Sukumar v Weir Minerals Australia Limited

Section 151D Application

1. Section 151D(2) does not spell out specific criteria to be taken into account by the court when exercising the discretion - Howley v Principal Healthcare Finance Pty Limited [2014] NSWCA 447 at [44].
2. The general principles applying to an extension of time were identified in Salido v Nominal Defendant (1993) 32 NSWLR 524 as follows: 1. The primary rule is that each case must be determined on its own facts; 2. The onus of establishing an entitlement to a grant of leave is upon the applicant; 3. The fact that the defendant will suffer some forensic disadvantage through the extension is not of itself decisive, although it is a relevant consideration; and 4. While the discretion is not to be narrowly construed, the applicant must demonstrate that it is fair and just that leave be granted.
3. The question to be asked is what is fair and just in the circumstances, or alternatively, what does the justice of the case require? In Itek Graphix Limited v Elliott (2002) 54 NSWLR 207 at 224, Justice Ipp said: "In my opinion, in limitation legislation such as s 151D(2) of the Workers Compensation Act, where a broad discretion is conferred to grant leave to sue after expiry of the limitation period, the general question that has to be asked is what is fair and just (per Gleeson CJ in Salido). Or what does the justice of the case require (per McHugh J in South Brisbane Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541). In answering such a question the justice of the case must be evaluated by reference to the rationales of the limitation period that has barred the action, including the four rationales to which McHugh J refers."
4. Justice McHugh in South Brisbane Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541 identified four rationales when considering extending a limitation period: 1. As time goes by relevant evidence is likely to be lost; 2. It is oppressive to a defendant to allow an action to be brought long after the circumstances that gave rise to it have passed; 3. It is desirable for people in the community to be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them - many in the community have a significant interest in knowing that they have no liabilities beyond a definite period; 4. The public interest requires that disputes be settled as quickly as possible.
5. Justice Ipp in Itek said that the first issue to be resolved is whether the applicant who applies for leave to bring proceedings after expiry of a limitation period, provides a reasonable or adequate explanation for the delay and shows there has not been an absence of diligence on his or her part. The second issue to be resolved concerns prejudice and whether leave to commence proceedings would result in an unfair trial.
6. As part of the evidence in support of the application for leave under s 151D, the plaintiff tendered an affidavit by his solicitor Mr Redman filed on 20 November 2018. That affidavit set out a procedural history of the claims by the plaintiff, firstly for workers compensation, and secondly for modified common law damages. The formal claim was first made against the insurer for the defendant on 8 September 2014. This sought lump sum compensation. Mr Redman annexed to his affidavit the documents and correspondence that flowed between the parties, leading to the certificate of the Arbitrator and the certificate of the Appeal Panel, both referred to above. Mr Redman also annexed to his affidavit pre-filing documents required under the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
7. Without going into fine detail, the material in the affidavit of Mr Redman shows that the claim for compensation and then the claim for modified common law damages moved through the system in a timely and orderly fashion. It was not until the plaintiff obtained his whole person impairment certification that he even contemplated commencing proceedings.
8. The affidavit of Mr Redman also discloses that on 19 October 2017 an application for mediation of a work injury damages claim was filed with the Workers Compensation Commission. On 14 December 2017 such a mediation was held before Mr Tancred "where the matter was not successful in resolving". Mr Redman said that thereafter the plaintiff provided instructions to commence proceedings in the District Court. An informal settlement conference was held in May 2018 and the Statement of Claim was filed in the District Court on 19 June 2018.
9. The plaintiff himself swore an affidavit which was filed on 20 November 2018. That affidavit set out in short form the occurrence of the accident, the medical treatment received and the instructions given to his solicitors on 31 March 2013 to pursue a workers compensation claim. Once again, the evidence in that affidavit shows that the claims for workers compensation and later for work injury damages were pursued in a diligent fashion by Mr Redman, on behalf of the plaintiff. The plaintiff said: "At all times, I followed the advice of my solicitors with respect to my claim for work injury damages".
10. The plaintiff said nothing in his affidavit about being aware of the three year time limit. I accept the submission made by Senior Counsel for the plaintiff that it is a sufficient explanation, in the circumstances of this case, for the plaintiff to simply say that he put himself in the hands of his solicitors. Further, the evidence of Mr Redman and the plaintiff, as recited above, demonstrates that there was no conscious decision made not to pursue the work injury damages claim, but rather, Mr Redman pursued the necessary procedural precursors to that claim in a timely fashion.
11. The defendant has known about the injury to the plaintiff from the day it happened. The defendant's insurer has known that the plaintiff has pursued, firstly, a workers compensation claim, and secondly, a work injury damages claim, over many years. The plaintiff has supplied the defendant with all necessary medical material and tax returns. The defendant has had its own opportunity to have the plaintiff medically examined, and has tendered reports from medico-legal experts in these proceedings.
12. The defendant called no oral evidence, and did not provide any explanation for not calling witnesses. There was no evidence that the defendant had been prejudiced and no actual prejudice was asserted. Nor is it possible to infer, in the circumstances of this case, that the defendant has suffered any prejudice at all.
13. I find that the plaintiff has provided a reasonable and adequate explanation for the delay in commencing proceedings and has demonstrated that there has not been an absence of diligence on his part. I further find that there is no prejudice which accrues to the defendant and that a fair trial can still take place despite the delay in commencing proceedings in the District Court.
14. At the conclusion of this judgment I will make a formal order that, pursuant to s 151D of the 1987 Act, leave is granted to the plaintiff nunc pro tunc to commence these proceedings on 20 June 2018.

Absence of Mediation Certificate

1. Part 6 Division 4 of the 1998 Act deals with mediation. By s 318A(1) a claimant must refer a claim for work injury damages for mediation, before the claimant can commence court proceedings for recovery of those work injury damages.
2. The evidence in the case shows that this requirement has been satisfied, as the plaintiff did refer the matter to a mediation and indeed a mediation took place.
3. Section 318A(4) of the 1998 Act provides that court proceedings for recover of work injury damages cannot be commenced while the claim is the subject of mediation in the Commission.
4. The only evidence in the case regarding the fate of the mediation is contained in paragraph 25 of the affidavit of Mr Redman, in which he said: "On 14 December 2017, a Workers Compensation Commission mediation was held before Mr John Tancred where the matter was not successful in resolving."
5. Since that is the only evidence in the case, and since that evidence suggests that the mediation was over because it did not resolve the claim, I find that s 318A(4) is satisfied in that the claim of the plaintiff for work injury damages is no longer the subject of mediation in the Commission. That mediation was over back in December 2017.
6. Further, there is no evidence in the case that either the plaintiff or the defendant ever insisted to each other, or to the mediator, that the mediation was not over and that it should somehow continue.
7. Section 318B(2) provides: "Failing agreement, the mediator is to issue a certificate certifying as to the final offers of settlement made by the parties in the mediation."
8. While Senior Counsel for the plaintiff stated that at the mediation the plaintiff made an offer but the defendant did not, there was no evidence of that. That was entirely proper, as s 318E provides that offers made at mediation are not to be disclosed to a court. There was no evidence that the mediator had ever issued a certificate, and it is common ground between the two parties that no certificate was ever issued. Counsel for the defendant submitted that because a certificate had not issued, the mediation was not at an end, and thus, because of s 318E(4), court proceedings could not be commenced by the plaintiff for recovery of work injury damages.
9. Senior Counsel for the plaintiff submitted that s 318E(4) was not cast in terms of prohibiting court proceedings for recovery of work injury damages, until a certificate had been issued by a mediator. I accept that submission. There is nothing in Div 4 which says anything about the issue of a certificate, except that the mediator should issue one. The effect of such certificate is to be understood by an examination of clauses 94, 95 and 96 of the Workers Compensation Regulation 2016. By clause 94, if a claimant obtains a judgment that is no less favourable to the plaintiff than the terms of the plaintiff's final offer of settlement as certified by a mediator under s 318B of the 1998 Act, the court is to order the insurer to pay the claimant's costs assessed on a party and party basis. By cl 95, if the plaintiff obtains a judgment less favourable than the terms of the insurer's final offer of settlement as contained in a certificate under s 318B of the 1998 Act, the court is to order the claimant to pay the insurer's costs assessed on a party and party basis.
10. Clause 96 provides that, except as provided by the subdivision, the parties to court proceedings for work injury damages are to bear their own costs. Since there is no mediator's certificate in this case, cl 96 applies, a matter conceded by both counsel, providing that the plaintiff wins in the first place. Clause 95(2) provides that if the plaintiff fails to obtain a judgment, the court is to order the plaintiff to pay the insurer's costs assessed on a party and party basis.
11. It would have been a simple matter for Parliament to have drafted s 318(4) of the 1998 Act, to make the issue of a mediator's certificate the "gateway" to the right to commence court proceedings. The Act was not drafted in that fashion.
12. For an example of a regime which operates differently to that of the 1998 Act, see cl 17(2)(b) and cl 41 of the Dust Diseases Tribunal Regulation 2013. The effect of these clauses is that until the mediator's certificate issues in respect of a dust diseases claim, the Dust Diseases Tribunal does not have jurisdiction to hear and determine the claim. By way of contrast, s 318A(4) does not appear to be linked to the issue of a certificate under s 318B(2). However, the latter sub-section still has work to do, in respect of costs consequences, as set out above.
13. I find that in spite of the fact that no mediator's certificate was issued, that is no bar to the plaintiff commencing and pursuing these proceedings to judgment. I am fortified in reaching that conclusion by the remarks of Justice Hoeben in paragraph [11] of the decision in Wilkinson v Perisher Blue Pty Limited [2012] NSWCA 250. His Honour said: "The general scheme of Part 6 of Chapter 7 of the WIM Act is for the Commission to control various preparatory steps before proceedings are commenced in a court. That is why proposed pleadings, with their supporting documents, are referred to as 'pre-filing statements' and 'pre-filing defences'. It is only when all of the steps have been satisfactorily completed and a mediation has taken place pursuant to s 318A, that a Statement of Claim can actually be filed in a court. The purpose of Part 6 is to ensure full disclosure of the position of the parties so that by mediation and otherwise the prospects of settlement can be fully explored."
14. In the present case the mediation has taken place. I find that the prospects of settlement have been fully explored. If it were otherwise, the defendant would have asked for the mediator to re-convene the parties and continue negotiations. That never happened.

Liability

1. The plaintiff was born in 1957 in India where he completed his schooling and obtained a Diploma of Mechanical Engineering. Between 1979 and 1992 he was employed as a CNC operator in India. CNC stands for Computer Numerical Control. These machines mill metal, as directed by a computer program. The operator has to set up the block to be milled on the machine and supervise and observe the milling process. The operator then has to remove the finished product from the machine. There are different sizes of jobs done by these machines, but larger pieces of metal have to be brought to the machine by forklift and moved into position by crane, before the operator can clamp the block onto the machine. Part of this work is hard physical work.
2. The plaintiff migrated to Australia, together with his wife and their daughter, in 1992. Two months after arriving in Australia he commenced employment as a CNC machine operator with a firm in Lansvale. He moved to a similar job in Bankstown in 1997. The plaintiff changed employment in 2005 when he commenced working for the defendant. He took the job with the defendant for increased pay. Again, he was a CNC machine operator. The plaintiff worked a 12-hour nightshift and travelled from his home in Liverpool to Artarmon and back every day. He was earning $1,700 nett per week in this employment when his accident happened in 2012.
3. In 2010 the plaintiff suffered an injury to his right knee when he fell from the CNC machine table. He attended Liverpool Hospital, was x-rayed, and had one week off work. There was no significant disability caused by that injury, and he returned to doing his physical job for 12 hours a night as a full-time employee.
4. On 2 February 2012 the plaintiff attended work at the defendant's factory at Artarmon. He commenced work at 6.00pm. At 9.30pm he walked towards his CNC machine, as a milling job had just completed. He had to walk on a metal floor to check the job and, if satisfactory, to unclamp the finished product.
5. The CNC machine had a large spindle. The plaintiff said that oil leaked from this spindle onto the metal floor surrounding the machine. He also said that the spindle had been leaking oil for some considerable time. He had raised complaint about the leaking oil on several prior occasions with his superior Mr Bailey. Nothing was done about the leaking oil. There was no challenge to this evidence and Mr Bailey was not called, nor was his absence from the witness box explained.
6. During the milling process coolant was sprayed onto the machine and the metal being milled. This coolant fell onto the floor in liquid form. Further, metal shavings, offcuts and dust caused by the milling process, known as swarf, fell onto the floor. The combination of leaking oil, coolant and swarf made the metal floor surrounding the machine slippery and dangerous. Once again, there was no challenge to this evidence given by the plaintiff.
7. The plaintiff slipped as he crossed the floor. Part of his body went into a pit near the machine. His right shoulder hit the machine itself and he heard his shoulder crack. Later investigation showed that he had a comminuted fracture of the right scapula. The plaintiff said that he hit his right elbow as he came down. It was his right leg which went into the pit and during that fall he struck his right knee. His feet slipped from under him so he fell onto his back. He called out to the operator on the adjacent machine who came to his assistance. An ambulance took him to Royal North Shore Hospital where he was seen the next morning by Dr Ruff, an orthopaedic surgeon. He was discharged with a sling for the right arm and a supply of painkillers.
8. The plaintiff had a few days off work and then went back on light duties.
9. I accept all of the plaintiff's evidence summarised above.
10. The liability provisions of the Civil Liability Act 2002 do not apply to the plaintiff's claim - s 3B(1)(f). Negligence is to be determined at common law. So is contributory negligence.
11. On the evidence of the plaintiff alone, I find that the defendant was negligent. Machines in factories should not constantly leak oil. Complaints about leaking oil should not be ignored. Workers should not be expected to carry out a manual task while walking on a surface which is constantly slippery and unpredictable.
12. There were simple and expedient measures outlined in an unchallenged expert report which could and should have been taken by the defendant. The most obvious one is fixing the oil leak.
13. While I have found liability for negligence on the basis of the plaintiff's evidence alone, there was other evidence in the case which fortifies me in reaching that conclusion. A safety review conducted by the defendant (PX 2) came to the view that the root cause of the accident was inadequate machinery. That review also concluded that a contributing factor was the condition of the floor.
14. An Incident Investigation conducted the day after the accident (PX 3) determined that the plaintiff slipped off the platform due to the floor being covered in oil and coolant and the checker plate on the floor being worn down so that it did not prevent someone from slipping. Solutions proposed in that meeting included fixing the machine, providing anti-slip flooring and conducting a trial of a new type of safety shoe. The plaintiff said, without challenge, that when he returned to work a non-slip mat had been laid down.
15. An Incident Investigation Report of the defendant (PX 4) found that the general area around the CNC machine "was slippery as it was covered in oil and coolant". The oil came from a leak in the machine, but also "from just a build-up of oil and coolant over time". That report set out five suggestions for corrective action. It also suggested that the maintenance crew repair the oil leak on the machine.
16. A statement by Mr Panosian (PX 5) was put into evidence. He had been employed by the defendant for over 40 years. On the night of the accident he was a team leader, performing the duties of night supervisor of about 20 staff. This statement said: "The area where Mr Sukumar fell is the most dangerous of all areas in the plant. I have worked in this area before. The reason the area can be dangerous is that you need to walk up a platform to control the machine and the platform is high and if you slip you are in deep trouble. The machine is old and at the time it was leaking lubricant oil. After the accident the platform was adjusted to make it safer and the oil leak was repaired."

Contributory Negligence

1. Counsel for the defendant submitted at the conclusion of the case that there was contributory negligence because the plaintiff was the author of his own misfortune. It was submitted that he could have taken steps to remove the oil from the steel plate during the course of his shift. The evidence from the plaintiff, which I accept, was that the defendant only required him to remove the oil from the steel floor at the end of his shift, so as to make the area clean for the day shift. He was provided with a mop and a bucket which he used to clean the floor. There was no suggestion put to him that he had breached any instruction to clean the floor constantly during the course of his shift. Since he was already engaged in overseeing, observing and supervising the milling process, it is not surprising that there was no direction to him to leave the machine running and clean the floor. In any event, this would have been a Sisyphean task given that the machine constantly leaked oil, which then mixed throughout the shift with coolant and swarf.
2. I find that there was no contributory negligence on the part of the plaintiff.

Damages

1. The assessment of damages is a very difficult exercise. The plaintiff presented to the court as a complete invalid. He shuffled to and from the witness box leaning upon a walking stick and with a sling around his right arm. He was wearing braces upon his neck, lumbar spine and right knee. There is much medical evidence to suggest that he should not need any of those aids. When the plaintiff has presented to medico-legal doctors for examination, he has taken his son with him and his son has been required to unbutton his shirt and take it off, as well as put it back on. The plaintiff says that he cannot do even this simplest of physical tasks.
2. The evidence on both sides is that while the plaintiff did suffer injuries in his accident to his right shoulder, lumbar spine and right knee, and while there are some ongoing objective signs of problems in those areas, there is no physical reason why he is an invalid. Expert witnesses on both sides, who are orthopaedic specialists, suggest that there are significant inconsistencies in the plaintiff's presentation on examination. Experts on both sides suggest that the way the plaintiff is presenting, he displays abnormal illness behaviour. However, there is no claim made by the plaintiff that he has suffered a disabling psychiatric condition as a result of the accident or as a reaction to his injuries. Nor was there any report tendered by a psychiatrist. To complicate matters even further, the plaintiff said that the condition which disables him the most is a painful neck. The neck was not injured in the accident and no claim has been made for a neck injury in these proceedings. Nor is there any medical evidence of any significant problem in the neck.
3. In order to make findings concerning the injuries and disabilities suffered by the plaintiff, I will examine his evidence and then look at the medical evidence on both sides. The experts for both the plaintiff and the defendant have reached remarkably similar conclusions.
4. The plaintiff's evidence regarding the mechanism of his fall and the areas of his body which were injured in the fall has been recited above. That evidence has been accepted.
5. The plaintiff was taken from the scene of the accident at the factory by ambulance to Royal North Shore Hospital. The next morning he saw Dr Ruff, an orthopaedic surgeon. He was discharged with a supply of painkillers and a sling for the right arm, because of the comminuted fracture of the right scapula. At about 11.00am after discharge he went back to his place of work where he was interviewed about his accident. He then went home by taxi.
6. The plaintiff said that he had a few days off work completely and then he came back on light duties. This involved just sitting in a chair in the office and doing nothing. He was taken to and from work by taxi.
7. The plaintiff had two visits to the Outpatients Clinic at Royal North Shore Hospital where he was given more painkillers.
8. In March 2012 the plaintiff saw Dr Gomaran, general practitioner and Dr Herald, orthopaedic surgeon. He was again given painkillers. He also saw a physician Dr Manohar who prescribed painkillers.
9. In May 2012 the plaintiff travelled to India on a trip which had been booked before his accident. His son helped him on the trip. His wife and daughter were living in India full-time. He stayed there six weeks. He had physiotherapy in India but received no benefit from it.
10. On his return from India he had not improved and he still had pain in the right shoulder, back and right knee. He saw a psychologist once but it did him no good. He said that Dr Natale GP told him that he needed braces for his neck, back and knee. No report from that doctor was in evidence.
11. After a while the insurer stopped paying for taxi fares to take him to and from his light duties. He could not catch public transport because of the pain in his right shoulder, back and right knee.
12. In August 2012 he had four sessions of exercise and hydrotherapy with Peak Conditioning. This only led to an increase in pain.
13. Over the years he made other trips to India. He was away in India between July 2013 and March 2014. While he was there he took painkillers and received assistance from his family.
14. The plaintiff saw Dr Bodel three times for medico-legal purposes. He made a claim for workers compensation and the end result of that claim has been recited above.
15. In mid-2016 he made another lengthy trip to India.
16. The plaintiff said in-chief that he now could not work because of his injuries and his pain. He said that he could not do any job at all. He was taking the strong analgesic Endone until December 2018, but then he stopped because of stomach problems. He now takes Panamax for his pain. He said that his pain is still there and is still the same.
17. In cross-examination the plaintiff was confronted with the inconsistencies noted by the experts upon clinical examination. These are recited below. It was put to him that he was exaggerating, and indeed malingering.
18. The plaintiff said that his neck is his biggest problem at the moment. He acknowledged that he had not made a claim for a neck injury in the accident. He said that Dr Herald told him to do exercises, but he had not done these as he found them to be painful.
19. In cross-examination the plaintiff said that he had made no attempts to find work. He was not looking at the newspaper for any jobs. He said that he had been to India three or four times since the accident. He acknowledged that his second trip was between July 2013 and March 2014. A later trip was between July 2016 and February 2017.

Evidence from Doctors

1. The plaintiff tendered four short reports from his treating orthopaedic surgeon Dr Herald. Unfortunately the latest report is dated 11 July 2012, so the court has not had benefit of his present views. The same can be said for Dr Manohar. His latest report was dated 9 July 2012.
2. The plaintiff's solicitors sent him to Dr Bodel, an orthopaedic surgeon, for medico-legal purposes. Dr Bodel saw the plaintiff on 16 October 2012 and provided a report of the same date. He said: "It is impossible to assess this gentleman today because of the pain and stiffness in his shoulder. He has almost no active range of motion in the right shoulder today, but there is no major wasting of the right shoulder or the right arm above the elbow, or the right forearm in comparison to the left and therefore his restricted range of movement is inhibited primarily by pain but possibly also by adhesive capsulitis. It is far too early to make an assessment of this gentleman's clinical circumstance."
3. The second consultation with Dr Bodel was on 13 May 2014, which led to a report of the same date. That report assessed Whole Person Impairment for the purposes of the workers compensation lump sum claim. The assessment of Dr Bodel was 12% Whole Person Impairment.
4. The third consultation with Dr Bodel was on 19 November 2018. Dr Bodel provided a report dated 20 November 2018. Under the heading "Examination", Dr Bodel said: "Mr Sukumar is a man of 60 years. He is uncomfortable throughout the interview and he is anxious in his manner. He is wearing a neck brace, a sling on his right shoulder, uses a walking stick and has a knee brace on his right knee. He rises very slowly. At the outset I should indicate that his clinical presentation is medically inconsistent in a number of areas and this is very similar to what I observed four years ago. In particular I notice that there is almost no movement in the right arm throughout the interview and when the sling is removed the arm hangs loosely by his side. He cannot actively move the shoulder and has great difficulty moving the elbow. There is, however, no wasting in the shoulder girdle or in the arm above the elbow or in the forearm below the elbow on the right hand side when compared to the left and this is a significant inconsistency medically which does not equate to significant ongoing pathology in the right arm which would prevent him from using the arm in this degree. If his arm was truly so incapacitated then there would be gross wasting in the shoulder girdle in particular which is not evident. It was not evident when I saw him four years ago. He has a grossly restricted range of neck movement again. This is symmetrical throughout. There is guarding or spasm. I cannot get him to actively move the right shoulder at all."
5. Under the heading "Comment on Relevant Documentation" Dr Bodel said: "The only new material seems to be a report from Dr Robert Breit dated 13 February 2015 and he concludes that this gentleman 'primarily falls into the most extreme end of the spectrum of abnormal illness behaviour'. I agree in principle with the statement except to say that this gentleman presents in a manner which is medically inconsistent. He has gross incapacity but no signs of wasting which is an incongruous clinical finding particularly in light of the investigations which show minimal pathology in these circumstances. A vocational assessment and functional assessment report has also been prepared. This was in April 2017 and that concludes that this gentleman on testing should be able to undertake activities that require sitting, standing and walking, reaching activities with his left arm, lifting and carrying within specific limits and getting in and out of a chair. There was felt that there were limitations to prolonged sitting or standing or walking, stair climbing or squatting. He could not kneel or crawl or reach forward with his right arm. The conclusion was that he had a capacity for 'sedentary levels of work'. I agree that the function that this gentleman should have that level of capability but his overall clinical presentation indicates to me that he has no prospects of returning to any form of paid work."
6. In relation to capacity for work, Dr Bodel said: "His clinical presentation would indicate that he has no capacity for work and that is likely to remain indefinitely. There are, however, significant medical inconsistencies in his clinical presentation to which I have referred."
7. In relation to necessary treatment, Dr Bodel said: "I personally would strongly encourage him to get rid of all the protective aids and to exercise. Improved physical fitness levels will enhance function. He will need some medication and need the assistance of a pain clinic and exercise physiologist. His prospects of achieving better function however are very poor. He also needs to see a psychologist and a psychiatrist." (Emphasis added)
8. The defendant sent the plaintiff to see Dr Robert Breit, an orthopaedic surgeon, on 11 February 2015. In a report dated 13 February 2015, Dr Breit said under the heading "Examination": "The client conducted all movements in an active manner. Where passive movement has been induced it has been recorded in the examination findings. No passive movements were performed beyond the limits of comfort. This gentleman came in wearing a sling and binder on the right arm, using a walking stick which is far too long in the left hand, and with a right leg limp. He was quite adamant that the sling and binder was used all the time as was the walking stick over the last two years, and he also had a thermoskin knee guard without a cut out on the right knee. There was what is supposed to be a lumbar support which was in fact quite loose and applied quite high over the chest and abdomen. Despite claims of prolonged use all of these aids showed little evidence of wear. This gentleman stood passively while he was undressed by his son and when asked to walk did so keeping the right knee rigid and I did not even attempt to get him to walk on heel and tip toes. Light axial compression of the skull was said to produce marked leg pain. Pseudo rotation of the pelvis produced back pain and there were claims of tenderness through trapezius on both sides without any spasm and throughout the low lumbar spine without any spasm. Cervical movements were symmetrically restricted to one third normal and lumbar spine movements were negligible in any plane. Despite such prolonged disuse there was no evidence of wasting around the shoulder or the arm."
9. Dr Breit offered the following diagnosis: "This man falls primarily into the most extreme end of the spectrum of abnormal illness behaviour. It has been suggested that he has a pain syndrome, but I draw your attention to WorkCover Guides 5th Edition with respect to CRPS where they indicate some of the difficulties of making such a diagnosis stating that the signs and symptoms are the same as a variety of disorders such as conversion reaction, factitious disorder and malingering. This gentleman's presentation is so grossly abnormal that one cannot make any sort of realistic evaluation of his true level of pain and disabilities. There are no objective clinical findings of any cervical or lumbar pathology. That which is noted on his investigations is quite trivial and age-related. I should point out the WorkCover Guides indicate 30% of people who have non symptomatic spines have MRI abnormalities. He did have a right scapula fracture and there may be some dysfunction in that area. It is also recognised that people who have prolonged restricted movement in a shoulder may have some secondary neck problems, but that is on the assumption that there is actually a restriction in the shoulder. As far as the right knee is concerned there is some quadriceps wasting and with the history of injury and the wasting, it is reasonable to indicate some patellofemoral pain."
10. The defendant also sent the plaintiff to see Dr John Watson, an orthopaedic surgeon, on 15 March 2017. In a report of the same date, Dr Watson made findings similar to those of Dr Breit (see page 11 of DX 2).
11. Dr Watson thought that the plaintiff's presentation "does appear to be consistent with abnormal illness behaviour". He too noted the inconsistencies in examination and said "it was my impression that his effort was suboptimal". He thought that based on the plaintiff's presentation, he was unlikely to return to any gainful employment. He said that this was consistent with abnormal illness behaviour. Dr Watson would not place any restrictions on the plaintiff from an orthopaedic point of view.
12. Dr Watson concluded by saying that he believed that the plaintiff needed the help of a psychiatrist, but that this was outside his area of expertise.

Assessment of Damages

1. The plaintiff's Schedule of Damages is set out at page 268 of PX 9. The plaintiff was earning $1,700 nett per week at the time of the accident. For past economic loss, the plaintiff seeks a 3% increase each year. He claims a total loss of income during the time from the accident until the trial. This amounts to $687,286, plus superannuation on that amount of $75,601.
2. The plaintiff is presently 61 years of age and seeks future economic loss calculated at $2,090.78 per week ($1,700 plus 3% per annum for 7 years) multiplied by the 6 year multiplier of 271.4 less 15% discount for vicissitudes. The figure claimed for future economic loss is $482,322 plus superannuation of $53,055.
3. There is an agreed workers compensation payback of $20,965.10. The plaintiff's total claim for past and future economic loss is $1,277,298.90.
4. The defendant's Schedule of Damages is set out in MFI 4. For the first week after the accident the defendant concedes total incapacity resulting in a figure of $1,700. The defendant then submits that there was partial incapacity for 368 weeks from 9 February 2012 to 26 February 2019. The defendant deducts 64 weeks from this period, leaving a total of 304 weeks. The defendant deducts 64 weeks because the plaintiff spent that much time in India spread during two trips. Whether he would have taken these trips even if uninjured was not the subject of any evidence. At the time of the accident the plaintiff had his wife and daughter living full-time in India, and he could well have been making regular lengthy trips back there. There was simply no evidence to explain whether or not that was so. It could be that he took his long trips to India after the accident, because he was unemployed and had the time to do so. The plaintiff bears the onus of proving that, but for the accident, he would have stayed in Australia and worked full-time, taking only the usual four weeks annual holidays. He did not discharge that onus by calling any evidence and I find that the appropriate approach to calculation of past economic loss is to deduct the 64 weeks spent in India.
5. The calculation of the defendant then operates on the basis that he has a residual earning capacity of about 50%. The precise measure of his earning capacity put forward by the defendant is $822.60 per week. This figure is derived from a vocational capacity report tendered by the defendant, which was not the subject of any cross-examination. As previously recited, Dr Bodel, the plaintiff's medico-legal expert, agreed with the conclusions in that report. For a period of 304 weeks, less a 25% discount for vicissitudes, the defendant ultimately submitted that the loss for the period from 9 February 2012 to 26 February 2019 was $187,552.80. On this amount past superannuation is $20,630.81.
6. The defendant's calculation operated on the basis that the plaintiff's earning capacity since the accident, if uninjured, should be measured at $1,700 nett per week. Thus the defendant did not allow for any increase in wages which would have occurred between February 2012 and the trial in February 2019. Unfortunately the plaintiff did not call evidence of the earnings of comparable employees. The plaintiff bore the onus of proving that the wages paid by the defendant had increased over the last seven years but did not call evidence on that topic. It would have been a simple matter to do so. The only evidence I have as to the measure of the plaintiff's earning capacity, if uninjured, is that he was earning $1,700 nett per week back in February 2012.
7. It is unsatisfactory that the evidence was left in that state. Figures from the Australian Bureau of Statistics for average weekly earnings of employees are set out in the Furzer Crestani Assessment Handbook dated October 2018. This handbook is regularly referred to by courts in assessing damages.
8. The earliest figure in the handbook for total earnings of full-time adult males in New South Wales is for May 2013. The gross figure is $1,550.20. Thus the plaintiff was earning far in excess of average weekly earnings back in February 2012.
9. The latest figure in the handbook is for May 2018, which is $1,790.40. Again, that is a gross figure. Those figures show that there was a 15% increase in gross average weekly earnings between May 2013 and May 2018, a period of five years. On average, this is a 3% increase per annum. My examination of those unimpeachable government statistics provides some support for adopting the formulation put forward by the plaintiff of 3% per annum increase. Doing the best I can, on the incomplete evidence called for the plaintiff, I will adopt a 3% increase per annum in order to calculate the plaintiff's income, if uninjured.
10. I will also calculate future economic loss using the plaintiff's figure of $2,090 nett per week, which is what his wage would have been in 2019, assuming a 3% increase per annum.
11. Senior Counsel for the plaintiff submitted that if I believed the plaintiff, then he was totally disabled for any form of work and his damages should be assessed at full value in accordance with the plaintiff's Schedule of Damages. I have come to the view that I cannot accept the plaintiff in relation to the level of his disabilities. I formed the view from observing the plaintiff as he moved to and from the witness box, and as he was in the witness box, that he was playing a role. Whether he was presenting as an invalid because of a conscious or an unconscious process I cannot say and I do not need to say. This is because all of the expert medical evidence suggests that much of the plaintiff's presentation is the result of abnormal illness behaviour rather than any orthopaedic disability. There is no claim made for any psychiatric injury and there is no psychiatric report tendered on either side.
12. The plaintiff did suffer physical injuries to his right shoulder, lumbar spine and right knee in the accident at work. This much was acknowledged at the trial. In any event, there is an estoppel running against the defendant, arising out of the finding of the Workers Compensation Commission arbitrator, that the plaintiff suffered injuries to those three areas of his body - Egri v DRG Australian Limited (1988) 19 NSWLR 600.
13. While the plaintiff has a residual earning capacity, he is not exercising it, because of a significant problem with his neck (which is not accident related) and abnormal illness behaviour (which is also not related to the accident). He is however entitled to be compensated for the reduction in his earning capacity caused by his residual orthopaedic problems.
14. On the question of damages I make the following findings of fact: 1. The plaintiff suffered physical injuries to his right shoulder, his lumbar spine and his right knee in the accident; 2. The plaintiff did not suffer an injury to his neck in the accident, and in any event, no claim is made for a neck injury; 3. The plaintiff has not suffered any psychological or psychiatric injury as a result of the accident, and in any event, no claim is made for any such injury; 4. The plaintiff has a residual earning capacity, which I assess at 50%, arising from his physical injuries; 5. He still has physical signs of injury as detected by Dr Breit in his examination; 6. The plaintiff is not an invalid as a result of the injuries to his right shoulder, back and right knee; 7. The plaintiff has adopted a "sick role" and if he is a complete invalid, a significant, and indeed a major, contribution to his condition comes from his claimed painful neck and his abnormal illness behaviour; 8. His physical injuries caused by the work accident would have prevented him from doing his old job for 60 hours a week; 9. Those physical injuries would not prevent him from doing lighter duties jobs for normal hours, as set out in the vocational capacity report (with which Dr Bodel agrees).
15. I find that the plaintiff was totally incapacitated for a period of one week after the injury. The damages for this week will be $1,700.
16. I find that the plaintiff has been partially incapacitated from 9 February 2012 to 8 March 2019, a period of 370 weeks. I deduct 64 weeks for the time which the plaintiff has spent in India since his accident. This means that his damages for his period of partial incapacity up to the date of judgment will be assessed for 306 weeks.
17. For the period of partial incapacity referred to above, I find that damages should be calculated on the basis of an uninjured capacity to earn $1,700 per week in 2012 and $2,090 per week in 2019. The average of these figures is $1,895 per week. I find that the plaintiff has suffered a 50% diminution in his capacity for work between 9 February 2012 and 8 March 2019. I also find that a 25% discount for vicissitudes, as submitted by the defendant, is appropriate. The neck problem claimed by the plaintiff, if genuine, could well have taken him out of the workforce completely over time.
18. The calculation for the period of partial incapacity is: $1,895 x 0.5 x 306 x 0.75 = $217,457.25.
19. Past superannuation will be calculated on that amount at 11%, a percentage agreed between the parties. The calculation is: ($1,700 + $217,457.25) x 11% = $24,106.64.
20. For future loss of earning capacity I will adopt the plaintiff's calculation of a theoretical wage of $2,090 nett per week. I allow a 50% reduction in earning capacity. I adopt the defendant's multiplier for 5.82 years of 260. Again I allow a 25% discount for vicissitudes, for the reasons set out above.
21. The calculation for future loss of earning capacity is: $2,090 x 0.5 x 260 x 0.75 = $203,775.
22. Again adopting the agreed percentage, future superannuation is: $203,775 x 11% = $22,415.25.
23. It was indicated for the plaintiff that no Fox v Wood damages were sought.
24. The parties agreed that there was a workers compensation payback of $20,965.10 and that this had to be deducted from the damages.
25. My final findings on damages are set out in the following table: HEAD OF DAMAGES AMOUNT Past economic loss for first week $1,700.00 Past economic loss during partial incapacity (9 February 2012 to 8 March 2019) $217,451.25 Past superannuation $24,106.64 Future loss of earning capacity $203,775.00 Future superannuation $22,415.25 Sub-total $469,448.14 Less workers compensation payback $20,965.10 TOTAL $448,483.04

1. There will be a judgment for the plaintiff against the defendant for that amount.

Costs

1. As recited above, counsel submitted that the operation of cl 96 of the Workers Compensation Regulation 2016, means that I must order that each party bear his or its own costs. The parties agreed that this was the appropriate costs order.
2. Clause 96 is in Subdivision 2 to Division 3 of the Workers Compensation Regulation 2016 which deals with "costs recoverable in work injury damages matters". No submission was made in relation to the costs of the application under s 151D of the 1987 Act. Clause 98 of the regulation provides: "This Subdivision does not apply to costs payable in or in relation to proceedings that are ancillary to proceedings on a claim for work injury damages, and a court is to award costs in such ancillary proceedings in accordance with the rules of the court." This clause may have the effect that even though there should be no order for costs in the proceedings themselves, it would be appropriate to order that the plaintiff have the costs of the s 151D application, if this application can be regarded as "ancillary to proceedings on a claim for work injury damages". I will grant leave to the parties to enable any submissions on this proposition to be put before the court.
3. No submission was made, in reliance upon cl 97(2) of the regulation. This could well be because no "subsequent offer of settlement to the insurer" was made, within the meaning of cl 97(2)(e)(i). However, as recited above, the parties did attend an informal settlement conference in May 2018, and it could be that an offer of settlement within the meaning of the regulation was made on that occasion. The grant of leave to seek different costs orders extends to any party who wishes to raise the operation of cl 97 of the regulation.

Orders

1. My orders are: 1. Grant leave to the plaintiff nunc pro tunc to commence these proceedings on 20 June 2018. 2. Judgment for the plaintiff against the defendant for $448,483.04. 3. Order that each party pay his or its own costs of the proceedings. 4. Grant leave to approach my Associate within 7 days if either party wishes to seek a different costs order.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 March 2019