.

250. I have found that the plaintiff sustained disc prolapse on 25 April 1994. That injury produced the severe symptoms which necessitated surgery. Surgery has left the plaintiff with improved symptoms but a structurally different spine. Removal of disc material carries with it the prospect of long term deterioration of back function. The plaintiff's emotional problems are to be attributed to the incident of disc prolapse. The plaintiff has made out a prima facie case that his past and continuing symptoms, both spinal and emotional, and his incapacity for work, are a consequence of the defendant's negligence.

253. Mr Forsyth nonetheless submitted that, if I concluded that the plaintiff had sustained disc prolapse in an incident on 25 April 1994, I should compensate the plaintiff for earnings loss only for an arbitrary 10 year period; because, he submitted, the evidence showed that the plaintiff was likely to have suffered a prolapsed disc if he had continued in his employment with the defendant. He relied upon certain evidence given by Mr Jones, who described the possible sequence of events, mechanically, in a patient affected by back pain and later by the symptoms of nerve root pressure (T156-157). By reason of the form of the questions asked that evidence was, in my opinion, conditional and imprecise. See, for example, the form of the questions asked at T157, lines 7 and 11.

256. In re-examination Mr Jones was asked a question which presupposed the occurrence of some non-referred back pain and then an incident causing disc prolapse. He was asked whether, in those circumstances, he would anticipate that the patient would be able to keep working indefinitely into the future. He said that 'the back pain is the prelude to the probable inevitable prolapse. It doesn't always occur, but in the case of someone who is doing heavy labouring work, it is more likely to occur if they continue to work in the same sort of industry'. He was not asked and did not put any time frame on any such development. He was not asked and did not say whether the effect of prolapse - necessarily or probably - would be the same as the plaintiff experienced in fact.

259. As I understand it, Mr Forsyth's submission was founded upon the principles described in Watts v Rake [1960] HCA 58; (1960) 108 CLR 158 and Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164. That being so, it is surprising that the evidence was left by him in the state that it was. I very much doubt - accepting for the moment that those authorities could be relevant - that the defendant established the pre-existing condition and its future probable effects with a reasonable measure of precision.

262. Further than that, in each of Watts v Rake and Purkess v Crittenden the defendant contended that the plaintiff suffered from a progressive degenerative condition that would inevitably lead to disability. No question of the need for further injury arose. In the present case the defendant contended in substance that the plaintiff suffered from a condition which made him vulnerable to future trauma. He was at risk of injury - perhaps particularly, it might be said, if he remained the defendant's employee and was repeatedly exposed to lifting duties which would likely constitute breach of the employer's duty of care.

265. In my opinion the circumstances that I have described do not call Watts v Rake and Purkess v Crittenden into play. On the other hand, those circumstances should not be ignored. In my opinion, when considering the contingencies of life I should bear in mind the fact that the plaintiff, a young man engaged in labouring work, had already experienced some lower back pain, probably of disc origin**,** before 25 April 1994; in which case risk of future injury and incapacity for work - whether permanent or temporary, whether total or partial - should be given adequate account.

269. I have described already the pain and suffering and loss of enjoyment of life experienced by the plaintiff since April 1994 by reason of his physical and emotional disabilities. All of the former are to be compensated. So are the latter, excluding only the effect upon the plaintiff of his father's death - whose short term impact, I am sure, was considerable. I consider that such impact is now very much diminished and that at all times the plaintiff's emotional symptoms have been predominantly referable to the compensable incident.

272. In concluding that, but for the impact of his father's death, all of the plaintiff's emotional disabilities are to be compensated, I include the effect upon the plaintiff of his marriage breakdown. I analysed the potential compensability of such an event in Encev v Encev (unreported, judgment 24 November 1997). I adhere to the conclusions which I there expressed. I add that Mr Forsyth did not make any submissions about this matter.

275. The future for the plaintiff, so far as pain and suffering and loss of enjoyment of life is concerned, is not likely to improve. He will have back pain, worse in cold weather and with activity. It is likely to worsen in the longer term. He will be very much inhibited in his enjoyment of ordinary daily activities. I take him to be a man who enjoyed work and who was proud of being the family breadwinner. Very largely, if not completely, those sources of enjoyment are at an end.

278. Mr Forsyth submitted that the appropriate sum for pain and suffering damages was $100,000. Mr Scanlon, for the plaintiff, contended that the appropriate range was $125 - 150,000.

281. In my opinion the extent of the plaintiff's past, present and future disabilities, in a man now aged only 31, calls for an award of very substantial pain and suffering damages. That is so although the plaintiff does not make a song and dance about his situation, although he has no ongoing medical treatment, and although he was at risk that some other incident may have brought about disc prolapse (with uncertain consequences). I consider that an award of anything less than $150,000 would be inappropriately low.

285. Apart from a few days in about June 1994, the plaintiff has not worked since 25 April that year. I am satisfied that, those few days apart, he has been wholly incapacitated in that period.

288. In short, the plaintiff is a young man of relatively low intellectual ability, with a limited education, without trade qualifications, and with a history of work as a labourer - that work having mainly involved arduous exertion. His injuries have precluded him returning to his pre-injury duties. Nominally he has been for some time, fit for light unskilled work. But he has not undergone any retraining. Retraining would, in any event, be likely to be attended with difficulty. His own attempts to find work have failed.

291. My firm impression of the plaintiff, when he gave his evidence, was that he was not a shirker - rather the converse. The defendant, however, adduced evidence from Mr Jonathon Price, an employee of Donelly Ayres Consulting. The plaintiff was referred to that firm by the compensation insurer. The firm's brief was to assist the plaintiff in finding alternative duties. The thrust of the evidence adduced from Mr Price in examination in chief was that various employment possibilities were taken up with the plaintiff, but that he (or his solicitors) did not act upon the possibilities that emerged.

294. In cross-examination, a very different picture emerged. Mr Price appeared to have a very deficient understanding of the totality of the plaintiff's problems - that is, physical, emotional and intellectual. He seemed to know nothing of the plaintiff's educational achievements. His attempts to find work for the plaintiff appear to have been subject to control by the compensation insurer. He asserted, then denied, that the insurer had directed him to put the file on hold. The plaintiff having nominated security work as a field of interest as early as February 1998, only one prospective employer was located - in September or October of this year. That prospective employer having turned the plaintiff down, Mr Price had not made any further enquiry. He was spending time, he said, reporting to the insurance company. The insurer had authorised the plaintiff to have retraining for security work only if he had got the job. The plaintiff had not been enrolled in any other retraining programme.

297. Looked at overall, the evidence of Mr Price has not caused me to alter to the slightest extent the impression created by the plaintiff's evidence: that is, he wants to work, if only someone will take him on.

300. Looking at the complete picture, I am satisfied, as I said a few moments ago, that the plaintiff has been wholly incapacitated for all but a few days of the 235 weeks since 25 April 1994 (that is, to 30 October 1998).

303. The plaintiff gave evidence that in his employment by the defendant he was paid for Monday to Saturday work, his earnings being subject to PAYE Tax. He also worked Sundays. For Sunday work he was paid cash. He said that the pattern of work over a 12 month period was that he worked more six day weeks than five day weeks. In the period from January - April 1994 he mainly worked a seven day week. He was not cross-examined to suggest the contrary.

306. Mr Tomkinson gave evidence that, when working for the defendant, it 'would have been pretty much five or six days a week'. Sometimes he worked Sundays. He was always paid cash. He was not cross-examined to suggest the contrary.

309. Mr Vassallo denied that the plaintiff worked on Sundays. He denied that any of his employees or contractors worked on Sundays. Very occasionally he and two close relatives had worked on a Sunday. He kept private books (by contrast with the books of the business). They showed who worked for the company, and when, and all the payments made. They showed that the plaintiff did not work on any Sundays. Mr Vassallo refused to produce the private books on the grounds that their contents might tend to incriminate him. He agreed that the plaintiff had constantly asked for Sunday work; even though there was no such work, and he had told the plaintiff so. He refused to answer many questions concerning the basis upon which the plaintiff and other workers were paid.

312. As I earlier remarked, I did not form a favourable opinion of Mr Vassallo's reliability as a witness. Concerning the question whether the plaintiff worked on Sundays (and was paid cash) I prefer the evidence of the plaintiff to the evidence of Mr Vassallo.

315. The paymistress, Mrs Roberts, gave evidence of wages paid to the plaintiff. That evidence was founded upon entries in the books of the business. Those entries were based upon information supplied by Mr Vassallo. I am well satisfied that in some respects the books of the business were unreliable - quite apart from their silence about Sunday work. The only difficulty is in determining the extent of their unreliability.

318. According to the books of the business the plaintiff worked no Saturdays at all in the 1983/84 financial year until the week ending 9 February 1994. Then, between that week and the week ending 27 April, he worked eight Saturdays. Further, according to the books, he worked two Saturdays in June (how that could be so is one of life's mysteries).

321. It seems likely to me that the plaintiff mainly worked on Saturdays when the weather was kind and when the defendant's business was brisk. The plaintiff said that Saturday work went through the books. The books show that Saturday work was being undertaken fairly regularly in March and April 1994. Then the plaintiff was injured. Doing the best I can - notwithstanding the plaintiff's evidence and Mr Forsyth's concession (T259) that to assume that work would have been performed every second Saturday would be appropriate - I conclude that Saturday work was likely to have been undertaken, on an all year basis, about one Saturday in three - say seventeen occasions per year.

324. The plaintiff's evidence suggests that he worked on Sundays more often than not when he worked on the preceding Saturday. Taking a conservative approach, I conclude that he would have undertaken Sunday work, on an all of year basis, on ten occasions each year.

327. The plaintiff was paid, in addition to his wages and as part of his remuneration that went through the books, a travelling allowance of $50 per week. It was paid after tax was deducted from the wage component. The plaintiff walked to and from the defendant's yard. None of the $50 was expended upon travel. Counsel conceded that it should be brought to account in the plaintiff's favour in calculation of his average earnings as at 25 April, 1994.

330. Doing the best I can, I have concluded that the plaintiff's average weekly earnings as at 25 April were $454.44 calculated as follows:

* 38 hour wage $423 less tax $71 = $352 x 52 wks = $18,304

* Saturday work $165 less tax $64 = $101 x 17 = $1,717

* Sunday work $165 (less tax to be paid $64) = $101 x 10 = $1,010

Divide $23,631 by 52 weeks and the average weekly sum to which I have referred is disclosed.

339. The plaintiff should have paid tax on Sunday earnings. I have made what seems to be an appropriate allowance. Some tax would probably have been payable on the unexpended travelling allowance. There being no evidence upon the matter I have not made any adjustment in that connection.

342. The amount that the plaintiff would presently be earning if he was still in the defendant's employment was a matter of uncertainty. The paymistress opined he would probably be earning $650 gross, $494 clear for a 38 hour week. In addition, a $50 travelling allowance would be paid. For Saturday work the sum paid would be $195 gross, tax being $82. Understandably, she gave no evidence about the amount paid for Sunday work.

345. The alternative scenario is that, as a man who had not advanced at all in skills or experience since 1994, the plaintiff would now be earning $562.78 gross, $437 clear for a 38 hour week, a $50 travelling allowance and $22.21 per hour gross for Saturday work (8 hrs = $177.68). Mr Vassallo's evidence supported a conclusion that the plaintiff would have fallen into the latter category.

348. Whilst I have considerable reservations about the reliability of Mr Vassallo's evidence generally, the plaintiff has not satisfied me that, generally speaking, he would now be earning the wages appropriate to a highly skilled man. I do not doubt that his manual dexterity was good. It was his employment strength. But I consider that he would have had trouble reading a plan and setting out a job; and the gist of Mr Vassallo's evidence was that an ability to do those things was the entry point to a higher wage.

351. In the event, I consider that the plaintiff would now be earning in the defendant's employment about $540.51 clear per week, calculated on all of year figures as follows:

* 38 hour wage $562.78 gross less tax $125.78 = $437 x 52 = $22,724

* Saturday wage $177.68 less tax(say) $74.62 = $103.06 x 17 = $ 1,752.02

* Sunday work $177.68 less tax to be paid (say) $74.62 = $103.06 x 10 = $ 1,030.60

359. I have extrapolated the tax of $82 on $195 to earnings of $177.68. I have made no allowance for the incidence of taxation on the travelling allowance. There is no evidence to suggest any alteration in the frequency of weekend work.

362. The paymistress gave evidence that earnings have gradually increased over the period since April 1994. I calculate past earnings loss by averaging the figures of $454.44 and $540.51 - in round terms $497.50 - and multiplying that sum by 234 weeks (the plaintiff having worked for some days in June 1994). The figure I arrive at is $116,415.

365. It was not submitted for the defendant that I should discount the past loss for contingencies. But I consider that a small discount is appropriate. I note, to underline the desirability of making such a discount, that the plaintiff in fact suffered from an unrelated illness in the period after April 1994 - an illness from which, following hospital treatment he recovered.

368. I consider that an appropriate discount is 5%. So I settle upon past earnings loss in the sum of $110,500.

371. I turn to loss of earning capacity. The agreed multipliers are: to 65 years 1078.2; and to 60 years 989.2.

374. There was no evidence to suggest other than that, had he remained well, the plaintiff could not have continued in work with the defendant indefinitely. There was no evidence to suggest that concrete workers do not work in that industry to age 65. There was no evidence to suggest that the plaintiff would not have wanted to continue in that work, for which he was by intellect and education fitted, for as long as he could. The impression he left me was that he was proud of his ability to work hard and to earn what was - for an unskilled man - reasonable money. There is no indication that the plaintiff's earnings were or were likely to become of such magnitude that he could have afforded to retire prematurely.

377. In the end, I consider that the correct starting point for assessing the plaintiff's loss of earning capacity is approximately $583,000 - that is, $540.51 multiplied by 1,078.2.

380. Then there must be considered the prospect that the plaintiff will find some suitable employment, the likely wage in any such employment, the prospect that the plaintiff will be able to retain any employment that he secures, the general contingencies of life, the specific risk that by continuing to engage in heavy work the plaintiff might have had, in any event, disc prolapse, and the potential employment consequences of such a prolapse.

383. I consider that the plaintiff will make persistent efforts to obtain work. But I consider that he is likely to find it extraordinarily difficult, having regard to his physical, emotional and intellectual difficulties, to find employment; perhaps, more pointedly, to find an employer who will have him. If he does get work it is likely to be at minimum wages. There was some evidence that such wages would now be about $325 clear.

386. If the plaintiff does get a job, I do not doubt that he will do his best to keep it; but that may well be easier said than done. He will battle to acquire skills. He is likely to be last on and first off. Again, as his condition deteriorates over the longer term, as Mr Jones predicted was probable, such theoretical ability as he now has to work will be further reduced - if not eliminated.

389. The general contingencies of life are those of a man who is still young and who, to show what life can bring, has had an unrelated illness in the period since 1994. The contingencies include the risk of periods of unemployment and the possibilities of change to a less well-paid job and of early retirement.

392. The particular risk of spinal breakdown is something which I have already discussed. It is a matter of which, as I said earlier, proper account must be given.

395. Paying attention to all the matters to which I have referred, I consider that it is appropriate to discount the sum of $583,000 by between 35 and 40%. I arrive at the sum of $365,000.

398. There is an agreed Fox v. Wood amount of $9,000.

401. In total, then, I assess pecuniary loss damages at $484,500.

405. Subject to any adjustment for accident compensation payments that is necessary, there should be judgment for the plaintiff for pain and suffering damages in the sum of $150,000; and for pecuniary loss damages in the sum of $484,500.