Macie J Pilch v Monier Sukkar & Wojch Czyz & WorkCover & A & L Souma [2001] NSWCC 62

Compensation Court of New South Wales

CITATION : Macie J Pilch v Monier Sukkar & Wojch Czyz & WorkCover & A & L Souma [2001] NSWCC 62 revised - 5/09/2001 Macie J Pilch v PARTIES : Monier Sukkar & Peter Beter & Co Pty Ltd Wojch Czyz Worklcover Authority A & L Souma MATTER NUMBER(S) : 48889 of 1999 JUDGMENT OF: Geraghty J at 1 Entitlements & Liability :- Incident CATCHWORDS: Injury Pre-existing condition Apportionment LEGISLATION CITED: CASES CITED: DATES OF HEARING: 3/10/2000, 4/10/2000, 05/10/2000, 05/03/2001, 06/03/2001,13/03/2001 EX TEMPORE JUDGMENT DATE : 04/12/2001

FOR APPLICANT: Mr M J Gollan instructed by R J Rimes, Solicitors FOR RESPONDENT: Mr B Morris instructed by Benjamin & Khoury appeared for the first respondent. LEGAL REPRESENTATIVES: Mr A J Candy instructed by William Clinton (WorkCover Solicitors) appeared for the second respondent. Mr L G Morgan instructed by Moray & Agnew appeared for the fourth respondent.

JUDGMENT:

The Claim 1. Maciej Pilch claimed weekly benefits from 20 February 1997 to date and continuing, together with lump sum compensation, pursuant to s 66 and s 67, for back impairment and loss of use of his right leg. A claim was also made for payment of medical expenses, in accordance with s 60. 2. Pilch based his claim on two incidents. The first, involving the second and the first respondents, he claimed, occurred in August 1995, nominating the dates 21 or 22 August 1995. The second incident occurred when he was employed by the fourth respondent, and he alleged that he injured his back again on 19 February 1997. The applicant based his claim as against the first respondent on the provisions of s 20 of the Workers Compensation Act, alleging that Monier Sukkar and Peter Beter and Co Pty Ltd were a principal, contracting the services of Czyz, the second respondent, who was himself uninsured. It was agreed between the parties that both the first and the second respondents were uninsured at the relevant time. It was conceded by the first respondents that they were a principal of the second respondent in accordance with the provisions of s 20 and that the applicant, Pilch, had been employed by the second respondent, Czyz, or at least this fact was not disputed. The Issues 3. The issues for determination were: firstly, whether any incident occurred in August 1995 at the premises owned and being developed by the first respondents. This issue occupied a few days of evidence. The second issue for determination was whether any injury occurred in February 1997 when the applicant was employed by the fourth respondent, A & L Souma, and, if any incident did occur, whether there were any serious and lasting consequences arising from such and incident. Thirdly, was the quantification of any loss or impairment, the application of the provisions of s 68A inviting a deduction for pre-existing conditions, and finally the application of the provisions of s 22 apportioning liability as between the first and second respondent on the one hand, and the fourth respondent on the other. General Overview 4. The lengthy evidence proved to be a mishmash of allegations, of supporting evidence and contradictory evidence. 5. Pilch gave evidence of injuries in August 1995 and February 1997, and provided details of the circumstances of them. This evidence was supported by his employer and long-time friend Czyz, and by one of his other friends and a co-worker, Szczyek, known as Semak. In general they supported Pilch's statement, though in some respects, varied and at times contradicted them. 6. On the other hand, the facts asserted by Pilch were vigorously denied by Monier Sukkar, on behalf of the first respondent, who dealt with the allegation of an injury on 22 August, and by his wife Zena Sukkar, who dealt with the alternate allegation of an injury on 21 August. Her evidence was supported by Stephen Appleby, a plumber, on site on 21 August, while her husband's evidence was supported by Fardi Kurdi who was on site (at least from 2 o'clock or thereabouts) on 22 August, though in addition, Appleby and Kurdi supported the evidence of both Monier and Zena Sukkar in those details relative to the position and existence of an external ladder for access, and the covering over the internal staircase. 7. Pilch's allegation as to the injury which occurred in the employ of the fourth respondent when he was working on a property at Chatswood on 19 February 1997, was denied in detail by the fourth respondent Antoine Sauma who was apparently in partnership with his wife. 8. In general the applicant was supported by his friends Czyz and Semak, while the allegations were denied in respect to the August 1995 accident by Monier and Zena Sukkar, by Appleby and Kurdi, and by Antoine Sauma in respect of the second injury. 9. Pilch appeared to me as an experienced bricklayer who used to work laying bricks and as a part-time supervisor. When working as a bricklayer only, he used to earn about $186 per day, and in addition, when supervision was needed, he received an extra $50 per day. On anyone's calculation, he was a high earner and seemed to be someone with a very good work ethic and conscientious in what he was doing. He came to Australia in 1987 and worked until 1995 for Czyz, the second respondent, who some time after the August 1995 accident became bankrupt. 10. The second respondent, Czyz, organised the applicant's work, provided materials for him, paid him wages each week and deducted his taxation. When it was raining, there was no work, and when there was no work available from Czyz, Pilch was not employed elsewhere. As at August 1995, he continued to be employed by the second respondent and was living in Liverpool with his mates. One of these mates, Semak, was also employed by the second respondent, so they used to travel to work together, both to the same sites. 11. In late August 1995 they were working together on the construction of five or six townhouses at Hurstville, a property owned by the first respondents and being developed by them. Mr Pilch said that maybe on the Tuesday (though he was not sure) on a day when it was raining, he had fallen down a flight of interior stairs. He said that normally he would begin work at about 7 am and that there were two breaks throughout the day: at 9 o'clock and 12. 12. However, on the day in question, they were waiting for the rain to stop and had begun work at about 8.30. He said that he had had no problems until about lunchtime. After lunch, he had been walking down from the second floor when he slipped on the formwork on the step and fell. He said that his friend and employer, Czyz, the second respondent, was present at the time and had spoken to him. He felt immediate pain in the back and right leg. Some short time later, Semak, his friend and co-worker, inquired what had happened. After about 20 minutes rest, he was taken home by Czyz and went to bed. He did not go to work the next day, and attended Dr Bartos. He told Czyz that he could not work because of his back and leg and he made a claim on his employed two or three days after the incident. However, the second respondent, Czyz, informed him at that stage that he was not insured. 13. He had time away from work, extensive time, and was paid compensation until the end of 1996. Because of the severity of pain, he did not work until September 1996 when he tried to work again, supervising two days a week. However he was unable to work, and could not walk. By the end of 1996 he returned to Poland for several months and back to Australia early in 1997, when he attempted to work for the fourth respondent, on a recommendation from his friend Semak who was already working for Souma. He said that he told the fourth respondent that he had had back problems and that he had begun working for him about 1 February 1997. He said that as he worked, his pain increased, and that some days he could not work because of pain. However, on 19 February 1997, his evidence was that before lunch, he sustained an injury at Chatswood. He said that Souma had been present on that occasion. He had been setting up door frames and had lifted a door centre which, he said, was perhaps 70 to 90 kg in weight when he felt, as he lifted it, a very, very strong pain in his back, radiating through his right leg to his foot. He said that he was unable to function further for the next six months. 14. I listened to the evidence from both sides of the record for a number of days, puzzled by the many details provided and complicated by the fact that none of the witnesses seemed to agree with one another in some of the apparently less important details. For example, Pilch said that Monier Sukkar was present when he sustained his injury - whereas his employer, Czyz, said that his wife had been present. Now, on its face that detail may not seem to be very important, but Monier Sukkar was not present on site on 21 August, since he had been relaxing in the snow country and returning to Sydney; his wife had been supervising the site on that day. Whereas, on the alternate occasion, namely the 22nd, Monier Sukkar was present, and his wife was absent for most of the day, though it would appear she turned up with her husband at 2 o'clock to interview Fardi Kudi. 15. Furthermore, great attention was paid in the evidence to the area above the interior steps, some people stating categorically that they were totally blocked, others that they were partially blocked but to such an extent that no one could have possibly descended them. There was no neat clean way through the contradictory and confusing evidence. The Recorded Histories 16. Pilch attended Dr Bartos on 23 August 1995. Dr Bartos issued a WorkCover certificate (Exhibit 21) in which he certified that his patient was suffering low back pain, with right-sided sciatica, after a fall at work. The certificate was completed by Pilch, nominating the date of the injury as 22 August, the Tuesday, and describing the cause of injury as a fall down four steps. He dated his part of the certificate 24 August 1995, two days after the alleged date of injury. 17. Dr Bartos's clinical notes are Exhibit 14. They contain a hand-written entry dated 23 August 1995 which reads: fell off fell backwards landed on his both arms - at work on 22 August 1995 low back pain 1 - 2 hours a (after) fall. Was not able to sleep because of pain - walks with limp. Pain radiation to left leg and pins and needles. No previous complaint of back problem. 18. The reports of Dr Bartos which begin on 5 November 1995 are now Exhibit A. His first report, addressed to the WorkCover Authority, states that Pilch presented on 23 August 1995, telling him that he had injured his back at work on 22 August falling down some stairs. The doctor diagnosed a soft tissue injury, with possible disc damage. 19. Pilch was examined by Dr Peter Giblin on referral from Dr Bartos six weeks or so after the alleged ncident, namely on 16 October 1995, when he gave a history that his central low back pain had come on after falling down some stairs at work on 22 August 1995. 20. A Rod Ayscough, a medical co-ordinator with a medical degree from Sydney University, examined Pilch on behalf of Dr Bartos on 15 December 1995 - at least that is the date of the report which is now part of Exhibit G. He reported that Pilch had been assessed for low back pain after slipping on a piece of wood at work and falling. In a report of January 1996, Ayscough reported that Pilch had provided a history of back pain which had been caused by a fall forward in August 1995 when he had trodden on a piece of timber which had twisted under his weight and pitched him off balance. He also recorded that Pilch had been working on a building site as a bricklayer at the time and that he had not worked since that time. 21. Dr Conrad examined Pilch on 25 March 1996, some seven months after the alleged incident and he recorded a history that his patient had been employed by Czyz and his wife as a bricklayer: He was involved in an accident on 22 August 1995 when he was doing some bricklaying work on some town houses and he slipped on some form work and fell forward on his left hand He then fell down some stairs which were in the area he was working on and felt pain in his right hand and his back. 22. The applicant was examined in October 1997, several years after the alleged incident, by Dr John Beer (Exhibit B) who received a history that on 22 August 1995 Pilch had fallen down stairs at work, injuring his back and had been off work for 18 months: He was going down stairs and he states he slipped on a piece of form work on the cement type stairs as he could not get complete vision of the staircase. Today he is unable to remember all the details and is not certain how many stairs he fell down, avoiding striking his buttocks but landing on his hands - his boss watching from the top of the stairs. 23. Dr Ellis saw the applicant in February 1997 (Exhibit D) and he reported a history of an event on Tuesday 22 August 1995: After lunch he had to go downstairs on the second floor to get the building plans there, the boss waited for him above the stairs. As he went down the stairs, which were fairly dark and darker still because he came out of the bright sunshine and his eyes had not accommodated, he tripped on a piece of form work and he fell down three or four steps, taking his weight of his left hand and his feet. The steps were concrete. He did not strike his back but his back felt painful at once. ... He walked down the stairs. His boss saw him fall and came down to him. After leaning on the wall for half an hour he was taken home by the boss. 24. Another record of the incident was recorded by Dr Smith (Exhibit 13) in May 1997. He wrote that the applicant: denied any past history of any low back problems until 21 August 1995 when he fell down some stairs with a previous employer. This was a Mr Czyz. Apparently the employer did not have a policy and the claimant says the WorkCover Authority covered the injury. 25. This is the first time (May 1997) that any record of the incident recorded 21 August 1995, rather than the 22nd. 26. Dr Edwards also received a history of 22 August 1995 when he examined Pilch in August 1996, twelve months after the incident. He recorded a simple narrative: At work inside a building he fell down three or four stairs. 27. I have concluded that there is a consistent record of an incident on Tuesday 22 August 1995 as recorded by the doctors from the beginning, namely from 23 August, 1997. S 20: Principal and Contractor. 28. The question of the application of the provisions of s 20 alleging that the first respondents were a principal of the second respondent, that the applicant worked for the second respondent who was uninsured were really not in issue. Czyz gave evidence to substantiate the facts on which a s 20 claim could be based and Pilch gave similar supportive evidence. The relationship was conceded by Mr Morris on behalf of the first respondent but, in any event, there was ample evidence to support this conclusion (which was not disputed) and therefore I see no need to go into this matter in any further detail. The August 1995 Injury 29. As to the injury in August 1995, there are five possibilities. 30. The first is that Pilch was not injured at all, that he has been telling lies to doctors and the Court. This possibility, however, is not tenable. He was a good worker. He would not be sacrificing in excess of $1,000 a day to go onto compensation, and he impressed me as someone who liked doing his work, and despite his injuries, he tried to struggle back to work. There is no doubt in my mind that Pilch was injured, that the consequences of his injuries remain, and that they are quite serious. The second possibility is that he was injured on Monday 21 August 1995 at the Hurstville site which was being developed by the first respondents, that is, when Mrs Sukkar was present on site. The third possibility is that he was injured on Tuesday 22 August 1995, again at the Hurstville site, and on this occasion when Monier Sukkar was present. The fourth possibility is that he was injured on Tuesday 22 August 1995, as recorded by Dr Bartos and others, but elsewhere and in the employ of the second respondent, Czyz, and not on the premises of the first respondent. The final and fifth possibility is that the Court would not be satisfied on the evidence that Pilch was injured on the Hurstville site, and further not satisfied that he was injured on the day alleged, or in the circumstances as alleged, and therefore, because the Court is not satisfied, he has not satisfied the onus of proof and therefore must fail. 31. The first respondents' case, put forcefully by Monier Sukker, was that it was impossible for the accident (as described) to have occurred on his Hurstville site. Impossible because the site was constructed in such a way that Pilch could not have used the stairway as he said. It was blocked with form-work and there was no way anyone could penetrate the form-work barrier and use the stairs. Impossible also because no brickwork was being laid on Tuesday 22 August since he was waiting for windows to be delivered and none of his bricklayers were on site on that day since there was not entry in his diaries to record their presence and it was his practice to record in his books the attendance of his workers on site (Exhibit 5). 32. The first respondents also said that the incident could not have occurred on 21 August 1995 when Mrs Monier was on site (1) because it was not raining on that day; (2) because the brickies left the site by 11.30 am and she had not noticed or heard of any incident before that time; (3) and because Dr Bartos had recorded an incident on 22 - not the 21st - and in the WorkCover certificate, the applicant himself had recorded the incident as having occurred on 22nd. The first respondents added that the incident could not have occurred as described on 22 August, because that day was raining; there was no work on site; there was no-one on site as Mr Sukkar said (and which was confirmed at least after 2 pm) by Fardi Kurdi. 33. The first respondents pointed to a number of significant inconsistencies. The applicant said, for example that the key to the premises had been under the shed. This was denied by Monier Sukkar, his wife and by Mr Appleby. The applicant said that he had used the passage of the interior stairway to gain access from the first floor to the basement. However, Mr Sukkar and Mr Appleby both said that that stairwell was blocked by form-work. The applicant said that there was no access, by ladder whereas Sukkar, Appleby and Fardi all gave evidence that the access to the upper floor was gained by a ladder, though Fardi did not know where this ladder was situated. Such were some of the inconsistencies which were identified by the first respondents in challenging the story as told by Pilch. The incident of August 1995 34. Pilch gave evidence (and it seemed to me that his memory on some points was very clear, despite his admission to a doctor that his memory of the events was not crystal clear, that doctor being Dr Beer, when he saw him in October 1997, two years after the incident) that it had been raining; that he had begun work at about 8.30; that an incident had occurred after lunch (though I should note that lunch often occurred quite early in the construction industry, at 12 noon or sometimes even before - depending on the weather), that he had slipped down stairs; he had been taken home by a friend; that his boss, Czyz, had been present, and that he was pretty sure he had seen Dr Bartos the next day. This evidence was supported by Czyz, his employer who was also his friend, who had known him in Poland and who had been in the bricklaying business for 15 years. Czyz said that he was not sure of the day but that there had been a bit of rain in the morning. He said that his friend, Pilch, had slipped down the stairs, and that the stairway had been partly blocked by planks. He described an opening of about one-and-a-half metre, and said that the form workers usually do not want to cut the plywood sheets and that therefore they overlap it. He said that the steps had been uneven because they were formed up with form-work. He said that Pilch had told him he had hurt himself but that he, Czyz, had not taken it seriously. He had driven him home about 2 pm. He said that on that same day it had been raining, but not continuously, and that there had been work to be done on the first floor in the morning. 35. In answer to questions from Mr Morris, Czyz had said that Monier Sukkar had not been on site on the day but that Mrs Sukkar had been there in the morning because she had opened the site. 36. The applicant's narrative was also supported by Semak who was a friend and a flatmate of Pilch. They had travelled to work together on that day, as they had done regularly, and, he said, sometime at the end of August, Pilch had injured himself at work. He had not seen the incident, though he had heard a noise, some kind of rumble. He thought someone had fallen off the staircase. He said that his employer, Czyz, had been present and that he had seen Pilch on the ground floor and been told by him that he had slipped and fallen on the staircase. Semak had driven Pilch to work on that same day, but he had gone home alone, and when he arrived home, he had found Pilch already there. 37. This was the evidence of an accident on site at Hurstville in August - whatever the date. 38. However, the evidence of the respondents was that the accident as described was impossible because there was no gap in the floor to go down. This observation was supported by Monier Sukkar and by Appleby. Furthermore, evidence was forthcoming that access to the first floor had been by ladder, that the area had been locked and secured and therefore no one could be present where the development was taking place unless either Mr or Mrs Monier were on site. I will return later to the evidence for and against the incident on site. 39. I turn to the evidence that the incident occurred on Monday, 21 August. 40. There seems to be no direct explicit evidence of such an occurrence on this day - though I was invited to draw this conclusion from a number of facts: firstly, that Mrs Sukkar was present on site on her own, and that some work was done on site on that day since she said (and told her husband by telephone) that the workers had left at 11.30. The diary entry recording what had taken place on that day was completed by Monier Sukkar the next day, though he himself had not been present on 21 to witness what had taken place. The diary entries are very brief, and there is no entry of any walkout at 11.30. So Zena Sukkar was relying on her memory for this event, and her husband relying on his memory of what he was told of that event on the telephone. Maybe it was raining on 21 August. There is no record or any evidence either way. The only record available is that it was raining somewhat on the next day. 41. There was still plenty of work to be completed, it would seem, even without the windows. From the diaries I can conclude that work had been carried out from Wednesday 23 August to Saturday 26 August, and there is no note of the delivery of the windows to site which would have enabled such work to have continued. Czyz said that Monier Sukkar had not been on site when the incident occurred, and that his wife had been there alone. This would indicate that it was on Monday 21 August that the incident had occurred. However, as against that date, Pilch said that Monier Sukkar had been present. He told Dr Bartos when he saw him on 23rd, that he had been injured on 22nd. He had written the date himself on the WorkCover certificate, and in any event, Mrs Sukkar had been present on the 21st and denied that she knew of any incident occurring. I am not persuaded that any incident occurred on site on Monday 21 August. The evidence, in my estimation, does not point to that direction. 42. What is the evidence that an incident occurred on Tuesday 22 August? 43. There is evidence that it was raining on that particular day. Dr Bartos recorded on Wednesday that the injury had occurred on the day before (Exhibit 21). Pilch said that Monier Sukkar had been on site when the injury occurred, so that it could not have been Monday 21 August, and all the doctors, except one, record the incident as on 22 August. As against this conclusion, Fardi said that he had turned up at 2 o'clock on 22 August, that no-one was on site and the site was locked up. Pilch alleged that the injury had occurred after lunch. This would allow a period of, say, from 12 o'clock (or at the earliest 11.30) to 2 o'clock pm for the injury to have occurred, if Fardi's evidence is true. It was raining at least for some period on that day, and Monier said that there was no work on site, or at least he did not make any record of work. The diary does not contain any record of work on that particular day. He further claimed that there were no windows available for installation and that he needed the windows to continue the work, though, as I have already noted, there was plenty of work done from Wednesday through to Saturday 23 to 26 August, without any record of the windows turning up. 44. This is not (to state the obvious) an easy claim to resolve. I am required to accept the evidence of Pilch and reject that of Monier Sukkar, his wife and his witnesses, or to accept Monier Sukkar and reject Pilcher's story, supported by his witnesses, as to how he was injured on site at Hurstville. On balance, I prefer the evidence of Pilch, namely, that the injury occurred on site on Tuesday 22 August 1995 and I prefer his narrative for these reasons. 45. Firstly, it seemed to me that Pilch did not seek to say more than he could remember. There were areas of vagueness and uncertainty in his evidence which seemed to give it the ring of truth. From the very beginning, he provided a consistent story to the doctors but one which was never embellished or overlaid with detail. His evidence was given in a simple, straightforward manner, and without hesitation. Furthermore, I was impressed by the evidence of his employer Czyz, who seemed to me to be careful in what he said. There were impressive areas of doubt and uncertainty in his evidence - for example, as to which of the interior staircases was being used. He did not seem to be constructing his evidence. There were also impressive areas of dispute between what he had to say and what Pilch remembered, so that I concluded that they had not conspired to construct a common story. 46. Furthermore, their evidence was supported by Semak - albeit a Polish friend of long standing of the other two - but he too seemed thoughtful and careful. I gain no sense of a deliberate construction of evidence, of any falsification. He answered all questions without hesitation and did not appear to be constructing what he said had happened. I considered that Sukkar and his wife had little, if any, clear, independent memory of the days in question. It seemed to me that they had constructed their evidence from the diaries, not with the intent of falsifying it, but relying almost entirely on the work diaries to construct what had taken place. And those diaries were incomplete. 47. There also seemed to me also to be a tendency by Sukkar to construct his evidence on the basis of his experience, his usual practice, rather than on the basis of a clear recollection of what had taken place on that particular day. I found him rather argumentative, careful to protect his position, with a tendency to act as his own advocate. He was a difficult witness to examine because he frequently talked over counsel, answering questions before the questions were complete. He seemed unwilling to admit the possibility of error, or of any lapse of memory, even though he was obviously reconstructing the events of 22 August from his diaries which were themselves incomplete. This was undoubtedly an element of personality in the way he went about giving his evidence, but even allowing for this, I should make these observations because they were matters I considered in coming to my conclusion. 48. I have concluded that Pilch was injured at work on site in August 1995 because he consulted his general practitioner and he ceased work . It seemed to me probable on the evidence that he was injured on 22 August 1995 since that was the date he nominated himself the next day to Dr Bartos, and the day which he recorded on the 24th as the day of his injury. Pilch was employed by the second respondent when he was injured because he was working for him, and him alone. The second respondent was contracted to work for the first respondents on their Hurstville site. They had been working there before 21 August, on 21 August for a short time, and after 21 August - though Pilch was not there from Wednesday 23rd. 49. There was no other evidence led of any other site on which these people were working around the same time. So it seems to be incontrovertible that Pilch was injured on the Hurstville site while employed by the second respondent in work for the first respondents, on Tuesday 22 August 1995. The incident of February 1997 50. Pilch said that he had begun working for the fourth respondent in January 1997 though it transpired that he had commenced on 1st February 1997. Exhibit 1 is a record (produced for the fourth respondent) setting out the days and times on which Pilch worked for him and it identifies 1st and 2nd February (though only for one hour on the 2nd February), 7th and 8th February, 15th, 17th, 18th and 19th February - working for 8 hours on that last day. Pilch said that he had been injured before lunch, that Semak had been present, that he had lifted a heavy floor centre and had injured his back. He consulted Dr Bartos on 21 February 1997. 51. Exhibit 14 contains a handwritten record for 21 February 1997 in which Dr Bartos wrote that the applicant had severe lower back pain with pain radiating into the right leg. He was unable to sit. Exhibit 15 is a WorkCover certificate completed by Dr Bartos on 21 February in which he described the applicant's condition as discogenic back pain with right sciatica which had occurred suddenly while lifting a brick. Counsel for the fourth respondent attempted to persuade me that because Dr Bartos had recorded that he had been lifting a brick, and because he had said to others that he had twisted while lifting a floor centre, I should not trust the evidence of Pilch and conclude on balance that an incident had not occurred, or at least that this event was simply a realisation that he could not perform the work and that he had ceased work on this occasion, but without any new injury. 52. The applicant's evidence was supported by Semak, and by a statement from Semak (Exhibit 18) which set out the details of what had occurred on that particular day. 53. Antoine Souma said in his evidence that the applicant had only performed limited work for him on 7 or 8 days from 1 February 1997, and Exhibit 1 supports this contention. He said that on Wednesday 19 February 1997, the applicant had ceased work and had not mentioned to him that something had happened. Later he had offered $500 to process a claim with the insurer. He said he had not known of the applicant's back problems (though the applicant said that he had told him) and that on 20 February he just did not turn up for work. Mr Souma said that he had asked his friend what had happened to Pilch and that Semak had told him that maybe he had been delayed. Souma then said to his friend that he should tell Pilch that he did not need him any more. Souma had concluded that Semak did not know anything about any accident. That is not supported by Exhibit 18 which is a statement of Semak, though undated. 54. Antoine Souma agreed that Pilch was doing bricklaying for him and that he had been using a floor centre. I found Mr Souma in giving his evidence rather defensive and agitated. He seemed to speak loudly and forcibly, and tended to be argumentative and somewhat confused. It was difficult at times to extract relevant evidence from what he was saying. 55. I am persuaded that an incident occurred on 19 February 1997 when the applicant was employed by the fourth respondent, and that this was not simply an incident in which Pilch realised that his back had been too compromised to work as a bricklayer. It was an incident in which the applicant's condition was significantly compromised. The Medical Evidence. 56. Pilch said that he now has pain in the back and right leg, that sometimes he is forced to limp to ease this pain. He said that after the first incident in August 1995, and before the second in February 1997, he had enrolled himself in some English courses but that he had had problems sitting for any length of time, that the course involved sitting for four and a half hours each day and he could not do that. He could sit for half an hour to an hour but he had problems walking after that. He could not lift more than 2 kg and was having consistent treatment from Dr Bartos, as can be seen from the clinical records. However, by January 1997, before the second incident, he said his back was much better than it had been in 1995, though he still had pain in his back and leg, he was able to do many more things than he had been doing, and had felt that he should start trying to work again. He said that the pain had not been constant in January 1997. Some days he had little pain, for about 3 days a week, and some days he had greater pain - about 4 days a week. However, he complains that at present he has pain most days. 57. Pilch is employed by J J O'K where he has been working since February 2000 as a bricklayer, though it is clear that this is work in which he should not be engaged. It is not suitable for him. He said that he knows one of the bosses at J J O'K and works for them two or three days every week, sometimes for a full day, sometimes half a day, though he cannot work on scaffold because of the pain, or for a whole week. By the end of any shift, he said, the pain in his back and leg has increased, but since he has a sympathetic, accommodating employer, he is able to do this bricklaying, but with restrictions. 58. Exhibit 9 is a report of lumbar sacral investigative procedure dated August 1995. It shows no evidence of vertebral disc pathology, or other lumbar sacral abnormality, no evidence of spondylosis or spondylothesis, or of a vertebral fracture or subluxation. 59. Exhibit 10 is a CAT scan report from September 1995 of a lumbar sacral area - again showing no evidence of any disc prolapse, nerve root abnormalities or degenerative changes at any level. The only other available investigative procedure report is dated 24 February 1997. It was an investigation ordered before 19 February (the date of the second incident), but carried out after the second incident. This is an MRI scan report which shows significant back problems. The L5-S1 intervertebral disc is desiccated and there is a posteriocentral disc protrusion. There is a small extruded disc fragment, right of midline, and displacing the right S1 nerve root sleeve. The fragment measures approximately 2 mm across. There is however, no intervertebral foraminal nerve root compression. 60. It is difficult to interpret the findings of the 24 February 1997 report, and more particularly to conclude whether the changes in the back condition pre-dated the injury of 19 February (since the MRI lumbar spine scan was ordered before that date) or whether they reflect what had taken place on 19 February. 61. Dr Giblin's report of February 2000 (Exhibit E) refers to a CT scan of 4 November 1998 which was seen by him and which showed significant material at the right side of the L5-S1. I do not know whether he was referring to the MRI of February 1997, but he was giving the wrong date and the wrong investigative procedure if he was. 62. Dr Bartos's reports and certificates are Exhibit 15, Exhibit 21 and Exhibit A, and his clinical notes, Exhibit 14. Exhibit A provides details (taken from the clinical notes) of treatment from August 1995 to October 1999, consistent treatment of a back condition. 63. Dr Ayscough (Exhibit G) examined Pilch in December 1995 and concluded that he had sustained a soft-tissue strain in the lumbar region, particularly the sacroiliac region bilaterally, since he had had a fall in extension. 64. Dr Conrad's report (Exhibit C) thought the applicant was fit for light duties only, duties not involving heavy lifting or repetitive bending. He did not believe he was able to do work as a bricklayer. He thought, as at March 1995, the applicant probably had some degree of disc prolapse. 65. Dr Giblin began his treatment in October 1995 - his reports are Exhibit E. He diagnosed a discogenic mechanical back pain and thought the applicant was suitable for light duties only. He examined him again in February 2000, and made assessments of losses and impairment to which I will come. 66. Dr Beer examined Pilch in October 1997, April and November 1998, and produced reports which are now Exhibit B. He had not improved over this period. He thought that the applicant had a disc lesion which was consistent with the nature of the injury, which in turn had occurred on 22 August 1995, and that he had aggravated his back condition in a further incident in February 1997. He said that Pilch had sustained a significant disc lesion as a result of the first injury, with a degree of referred sciatic pain to the leg. He felt that clinically, to explain the long history of pain in the back and referred pain in the leg, he had definitely sustained a disc rupture with a degree of annulus fibrosis. The latter injury of 19 February 1997 resulted in a herniation or greater extrusion of the disc content to result in the small herniation fragment seen in the MRI film. 67. Dr Ellis examined the applicant in February, May and October 1997, and again in January 2000. His reports are Exhibit D. At the beginning he assessed a soft tissue low lumbar spinal injury which, he thought, was probably a disc lesion. He recorded a history that in February 1997 Pilch had bent from the waist to pick up a floor support which weighed up to 80 kg: As he attempted to straighten he had a severe pain in his low back which he says was like the pain that he had previously but much worse and extended from his low back down to his right great toe. He had not had such a severe pain previously. 68. Dr Ellis thought that Pilch had a low lumbar intervertebral disc lesion at L5-S1, that he was fairly considerably disabled (more disabled than he had been on 3 February 1997), and that the increase of this disability was to be traced to the 19 February 1997 incident. It is difficult to quantify the degree of injury that he has sustained 19 February 1997 except that it put him materially closer to the position where he may have to choose to have a lumbar nerve spine decompression (laminectomy) and spinal fusion at least at L5-S1 level. 69. In his report of 22 October 1997 Dr Ellis thought that the primary and greatest injury to the intervertebral disc was certainly the incident of 22 August 1995, with a lesser aggravation occurring in 1997. 70. Dr Smith saw the applicant in May1997 (his report is Exhibit 14) and that he thought he did not need a spinal fusion, that a laminectomy might be in order. 71. Dr Edwards saw him in August 1996 (Exhibit 11) and concluded he was capable of returning to his usual duties as bricklayer. In a further report, he thought that the degenerative changes which were seen on the MRI were most likely of constitutional origin, although he did refer to an incident resulting in a disc fragment being extruded and thought that the incident of 21 February 1997 might have been responsible. 72. Dr Chapman's report is Exhibit 12 and arose from a consultation in April 1998. He thought that the two injuries had contributed equally to the applicant's condition and reported that there was no suggestion of any condition existing before the injury of August 1995. 73. Dr Winfield's report is Exhibit 19 and resulted from a consultation in September 1997 when, he said, there was little doubt that the problems which the applicant was experiencing at that time were the result of his lift at work. He thought it was not possible to be dogmatic as to whether the disc lesion had appeared in August 1995, or in February 1997, though the chances were, he thought, that he had caused some damage to the L5-S1 disc after the fall in August 1995. The Assessments 74. The assessments of the applicant's condition are as follows. Dr Conrad (in March 1995) assessed 25 per cent back impairment, and 20 per cent right leg loss. Dr Giblin in February 1996 assessed a 15 per cent back impairment, and in February 2000, 25 per cent back impairment and 7.5 right leg loss, apportioning between the two incidents on a 50/50 basis, and applying a discount, pursuant to s 68A for pre-existing condition, of 3 per cent of 25 per cent back impairment. 75. Dr Beer assessed, as at October 1997, 27 per cent back impairment, and 15 per cent right leg loss. Of the 27 per cent, he apportioned 12 per cent to the first injury and 15 per cent to the second, and of the right leg loss, he apportioned 5 per cent to the first injury and 10 per cent to the second. In April 1998 he varied his assessments. The back impairment rose to 32.5 per cent, and right leg loss of 20 per cent. He apportioned the back impairment between the two injuries, 15 per cent to the first and 17.5 to the second. A further assessment of Dr Beer is dated January 2000: 25 per cent back impairment, 10 per cent right leg loss; and of the back impairment, 10 per cent arose from the first injury and 15 from the second. 76. Dr Ellis also gave 3 assessments of the applicant's impairment and loss. In February 1997, 30 per cent back impairment, 20 per cent right leg loss, in October 1997, 35 per cent back impairment, 15 per cent right leg loss; and in January 2000, 35 per cent back impairment, 15 per cent right leg loss. In October 1997 he apportioned liability - two-thirds to the first injury; one-third to the second. 77. In August 1996 Dr Edwards found there was no back impairment. Dr Chapman, in April 1998, made no assessments, but apportioned liability 50/50. Dr Winfield, in September 1997, assessed 25 per cent back impairment and 10 per cent right leg loss, and apportioned liability - 90 per cent to the first injury and 10 per cent to the second. The Section 40 Figures 78. The applicant is presently working, doing brick laying for J J O'K two or three days a week, carrying out these duties since February 2000. With his condition, it seems to me, bricklaying is a very dangerous activity. It demands a lot of bending and lifting, twisting and moving, though he does have the benefit of a considerate employer who is a friend. However, I do not think he should be doing this work, but he is doing it and he receives an average of about $600 a week. His income varies between $480 and $720 per week. I have assessed his ability to earn at $600 per week on the basis that he is able to earn about $150 per day, four days a week. 79. I have concluded that the applicant was totally incapacitated after the second injury from 20 February 1997 for six months, until 19 August 1997, and that thereafter he was partially incapacitated. I note that Exhibit H asserts comparable weekly earnings, but for the injury, of about $1,200 per week, that is, if he worked five days a week. He often worked six or seven, and was earning about $240 per day, particularly when he was doing supervisory work as well as bricklaying. The evidence of the applicant supports what is alleged in Exhibit H, which is the applicant's wage schedule. 80. I note that the current weekly wage rate pursuant to s 42 of the Act, and as shown in Exhibit H, seems to be the award rate of $650 per week. Section 68A Deduction 81. Should a deduction be made from the assessments for a pre-existing condition? Some doctors thought there was no evidence of any pre-existing condition, though one doctor, Dr Giblin, said that of the 25 per cent back impairment, 3 per cent should be deducted for pre-existing conditions. 82. The applicant was engaged in heavy, consistent work before August 1995. He said that he had some back ache from time to time, which of course would be normal for any bricklayer who had a perfect back. It was heavy, straining work. 83. It does not seem to me that the applicant did have any prior condition which should be reflected in any deduction pursuant to s 68A. I propose not to make any deduction. Section 22 Apportionment 84. As to the apportionment between the first and second respondent on the one hand, and the fourth respondent on the other, it seems to me that the injury in August 1995 was a serious one, but that the applicant, on his own evidence, was improving after treatment and felt able to go back to some work (or at least felt that he wanted to try some work) from February 1997. He was returning to work after about an 18 months lay off. The incident of February 1997 had, and continues to have, serious consequences. 85. There is of course the question of the CT scan of 24 February 1997. This is a puzzle unable to be resolved, since it was ordered before the second incident and exposed after it - so I do not take this into consideration. I do, however, consider the apportionments given by Drs Giblin, Beer, Ellis, Chapman and Winfield and, doing the best I can, weighing the matter against the first injury and in favour of the second injury, and bearing in mind that both incidents were serious, it seems to me that a proper proportion would be 60 per cent to the first, 40 per cent to the second. I therefore make the following findings and award: 86. (1) Pilch was injured in the employ of the second respondent, in an incident on 22 August 1995, and sustained a further injury by way of aggravation to his back condition in the employ of the fourth respondent, on 19 February 1997. 87. (2) The applicant sustained an injury to his back affecting the use of the right leg. 88. (3) As at 22 August 1995, the first respondent was a principal pursuant to the provisions of s 20. 89. (4) The first and second respondents were at all material times uninsured. 90. (5) Pilch was totally incapacitated for work for six months from 20 February 1997, to 19 August 1997, and thereafter, was partially incapacitated for work and continues to be so partially incapacitated. 91. (6) The current weekly wage rate was $650 per week, pursuant to Exhibit H. 92. (7) The probable weekly earnings of the applicant but for the injury, had he continued to be employed in the same or some comparable employment, I assess at $1,200 per week. 93. (8) I assess the sum of $600 per week as the average weekly amount he is able to earn in some suitable employment, that is, in the general labour market reasonably accessible to him. 94. (9) The applicant has sustained a permanent impairment of his back which, having regard to the severity of the matter, bears to a most extreme case a proportion of 20 per cent, and he also has suffered a permanent loss of efficient use of his right leg, at or above the knee, of 10 per cent. 95. (10) The applicant's incapacity, his loss and impairment result, in the proper sense, from the incident of 19 February 1997. 96. (11) His incapacity, loss and impairment result partly from the injury of 22 August 1995, and partly from the incident of 19 February 1997, such that the provisions of s 22 invite an apportionment of 60 to 40 per cent. 97. I enter an award against the fourth respondent; from 20 February 1997 to 19 August 1997 in the sum of $650 per week, and from 20 August 1997 to date and continuing, in the sum of $256.40 per week as adjusted; I also enter an award, pursuant to s 66, against the fourth respondent, in the sum of $19,500. 98. Having regard to the degree of pain and suffering and the severity of the loss and permanent impairment, and to the maximum amount to be awarded in the most extreme case, I award, pursuant to s 67, again against the fourth respondent, the sum of $17,500. 99. I order the fourth respondent to pay the medical expenses pursuant to s 60, and the applicant's costs. 100. I apportion costs on a 50/50 basis between the first and second respondent on the one hand, and the fourth respondent on the other. 101. I certify an advice on evidence, and a second conference in the sum of $500. 102. I grant leave to mention. Mr M J Gollan instructed by R J Rimes (Solicitor) appeared for the applicant Mr B Morris instructed by Benjamin & Khoury (Solicitors) appeared for the 1st respondent Mr A J Candy instructed by William Clinton -WorkCover Authority (Solicitors) appeared for the 2nd respondent Mr L G Morgan instructed by Moray & Agnew (Solicitors) appeared for the 4th respondent