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[2019] VSC 330
Supreme Court of Victoria
2019-05-20
ZAMMIT J
Original judgment source is linked above.
NEGLIGENCE - Occupier's liability - Self-employed brick cleaner fell from scaffolding - Deficiencies in scaffolding - Where pre-existing injuries - Whether pre-existing injuries aggravated by fall - Whether contributory negligence - Damages - Griffiths v Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161; Malec v J C Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638 applied - Wrongs Act 1958 Pts IIA and X - Occupational Health and Safety Regulations 2007 Part 3.5_._
1 On 30 October 2017 the plaintiff, Marin Bucic, was working as a self-employed brick cleaner on a building site at 789 Old Calder Highway, Keilor ('the premises'), when he fell approximately four-and-a-half metres from a raised scaffolding bay onto a pile of bricks and suffered serious injury. The defendant, Arnej Pty Ltd, was the sole-trader responsible for the construction of the house. The scaffolding was erected by a hire company which was joined as a third party to this proceeding, but which settled with the defendant on the day fixed for trial.
2 The plaintiff pleads breach of occupier's liability under Part IIA of the Wrongs Act 1958 ('the Act'). The plaintiff alleges the defendant failed to take reasonable care to prevent injury to entrants by reason of the state of the premises and, in particular, failed to prevent him from working on scaffolding that it knew, or ought to have known, was unsafe and dangerous. In the alternative, the plaintiff pleads breach of statutory duty, with particular reference to Part 3.5 of the Occupational Health and Safety Regulations 2007 ('the Regulations').
3 The defendant does not dispute that, at the relevant time, it was the occupier of the premises and, as such, owed the plaintiff a duty of care. Nor does it dispute that it owed the plaintiff a statutory duty as concretised in the Regulations. However, the defendant denies any breach of duty and says that, if there was such a breach, it was not a material cause of the plaintiff's lumbar spine and neck injuries, which were wholly preexisting. Further, the defendant pleads contributory negligence and voluntary assumption of risk (with reference to s 54 of the Act), which it says follow from the scaffolding the plaintiff had to use and the way he actually used it.
4 As will appear, although it is tolerably clear that the scaffolding was deficient, it is less clear to what extent this contributed to the plaintiff's injuries. This is because prior to the fall, the plaintiff had a pre-existing degenerative back condition. Nevertheless, on the evidence before me, I am satisfied on the balance of probabilities that but for the defendant's negligence the plaintiff's injuries would have been less severe than they are today. I consider that the fall aggravated his pre-existing degenerative back condition, and was a cause or materially contributed to his neck condition, such that he is now permanently incapacitated for work. I also consider that the fall gave rise to reasonably foreseeable and recognisable psychiatric injuries. For completeness, I reject the defendant's contentions as to contributory negligence and voluntarily assumption of risk, which cannot stand in the face of the evidence.
5 It is incumbent upon those who control building sites to provide a safe working environment for employees and independent contractors. This is especially so where they are required to work at heights that expose them to innate risk of serious injury. I am therefore of the view that the plaintiff should be awarded damages in the sum of $1,043,000, with general damages of $300,000, and special damages of $743,000. My reasons follow.
6 The plaintiff was born on 1 January 1958 in Croatia. He left school when he was 13. He migrated to Australia in 1980 and met his wife, Vesna, at a Croatian dance. She too had migrated to Australia with her parents in 1972. He married her later that year. They have three sons: the eldest, Daniel, was born in 1981; twin boys followed in 1985.
7 In 1999 the plaintiff and his wife purchased a block of land in Taylors Lakes. The plaintiff built a house on the land. They continue to live in that house, although around 10 years ago the property was transferred to the plaintiff's mother-in-law, due to the plaintiff experiencing financial difficulties.
8 The plaintiff initially worked as a labourer in a factory for two years. In 1982 he started work as a brick cleaner with his father-in-law. In 1983 he began working as a selfemployed brick cleaner. He relied mainly on word of mouth to attract work.
9 It was the plaintiff's practice to transport all of the necessary materials and tools in his utility. This included a generator, needed to power the hose for spraying the bricks with hydrochloric acid, and the acid itself. He would drive to the work site and park his utility on or near the premises. He would run a long hose from his utility to whichever bricks needed to be cleaned. He would wear protective clothing whilst cleaning the bricks. Unless especially dirty, most bricks required one spray of hydrochloric acid, after which he would rinse them with water and wipe them down.
10 The plaintiff worked in this fashion until his accident on 30 October 2007. He was 49 years old at the time of the accident and was 61 years old at the time of the trial.
11 The plaintiff appears to have had pain in his back and right leg since late 2006. His treating general practitioner began prescribing Panadeine Forte in November 2006. The report of a CT scan dated 1 December 2006 showed degenerative changes in the lumbar spine and mild intervertebral disc bulging at L3-4.
12 On 3 April 2007 the plaintiff was referred to the Royal Melbourne Hospital ('RMH') orthopaedic outpatients clinic. The referral letter records complaints of lower back pain with right-side sciatica and right gluteus medius tendonitis or trochanteric bursitis. The next day, on 4 April 2007, the plaintiff again presented to the RMH orthopaedic outpatients clinic complaining of about four months of lower back pain and right-side sciatica from his buttock down to his calf. The hospital notes record that his pain was 'constant', 'worse when lying flat', and the 'worst it has been'. They also record that he was constipated from using Panadeine Forte.
13 The report of an MRI scan dated 15 May 2007 showed an L4-5 annular tear and moderate right paracentral disc extrusion, compressing the traversing right L5 nerve root. On 4 June 2007 the plaintiff was administered a trans-foraminal fluoroscopic guided injection at the L4-5 nerve root.
14 On or around 8 June 2007 the plaintiff was lifting some 20kg drums into the tray of his utility vehicle when he experienced a sharp pain in his lower back. Two days later, on 10 June 2007, the plaintiff presented at RMH complaining of acute lower back pain and right-side sciatica down to his big toe. The hospital notes record that he had had 'no sleep' the night before and had been taking Panadeine Forte and Voltaren. The plaintiff was prescribed oxycodone as he was 'needing pain relief'.
15 On 10 June 2007, at a pre-surgery check-up, it was noted that the plaintiff had been experiencing an eight month 'history of low back pain, right leg sciatica'.[1] On 20 June 2007 the plaintiff was seen by Mr Peter Turner, consultant orthopaedic surgeon, and placed on the waiting list for elective spinal surgery. This was to take the form of a microendoscopic discectomy at the L4-5 level.
16 On 26 July 2007 the plaintiff attended upon his treating general practitioner, Dr Darko Sulava, and was prescribed Tramal capsules (50mg) for pain relief. A further script was provided on 8 August 2007.
17 Dr Sulava prescribed a third script for Tramal on 20 August 2007 and a fourth script on 8 September 2007. Dr Sulava's notes from 8 September 2007 record that the plaintiff was 'to have surgery this Wednesday' as his back was 'very sore'.[2] This was the aforementioned L4-5 microendoscopic discectomy to be performed by Mr Turner.
18 However, on 12 September 2007, the plaintiff elected not to have the surgery. Five days later, on 17 September 2007, he attended upon Dr Sulava and was prescribed a fifth script for Tramal.
19 On or around 25 October 2007 the defendant's sole director, Halil Hasan, telephoned the plaintiff requesting his brick-cleaning services on the premises. On or around 25 October 2007 the plaintiff met Mr Hasan on the premises and was shown the site and instructed as to the work to be performed. The two-storey house that was being built on the premises was nearing completion.
20 Relevantly, it had been decided at an early stage to install the internal staircase, as this would obviate the need for external ladders to access the scaffolding. As with other tradespeople on the site, the plaintiff was told to ascend via the staircase to the second floor, after which he was to step out through one of the windows on to the scaffolding. The scaffolding bays went around the perimeter of the house and were all at the same height, save for a raised bay on the northern side of the house, which was approximately 3.5 metres above ground level. This particular bay had been raised - it is not clear by whom - so as to gain access to an elevated section of brickwork above a large central window.
21 After negotiating terms, the plaintiff started work on 30 October 2007, arriving on the premises at approximately 7:30am. There was nobody there when he started working and nor did he see anybody during the time that he was working.[3] This was in no way unusual - as brick cleaning involves the use of hydrochloric acid, it is common for brick cleaners to work in solitary fashion. This assists in minimising disruption both to the brick cleaner and to the building site.
22 As was his practice, the plaintiff parked his utility on or near to the premises, connected his generator to the water mains and ran a high-pressure hose on to the work site. In his protective suit, he ascended the internal staircase to the second floor, stepped out through one of the windows on the eastern side of the house and began cleaning the bricks. He had his equipment with him, including his high-pressure hose, which appears to have run directly from where he was on the scaffolding to the generator in his utility.
23 The plaintiff finished cleaning the bricks on the eastern side and began to move around to the northern side of the house. It was then that he allegedly fell approximately 4.5 metres from the western end of the raised scaffolding bay onto a pile of bricks left behind by bricklayers. The circumstances of the plaintiff's fall - how he came to fall and, indeed, whether he fell from where he says he fell - are hotly disputed. I will return to this subject a little later in my findings of fact.
24 There were no witnesses to the fall. As such, there is no direct evidence as to how or when the plaintiff fell, nor where he landed. Nor is it known how long, if at all, he was unconscious.
25 The first person to observe the plaintiff after the fall was another subcontractor referred to at trial as 'Simon'. He was not called to give evidence. The only other person on the premises at the time was Bob Ferrar, a carpenter, who was working in the garage on the western side of the house. Mr Ferrar's evidence was that he heard Simon call out, 'Bob, Bob, call an ambulance', to which he replied '[w]hat do you want an ambulance for?'[4] Simon then said words to the effect, '[t]he brick cleaner, the brick cleaner', and pointed towards the northern side of the house and said: 'The brick cleaner's bleeding ... he's on the ground'.[5]
26 Simon had been working on the first-floor scaffolding on the western side of the house. Mr Ferrar's evidence was that Simon came down off the scaffold and went to turn off the plaintiff's hose, water and brick cleaning equipment because 'it was spraying water and stuff everywhere'.[6] Meanwhile, Mr Ferrar approached the plaintiff, who was still on the ground. When Simon returned they tried to make the plaintiff as comfortable as possible. Mr Ferrar recounted what happened next as follows:
So what happened next?---Um, we tried to make the brick cleaner comfortable and asked him not to move, an ambulance is on the way, and I just said, 'What happened?'
And what did he say in response?---He said, 'I fell'.
Okay?---Off the scaffold.
Did he say anything about how he fell?---He said, 'I let go - I let go of this tube or pole to grab this one and there was nothing there'.
And did you say anything in response to him?---Yeah, I - I said to him, 'What were you doing on the outside of the scaffold', because the access to the scaffold is through the main building and out through a window.
And did he say anything in response to your question?---I don't recall him answering me.
Okay. All right. Did you have any further conversation with the brick cleaner before the ambulance arrived?---Oh, it was only, um, 'Where does it hurt', and his back - his back was sore and we just said, 'Stay still, don't move. You could rupture something, you know, because we don't know your injury.'
Okay. The ambulance then arrived, correct? The ambulance arrived?---Yeah.
And did you have any conversation with the ambulance officers?---The ambulance officers asked me what happened and we said he fell off the scaffold and he asked me where and I said, 'I don't know. It was around the front'.
Okay. And to the best you remember, did they ask you anything about whether he'd lost consciousness or not?---He did, but I said I - I didn't see him - ah, I wasn't - he - he could've lost consciousness when he fell, I don't know. I said, 'Nobody was witness to it'.[7]
27 The paramedics arrived at around 11:05am. The case description given in their notes is as follows:
PT WAS WORKING ON SCAFFOLDING APPROX 6M UP (2ND STOREY OF HOUSING DEVELOPMENT) WHEN PT FELL, LANDING ON GROUND BELOW ... PT WAS SEEN BY COWORKERS WALKING AROUND SIDE OF HOUSE, IN OBVIOUS PAIN WITH SERIOUS HAEMORRAGE TO BACK OF HEAD ... COWORKERS CALLED MAS AND BANDAGED PT'S HEAD ... PT VERY DISTRESSED O/A, ? NIL LOC.[8]
It was agreed by the parties that 'LOC' was a short-hand expression for 'loss of consciousness'. 'O/A' was said to be 'on arrival'. The ambulance notes were therefore said to read: 'Patient very distressed on arrival. Nil loss of consciousness?'[9] The paramedics conducted two tests, at 11:09am and 11:11am, to see if he was suffering from any loss of consciousness. Those tests, which produced what is known as a 'Glasgow score', showed the plaintiff to have an overall score of 15.[10]
28 The plaintiff was fitted with a neck collar and transported to the Emergency Department at RMH. The hospital's 'Trauma Review' notes dated 30 October 2007 record:
Fit + well gentleman (apparently). Up 2 stories high laying roof tiles. Fell off scaffolding (~6m). Landed on R chest on scattered bricks on ground. ∅ LOC. Managed to sit up + waited for MAS. Haemodynamically stable at the scene. GCS = 15.[11]
A scan taken later that day revealed a fractured wrist, fractured ribs and a collapsed lung. No damage was observed to the lumbar or cervical spine. The hospital notes also record a 7cm laceration to the right temporal region of the plaintiff's head. He was placed under observation and, after three days, was discharged in a stable condition. On the day of discharge, 1 November 2007, he was noted as being 'alert' and 'oriented' and with 'nil complaints other than ongoing rib pain'.
29 On 15 January 2008 the plaintiff attended upon Dr Sulava. The plaintiff indicated that he was making a good recovery and would soon be back at work. Dr Sulava did not record any complaint as to back or neck pain at this time.[12]
30 At some time prior to March 2008 the plaintiff must have attended the RMH orthopaedic outpatients clinic and been put back on the waiting list for elective surgery. I say this because, on 12 March 2008, Mr Turner performed the aforementioned L4-5 microendoscopic discectomy on the plaintiff. The spinal canal was explored, the pre-operative diagnosis confirmed and the sequestrated disc fragments removed, achieving adequate decompression of the L5 nerve root.[13]
31 Five days later, on 17 March 2008, the plaintiff attended upon Dr Sulava. He explained that he had been hospitalised for his L4-5 disc prolapse. This was the first that Dr Sulava knew that the plaintiff had undergone surgery.[14]
32 On 25 June 2008 Mr Turner reviewed the plaintiff. He reported cramping in his calf but indicated that his back was improving and that he had returned to work.[15]
33 A little over two years later, on 13 October 2010, the plaintiff was seen by Mr Turner at the RMH orthopaedic outpatients clinic. He confirmed that he had obtained a good result from the March 2008 laminectomy. However, since approximately late September 2010, he had started to feel pain and numbness in his right leg. On 28 October 2010 the plaintiff was administered another foraminal injection at L4-5.
34 On 9 February 2011 the plaintiff was admitted to RMH and underwent a follow-up open discectomy at L4-5 for a recurrent disc prolapse. On retraction of the dural sac sequestrated disc fragments were identified and removed.
35 On 22 February 2011 the plaintiff complained to Dr Sulava of neck pain and tingling pain in his hands.[16]
36 On 23 February 2011 the plaintiff had a CT scan of the cervical spine. It showed intervertebral disc prolapse at C6-7 and long-standing degenerative changes.
37 On 28 March 2012 the plaintiff was seen by Mr Turner at the RMH orthopaedic outpatients clinic. The plaintiff indicated that the February 2011 surgery had significantly reduced his back pain. However, a few months later, he returned to RMH. On 13 August 2012 he presented with stabbing pain to the shoulder, radiating to the arm and fingers, as well as pins and needles. The plaintiff was sent home and scheduled for imaging. A few days later, on 16 August 2012, he returned with more severe symptoms. The pain had increased such that he could no longer move his right shoulder or neck. He also had contralateral paraesthesia.[17] A CT scan dated 20 August 2012 showed multilevel chronic degenerative changes, a C6-7 paracentral disc protrusion, an osteophytic spur and no cord compression.
38 On 29 August 2012 the plaintiff was seen by Mr Turner at the RMH orthopaedic outpatients clinic. The plaintiff described his situation as 'bad' and felt that his whole back was in pain and that leg pain had returned. He was also experiencing severe pain in his neck and right arm.[18] The report of an MRI of the lumbar spine dated 7 August 2012 showed L4-5 disc space narrowing and right foraminal/paracentral disc protrusion, indenting the thecal sac and compromising the right L5 nerve root in the lateral recess, as well as facet joint degenerative changes.
39 On 9 October 2013 the plaintiff was walking along a footpath when his leg gave way and he fell onto the nature strip.[19] He was taken to RMH. On 16 October 2013 the plaintiff underwent a revision laminectomy at the L45 level, combined with an instrumented spinal fusion, once again performed by Mr Turner. After this operation, the plaintiff reported numbness from his right leg down to his big toe; he has worn a splint for 'foot drop' ever since.[20]
40 The report of an MRI scan of the cervical spine dated 4 July 2014 showed multilevel uncovertebral and facet degenerative changes with bilateral foraminal stenosis and cord compression at C6-7 without evidence of abnormal cord signal. It also showed left-sided foraminal stenoses at C3-4 and C4-5.
41 The report of an MRI scan of the cervical spine dated April 2016 showed the same clinical picture as the July 2014 MRI. The plaintiff's last visit to the RMH orthopaedic outpatients clinic was on 29 November 2017. He advised Mr Turner that he did not wish any further action to be taken unless and until his symptoms worsen.
42 I note for completeness that the plaintiff has twice been due to have surgery in the form of a C6-7 microendoscopic discectomy. However, he has twice elected not to have this surgery, due to his fears. This surgery was to be performed by Mr Turner.
43 The plaintiff's further amended statement of claim dated 19 February 2019 alleges 24 particulars of negligence and breach of Part 3.5 of the Regulations.
44 The gravamen of the plaintiff's claim is that, in breach of s 14B of the Act, the defendant failed to provide a safe working environment and, in particular, allowed the plaintiff to work on scaffolding that was incomplete and/or inadequately secured. Further, and in the alternative, the plaintiff claims the defendant breached r 3.5.43 of the Regulations by allowing him to work on scaffolding that was incomplete and/or inadequately secured.
45 The injuries alleged by the plaintiff can be broken into three groups:
(a) injuries directly attributable to the fall, including laceration to the head, fractured wrist, fractured ribs and punctured lung;
(b) injuries indirectly attributable to the fall, including causation and/or aggravation of the degenerative changes to the lumbar spine, causation and/or aggravation of the degenerative changes to the cervical spine, and cognitive impairment due to brain concussion syndrome; and
(c) psychiatric injuries, including anxiety and depression.
46 The defendant's amended defence dated 20 February 2019 denies negligence and/or breach of statutory duty and pleads in summary as follows:
(a) it does not admit that it was the occupier of the premises and that it owed the plaintiff a duty of care as such;
(b) it does not admit that, if it owed the plaintiff a duty, it breached that duty by allowing the plaintiff to work on scaffolding that was incomplete and/or inadequately secured;
(c) it does not admit the mechanism of injury alleged by the plaintiff, namely that he fell off an unguarded scaffolding platform, nor that he suffered serious injury as a result;
(d) it denies each and every particular of negligence and/or breach of statutory duty and each and every particular of injury; and
(e) it denies each and every particular as to the plaintiff's loss of earnings and loss of earning capacity.
47 And it pleads that, if it was negligent and/or in breach of statutory duty, then the plaintiff was guilty of contributory negligence in:
(a) failing to take reasonable care for his own safety whilst using the scaffolding;
(b) failing to look where he was going;
(c) failing to use his common sense when working on the scaffolding;
(d) failing to use the specified entry and exit points for the scaffolding; and
(e) climbing down the outside of the scaffolding when it was unsafe to do so.
Further, in relation to (e) above, the defendant pleads that the risk of injury from climbing down the outside of the scaffolding, instead of using the specified entry and exit points, was a risk that in the circumstances would have been obvious to a reasonable person in the position of the plaintiff as per ss 53 and 54 of the Act. And it pleads that the plaintiff voluntarily assumed the risk of climbing down the outside of the scaffold rather than using the specified entry and exit points.
48 The issues in dispute had narrowed by the time the matter came on for trial. On the day fixed for trial, senior counsel for the defendant indicated that several concessions would be made, including that the defendant was the occupier of the premises, that it owed the plaintiff a duty of care and/or statutory duty as an independent contractor working on the premises, and that the relevant provisions under the Regulations in relation to scaffolding were enlivened in this case.
49 It then became apparent that the main issues at trial would be as follows:
(a) did the plaintiff fall from an unguarded section of scaffolding and, if so, what were the circumstances of the fall;
(b) did the defendant breach its common law or statutory duty by allowing the plaintiff to work on scaffolding that was incomplete and/or inadequately secured;
(c) if the defendant breached its duty, was that breach a cause of the injuries suffered by the plaintiff;
(i) did the plaintiff suffer from a pre-existing degenerative back condition and, if so, was it aggravated by the defendant's breach;
(ii) did the plaintiff suffer from a pre-existing degenerative neck condition and, if so, was it aggravated by the defendant's breach;
(d) did the plaintiff suffer any reasonably foreseeable and recognisable psychiatric injuries as a result of the defendant's breach;
(e) did the plaintiff suffer cognitive impairment as a result of the defendant's breach; and
(f) to what extent, if at all, should be plaintiff be compensated for pain and suffering, for past and future economic loss, for past and future gratuitous care and for medical and like expenses?
50 It is convenient to restate the principles that apply to the instant proceeding. This may be done in a summary fashion as they are not disputed.
51 The scope of the duty that an occupier owes towards persons who enter onto land that they own or control is set out in Part IIA of the Act.[21] Relevantly, s 14B(3) provides:
An occupier of premises owes a duty to take such care as in all the circumstances of the case is reasonable to see that any person on the premises will not be injured or damaged by reason of the state of the premises or of things done or omitted to be done in relation to the state of the premises.
52 Section 14B(4) then sets out the factors relevant to whether an occupier has breached their duty of care:
Without restricting the generality of subsection (3), in determining whether the duty of care under subsection (3) has been discharged consideration shall be given to -
(a) the gravity and likelihood of the probable injury;
(b) the circumstances of the entry onto the premises;
(c) the nature of the premises;
(d) the knowledge which the occupier has or ought to have of the likelihood of persons or property being on the premises;
(e) the age of the person entering the premises;
(f) the ability of the person entering the premises to appreciate the danger;
(fa) whether the person entering the premises is intoxicated by alcohol or drugs voluntarily consumed and the level of intoxication;
(fb) whether the person entering the premises is engaged in an illegal activity;
(g) the burden on the occupier of eliminating the danger or protecting the person entering the premises from the danger as compared to the risk of the danger to the person.
53 Section 14B(5) provides that the duty imposed by Part IIA of the act does not affect any other obligation to which an occupier may be subject by reason of any other Act, statutory rule, or contract.
54 Section 14D provides that Part V of the Act, which sets out the framework governing contributory negligence,[22] will apply in respect of any claim brought under Part IIA against an occupier for injury or damage.
55 As I have said, the defendant does not dispute that the plaintiff was an independent contractor under the Occupational Health and Safety Act 2004, nor that it owed him a statutory duty whilst he working on the premises.
56 The specific content of the duty that was owed is concretised in the Regulations. The regulations that were in force as at 30 October 2007 were the Occupational Health and Safety Regulations 2007.[23]
57 Relevantly, in relation to independent contractors, r 1.1.8 provides:
(1) A provision of these Regulations that sets out a way that an employer complies with a duty under section 21 or 35 of the Act in relation to employees extends to the employer's duty under that section to an independent contractor engaged by the employer and any employees of the independent contractor.
(2) If a provision of these Regulations (other than subregulation (1)) provides that an employer's duty under another provision of these Regulations extends to an independent contractor -
(a) that other provision applies as if a reference to an employee were a reference to an independent contractor engaged by the employer and any employees of the independent contractor; and
(b) the duty of the employer under that other provision extends to an independent contractor engaged by the employer, and any employees of the independent contractor, in relation to matters over which the employer has control or would have control if not for any agreement purporting to limit or remove that control.
58 Further, with specific reference to scaffolds, r 3.5.43 provides:
An employer must ensure, in relation to scaffolds, that -
(a) no work, other than the work of erecting or dismantling the scaffold, is performed from a scaffold unless the scaffold, or the relevant part of the scaffold, is complete; and
(b) the scaffold is secure and capable of supporting the work to be performed on the scaffold; and
(c) on becoming aware that the scaffold or its supporting structure is in an unsafe condition, appropriate repairs, alterations or additions are carried out before the relevant part of the scaffold is used; and
(d) if a scaffold is left unattended, people who would not ordinarily be using the scaffold are prevented, so far as is reasonably practicable, from gaining access to the scaffold.
Note
Act compliance - sections 21 and 23 (see regulation 1.1.7).
The footnote at the bottom of the above provision directs the reader to r 1.1.7 and ss 21 and 23 of the Occupational Health and Safety Act 2004.
If a note at the foot of a provision of these Regulations states 'Act compliance' followed by a reference to a section number, the regulation provision sets out the way in which a person's duty or obligation under that section of the Act is to be performed in relation to the matters and to the extent set out in the regulation provision.
Note
A failure to comply with a duty or obligation under a section of the Act referred to in an 'Act compliance' note is an offence to which a penalty applies.
60 Sections 21 and 23 of the Occupational Health and Safety Act 2004 set out the general duties owed by employers to employees (and independent contractors). Only s 21 is relevant here. It provides as follows:
(1) An employer must, so far as is reasonably practicable, provide and maintain for employees of the employer a working environment that is safe and without risks to health.
Penalty: 1800 penalty units for a natural person;
9000 penalty units for a body corporate.
(2) Without limiting sub-section (1), an employer contravenes that sub-section if the employer fails to do any of the following -
(a) provide or maintain plant or systems of work that are, so far as is reasonably practicable, safe and without risks to health;
(b) make arrangements for ensuring, so far as is reasonably practicable, safety and the absence of risks to health in connection with the use, handling, storage or transport of plant or substances;
(c) maintain, so far as is reasonably practicable, each workplace under the employer's management and control in a condition that is safe and without risks to health;
(d) provide, so far as is reasonably practicable, adequate facilities for the welfare of employees at any workplace under the management and control of the employer;
(e) provide such information, instruction, training or supervision to employees of the employer as is necessary to enable those persons to perform their work in a way that is safe and without risks to health.
(3) For the purposes of sub-sections (1) and (2) -
(a) a reference to an employee includes a reference to an independent contractor engaged by an employer and any employees of the independent contractor; and
(b) the duties of an employer under those sub-sections extend to an independent contractor engaged by the employer, and any employees of the independent contractor, in relation to matters over which the employer has control or would have control if not for any agreement purporting to limit or remove that control.
(4) An offence against sub-section (1) is an indictable offence.
Note
However, the offence may be heard and determined summarily (see section 53 of, and schedule 4 to, the Magistrates' Court Act 1989).
61 The principles governing causation are set out in s 51 of the Act. Section 51 relevantly provides:
(1) A determination that negligence caused particular harm comprises the following elements -
(a) that the negligence was a necessary condition of the occurrence of the harm (factual causation); and
(b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (scope of liability).
(2) In determining in an appropriate case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be taken to establish factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.
(3) If it is relevant to the determination of factual causation to determine what the person who suffered harm (the injured person) would have done if the negligent person had not been negligent, the matter is to be determined subjectively in the light of all relevant circumstances.
(4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.
The above framework reflects the development of the common law in Australia and, in particular, the recognition (in subsection (2)) that the traditional 'but for' test for factual causation may produce anomalous or unjust results and a court may, in an appropriate case, bridge the evidentiary gap.[24]
62 In asking whether the negligence was a 'necessary condition' of the occurrence of the harm, as is required by s 51(1)(a) of the Act, the starting point remains the traditional 'but for' test. This directs attention to the notion that the defendant's breach of duty must in some way be causative of the plaintiff's injuries: if the plaintiff would have suffered injury in any event, regardless of the defendant's breach of duty, then legal liability will ordinarily fall away.
63 However, the law does not require the negligence to be a 'sufficient condition' of the occurrence of harm, which is to say it accepts that a defendant's breach may be a cause rather than the cause of the plaintiff's injuries. This latter proposition follows from well-settled authority. The classic restatement of the 'common sense' approach to causation remains that of Mason CJ in March v Stramare (E and MH) Pty Ltd:
It has often been said that the legal concept of causation differs from philosophical and scientific notions of causation. That is because 'questions of cause and consequence are not the same for law as for philosophy and science', as Windeyer J pointed out in National Insurance Co of New Zealand Ltd v Espagne. In philosophy and science, the concept of causation has been developed in the context of explaining phenomena by reference to the relationship between conditions and occurrences. In law, on the other hand, problems of causation arise in the context of ascertaining or apportioning legal responsibility for a given occurrence. The law does not accept John Stuart Mill's definition of cause as the sum of the conditions which are jointly sufficient to produce it. Thus, at law, a person may be responsible for damage when his or her wrongful conduct is one of a number of conditions sufficient to produce that damage.[25]
64 The approach of Mason CJ in March was cited with approval by the High Court in Strong v Woolworths Ltd.[26] There the majority said:
Negligent conduct that materially contributes to the plaintiff's harm but which cannot be shown to have been a necessary condition of its occurrence may, in accordance with established principles, be accepted as establishing factual causation[27]
65 There is no dispute as to the normative imposition of liability if and when factual causation is made out. Thus, the test to be applied is whether any negligence on the part of the defendant was a necessary condition of the plaintiff's injuries, remembering that it will suffice if the defendant can be shown to have materially contributed (in the sense of one cause among others) to those injuries.
66 It should be kept in mind that, at all times, the plaintiff bears the onus of proving on the balance of probabilities any fact relevant to causation. This is provided for in s 52 of the Act.
67 The principles to be applied in assessing damages are provided for in Parts VA and VB of the Act. The correct approach is well-settled and need not be restated here.
68 It is convenient, however, to briefly restate the approach to be taken in assessing damages in the context of questions as to future or hypothetical effect of physical injury or degeneration. The leading case is Malec v JC Hutton Pty Ltd.[28] That too was a case involving a plaintiff with a pre-existing degenerative back condition. There the plurality of the High Court observed:
When liability has been established and a common law court has to assess damages, its approach to events that allegedly would have occurred, but cannot now occur, or that allegedly might occur, is different from its approach to events which allegedly have occurred. A common law court determines on the balance of probabilities whether an event has occurred ... But in the case of an event which it is alleged would or would not have occurred, or might or might not yet occur, the approach of the court is different. The future may be predicted and the hypothetical may be conjectured. But questions as to the future or hypothetical effect of physical injury or degeneration are not commonly susceptible of scientific demonstration or proof. If the law is to take account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring ... Where proof is necessarily unattainable, it would be unfair to treat as certain a prediction which has a 51 per cent probability of occurring, but to ignore altogether a prediction which has a 49 per cent probability of occurring. Thus, the court assesses the degree of probability that an event would have occurred, or might occur, and adjusts its award of damages to reflect the degree of probability. The adjustment may increase or decrease the amount of damages otherwise to be awarded. The approach is the same whether it is alleged that the event would have occurred before or might occur after the assessment of damages takes place.[29]
69 Justices Brennan and Dawson, in their separate but agreeing reasons, said:
The fact that the plaintiff did not work is a matter of history, and facts of that kind are ascertained for the purposes of civil litigation on the balance of probabilities: if the court attains the required degree of satisfaction as to the occurrence of an historical fact, that fact is accepted as having occurred. By contrast, earning capacity can be assessed only upon the hypothesis that the plaintiff had not been tortiously injured: what would he have been able to earn if he had not been tortiously injured? To answer that question, the court must speculate to some extent. As the hypothesis is false - for the plaintiff has been injured - the ascertainment of earning capacity involves an evaluation of possibilities, not establishing a fact as a matter of history.[30]
70 Further, and in the same vein, their Honours said:
In assessing the plaintiff's earning capacity in the present case, what had to be evaluated was the prospect that the deteriorating back condition would have precluded him from engaging in gainful employment had he not contracted brucellosis. An evaluation of that prospect had to be made. To make a finding on the balance of probabilities as though the prospect were something that had occurred in the past was to misconceive the process of evaluation.[31]
The cases dealing with the assessment of the measure of damages, whether in contract or tort, are replete with exhortations that precision may not be possible and the trial judge or jury must do the best it can. The treatment in Malec v JC Hutton Pty Ltd of the assessment of damages for future or potential events that allegedly would have occurred, but cannot now occur, or that allegedly might now occur, is an example.[34]
72 A useful gloss on the application of Malec can be found in the reasons of Ipp JA (with whom Mason P agreed) in Seltsam Pty Ltd v Ghaleb.[35] His Honour held that Malec stood for the following propositions:
(a) in the assessment of damages, the law takes account of hypothetical situations of the past, future effects of physical injury or degeneration, and the chance of future or hypothetical events occurring;
(b) the Court must form an estimate of the likelihood that the alleged hypothetical past situation would have occurred;
(c) the Court must form an estimate of the likelihood of the possibility of alleged future events occurring; and
(d) these matters require an evaluation of possibilities and are to be distinguished from events that are alleged to have actually occurred in the past, which must be proved on a balance of probabilities.[36]
Malec has an important bearing, for example, on the way in which a court must determine whether a defendant has discharged the 'disentangling' evidentiary burden on it of showing that part of the plaintiff's condition was traceable to causes other than the accident and that, had there been no accident, the plaintiff would have suffered disability from his pre-existing condition.
Where a defendant alleges that the plaintiff suffered from a pre-existing condition, the evidential onus as explained in Watts v Rake and Purkess v Crittenden remains on the defendant and must be discharged by it. Nevertheless, to the extent that the issues involve hypothetical situations of the past, future effects of physical injury or degeneration, and the chance of future or hypothetical events occurring, the exercise of 'disentanglement' discussed in those cases is more easily achieved. That is because the court is required to evaluate possibilities in these situations - not proof on a balance of probabilities.
Without intending to give an exhaustive list of possibilities, it may be that, had the defendant's negligent act not occurred, a pre-existing condition might have given rise to the possibility that the plaintiff's enjoyment of life and ability to work would have been reduced and to a susceptibility to further injury; in addition, other causes entirely unrelated to the defendant's negligent act might have contributed to the plaintiff's ultimate condition.
Appropriate allowances must be made for these contingencies. A proper assessment of damages requires the making of a judgment as to the economic and other consequences which might have been caused by a worsening of a pre-existing condition, had the plaintiff not been injured by the defendant's negligence. A pre-existing condition proved to have possible ongoing harmful consequences (capable of reasonable definition) to the plaintiff, even without any negligent conduct on the part of the defendant, cannot be disregarded in arriving at proper compensation.[37]
74 Further, in Sahin v Victorian WorkCover Authority,[38] the Court of Appeal said:
The assessment of an injured plaintiff's claim for loss of earning capacity suffered as a result of bodily injury involves questions of fact and degree, and requires estimates and judgments to be made, about matters upon which reasonable minds might differ. More often than not, in assessing an injured plaintiff's loss of earning capacity, there is no one correct answer. One judge may take a more favourable approach to a party in respect of one issue upon which the assessment falls to be made, but a less favourable approach to the same party on another issue. As was said by the plurality in Husher:
The assessment of damages for loss of future economic capacity involves questions of judgment and estimation. Being an attempt to predict what would have happened, the process can never be exact. The fact that calculations are made by multiplying present values of net income by the expected duration of remaining working life should not obscure that the process is necessarily inexact. Even so, the assessment of lost earning capacity requires some care in identifying (as best one can) what net income the plaintiff would have had at his or her disposal.
It is also correct to say that an injured plaintiff's income tax returns may not always necessarily reflect a true measure of that person's income earning capacity or that person's capacity to earn income that has been lost as a result of an injury.[39]
75 Damages for attendant care are assessed in accordance with ss 28IA and 28IB of the Act. These damages cannot be awarded unless there is a reasonable need for services that arose solely because of the injury and would not have been provided but for the injury. For example, an injured child cannot recover care provided by its mother unless that care goes beyond what the mother would have provided in the ordinary course of events. The maximum amount recoverable is limited to average weekly earnings in Victoria or, if services are provided for fewer than 40 hours per week, an hourly rate calculated from average weekly earnings. Damages may only be awarded for services of the kind contemplated by the High Court of Australia in Griffiths v Kerkemeyer.[40]
76 Damages for gratuitous care can only be awarded if gratuitous services are provided for more than six hours per week or for more than six months.[41] The parties agree that this requirement is not a bar to the plaintiff's claim.
77 The trial commenced on 19 February 2019 and ran for a total of 12 sitting days. The following witnesses gave viva voce evidence.
78 It is necessary to say something about the plaintiff as a witness in light of the vigorous attack that was mounted on his credit.
79 The defendant submitted that, on the subject of his back and neck conditions, the plaintiff is at best an unreliable witness. This was said to follow from his prior inconsistent statements and the histories he gave to several doctors and medico-legal experts.
80 I agree that, on some issues, the plaintiff was unreliable . However, I consider that this was not due to untruthfulness, but due to his poor memory and confusion. The plaintiff had difficulty recalling events in a clear and coherent sequence. And many of the events in this case, most notably the circumstances of his fall, occurred over a decade ago.
81 The difficulty with a case such as this one is that the plaintiff has experienced a very serious fall, the immediate injuries were, of themselves, serious and there has been no suggestion they would not have caused him significant pain. In determining whether the fall is a cause or has materially contributed to the plaintiff's back and neck injuries, the Court and the medical experts have, in a somewhat artificial manner, been asked to divide the plaintiff's injuries and to treat them almost as if they are discrete, in order to determine the factual causation issues. In doing so, it is very easy to lose sight of the reality of the plaintiff's situation over more than 12 years.
82 In assessing the plaintiff's credit I have taken the following matters into consideration:
(a) he gave his evidence through an Croatian interpreter;
(b) he was cross-examined over two full days about the circumstances of the fall and his back and neck conditions. This involved traversing events as far back as 2006 when he began to experience back pain, his attendances on his general practitioner and at RMH throughout 2007, and his medication usage prior to and after the fall;
(c) The plaintiff suffers from cognitive deficits impacting on his memory and concentration; and
(d) his evidence in relation to his back and neck conditions was corroborated by his family. His wife and sons also gave evidence as to his cognitive decline.
When I consider all of these matters together, despite the fact that the plaintiff was at times unresponsive or unreliable, I am satisfied that he was a witness of truth on the subject of the fall and his back and neck conditions.
83 I turn now to the evidence that was given at trial. For convenience, I shall break the evidence into three main topics, namely as to the fall, as to the plaintiff's medical conditions, and as to damages.
84 The plaintiff's evidence was that on 30 October 2007 he arrived early on the premises. He accessed the scaffolding by ascending the internal staircase and stepping out through an open window.
85 He started to clean the bricks on the upper level on the eastern side of the house. He had two 'boxes' of chemicals and a hose to spray the bricks. He finished cleaning the bricks on the eastern side and moved around to the northern side of the house. He cleaned some bricks and then climbed up onto the raised scaffolding bay on the northern side of the house. This was about a metre higher than the rest of the scaffolding.[42] He felt some slight movement of the scaffolding.[43] He was pulling on his hose when he fell.[44] The last thing he remembers before falling was standing on the scaffolding. He said he could recall the sensation of falling.
86 In cross-examination the plaintiff maintained he was pulling on the hose when he fell.[45] His next memory was of lying on the ground and getting his phone out of his pocket. He could not recall whether he then crawled around to the eastern side of the house.[46] He denied he was trying to climb down the outside of the scaffold when he fell. He said that from when he fell until when the paramedics arrived he could not remember seeing anybody. He did not know who called the ambulance.
87 Two affidavits sworn by the plaintiff, dated 1 February 2010[47] and 26 October 2012, were tendered into evidence. The second one was a re-sworn version of the first one. In the first affidavit the plaintiff deposed as follows:
The scaffolding provided by [the defendant] was very flimsy and shaky. As I was cleaning the bricks on the upper storey on the north side of the house, the scaffolding gave way under me and I fell approximately six metres to the ground.
In the second affidavit the plaintiff deposed as follows:
The scaffolding provided by [the defendant] was very flimsy and shaky. As I was cleaning the bricks on the upper storey of the north side of the house, the scaffolding was shaky, unstable with no railing and I fell approximately six metres to the ground.
88 The plaintiff swore two lots of answers to interrogatories dated 30 May 2018 and 21 June 2018.[50] It was put to the plaintiff at trial that his account of the fall had changed from that given in his answers to interrogatories. He said that his English is very poor and that the drafter of the document must have misunderstood him.[51] He suggested the inconsistency was because he answered the wrong question, or was under stress at the time, despite having an interpreter.[52]
89 I see no real inconsistency between the plaintiff's answers to interrogatories and his viva voce evidence. The plaintiff's account as to how he fell was generally believable. While his recollection of events was limited, he was steadfast about two things, namely that the raised scaffolding bay was shaky and that he was pulling on his hose when he fell.
90 As I have said, there were no witnesses to the fall, and the last person to see the plaintiff was 'Simon'. It was he who alerted Mr Ferrar. Simon was not called to give evidence; Mr Ferrar was. I have already set out the relevant parts of Mr Ferrar's evidence.[53]
The evidence as to the plaintiff's medical conditions
91 I will deal firstly with the plaintiff's evidence and that of his family. I will then summarise the evidence of the medical witnesses. It will become apparent that the plaintiff suffers from a raft of physical and mental health problems - some of which pre-dated the fall - which do not lend themselves to neat discrimination.
92 The plaintiff did not have a detailed recall of his back pain prior to the fall or of the various medications he was taking. However, he maintained that his back pain was more severe after the fall, emphatically repeating that it was '100 times worse'.[54] Similarly, he did not know how much he worked prior to the fall, nor when he declined the surgery that was offered. But he was adamant that in the month or so before the fall his symptoms improved. He said he was able to work despite some 'nipping pain' in his right leg.[55]
93 The plaintiff's evidence was that, prior to the fall, he had a 'pinched nerve' in his back.[56] He recalled he was referred to RMH in April 2007 and reported these symptoms:
And by 'pinched nerve' - did you have pain - where did you have pain?---In my back.
In your back. And did you have pain anywhere else from that pinched nerve?No, nowhere else.
...
And then when you went back to the hospital in May 2007, again, how was your back feeling?---Same.
All right. What effect did the injection have?---It helped little bit, but not too much.
...
And in June 2007, were you seen by an orthopaedic surgeon, Mr Peter Turner?Yes.
And did you have a discussion with Mr Turner about whether you might have an operation on your back?---Yes.
As a result of that discussion, were you put on a waiting list?---Yes.
All right. And as the weeks passed in July and August 2007, what was happening in relation to the level of back pain? Was it staying the same, getting better, getting worse?---It really depended on the level of medication I was taking and on the day. Sometimes I felt better; other times I felt a little bit worse.
All right. And do you say during this time you were working full-time or part-time?---Again, it depended on how much work was available.
If there was a full week's work available, five or six days, what do you say as to whether or not you were able to carry out a full week's work at that time, in July and August, September 2007?---Yes. I could continue.[57]
94 The plaintiff was cross-examined about his pre-existing degenerative back condition. He was taken to the RMH notes in detail. The notes reveal that in early 2007 his back condition had become symptomatic in the form of an L4-5 disc prolapse. The plaintiff complained of back and right leg pain and his symptoms were sufficiently serious to be placed on the waiting list for elective surgery. The plaintiff was not able to recall the detail of any of these matters in cross-examination.
95 The tenor of the plaintiff's cross-examination is evident from the following portion of transcript:
In any event, it is recorded here that you've told the doctor that you've had four months of right leg pain?---I don't - I don't remember. I can't say.
Okay. Would it be your position, 'I don't remember, but if it's recorded in the hospital notes I'll accept it as correct'---Well, it means I was there, yes.
And do you accept that you did tell them that you had four months of right leg pain?---I don't remember so many years ago. I can't remember.
Okay. So first thing is, you're not in a position to dispute it and say it's wrong?---I can't say that. I don't know.
Okay. Well, then I want you to deal with this - and can I take it that your position in relation to anything that's recorded by way of complaints in 2007 you just can't remember?---I went through hundreds of examinations. I went through hundreds of physicians. Where, when, I don't know.
Okay, all right. Let's just work on the basis that what's recorded here is correct. I understand your position is you can't remember but let's just accept that what's recorded here is correct. The situation is that at April 2007, you've had four months of right leg pain?---I don't know.
As in always there---I can only tell you that my leg pain became worse after the fall.
I just want you to stick with this at the moment. By April 2007 you'd had four months of constant pain in your right leg, from your buttocks all the way down to your big toe?---Seven years ago. How would I know when my leg started aching? ...
No, that the pain was getting worse?---I remember that I was in pain. Sometimes pain, sometimes severe pain. How would I remember 12 years ago and when the pain was worse? [58]
96 The plaintiff was, however, clear about the increased severity of his back pain after the fall:
[W]hen you say a hundred times worse - you mean it's very, very different?---Yes, that's why I had two surgeries after that. ...
You said this on Tuesday?---I remember saying to a question to my representative that, yes, after I left, my back was a hundred times ...
Yes?---When I fell it was a hundred times worse.
Yes. So from the time of the fall it's a hundred times worse?---Yes.
97 The plaintiff was challenged about his evidence in an affidavit in an earlier proceeding, sworn 1 February 2010. The plaintiff was taken to the following paragraph:
I had always enjoyed very good health until 2007 when I first developed a sore back. I was on medication for some time and also had some injections. However, the condition gradually improved to the point that it had largely resolved, and I was able to perform my duties as a brick cleaner without difficulty prior to the incident which is the subject of this application occurring on the 30th day of October 2007.[59]
It was put to the plaintiff that, given his inability to remember the details of his back pain before the fall, he must have been lying in his affidavit. The plaintiff disagreed.[60] I accept that the plaintiff had difficulty recalling the precise nature of his back pain prior to the fall. However, as I have said, he was clear about the increase in back pain after the fall.
98 It was also put to the plaintiff that he has been an unreliable historian with several medical practitioners. The plaintiff again blamed his memory and insisted that he has not been untruthful:
What I want to suggest ... is that you have seen a number of doctors ... and to none of them have you given an accurate history about the condition of your back and right leg pain before your fall?---You mean - are you meaning to say that I didn't tell my history, my ...
You didn't give them an accurate history about how bad your back and right leg pain were before the fall?---I don't know. I can't remember.[61]
99 The plaintiff gave similar evidence as to his neck condition. He said that, prior to the fall, he had no neck pain; however, after the fall, he has never been without it.[62] The plaintiff said that when the paramedics arrived on 30 October 2007, he could not recall any pain in his neck. He lost consciousness and was given medication and so did not feel any pain when he arrived at RMH.[63] However, by the time of discharge, he recalled pain in his chest, head, ribs and arm.[64] He said that he had pain from the 'top of [his] head to [his] feet'.[65]
100 The plaintiff returned to work in June 2008 but found it very difficult because he was 'sore all over'.[66] Later, in 2009 to 2010, he worked as much he could. He was not able to work full time because of the pain in his 'neck, leg and arm'.[67] In 2011, after the revision discectomy, he felt 'a lot of pain' and it got worse over the year.[68] In August 2012, he was referred to Mr Turner, who raised the prospect of surgery on his cervical spine. Mr Turner told him he could end up in a wheelchair if he did not have the surgery. However, after having the procedure explained to him, the plaintiff was too scared and declined.[69]
101 The plaintiff continued to work in late 2012. He said that despite the pain, he had 'to live ... what was I going to live on?'.[70] He also worked through most of 2013. However, in October 2013, he was walking along the street when his 'leg just gave way and [he] fell'.[71] He ended up at RMH and was operated on for the third time by Mr Turner. He has not worked full-time since.[72]
102 In cross-examination the plaintiff maintained that he has had constant neck pain since the fall.[73] He described it as being sharp and going down his right shoulder. He was adamant that it started before July 2012 and that he told everybody, including the doctors at RMH, about it.[74] He said it was not his fault if they failed to note it in their records.[75] The plaintiff was taken to the records of Dr Sulava and Dr Stockman from 2011. It was put to him that he did not tell either of them about neck pain. He repeated that he had told '[e]very doctor, every specialist that [he] had seen since leaving [RMH],' and it was not his fault if they had not recorded his complaints.[76]
103 The plaintiff was asked to explain why he made no mention of neck pain in his 1 February 2010 affidavit.[77] He said:
I don't know what I had said to me, I don't know what he's written down. I don't know ... I repeat again, that I have told everybody. I'm repeating it to you that I did have neck pain and I told everybody about it.[78]
He was then asked to explain why, in his 26 October 2012 affidavit,[79] he deposed that he had 'only recently developed' neck and arm pain:
And so the truth is, as at October 2012, you recently developed neck and arm pain?---Ah, I remember telling everybody right from the start I had pain in my neck. What I - when I signed the documents, I signed that to be true.[80]
The plaintiff could not explain why the RMH notes record that he developed neck pain in the three weeks prior to 10 August 2012.
104 The plaintiff's evidence about his psychiatric condition was that, in February 2014, he was referred to a psychologist, Mr Karamanos, because he felt lonely and without hope.[81] He saw Mr Karamanos until late 2018 then he stopped due to financial difficulties. The plaintiff also saw a psychiatrist, Dr Kaplan, throughout 2014 and 2015. He recalled being prescribed antidepressant medication to help him sleep.[82]
105 The plaintiff's wife, Vesna Bucic, gave her evidence in a measured and straightforward manner.
106 Vesna said that in the four months before the fall the plaintiff continued to work and 'seemed to be okay'.[83] She said he was taking painkillers but did not know which ones or how many.[84] In the seven weeks before the fall, when he declined to have surgery, Vesna said the plaintiff was 'able to work' and 'seemed fine' on painkillers.[85]
107 Vesna was asked whether the plaintiff's affidavit sworn 1 February 2010 is accurate.[86] She said it is 'very accurate' as to his back condition before the fall.[87] Vesna said that, after the fall, she became aware of things troubling the plaintiff. These were 'his back, his leg and his neck ... and his chest.'[88] She said he never complained of neck pain before the fall.[89]
108 Vesna cared for the plaintiff in the two-months immediately after the fall. She said 'his back was hurting, his neck was hurting, his head ... just about everything [was hurting]'.[90]
109 Vesna was cross-examined as to why she could remember the details of the plaintiff's pain after the fall but not before the fall. The transcript records the following exchange:
Well, when you - Madam - when I ask you questions about, 'Do you know how bad the pain was?' you say, 'Well - I'm not the person who feels the pain. I'm not the patient'?---That's right.
So why does that not apply to your knowledge of his pain after the fall?---Because after the fall, he - when he fell when he was in hospital, he was screaming from pain, he was moaning in pain, he never did that before the fall.[91]
In re-examination Vesna said she had accompanied the plaintiff on his visits to Dr Sulava and heard him complain of back and neck pain.[92]
110 Vesna was asked about the plaintiff's current level of pain. She said:
He's - look, he's always in pain. He - sometimes more, sometimes less, but he's always in pain. The ... neck - he's always, umm, complaining of, umm - actually he was supposed - at one stage, he went to the emergency department for his neck and he was supposed to have neck surgery. He was placed on the waiting list again for neck surgery, but he declined it. He's too scared to have it.[93]
In cross-examination Vesna maintained that the plaintiff has had neck pain since the fall despite not being able to recall any 'specific times' or 'specific treatments' prior to February 2011.[94]
111 Vesna confirmed that the plaintiff has sought help from a psychologist and psychiatrist for anxiety and depression. She said he is often depressed, anxious, worried and unhappy.[95] He is also forgetful and agitated.[96] She said he regularly repeats himself and will often ask her the same question every ten minutes.[97]
112 Daniel Bucic is the plaintiff's eldest son. He recalled something being wrong with the plaintiff's back prior to the fall but said it was 'nothing dramatic'.[98]
113 Daniel said that before the fall the plaintiff was able to do household work and gardening. He worked five and sometimes six or seven days per week. Daniel said that in the four to six months before the fall the plaintiff worked independently and without any restrictions.[99]
115 Daniel said of the plaintiff's neck condition after the fall:
And did you ever observe your father experiencing any pain in his neck?Yes.
...
[And] how close was it to [the fall]? It was - it feels like it was a close time, very close to it. So from my memory it was straight after the accident, that's when all this started.[102]
He added that the plaintiff had gotten 'one hundred per cent worse' from 30 October 2007 to today.[103]
116 Daniel said his father experienced 'extreme depression' after the fall.
117 It was put to Daniel that his memory of the plaintiff before the fall was limited as he was not then living with his parents. He agreed before he 'wasn't around [the plaintiff] every day' and nor were these things 'fresh in [his] mind'.[104]
118 Marco Bucic is the younger brother of Daniel Bucic. He said he knew the plaintiff had a 'pinched nerve' in his back in the 12 months before the fall.
119 Marco recalled the plaintiff complaining of back, leg and neck pain after the fall.[105] He was not aware the plaintiff had been put on the waiting list for elective surgery before the fall.
121 Dr Darko Sulava was the plaintiff's treating general practitioner until 13 October 2013. He prepared two reports dated 26 January 2008 and 21 March 2009 and a certificate of capacity dated 17 March 2008.[108]
122 Dr Sulava's first report states that on 7 November 2007 the plaintiff told him that he had had a fall at work. The report reads:
[The plaintiff] advised me that he had fractured his distal right radius, had a right sided pneumothorax and sustained a laceration to his right scalp. For this he had been hospitalised for three days at the RMH.
...
At the time he was also referred to obtain a repeat chest x-ray to assist his pneumothorax resolution and to assess any rib fractures. Chest x-ray revealed that there was some right lung apex contusion with minor consolidation. To further clarify the situation on his next visit he was also referred to obtain a CT scan of his chest which was essentially normal apart from mild pleural thickening on the right lateral aspect of his right apex of his lung.
Essentially, [the plaintiff's] condition slowly improved and in the last review on 15 January he was still quite sore and unfit to return to work.
In conclusion, it is my opinion that [the plaintiff] might require some rehabilitation in the form of physiotherapy to mobilise his affected parts of the body and strengthen the muscles of his right arm which have been immobilised due to the radial fracture and therefore suffered atrophic changes. I believe that he should recover to the extent to be able to return to his normal duties within not too long a period.[109]
Self-evidently, the above passage does not contain any mention of back or neck pain, the focus being on the plaintiff's acute injuries. However, by the time of the certificate of capacity, Dr Sulava had linked the plaintiff's back condition to the fall. The certificate relevantly reads: '[The plaintiff] [h]as had back operation which I believe [was] as the result of the fall which aggravated the pre-existing back condition.'[110]
I had seen [the plaintiff] infrequently on the 15th January 2008, 17th March 2008, 14th April 2008 and 25th June 2008, when he had advised me that he had been hospitalised from 12th to 13th March 2008 with an L4/5 disc prolapse and radicular pain. At that time he had multiple issues and a CT scan of his chest, abdomen and pelvis had been ordered, as well as routine extensive blood test examination had been ordered.
It was also decided that a Mental Health Assessment and a Plan be done for him, with a view of referring him for psychological counselling and thus involving him in a comprehensive program with a view of his cessation of smoking. ... On 15th October 2008 he presented to my surgery requesting he be referred to an ophthalmologist, as apparently, he claimed that he does not see properly since after the fall ...
I have not seen [the plaintiff] since [18 February 2009] and presume that his recovery is uneventful with a good outlook.[111]
124 In cross-examination Dr Sulava explained that his first report was based on the RMH discharge summary as much as what the plaintiff told him.[112] He maintained that his reports were accurate insofar as they were based on the information provided:
[T]hese are just the main diagnoses here which probably I obtained from the discharge from the hospital. But yeah, he will usually complain of multiple issues and problems and pains, basically, yeah, from all over the body. ... He was complaining of various problems and pains, this is just - the outline of the major problems he presented with at that point in time.[113]
Dr Sulava clarified that the plaintiff's complaints in the period from 30 October 2007 to 22 February 2011 were often 'generalised': he would 'complain of different pain locations from headache to neck pain, back pain, chest pain, arm pain, [and] tingling pain.'[114] He said, it was 'difficult to evaluate ... which of the symptoms he was complaining of were significant.'[115]
125 Dr Sulava's evidence was that he first saw the plaintiff for lower back pain and right-side sciatica in September 2006.[116] He then saw him several times between September 2006 and September 2007.[117] On 8 September 2007 he wrote in his clinical notes: '[The plaintiff will] have this surgery this Wednesday. Complaining of being very sore.' Dr Sulava said the plaintiff did not proceed with the surgery because he was feeling better and was able to work on painkillers. In his opinion the plaintiff's back had 'obviously improved'.[118]
126 Dr Sulava was cross-examined about the plaintiff's clinical picture as at January 2008. It was put to him that he was not concerned at that time that the plaintiff had suffered a back or neck injury. Dr Sulava replied: '[n]o, because he didn't complain of any symptoms specifically to warrant any further investigations.'[119] Dr Sulava later qualified his position: he said the plaintiff's back condition had not been 'diagnosed as such' and that his first report was prepared for a separate WorkCover claim and so was limited to that purpose.[120]
127 Dr Sulava was again asked why he did not note any complaints of back pain in his first report. The transcript records the following exchange:
But he certainly didn't come in to you and say - after this fall and say anything like, 'Oh, doctor, my back pain is 100 times worse since the fall'? Did he?---Well, no.
If he had?---Otherwise, it would have been noticed.
If he had have said that, you would've recorded it in this report; correct?---Most likely.[121]
128 Dr Sulava was then asked about his second report. It was put to him that the plaintiff first complained of back pain on 17 March 2008. This was shortly after Mr Turner operated on his lumbar spine. Dr Sulava agreed and said: 'I wasn't aware until I was told that he'd been hospitalised. That means he wasn't complaining ... about back pain or any issues prior.'[122]
129 On 22 February 2011 Dr Sulava referred the plaintiff for a CT scan of his neck. His notes from that session record: '[a]lso complaining of both hands, fingertip numbness, tingling ... asks is it from the fall?'[123] Dr Sulava was cross-examined on this point as follows:
I want to suggest to you that [February 2011 was] the first time you've had any complaint of a neck pain?---Oh look, as I said, that was the first time that probably he complained to an extent that warranted further investigations, but when he would present, he would present with a myriad of issues and problems and ... they couldn't be dealt with all at the same time. It all depends which was thought to be more significant was tended to.
If you had any concern that your patient suffered an injury to his neck of any significance, I take it you would've arranged for some investigation?---Of course.
And can we take it from the fact that you didn't arrange an investigation until February 2011 that that was the first time you were concerned that he had a neck condition of any significance?---That's right. That might've warranted, yeah further investigation.
...
So he hasn't come to you and said "Look, doctor, I've had problems with my neck ever since the fall", has he? What he's said is, "I've got a problem with my neck, and I'm not sure whether it's connected to the fall"?---That's right.[124]
Dr Sulava reiterated his earlier evidence that the plaintiff would often present with complaints of pain in different locations and that it was difficult to evaluate which were significant.[125]
130 Peter Turner has been the plaintiff's treating orthopaedic surgeon since 2007. He prepared four reports dated 30 January 2012, 24 July 2013, 29 November 2017 and 8 November 2018.[126]
131 Mr Turner's first report states: 'It is possible, perhaps even likely [the fall] aggravated the L4-5 disc condition [the plaintiff] reported in June 2007.'[127] It then states: 'A significant fall like that ... certainly has the potential for exacerbating pain from a pre-existing condition ... It probably did cause exacerbation of his pain.'[128] The report then states:
The extent to which [the plaintiff's back condition] impacts on daily activities will to a large degree be influenced by the extent to which [he] works and his exercising to maintain reasonable strength and flexibility within the spine itself ... The degenerative nature of the disc, however, is not necessarily a major concern and discs of this nature are not inevitably a source of symptoms requiring further active treatment. Many individuals undertaking regular exercise to maintain good core strength around the back and to keep a good reasonable level of flexibility will enable that person to function satisfactorily.[129]
significant the symptoms are and how patient the person is willing to be. Clearly, this gentleman was patient for a period of time in the hope and wish that - perhaps he - even he had some tantalising suggestion that it would get better on its own, but then at some point the pain gets to a point where it - it's not improving, it's causing significant problems, and he decides that now is the time to have an operation.[132]
132 Mr Turner agreed that the plaintiff's clinical picture in 2007 was of a 'man with a progressively worsening back condition'.[135] He opined that it was 'uncommon' for a person in the plaintiff's position to experience an improvement in their symptoms.[136] He said the fact that the plaintiff took Panadeine Forte and Tramal at an increasing rate suggested continuing pain at some level.[137]
133 Mr Turner said the surgery in March 2008 was exactly what the plaintiff had been put on the elective waiting list for in June 2007.[138] There was no additional pathology discovered upon surgical inspection.[139] The plaintiff never told Mr Turner about a fall at work, or that his back pain had become dramatically worse, and nor did Mr Turner record anything in his notes to that effect.[140] Nevertheless, having become aware of the fall from the plaintiff's solicitors, Mr Turner opined that the plaintiff's back condition deteriorated after the fall.[141] He said there does not have to be a 'new specific measurable structural change' and that not everything is recorded in a consultation.[142]
134 Mr Turner could not say what caused the pre-fall prolapse:
Twenty per cent of the patients that I see with a proven symptomatic disc prolapse can't recall an incident ... Some people will develop this problem without being able to identify a specific cause.[143]
135 As for the need for the three operations, Mr Turner opined:
You see a patient and you decide you'll do a discectomy ... but the operation only partially relieves the symptoms and the symptoms continue to evolve. The need for a fusion is not necessary just because there has been a specific further age deterioration of the spine. It's simply a part of the evolution of the management of the original disc prolapse ... [There can] be events or incidents in between that contribute to that process.[144]
He explained that there could have been an event between the March 2008 surgery and the October 2013 surgery that contributed to the evolution of the plaintiff's original disc prolapse.[145]
136 As for the plaintiff's decision not to operate, Mr Turner said:
I have lots of patients who, in the end, choose not to have an operation that I think could make a big difference for them simply because they are frightened of what the operation might do to them ... Now, what's - what's turned a man who scared stiff of having an operation that might paralyse him to, two or three months later, having an operation? He could just have, ah, got brave again, but there could also have been an incident that, ah, he claims has happened, that exacerbated his symptoms to the point where he now feels that something has to be done about it.[146]
Mr Turner added: 'Or it could be that there was a progressive worsening of his spinal condition.'[147]
137 Mr Turner opined that, once a person has had a back injury, 'they potentially have ongoing symptoms and what happens to their back later on can be directly connected back to the original incident that contributed to or caused the original damage'.[148] He defined the 'original incident' as what occurred in May or June of 2007, that is, before the plaintiff's fall of 30 October 2007.[149]
138 In re-examination Mr Turner maintained that the plaintiff's fall was significant and would have jarred his back. He said that, given 'pathological changes' were already evident, it was probable the plaintiff's symptoms were 'exacerbated'.[150]
139 Mr Turner was more guarded on the subject of the plaintiff's neck. He explained that the plaintiff has stenosis at C6-7 which he defined as a 'narrowing commonly seen in a degenerative process'.[151] He agreed the plaintiff had made no complaint of neck pain as at March 2012.[152] However, having seen the totality of the medical history, he opined as follows:
Given the time delay between the fall and the onset of the pain into the arm, it's difficult to make a dogmatic statement one way or the other, but given that the neck pain started at the time of that fall, and had been ongoing and would appear to have evolved into pain radiating into the arm as well, I think the probability is that the two are connected ... the fall and the gradual development of symptoms are connected.[153]
140 It was put to Mr Turner in cross-examination that the first record of neck complaint was to the plaintiff's general practitioner in February 2011. He agreed that, given this was three-and-a-half years after the fall, it diminished the likelihood of any casual connection.[154] He said a connection between the onset of neck pain from the fall and the subsequent development of a disc prolapse in the neck is 'possible'.[155] He would not go so far as to say 'probable'.[156] The temporal disconnect made it 'difficult to argue the connection'.[157]
141 Mr Turner agreed the plaintiff's neck pain could be explained by aging and deterioration alone.[158] He noted that there was deterioration between 2012 and 2016 despite no recorded incident of trauma.[159] He opined that 'you can make a much stronger argument between his further symptoms from his lower back in the fall than you can perhaps from the neck'.[160] He added that his opinion was premised on the assumption that the plaintiff did in fact complain of neck pain from the time of the fall.[161] Further, as there is no imaging of the plaintiff's neck from the time of the fall up until the 2012 MRI scan, Mr Turner said 'we basically have no idea what was going on in his neck over that timeframe'.[162]
142 In re-examination Mr Turner clarified his position as follows:
if one accepts that [the plaintiff] had symptoms of neck pain from the time of the fall and the neck pain had been ongoing, fluctuating, perhaps, but ongoing, and it wasn't till he developed neck - nerve-type referral into his arm that the symptoms were taken seriously, the possibility of a connection is reasonably strong, but equally, the longer the time interval between an incident that is potentially to blame and the development of symptoms that require active medical intervention ... the more difficult it is to be certain of that link.[163]
143 Aejaz Sheriff is the plaintiff's current treating general practitioner. He took over from Dr Sulava in November 2013. Dr Sheriff provided three reports dated 19 June 2014, 10 December 2014 and 14 March 2018.[164]
144 Dr Sheriff's first report states that, while the plaintiff had pre-existing back pain, the fall caused lumbar spine disc prolapse, right wrist fractures, aggravated cervical spondylosis, closed head injury, lacerations to the scalp, fractured ribs right side, post-traumatic stress disorder and a peroneal nerve palsy right leg as a sequelae to his sequestrated lumbar disc and intractable headaches.[165]
145 Dr Sheriff agreed in cross-examination that his opinion depended on the accuracy of the history he was given. He was asked to give an opinion on the basis that the plaintiff had not complained of back pain after the fall.[166] Dr Sheriff said that, 'noting the type of injury, [he] would be very surprised [if he did not injure his back in the fall].'[167]
146 Dr Sheriff was challenged on the basis that his first report states that the plaintiff suffered a disc prolapse after the fall. It was put to him:
And having regard to the fact that he, in fact, had a disc prolapse five months before the fall, you wouldn't accept that he suffered a disc prolapse in the fall, would you? --- I would simply assume that he aggravated the condition, and the fact that ah, unless, ah some neurologist or ... had noted that, ah, this gentleman had a, ah, foot drop or - peroneal nerve palsy type of injury that would obviously change my opinion.
Dr Sheriff said he had assumed the plaintiff's fall was 'very significant' and that any pre-existing spinal condition would have been 'aggravated' such that he would have 'prolapsed the disc even more'.[168]
147 Dr Sheriff's second report states that the fall aggravated the plaintiff's pre-existing cervical spondylosis.[169] Dr Sheriff agreed that this opinion was premised on the plaintiff having complained of neck pain since the fall.[170] He said that if the plaintiff had not complained for several years after the fall he would alter his opinion.[171]
148 It was put to Dr Sheriff that the August 2012 MRI showed degenerative changes at C67, whereas the April 2016 MRI showed a left-sided C4-5 prolapse, which Mr Turner deemed a new finding. Dr Sheriff said he would yield to Mr Turner's opinion.[172] He agreed this would explain the left-sided weakness in the plaintiff's arm that was apparent on examination.[173]
149 Dr Sheriff noted that the plaintiff has been diagnosed with post-traumatic stress disorder and major depression.[174] And he noted that the plaintiff's memory for recent events was impaired. He said there is a clinical suggestion that the plaintiff's higher functions may have been affected by the head injury he sustained in the fall.[175]
150 David Kennedy is a specialist medical practitioner. He is a fellow of the College of Sports Physicians and the Australian Sports Medicine Federation.
151 Dr Kennedy assessed the plaintiff on 23 October 2018 and prepared a report dated 31 October 2018.[176] The report states:
The fall was quite significant ... [and] has had a significant influence on [the plaintiff's] injuries and ongoing problems, involving his neck and lower back ... [the plaintiff] continues to have significant restrictions due to pain and stiffness in his neck and back and referred pain into his right lower extremity and ongoing problems in his right upper extremities.[177]
152 Dr Kennedy's viva-voce evidence was similar in that he described the fall as having caused a 'significant acceleration and exacerbation of the problems that were present in [the plaintiff's] lumbar spine for one or two years prior.'[178] He agreed in cross-examination that the plaintiff's back pain and right-side sciatica would have impeded his daily living and ability to work and that his increasing use of painkillers after June 2007 suggested increasing pain. And he agreed that the March 2008 surgery performed by Mr Turner was the same as that foreshadowed in June 2007.
153 Dr Kennedy was cross-examined about the lack of recorded complaints of back pain after the fall. He said:
It's interesting about the information provided by the general practitioner, and this is quite common. We've got a man who fell four to six metres, sustained quite significant injuries to his chest and [a] collapsed lung and a fractured wrist. Invariably, in my experience, when they go and see their doctor the focus is on the acute and what appears to be the significant injuries at that time, and the doctors usually rush getting notes down bits and pieces ... and the focus by the client is on those acute injuries, and that can go on for months.[179]
It was put to Dr Kennedy that he was speculating that the plaintiff had back and neck pain but was focused on more immediate concerns. He replied:
My argument is that he focused on ... the problems in his chest and right arm ... But he still had back pain and may even have had neck pain ... He obviously had back pain, because when he finally saw Mr Turner again for a review he underwent surgery.[180]
154 Dr Kennedy was asked what effect the fall has had on the course of the plaintiff's subsequent health. He said:
I think it's had a profound effect ... I think as the problems got worse, he underwent surgery and as you have described, he had three operative procedures on the damaged lower lumbar intervertebral disc. Now, there's no doubt that the injuries were there prior to the fall, but in my opinion, the fall significantly accelerated those problems in his lumbar spine, necessitating for him to finally agree to undergo surgery. Which he's had over three occasions, culminating in a fusion in his lower spine. I think the problems in his neck, arm, have progressively worsened as well, and - and become more significantly evident, as all the other issues were assessed, treated and looked at. It then became evident that he's had problems in his cervical spine and it's my opinion they occurred as a consequence of the - the fall. Now, he may have had pre-existing cervical spondylosis and some problems in his cervical spine, but from the history that I've received and reviewing the medical notes there's no history of any x-ray or treatment or problems recorded by [the plaintiff] involving his cervical spine prior to the fall.[181]
155 Dr Kennedy was shown exhibit P1, the photographs of the scaffolding and the bricks where the plaintiff fell, and commented:
As I said to [the plaintiff] at the time [I examined him] ... he could've died from that fall, and it's a significant height and it's a significant injury, and, as I said to him, the nature and extent of the injury sustained to his chest - a collapsed lung - a fractured rib - lacerated scalp, and the injuries I believe he sustained to his neck and back, are consistent from a fall of that nature.[182]
Well we know he had a pre-existing ah - intervertebral disc problem. We've now had a look at how far he fell and how he fell. There's no doubt that the fall, if it collapsed a lung, would've raised his intra-abdominal pressure and caused further damage to his intervertebral discs, whether it be in his cervical spine - and also the pre-existing damaged disc at L4-5, and therefore led to the fact that the problems in his lower back worsened such that he eventually required surgery. Now, he may have required surgery had he not had the fall, because there was an indication that the surgeon said he needed surgery. I'm not disputing that. But certainly from the information that had been provided, the fall has accelerated or exacerbated problems in his lumbar spine.[183]
The most significant injury following this fall was to his cervical spine with ongoing problems in his neck and right upper extremity, with subsequent scans, including a CT scan and an MRI scan revealing damage to the C3-4 , C4-5 intervertebral discs, but more significantly a right-sided paracentral disc protrusion and osteophytic spur developing at C6-7 with involvement of the lower cervical nerve roots, particular the right C7 nerve root.[184]
157 It was put to Dr Kennedy that the plaintiff attended RMH on 16 August 2012 complaining of sharp neck pain for three weeks. He was asked whether the disc prolapse in his neck had therefore occurred in late July 2012. Dr Kennedy agreed but said: 'He may have damaged his cervical spine [in the fall] and had disc damage without a specific prolapse ... you can have an annular tear and not a prolapse'.[185]
158 Dr Kennedy was asked to give an opinion on the discal pathology in the plaintiff's cervical spine. He said the plaintiff's history of 'heavy repetitive work' could have caused the deterioration of the disc just as it could have caused the discal pathology in the plaintiff's lumbar spine in early 2007.[186] He added that each of the plaintiff's lumbar and cervical spine conditions could have been 'aggravated [by] the fall'.[187] When pressed, he expanded on his opinion in the following terms:
On the balance of probabilities, I believe it was present prior to the fall. More likely, he damaged his neck at that time and, gradually, the problem has progressively worsened. Again, once the problems in his lumbar spine were improved following surgery, it became evident that he had problems in his neck and his right shoulder and arm.
...
I'm saying that these situations can occur where you've got an underlying problem that becomes more evident in terms of pain levels because pain is a distracting thing. You can have pain in one area and pain in another area. Because the pain is more severe in one area, the other pain is not as evident.[188]
159 Dr Kennedy was asked whether it was significant that there were no scans prior to the fall. He said:
I don't have any evidence of any radiological findings of neck problems prior to the fall. He may have cervical spondylosis prior to the fall because of the nature of the work he had performed or other activities, but there ... [were] neck problems or radiating problems in his right arm prior to the fall.[189]
When asked to clarify his view, Dr Kennedy said that 'the absence of any previous xrays or scans of the cervical spine gives some indication that, on the balance of probabilities, he didn't have any significant problems in his neck that required investigations or treatment prior to the fall'.[190] He said the same reasoning applied to the lack of any complaint from the plaintiff.[191]
160 It was put to Dr Kennedy that his opinion on causation was predicated on there being an onset of symptoms and complaints directly after the fall. Dr Kennedy agreed but qualified his position as follows:
No, not exactly straight after the fall. It's predicated on all the information that I've received in terms of the type of fall, the amount of trauma that he sustained, and the subsequent problems that have developed following that ... [The plaintiff] told me that he had some problems, when questioned, in his neck at some time after the fall. He didn't give a specific time, but it was sometime soon, after the fall. But the major problems were in his back, and, initially, in his chest and right arm.[192]
Dr Kennedy confirmed that the history given to him by the plaintiff was of neck pain immediately after the fall: 'when [the plaintiff] woke up ... he noticed some problems, there on the ground ... at the accident site.'[193] Dr Kennedy was asked about the temporal relationship between the fall and the onset of neck pain. He said the passage of time is relevant, but it is not 'an absolute, linear relationship' as there are 'other factors that occurred during that period between 2007 and 2012.'[194]
161 Dr Kennedy was asked whether the plaintiff's neck and arm pain would of itself prevent him from working as a brick cleaner. He opined that on balance the plaintiff would be unable to work.[195] In re-examination he clarified his opinion. He was asked to assume that the plaintiff had complained of neck pain from the time of the fall and of tingling pain from February 2011. Dr Kennedy said:
I think, on the balance of probabilities, he sustained injuries to his cervical spine at the time of the fall. Initially, there was damage to several intervertebral discs, but there were no significant symptoms in relation to radiculopathy until, eventually, a prolapse occurred. But, prior to that, from the scans, he had some tingling. So there was evidence of progressive damage to the intervertebral discs, which, I believe, occurred at the time of the fall.[196]
162 Ronald Haig is an orthopaedic surgeon. He assessed the plaintiff on 24 October 2018 and prepared a report dated 29 October 2018.[197]
163 The report states that, regardless of the fall, the plaintiff would have undergone surgery for his lumbar spine. In cross-examination Mr Haig agreed that most disc prolapses do not require surgery and recover naturally. He said symptoms may persist after the disc reabsorbs such that the patient is left with altered sensation, numbness or foot drop.[198]
164 Mr Haig said that a surgeon will be guided by the patient's symptoms.[199] He would not operate on a person with minor symptoms because surgery is traumatic and gives rise to acute risks. Surgery can also by its very nature affect the future evolution of the spinal condition. He said surgery should be avoided unless absolutely necessary.[200]
165 The plaintiff's evidence as to his back pain before the fall was put to Mr Haig. Mr Haig agreed that, if the plaintiff's evidence was accurate, he would have been well on his way to recovery.[201] He said, however, that if he was the treating doctor he would want to know 'what medications [the plaintiff] was taking and how he would be if he wasn't taking them'.[202]
166 Mr Haig agreed that a fall from approximately 4.5 metres on to a pile of bricks could cause death, quadriplegia or paraplegia. He said it is certainly the sort of trauma that could aggravate a previously vulnerable disc.[203] Mr Haig agreed that, if the plaintiff's back was better before the fall and much worse after it, the fall would need to be seen as a cause of the surgery. He did not agree, however, that this was the correct sequence of events.[204]
167 Mr Haig agreed that people respond in different ways to surgery. Some get a good result and others do not. He said a surgeon will be guided by the post-surgery symptoms.[205] He said the plaintiff suffered a prolapsed disc at the end of 2006 and was 'always at risk', or 'vulnerable', thereafter.[206]
168 Mr Haig's report records the plaintiff telling him he had back pain immediately after the fall and neck pain about two years later (i.e. in 2009). The report notes that there is no mention of neck pain in the medical record until 2012. Mr Haig's opinion was therefore that the plaintiff's neck condition is not related to the fall. The report states:
In terms of his cervical spine, where I believe [the plaintiff] has cervical spondylosis and a prolapsed disc, I believe the prognosis is guarded for this condition is, in my opinion, age-related in origin. He has been considered for surgery and indeed placed on a waiting list but has declined that surgery stating he is 'scared'.
....
I do not believe his neck complaints are related to the accident on 30 October 2007. I can find no mention of neck complaint in the documentation until entries during 2012 when he developed pain in both shoulders and was investigated accordingly with an MRI.[207]
169 In cross-examination Mr Haig agreed that the history of neck pain was of paramount importance.[208] He said a fall onto bricks could damage many different structures of the spine.[209] He said that if the plaintiff had complained of neck pain in hospital it would have been taken 'very seriously' and it would have had to be 'cleared with an X-ray and a CT or MRI'.[210] He observed that no such complaint was recorded and no such scans were ordered. In re-examination Mr Haig was asked whether the plaintiff's neck pain and C6-7 prolapse was related to the fall. He said: 'No, I don't believe so. That occurred some four years or so after the fall.'[211]
170 Dr Alex Stockman is a rheumatologist. He assessed the plaintiff on 20 December 2011 and prepared a report the same day.[212]
171 In cross-examination Dr Stockman was asked to describe what impact the fall has had on the plaintiff's back condition. Dr Stockman said:
Well, if it's - if it's clear, because there seems to be some differences of opinion - if it's clear that he was better before the fall and if we could just perhaps have some sort of graph of his pain level, if we can, before the fall and then afterwards, and it has got worse, one could argue that perhaps a disc prolapsed a bit more and became more symptomatic. It's still the same disc, but perhaps it has become symptomatic to the point that he couldn't continue without surgery. So - so it's a matter of, I think - the history - is very important here.[213]
all we can say is that it was a bad fall - big fall and he has had symptoms afterwards; he has got degeneration; and impossible to say, you know how much it's - it's worse and- and whether this is led to the problems he had subsequently, but all I can say is that, according to the symptoms, certainly the neck seems to be a fairly new thing - a new symptom since the fall.[214]
172 Dr Stockman's report records the plaintiff telling him he has had neck pain and almost constant occipital and right temple headaches since the fall. The neck pain and headaches are also aggravated by a change in weather. The report concludes that the plaintiff's neck pain and headaches are due to cervical spondylosis which, on the history given by the plaintiff, was aggravated by the fall.[215]
173 In cross-examination the following was put to Dr Stockman:
If one is having, say, compression of the C7 nerve root, you would - it's typical that would go down into the arm, isn't it? --- Correct.
Rather than up into the occipital area or the temple area? --- Correct
...
So such complaint as he gives you in December 2012 of pain into the back of the head is not indicative of a C7 prolapse, is it? --- No ... You can still get rather generalised neck pain. And you can even get referred pain into the head.
...
Now if it be the case that this neck pain ... first came on in about February 2011 - so two and a half years after the fall - that would make it very unlikely that the fall made any contribution to the neck pain; would you agree? --- Yes.
...
The gentleman has, is this fair, a degenerative process which is operating throughout his lumbar spine and throughout his cervical spine? --- Correct.
And that's independent of any trauma that might have happened from any fall; correct? --- Well, it can be, yes. ... The trauma can aggravate it.[216]
174 In re-examination Dr Stockman was asked to comment on the plaintiff's neck condition on the assumption that he has had pain since the fall:
Well, I would say he has done something to his spine. It couldn't be just muscular, it must be something to do with the joints or discs ... [W]e don't have an MRI before the fall and we have one after, so we can't really compare, but I assume he has caused some damage to the structures in the neck.
...
[A]s described to me, taking what the client says, I would say [the fall] has caused symptomatic spondylosis or disc degeneration ... quite often, it's just a neck pain, there's no radiation ... [but it can go up] to the head. It may mean upper cervical structures ... It could be lower cervical. We can't be more specific.[217]
175 Dr Stockman was shown the photographs of the accident site in exhibit P1. He was asked what such a fall could do to the cervical spine:
Well, you can get quadriplegia, paraplegia, depending on how bad the injury, you know, how he fell. If he just fell on the - looks like he fell on the chest and maybe counter reflexion extension injury to the neck rather than direct injury to the neck, well, then it's probably just aggravated or accelerated this pre-existing degenerative change, which most of us have at that age.[218]
176 John Karamanos is the plaintiff's treating psychologist. He prepared two reports dated 3 March 2014 and 29 October 2018.
Since the time of his injury in 2007 [the plaintiff] has progressively developed significant depressive and anxiety symptoms in response to his unresolved pain, physical symptoms, functional limitations, his inability to return to employment duties and provide for his family and the loss of quality of life.[219]
At that time, Mr Karamanos diagnosed the plaintiff with an 'Adjustment Disorder with Mixed Anxiety and Depressed Mood (Chronic)', which was precipitated by and secondary to the physical injuries he sustained in the fall.
178 Mr Karamanos' second report diagnoses the plaintiff with 'Major Depressive Disorder with Anxious Distress, Moderately Severe' and with chronic pain syndrome. These conditions, the report states, are wholly attributable to the plaintiff's physical injuries, surgical procedures and subsequent functional restrictions.[220] The report further notes impaired concentration, forgetfulness and slowed and confused thinking.[221]
179 In examination-in-chief Dr Karamanos said that the symptoms identified in his second report are consistent with a diagnosis of cognitive deficit.[222] In cross-examination he agreed that the plaintiff's psychological sequelae are no different from someone who is injured and unable to work but has not suffered a fall at work.[223]
180 Albert Kaplan was the plaintiff's treating psychiatrist from 10 December 2014 until 14 September 2015. Dr Kaplan did not give vive voce evidence but his reports dated 12 September 2014, 12 March 2015 and 7 December 2018 were tendered by consent.
181 Dr Kaplan's first report states that, due to chronic pain, financial difficulties and physical limitations, the plaintiff has become depressed, anxious and irritable. Dr Kaplan prescribed 25mg of Fluvoxamine daily, with a view to increasing the dosage to a maximum of 200mg daily, to reduce anxiety and irritability and to assist with sleeping.[224]
182 Dr Kaplan's second report states that he has diagnosed the plaintiff with an Adjustment Disorder with Mixed Anxiety and Depressed Mood. This is likely to persist 'as long as his pain persists and as long as he remains disabled by his pain'.[225]
183 Dr Kaplan's third report states that the plaintiff's condition has not improved in the intervening three years. The diagnosis remains unchanged. Dr Kaplan had prescribed 45mg of Mirtazapine, an antidepressant, two years earlier.[226]
184 Richard Waluk is a medico-legal expert retained by the plaintiff's solicitors. He examined the plaintiff and prepared a report dated 6 April 2017.
185 Dr Waluk's report states that the plaintiff suffers from post-concussion syndrome - or brain concussion syndrome - as indicated by severe headaches, positional vertigo, a degree of photophobia while in hospital and loss of consciousness after the fall.[227] In examination-in-chief Dr Waluk explained that this syndrome can manifest itself in variable memory loss, constant headaches, irritability, insomnia, anxiety and depression.[228]
186 In cross-examination Dr Waluk said that brain concussion may follow from shorter periods of unconsciousness.[229] He clarified that if there is no loss of consciousness there can be no brain concussion. He was taken to the notes of the paramedics on 30 October 2007 and, in particular, the notation that reads 'nil loss of consciousness' with respect to the plaintiff. He said that the plaintiff could have lost consciousness before the paramedics arrived.[230]
187 Dr Waluk was then taken to the notation that the paramedics had tested the plaintiff and he had achieved a 'Glasgow score' of 15 out of a total of 15. It was put to Dr Waluk that this 'indicates full consciousness' and a person who had just been unconscious would not register such a high score.[231] Dr Waluk responded that consciousness is 'subjective' and that he would be 'extremely surprised if a person falls from such a height and hits the head against the ground with the bricks there, not to lose consciousness. That will be amazing.'[232]
188 In re-examination Dr Waluk questioned the ability of the paramedics to do three Glasgow score assessments within three minutes of each other. He said: 'Maybe there was a Speedy Gonzales there that was able to do it.'[233] He further opined that retrograde amnesia is an important sign and symptom of brain concussion.[234]
189 For convenience, I will summarise the evidence as it relates to each head of damage, acknowledging that some evidence may be relevant to two or more heads of damage. The heads of damage will be as follows: general damages; economic loss; attendant care; and medical and like expenses.
190 The plaintiff's evidence was that he built his home in Taylors Lakes in 1999. After the accident, when he could no longer meet his repayments, his mother-in-law bought the house from him. He said this was in or around April 2009.[235]
191 The plaintiff described the pain in his neck as very sharp and said it extends through his right arm and whole body. He feels as if his 'body has been broken'.[236] The plaintiff initially agreed he could not work due to the pain, but later said he was unsure whether it would prevent him from working as a brick cleaner.[237] He said he did not consider himself to be an 'invalid' because he can still move.[238] In cross-examination he said that his major issue since August 2012 has been his neck and arms.[239]
192 The plaintiff agreed that he had been taking painkillers since 2007 and that he had been able to work provided he was on painkillers. He could not recall how much medication was prescribed or when he had taken it but he agreed he was taking a lot of tablets in 2007.
193 The plaintiff said his wife has to dress him when he is in pain.[240] He initially said his wife dresses him every day but then said it all depends on his pain and it could be between one and five times per week. He did not know how long it took.[241] Sometimes his wife helps turn him in bed. Sometimes he wakes her up because he is in pain. This happens between three to seven times per week.[242] The plaintiff said that about once per day he has an 'attack' of pain and has to lie down on the floor.
194 Vesna Bucic's evidence was that, after the fall, the plaintiff was 'never happy again'. He never laughs and is no longer funny or social like he used to be.[243]
195 Daniel Bucic's evidence was that the plaintiff has suffered from depression ever since the fall.[244] He said it has impacted his relationships within the family. He described the plaintiff as a 'different person' and said:
He's not strong like he used to be. He used to be strong, he used to be a man, he used to be, you know, the head of the house. Now, he's very different. This has crushed him with all the depression and anxiety. Yes it's very bad.[245]
196 Marco Bucic's evidence was that the plaintiff is a different person from who he was before the fall. He said the plaintiff would often lie or sleep on the floor. He was not an active, social or funny person.[248] Marco said the plaintiff's memory is 'shocking' and he will often need to be told things more than once.[249]
197 As for the plaintiff's quality of life, including family and social life, Mr Karamanos stated in his 29 October 2018 report:
It appears that since the time he ceased work, sometime in 2011, the quality of his life including his family and social life have suffered immensely.
His relationship with his immediate family members has deteriorated to the point where [the plaintiff] is constantly irritable, easily provoked to anger and argumentative. He has become unapproachable and uncommunicative.
He has lost his breadwinner status within his family and this has caused financial hardship, unhappiness, guilt feelings and social withdrawal.
He avoids attending cultural and traditional events with family and friends because he is constantly depressed, anxious and irritable.[250]
The report further states that the plaintiff's 'psychological impairments will have an adverse effect on [his] ability to participate in and enjoy his pre-injury social and recreational activities and quality of lifestyle.'[251]
198 In examination-in-chief Mr Karamanos said the plaintiff's reduced capacity to participate in social, cultural and traditional activities has negatively impacted upon him. He opined that it:
really further reinforces the negative self-image, the low self-esteem and the fact that, 'Well, I failed as a man' ... [T]his man identified with his work and that's what he's done all his life and ... a lot of migrants normally do. That's all they know, work and some family home. But this man ... had a very strong work ethic and ... losing that breadwinner status pretty much destroyed his self-confidence and his ability to then look to himself and say 'Well, I mean, I'll be able to go back,' because he tried, he failed. Subsequently ... psychologically, he deteriorated.[252]
199 Mr Kaplan's report of 7 December 2018 states that the plaintiff's psychiatric condition has had a major impact upon his quality of life and, in particular, on his social life and his relationships with his family.[253]
200 Similarly, Dr Kennedy's report of 31 October 2018 states that the plaintiff's physical injuries, as well as the medication he requires, will continue to affect his ability to carry out domestic, social and recreational activities.[254]
201 The plaintiff's evidence was that he started brick cleaning with his father-in-law before setting up his own business. He said his business did well up until the fall and he sometimes worked six or seven days per week.
202 In the financial year ending June 2006 he earned approximately $45,000 and in the year ending June 2008 he earned a little over $20,000. The plaintiff said that he only got back to work at the end of June 2008 and that most of the money in that financial year had been earned in the four months before the fall.[255]
203 The plaintiff said that in 2009 and 2010 he continued to work as a brick cleaner but it was variable depending on his pain.[256] He said he continued to work in 2012 and only stopped working full-time in 2013 after his third bout of surgery. Since 2013 he has tried to work part-time with a friend, for approximately four to five hours at a time, but said he could not remember the last time he had worked a full day.[257] He has not worked a full day in the last six to eight months.[258] The plaintiff said he misses his work and feels like the poorest person on Earth.[259] He believes that, but for his injury, he would have worked until he was 70 years old.[260]
204 In cross-examination the plaintiff was asked if anything had stopped him from working in 2002. He could not recall anything that stopped him from working between 2002 and 2007.[261] He did not know why his taxable income for the financial year ending June 2003 was only $880. Nor did he know why it was $5,113 in the financial year ending June 2004 or $12,788 in the financial year ending June 2007.[262] This was in the context of earning much more than this, in the order of $40,000 per annum, in the financial years ending June 2012 and 2013. The plaintiff's explanation was that his accountant prepares his tax returns for him and he has always entrusted everything to him.[263]
205 It was put to the plaintiff in cross-examination that he never earned $1,200 per week as a brick cleaner. The plaintiff said he did not know.[264]
206 As for the financial years ending June 2011, 2012 and 2013, when the plaintiff earned $36,585, $40,495 and $40,935 respectively, the plaintiff's evidence was that he had another man working for him and the other man had earned that money.[265] He said he had put the other man's earnings into his tax return because he couldn't work on his own and he 'wanted to be honest with the taxation department'.[266] His exact words were: 'We were working together with the other man, but I - it went into my account in the tax return'.[267] The plaintiff explained that he and the other man both had their 'own work' but that they 'exchanged' and 'helped one another' and, in 2012, 'the earnings were high ... and we made good money'.[268] Although the plaintiff's evidence on this topic was confusing, his tax returns were not challenged by the defendant.
208 Dr Kennedy opined in his 31 October 2018 report that the plaintiff's requirement for strong analgesic medication affects his ability to work. In addition, the plaintiff's age, poor command of the English language, significant physical restrictions and limited education, skills training, and work experience mean he will not be able to be retrained into a more sedentary occupation.[271]
209 Dr Sheriff's report of 14 March 2018 similarly states:
In his current clinical state [the plaintiff] has no work capacity. This is due to the fact that he is depressed, suffers severe neck and back pain, weakness and poor mobility due to right foot palsy and poor right hand grip and bilateral shoulder weakness. He has affected memory [sic] and he has no formal education. He cannot be vocationally retrained.
210 Mr Karamanos' report of 29 October 2018 states that the plaintiff is 'psychologically unfit to return to any type of employment as a result of impairments in his concentration and attention, memory and thinking'.[272]
211 Mr Bendzulla, a consultant actuary employed by the plaintiff's solicitors, prepared a report dated 5 February 2019.[273] The report estimates the plaintiff's loss of earnings based on a projected taxable income of $1200 per week. This figure was taken from the plaintiff's taxable income in the 17 weeks prior to the fall. Mr Bendzulla applies a six per cent discount and assumptions about future tax rates. He also applies an annual increase of three per cent to account for official RBA interest rates.[274] He concludes that the plaintiff's past net earnings was $493,719. Future net earnings are calculated on the same weekly average, with a 5 per cent discount up to a retirement age of 67, for a total of $324,526. The total aggregate loss of earnings is therefore $907,188.
212 Mr Bendzulla was asked to accept that the plaintiff's taxable income was as follows:[275]
Taxable income from the plaintiff's tax returns
213 In cross-examination Mr Bendzulla agreed that the plaintiff's taxable income was considerably variable over time.[276] He agreed there was nothing to demonstrate a gradual increase from 2003 to 2013. He further agreed that, because the plaintiff was self-employed throughout this period, a more appropriate methodology would be to average his earnings. He said that what was crucial in choosing between a three per cent increase per annum or an average of the plaintiff's taxable income was 'whether the earnings in the 17 weeks [before the fall are] indicative of what the expectation was except for the accident.'[277]
214 The plaintiff's evidence was that his wife and mother-in-law spend around two hours a day caring for him and have done so since October 2013.[278] They cook, clean, help him put on his shoes and socks and give him a hand up from the couch. If he is in severe pain they take him to the toilet. He doesn't touch anything around the house; his mother-in-law 'does it all'.[279] He wears a support brace for his right leg.[280] He has scarring on his back from the surgery.
215 Vesna Bucic's evidence was that she cared for the plaintiff for approximately two months directly after the fall. She took leave from her employment to do so.[281] She said she cared for him 'all day' and 'at night ... until he went to bed'.[282] She did 'everything for him' - helping him get out of bed, dress, shower and shave, walk from one end of the house to the other - and was awake most nights because she had to 'help him turn, put pillows under his back, all those sorts of things'.[283] She estimated that she spent approximately 12 hours per day looking after the plaintiff.[284]
216 After the March 2008 surgery, Vesna again took time off work, caring for the plaintiff for six weeks.[285] She was again required to do 'everything for him'.[286] Then, in early 2009, the plaintiff's mother-in-law came to live with them. Vesna said that after the April 2011 surgery she took a further six weeks off work.[287] She said that the amount of care he needed was 'all day' but then got 'less and less' as he recovered.[288] It was on average 12 hours per day during the crisis periods and two hours per day in the intervening periods. [289]
217 She said that he needed more care in the period leading up to the October 2013 surgery. After the surgery she again took time off work. She guessed it was around eight weeks. She said that, after the spinal fusion, it felt like she was with him '24 hours a day.'[290] She described how he developed foot drop and needs to wear a brace that 'sits at the back of his knee [and goes] all the way down to his toes'.[291] She said he wears it whenever he leaves home; he doesn't wear it at home because it cuts into him.[292] She said if he does not wear it he 'falls over his own feet'.[293] He therefore will not make himself a cup of coffee, not because he is unable, but because he might trip over and fall whilst carrying it.[294]
218 Vesna said that, while she is at work, the plaintiff struggles to cope and calls her up to ten times per day. Even when she is home, if he cannot see her, he will call out to ask where she is.[295]
219 In cross-examination Vesna maintained that, after each surgery, she cared for the plaintiff approximately 12 hours per day. She said she was not standing by him every second of the day; nevertheless, she was caring for him 12 hours per day.[296] She agreed that she would leave him to rest for periods but said that she was still caring for him by cooking and cleaning.[297] She did not dispute that she had always cooked and cleaned for the plaintiff as that was her role in the house.[298] But she said that the plaintiff no longer assisted her with these tasks.[299]
221 Lastly, on the subject of the plaintiff's need for attendant care, Mr Karamanos' report of 29 October 2018 opines:
[The plaintiff's] psychological symptoms and injury alone will significantly inhibit his ability to carry out his pre-injury activities of daily living.
Since the time of his injury, he has been unable to carry out any maintenance repairs on his house or assist his wife with household chores.[302]
222 Dr Sheriff's evidence was that the plaintiff had presented to his clinic on an irregular basis over some years.[303] As to future medical treatment, he opined that the plaintiff will suffer from his physical and psychological injuries for the rest of his life, for which he will need to see his general practitioner every four to six weeks at a cost of $70 to $80 per consultation.[304]
223 Mr Karamanos' evidence was that the plaintiff consulted him on five occasions.[305] He said the plaintiff would benefit from future psychological treatment, on a fortnightly basis, for the next 12 months and on a monthly basis thereafter. His treatment plan would depend on whether his condition stabilised or deteriorated. His charge out rate was $170 per hour.[306]
225 The parties provided both written and oral submissions on the last day of trial. Those submissions may be summarised as follows.
226 Firstly, the plaintiff submitted that his evidence as to the circumstances of the fall is credible and should be accepted, especially since it is not inconsistent with the evidence of Mr Farrar.
227 Secondly, the plaintiff submitted that breach of duty is clearly established in that the defendant allowed the plaintiff to work on scaffolding that was seriously deficient, without warning him as to these deficiencies. In advancing this submission the defendant pointed to the fact that the raised scaffolding bay had no ties and had 'live edges' at both ends. Moreover, according to the defendant's own expert (whose report was procured to be used against the third party), the scaffolding on the premises was only 21 per cent 'complete'.
228 Thirdly, the plaintiff submitted that the fall caused or materially contributed to his back, neck and psychiatric conditions, which was the consistent opinion of the majority of medical experts in this case.
229 As for his back condition, the plaintiff conceded that he had a preexisting degenerative back condition which, prior to the fall, had become symptomatic in the form of a L4-5 disc prolapse. However, he submitted that the evidence supports the inference that his back was improving, if not well on its way to recovery. He therefore submitted that, but for the fall, his back would not have needed three bouts of surgery, including a spinal fusion, and so would not be as it is today.
230 In advancing the submission in relation to his back condition, the plaintiff pointed to the following pieces of evidence:
(a) on 8 September 2007, he complained of a sore back to Dr Sulava, indicating that he would have surgery the following Wednesday. Yet he did not have the surgery and, on 17 September 2007, asked Dr Sulava to prescribe him Tramal. He did not see Dr Sulava again until after the fall. This is consistent with the his assertion that, in July, August and September 2007, he was able to work and that he cancelled the surgery because his back had improved;
(b) his tax returns disclose that he had a taxable income of $20,406 in the four months or thereabouts prior to the fall.[309] Had he continued to work at that rate he would have earned approximately $60,000 for the year. This would have been more than his taxable income for any previous financial year and suggests the extent to which he was able to work on painkillers;
(c) his attendances at RMH in 2007, during which he complained of struggling to work in the preceding six months, were consistent with his tax returns. His 2006-7 return disclosed a taxable income of $12,788, whereas his 2007-8 return disclosed a taxable income of $20,406. The plaintiff's evidence was that he did not work from 30 October 2007 until approximately June 2008. As such he would have earned most, if not all, of the $20,406 in the four months from July to October 2007;
(d) his evidence as to the state of his back before and after the fall is credible. In particular, he consistently said that his back and leg pain were significantly worse after the fall, which was why he underwent elective surgery in March 2008. In early 2008 he was complaining - as Dr Sulava confirmed in his evidence - of generalised pain in different locations including in his head, neck, chest, back, arm and leg.
In short, the plaintiff submitted that his pre-existing degenerative back condition had been aggravated by the fall, becoming part of the evolution of the management of the disc prolapse for which Mr Turner carried out surgery in March 2008. Those three bouts of surgery should themselves be treated as traumatic events. The fact the plaintiff had a disrupted disc is therefore what has continued to play a part in the plaintiff's condition since March 2008.
231 As for his neck condition, the plaintiff submitted that he had no neck pain before the fall, whereas after it he has never been without it. In advancing this submission the plaintiff relied on the evidence of Dr Sulava that the plaintiff would constantly complain of generalised pain in different locations. And he relied on the evidence of the majority of the medical experts to the effect that his reported symptoms are consistent with cervical spondylosis having been aggravated or exacerbated.
232 As for his psychiatric condition, the plaintiff submitted that he suffers from a major depressive disorder with anxious distress. He submitted that his psychological condition is wholly attributable to the physical injuries he sustained in the fall, the surgical procedures that then became necessary, and the restrictions he has subsequently experienced.
233 Lastly, as for his cognitive condition, the plaintiff submitted that, by reason of the head injury he sustained in the fall, he suffers from post-concussion syndrome and cognitive deficit affecting his memory and concentration.
234 Fourthly, the plaintiff submitted that he is entitled to damages under the following heads: pain and suffering; economic loss; Griffiths v Kerkemeyer (i.e. attendant care); and medical expenses and the like. This submission was premised on the fall having caused the following injuries:
(a) aggravation and exacerbation of a pre-existing degenerative back condition and L4-5 disc prolapse requiring surgery in March 2008, February 2011 and October 2013. Also right foot drop after the October 2013 surgery;
(b) a neck injury which by February 2011 led to tingling in the fingers and by April 2012 to a prolapsed disc at the C6-7 level;
(c) brain concussion syndrome with cognitive deficits impacting on memory and concentration;
(d) an injury to the right wrist with ongoing weakness and disturbed symptoms in the right hand;
(e) fractured ribs and ongoing pain in the rib area;
(f) a collapsed lung; and
(g) a major depressive disorder with anxiety.
235 As for general damages, the plaintiff submitted that the fall has devastated his quality of life, and his capacity to enjoy his life. In advancing this submission the plaintiff adopted the summary of symptoms set out in Dr Kennedy's report of 31 October 2018.[310] Further, as for his mental condition, the plaintiff relied on the evidence of Mr Karamanos that his thoughts reveal 'a man who ha[s] been demoralised by his injury, surgical interventions and significant restrictions, movement and function limitations'.[311] The plaintiff submitted that this combination of physical and mental injuries has 'crushed him' and left him a different person from who he was before the fall. He is not only stressed and depressed but also is easily confused and has a limited memory. He has, moreover, been forced to sell his family home, as he is unable to work, and feels terrible about not contributing to his family's finances. Thus the plaintiff claims general damages in the sum of $400,000.
236 As for economic loss, the plaintiff submitted that he is permanently incapacitated for work due to his back and neck pain, weakness and poor mobility, right foot palsy and limited right hand grip, bilateral shoulder weakness, as well as anxiety and depression, cognitive deficits and lack of formal education (meaning he cannot be vocationally retrained). In advancing this submission the plaintiff relied on Mr Bendzulla's estimates as to his past and future loss of earnings (and the adjustments that he made in the witness box). Those estimates produce an gross average income of $1200 per week. The plaintiff submitted that an appropriate approach, given his pre-existing degenerative back condition and L4-5 disc prolapse, would be to allow a significant discount for vicissitudes, namely a discount of 30 per cent, that being double the usual for vicissitudes. The plaintiff therefore submitted that a fair and reasonable award for loss of earnings would be $493,719 for past loss of earnings, plus $324,556 for future earnings, which makes a sub-total of $818,775. When reduced by 30 per cent, the total for past and future loss of earnings is $572,792.
237 As for past medical expenses, the plaintiff submitted that the Court should accept a reasonable estimate based on the evidence given at trial. The plaintiff relied on Dr Sheriff's evidence that, since October 2013, he has seen the plaintiff around every four to six weeks.[312] Calculating on this basis - 10 visits per year at $70 per visit - the plaintiff claims six and a half years of visits for a total of $4,550. The plaintiff also claims the cost of his attendances on Mr Karamanos, on five occasions at $170 per hour, for a total of $850. Lastly, the plaintiff claims the cost of counselling from Dr Kaplan for five months, at a cost of $300 per session, for a total of $1500.[313] The plaintiff therefore claims past medical expenses totalling $6900. Further, as for future medical expenses, the plaintiff claims he will continue to visit his general practitioner approximately 10 times per year at a cost of $700 per year. He also claims psychological counselling once per month, at $170 per session, for a total of $2040.[314] Applying a multiplier of 5 per cent, for a 61 year old man until death,[315] to the average weekly cost of $50 produces a total of $37,825. The total for past and future medical expenses is therefore $44,725 (being the sum of $6900 and $37,825), not allowing for vicissitudes.
238 As for past attendant care, provided by his wife, the plaintiff claims 12 hours of attendant care per day during the following periods: between 30 October and 25 December 2007; for six weeks after the March 2008 surgery; for six weeks after the February 2011 surgery; and for eight weeks after the October 2013 surgery. The plaintiff submits that this makes a total of 192 days. The plaintiff submitted that a fair and reasonable amount would be $30 per hour[316] for a total of $69,120. The plaintiff submitted that his wife has also spent around two hours per day caring for him in the intervening 563 weeks since the fall. The plaintiff therefore claims an additional 14 hours per week, at $30 per hour, for a total of $236,460. The plaintiff's total claim for past attendant care is therefore 10,186 hours (2304 plus 7882 hours) at a value of $305,580 (10,186 hours x $30). Further, as for future attendant care, the plaintiff submitted that he will need his wife and mother-in-law to continue to care for him around two hours per week. The plaintiff submitted that the appropriate multiplier for a 61 year old man until death is 756.5 and that the present value of his future attendant care is therefore 756.5 x $420 (14 hours per week x $30) for a total of $317,730. The plaintiff's total claim for past and future attendant care is therefore $623,310, not allowing for vicissitudes.
239 Firstly, the defendant submitted that the plaintiff is an unreliable witness, both as to the circumstances of the fall and as to his medical conditions. As such the Court should reject his evidence or, at least, prefer the objective record and/or the evidence of other witnesses where it contradicts with that of the plaintiff.
240 In advancing this primary submission the defendant pointed to the plaintiff's evidence that, prior to the fall, his only problems were a 'pinched nerve' and a little 'nipping pain' in his right leg. This is contradicted by the extensive history of complaints the plaintiff made not only to his general practitioner but also at RMH. These complaints, as well as his usage of analgesic medication and decision to go on the waiting list for elective surgery, indicate a significant and deteriorating back condition. The defendant also relied on the June 2007 RMH notes which record that plaintiff had been unable to work for six months due to back and right leg pain.
241 Secondly, and flowing from its first submission, the defendant submitted that the Court cannot be satisfied as to the circumstances in which the plaintiff came to fall and cannot therefore be satisfied that there was any negligence or breach of statutory duty on the part of the defendant that was causative of the plaintiff's injury. In advancing this submission the defendant relied on the fact that the plaintiff gave no evidence of staggering backwards or of any movement of the scaffold contributing to his fall. His evidence was that he did not know what was wrong with the scaffold; all he knew was that he fell. The defendant also pointed to the fact that the plaintiff had told several doctors that he had no memory of the fall. As for the mechanism of the fall, the defendant submitted that the Court should prefer the evidence of Mr Farrar, which was that the plaintiff let go of a tube or pole and went to grab another one but there was nothing there. The defendant construed this to mean that he was climbing down the outside of the scaffold and missed a pole, which he expected to be there, causing him to fall.
242 Thirdly, on the basis that the Court finds negligence or breach of statutory duty, the defendant submitted that this should be accompanied by a finding of very significant contributory negligence on the part of the plaintiff. This was said to be made out by the fact that he had performed work on the raised scaffolding bay when he knew, or ought to have known, that it was unguarded at both ends. In advancing this submission the defendant pointed to the plaintiff's evidence that he climbed up onto the eastern end of the raised scaffolding bay and so would have been facing west with a clear view of its unguarded western end. He would therefore have known, or should have known, that he was exposing himself to an unreasonable risk of injury in the event that he should lose balance. Mr Contoyannis, the forensic engineer, agreed with these propositions. The defendant submitted that an appropriate apportionment for contributory negligence would therefore be between 30 and 40 per cent.
243 Fourthly, and again flowing from its first submission, the defendant submitted that the Court cannot be satisfied that the plaintiff suffered an injury to his lumbar spine in the fall. This follows from his pre-existing history of very significant back pain, his failure to complain of back pain after the fall and the absence of any additional damage to his spine. Alternatively, even if the Court is satisfied, the plaintiff was unable to identify any damage to his lumbar spine and its effect on his current presentation. The thrust of the plaintiff's evidence was that he has no recollection as to the state of his back before the fall. Further, he was unable to recall and did not dispute the contents of the RMH notes, which depict a rapidly deteriorating back condition. The evidence of his family was also marked by a complete absence of detail as to his back condition before the fall. The defendant therefore submitted that the Court should find that the extent of the plaintiff's lumbar spine condition is confined to what is reflected in the medical record.
244 In advancing its fourth submission the defendant relied on the following pieces of evidence:
(a) Dr Sulava's understanding of the plaintiff's clinical picture as at January 2008 was that he had fractured ribs, a fractured wrist and a collapsed lung. He believed the plaintiff was making a good recovery and would soon be back at work;
(b) Neither the RMH notes or Dr Sulava's notes contain any reference to a back injury. They record no symptoms and nor were any clinical investigations ordered. Indeed, Dr Sulava only learned about the plaintiff's spinal surgery on 17 March 2008, four days after the operation;
(c) Mr Turner received no complaint of increased back pain after the fall and was not even aware there had been a fall until advised by the plaintiff's solicitors in January 2012. Further, the surgery he performed in March 2008 was the same as that foreshadowed in June 2007, and nor did he identify any additional damage to the plaintiff's lumbar spine.
The defendant submitted that the Court therefore cannot be satisfied that the plaintiff suffered any damage to his lumbar spine on top of what had already been identified in the MRI scan of May 2007. In short, based on the opinions of Messrs Turner and Haig and Dr Stockman, the defendant submitted the plaintiff is suffering from the natural evolution of his degenerative back condition and that this idiopathic process, operating independently of the fall, sufficiently explains his presentation today.
245 Fifthly, and again flowing from its first submission, the defendant submitted that the Court cannot be satisfied that the plaintiff suffered an injury to his cervical spine in the fall. This follows from the fact that he failed to complain of neck pain after the fall and the onset of his neck condition was almost five years later. Alternatively, even if the Court is satisfied, the plaintiff was unable to identify any damage to his cervical spine and its effect on his current presentation. Accordingly, the Court should make no award of general damages or damages for loss of earnings in respect of the plaintiff's neck condition, and should not make anything other than a modest allowance for loss of earnings because the plaintiff's incapacity for work since 2013 arose from an unrelated neck condition.
246 In advancing this fifth submission the defendant once again relied on the evidence of Messrs Turner and Haig and Dr Stockman. None of these experts were able to identify any additional damage to the plaintiff's cervical spine or how his current presentation would be different in the absence of the fall. And all three experts opined that, because of the temporal disconnect, the plaintiff's neck condition is unlikely to be related to the fall. The defendant pointed, in particular, to Mr Turner's opinion that, even if the plaintiff did complain of neck pain after the fall, it was only possible, not likely, that it was connected to the fall. Further, there is no mention of neck pain in the RMH notes, and the only time the plaintiff's neck is mentioned is to say that on examination it had no tenderness and a full range of movement. Dr Stockman also recorded a neck complaint in December 2011, but it was of pain radiating to the occiput and right temporal area, which is a different pathology to the current complaint. In short, the defendant submitted that the evidence paints an overwhelming picture of a man who has suffered a C6-7 prolapse with compression of the C7 nerve root as at July 2012, and the idea that he was complaining about it earlier and no one recorded his complaints beggars belief.
247 Sixthly, the defendant submitted that the plaintiff's current psychiatric condition is not related to the fall, as it is reactive to his physical difficulties, restrictions and impairments. In other words, the defendant's position was that such condition would exist in the absence of the fall, since it is primarily a consequence of the plaintiff being unable to work and move about. This would have occurred in any event, the defendant submitted, as part of the natural evolution of the plaintiff's degenerative back condition and its aggravation through hard labour. Similarly, while the defendant did not make any submissions on the subject of cognitive deficit, it follows from the foregoing that the defendant denies causation. And even if the Court was satisfied, the plaintiff did not discharge his evidentiary onus on this point.
248 Seventhly, the defendant submitted that the Court should make no award for general damages or damages for loss of earnings in respect of the plaintiff's back, neck and psychiatric injuries. The defendant conceded that the plaintiff suffered fractured ribs, a fractured wrist, a collapsed lung and a scalp laceration in the fall, but submitted that the evidence of the significance of these conditions is not sufficient to allow anything other than a modest award of general damages. In advancing this submission the defendant pointed to the lack of evidence that the fall has been a cause of the plaintiff's pain and suffering, loss of amenity and enjoyment of life. The defendant therefore submitted that an award of around $40,000 would be an appropriate allowance for these injuries.
249 As for economic loss, the defendant submitted that the Court should not allow an award under this head of damage save for the period of recuperation from the accepted injuries through to 12 March 2008, when the plaintiff underwent unrelated back surgery. The defendant submitted that the plaintiff's occupation is characterised by uncertainty as to the amount of available work. And his tax returns disclose extreme variability in his income in the years preceding the fall. The appropriate methodology for calculating the plaintiff's earning capacity is therefore to average the figures across the ten years on either side of the fall. Such earnings should be allowed at the average rate of the plaintiff for the five years preceding the work injury and the five years following the work injury. The plaintiff's average taxable income from 2003 to 2013 was $26,134 ($503 gross per week or $447 net per week). For the 17 weeks from 30 October 2007 to 12 March 2008 this works out to be a total of $7,559. Other than this, the Court should make no award for loss of earnings, as the plaintiff's inability to work from 2013 arose from unrelated injuries.
250 As for attendant care, the defendant submitted that this arises from the plaintiff's unrelated lumbar and cervical spine conditions and, as such, no award should be made. Alternatively, since the evidence as to the plaintiff's care needs is sparse, the Court should not make an award other than for token damages. In advancing the latter submission the defendant pointed to the plaintiff's evidence that the only care provided to him was the fitting of his orthotic, the putting on of his shoes and socks, assisting with dressing when he is in extreme pain and sometimes turning him in bed. This evidence was broadly corroborated by the plaintiff's wife. Other tasks, such as cooking, cleaning, making beds and doing the dishes have always been done by the plaintiff's wife, irrespective of the injury, and, as such, are not allowable as gratuitous care. The defendant therefore submitted that the estimate of two hours per day is fanciful and the Court should award no more than 15 minutes per day. It was not a fulsome submission No substantive submission was made in relation to gratuitous care damages, nor how the Court should calculate those damages.
251 As for medical expenses, the defendant submitted that there is next to no evidence before the Court, the only evidence being of psychological counselling from Mr Karamanos at a rate of one session per fortnight for one year at $170 per session and monthly thereafter for an undefined period. The defendant submitted that this expense should not be allowed on the basis that the need for the counselling arises from the plaintiff's response to an unrelated neck and back condition. Otherwise, an allowance in the order of $10,000 would be appropriate.
252 The defendant does not dispute that it was the occupier of the premises or that it owed the plaintiff a duty of care. However, the defendant submitted that this Court cannot be satisfied as to the circumstances in which the plaintiff fell, and therefore cannot be satisfied that there was any negligence or breach of statutory duty which was causative of the plaintiff's injury.
253 At the heart of the plaintiff's case is his assertion that he fell approximately 4.5 metres from the western end of the raised scaffolding bay on the northern side of the house. He says he fell on to a pile of bricks left behind by bricklayers. And he says he sustained serious injury as a result of the fall.
254 The defendant submitted that the plaintiff did not give any evidence about having fallen through an unguarded section of the scaffolding. Nor did he give any evidence of staggering backwards or of the scaffold moving in such a way as to cause or contribute to his fall. In short, the plaintiff did not know what was wrong with the scaffolding, all he knew was that he fell.
255 I found Mr Ferrar to be a straightforward and credible witness. He said the plaintiff told him he had let go of a tube or a pole, and went to grab another, but there was nothing there. This fits with the plaintiff's account that he was pulling on his hose when he fell. It does not suggest, to my mind, that he was climbing down the outside of the scaffolding. The reality is that the words reported by Mr Ferrar are equivocal. I am satisfied that Mr Ferrar's evidence is, if not entirely consistent, not inconsistent with the plaintiff's account.
256 Also relevant are the photographs taken by the plaintiff's son, Daniel Bucic, on the day of the fall.[317] Photograph 1 depicts the raised scaffolding bay with no guardrail at the eastern or western ends. Beneath it can be seen some bricks. Photograph 5 also depicts the raised scaffolding bay with a view of the bricks. Photograph 4 depicts blood on some bricks. The photographs, in my view, add weight to the hypothesis that the plaintiff fell from the unguarded western end of the raised scaffolding bay and landed on the bricks below.[318]
257 When I consider all of the evidence I am satisfied that the plaintiff fell from the unguarded western end of the raised scaffolding bay onto the bricks below. The plaintiff's evidence as to the fall was not contradicted and, as I have said, was not inconsistent with Mr Ferrar's evidence.
258 While the defendant did not explicitly deny breach, it did not make any concession as to breach. It follows that I must address this topic briefly in my findings.
259 There can be no doubt that the defendant breached its duty of care by providing the plaintiff with scaffolding that was deficient. In particular, the raised scaffolding bay on the northern side of the house did not have guardrails at its eastern and western ends, meaning that it had 'live edges'. In other words, there was nothing to prevent someone from stepping over the edge and falling approximately 4.5 metres to the ground, risking death or serious injury. Nor were there steps for accessing the raised scaffolding bay or 'ties' to minimise movement. It beggars belief that this particular section of scaffolding was available for the plaintiff's use and yet no warning was given as to its patent deficiencies.
260 Mr Butlin, an occupational health and safety assessor in the employ of Precision Scaffolding Pty Ltd, gave evidence that the scaffolding was deficient in the following ways:
Mr Butlin opined that, if the plaintiff fell from the western end of the raised scaffolding bay, the fact that there was no fall protection would have contributed '100 per cent' to his fall.[323] He was firmly of the view that scaffolding without ties would move excessively.[324] He considered the scaffolding overall to be unsafe.[325]
261 Mr Hassan, the sole director of the defendant, admitted that in the seven days before the accident he had not performed an inspection of the scaffolding. Prior to that, when he had inspected the scaffolding, he had not noticed any of the deficiencies identified by Mr Butlin. Mr Hassan agreed that the plaintiff was not warned about the state of the scaffolding. He further agreed there were no steps that one could use to access the raised scaffolding bay.
262 The only evidence as to the movement of the raised scaffolding bay came from the plaintiff. Mr Hassan and Mr Farrer did not use it and so could not give direct evidence about it.
263 Mr Contoyannis, a forensic engineer called by the plaintiff, identified five measures which, in his view, would have prevented the plaintiff's accident. They were:
(a) making sure there were no 'live edges' to any section of the scaffold on which work was to be performed;
(b) inspecting the scaffold each day prior to use to ensure that no sections had been altered;
(c) instructing independent contractors not to use particular sections of the scaffold if they were deficient;
(d) having barriers and signs so that independent contractors could not access sections which, for any reason, were deficient; and
(e) installing steps between work platforms so as to eliminate any climbing.
Mr Contoyannis explained that, for scaffolding to be safe, there should be safety measures so that if somebody is not concentrating and they slip, trip or step backwards, they won't fall. He opined that scaffolding should always be 'complete' because 'bitter experience [teaches] that it's the best way to protect people who are performing other duties'.[326] Mr Contoyannis considered the scaffolding on the premises exposed the plaintiff to an unacceptable risk.[327]
264 I am satisfied that the defendant breached its duty of care as occupier of the premises by allowing independent contractors and, in particular, the plaintiff to work on scaffolding that was deficient. The scaffolding provided did not have fall protection and was not adequately secured; there were no steps for accessing the raised scaffolding bay; no warning was given to the plaintiff before he used the scaffolding; and, in at least the seven days before the fall, the defendant failed to inspect the scaffolding and have it repaired.
265 Before turning to causation, I will deal briefly with the defendant's claim of contributory negligence, which turns on the same issues discussed above.
266 The defendant submitted that there was contributory negligence on the part of the plaintiff in performing work on an elevated platform which he knew or ought to have known was unguarded. In advancing this submission the defendant relied on the fact that the plaintiff climbed on to the raised scaffolding bay and so must have been aware that it lacked guardrails. Further, once up there, the plaintiff could not have failed to observe an absence of guardrails at either end.
267 The defendant submitted that by commencing to work on the raised scaffolding bay the plaintiff knew, or should have known, that he was exposing himself to an unacceptable risk of injury. The defendant relied on the evidence of Mr Contoyammis that it would have been obvious to anyone on the raised scaffolding bay that there were no guardrails.[328] Mr Contoyammis opined that the plaintiff could have, and probably should have, mentioned this deficiency to the site manager.[329]
268 The defendant submitted that an appropriate apportionment of contributory negligence in all the circumstances would be in the order of 30 to 40 per cent.
269 The plaintiff submitted that he did not know the guardrail was missing at the western end of the raised scaffolding bay because he was focusing on his work and his tools. Nor did he receive any warning as to deficiencies in the scaffolding.[330]
270 In Victoria, as elsewhere in Australia, apportionment between parties is governed by statute.[331] The test for contributory negligence is an objective one.[332] The same principles that govern whether a defendant has been negligent are applicable in determining whether a plaintiff has been negligent in a contributory sense. Contributory negligence can be defined as a failure by a plaintiff to take reasonable care for their own safety in a way that contributes to their injury. An occupier is entitled to expect entrants to take reasonable care to avoid obvious danger.
271 As the High Court explained in Astley v Austrust Ltd:[333]
A person may also be guilty of contributory negligence even though the negligence of the plaintiff did not contribute to the accident which caused the damage. That is because contributory negligence is concerned with the failure of the plaintiff to protect his or her person ... against damage and not with whether the failure contributed to the accident.[334]
272 The plaintiff's evidence was that he did not look to see if there was a guardrail at the western end of the raised scaffolding bay. He said he does not look at the scaffolding when he is working. He denied knowing there was no guardrail at the western end of the raised scaffolding bay.[335] He denied failing to take reasonable care for his own safety in commencing to work on the raised scaffolding bay.
273 Mr Hassan's evidence was that, had he been aware the scaffolding was deficient, he would not have allowed anybody to work on it.[336] He said he was not aware there were live edges. Despite inspecting the site three or four times a week, save for in the seven days prior to the accident, he was not aware of any deficiencies.[337]
274 Mr Contoyammis gave compelling evidence in this regard. He explained why workers must not be allowed to work on scaffolding that is incomplete:
the focus of the person who's working on the scaffold will be something separate to their environment ... They will be concentrating on, as was the case here, cleaning the bricks, drilling a hole, nailing something. Now, with all those activities, there's obviously a possibility ... [that] they stumble. Ah, with hoses and cleaning, there's a possibility that a hose could loop around the leg and they may stumble. So with any activity, there's going to be a particular movement, et cetera, which might result in a stumble or a trip or having to step backwards to rebalance, and so, therefore, the scaffold should always be complete because we know, unfortunately, probably through bitter experience ... that that's the best way to protect people who are ... performing other duties.[338]
275 I accept that the plaintiff did not know the guardrail was missing at the western end of the raised scaffolding bay. He was attempting to climb up with all of his equipment and concentrating on cleaning the bricks. I am fortified in this view by the fact that Mr Hassan, when inspecting the premises, did not observe any defects in the scaffold in the week and days before the fall. As such, and having regard to the authorities on mere inadvertence, I do not consider the plaintiff was contributorily negligent.
276 For completeness, I note that the defendant pleaded a volenti defence, although it was not referred to in closing submissions. In any event, given my findings in relation to contributory negligence, I do not consider that this defence can stand.
277 In short compass, the defence of voluntary assumption of risk requires a full subjective appreciation by the plaintiff of the danger or risk, the absence of any constraint on the plaintiff's freedom to choose to run the risk and an apparent willingness on the plaintiff's part to absolve the defendant from liability.[339]
278 There is no evidence before the Court that the plaintiff consented or agreed to accept any risk associated with the scaffolding.
279 The defendant does not dispute that the plaintiff suffered a fractured wrist, fractured ribs, a collapsed lung and a laceration to his head from the fall. As for these injuries, the defendant admits causation, which is only proper. However, as for the plaintiff's back and neck conditions, the defendant denies they were caused or materially contributed to by the fall. And, as for the plaintiff's psychiatric and cognitive conditions, the defendant says they are responsive to his physical injuries and so will flow from the Court's findings on those topics.
280 It is convenient to consider the plaintiff's back and neck conditions separately. I will then say something about his psychiatric state and cognitive deficits.
281 I have already indicated my position as to the plaintiff's evidence and his credibility globally.[340] I have tempered my acceptance of his evidence in light of the clear difficulty he had recalling the origins and evolution of his back condition. I accept the plaintiff had severe back pain in the 12 months before the fall and was taking strong analgesic medication. However, in the four months before the fall, his symptoms were improving and he was able to work full-time or close to it.
282 I accept Vesna Bucic's evidence that, in the four months before the fall, the plaintiff's back seemed 'okay' and he was working as much as he could. The plaintiff's tax returns also indicate that he worked constantly in the four months before the fall. Marco and Daniel Bucic's evidence was somewhat more equivocal. They both described their father before the fall as having a 'pinched nerve' but recalled that he was able to work.
283 The plaintiff and his family gave consistent evidence that his back pain was much worse after the fall. Vesna, in particular, was in a prime position to observe him since she cared for him full-time in the six weeks after the fall. Vesna's evidence was that he had back pain, and pain in other areas, immediately after the fall. She attended the consultations with Dr Sulava and heard the plaintiff complain of back pain.
284 Dr Sulava's evidence was on the whole consistent with that given by the plaintiff and his family. He agreed the plaintiff had a serious back problem prior to the fall based on his frequent and increasing use of painkillers and decision to go on the waiting list for lumbar surgery.
285 It was submitted that the ambulance records failed to mention any reference to back pain. The evidence is that immediately after the fall the plaintiff complained of back pain. Mr Ferrar's evidence - see [26] above - was that when he asked the plaintiff, 'Where does it hurt?' the plaintiff indicated that his back was sore.[341]
286 The defendant made much of the fact that the plaintiff's medical records, including the RMH notes and those of Dr Sulava, do not contain any reference to back pain after the fall. It was submitted that I should prefer these records to the plaintiff's evidence that he did have such pain. However, Dr Sulava, Dr Kennedy and Mr Turner all said that it is common for patients to focus on acute and pressing injuries, before turning their attention to other less pressing injuries. They agreed that, in this case, the plaintiff would have focused on his wrist, chest and head injuries. The lack of any clinical note about back pain does not necessarily mean the plaintiff has been untruthful about his condition or that he did not experience back pain after the fall.
287 In any event, the plaintiff and Dr Sulava both gave evidence that he did complain of back pain after the fall, and Dr Sulava explained that he probably made no record because it was not the primary problem. I note that Dr Sulava's records of the plaintiff's back pain in the years before the fall are scant. Yet there is no dispute that the plaintiff had back pain prior to the fall.
288 The defendant submitted that the RMH notes are inconsistent with the plaintiff's description of his back pain before and after the fall. I disagree. The plaintiff did not hide the fact that, before the fall, his back pain was such that he took time off work and asked to be put on the waiting list for elective surgery. However, the plaintiff and his family recalled his back pain being much worse after the fall, despite the lack any note in the medical record. Common sense says that the plaintiff's presentation in the six weeks after the fall must have been affected by the multitude of injuries he sustained.
289 When asked about his back pain after the fall, the plaintiff's evidence was that '[i]t was harder and harder'.[342] The fact that he decided to undergo surgery on 12 March 2008 lends weight to this proposition. The plaintiff said he did not wish to have the surgery in September 2007, as he was scared and his back had improved, yet by March 2008 he agreed to have the surgery. I found Mr Turner's evidence on this point persuasive.
290 I consider that on the balance of probabilities the plaintiff's fall aggravated his preexisting degenerative back condition. I note that in March 2008, long before litigation was contemplated, Dr Sulava opined that the plaintiff 'has had a back operation which ... [was the] result of a fall which aggravated a pre-existing condition.'[343] The balance of the medico-legal evidence tended to corroborate this initial opinion.
291 Mr Turner, who performed three operations on the plaintiff, opined that the plaintiff's fall was a significant one and that, as such, it could have jarred or damaged his spine. He did not know the plaintiff had suffered a fall until he was informed by the plaintiff's solicitors. Nevertheless, having learned of this fact, he opined that it is consistent with the evolution of the plaintiff's spinal condition. He said that, given the plaintiff was already showing pathological changes, it was likely the symptoms associated with those changes would be exacerbated by the fall.[344] He explained that most disc prolapses get better if the patient works on their core strength and rehabilitation.[345]
292 Mr Haig agreed that if the plaintiff's back was improving before the fall but got much worse after the fall, such that he decided to have surgery, then the fall was clearly connected to the surgery. Importantly, Mr Haig opined that if the fall aggravated the disc and caused it to be symptomatic, then those events would continue to play a part in the evolution of the plaintiff's back condition thereafter.[346]
293 Dr Kennedy, whose evidence was perhaps strongest for the plaintiff, said that, even though the plaintiff had a pre-existing back condition, the fall significantly accelerated it and led to the need for surgery. He noted plaintiff had had three bouts of surgery culminating in a spinal fusion.
294 It may be that, but for the fall, the plaintiff's L4-5 disc prolapse would have recovered. We will never know. In any event, the fall intervened, leading to the need for surgery - ultimately three bouts of surgery - and the onset of foot drop and other complications. In my view, it is more probable than not that the fall was a cause or materially contributed to the plaintiff's back condition, requiring him to undergo surgical procedures that he would not otherwise have needed. I note that, while it is not probative of causation, all of the medical experts considered the plaintiff's fall to have been capable of causing serious injury or death.
295 Next I turn to the plaintiff's neck condition. Once again, I accept the evidence of the plaintiff and his family that he had no neck pain before the fall, but has had pain ever since. The defendant relies on the timing of the plaintiff's complaints of neck pain in the medical records to assert that the plaintiff's disc prolapse at C6-7 was not caused or materially contributed to by the fall. In particular, the defendant points to the fact that there is no record of pain until February 2011, some three and a half years after the fall.
296 The medical experts agreed that the history of the plaintiff's symptoms is central to understanding whether the fall caused or materially contributed to his neck condition. The situation is not as straightforward as it is with respect to his back condition. There, despite the lack of a record of back pain in the RMH file or Dr Sulava's notes, the need for surgery four and a half months later suggests the plaintiff aggravated his back condition in the fall. By contrast, the first recorded complaint of neck pain is in early February 2011, around three and a half years later.
297 Given my earlier findings, there can be no doubt the plaintiff experienced a very serious fall, which could have killed him or left him a paraplegic. Immediately afterwards, the plaintiff was suffering from other injuries, including a fractured wrist, fractured ribs, a collapsed lung and a laceration to his head. The plaintiff's initial focus in terms of complaints and treatment would have been on these acute and pressing injuries. This was, once again, the view taken by the medical experts.
298 Vesna Bucic's evidence was that the plaintiff complained immediately after the fall about his back, neck and chest. She said he complained mainly about his chest. This does not mean he did not have neck pain at the time, only that the chest pain was his central focus, as one might expect.
299 I consider on the balance of probabilities that the plaintiff's fall aggravated or exacerbated a pre-existing degenerative neck condition. This resulted in the underlying pathology becoming symptomatic, in the form of neck pain, such that his clinical picture became clearer with the passage of time.
300 The plaintiff's treatment and the timing of that treatment is consistent with Dr Kennedy's opinion. Immediately after the fall, the plaintiff was dealing with his acute issues; but then, his back pain escalated, requiring surgery by March 2008. By June 2008 the plaintiff attempted a return to work and, by October 2008, he was seeing Mr Turner about numbness in his right leg. In February 2011, the plaintiff underwent a follow-up open discectomy at L4-5, and his neck pain had escalated to the point that a CT scan was ordered. In this same period, after the plaintiff's second operation, he developed foot drop and began to wear an orthosis.
301 This was, as Dr Sulava said, a situation where, relative to the plaintiff's other concerns, the neck pain was not front and centre. More pressing were the acute injuries and then the treatment of the plaintiff's back condition. As I have said, the lack of objective records does not necessarily mean the plaintiff was not experiencing neck pain, only that he had not yet reported these symptoms.
302 There is a divergence in opinion between the medical experts as to whether the plaintiff's neck injury was caused or materially contributed to by the fall. Mr Turner stated that there is a possible link between the fall and the plaintiff's neck condition; however, he considered that the temporal gap between the onset of symptoms requiring medical intervention made it more difficult to be certain of the link. Dr Kennedy did not dismiss the passage of time between the fall and the onset of symptoms as 'irrelevant' but said it was not an absolute linear relationship and depended on all the other factors from 2007 to 2012.
303 Given the 'other factors' from 2007 to 2012, the very nature of the fall and the plaintiff's and Vesna Bucic's evidence, I accept Dr Kennedy's opinion that, on the balance of probabilities, the plaintiff sustained injuries to his cervical spine at the time of the fall. It is likely that the initial damage was to several intervertebral discs; this did not produce any symptoms requiring intervention until eventually a prolapse occurred. Dr Sheriff's evidence was consistent with Dr Kennedy's in this regard.
304 Mr Haig's evidence was more equivocal. He agreed in cross-examination that a history of ongoing problems in the plaintiff's neck could lead to a conclusion that the fall caused them. However, when pressed, he maintained his opinion that it was unlikely that the plaintiff's severe neck pain, radiating into his arm, was related to the fall.
305 The question of whether the fall caused or materially contributed to the plaintiff's C67 prolapse and resulting compression of the C7 nerve root is not straightforward. The evidence suggests the plaintiff may have pathology in the upper cervical spine, which may explain his neck complaints to Dr Stockman in December 2011, of pain radiating to the occiput and right temporal areas. Then there is the pathology at C6-7 and the complaints of sharp neck pain and arm pain.
306 Mr Turner opined that the unrelated left-sided prolapse at C4-5 in April 2016 indicated a progressive degenerative condition affecting the cervical spine.[347] Yet Mr Turner said that such a condition does not automatically explain what has happened to the plaintiff.[348] He agreed that one explanation for the plaintiff's neck condition was progressive deterioration.[349] But he said that, as there is no imaging of the plaintiff's neck between the fall and the disc prolapse, we cannot know what was going on in the plaintiff's neck over that time. He said that the link between the fall and the plaintiff's neck condition is uncertain.[350]
307 In conclusion, Mr Turner, in what I consider was very measured evidence, said in re-examination, and it bears repeating:
I think if one accepts that he had symptoms of neck pain from the time of the fall and the neck pain had been ongoing, fluctuating, perhaps, but ongoing, it wasn't till he developed neck-type referral into his arm that the symptoms were taken seriously, the possibility of a connection is reasonably strong, but equally, the longer the time between an incident that is potentially to blame and the development of symptoms that require active medical intervention - the longer that interval, the more difficult it is to be certain of that link. ... You can believe that it's probable, but you can't state categorically that the connection exists.[351]
308 I turn lastly to the question of whether the plaintiff's cognitive and psychiatric injuries were caused or materially contributed to by the fall. I agree with the defendant that these conditions are responsive to the plaintiff's physical injuries. Thus, given my findings that the fall caused or materially contributed to the plaintiff's back and neck conditions, it follows that I have also found that his cognitive and psychiatric injuries are attributable, at least in part, to the defendant's negligence.
309 I accept Mr Karamanos' evidence that the plaintiff has developed significant symptoms of depression and anxiety since the fall. His opinion is corroborated by the evidence of Dr Kaplan. The evidence of Vesna and Daniel Bucic as to the plaintiff's psychiatric injuries was on the whole consistent with that given by the medical experts. Daniel said his father had not experienced anxiety or depression prior to the fall; however, after the fall, he suffered from 'extreme depression'. Vesna said that after the fall the plaintiff sought professional treatment from a psychologist and psychiatrist for anxiety and depression.
310 As for the plaintiff's cognitive injuries, Dr Sheriff's evidence was that the plaintiff's higher functions have been affected since the fall, suggesting sequelae of a closed head injury. Dr Karamanos' evidence was that the plaintiff's concentration was impaired, with evidence of slowed and confused thinking and forgetfulness, which is consistent with cognitive deficit. Finally, Dr Kaplan noted the plaintiff's complaints of forgetfulness, poor concentration and insomnia. Consistent with the medical evidence, Vesna and Daniel Bucic described the deterioration of the plaintiff's memory after the fall.
311 I am satisfied on the balance of probabilities that the fall caused or materially contributed to the plaintiff's psychiatric and cognitive injuries. There is no evidence the plaintiff suffered from these conditions before the fall and the evidence of the lay witnesses is on the whole consistent with the medical evidence.
312 In summary, for the above reasons, I consider the plaintiff suffered the following injuries as a result of the defendant's negligence:
(a) aggravation and exacerbation of L4-5 disc injury, requiring the plaintiff to undergo a L4-5 discectomy in March 2008; an additional discectomy in February 2011; and a revision laminectomy at L4-5, combined with an instrumental spinal fusion on 16 October 2013;
(b) the development of right foot drop as a consequence of the 16 October 2013 surgery;
(c) neck injury resulting in a prolapse at C6-7 with pain radiating to his right arm and fingers;
(d) right wrist injury with ongoing weakness and 'disturbed symptoms' in his right hand;
(e) fractured ribs;
(f) a collapsed lung;
(g) a major depressive disorder with anxiety; and
(h) cognitive deficits impacting on the plaintiff's memory and concentration.
313 The plaintiff submitted that a reasonable assessment for pain and suffering damages was no less than $400,000. The defendant submitted that general damages should be allowed at no more than $40,000 on the basis that the only injuries connected to the fall were the fractured ribs, fractured right wrist, collapsed lung and scalp lacerations sustained at the time of the fall.
314 In assessing the plaintiff's claim for pain and suffering, I take into account the injuries referred to in the preceding paragraph, which I consider flowed from the fall. I also take into account the plaintiff's neck pain, which is ongoing and unlikely to improve in the future, and his psychiatric and cognitive injuries. The evidence demonstrates the plaintiff is no longer able to participate in his social life in the way he did before and that, as he put it, he has been left 'a broken man'.
315 True it is that the plaintiff had a pre-existing degenerative back condition which caused him significant pain and limited his capacity to work in the first six or so months in 2007. However, the plaintiff's evidence and that of his family is that he aggravated his back condition in the fall, which led shortly thereafter to surgery and significant restriction. Two more bouts of surgery followed as well as the onset of symptoms in his neck and responsive psychiatric and cognitive injuries. On any view, the plaintiff has been significantly affected, whether the back condition is considered in isolation or together with the other injuries.
316 The plaintiff's pain and suffering and loss of enjoyment of life from September 2007 to date and into the future is significant. The plaintiff is 61 years old and has lived a highly restricted live for almost 12 years. The impact is permanent given the residual problems I have outlined, including his foot drop, the fusion surgery and his neck condition. Surgery to his neck may provide some relief; however, given the outcome of his back surgery and his inherent fear of surgery, the plaintiff has understandably opted not to have any surgery at this stage.
317 In the circumstances, given the number of injuries and their permanent and ongoing nature, I consider that a reasonable allowance for pain and suffering damages is in the order of $300,000.
318 I find that the plaintiff was partially incapacitated for work from September 2007 until October 2013 and has been totally incapacitated thereafter.
319 The plaintiff was self-employed as a brick cleaner. He had been working in this role since he started his business in 1983. I consider that, but for his injuries, he would have continued to work until the age of 67. At the time he suffered injury the plaintiff was working five, six or seven days a week, when work was available.
320 The plaintiff's claim for past and future pecuniary loss is not straightforward. What must be remembered, under this head of damage, is that the law compensates for loss of earning capacity rather than loss of earnings. The evidence is that the plaintiff at all times before the fall had the capacity and willingness to work full time as a brick cleaner.
321 I turn to the evidence of his actual past loss of earnings to assist in the calculation of the plaintiff's earning capacity.
322 The plaintiff's tax returns demonstrate significant variability in his income. For the financial year ending 30 June 2003, it was $880; for 2004, it was $5,113; for 2005, it was $46,066; for 2006, it was $46,684; and for 2007, it was $12,788. No evidence was put before the Court to explain this variability. There was some mention of the plaintiff having had bladder cancer in 2002 or 2003 but no evidence as to the extent of his illness or its impact on his earning capacity. The returns from the financial years ending 30 June 2008 to 30 June 2013 are also variable. This was comprehensible in light of the evidence as to the effect of the fall on the plaintiff's earning capacity. There is no real dispute that the plaintiff's injuries by 30 June 2013 were such that he was incapacitated for any manual job. The defendant did not submit that the plaintiff was not amenable to vocational retraining or that he was able but unwilling to work.
323 To be clear, I am satisfied that even if the plaintiff's neck condition was not caused or materially contributed to by the fall, by October 2013 the fusion surgery and development of foot drop would have rendered him incapacitated for work. In other words, as I see it, the plaintiff's back condition alone would account for his permanent inability to work.
324 The defendant submitted that, given the variability in the plaintiff's tax returns, I should average his income over the 10 years and calculate for loss of earnings using that figure. The plaintiff contended that I should use his earnings in the 17 weeks prior to the fall. This produces an average of $1200 per week or approximately $62,400 per annum. I do not accept either of these submissions.
325 The plaintiff worked very hard as a brick cleaner and often worked five days per week or more. The problem is that nowhere in the financial years ending 30 June 2003 to 30 June 2006 did he earn more than $46,684. There is an explanation for why he earned less in the year ending 30 June 2008, namely the fall, which also explains the subsequent variations to 30 June 2013.
326 What is crucial, in deciding whether to apply a three per cent increase per annum or work with an average of the plaintiff's earnings, is whether his income in the 17 weeks prior to the fall is indicative of what he might have earned but for the fall. As I have said, despite having a strong work ethic, the evidence suggests there was extreme variability in the amount of work available to him.
327 I accept that the plaintiff worked for approximately four months before the fall and earned $20,406 before tax. However, given the variability just described, I cannot see how the $62,400 per annum claimed by the plaintiff reflects a reasonable assessment of his earning capacity. The evidence does not support the proposition that, at the time of his fall, the plaintiff had a reasonable expectation of working consistently so as to generate an annual taxable income of $62,400. Nor do his tax returns support the methodology of a three per cent annual increase used by Mr Bendzulla. On the other hand, the difficulty with the plaintiff's tax returns after the fall is that they do not reflect his true earning capacity, since he was increasingly restricted and debilitated by the evolution of his back and neck conditions.
328 In my assessment of the plaintiff's past and future earning capacity I also take into account the prospect that his pre-existing back condition would have deteriorated on its own accord. This would have impacted on his ability to work regardless of the fall and the injuries he sustained therein.
329 My finding that the plaintiff suffered an aggravation of his pre-existing degenerative back condition impels consideration of the principles in Malec.[352] Malec holds that a plaintiff such as the present will be entitled to damages if the evidence shows that on the balance of probabilities it was caused or materially contributed by the negligence of the defendant. This is a question of fact as to a past event. However, a different approach is to be taken for future events, such as whether the plaintiff's pre-existing degenerative back condition would have deteriorated and restricted him from work. Malec holds that I must assess this hypothetical event as a probability. The plaintiff's damages must be reduced accordingly: for example, if I find that there was a 30 per cent chance his back would have deteriorated on its own then I must make a 30 per cent reduction, regardless of whether the event would have occurred before or might occur after the assessment of damages.[353]
330 As I have said, I am satisfied that the plaintiff had a pre-existing degenerative back condition in early 2007, which may have deteriorated on its own. This finding has been explicitly addressed earlier in my reasons and I will not repeat the analysis here save to say that I must make an adjustment to reflect the probability of this hypothetical event.[354] I note that in Club Italia (Geelong) Inc v Ritchie[355] the Court of Appeal observed that, as a rule of thumb, discounts for vicissitudes in personal injury cases are usually in the order of 15 per cent (emphasising that each case will turn on its own facts).
331 Here the plaintiff has suffered an aggravation of his pre-existing degenerative back condition leading to three bouts of surgery. The plaintiff's back was clearly fragile before the fall and he was struggling to work for much of 2007 (and even then was only able to work on an increasing amount of analgesic medication). Having regard to the totality of the evidence I cannot rule out the possibility that the plaintiff would not have been able to continue in his work by reason of his pre-existing degenerative back condition. Nor can I discount the possibility that he would have recovered and made a full return to work.
332 It is therefore appropriate to apply a greater than usual discount for vicissitudes. I agree with the plaintiff that a discount of 30 per cent is appropriate. I note that the concept of a discount for vicissitudes is subsumed in the analysis of Malec principles and that this conceptually applies to both past and future pecuniary loss as well as pain and suffering damages.
333 It is impossible to be precise in a case like this. I consider that the plaintiff's taxable income in the financial years ending 30 June 2005 and 30 June 2006 is the most accurate reflection of his earning capacity but for the fall. He would have continued to earn at least that amount into the future combined with annual increases. In some years he may have earned more, in some less, as he said himself. The plaintiff is entitled to loss of earnings from the date of the fall to the present time and into the future.
334 An appropriate basis to assess loss of earnings and loss of earning capacity is to take account of the plaintiff's earnings in the years leading up to the fall. When one considers his past earnings, including pre- and post-fall earnings, it can be seen that, in his best years, he earned $40,935 (30 June 2013), $40,495 (30 June 2012), $46,684 (30 June 2006), $46,066 (30 June 2005) and, accepting the plaintiff's evidence and submissions, $62,400 (30 June 2008). Having regard to the totality of the evidence, including the gaps in the evidence, I consider the starting point is to average the three highest returns in the pre-fall period. As I have said, the plaintiff's earnings post-fall demonstrate his capacity to earn, which he exercised to his maximum ability. The returns for the financial years ending 30 June 2011 to 30 June 2013 show a steady rise in earning capacity to nearly pre-injury amounts.
335 Yet the pre- and post-fall returns are only one piece of evidence to assist me in the task of estimating the plaintiff's loss of earning capacity. I have also considered the following evidence: the plaintiff worked up to seven days a week when work was available; the plaintiff continued to work even when in significant pain; and the plaintiff enjoyed his work and earning money.[356] The plaintiff said he would have worked to age 70 despite the relatively arduous nature of brick cleaning.
336 I consider it appropriate to assess loss of earnings to age 67. I find that the sum of $51,720 gross per annum should be used assess the plaintiff's earnings as at the date of the injury. I have allowed a three per cent annual increase in earnings. I have allowed a modest sum for taxation and have reduced the figures for the plaintiff's past earnings. Allowing a reduction of 30 per cent for vicissitudes, I consider a sum of $250,000 for past economic loss is appropriate.
337 There is no real issue that the plaintiff has been totally incapacitated by his injuries since 30 June 2013 and that this incapacity is permanent. In my view, it is reasonable to calculate future earnings at a rate of approximately $1,180 net per week, which represents average gross annual earnings of approximately $69,500. The latter figure is based on the estimation provided in the above paragraph. Applying the relevant multiplier to age 67, and allowing a 30 per cent reduction for vicissitudes, I allow a sum of $225,000.
338 The plaintiff claims past and future gratuitous attendant care provided predominantly by his wife and, to a lesser extent, his mother-in-law. The parties agreed that $30 per hour was an appropriate amount for attendant care services.
339 The evidence in this case demonstrates that the plaintiff had a reasonable need for the services of the kind provided by Vesna Bucic in what I will refer to as the 'intensive periods', being immediately after the fall and after the three bouts of surgeries.
340 The plaintiff's injuries in the post-fall period were significant and serious. I accept Vesna's evidence that she was assisting him in most activities in that six week period. As Vesna said, she would not have been standing by the plaintiff's side for each moment, but she was required to be present and to assist him with all manner of activities from walking, getting his coffee, dressing, showering, assisting him to eat, assisting him to walk and helping him during the night. I accept that after the fall and in the subsequent intensive period she spent a significant amount of time providing personal care and assistance to the plaintiff. I consider that his needs were such that Vesna was spending on average 10 hours per day in those intensive periods.
341 In the non-intensive period up to 1 January 2014, Vesna's evidence was that she provided daily assistance to the plaintiff in the order of two hours per day. On the balance of probabilities, I accept that she provided care to the plaintiff in those intervening periods, although in the order of approximately one hour per day.
342 The evidence confirms that the plaintiff's condition deteriorated and by June 2013 he had no or limited capacity. Vesna's evidence was that the plaintiff had significant pain and after the surgery in October 2013 needed more personal care and assistance.
343 Vesna's evidence was that she helps the plaintiff dress and put on his orthosis. She said that since October 2013, the amount of personal care and assistance is more than in the other periods. I accept that the plaintiff cannot stand for long periods now and this means that he can no longer prepare meals or drinks such as breakfast or coffee. I conclude that Vesna has provided daily personal care and assistance to the plaintiff since the October 2013 surgery. Putting aside the eight weeks that Vesna provided intensive care, I accept that from approximately 1 January 2014 Vesna has provided ongoing daily personal care and assistance to the plaintiff. I accept the plaintiff's physical needs and psychological needs have deteriorated since the October 2013 surgery and are unlikely to improve. If anything he is likely to continue to deteriorate. I consider the plaintiff's needs caused by the injuries amount to approximately one hour per day from 1 January 2014 until his death.
344 I therefore allow a sum of $125,000 for past gratuitous attendant care. Applying the relevant multiplier to age of death, and allowing a 30 per cent reduction for vicissitudes, I allow a sum of $110,000 for future gratuitous care.
345 The plaintiff claims past and future medical and like expenses for the cost of consulting with his general practitioner, psychologist and psychiatrist. Regrettably, the plaintiff did not have a valid Medicare Notice of Charge.
346 The evidence was that the plaintiff had presented to his current general practitioner on an irregular basis over some years at a cost of $70 to $80 per consultation. He also consulted with a psychologist on five occasions at a rate of $170 per hour, totalling $850. Finally, the plaintiff received psychiatric treatment from 10 December 2014 to 14 September 2015.[357]
347 I accept that the plaintiff is entitled to the costs of his past medical treatment. However, I note that the evidence as to the plaintiff's past medical expenses was scant. I allow $5,500 for the cost of the plaintiff's past appointments with his general practitioner. I also allow $1,650 for the cost of the plaintiff consulting with his psychiatrist. And I allow $850 for the plaintiff's five appointments with his psychologist. I therefore allow a total of $8,000 for the plaintiff's past medical expenses.
348 The plaintiff is entitled to the costs of future medical treatment. The evidence about the plaintiff's future medical costs was also scant. Dr Sheriff's evidence was that the plaintiff will need to consult with his general practitioner every four to six weeks, at a cost of $70 to $80 per consultation, on an ongoing basis. This evidence was not challenged. Additionally, the plaintiff will need to seek psychological treatment on a fortnightly basis for twelve months and on a monthly basis thereafter, at a rate of $170 per hour. Applying the relevant multiplier, and allowing a 30 per cent reduction for vicissitudes, I allow a total of $25,000 for future medical expenses.
350 The critical issue in this case was to what extent the plaintiff's fall caused or materially contributed to his back and neck conditions. Liability was also hotly contested but it was not as complex as causation.
351 It was not disputed that the plaintiff had a pre-existing degenerative back condition that was symptomatic before the fall. It is probable he also had a pre-existing degenerative neck condition that was not yet symptomatic. There can be no doubt he has had a catastrophic fall. The plaintiff has seen several doctors in the 12 years since for a range of serious medical issues and has had three operations on his lumbar spine. He has developed foot drop. He also suffers from mental health issues and a level of memory loss and confusion.
352 In all of this time, to his credit, the plaintiff has tried to return to work. His stoicism is evident from the fact that, by June 2008, he was working to some extent. The totality of the evidence is that the plaintiff went from having a serious back condition, for which he received treatment over 12 months, to resuming full-time work six weeks before the fall. Then, after the fall, he was a 'broken man'. The plaintiff has battled on despite crippling back and neck pain. This is a man who does not complain or seek treatment until absolutely necessary. We know he is scared of further surgery. Bearing all of this in mind, as well as his family's evidence and the evidence of Mr Turner and Dr Kennedy, the probability that the fall caused or materially contributed to his back and neck conditions is reasonably high. There can be no medical or scientific certainty on these points. However, medical or scientific certainty is not the test for causation, which turns on all the circumstances of the case.
353 I consider the defendant's negligence caused or materially contributed to the plaintiff's back and neck and, in turn, psychiatric and cognitive injuries. That is so even though the fall cannot be shown to be a necessary condition of those injuries. Put another way, even though there are other possible explanations for the plaintiff's back and neck conditions, I accept that on the balance of probabilities they were caused or materially contributed to by the fall.
354 I will hear the parties on costs and the appropriate form of order.
[1] Senior counsel for the defendant contended that the plaintiff's pre-admission screening took place on 10 August 2007, rather than 10 June 2007, based on his reading of RMH notes. My reading of these notes is that it was in June.
[3] Transcript of Proceedings, Bucic v Arnej Pty Ltd (Supreme Court of Victoria, S CI 2015 05539, Zammit J, 18 February 2019 - 7 March 2019) 134.1 ('T').
[18] Exhibit P10, report dated 24 July 2013.
[21] See also Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479.
[22] See especially s 26(1), (1B) and (2).
[23] Not the more recent Occupational Health and Safety Regulations 2017.
[24] See generally Powney v Kerang and District Health [2014] VSCA 221; (2014) 43 VR 506.
[25] [1991] HCA 12; (1991) 171 CLR 506, 509 (citations omitted) ('March').
[26] [2012] HCA 5; [2012] 246 CLR 182 ('Strong').
[27] Ibid 194 [26] (French CJ, Gummow, Crennan and Bell JJ) (citations omitted).
[28] [1990] HCA 20; (1990) 169 CLR 638 ('Malec').
[29] Ibid 642-3 (citations omitted) (Deane, Gaudron and McHugh JJ) (emphasis added).
[32] See, eg, relevant authorities from this Court and the Court of Appeal including Lindsay-Field v Three Chimneys Farm Pty Ltd [2010] VSC 436 [136]; Smith v Gellibrand Support Services Inc [2013] VSCA 368; (2013) 42 VR 197; Johnson v Box Hill Institute of TAFE [2014] VSC 626 [454]; Winky Pop Pty Ltd v Mobil Refining Australia Pty Ltd [2015] VSC 348 [607]; Winky Pop Pty Ltd v Mobil Australia Refining Pty Ltd [2016] VSCA 187 [331]-[341]; Wearne v State of Victoria [2017] VSC 25 [357]; and Wilson v Bauer Media Pty Ltd [2017] VSC 521 [172]. The decision in Bauer Media v Wilson (No 2) [2018] VSCA 154 does not bear on the issue at hand.
[33] [2010] HCA 12; (2010) 240 CLR 537 ('Tabet').
[34] Ibid 557 [39]. See also Kiefel J at 535 [136].
[37] Ibid [104]-[107] (emphasis in original) (citations omitted).
[39] Ibid [37] -[38] (citations omitted).
[41] Section 28IA(2); Alcoa Portland Aluminium Pty Ltd v Victorian Workcover Authority [2007] VSCA 210; (2007) 18 VR 146.
[109] Exhibit P6 report dated 26 January 2008.
[111] Exhibit P6, report dated 21 March 2009.
[124] T504.19-505.24 (emphasis added).
[165] Exhibit P12; T656.19-31; 657.1-4.
[307] Exhibit P12, report of 7 December 2018, 1.
[308] Exhibit P12, report of 7 December 2018, 5-6.
[309] This works out to be approximately $1,200 per week.
[313] Exhibit P5, report of Dr Kaplan dated 12 March 2015 at page 2.
[315] The appropriate multiplier is 756.5.
[316] This rate was agreed as between the parties.
[318] In examination-in-chief Daniel Bucic was asked about the location of the bloodied bricks. He stated they were about metre in front and directly below the raised scaffolding bay: T351.22.
[319] T412. 'Complete' here meaning that it had all the safety features comprising 'full compliance' as per the Precision Scaffolding Pty Ltd independent audit.
[331] Wrongs Act 1958 Pts IV, IVAA and V.
[332] Joslyn v Berryman [2003] HCA 34; (2003) 214 CLR 552 [32] (McHugh J).
[334] Ibid [21] (Gleeson CJ, McHugh, Gummow and Hayne JJ).
[339] Scanlon v American Cigarette Co (Overseas) Pty Ltd (No 3) [1987] VicRp 24; [1987] VR 289.
[355] [2001] VSCA 180; (2001) 3 VR 447, 464 [57].
[357] Exhibit P12, report of 12 March 2015, 2.
Bucic
Arnej Pty Ltd [2019] VSC 330
(1977) 139 CLR 161
(1990) 169 CLR 638
(1987) 162 CLR 479
(2014) 43 VR 506
(1991) 171 CLR 506
(2013) 42 VR 197
(2010) 240 CLR 537
(2007) 18 VR 146
(2003) 214 CLR 552
(1999) 197 CLR 1
(2001) 3 VR 447