New South Wales Supreme Court CITATION : LOLOMANAIA v. ROADS & TRAFFIC AUTHORITY [2000] NSWSC 412 revised - 19/07/2000 CURRENT JURISDICTION: Civil FILE NUMBER(S) : SC No. 11135 of 1990 HEARING DATE(S) : 20.7.99 - 30.7.99; 8.10.99 JUDGMENT DATE : 19 May 2000 PARTIES : KEPUELI TAUFUI LOLOMANAIA v. THE ROADS & TRAFFIC AUTHORITY OF NEW SOUTH WALES JUDGMENT OF : Greg James J at 1 COUNSEL : Plaintiff: J. Coombs, QC./W. Washington/P.J. Doherty Defendant: D. Nock, SC./S. Torrington SOLICITORS : Plaintiff: Bond & Bond Defendant: Hunt & Hunt CATCHWORDS : Common law damages - unsafe system of work - causation - common sense approach - differing medical evidence - application of principle in Papadopoulos v. NSW Insurance Ministerial Corporation [1999] NSWCA 116 - possible dissection of disabilities due to different accidents - effect of Workers Compensation award for later unrelated injury. LEGISLATION CITED : Workers Compensation Act 1926 Workers Compensation Act 1987 March v. Stramare Pty. Limited (1991) 171 CLR 506 Papadopoulos v. NSW Insurance Ministerial Corporation [1999] NSWCA 116 State Government Insurance Commission v. Oakley (1999) ATR 81-003 at 675 Watts v. Rake (1960) 108 CLR 158 Purkess v. Crittenden (1965) 114 CLR 164 Caltex Tanker Co. (Aust.) Pty. Limited v. Kerr [1999] NSWCA 115 CASES CITED : Franklins Self-Serve Pty. Limited v. Wyber [1999] NSWCA 390 Kessey v. Gollege [1999] NSWCA 424 Rogers (1994) 181 CLR 251 Van Raymer Pty. Limited t/as Bathurst Funeral & Cremation Services v. Higgins (1991) 24 NSWLR 661 Manser v. Spry (1994) 181 CLR 428 Thackham v. Kempsey District Hospital (1995) 36 NSWLR 492 Ipec Industries v. Dwight (Court of Appeal, unreported 23 October 1997) Tipper v. Williams (Court of Appeal, unreported 6 May 1994) DECISION : Judgment for the plaintiff IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION No. 11135 of 1990 GREG JAMES, J. FRIDAY 19 MAY 2000 KEPUELI TAUFUI LOLOMANAIA v. THE ROADS & TRAFFIC AUTHORITY OF NEW SOUTH WALES JUDGMENT 1 HIS HONOUR: The plaintiff, Kepueli Taufui Lolomanaia sues for damages for injuries said to have been sustained by him on 18 September 1986 when, in the course of his employment with the defendant, whilst with other workers, he was trying to couple a trailer to a truck, they let go of the trailer and he was left bearing the entire weight due to the inability to use the jockey wheel provided which had been, for some time, defective. 2 The action is brought by him against his employer, the Roads and Traffic Authority of New South Wales, with whose predecessor and then with whom he had been employed since 18 July 1983. 3 He was born on 26 November 1950 and is a native of Tonga. He has, for many years, been resident in Australia, having come to Australia in 1972. In Australia he had worked in various labouring capacities and as a storeman before working with the defendant as a labourer. 4 The plaintiff contends that the defendant negligently breached its duty of care for him as his employer, in particular, in respect of the provision of a safe system of work for connecting trailers to trucks and in respect of a provision for that purpose of a trailer which could be safely used. He also contends that the disabilities from which he now suffers were caused by that breach. 5 Although no admission of liability was made by the defendant, and all matters, except the employment by the defendant and the plaintiff as a labourer, were in issue, no other defences were specifically pleaded other than those arising by reason of payments under the Workers' Compensation Acts for which the defendant claimed the statutory defences provided under s.63(5) of the Workers' Compensation Act 1926 and pursuant to Schedule 6 Part 14, cl.1(2) of the Workers' Compensation Act 1987. 6 In particular, a defence of contributory negligence was not pleaded nor raised by the defendant during the course of the trial. Nor was liability seriously contested by the defendant which concedes that it is open to me to find that the plaintiff suffered such injury as was a consequence of the accident on that day as a result of the requiring of the employees of the defendant to carry out a lift that was excessive in the circumstances in consequence of the jockey wheel being defective. Liability 7 On the question of liability, the plaintiff gave evidence that he was working with a gang that started at 7.00 am of which Mr. McPherson was the leader. Other members of the gang included Michael Cogan and Alan Smith and may have included Sam Lowl, Claude Abdosark and another man called "Arthur". As part of their duties, they were coupling a trailer to a truck. 8 In the plaintiff's account, there were three and possibly four others engaged in lifting the trailer up. He was standing at the point of the trailer and crouching under the extended tray of the truck whilst lifting in a bent position. At the point where the beak of the trailer was about to be dropped onto the hook of the truck, he suddenly felt all of the weight of the trailer. It was this that caused his back problem. 9 The trailer was very heavy. The evidence suggests it weighed of the order of one and a half to two tonnes. It was so heavy that for safety's sake it required a jockey wheel to take the weight when the trailer was being coupled to a truck. For such a wheel to work effectively, it is necessary that it be capable of bearing the weight of the trailer. If it were working effectively, such a wheel would enable the trailer to be jacked up so that coupling can occur without those engaged in that task being at risk of having to bear the weight of the trailer. Exhibit A, a photograph of the trailer with jockey wheel similar to the type on the trailer provided, makes clear the utility of that wheel for that process. 10 Both the plaintiff and Mr. Cogan's evidence was that the jockey wheel on the trailer provided was defective and unable to bear the weight of the trailer. 11 The plaintiff gave evidence (t.14) that the jockey wheel on the trailer was broken and crooked, that is, it was not straight. Further, the plaintiff gave evidence the jockey wheel could not be wound up and accordingly was not functioning appropriately. The plaintiff said (t.16):- "Q. For how long had the jockey wheel on the trailer been in the broken and unserviceable condition? A. Around three, two, three months, four months. Q. During that two or three months, did you have a conversation with Mr. McPherson about the jockey wheel? A. Yes, correct. … Q. What did you say to him and what did he say? A. I mention to him the jockey wheel is broken and John, Mr. McPherson said, it'll be fixed one day." 12 His evidence of complaints and statements that it would be fixed was confirmed by the evidence of Mr. Cogan of complaints, injuries to other workmen, similarly occasioned, and statements that the issue of defective jockey wheels would be attended to. Mr. Cogan recalled not only that the jockey wheel was defective and only functioning to a limited extent but also that there had been other accidents to other employees over a period of three or four years in which probably "half a dozen blokes did their backs in". The plaintiff was giving evidence of his recollection of this particular event and was doing so in the context that he had been required to reiterate that recollection again and again over the years. 13 Notwithstanding, it appears from the evidence of the plaintiff and Mr. Cogan that at the time of the accident to the plaintiff, the issue of providing effective jockey wheels had not been attended to. Plainly the wheel provided was inadequate and unsafe. 14 In consequence of the ineffective jockey wheel, it was necessary for a system to be adopted, and the plaintiff was directed to adopt it, to lift the trailer manually with his fellow employees. Such a system, to be safe, required there be a co-ordination of the activities of the employees such that the weight of the trailer was only borne by each in such a way and in such proportion as to be safe. The plaintiff described what happened when he and his fellow employees were picking up the trailer thus:- "A. And we all bend down to the ground to lift it up. It almost have to come up to your - here. Q. A little above the waist? A. A little above the waist, to be level with the hook in the back of the truck and we turned it, we bring it up to the level and we start pushing forward to the truck and by the time it was very close to be hooked on to the truck, I was underneath the truck because the hook is right inside, underneath the truck and I was underneath the truck to hook it. HIS HONOUR: Indicating crouching. COOMBS Q: And leaning forward? A. Of course. It was underneath the truck to hook it on and finally I felt the weight was enormous. I can't really handle it, but the trouble, I was only about - Q. Pausing there a moment, you are leaning forward preparing to hook the beak to the truck? A. Correct. Q. And you said suddenly you felt all the weight, as it were? A. Correct. Q. And you could hardly handle it? A. I hardly handled it. Q. What happened next? A. It was only a couple of inches before I can hook it on. I really have to hook it on. I have to hang on to it to hook it on. In a matter of - if I let go the trailer, the roll on the trailer will cut my head off through the back of the truck. I have to hang on to put it on and I done that. Q. Whilst that was happening, did you notice anything about your back? A. I really don't feel nothing at that point. I was - my mind was all on the thing to be put on. Q. Focused on that, yes? A. On that and after that when it is on, when it was on I get hold of the truck and try to stand up and my eyes, I was a little bit dizzy and I really can't see anything. Q. Your eyes, 'I was a little bit dizzy and I couldn't see anything' is that what you said? A. Yes, sir. Q. Then what? A. I just went back a bit and leaned on - there was another trailer beside us. Q. Had you noticed anything about your back? A. In that point, I feel very stiff and very - something unusual in the back, but I didn't worry about it. All I was worried about, get hold of something, otherwise I fall down. When I back up and get hold of the trailer, I manage to sit down now. The boys ask me, 'Are you all right?'. I can hear that voice and I said, 'No' and then my eyes again come back and Michael Cogan was in front of me and he told me, 'Take it easy, I will go and get McPherson' and about a couple of minutes later, McPherson came over and he said to me, 'If you don't feel all right, you can go home' and by that time, my eyes, I can see well and I manage to get hold of the trailer and get up and walk around a bit and I said, 'No, I will stay on. If it happens - if it gets worse during the day, I will go home then'." 15 The plaintiff's evidence in this regard was tested, but hardly challenged in cross-examination. It was substantially corroborated by Mr. Cogan, although there were some understandable inconsistencies between the accounts having regard, in particular, to the time that has elapsed since the accident and before the evidence was given and that Mr. Cogan was apparently doing his best to recall the incident after many years. It, of course, did not have the same importance for him as it had for the plaintiff and it was quite a few years after the incident that he was first asked to recall the detail. 16 Mr. Cogan described the accident to the plaintiff in terms of his general recollection of the practice adopted for lifting the trailer to couple it with the truck and was not entirely sure as to the position in which each of his co-workers were during this proceeding. Although he did not accept, in cross-examination, that the plaintiff was crouched underneath the tray of the truck, he described the necessity for the workers to crouch when bearing the weight of the trailer. He also gave evidence consistent with the plaintiff's account of the plaintiff's initial complaint of back injury. 17 It was submitted that the plaintiff was inclined to exaggerate and dramatise the nature and effect of the injury and that the plaintiff should not be accepted when he contended that he took all of the weight of the trailer. This submission not only goes to general credit but also to the circumstances on which the medical opinions were based. I am, however, on the evidence of the plaintiff and Mr. Cogan, entirely persuaded that, for some short period of time whilst the plaintiff was crouching, whether under the tray of the truck or as described by Mr. Cogan, he did bear that entire weight. It follows that I do not regard the evidence of the plaintiff of the events of the accident, notwithstanding the extensive and detailed cross-examination of him, in particular as to what he said to various doctors, as showing that he has, in court, to any significant extent materially dramatised and exaggerated the events of the accident. 18 Insofar as Mr. Cogan's evidence differs from the plaintiff, it is merely in matters of detail and in those respects I prefer the evidence of the plaintiff. 19 The material matter is not whether the plaintiff was crouched under the tray of the truck, but whether, at the time he bore the weight of the trailer, he was crouched. As to this matter, both he and Mr. Cogan are in accord. 20 I conclude that the system of work, as the heavy trailer needed to be supplied with a jockey wheel and that jockey wheel needed to be effective, was unsafe in both these respects. 21 I find also that the communication system adopted as an expedient to cope with continuing to work with a trailer and jockey wheel which were unsafe was itself plainly inadequate. 22 I find that the plaintiff's work mates, as a result of the inadequate communications, let go without the connection having in fact been made and that the plaintiff, whilst crouching, whether under the tray of the truck or not, took the weight of the trailer suddenly but briefly and it was this sudden impact of force which occasioned the injury he then suffered to his back. 23 Thus I find that both the system of communication and the system for coupling were plainly and foreseeably unsafe. An accident such as the plaintiff suffered was, in the circumstances, entirely foreseeable as was the prospect of the injury thereby caused to the plaintiff's back. 24 I therefore conclude that the defendant is liable to the plaintiff for breach of the duty to which I have referred and is also liable for the casual act of negligence of the other workers in releasing the trailer without ensuring that connection had been made and for damages for the injury to the plaintiff's back thereby caused. 25 I turn to the question of damages. 26 The true contest related not so much to what disabilities the plaintiff suffers; he undoubtedly sustained the severe back damage to which the doctors and particularly Dr. Dan referred, but rather for what time he suffered them and to what cause they should be attributed; in particular whether the disabilities are due to an idiopathic condition of back degeneration; the damage sustained in the trailer incident, or when a road sign was lifted in 1987 and whether such damage as was sustained was no longer of significance in the light of the disabilities sustained in a car accident on 22 September 1989, which latter event gave rise to a workers compensation determination or that because of that event there should be a dissection of what disability was thereby occasioned so as to limit damages. Neither of these latter events is itself the subject of any common law claim. 27 The defendant contends that it was the lifting of the road sign that occasioned any trauma damage or that event aggravated a pre-existing degeneration so that damages otherwise to be awarded arising from the trailer lifting incident should be reduced. It contends that the plaintiff was either unaffected or suffering at most some minor degree of back strain prior to lifting the sign. 28 Decisions on these questions will affect not only the award of damages on the loss of earning capacity and pain and suffering, but insofar as events allowed for as a possible vicissitude of life have occurred would, so it is submitted, limit the damages that might otherwise be awarded. To resolve them, not only have I been provided with numerous and voluminous medical reports and records by the parties and oral evidence of the plaintiff and certain doctors, but also evidence of the proceedings in the Compensation Court and extensive oral and written submissions. 29 The evidence of the doctors was variously given by the tender of reports and orally. The parties agreed that neither the lack of cross-examination nor not calling a doctor except when requested was to be treated as disadvantaging a party. I was asked to treat all the evidence, written and oral alike similarly as to credit. The histories given by the plaintiff to the doctors were to be treated as evidence of the facts. 30 Although, as I have said, liability in itself was but little contested, the defendant did take issue with the plaintiff's version of events so as, in particular, to point to asserted discrepancies between the account given in evidence and those given in the histories given to various doctors. The various inconsistencies are said to be of relevance, not only in relation to the plaintiff's general credit, but also as to the nature and type of injury that the plaintiff experienced and when and how it was caused. 31 A valuable chronology, Exhibit E, was provided to me. It was not in dispute as a guide to the events. I will refer to some of the more important events of the plaintiff's complicated work history which is there set out in detail and which was substantially disputed. In addition, with reference to those events, I will refer to the plaintiff's evidence which I accept. 32 On 18 September 1986, following the injury to his back, the plaintiff stopped work at lunchtime and saw his local general practitioner, Dr. Kearns. The plaintiff attempted to work the following day, unsuccessfully, and after consulting Dr. Kearns, was off work for eight days. 33 Subsequently he returned to work and gave the following account of his ability to cope with work circumstances. "Q. Did you then return to work? A. Correct. Q. And what work did you do after you went back to work, your normal work or some other work, limited work? A. Normal work. Q. And how did you get on with that? A. Not very well, sir. Q. And were you able to do the full range of duties, everything you normally did, or were you limited? A. Limited, sir. Q. In what respects were you limited? A. I really can't use the jackpick and shovelling. I used to use shovel for a long time. I only done it for a short time and then I have to stand up. Q. What was the attitude of your work mates to the fact that you could not do all the work that you usually did? A. They were very helpful. Q. Then in December were you shovelling and did your back get very bad? A. Correct. Q. Tell his Honour about that? A. I was shovelling and the truck was too high up and I had to shovel - we all have to shovel up to the truck, but then I shovel for few minutes, then I feel dizzy and the back was so stiff. I was feeling so terrible and I was I feel ashamed to my work mates because I know that I am a passenger." 34 The plaintiff gave evidence that following the shovelling episode, he was off work for a period of three months. He then gave evidence of the further incident in 1987 when he had to lift the road sign. He said (t.24):- "Q. Can you come forward? There was a period in August that you were off work, but in 1987 did you have occasion to lift a road sign? A. Yes, sir, Q. Can you tell his Honour in what circumstances you came to lift the road sign? A. Sir, I was driving the truck back to the depot and I saw a sign in the middle of the road, so I stopped the truck to take the sign off the road and I hop off and lift the sign up to my chest here. When I got to the truck - HIS HONOUR: The witness is now indicating with both his hands at the upper level of the chest, a gesture he made when he said, 'I lifted the sign to my chest here'. COOMBS Q: Is that right? A. Yes, I walk up to the truck. When I lift the sign up to throw into the truck, it have to be higher than my shoulder and I feel a bit of pain in the back and dizziness in the eyes, so I throw the sign down and I call out for the boys - they were in the back of the truck - to help and by the time, two of them were already out, they saw me and they already out and they put the sign up. So I got in the truck and we go on." 35 After this incident, the plaintiff saw Dr. Harrison and Dr. Kearns and had periods of time off work. 36 During 1987 and 1988, the pattern of the plaintiff's employment was comprised of light duties, many periods off altogether (ranging from a few days to several weeks), physiotherapy from time to time, consultations with his general practitioner and various specialists. In 1987, he was medically examined on three occasions for the defendant's workers compensation insurer (Dr. Higgs on 2 April 1987 and 9 December 1987 and Dr. Clarence in October 1987). 37 In April 1988, Dr. Harrison manipulated his lumbar spine and injected cortisone and local anaesthetic. 38 Finally, on 15 June 1988, the defendant wrote to the plaintiff as follows (Exhibit F):- "Due to your absence on Workers Compensation from the original date of injury on 18 September 1986 and numerous attempts to return to work on selected or full duties, it has been decided reluctantly to terminate your service from 16 June 1988." 39 However, on 23 September 1988, he was reinstated into light duties and was continuing the earlier pattern of treatment and time off when he was assessed by occupational therapists (Joyce Verhey and David Tasker) whose reports are part of Exhibit J. 40 He said in March 1989 he had a recurrence of back pain which stopped him working. He was admitted to the Baulkham Hills Private Hospital by Dr. Harrison consequent upon this date. The plaintiff further gave evidence that he worked on and off during 1998 from time to time and in 1989 was assessed by Nexus Management Services Pty. Limited as part of a rehabilitation programme. 41 Being unable to perform even light labouring duties without losing considerable time from work, it was recommended that the plaintiff be redeployed into a clerical position. 42 David Tasker wrote to the rehabilitation co-ordinator of the Roads and Traffic Authority on 20 November 1989 in these terms:- "Following a discussion with yourself and Megan Vesey, I attended the Gore Hill Depot to perform an assessment of Mr. Lolomanaia's current duties with a view to these becoming his permanent task. Mr. Lolomanaia's functional capacity is described in the report from the Royal Ryde Occupational Rehabilitation Unit, 15 August 1989. This functional capacity is not consistent with his continuing classification as a labourer." 43 Mr. Tasker concluded his report as follows:- "RECOMMENDATIONS It is apparent that Mr. Lolomanaia's continued presence on the grass cutting crew as a labourer, is disruptive to the crew and that he is not performing at a reasonable level such as to warrant his retention in this position. His clinical condition is such that he will most likely continue to experience low back pain. He is at a very high risk of experiencing further trauma and/or substantial pain in the course of his duties. Mr. Lolomanaia has on a number of occasions expressed his desire to 'better himself'. This desire, coupled with his reduced functional capacity suggests that every attempt should be made to place him in a position which takes him out of the field into a clerical office environment. I understand you have been able to find suitable clerical duties. Skills testing reveals that Mr. Lolomanaia has the potential to perform a clerical task. It is recommended that appropriate duties be selected as soon as possible. In the meantime he should be able to continue performing his current duties. When suitable permanent duties are found for Mr. Lolomanaia it is recommended that he is aware that he is placed on a probationary period and his permanent placement will be based on his ability to perform, attitude and regular and reliable attendance at work." 44 The plaintiff continued in his evidence about performing duties with the defendant and the plaintiff stated he worked in a clerical job in December 1989, and continued in the clerical position or office assistant until about August 1993. Part of this work was as a records clerk. He was assisted by others who took the files out and returned the files to him, which he put away. During that time the plaintiff had a lot of days off which he attributed mostly to his back. The plaintiff said:- "Q. Were the days off for your back or were they for your shoulder? A. Mostly for my back." 45 The pattern of losing frequent periods of time due to back pain continued until 2 December 1994 when his employment was finally terminated in these terms:- "It is noted from recent medical and rehabilitation advice received at this office, confirmed by your treating medical practitioner, that you are unable to resume your normal duties as a maintenance labourer. Unfortunately, the Authority does not have available for you alternative duties and it is with reluctance that your services will be terminated from the Authority on 2 December 1994." 46 In November 1997, he underwent extensive surgery at the hands of Dr. Noel Dan. A protuberant L4/5 disc was removed, extensive neurolysis performed and bilateral BAK interbody cages were placed. While this has thus far diminished the plaintiff's pain considerably he will never be fit for work as a labourer. He has been unable to find any employment in a lighter capacity. The defendant, a large employer in itself, had similar difficulty in keeping him in light or clerical duties. 47 The plaintiff further gave evidence that he has sought employment since being terminated with the RTA and gave evidence that he applied to an unknown office at Rydalmere and was refused a job when he told them that he didn't have any references. 48 The plaintiff gave evidence that his lower back pain now is "very bad" and that it comes on from time to time with activities. The plaintiff does not get pain in his left leg since Dr. Dan's operation but there is numbness in his right leg from the knee to the ankle. 49 The plaintiff further stated that he would in his view in relation to employability, not be a competent word processor operator or computer operator. Further, he did not feel he would be able to bend or lift or carry any weights above 10 kilograms and that around the house at present, his son helps with the mowing while he, the plaintiff, still does some gardening. 50 The plaintiff gave evidence that he has embarked upon a course at the TAFE college in anticipation of becoming a jeweller and that he is doing all right with that course and it is his hope that he will be employed in that field. 51 The plaintiff had been employed during almost the entire period of his residence in Australia until the accident and the plaintiff gave evidence that thereafter when he returned to work he did so after about three months off and started duties doing light work, for example mowing the lawns. 52 Although his account was challenged in cross-examination, as to the latter stages of his employment with the work gang, I accept that he had been carried by his co-employees and had embarked on the lighter tasks to be performed by the team, including such tasks as mowing lawns. I find that he tried to cope as far as he could. I reach this finding not only because of my view of him as a witness, not only because of the evidence of Mr. Cogan, but also because of its general consistency with the views of those doctors whose evidence I prefer and to which I will later refer and the general consistency with the histories he gave to them. 53 The plaintiff gave evidence of the motor vehicle accident that he suffered on 22 September 1989. In that accident, the plaintiff told the court he suffered broken ribs and an injury to his shoulder, after colliding with the rear of a bus whilst travelling on his motor cycle. 54 That accident gave rise to an application by the plaintiff to the Compensation Court which was determined by her Honour Judge Quirk on 9 November 1998. That court made the following orders:- "1. That the respondent pay the applicant, as lump sum compensation under s.66, $10,000 in respect of 12.5% loss of use of the applicant's right arm at or above the elbow. 2. That the respondent pay the applicant, as lump sum compensation under s.67, $5,555.65 in respect of pain and suffering; $3,000 thereof to be apportioned in respect of past pain and suffering. 3. That the respondent pay the applicant interest on the said lump sum of $10,000 at the rate of 6% p.a. from 22 February 1997 to 9 November 1998 and on the said sum of $3,000 at the rate of 3% p.a. from 22 February 1997 to 9 November 1998. 4. That the respondent pay the applicant's s.60 expenses. 5. That the respondent pay the applicant's costs." 55 The transcript of the proceedings before her Honour was also in evidence and, in particular, my attention was drawn to portions of it on which the plaintiff was cross-examined in which it is suggested the plaintiff described his disabilities as, in substance, relevant to his shoulder injury rather than his back injury. Before me the plaintiff gave evidence, which I accept, that the operating and substantial cause of his disabilities, albeit he had attempted to work up to this time and his shoulder injury to some definite extent contributed to his total disabilities, was still the back condition. 56 The plaintiff concluded his evidence in chief by reminding the court that he still had problems with sexual relations with his wife and that he had defaulted in a credit union loan obtained after these proceedings in which he had forged his wife's signature in relation to certain documents. 57 Prior to the accident, the plaintiff was apparently a healthy, fit, strong person. He had earlier played Rugby with South Sydney Rugby Union Club at levels up to Reserve Grade. His evidence was that he worked out punching a bag a couple of times a week and played touch football with his young son. He was described by Mr. Cogan as a good worker, "young and strong and a good worker prior to the accident". He had engaged in extremely heavy work with the defendant, including jack pick work, shovelling and standard pick work. He was said to be "pretty fit". He is no longer able to do any of this. He is now of the view that he would not be a competent word processor or computer operator. He doesn't feel he would be able to bend or lift or carry any weights above 10 kilograms and effectively is unable to mow while he still retains some ability to do some gardening. He is now, and has been since shortly after the accident, permanently unfit for his pre-accident employment as a labourer, he having been carried by his work mates or on limited light duties and although he has some capacity for clerical work, since Dr. Dan's surgery, the obtaining of that work at his age is most unlikely. 58 I turn to the detail of the defence contentions. The defendant submits based on the medical evidence it tendered, and on the basis that the plaintiff's evidence before me is to be substantially discounted as materially at odds with the medical histories, that the plaintiff merely suffered a low back strain at the time of the lifting incident with no complaints of leg pain until after the occasion of lifting the sign to which I have referred, and that the plaintiff's involvement in the incident of 5 February 1987 was what caused his condition and the need for the subsequent operation by Dr. Dan. On behalf of the plaintiff it is put that there was no indication whatsoever of any degenerative back condition prior to the incident in respect of which the plaintiff sues and that there was every indication to the contrary. The defendant, on the other hand, contends that that incident merely produced a lumbar back strain and that if the plaintiff suffered injury in respect of his back, as alleged, then that injury was caused by some supervening incident and, in particular, the incident of February 1987. 59 The defendant submits the plaintiff has no corroboration for the fact that he experienced low back pain extending into his legs after the September 1986 incident. The court should not accept that the plaintiff suffered other than a low back strain at the time of the lifting incident with the trailer and should accept the histories of Dr. Kearns and Dr. Harrison that there was no complaint of leg pain until after the second incident of lifting the sign. 60 The defendant submits that this incident (ie., of February 1987) was of significant consequence and that it was causally related to the need for the subsequent operation by Dr. Dan. In contrast, the plaintiff submits that even if the lifting of the sign was involved in the plaintiff's subsequent medical condition, that what happened in February 1987 was causally linked to the negligent act which occurred in September 1986. 61 In addition, it is submitted that the workers compensation determination or the plaintiff's evidence in the hearing establishes that the plaintiff's damages, in the event that I am of the view that the plaintiff's compensable conditions continued so late in his life, should be in respect of a period terminating at about that time on the basis that it was the shoulder injury which rendered him unemployable or, alternatively, that the plaintiff's damages for a period beyond that time would need to be reduced to take into account that one of the exigencies of life had occurred and for that he has received some compensation. 62 The defendant contends that regard being had to the histories given by the plaintiff to the doctors as shown in their notes, and in particular the omission of reference to the February 1987 incident and some degree of inconsistency concerning the memory of the precise symptomatology of the plaintiff's condition immediately after the events of September 1986 and after lifting the sign, whether it occurred in February or in August 1987, was such when in particular, considered in the light of whether or not records existed of any complaint from time to time to particular doctors of leg pain, was such that the diagnoses and, in particular, those of Drs. Kearns, Donaldson and Harrison should be rejected. It is noted that Dr. Kearns, in the report of 8 June 1988, referred to a radiation of pain into the legs in the history obtained by him 16 months after the sign lifting and 21 months after the incident with the trailer. Dr. Kearns gave evidence that if the plaintiff had complained of leg pain when he first saw him he would have recorded it. He had seen Dr. Kearns following the accident. The absence of specific reference to leg pain in Dr. Donaldson's material is referred to and in Dr. Harrison's material, although specific reference is made to radiating pain down the backs of both legs on the occasion of the sign lifting, there is no such reference in relation to the account of the incident with the trailer. 63 Dr. Donaldson, interestingly, saw the plaintiff approximately one month after the sign lifting incident and Dr. Harrison was reporting in early 1989 as to events over two years earlier. It is contended by the defendant that the plaintiff has no corroboration for the fact that he experienced low back pain extending into his legs after the September 1986 incident. It is contended that I should regard the histories as being an adequate foundation to reject his evidence that he experienced low back pain and to find that there was no complaint of leg pain until after the second incident of lifting the sign. In particular, my attention was drawn to the views of Dr. Champion that the extension of pain into his legs was symptomatic of nerve root pressure caused by some form of disc injury. Dr. Champion was of the view that such a history increased the likelihood of organic pathology being confirmed by investigation and indicated the probability of there being a chronic, relatively disabling disorder which would then likely include referred pain to the lower limbs. 64 The doctor was asked to express his view upon the scenario of the initial accident succeeded by the sign lifting incident during which radiating pain down the back of both legs is experienced for the first time. That view was sought in the context of the concession that the doctor had earlier said that an initiating incident in September may weaken the back for other later incidents. The doctor pointed out that the histories, which did not include reference to earlier pain, could not be assumed to be entirely accurate. 65 There may have been an unrecorded complaint or, I add to what the doctor referred to, an incomplete appreciation or ability to distinguish or remember by the time the matters had come to be recounted to the individual doctor. Nonetheless, Dr. Champion, who looked at the first incident of the cause of the man's back condition, did concede that the sign lifting in those circumstances would be of real significance. However, both Dr. Champion, Dr. Dan (an associate professor of neurology who was the plaintiff's treating surgeon who operated on his back and who removed the protuberant disc) are directly of the view that the injury and disabilities of the plaintiff by way of back condition may be directly traced to the strain put on the plaintiff's back by the trailer and contributed most, of not all, to the pathology. Dr. Dan was of the view that the plaintiff's disabilities are directly due to that injury. Both doctors discount an idiopathic condition of degeneration and that the sign incident was other than an aggravation. 66 Dr. Donaldson's and Dr. Harrison's reports were also tendered. 67 Dr. Kearns, although treating the plaintiff throughout the entire period, had made only sparse, at best, and cryptic notes which he had some difficulty before me in deciphering and had understandable recollection difficulties after so many years. Dr. Kearns gave oral evidence and his reports were tendered in evidence. Dr. Kearns, in his report of 13 August 1991 said:- "Mr. Kepueli Lolomanaia has a chronic back problem related to 1991 showed bulging of the L4/5 disc on the left side as well as on the right side of the same disc. The specialist Dr. Christopher Needs and myself are of the opinion at this stage that the bulging of the disc is not causing nerve root compression at that level because of the absence of clinical signs. However, bulging at a disc at this level would indicate degenerative change. It is this degenerative change associated with his original injury which in my opinion is causing intermittent low back pain at that level. This pain is intermittent and if it is severe enough he mentions he cannot work with it and he is given a certificate accordingly. The certificate which usually is for one day and which I usually label 'back pain' could more appropriately be labelled 'lumbar back pain' due to degenerative disease resulting in disc bulge at L4/5 initiated by an accident at work on 18 September1986." 68 He also said:- "I believe that in view of the history and my findings on examination and subsequent investigation, that Mr. Lolomanaia's injuries are direct or related to his initial accident on 19 September 1986 and then subsequently on 5 February 1987 when he injured his back again lifting a sign." 69 There was evidence from Dr. Morris, Dr. Millions and Dr. Needs. The defendant particularly refers to the evidence of Dr. Morris. However the evidence was to a great extent dependent on the hypothesis the plaintiff suffered no radiating pain in the first incident. None of the doctors, including Dr. Morris and Dr. Millions can reject the possibility of the first incident being the cause of he disabilities and aggravated by the later incident. 70 The evidence of Dr. Morris and Dr. Needs advances two theses: first, that the whole of the plaintiff's condition is to be ascribed to an idiopathic condition of degeneration and, second, that of the two incidents, the sign incident is the primary one, in production of disability. Dr. Morris also advances the thesis that trauma cannot initiate or cause disc bulging, short of an actual prolapse or blow-out. In this last thesis, Dr. Morris is entirely out on his own, not even gaining the support of Dr. Millions. 71 This is to be contrasted with the evidence of Dr. Champion and Dr. Dan. As to the first thesis, Dr. Champion says that it is just an invalid thesis and extraordinary. He points to the lack of any evidence of degenerative process up to 1991. He said:- "Disc degeneration requires evidence of disc space narrowing, dehydration, which is a concept on MRI scans and/or bony reaction with osteophytosis. None of those three items were present in that description and furthermore, subsequent CT scans in 1991 were reported more correctly as showing no evidence of disc degeneration." 72 He said, further:- "Yes, but on evidence up until that time, there was no evidence of disc degeneration, certainly of a primary type. Of course, as a result of injury, including internal disc disruption and protrusion, the procession of disc degeneration generally follows, follows sometimes quite rapidly but there was no evidence on the images of primary disc degeneration. The only way there might have been up until 1991 is if an MRI scan had been performed, which it wasn't." 73 In re-examination, Dr. Champion was asked specifically about the importance of the two events:- "Q. The plaintiff in the company of other men was on the front bar of that trailer or a very similar trailer on the right-hand side and was left, as it were, holding the weight of it prior to it being connected up to its hook underneath the trailer of the truck, if you just assume that piece of information for a moment and assume that from that time the plaintiff had back pain in the lower back region, he required approximately a week off work after that incident, that he had never complained of any back pain to anybody before that incident and was carrying out a heavy labouring job with the RTA prior to that date, but thereafter when he returned to work after that week or so off, that he used to complain now and again of pain in his back and on a few occasions he appeared to be in a lot of pain? Would you also assume that in December of 1986 he required three days off work with a recurrence of back injury and that the sign that he lifted, if that be the case, was as described to you by Mr. Nock, one of those striped trestle type road signs? Are any of those matters of importance in your opinion in formation of what probably caused the disc injury that is evidence in the CT scan? A. Assuming those statements, the lifting incident involving the trailer more probably than not was the major source of the disorder to the present and the - and highly probably it contributed most, if not all to the pathology involving the L4/5 disc and L5/S1 disc." 74 Dr. Dan said in his second report of 8 June 1999:- "Mr. Lolomanaia's present disabilities are directly due to the work injury on 18 September 1986. I do not think that degenerative disease is responsible for his present symptoms or that they are due to other factors." 75 He was also asked in extenso about the two incidents:- "Q. I want to put some assumptions to you so as to ask you questions about how you arrived at that. First, would you look at Exhibit A which consists of two photographs of a trailer of at least the type that the plaintiff was required to lift on 18 September 1986 (shown). I ask you to assume the load that was placed on the truck tow coupling by the eye of the drawbar, with that type of trailer, was of the order of 70 to 90 kilograms but I also ask you to assume the force required to lift it would be well in excess of that load. I ask you to assume that three men, including the plaintiff, position themselves at the side of the forward section of the trailer with the intention of linking it to the bar on the truck. I ask you to assume that each of the three men crouched and leant forward to an angle of about 30 degrees and on the count of three or on ready, set go, the three of them lifted it. They then moved it forward with the intention of making the link. At that point the plaintiff used an expletive and complained of sudden pain in his back - your Honour will appreciate I put the Cogan version first; I will be putting the plaintiff's version next - I ask you to assume that after that event the plaintiff had eight or 10 days off work, that he attended his doctor and complained of severe low back pain. I ask you to assume that thereafter, for a period of perhaps two and a half to three months, he continued at work up until Christmas and that during that time he performed duties as a labourer but did not perform the heavy duties like jack picking and was carried by his workmates who protected him by requiring him only to do brooming and light work. He then took a Christmas holidays and after he returned to work continued to be carried up until an event which looks to be shortly prior to 5 February. I want to describe this second event to you. The plaintiff has told his Honour that he lifted a sign, a road sign which was described as not very heavy. That he lifted it to chest level without any problem. That then in an up-right position attempted to put the sign on to the truck by lifting it, he said, about his shoulders. At that point he felt a sudden pain in his back and felt dizzy. Both events prior to the CAT scan. Thereafter he has a significant period off work and when he returns he is put on light duties connected with a lawn mowing gang. Thereafter he does not do the heavy work of a maintenance labourer again. Now, my question, of those two events, the trailer lift and the sign lift, which is, on the balance of probabilities, the one which caused the damage to the disc and his subsequent disabilities? A. I think it is much more probable that is the initial event with the one lifting the trailer with a weight of 50 to 70 kilograms or thereabouts." 76 The same assumptions were put to Dr. Morris in cross-examination and he said, "Well, as put forward the answer of course is the first one". (Referring to the trailer incident). He assumes there was no leg pain below the knees until after the second incident as support for his thesis. 77 Although the defendant contends that the plaintiff "was inclined to exaggerate and dramatise the nature and effect of the injury" and has asserted that when regard is had to what the plaintiff said in the workers compensation proceedings, I should conclude that the plaintiff has had scant regard for the truth, I do not accept that contention. On a fair comparison of the two accounts, although there are minor inconsistencies and some minor incongruities, I do not consider the proposition established. The submission that I should conclude the plaintiff was untruthful in attributing a substantial effect to the shoulder injury rather than the back in his evidence in the Compensation Commission as supporting an asserted lack of credit such that in all the circumstances I should conclude it was the shoulder injury which was the effective cause of the disability and unemployability is not in my view to be accepted. 78 My appreciation of the plaintiff's credit with the advantage of the Compensation Commission transcript, the medical evidence of his condition (whatever the individual doctor might consider it to have been), the opinions of the genuineness of his complaints of pain held by the doctors, his evidence before me and his ability, bearing in mind his limited education, his cultural and social background, his long incapacitation, the age of the relevant events, the number of times he has had to recount and remember symptoms and his family circumstances, to cope with cross-examination is that he gave his evidence truthfully and, overall in material matters, reliably. I accept his account. I do not attribute to the plaintiff's asserted failures to mention radiating leg pain and failing to refer to his back condition when attending doctors dealing with his shoulder injury and his shoulder condition when dealing with doctors treating his back significant, bearing his personal circumstances in mind. 79 As to the medical evidence, it is sufficient for me to say that I prefer the evidence of Dr. Champion, Dr. Dan and Dr. Kearns to that of Dr. Morris, Dr. Needs and others relied on by the defendant. I consider that the views of Dr. Champion, Dr. Dan and Dr. Kearns on the cause of the disability not only reflect the history the plaintiff gave and his evidence but accord with what was observed by Dr. Dan. Their views do not appear to me shaken by the cross-examination. The views of those doctors relied on by the defendant appear to me to be based on assumptions there was no radiating leg pain or there was a pre-existing back degeneration not relevantly aggravated by the accident. These assumptions I reject. 80 I need to be persuaded on the probabilities of the causative effect of the negligence found. The relevant test for establishing causation appears in March v. Stramare (E & M H) Pty. Limited (1991) 171 CLR 506 and in particular the passage at 515:- "The common law tradition is that what was the cause of a particular occurrence is a question of fact which 'must be determined by applying common sense to the facts of each particular case', in the words of Lord Reid: Stapley [1953] AC at 681. That proposition is supported by a long line of authority in the United Kingdom: Leyland Shipping Co. [1918] AC at 363, 369-370; Admiralty Commissioners v. S.S. Volute [1922] 1 AC 129 at 144; Yorkshire Dale Steamship Co. [1942] AC at 706; Alphacell Limited v. Woodward [1972] AC 824 at 847; McGhee v. National Coal Board [1973] 1 WLR at 5, 11; [1972] 3 All ER at 1011, 1017. It is supported also by this court's decision in Fitzgerald v. Penn (1954) 91 CLR 268. It is beyond question that in many situations the question whether Y is a consequence of X is a question of fact. And, prior to the introduction of the legislation providing for apportionment of liability, the need to identify what was the 'effective cause' of the relevant damage reinforced the notion that a question of causation was one of fact and, as such, to be resolved by the application of common sense." 81 In Papadopoulos v. New South Wales Insurance Ministerial Corporation [1999] NSWCA 116, that approach was exemplified in the acceptance on appeal of the "common sense" opinion. That court in that case illustrated the proper course to follow:- "… the ultimate question of causation, [which] depends upon the proper inference to be drawn from all material circumstances and is not, in this case as in many others, 'susceptible of scientific demonstration or proof" (cf. Malec v. J.C. Hutton Pty. Limited (1990) 169 CLR 638, 643. A consideration of all the circumstances, including the expert opinions which favour the trial judge's conclusion, leads us to the conclusion, not as a matter of science, but on the non-scientific, legal test, the balance of probabilities, that the appellant's cerebral palsy was contributed to by the collision in which his mother was injured. We think the statistical improbability of an unexplained cause combined with the actuality of the injuries to the appellant's mother is a sound support for such a conclusion." 82 I proceed similarly here. 83 Both in relation to the sign lifting incident and the car accident, the defendant drew my attention to what was said by Chief Justice Malcolm in State Government Insurance Commission v. Oakley (1999) ATR 81-003 at 675-677 where his Honour, in applying the criteria enunciated by the High Court in Watts v. Rake (1960) 108 CLR 158 and Purkess v. Crittenden (1965) 114 CLR 164 described three situations concerning the relevance of a subsequent injury: the first, where the further injury would not have occurred except for the effects of the prior injury in which case the added damage should be treated as caused by the original accident; the second, where the further injury results from a subsequent accident which would have occurred anyway but the damage is greater because of aggravation of the earlier injury, in which case, it remains relevantly causally related to that earlier injury; the third, referring to a situation where the further injury results from a subsequent accident which would have occurred anyway and which did not aggravate the earlier injury. (see Caltex Tanker Co. (Aust.) Pty. Limited v. Kerr [1999] NSWCA 115 at paras.29-30, 37). 84 In the last of these situations, his Honour held that the subsequent accident and the further injury should be regarded as causally independent. In such a circumstance, a dissection of the respective contributions to the total disability state should be made if possible but as to that and as to the principle underlying the application by his Honour of those decisions referred to by Mason, P. in Franklins Self-Serve Pty. Limited v. Wyber [1999] NSWCA 390 at para.24:- "It is to be remembered that the well-known principle discussed by Dixon, CJ. in Watts v. Rake (1960) 108 CLR 158 at 160 and in Purkess v. Crittenden (1965) 114 CLR 164 at 171 applied, casting upon the appellant the persuasive burden of untangling the impact of the later (non-tortious) injuries." 85 Similarly, also, in Kessey v. Gollege [1999] NSWCA 424 at para.63, Rolfe, AJA., with whom Sheller and Beazley, JA. agreed, referred to the necessity for the defendant to discharge the persuasive burden of untangling the impact of the later incident from what had resulted from the earlier. 86 I find that the cause of the plaintiff's disability was the lift on 19 September 1986 and that I am not persuaded that there was any relevant independent consequence of the sign lifting incident. I am firmly of the view that the trailer accident was the cause of the disability and that without those disabilities the comparatively minor burden put on the back by lifting the sign would not have been of any significance. In coming to that conclusion, I rely on a common sense appraisal of the two events, the evidence of the plaintiff as well as the evidence of the doctors, I have referred to. 87 I turn to the effect of the road accident and the Compensation Court order. 88 On 22 September 1989, as a consequence of colliding with a bus while riding a motor bike to work, the plaintiff suffered an injury to his shoulder and fractured his ribs. He attended Dr. Kearns. In 1996 he complained that his shoulder was much worse. He had been on selected duties at the time of the accident and had continued on light work thereafter, despite a chronic painful shoulder condition involving a chronic muscoligamentous injury with a small chip fracture of the humerus. I was invited by both parties to have regard to the findings or reasons of her Honour Judge Quirk as permitted under ss.91, 92, 93 and 129 of the Evidence Act 1995. 89 The defendant contends that the following matters are governed by the estoppel created by the Compensation Court judgments:- 1. The plaintiff suffered a permanent injury to his shoulder amounting to 12.5% loss of efficient use of his right arm at or above the elbow. 2. That the plaintiff suffered pain and suffering as a result of the injury. 3. That the plaintiff does have restrictions in such activities as lifting and carrying because of his arm injury. 90 The defendant contends those matters support a relevant issue estoppel which would support the conclusion that the shoulder injury superseded that to the back as causing the substance of the plaintiff's eventual disabilities and particularly his loss of earning capacity. There is nothing in those findings which supports that contention as wide as it is. That doctrine concerns ultimate findings and not evidentiary facts but even considering the evidence before her Honour, I am not persuaded to reach a different view. In those circumstances, it is probably not necessary for me to examine the estoppel and its effect at law extensively. The translation of the concepts of the Workers Compensation regime to a common law claim in negligence for damages often presents grave difficulties if it is at all appropriate. To the principles in the authorities to which I was referred by counsel I add the consideration of the nature of an issue estoppel or res judicata by the High Court in Rogers v. The Queen (1994) 181 CLR 251 which limits the effect of the doctrines to those issues or that res which are ultimate conclusions and which are necessarily common to the pieces of litigation. 91 I accept that this was a separate injury within the Oakey principle and that the plaintiff was to an extent incapacitated for lifting and carrying by reason of the shoulder injury. I do not accept that the effect of that injury was such as to significantly disable the plaintiff in the absence of the back condition particularly because the plaintiff continued to work long after the shoulder injury and did not complain of it growing worse until some considerable time after terminating his employment. All the medical evidence referred to in the defendant's submissions that the shoulder injury caused unemployment was given in the context of a recognition the substantial problem was that to the back. 92 I accept the valuable written submissions on this aspect provided by counsel for the plaintiff. In my view the continued deterioration with time of the plaintiff's back was the significant and substantial cause of his loss of earning capacity and at most of his disabilities. 93 The defendant submitted that the evidence of Mr. Dodd established that the plaintiff would have been entitled to weekly payments of compensation in respect of injury to the shoulder. His report and his estimate of those payments is set out in his report as an amount of $150 per week. The plaintiff has also received payments under ss.66 and 67 pursuant to the award of Judge Quirk in the sum of $10,0000 and $5,555.56 respectively. 94 The reference to Mr. Dodd's calculations is to what appears in his counsel's advice, admitted in evidence on the application for me to decide the issues without a jury and provided to me on the trial to show the basis and extent of the dissection that might need to be made. 95 The defendant says as a matter of law it is entitled to have the future and past entitlement of workers compensation of the plaintiff taken into account. The basis for this argument arises from a series of decisions of the Court of Appeal and the High Court commencing with Van Raymer Pty. Limited t/as Bathurst Funeral & Cremation Services v. Higgins (1991) 24 NSWLR 661 and continuing with Manser v. Spry (1994) 181 CLR 428; Thackham v. Kempsey District Hospital (1995) 36 NSWLR 492. The matter has been further referred to in Ipec Industries v. Dwight (Court of Appeal, unreported 23 October 1997). In Manser v. Spry (supra), the High Court held that compensation benefits paid or payable under the Act were ordinary incidents of a workers compensation which must be taken into account in assessing the damages of a plaintiff/employee for loss and damage for which a tortfeasor was liable at common law. 96 The defendant contends that the net amount of compensation liable to be paid to the plaintiff must be considered pursuant to the decision of the Court of Appeal in Tipper v. Williams (Court of Appeal, unreported 6 May 1994). The effect of Tipper (supra) is to take the net payment of compensation likely to be awarded to the plaintiff by a compensation court and capitalise it in the same manner as the assessment of economic loss at common law, ie., to apply in this case the three percent tables to that figure. 97 It will therefore be necessary for the further question concerning whether an account must be taken of the value of the compensation for the shoulder injury as if it were part of the earnings the plaintiff would have received both in respect of past economic loss and in respect of the future to be agreed or determined. 98 I turn to the submissions as to particular heads of damage. It follows from my findings on causation that I reject the defendant's submission that past economic loss should be divided into three periods. 99 I have regard to the figures and rates which I understand were agreed between the parties, subject to my making the findings I do and would propose to award, subject to the reservation I later make, the following in respect of each head of damage as it was submitted. Out of pocket expenses 100 These are agreed at $38,846.64 and have been paid by the defendant through its Workers Compensation insurer. Past economic loss 101 It is agreed between the parties by reference to the earnings of comparable employees of the defendant that the difference between what the plaintiff has earned and what he would have earned had he continued normal work as a labourer is $191,912. 102 It is also agreed that the present net earnings of a comparable employee is $682.88 per week. 103 The defendant contends that the plaintiff ought not recover the whole of the past loss of $191,912 for two reasons, the first, relating to the sign incident of February 1987. The second submission by the defendant concerns the effect of the plaintiff's shoulder injury sustained on 11 September 1989. 104 I have already dealt with these matters. 105 In the result, the plaintiff is entitled to recover the whole of the agreed figure for past economic loss, namely $191,912. Fox v. Wood 106 The workers compensation payments made by the defendant include a portion of taxation on those payments. This figure is agreed in the sum of $12,850.86. This amount should be included in the plaintiff's damages. Loss of earning capacity 107 The plaintiff will turn 50 in November 2000. 108 He of course still possesses the capacity to do clerical work. I take into account that he is 50 years of age, that he has a long history of workers compensation, back pain and now nearly five years of unemployment. Realistically, the chance of him finding suitable employment is slim. But still the chance exists. To take account of that chance and in the context of the plaintiff's background, age and experience, the usual vicissitudes should be increased from 15% to 25%. To that I add a further five percent in respect of the shoulder injury as representing the actuality of occurrence of a matter which otherwise would have been taken into account as a vicissitude. 109 Thus, the assessment of economic loss in the future is as follows: $682.88 per week multiplied at three percent (16¼ years is 673.3) is $459,783 less 30% is $321,848. General damages 110 The plaintiff was aged 35 at the time of his injury. The physical effects upon him have been significant. For 11 years until the time of the surgery carried out by Dr. Dan, the plaintiff experienced pain on a daily basis, he was restricted in his normal activities. He underwent a variety of treatments including physiotherapy, injections and manipulations. 111 Despite the apparent success of Dr. Dan's surgery the plaintiff remains susceptible to exacerbations, he continues to require analgesia and Valium at night. Since the surgery, the plaintiff has experienced numbness in his right leg and some ongoing weakness. There is wasting of the right leg muscles. 112 The plaintiff's discs, above and below the fusion site, are at risk of progressive degenerative changes because of the extra pressure places on them as a result of the fusion at L4-5. 113 What the plaintiff now experiences will be permanent, with the only change possible being a gradual change for the worse. 114 However, it is not just the physical aspects that attract damages. The plaintiff has lost a considerable part of his self-esteem. Being the eldest child with a Tongan background the ability to work and provide for his family was very important to him. He has become irritable due to pain and impaired sleep, depressed on losing his job. 115 His relationship with his wife has, for some periods, been disrupted sufficiently to force separation. The plaintiff has back pain which he feels impedes the sexual relationship with his wife. While there has been some improvement following surgery, the plaintiff's limitations, loss of pride and unemployment continue. 116 It is noteworthy that these matters have already been with the plaintiff for 13½ years. He has a life expectancy of a further 31 years, a total of 45 years. 117 In the result, general damages should be assessed in the sum of $125,000. Interest on past general damages 118 The plaintiff's injury occurred almost 14 years ago. I ascribe 50% of general damages to the period to date. Thus $62,500 times two percent times 13½ is $16,875. Loss of superannuation benefits 119 On 1 July 1992, it became compulsory for employers to pay superannuation contributions on behalf of employers. The plaintiff's loss of these benefits to the present time totals $13,685 (to 30 August 1999). Currently the plaintiff is losing $85.38 per week in such payments from his employer. Capitalised to age 65 at three percent the plaintiff's loss of superannuation benefits in the future is $57,486 less 25%, the same discount for future economic loss gives a total of $43,114. Interest on past economic loss 120 Of the past loss of earnings totalling $191,912, the plaintiff has received workers compensation payments totalling $97,746 (total payments of $110,913 less tax of $13,167). While the period of the plaintiff's loss has totalled almost 13½ years, a majority has been incurred in the period since his termination in late 1994. For the purposes of calculating interest, the chosen rate and period is six percent of $94,166 for a period of seven years is $39,550. Domestic assistance 121 The particulars filed by the plaintiff claim past and future assistance of five hours per week housekeeping assistance and three hours per week handyman assistance. 122 This was the assessment of Dr. Stephen Buckley in his report of 23 November 1998. This assessment is based upon the Van Gervan principle which assumes for the purpose of the exercise that the plaintiff lives and will live alone. While the plaintiff remains more optimistic of his capacity than Dr. Buckley, there is no contrary opinion. 123 Applying the rates agreed between the parties for the period 18 September 1986 to 30 August 1999, this represents $46,777 in domestic assistance plus $33,784 in handyman/gardener assistance. Plus allowing for the further nine months to judgment at $516 per month, which produces a total of $85,205. 124 The plaintiff has 32 years of life remaining. At three percent this represents $97,182 in housekeeping assistance and $58,309 in handyman assistance, undiscounted. However, the effect of the shoulder injury is not immaterial to this claim and consistently for that reason I apply a discount of five percent, the total being $147,716.45. Future treatment 125 While the results of surgery have been pleasing, the plaintiff requires ongoing medication and medical supervision. With the possible deterioration of the discs either side of the surgical site the future remains cloudy. A general allowance in the vicinity of $10 per week seems appropriate. Capitalised at three percent this is $10,798 which should be rounded to $10,000. Summary of damages 1. Out of pocket expenses $38,846.64 2. Past economic loss $191,912.00 3. Fox v. Wood $12,850.86 4. Loss of earning capacity $321,848.00 5. General damages $125,000.00 6. Interest on general damages $16,875.00 7. Superannuation losses $43,114.00 8. Interest on past economic loss $39,550.00 9. Future domestic assistance $147,716.45 10. Past domestic assistance $85,205.00 11. Future treatment $10,000.00 ____________ $1,032,917.90 ___________ 126 From this must be deducted the total workers compensation payments paid of $112,013 and out of pocket expenses paid of $38,848.64 resulting in a sum of $150,861.64. It will be necessary to ascertain such amount as is necessary to meet the application of the Manser v. Spry principle, whether there will be an effect on the figures appropriate to the heads of damage I have set out and whether some interest question arises. 127 In addition, I will afford the parties the opportunity to be heard on the accuracy of the figures and calculations to the intent that the amounts allowed are agreed conformably with these findings. 128 For those reasons I will re-list the matter on a date convenient. Last Modified: 09/26/2000 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.