New South Wales Supreme Court CITATION : Harrison v Melhem & Anor (No 1) [2006] NSWSC 1258 HEARING DATE(S) : 18, 19, 20, 23, 24, & 25 October 2006 JUDGMENT DATE : 24 November 2006 JURISDICTION : Common Law Division JUDGMENT OF : Associate Justice Harrison DECISION : (1) The matter is stood over to 29 November 2006 at 9.30 am for orders. CATCHWORDS : Personal Injury: liability - damages - lifting, back injury LEGISLATION CITED : Civil Liability Act 2002 (NSW) - ss 15C, 16 Workers Compensation Act 1987 (NSW) - s 151Z Cook v Cook (1986) 162 CLR 376 Forstaff Blacktown Pty Limited v Brimac Pty Limited & Anor [2005] NSWCA 423 Froom v Butcher [1976] QB 286 Grljak v Trivan Constructions Pty Limited (Unreported, NSWSC 4 June 1993) Jaensch v Coffey (1984) 155 CLR 549 at 581 CASES CITED : Pennington v Norris (1956) 96 CLR 10 State of NSW v Lepore (2003) 212 CLR 511 Stevens v Bodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 at 50 Sullivan v Gordon (1999) 47 NSWLR 319 Swain v Waverley Municipal Council (2005) 220 CLR 517 (2005); 138 LGERA 50; (2005) 213 ALR 249; (2005) 79 ALJR 565 Van Gervan v Fenton (1992) 175 CLR 327 Wyong Shire Council v Shirt (1980) 146 CLR 40 Scott Beau Harrison - Plaintiff PARTIES : Jimmy Paul Melhem - First Defendant Melhem Civil Pty Ltd - Second Defendant FILE NUMBER(S) : SC 20159/2005 COUNSEL : Mr C T Barry QC with Mr M Boulton - Plaintiff Mr D Hooke - Defendants SOLICITORS : Michael Slattery - Plaintiff Ebsworth & Ebsworth - Defendants IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ASSOCIATE JUSTICE HARRISON FRIDAY, 24 NOVEMBER 2006 20159/2005 - SCOTT BEAU HARRISON v JIMMY PAUL MELHEM & ANOR JUDGMENT (Personal Injury: liability - damages - lifting, back injury) 1 HER HONOUR: The plaintiff seeks damages for personal injuries sustained when he was assisting the first defendant to lift the arm of a trailer. The defendants deny liability and plead contributory negligence and allege that the employer was partly responsible for the accident. 2 The plaintiff is Scott Beau Harrison. The first defendant is Jimmy Paul Melhem (Mr Melhem sometimes Jimmy). The second defendant is Melhem Civil Pty Ltd (Melhem Civil). The plaintiff was employed by Woollams Equipment & Plant Hire Pty Ltd (Woollams). Woollams is not a party to these proceedings. Background 3 Scott Harrison was born on 25 July 1974 and is currently 32 years of age. He left school after Year 10, having completed his school certificate and described himself as an average student. He enjoyed playing backyard cricket and football. He was physically active. On weekends he would help his father fix motor vehicles. After leaving school he was employed mainly as a Bricklayer's Labourer. He performed gabion work (stacking rocks in cages). He also did other forms of manual labour, such as working on a dairy farm, Trades' Assistant, Fireplace Installer and Building construction worker. Between 1995 and 1997 the plaintiff resided and worked in Adelaide in similar type of work. He broke up with a girlfriend and moved back with his parents. 4 Jodey Charlesworth, the plaintiff's girlfriend at the time of the accident, described the plaintiff's personality prior to the accident. This view accords with that of his parents and friends as being outgoing, always wanting to do things, very physical and a hard worker. He was very friendly and they had a good relationship. Prior to the accident they would go swimming, travelling, and do normal things boyfriends and girlfriends would do, like movies, dinners, parties and outings. (t 217.4-19). 5 Prior to the accident, the plaintiff decided that he did not want to do labouring-type work for the rest of his life. He decided that he wanted to operate plant equipment. To do so, he had to perform 200 hours on the machine, an excavator. The plaintiff had completed his 200 hours (see Ex C – Training Logbook) and was to undergo a test on the excavator on the weekend after his accident. The plaintiff was working with a son of Mr Woollam (Snr). He had planned to work for a few years in the mines at Kalgoorlie, Western Australia. Mr Woollam (Snr) saw the plaintiff operating an excavator at a building site and offered the plaintiff a job. 6 In February 1999 the plaintiff commenced employment with Woollams Earthmoving & Plant Hire Pty Limited (the employer and also Woollams) as a plant operator on a casual basis. He was paid $20.00 per hour. The plaintiff had and has an established drug habit, which I will refer to in more detail later in this judgment. 7 It is convenient that I record my observations of the plaintiff's demeanour. I observed the plaintiff carefully while he was being examined and cross examined. He ambulated with the use of a walking stick. He alternated his posture between gingerly sitting in the witness box and standing. From time to time he grimaced, shut his eyes, rubbed his lower back and rocked frontwards while leaning on his walking stick, changing hands from time to time and sometimes using both hands. Occasionally he sighed. This was the type of behaviour the plaintiff displayed in front of his family and friends and also when he attended medical appointments. 8 The plaintiff was not an accurate historian. Rather than refer to the inconsistencies in the plaintiff's evidence here, from time to time where necessary I shall make reference to them in this judgment. Due to the large number of inconsistencies, which were designed to portray him in the best possible light, I have reluctantly come to the conclusion that I should approach the plaintiff's evidence with caution. Where his evidence is corroborated by others I can comfortably accept his evidence as being accurate. Prior injuries 9 Prior to this accident, the plaintiff had been involved in four prior accidents. The plaintiff was vague about how many prior accidents he had been involved in and the nature of the injuries he suffered. On 18 January 1995 the plaintiff was a passenger in a motor vehicle when it was hit from behind. He was treated for a lump on the head and bruising by Dr Newton at Picton Medical Centre and was off work for two days. He had no ongoing disability (Ex 7). 10 In 1997 the plaintiff was working in Adelaide as a Bricklayer's labourer. He suffered aching muscles and shoulder pain but it was "nothing whatsoever". It was basically just around the shoulders down to the shoulder blades, into the arms a little bit. It did not extend below the shoulder blades (t 89.15-36). He was off work for about a week and had acupuncture (t 100.4-7). 11 On 16 September 1998, when he was employed by GSE Lining Technology Pty Ltd/Storm Constructions (the employer before Woollams) he was prefabing gabions when he felt a stabbing pain in the region of the left shoulder blade. The plaintiff gave evidence that this injury was a slight upper back injury. It was very minor and upon his return to work he was not under any restrictions and had recovered from the injury (t 6.10-22). However, the injuries where more serious than how they were initially portrayed by the plaintiff. In cross examination the plaintiff admitted he had chiropractic treatment, took painkillers and wore a surgical brace for some weeks (t 97). He was off work for one month and experienced "A Little Back Pain" (the Storm accident) (see - Employee's Claim, 22/09/1998 – Ex K). 12 The plaintiff said in evidence that he was not aware of having back pain in January 1998 when working for Storm. He said that he did not recall having written that he had back pain in January 1998 but, if he had written it, "There might have been a twitch here or there…" and "I might have written it down thinking it was related to the injury of 1998." The plaintiff stated that he has always been an honest person and if they had needed to hear something he would have written it down. He thought that he had written it down to basically state that it might have had something to do with it, but there was no injury that put him off work besides the one in September 1998. (t 99.21-100.1). The accident 13 The plaintiff had been employed by Woollams for about three months prior to the accident. He was employed as a plant operator on a casual basis. The plaintiff worked at various sites around Sydney. His duties were those involved in driving an excavator. The normal procedure was that his boss Ian Woollam would phone the plaintiff with details of a particular job. His boss would arrange for the excavator to be floated to and from the work site. At the conclusion of each job the plaintiff would complete job docket and drop them into Mr Woollam's residence. Those job dockets formed the basis of the plaintiff's wages. His wages were deposited into his bank account by his employer. 14 More specifically, the plaintiff was advised by his employer that he was to carry out a three day job at a site at Cromer commencing on 22 May 1999. At this time the plaintiff was an unlicensed Excavator Driver. His employer told him that the owner of the premises would give him instructions as to what had to be done. 15 On Saturday 22 May 1999 the plaintiff attended the first day of the job at Wabash Avenue, Cromer. The owners of the property were (and still are) Mr and Mrs Scopacasa. The plaintiff started work at about 7.00am. The excavator (a Komatsu PC150 excavator) had already been delivered to the site. Mr Scopacasa told the plaintiff that the job was to remove the verandah of the existing house, level out the front yard and remove the trees and rocks. Mr Scopacasa intended to build a duplex which would include the existing house on the site. The driveway was steep. 16 Mr Joseph Scopacasa and Jimmy Melhem were present on site throughout the day on which the accident occurred, which was either on 24 or 25 May 1999. As the employer's report of the accident refers to 25 May 1999, I accept that this was the actual day that the accident occurred. Mr Melhem was the driver of a Scandia Tipper Truck (the truck) with a dog trailer called a "Super Dog" attached. (See 4 photographs – Ex A). Exhibit A(1) – Super Dog Trailer 17 The plaintiff and Mr Melhem's version of how the accident occurred differ. It is common ground that both the plaintiff and Mr Melhem arrived at the work site at about 7.00am. Mr Scopacasa was present on site throughout that day. On arrival, Mr Melhem's evidence is that he tried to reverse the truck and trailer up the driveway but could not do so. Mr Melhem decided that he would only be able use the truck but not the trailer. He drove the truck and trailer to Heather Street, where he parked and disconnected the trailer at the side of the road. He left the trailer there. This procedure took about 30 minutes and he returned to the site. Mr Melhem's duties were to take the truck, when it had been loaded with rocks, rubble and materials from the demolition, to the tip. It was the excavator driver's job to put the discarded material into the back of the truck. On that day, prior to the accident, Mr Melhem had already made two to three trips to the tip. 18 The plaintiff gave an explanation as to how the truck and trailer became separated. According to the plaintiff, at about mid morning on the day of the accident, Mr Melhem and the plaintiff agreed that the trailer was holding up traffic so Mr Melhem decided to drop it off about 1 kilometre down the road. This inconsistency itself is not important, as it does not relate to events central to how the accident occurred, but it is just an example of one of many. The plaintiff's evidence is that he had lunch, together with Joe and Jimmy, on the site at Wabash Avenue. It is not Mr Melhem's recollection that they had lunch together. 19 The plaintiff described the accident as occurring in this way: "Just towards the end of lunch, me and Jimmy were sitting down having lunch and he said to me, you know, "How many loads do you reckon are left?" and I said, "There's roughly about two, maybe three". He's gone, "Well, I wondered if you wanted to give me a hand to hook my trailer back up and that way we will get the two loads out of the way and I'll be out of here early". I said, "Yeah, no worries mate, I'm with you", so we finished our lunch and hopped in the truck and headed towards where the trailer was. We got to where the trailer was, just down the road and, you know, pulled up. I hopped out and sort of guided him back towards the trailer. When it was close enough I signalled to stop…" (t 11.49-12.3) "He said "Not a problem". He said to me, "If you can give me a hand to hook my trailer up because the jockey wheel is broken", I said, "No worries, not a problem there". (t 12.22-25) "I've hopped out, I've guided him towards the trailer, as he was close enough I've stopped him, I've walked over to the jockey wheel to turn it to see if it was broken, you know, I'm not going to lift anything that doesn't need to be lifted, turned it about an inch to two inches either way. He then came to the back of the truck and he said, "All right, you lift from the front and I'll lift from the middle with one arm and I'll put a chock underneath with the other arm". I said to him, "Not a problem", you know, I positioned myself at the front of the dog trailer, I've lifted, you know, when he - when he gave the go-ahead, we both lifted, I took the brunt of it, and as soon as I got it to pretty much where we needed it, I just felt like a stabbing pain, agony, it felt like someone was putting a sword (later described as an "Excalibur" sword) in my back and up my backside, he said "Drop it", I said "No worries", dropped it. He's looked up. I've stood there just basically holding my back near on in tears, he's turned to me and said "Maybe you were on it", I said to him, "No, I don't think I got - I think I have done something to my back". He said, "Mate, I've never seen anyone's face turn so red in my life". I said, "Mate, I think I have done something to my back" and he said, "Mate, take your time, you know, we've got no rush to get back". At that time I realised that I have never felt this pain before. I said, "Mate, if we ever have to go to court over this you are my witness". He said, "No worries, not a problem". He's hooked the trailer up while I was trying to recover. I've crawled back into the truck, we've gone back to the site, I've walked up to the owner of the house and said to him, "Joe, you know, look, I don't think I will be able to finish the job 100 per cent". He said, "What's the problem?" and I said, "I've done something to my back, I just basically need to rest, relax" and he said, "Mate, if you want to sit down, sit down, you know, just take your time". I said, "No, I'll just stand here for a bit and try and get on with work and try and get it over and done with". At that time probably ten minutes had passed, I crawled into my excavator, tried to finish the job as much as possible, got the two or three loads out of the way, tried to tidy the yard up a bit and by that time probably one and a half hours to two hours had passed and I just couldn't continue any more so I've got out of the excavator, gone up to Joe and said, "I've done as much as I can, I am in too much agony, I have to go home". Joe said, "Mate, it looks good enough to me". Even though I was not satisfied, he was. I've packed up the machine, went up to Jimmy, said to him, you know, "What's the date? What's the time?" He gave me that. I've written it down in the docket book, got him to sign it and said, "Mate, I'm out of here" and basically put the excavator at the bottom of the drive and went on home." (t 12.34 - 13.33) 20 A very curious statement made by the plaintiff at this time, namely "If we ever have to go to court over this you are my witness." It turned out to be a prophetic one. 21 The plaintiff says that when he and Mr Melhem were lifting the trailer and Mr Melhem was putting the block of wood under the trailer with one hand, he felt excruciating pain because he took the weight of the trailer arm. (Statement para [12] – 29/09/2000 – Ex Q). The plaintiff gave evidence that Mr Melhem was in a squatting position prepared to lift with one hand and a piece of wood in the other (t 16.3-5). Later the plaintiff said that Jimmy was kneeling on one or both knees next to the draw rail and he was on the right side of the trailer. He denied that Jimmy was standing up. According to the plaintiff, Jimmy said "I have to slide timber under the arm of the draw bar with one hand." (t 58.36-38). The plaintiff denied that Jimmy said that while the draw bar was lifted he would kick the piece of timber under the leg stand with his right foot. The reason he gave for his denial was that, by doing it that way, it would have toppled the rest of the pieces of wood over (t 58.48-49). The plaintiff said that there were about three pieces of wood, maybe four, ranging from one inch to just over one inch in thickness, already under the standing leg. 22 The plaintiff denied that the trailer had a vertical bar (standing leg) attached to it but asserted that it was a jockey wheel with a ball on top of it (t 14.4-25). The plaintiff says that he tried to move the handle to make the wheel on the jockey wheel descend but it was stuck. It would only move about one or two inches in either direction. The plaintiff also referred to the mechanism as being a winch winding arm (Statement para [12] – 29/09/2000 - Ex Q). The plaintiff was aware that the trailer would be a bit of a weight but he thought that the two of them could lift it. He had not lifted a trailer before so he was relied upon Jimmy's knowledge. He had understood that it had been done that way before (t 14.54-57). It is common ground that the trailer had to be lifted about one inch or a little over and that the lift would occur at the count of three. 23 The plaintiff had, on a number of occasions, been given training as to the safe methods of lifting by other employers but not by his employer at the time of the accident. In the plaintiff's claim for compensation (Ex J) he stated that he was "…helping a bloke lift his trailer arm to put it on blocks and I must have lifted the wrong way." 24 Jimmy Melhem gave evidence and was cross examined. He had driven this particular truck on about 20 previous occasions. He had previously used the piece of wood to lift the trailer to attach it to the truck on about 10 occasions. Mr Melhem denied that there was a jockey wheel fitted to the draw bar of the trailer and to the best of his knowledge there had never been a jockey wheel on that truck nor any of his brother's trucks. There had always been a standing arm on this trailer. This particular super dog trailer was always attached to this particular truck. 25 Mr Melhem's version of how the accident occurred is as follows. On the way back from a delivery to the tip, Mr Melhem looked to see if he could connect his super dog to the truck but he noticed that the ground wasn't level and concluded that he would not be able to connect the truck to the trailer. The driver arms were an inch lower in the lips of the ringfeder (for photograph of ringfeder see Ex B). Just before the last load, Mr Melhem asked the plaintiff if he could give him a hand to connect his trailer to the back of his truck and the plaintiff agreed to do so. Mr Melhem knew that the trailer was heavy and conceded that it was a very heavy lift and that he would not have been able to lift the trailer by himself (t 327). 26 Mr Melhem waited for the plaintiff to finish what he was doing. They both climbed into the cabin of the truck and drove to where the super dog trailer was located. They climbed down from the cabin. Mr Melhem showed the plaintiff the problem. Mr Melhem said "I have to get a piece of wood so I can put it under the standing arm." He demonstrated how they were going to lift the draw arm together. Mr Melhem then said "On the count of three we will lift the draw arm together about an inch and I will push a piece of wood under the standing arm." He told the plaintiff that he was going to push the piece of wood under the standing arm with his right foot. 27 Mr Melhem then retrieved the piece of wood from behind the seat in the cabin. He placed the piece of wood on the ground just next to the standing arm. The plaintiff was standing on the right side looking back towards the trailer. (For actual position – see yellow sticker with the letter "P" next to it on photograph (1) – Ex A, reproduced earlier in this judgment). Mr Melhem was standing on the opposite side (roadside) halfway down the length of the draw arm. His right foot was facing the standing arm (See Ex A – yellow sticker with letter "J" on it). He had both hands on the draw bar, one either side of the standing arm. The plaintiff was directly opposite, across the draw bar. 28 Mr Melhem counted slowly to three and they lifted the draw bar together. Mr Melhem lifted fully while standing and he says that he took more than half the weight. Once the lift had taken place, Mr Melhem pushed the piece of wood under the standing arm with his right foot. They both then let go of the draw arm together. The draw bar had been lifted about an inch. After the piece of wood had been placed under the standing arm there was no downwards drop of the draw bar experienced by either the plaintiff or Mr Melhem. 29 After the lift had taken place, Mr Melhem reversed the truck to lock the trailer into the draw arm of the ringfeder. The plaintiff stood to one side. Mr Melhem climbed out of the cabin, connected the oil hose and the two air hoses to the trailer. Mr Melhem recalled that the plaintiff said to him "My back hurts." Mr Melhem said "Did you hurt your back now?" and the plaintiff replied "No. I have hurt my back before." Mr Melhem then climbed back into the cabin and drove the truck forwards and backwards to make sure the truck and trailer were locked. He secured the standing leg in a horizontal position by means of a chain. 30 The plaintiff climbed back up into the cabin. When they arrived back at Wabash Avenue the plaintiff climbed out of the cabin and walked up the steep driveway. Mr Melhem did not observe the plaintiff to be in pain or discomfort. Mr Melhem observed the plaintiff climb back into the excavator and operate it by loading the rubble into the truck and trailer, which was now parked in the front yard. 31 Mr Melhem agreed that about four years ago when he first became aware that there was a court case he said to his brother Fred, that the plaintiff had said to him on the day "My back hurts, I think its because I lifted the draw arm." (t 329.48-58). When asked about what his memory was like, Mr Melhem said his memory was "hopeless". Nevertheless, it is my view that his memory of events surrounding the accident was good. On occasions, he conceded that his recollection was incorrect and this concession was made against his own interest. While he was a bit vague when asked about his truck licence and the date when his brother had acquired this truck and trailer, overall I was impressed with his evidence. I accept and prefer Mr Melhem's evidence over that of the plaintiff. The plaintiff's explanation of the way the lift was conducted seem implausible. I also accept that it was more likely that the plaintiff said "My back hurts, I think it is because I lifted the draw arm." 32 Mr Joseph Scopacasa, the owner of the Wabash Avenue premises, gave evidence. He did not witness the accident. He had engaged Fred Melhem's company to carry out the excavating work at his property. Melhem Civil Pty Limited obtained the services of an excavator driver through the services of Ken Coles Excavations Pty Limited. Ken Coles referred the job to Woollams. Joseph Melhem, the truck driver, was Fred's brother and employed by the second defendant as a casual employee. Mr Scopacasa observed during a break that the plaintiff looked uncomfortable so he asked the plaintiff "Would you like to sit down?" The plaintiff replied "No. I hurt my back." Mr Scopacasa said "Did you hurt it here?" The plaintiff replied "No, no this definitely happened previously. I hurt my back previously on another job or another point, another time." (t 258.41-50). The plaintiff remained standing up. 33 According to Mr Scopacasa, the plaintiff continued normal work on the excavation and the job continued for another day. When the plaintiff left the job on the last day, Mr Scopacasa thanked him for his help. At that stage, the plaintiff did not seem to be in any pain, discomfort or under any restriction (t 259). He did not make any further complaint about his back and when he left the property, he was in good spirits. Mr Scopacasa's affidavit sworn 31 March 2003 is similar to his evidence given in Court (Ex 1). I accept Mr Scopacasa's evidence that the plaintiff said that he injured his back previously and I also accept that neither Mr Scopacasa nor Mr Melhem observed the plaintiff to be in discomfort while he completed his work. However, I accept that the plaintiff may have been in pain, which may not have been obvious to either Mr Scopacasa or Mr Melhem and that the plaintiff's back pain worsened over the next few days. 34 The registered owner of the super dog trailer at the time of the accident was Melhem Civil Pty Limited (Ex E). Mr Peter Leonard Smith, an Engineer, gave evidence. His involvement in this case is a minor one. Mr Smith provided an engineering certificate for the super dog trailer dated 10 June 1998, which was forwarded the RTA. The report relevantly stated that, due to the installation of the additional webbing it had been necessary to relocate the hinged hockey wheel rearwards by provision of a crossbar mounting fabricated from "m/steel bar (25 mm dia fully welded to both draw bar members)." (Exs E & S). Mr Smith, when undertaking the certification process, drew a sketch (Ex 3) which shows a support leg and labelled it as such. When asked about whether the description "support leg" described his observation as being that of a leg as opposed to a wheel, he agreed that it was a leg not a wheel (t 351.33). I accept the evidence of Mr Melhem and Mr Smith that the device that held the trailer up from the ground located in the middle of the draw bar was a support leg. It was not a jockey wheel. 35 The plaintiff says that he bore more of the load. Likewise, Mr Melhem said that he bore more of the load. Both statements cannot be correct. I accept that the lift was carried out in the manner that Mr Melhem said it was. When the lift took place, the plaintiff and Mr Melhem were in the positions outlined by Mr Melhem. While initially it is most likely that they both bore an equal amount of the load, when Mr Melhem had to take the weight off his right leg to kick the block of wood under the standing leg, it is more likely that this action shifted the load to the plaintif,f who took more than half the load while that was being done. I certainly do not accept that the plaintiff lifted the trailer unassisted. Nor do I accept that there were several pieces of wood already placed under the standing leg prior this lifting taking place. Liability 36 The defendants, who were not the plaintiff's employer, deny liability. Jimmy Melhem was a casual employee of Melhem Civil Pty Limited. As such Melhem Civil Pty Limited is vicariously responsible for the acts of Jimmy Melhem. 37 The particulars of negligence pleaded are (a) Causing or allowing the plaintiff to manually lift the arm of the trailer for hitching to the truck; (b) Using the trailer while it was defective; (c) Failing to properly maintain the trailer; (d) Failing to provide adequate assistance to the plaintiff in the lifting of the arm of the trailer; and (e) Failing to warn the plaintiff of the damages of manually lifting the trailer arm. 38 The defendant owed the plaintiff a duty of care to take reasonable steps to avoid a reasonably foreseeable and real risk of injury. What constitutes reasonable care is measured by the objective and impersonal standard of the reasonable man – see Cook v Cook (1986) 162 CLR 376. The risk of injury is both foreseeable and real if it is of a kind that would be sustained by a member of the class of which the plaintiff is a part and is not far-fetched or fanciful, irrespective of its likelihood as a probability. 39 The plaintiff bears the legal and evidentiary burden of establishing a prima facie case of negligence. To prove negligence, the plaintiff must be able to point to a reasonably practicable precaution or alternative course of conduct that could have avoided, or reduced the consequences of, the injury to the plaintiff. The plaintiff does not establish a prima facie case simply by asserting that there "must be" a practicable alternative and that it is for the defendant to provide evidence that no such alternative exists. The plaintiff must provide at least some evidence that the alternative is a practicable one which is open to the defendant – see Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47; Jaensch v Coffey (1984) 155 CLR 549 at 581; Stevens v Bodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 at 50; and Swain v Waverley Municipal Council (2005) 220 CLR 517 (2005); 138 LGERA 50; (2005) 213 ALR 249; (2005) 79 ALJR 565. 40 The plaintiff relied upon the report of Colin Simpson, Engineer, dated 5 March 2004 (Ex H). He was not called to give evidence. Mr Simpson inspected the super dog trailer and noted that the length of the draw bar was some 3.310mm and that the main framework appeared to have been constructed through the fabrication of 90 mm x 90 mm square RHS (rolled hollow section) steel (Ex H, pp 8-9). The actual weight of the draw bar eye as a lifting force through a distance of approximately 1" was measured. The vertical force was 119 kilograms (Ex H, p 9). That represented the force required to be applied vertically in order to lift the draw bar eye end of the dog trailer through in a distance of approximately one inch. 41 It was Mr Simpson's view that, unless there were major changes made to the trailer during the intervening period, then the force exerted by the plaintiff was approximately 119 kilograms. However, that opinion was based on the premise that it was the plaintiff alone who had lifted the trailer. But that is not the case. 42 As previously stated, I accept that the lift was carried out in the manner that Mr Melhem outlined. When the lift took place the plaintiff and Mr Melhem were in the positions outlined by Mr Melhem. While initially it is most likely that they both bore an equal amount of the load, when Mr Melhem had to take the weight off his right leg to kick the block of wood under the standing leg, the load shifted towards the plaintiff and it is more likely that the plaintiff took more than half the load while that was being done. 43 Mr Simpson continued that historically, it has been generally regarded throughout the industry that the maximum safe lifting and carrying weight within the range of 32 kilograms to 50 kilograms. However, since the early 1980's these weights have generally tended to be reduced from the 50 kilograms upper limit to no greater than about 40 kilograms (Ex H, p 10). It is my view that it was reasonably foreseeable that, to lift this heavy piece of equipment manually, the load would shift and there was a real risk that the person who took the heavier load would suffer injury to his back. In this case, it was the plaintiff who bore the heavier load when Mr Melhem lifted his right foot to push the piece of wood under the standing leg. That meant that, as the lift was slightly over one inch, the plaintiff would have borne a load of more than 60 kilograms. 44 It was Mr Simpson's view that the only realistic safe means of raising the draw bar eye would have been to carry out the task mechanically, ie, use a forklift or the bucket of an earthmoving device rather than attempt to carry out the task manually. Mr Simpson stated that the jockey wheel and/or prop would normally be positioned to hold the eye at such a height so as to allow the draw bar to feed automatically into the trailer coupling, as is the intent of the designer of the ringfeder type device. According to Mr Simpson, had the jockey wheel and/or prop been of the correct height, then the manual (or alternative mechanical) lifting of the draw bar would not have been necessary (Ex H, p 14). Mr Melhem had been required by his employer to make this lift together with another person on about 10 prior occasions when there was a difference in the height between the lower lips of the ringfeder and the driver arm. 45 It is my view that it was foreseeable that, if the plaintiff was required to lift a trailer and there would be a transfer of some of the load to him, which would make his portion of the load over 60 kilograms, he would suffer injury to his back. The manual lifting of this trailer was not an isolated occurrence. Similar lifts had been undertaken by Mr Melhem on at least 10 prior occasions. It is my view that there is a reasonable practicable alternative, namely a mechanical means of adjusting the height of the trailer such as by a jockey wheel in working order. Both defendants breached their duty of care to the plaintiff and were negligent. Contributory negligence 46 The plaintiff submitted that there should be no discount for contributory negligence. The defendant submitted that there should be apportionment of 1/3. In considering the question of apportionment, the Court is required to reduce the damages recoverable to such extent as the court thinks just and equitable having regard to the claimant's share in the responsibility for the damage - Pennington v Norris (1956) 96 CLR 10 at 16. The inquiry is not concerned with the cause of the accident but with the cause of damage – Froom v Butcher [1976] QB 286 at 292. 47 The defendants plead contributory negligence. The particulars are (i) Manually lifting the arm of the trailer for hitching to the truck; (ii) Using the trailer while it was defective; (iii) Failing to obtain adequate assistance in the lifting of the arm of the trailer; and (iv) Failing to take any proper care for his own safety. While I accept that the plaintiff stated in his employee's report of accident form that "I must of lifted the wrong way", the evidence of both Mr Melhem and the plaintiff establishes that the plaintiff lifted correctly. The plaintiff was entitled to rely upon Jimmy Melhem that they would both be able to lift the trailer. I do not apportion any contributory negligence to the plaintiff. Employer's liability under s 151Z 48 The plaintiff submitted that there should be no reduction under s 151Z Workers Compensation Act 1987 (NSW) because firstly, the task he was performing when injured was not part of his employment; and secondly, the task was performed off site. The defendant submitted firstly, that the employer's apportionment should be assessed as one-third; and secondly, that the plaintiff does not have a whole body impairment of 15% (on the United States tables). The defendant further submitted that is was the employer who was responsible for the accident because he did not adequately supervise the plaintiff who was at the time an unlicensed excavator driver and he had not given the plaintiff proper training in safe lifting methods. 49 Section 151Z provides: "Recovery against both employer and stranger (1) If the injury for which compensation is payable under this Act was caused under circumstances creating a liability in some person other than the worker's employer to pay damages in respect of the injury, the following provisions have effect: (a) the worker may take proceedings both against that person to recover damages and against any person liable to pay compensation under this Act for payment of that compensation, but is not entitled to retain both damages and compensation, (b) if the worker recovers firstly compensation and secondly those damages, the worker is liable to repay out of those damages the amount of compensation which a person has paid in respect of the worker's injury under this Act, and the worker is not entitled to any further compensation, (c) if the worker firstly recovers those damages the worker is not entitled to recover compensation under this Act, (d) if the worker has recovered compensation under this Act, the person by whom the compensation was paid is entitled to be indemnified by the person so liable to pay those damages (being an indemnity limited to the amount of those damages), (e) if any payment is made under the indemnity and, at the time of the payment, the worker has not obtained judgment for damages against the person paying under the indemnity, the payment is, to the extent of its amount, a defence to proceedings by the worker against that person for damages, (e1) if any payment is made under the indemnity and, at the time of the payment, the worker has obtained judgment for damages against the person paying under the indemnity (but judgment has not been satisfied), the payment, to the extent of its amount, satisfies the judgment, (f) all questions relating to matters arising under this section are, in default of agreement, to be settled by action or, with the consent of the parties, by the Commission. (2) If, in respect of an injury to a worker for which compensation is payable under this Act: (a) the worker takes or is entitled to take proceedings independently of this Act to recover damages from a person other than the worker's employer, and (b) the worker also takes or is entitled to take proceedings independently of this Act to recover damages from that employer, the following provisions have effect: (c) the damages that may be recovered from the person by the worker in proceedings referred to in paragraph (a) are to be reduced by the amount by which the contribution which the person would (but for this Part) be entitled to recover from the employer as a joint tortfeasor or otherwise exceeds the amount of the contribution recoverable, (d) the amount of the contribution that the person is entitled to recover from the employer as a joint tortfeasor or otherwise is to be determined as if the whole of the damages were assessed in accordance with provisions of Division 3 as to the award of damages, (e) if the worker does not take proceedings against that employer or does not accept satisfaction of the judgment against that employer, subsection (1) applies as if the worker had not been entitled to recover damages from that employer, except that: (i) if the compensation paid by that employer exceeds the amount of the contribution that could be recovered from that employer as a joint tortfeasor or otherwise—the indemnity referred to in subsection (1) (d) is for the amount of the excess only, and (ii) if the compensation paid by that employer does not exceed the amount of that contribution—subsection (1) (d) does not apply and the employer has, to the extent of the compensation so paid, a defence to an action for such a contribution. (3) This section applies to proceedings taken independently of this Act by a person to whom compensation is payable under this Act in respect of the death of a worker as a result of an injury. (4) If a worker is liable under subsection (1) (b) to repay any money out of damages recovered by the worker, the worker is not liable to repay the money out of any damages payable after the date of recovery by way of periodic or other payments for loss of future earnings or earning capacity or for future expenses. …" 50 In Grljak v Trivan Constructions Pty Limited (Unreported, NSWSC 4 June 1993) Cole J stated that the intention of the legislature was clear, it being that a worker can receive damages from a third party but such damages are reduced by the amount of any workers compensation entitlements. As between the third party and the employer (or his or her insurer) the third party must pay to the employer (or insurer) any workers compensation payments already paid by the employer – see also Forstaff Blacktown Pty Limited v Brimac Pty Limited & Anor [2005] NSWCA 423. 51 The employer's report of injury (Ex P) stated: "Scott assisted another person on job site to uncouple a trailer and put in on blocks. He told me he felt the pain then. This was not one of his duties. He was only helping another person not employed by us." [employer's emphasis] 52 Hence, it was the employer's view that the worker was doing a favour for another person and it was not his duty. 53 In State of NSW v Lepore (2003) 212 CLR 511 Gleeson CJ at [40]-[42] stated: "An employer is vicariously liable for a tort committed by an employee in the course of his or her employment. The limiting or controlling concept, course of employment, is sometimes referred to as scope of employment. Its aspects are functional, as well as geographical and temporal. Not everything that an employee does at work, or during working hours, is sufficiently connected with the duties and responsibilities of the employee to be regarded as within the scope of the employment. And the fact that wrongdoing occurs away from the workplace, or outside normal working hours, is not conclusive against liability. The antithesis of conduct in the course of employment is sometimes expressed by saying that the employee was "on a frolic of his own…." To point to a vivid example of conduct by an employee that is not in the course of employment is a useful method of elucidating the concept, but it may be of limited assistance in resolving difficult borderline cases. It is clear that if the wrongful act of an employee has been authorised by the employer, the employer will be liable. The difficulty relates to unauthorised acts. The best known formulation of the test to be applied is that in Salmond, Law of Torts in the first edition in 1907, and in later editions: an employer is liable even for unauthorised acts if they are so connected with authorised acts that they may be regarded as modes - although improper modes - of doing them, but the employer is not responsible if the unauthorised and wrongful act is not so connected with the authorised act as to be a mode of doing it, but is an independent act." [footnotes omitted] 54 The request to carry out the lift was not made by the plaintiff's employer. It was made by an employee of Melhem Civil Pty Limited. The request was to lift a trailer which was not located at the work site. The lifting of a trailer did not form part of the duties expected to be performed by the excavator operator. The lift was to be carried out in accordance with the directions of Jimmy Melhem. The employer was not appraised of the task to be carried out by either Jimmy Melhem or the plaintiff. It is my view that the accident occurred as a result of an independent act. Therefore, the employer is not liable to make any contribution. 55 The employer did not give evidence. The defendant submitted that a Jones v Dunkel inference should be drawn against the employer. The employer was not present when the accident occurred and it is debatable whether his evidence would have been of assistance to the plaintiff. It is also debatable whether the employer was in the plaintiff's camp, as it would have been in the employer's interest to give evidence against the plaintiff. For these reasons I would not draw a Jones v Dunkel inference. After the accident 56 At the end of the day (after the accident occurred) the plaintiff, after having the docket signed by Mr Melhem, drove home. He dropped off the docket to Mr Woollam (No 3580) on the way. According to the plaintiff, they had a conversation whereby the plaintiff informed Mr Woollam that he thought that he had done something to his back and was hoping that it was only muscular. He said "Can you give me a couple of days off?" Mr Woollam indicated that he might have some work for Thursday but nothing the next day, being Wednesday (t 20.6-10). 57 The plaintiff had Wednesday off work and rested. At this stage, the plaintiff thought that the injury was a muscular one, which would be better in a matter of days. On Wednesday night Mr Woollam asked the plaintiff to work the following day, Thursday. The plaintiff replied that he would see how he was in the morning and take it from there. On Thursday he reported for work at a job site at Westfield, Burwood. The pain was still there but it was bearable. He watched a video about safety on the work site and then completed that day's work. During the day the pain got worse. When he went home he had a lot of pain in his back. 58 On Friday the plaintiff reported for work at about 7.00am, again at the Burwood work site. At 8.00am he told the site supervisor that he was in too much pain and he would have to go home. The supervisor told him to go back to work. The plaintiff crawled back into his machine and completed another few hours while crying in pain. At 11.00am he went back to the site supervisor and said "Mate, look, I can't carry on." The supervisor told him that he wanted him [the plaintiff] the finish the job. The plaintiff packed up his machine and went home (t 21.39-48). 59 The plaintiff was unable to obtain an appointment with his general practitioner. Instead, he consulted Dr Khan at Tahmoor Medical Centre and she advised him to take some Panadeine Forte and referred him to a chiropractor. The plaintiff said that when the chiropractor touched him he screamed and that was the end of the appointment. The chiropractor gave him a few light exercises to try to help ease the pain and referred him to a physiotherapist. 60 On 31 May 1999 Dr Rajaratnam indicated that the plaintiff was suffering from a lower back injury but, as from 31 May 1999, the plaintiff was fit for light duties (but there should be no lifting or driving an excavator) (Ex 4). On 3 June 1999 Dr Khan issued a medical certificate, which indicated that the plaintiff was suffering from soft tissue injury and would be fit to resume pre-injury duties on 4 June 1999. 61 In the months after the accident the plaintiff noticed that he was getting very depressed and would say to his girlfriend that it was not worth going through the pain (t 24.50-51). He tried hydrotherapy and physiotherapy but, while they helped him get through the day, they did not help his condition in the longer term (t 25.54-26.2). The doctors changed his medication from time to time. 62 The plaintiff's mother, father, Jodey Charlesworth (his girlfriend at the time of the accident) and his friends Tony Digger, Jamie Haldane and Craig Scales gave evidence as to what the plaintiff was like before and after the accident. 63 Dennis John Harrison, the plaintiff's father, gave evidence and was cross examined. Prior to the accident the plaintiff had to make his bed, clean his room and put his clothes in the linen basket. He did not have to do his own laundry, as his mother did the washing. The plaintiff and his brother and sisters took turns mowing the lawn. The plaintiff also washed and polished the family cars and helped his father fixing up cars for friends and family. 64 Robyn Gale Harrison, the plaintiff's mother gave evidence that prior to the accident the plaintiff did not do anything much of a domestic nature around the house but that he helped out if he was asked. Mrs Harrison that prior to the accident the plaintiff was capable of doing his washing, hanging his washing out and cleaning. He was also capable of cooking the occasional meal, nothing fancy mainly meat and vegies. After the accident and as the plaintiff's back got worse, Mrs Harrison had to make his bed, change his bed and help him in an out of the shower. If the plaintiff was unable to get out of the shower Mr Harrison would help him to get out and make sure that he was all right afterwards. Mrs Harrison would give him back massages and rubs, massage his legs because they were always in pain. Each massage would take anywhere from half an hour to 45 minutes. The plaintiff's mother estimated that she spent a good two to three hours a day assisting her son. 65 Two weeks after the accident Jodey Charlesworth and the plaintiff rented a house on five acres of land just up the road from the plaintiff's parents. Only half an acre of the property was regularly maintained. Jodey worked as a kitchenhand/cook at a nursing home just up the road from where they lived. She would leave for work and come home and do everything, as the plaintiff was in bed all day. Basically she did all the household chores. She did the house cleaning, washing up, feedinf the animals (a dog, puppy and bird) and described herself as being more or less a nurse to the plaintiff. Jodey's shifts at the nursing home would vary. Sometimes she would start work at 6.00am and other times at 10.00am. She always had an hour lunch break. In her break she would drive home get food out for dinner, put the washing out or bring it in, and tidy up the house a bit so she did not have to do it when she got home, which was either at 3.00pm or 6.00pm depending on her shift (t 218.1-31). 66 Jodey started a garden, mowed the lawns, tried to keep the garden tidy, painted the sheds and barbeque to make it homely. The plaintiff did not do any outside chores. He would wash up the dishes and sometimes he would start dinner if Jodey had taken the meat out. (t 218.34-49). Jodey says that she did not spend much time performing outside chores, as she would rather go out with her friends. She estimated she spent two to three hours on the yard on the weekend (t 223.55-58). 67 Jodey also estimated that she spent about two hours a day assisting the plaintiff. She would massage him, was constantly getting heat pack) and ointments (Dencorub). She assisted him getting him in and out of the bath and to get in and out of bed. She had been taught how to lift properly at the nursing home. If the plaintiff was still in bed when Jodey left for work he would lever himself up using the bedside tables (t 220.32-56). Jodey says that if the plaintiff had not be injured she would have "made" him contribute to the domestic chores about half to one hour (t 224.16-31). 68 Both the plaintiff and Jodey gave evidence that after the accident their relationship went downhill. She was only 18 years old, working full time and looking after the plaintiff like a nurse. Their sexual relationship went out the window and she says it was just hell. The plaintiff said while they still had sex, it was painful for him due to his back (t 38.10-14). She was crying all of the time and she did not realise that this was affecting the plaintiff. She was trying to be strong and stay because she felt really sorry for him. She was "pretty blown out when he said 'I think you should go'…that's how the relationship ended." (t 218.53-219.1-5). Jodey still maintains a friendship with the plaintiff. The reason they broke up was because of his back and if he had not had his back injury they probably would have been married with kids by now (t 219.20-25). The plaintiff gave evidence and said that, when the relationship broke up, the plaintiff was crushed. He had been happy with Jodey who had a great attitude, decent looks and was there for him (t 37.58-38.3). 69 The plaintiff lived with Tony Digger for about a year and a half after the accident. The plaintiff and Mr Digger had worked together as labourers for Storm Constructions. He rated the plaintiff as a good worker who was able to do all the jobs they had to do and he (the plaintiff) just got in and did them. According to Mr Digger, the plaintiff did not appear to have any physical restrictions and he described his physical strength as being average. 70 After the accident Mr Digger described the plaintiff as being "demobilised". The plaintiff was laying down or sitting down all of the time and when he moved around it was "slow and uncomfortable like" (t 229.27-37). Mr Digger said that he performed most of the domestic chores, including cooking of meals and looking after the yard. He performed these chores, as it was his house and they were his responsibility. 71 Craig Allen Scales gave evidence that, prior to the accident the plaintiff was a hard working man who enjoyed having a drink, enjoyed a bit of sport such as footy, cricket and soccer and was very active and outgoing. After the plaintiff returned from Adelaide in early 2001 he moved into the house next door to Mr Scales. He shared with a friend, Andrew Davies, for approximately eight months. Mr Scales gave evidence that the plaintiff was not the same person and just lay in bed. Mr Scales' wife would do the plaintiff's washing, cooked him meals for him occasionally and gave assistance whenever he needed it. Later in cross examination, Mr Scales gave evidence that it was a matter of his wife saying "I'm just going to throw a load of washing on, do you want me to put something through for you?" and that she would offer to do the same for the other flatmate, Andrew. She would cook a meal and every now and then would say "Come on in for dinner". Scott and Andrew would invite them for a barbecue from time to time (t 204.35-57). 72 The plaintiff gave evidence that his current daily routine is that he gets himself up in the morning, tries to walk around as much as he can and do a few exercises. He gets out of bed for between an hour and a half and two hours and then returns to bed for a few hours. He gets up again. His evidence was that he loved a "good honest days hard work, to get home and relax." (t 39.8). Now its hard enough for him to sit down for half an hour. He can see himself watering plants with a hose at a nursery and that is about it. 73 Currently the plaintiff resides with his brother, niece and nephew. He can do the odd bit of washing up and put on a load of washing. His brother takes care of the lawn. The plaintiff still has back pain, which is very painful. He has good days and bad days, depending upon the weather and the activities of the day. He can sit for 15 to 20 minutes and then will stand up and walk around for 30 to 40 minutes and then sit down again. He is restricted in his ability to bend and lift. He can swim. He can drive. He has basic knowledge on how to use a computer. Medical evidence 74 There is a range of medical opinions expressed by the medical experts. These opinions vary from firstly, the plaintiff is fabricating his injuries and disabilities; secondly, that the plaintiff did sustain a back injury but is exaggerating the nature and extent of his injuries and disabilities (this exaggeration is either conscious or unconscious) and finally, that his complaints are genuine. 75 Towards the end of the trial, the defendant's Counsel obtained with a report of a Psychologist Mr Haralambous, which was furnished by the worker's compensation insurer's solicitor. The plaintiff gave a vastly different account of the extent of his drug use to Mr Haralambous. His drug use was far more extensive than the one that he had revealed to the other doctors who provided reports. Due to the late availability of this evidence, the doctors had already given their opinions on the basis that the plaintiff was a recreational type drug user. The plaintiff was offered the opportunity of an adjournment so he could obtain a psychologist's report to meet that of Mr Haralambous, but he declined the offer. However, it is debatable whether there would have been a forensic advantage in obtaining such a report, given that it was the history of the drug taking that was central to Mr Haralambous' opinion and when the plaintiff was cross examined he largely agreed with its contents, but applied a discount factor. 76 While the plaintiff's drug use had nothing to do with the accident occurring, it is relevant in terms of the plaintiff's past and future earning capacity and to the cause of his depression and pain. It is, of course, difficult for this Court, faced with medical opinions, particularly in relation to the cause and extent of the plaintiff's psychiatric condition, which are based on an incomplete history, to form an accurate view of the effect that the accident had upon the plaintiff's life. The Court will, of course, do the best that it can in these circumstances. 77 The plaintiff's Counsel submitted that had the accident not occurred, it is more likely that the plaintiff would have married his girlfriend, had a family and that these positive influences would have led him to give up his drug habit. According to the plaintiff's Counsel, because the plaintiff now has little to do with his life and has time on his hands, he has increased his drug usage. It is my view that the plaintiff, prior to the accident, had developed a serious and entrenched drug habit from 15 years of age onwards which would, on the balance of probabilities, not have abated upon marriage nor with the benefit of maturing years. 78 Aside from the plaintiff's psychiatric condition, the orthopaedic surgeons and rehabilitation doctors refer to the discrepancies between the results of clinical examinations and the expected prognosis with the type of injury he suffered. 79 The plaintiff relied on the reports of Dr J Sheey 4 August 1999, Dr T Kwong 30 August 1999, 19 October 1999 and 31 May 2000, Dr L Rozario 17 August 2000, Dr P Patel 25 August 2000, Dr N Newton 19 June 2001, Dr M Houang 18 July 2001, Dr N Dan 29 January 2002 (misdated 1 January 2001), 5 July 2001, 13 September 2001 (Ex 6) and 23 May 2002, Dr G Speldewinde 2 October 2002, and 17 February 2002, Dr G Murugesan 7 September 2001 and 10 October 2002, Dr R Rivett 14 February 2001 (2), 14 April 2002 (2) and 7 June 2002, Dr T Dean 3 July 2002 (2), Dr D Bornstein 11 July 2002, Professor Jones 30 June 2004, Dr A Evans 6 November 2003, Dr Kevin Bleasel 15 February 2005, Dr Guy Bashford 3 November 2005, Dr Noel Newton (and annexures) 7 November 2004 and 12 October 2006 and a report of Complete Domestic Care 16 October 2006. 80 The defendant relied on the reports of Dr Julian Parmegiani 8 March 2005, Dr Joan Chen 9 March 2005, Associate Professor P Spira 7 June 2004 and 1 October 2004, Dr J Matheson 15 June 2004, 19 July 2004 and 16 October 2006, Dr George Haralambous dated 21 August 2006, Dr Roger Pillemer dated 9 July 1999 and clinical notes of Tahmoor Medical Centre (Ex 8). 81 The orthopaedic opinion is that the plaintiff's lifting of the trailer caused his back injury at L4/5 level or alternatively, aggravated his pre-existing injury. Dr Evans believes that the plaintiff's current condition is related to the accident of 1999 and not to previous accidents but conceded that the diagnosis was difficult as there was very little doubt that the plaintiff exaggerates his problems. The reason he says for this is because the plaintiff was carrying out heavy work after the injury of 1998. Likewise, Dr Rivett, reported (report - 14/04/2002) a post-laminectomy lumbar disc lesion together with lumbar ligamentous strain with evidence of bilateral L4 persisting nerve root irritation, consistent with the lifting strain of May 1999. As Dr Evans and Dr Rivett are specialists in the area of orthopaedics, their opinion is confined to the plaintiff's back condition and not his psychiatric one. I accept that this accident caused or substantially contributed to the plaintiff's back injury L4/5 disc level. Treatment after the accident and operation 82 The plaintiff has undergone two MRI scans, the first on 4 August 1999 and one two years later on 18 July 2001. On 4 August 1999 Dr John Sheehy, Neurosurgeon, reported that the MRI scan did not suggest any compressive radiculopathy. He found a small tear of the disc annulus at the L4/5 level but found no evidence discreet encroachment on the neural structures. This is an accordance with the report of the radiologist Dr Adrian Gale who carried out the MRI scan. 83 On 18 July 2001 Dr Houang reported that an MRI scan showed that at the L4/5 level there was a moderate disc protrusion posteriorly in the central direction indenting the thecal sac and that the degree of protrusion was unchanged since the previous examination. Dr Noel Dan, after examining that MRI scan reported (29/01/2002) that, while the lesion was not a massive one, the plaintiff had had persistent symptoms for over two years and if anything the disc was slightly bigger with time. 84 On 9 August 2001 Dr Dan performed a L4/5 disc decompression upon the plaintiff at the Hills Private Hospital. Dr Dan reported that the hard protruding disc was readily removed and that the plaintiff showed improvement following surgery, notwithstanding that he did have residual defects and interference his ability to lead a normal life. The plaintiff's evidence is that after the operation there were two benefits. Firstly, it took away half of the pain and secondly, it took away the shooting pains from the legs. However, the plaintiff still had some residual pain described as diffused pain. Shortly after the operation, the plaintiff had a seizure and Dr Dan recorded (Ex 6 – 13/09/2001) that "[the plaintiff] had a level of Cannabinoids in his blood and it well may have been a withdrawal convulsion precipitated by the anaesthetic." 85 On 29 January 2001 Dr Dan reported (Ex 6) that, as a consequence of the ruptured disc, the plaintiff had a 15% permanent impairment of his back, a 5% permanent loss of efficient use of the left leg at or above the knee and a 7.5% loss of efficient use of the right leg at or above the knee. Dr Dan did not think that the plaintiff had a permanent loss of the efficient use of his sexual organs but rather he accepted that the plaintiff may experience pain during intercourse and that might continue for a period of time. Dr Dean supports the view that the plaintiff suffers from impaired sexual function due to his lower back disorders. 86 So far as the plaintiff's condition is concerned, it was Dr Dan's overall opinion that there has always been a significant functional component but he did not believe that he could exclude organic in total. Dr Dan was of the view that it was not uncommon for some degree of exaggeration with many people to be present. Mr Harrison was at the high end of the range, but he did not think this excluded organicity (t 75.9-16). So far as the nature and extent of the back injury is concerned, I accept and prefer Dr Dan because firstly, he gave evidence in a straightforward manner and secondly, he was the specialist who treated and operated upon the plaintiff's back. However, I acknowledge Dr Dan was not fully appraised of the plaintiff's true drug history when he gave his evidence. The plaintiff's history of non-prescribed drug consumption 87 While in March 2005 the plaintiff provided a partially accurate drug history to Dr Chen, a Consultant Physician in Occupational Medicine, in August 2006 he provided a more fulsome history of his substance abuse to Dr Haralambous. From these two reports and the cross examination of the plaintiff, the plaintiff's drug use is outlined below. 88 Mr George Haralambous, a Psychologist, described the plaintiff as being excessively pain focussed in his presentation. That is the same presentation as I have described earlier in this judgment. 89 At approximately 11 or 12 years of age the plaintiff commenced smoking cannabis but it was not until he was 15 years old that his smoking became heavy. At 15 years of age the plaintiff was smoking every day and every night and had taken "a bit of speed". At the age of 17 years he was admitted to Camden hospital for approximately three days following an overdose of car sickness tablets. He deliberately took these tablets to induce an hallucinatory experience. 90 From 20 to 23 years of age the plaintiff took LSD. Mr Haralambous reported that the plaintiff told him that he was taking LSD every weekend for six months straight to begin with. It then reached the point where he was seeing a psychiatrist after having been stuck inside thinking everyone was after him. He stated that he was "really fucked up" with amphetamines and the hallucinations started kicking in slowly. He experienced a sensitivity to stimulation and said that that he found it overwhelming to be in nightclubs which were "too full on". In cross examination the plaintiff denied feeling overwhelmed when he went to night clubs and gave an unusual explanation about the reference to the psychiatrist (t 252.50-253.9). 91 The plaintiff told Mr Haralambous that he consulted the psychiatrist about his LSD use on about four or five occasions, got out of him whatever he could then stopped treatment as he could not afford to continue with it. When asked about the consultation with the psychiatrist in Court, the plaintiff answered (t 253.11-32): "Q. I suggest to you that you told Mr Haralambous that you had been to see a psychiatrist for issues in relation to your LSD use on four or five times but couldn't afford to continue. Isn't that so? A. No, I just said that was my friend. HER HONOUR: Q. Sorry, that was a friend? A. Yes, your Honour. Me and a friend were taking it at the same time, so after the period of taking it she ended up seeing a psychiatrist. I stayed inside. Q. To tie it up, what you are saying is, the reference in that report is a reference to a friend going to the psychiatrist? A. Yes, I did say me and a friend were taking it and after the period she ended up seeing a psychiatrist. I locked myself basically in the house. Q. You locked yourself in the house? A. Basically stayed inside for a good month and half, maybe two months, to sort of get me head back together because of all that, yes." 92 This explanation, aside from being inconsistent with what was recorded by Mr Haralambous, is farfetched, to say the least, although it may now coincide with a period of nine months of unemployment (t 4). 93 The plaintiff told Mr Haralambous that his consumption of cannabis was still heavy, although he said that he had conveniently started to give up from the day prior to his appointment with Mr Haralambous. Prior to his appointment he was smoking on average 10 cones a day, if not more. However, when he was younger "it was full on all day every day". He said he cannot afford to smoke to the extent that he previously did. 94 In cross examination the plaintiff gave the following evidence (t 250.6-54): "Q. I suggest to you that what you told Mr Haralambous on 3 August this year was that until you started to give it up the day before, you were smoking ten cones a day roughly, if not more. Do you agree with that? A. I would agree with under ten a day but that's considered a lot, really. Q. It is a usage you consider light, is it? A. No, many people consider light. I have seen people sit there and smoke up to, like, 50, 60 cones a day and I am not overexaggerating there. Q. See, you told her Honour last week that you were smoking only up to two or three cones a day in recent years, didn't you? A. I did just say under ten, yes. Q. Your words to Mr Haralambous were, "ten cones a day roughly, if not more", I suggest to you? A. I disagree. Q. You told Mr Haralambous, I suggest to you, that until you were about 24 it was full-on, all day, every day, didn't you? A. It wouldn't have been up to 24, but I have never been full-on, all day, every day. Like, you can't smoke marijuana all day, every day for so many years and still be alive. And I am just stating the truth. Q. You told Mr Haralambous that, until you had given up the day before you saw him, I suggest to you that you generally had your first cone in the morning within about half an hour of getting out of bed. Isn't that so? A. No, it would be about an hour but no, I disagree the half hour. Q. And you said to Mr Haralambous, didn't you, that you had decided the day before the appointment with him to give it up, to just try and clear your mind around a few things, didn't you? A. Well, I can't say they would have been my exact words but if you do smoke marijuana at all, it is good to give up and it is one of the reasons is to clear your head, yes. Q. And you told Mr Haralambous that you had decided that it was time - and these again, I suggest, are your words - "to give it up for a while". That's so, isn't it? A. They might have been my words, yes." 95 The plaintiff reported to Dr Haralambous that, generally, he had his first cone to start the day off in the morning, within approximately 30 minutes of rising, after showering and getting himself sorted. He said then he just tinkers around. Apparently, as he told Mr Haralambous, his drug habit costs him nothing as he has "very good mates" who buy the cannabis for him. He had decided to abstain from cannabis on the day prior to his appointment to try to clear his mind and to give it up for a while, as he had sat back and thought that his use of cannabis was not helping him accomplish things. He stated that he was sure it was numbing his senses but then, inconsistently, described how with cannabis "your senses sharpen". The plaintiff reported snapping at his nephews and nieces at the littlest things, which he did not do when he was not using marijuana for a while. The longest period, since the age of 16 years, when the plaintiff has been without cannabis use was for approximately five months in or around 2003 or 2004, just before he met his last girlfriend. However, he said that as she was a regular user of cannabis, gradually he started smoking again. 96 The plaintiff reported that he takes a "little bit of speed here and there", adding that it helped to numb his pain. He said that taking speed was not an everyday occurrence and that he took it once a month at the most. He said the last time he had used it was approximately a month prior to his appointment with Mr Haralambous. He told the doctor that he never touched heroin and never would, as he had both a mate and girlfriend who had died from it. The plaintiff became teary when he mentioned his girlfriend, as she had been the one who followed him back to New South Wales from Adelaide. 97 The plaintiff gave evidence that he stopped taking drugs every now and then for a healthy break. He said "I can start it and stop it at the drop of a hat. I am not addicted to it. I never have been and I have proven that by stopping 4, maybe five times over the last ten years." (t 167.47-50). When asked "And every time you stop, you start again, don't you?" the plaintiff replied "Unfortunately, yes." (t 167.52-53). 98 The plaintiff gave evidence he told Dr Bashford that, since the accident, had had smoked marijuana from time to time. Also, that he had started to use marijuana a short period before the accident roughly on and off about three to four years, maybe a bit earlier, "full on" and he did not consider himself to be a heavy user. He told Dr Bashford that he probably smoked, on average, five days a week a couple of times a day, which he said was "nothing major". When he was younger he did experienced drugs such as speed and LSD (t 162.36-163.27). 99 The plaintiff reiterated that he always told the truth to his doctors about his drug use. Dr Chen recorded that the plaintiff told her that, before injuring his back, he smoked 10 to 30 cones of marijuana per day and that he often smoked at work and was often stoned at work. Dr Chen stated that the plaintiff told her that his employer condoned the use of drugs at work because, in his [the employer's] words, "A happy worker is a good worker." In Court, the plaintiff said that was the same with every job (t 165.52-57). The plaintiff denied he told Dr Chen that he smoked between 10 and 30 cones of marijuana a day prior to the accident, he said it was only about 15 to 20. (t 163.32-48). 100 In relation to the plaintiff's reference to being stoned at work, he sought to distance this statement from his last employer, Woollams, (although the transcript incorrectly referred to Melhems) by explaining in cross examination: "Q. And you told Dr Chen, didn't you, that your employer was aware of your drug use on the job and the fact that you were stoned at work on a regular basis didn't you? A. I was relating to Storm Constructions at that time. I said I never smoke with Melhems. I have smoked after work but never while at work. Q. You just said a moment ago that these answers you gave Dr Chen about drug use at work and being stoned at work were answers attributed to both your work at Storm Constructions and Melhem's didn't you? A. I did state that but I meant that she asked about both jobs leading up to as in labouring and moving on to Melhems." (t 164.52-165.7) 101 The plaintiff gave evidence that he did not smoke marijuana before he went to work on any of the days that he was working at the Cromer site. He said he only smoked after work and he was positive that he was not affected by marijuana at any stage while he was working a Cromer. While I do not necessarily believe the plaintiff, the evidence does not establish that the plaintiff was stoned on the day of the accident and even if he was, there is no evidence that being stoned contributed to or caused the accident. 102 While the plaintiff told Dr Chen that he was smoking 15 or 20 or even up to 40 cones a day, up until sometime in 2004, he had apparently cut down about a year before he saw her because a combination of alcohol, marijuana and medication had caused him to have one seizure. Not surprisingly, the plaintiff denied that he told Dr Chen that it was a combination of excessive marijuana and his medication that caused him to have seizures (t 166). 103 Dr Chen's view is that the plaintiff is physically capable of fulltime work, with the caution of restriction from heavy manual handling in view of the possible underlying discogenic back pain. Dr Chen considered that the plaintiff could continue to do light driving duties and also general and semi-sedentary work of a light nature, such as sales and retail work. For precautionary purposes, she would recommend restriction from heavy manual handling. According to Dr Chen, the plaintiff's prognosis is guarded due to his presentation of exaggerated pain and disability and his functional prognosis would ultimately depend upon his underlying motivation. 104 Mr Haralambous attributed the plaintiff's history of depression to his drug use. Mr Haralambous' opinion was that there appeared to be an associated history of depression for which the plaintiff had been treated with an anti-depressant medication. The plaintiff attributed his depression to the alleged injury of May 1999. However, from the information available before him, Mr Haralambous said that there was substantial pre-existing emotional and psychological disturbance, evidenced by the long-term history of substance abuse and risk taking behaviours. It was Mr Haralambous' opinion that the alleged injury of May 1999 did not cause the plaintiff's depression, or any other identifiable symptoms of a diagnosable psychological condition. 105 Mr Haralambous diagnosed the plaintiff as having a Substance Use Disorder with associated depression. He said that a more specific accuracy of diagnosis was clouded by the extent of substance abuse, which appeared to be substantial. Insofar as returning to work, from a psychological viewpoint, Mr Haralambous regarded that the most significant prognostic factor in this case, often associated with relational and vocational instability, is the chronic and pervasive history of drug abuse that long precedes the alleged circumstances of his employment and which has remained essentially untreated and unaddressed. Mr Haralambous was of the opinion that, from a psychological perspective there were no restrictions upon the plaintiff's capacity for employment for reasons arising from circumstances of his employment and any restriction that arose was from the plaintiff's long term and chronic history of drug abuse, which hinders rather than facilitates a return to work. 106 From the reports of Dr Chen and Mr Haralambous, it is clear that the plaintiff is and was a heavy drug user, both before and after the accident. Just prior to the accident he was smoking somewhere between 10 to 40 cones per day and on his own evidence, he had until recently been smoking up to 10 cones per day, but it was probably more. The plaintiff's depression was pre-existing and not caused by the accident in May 1999. The depression was more likely to be caused by his entrenched drug use. However, I accept that the accident may have caused his depression to worsen after the accident. The level of depression the plaintiff now suffers is not as severe as it was for some months after the accident. 107 If the plaintiff's account of pain is accepted and its cause is attributable to the accident, he is not fit for any sort of work. If the plaintiff is exaggerating or fabricating pain, then in my view, he is fit for light driving work, general and semi-sedentary work of a light nature such as sales and retail work. The next issue is to decide whether the plaintiff's portrayal of his pain is real, exaggerated or fabricated. 108 Dr Speldewinde, a Consultant in Rehabilitation, Pain and Musculoskeletal Medicine (report 2/10/2002) assessed the plaintiff with a Chronic Pain Disorder with associated anxiety and depression, related to the lumbar disc protrusion which caused sciatica. According to Dr Speldewinde, while lumbar disc protrusion was resolved with surgery, the plaintiff was left with chronic debilitating pain. On 17 February 2002 Dr Speldewinde referred to the plaintiff as having major depression and a severe lumbar chronic pain disorder. Dr Murugesan, a Consultant Psychiatrist, (reports 07/09/2001 and 10/10/2002) agreed that the plaintiff suffered from Chronic Pain and Adjustment Disorder with Depressed Mood due to the injury to his lower back. Dr Murugesan was of the opinion that the plaintiff's symptoms had improved slightly but he was still unable to lead a normal life and return to the work force and that his fitness for work depended on the physical condition of his back. 109 Dr Julian Parmegiani, Psychiatrist, reported (08/03/2005) that the plaintiff has undergone the appropriate psychological and psychiatric treatment and that additional treatment was unlikely to be beneficial. Dr Parmegiani opined that the plaintiff's Adjustment Disorder with Depressed Mood was caused by chronic pain and that the plaintiff would continue to adjust psychologically to his physical injuries and periods of depressed would lessen in frequency and magnitude over time. From a psychiatric perspective, according to Dr Parmegiani the plaintiff's symptoms did not preclude a return to pre-injury employment. These doctors were not called to give evidence and the extent of the plaintiff's drug use was not revealed to them. 110 Dr Noel Gerard Newton gave evidence and was crossed examined. Dr Newton has been the plaintiff's General Practitioner since 1995 and is located in Picton. Dr Newton agreed that the plaintiff is suffering from chronic pain and in his view the plaintiff is not malingering and is a genuine case. His opinion is based on his experience and after having read the specialists' reports, but he was not aware of the plaintiff's heavy use of drugs. Dr Newton's practice is in a predominantly mining area where he has a lot of chronic pain patients. In fact, he has "tons on [his] books – scores." Dr Newton based his definition of chronic pain as pain that goes over more than a period of three months, saying that the plaintiff's pain has been going on for more than six months (t 146). 111 Dr Bashford, a Pain Management Specialist, gave evidence and was cross examined. His evidence was the most favourable to the plaintiff. Dr Bashford explained that, on physical examination, the plaintiff had a definite evidence of what pain physicians referred to as allodynic and hyperalgesia and this was reflective of and was not an uncommon sequelae to surgery that where there is preceding pain such as the plaintiff's sciatica was due to central sensitization in the spinal cord and this pain was unrelated to MRI's or further radiological investigations (t 131.24-31). Dr Bashford's explanation for the plain was that it was related to spinal chord neutral processing problems and it was a common sequelae of painful surgery, particularly where there had been pain preceding that surgery, such as the radicular pain in the case of the plaintiff (t 131.34-37). When he was asked whether the pain that the plaintiff experiences is real enough he answered: "Yes, it is exactly the same. As far as the person's - what they are feeling at the brain level is exactly the same. They have done studies with brain imaging which show that pain that he complains of feels real. Just example of this is phantom pain and where a person who has had a body part removed and they will describe with exact accuracy the sensory problems they complain of not just pain, but pain as one aspect and it is real. It is just that it is not due any more to that outlying musculoskeletal pathology. In his case, I believe it was due to the surgery - it is not the surgeon's fault but that is a common complication of such surgery." (t 132.14-25) 112 Further, Dr Bashford, when provided with further information, was then asked (t 142.5-19): "Q. So if by a period of nine months post-operatively there were no leg pains, and the pain in the back and the buttock area had been reduced by 50 per cent, that would not be suggestive of a genuine spinal cord neural processing problem, would it? A. To me, I would be looking for something else that had happened. Talking clinically here, I would be looking for something else that could have caused these neural processing changes, like some other painful event. Q. If there is no history of any particular painful event in that period, then that would cause you considerable doubt as to whether a spinal cord neural processing problem was the explanation for complaint, wouldn't it? A. That would be unusual." 113 Dr Bashford agreed that illicit drug taking can have an effect on anxiety and depression (t 142.53-54) but a heavy use of marijuana was more likely to cause depression rather than anxiety symptoms. It is my view that Dr Bashford's initial explanation of the plaintiff's experience of pain relating to a spinal chord neural processing problem was, ultimately, left in doubt. 114 On the other hand, Dr Matheson strenuously disagreed with Dr Bashford's view. Dr Matheson, Consultant Neurosurgeon, reported (15/06/2004; 19/07/2004; 16/10/2006) that the plaintiff had a minor L4/5 disc lesion with somatised disorder and that the L4/5 disc remains tenuous. Dr Matheson opined that the plaintiff's response to this minor disc lesion had been completely inappropriate and that he had retreated into a sickness role. Physical examination showed a lot of inconsistent features such as the plaintiff's foot weakness and his lower leg sensory loss as well as his inconsistent straight leg raising. The other orthopaedic specialist similarly commented on the inconsistent presentation upon clinical examination. 115 Dr Matheson gave evidence and was sceptical that the plaintiff's complaints were genuine. Dr Matheson reported that, on clinical examination, every time he touched the plaintiff's skin, he cried out in pain. He said this response was inconsistent because there was no suggestion for a back disorder to have tenderness of the skin. It was possible to get skin tenderness with a skin disease and sometimes a peripheral nerve disorder which were not present with the plaintiff (t 277.33-43). A possible explanation for the plaintiff's hypersensitivity to touch was alluded to by him when he said he experienced this symptom when he was taking LSD. The plaintiff could get up on the couch but then could not move his back at all when he was on the couch. The plaintiff refused to move his feet at all. 116 When Dr Matheson was asked about the concept of spinal neural chord processing, he answered that it was too vague a statement to mean anything to him (t 279.33-36). When asked (t 280.37-43): "Q. If you were to assume that for at least nine months following the surgical procedure there was no complaint of pain in either limb, and the complaint of pain in the back was reduced, something in the order of 50 per cent, would that be consistent with any subsequent complaint having their genesis in the surgery of the L4-5 disc? A. It would highly unlikely but it is not unknown." 117 When Dr Matheson examined the MRI images, he observed that the disc protrusion was coming forward at the midline and was nowhere near any of the nerve roots (292.55-58). 118 Dr David Bornstein, Orthopaedic Surgeon, in his report (11/07/2002) acknowledged a small disc protrusion at the L 4/5 level but was of the view that the plaintiff had a major psychological problem and may have a conversion reaction. Associate Professor Jones (report 30/06/2004) could not envisage the plaintiff, at the time he saw him, returning to the workforce, although from a purely physical point of view, the plaintiff should have the capacity for semi sedentary process work. Dr Matheson expected that the plaintiff would be able to continue to do light truck driving or light plant operating and also light labouring work. Dr Paul Spira Consultant Neurologist, reported (07/06/2004; 01/10/2004) that, on examination, he believed that the plaintiff was greatly overstating his situation with respect to pain. Like Drs Dan and Matheson, Dr Spira could offer no organic explanation for false straight leg test or the exquisite low back tenderness and put the plaintiff's presentation down to deliberate exaggeration. 119 The plaintiff has attended a pain management clinic on two occasions, in November 2001 and between 28 March 2006 and 18 April 2006. The plaintiff's and his father's evidence is that the plaintiff's condition has stabilised after this last and fairly recent admission to St John of God hospital. 120 It is difficult to accept that the plaintiff would deliberately portray himself in the manner he does, such as rocking forwards on his walking stick, holding his back and alternating between sitting and standing positions. The evidence of his family and friends, which covers the continuous period from the date of the accident to now, is consistent. It is my view that, while the plaintiff does in fact suffer some back and leg pain, he is exaggerating its intensity and part of the explanation for his approach is attributable to his drug taking. Assessment of Damages 121 The parties agreed that the assessment of damages so far as the plaintiff and defendant are concerned is under the Civil Liability Act 2002 (NSW) (CLA). Non economic loss 122 Pursuant to s 16 of the CLA, the plaintiff claims 85% of the maximum allowed. The maximum of damages that may be awarded for non-economic loss is $427,000, but that amount is to be awarded only in a most extreme case. 123 I have referred to the plaintiff's injuries and disabilities in detail earlier in this judgment. I take into account that the plaintiff was only 25 years of age when the accident occurred. He is a relatively young man. I accept that the accident has significantly impacted upon his life. I also accept that the plaintiff's back injury was caused, or substantially contributed to, by the accident. On 9 August 2001, the plaintiff underwent surgery at L4/5. After the operation the plaintiff was in less pain. Half of the pain in his back had dissipated and the shooting pains down his legs disappeared, but he was left with back pain and some diffuse pain in his legs. On any view, the plaintiff is not fit to return to labouring or heavy work due to his back injury. 124 Since the accident the plaintiff has not been employed. His life is no longer as enjoyable as it once was. The committed relationship he had with his girlfriend Jodey has broken up some time ago. He is currently living with his brother, nephew and niece. He has a very limited social life. However, not all of the plaintiff's current state can be attributed to the accident. It is difficult to excise with precision the effect of the plaintiff's drug use from those injuries and disabilities caused by the accident. It is my view that the plaintiff's motivation and psychiatric state is largely attributable to his continued heavy drug use and had the accident not occurred, the plaintiff's future would have been uncertain due to that drug use. To date, the drug use is untreated. 125 Doing the best I can, I assess the plaintiff's non economic loss at 55% of a most extreme case which equates to $234,850. Past Treatment 126 The amount of past treatment is $102,524.80. This amount includes agreed figures in relation to physiotherapy/hydrotherapy in the amount of $6,745, hospital expenses in the amount of $20,210, and travel expenses in the amount of $23,816. I allow this amount as being reasonable. Future medical treatment and expenses 127 The plaintiff submitted that he will require future treatment by way of attendances on his general practitioner, specialist and therapists and ongoing medication. This comprises six general practitioner appointments per annum, at $56.00 per visit, amount to a weekly rate of $6.46; three specialist appointments per annum, at $106 per visit, amounting to a weekly rate of $6.11. As the plaintiff's medication has to be adjusted from time to time, I allow two visits to specialist per year. The plaintiff also seeks a sum for further hydrotherapy and physiotherapy. These treatments do not offer the plaintiff any long term benefits, but I accept from time to time they may assist with his back pain, so I included this in the weekly amount of $6.11 in lieu of the specialist appointment which I have disallowed. 128 The cost of the plaintiff's current medication regime is Kapanol (a painkiller) $4.00 per week; OxyContin (a painkiller) $28.00 per week; and Prothiaden (an antidepressant) $2.46 per week. The total weekly medication expenses amount to $34.46. The general practitioner says that, for the past six months that the plaintiff has been taking this drug regime, he has been stable, so I allow this amount. 129 The total cost per week for future medication and specialist visits is $47.03. Using a life expectancy of 47 years (agreed) and a multiplier of 961.5 x $47.03 less 15% vicissitudes equates to the sum $38,436.44. I allow the sum of $38,436.44. Past economic loss 130 The plaintiff provided a number of sums in relation to past economic loss. Firstly the sum of $178,031.64 was calculated on the award rate for a shovel excavator up to three cubic metres (see Schedule A, Ex R); secondly, a sum of $179,998.14 was calculated on the award rate for a shovel excavator from three cubic metres (see Schedule B, Ex R). The plaintiff also provided figures based on CFMEU rates of $239,538.20 and $249,054.40 respectively (see Schedules C and D, Ex R). The plaintiff submitted that the CFMEU rates for an excavator using a bucket up to three cubic metres should be awarded and on this basis the total of past economic loss is $239,538.20. 131 The plaintiff was employed by GSE Lining Technology Pty Ltd of Moorebank as an earthmoving labourer earning approximately $460 nett per week until 20 February 1999. From 21 February 1999 to 25 May 1999 (date of accident) he was employed by Woollam Earthmoving & Plant Hire Pty Ltd at Ruse. The plaintiff submitted that he was earning approximately $640 per week. He was earning $20 nett per hour and worked about seven hours per day, ie, $140 nett per day. He was employed on a casual basis. Sometimes he worked every day of the week and sometimes on Saturdays. Other weeks he did not do so. If he worked 5 days per week he earned $700 nett per week. No wage records were tendered in evidence. When the plaintiff was asked whether he earned $9,500 over three months, he said that he was not sure (t 168.56-58) 132 The plaintiff says that he would have stayed at Woollams until he "…sort of paid off [his] debt to Mr Woollam…" (t 170.7-8) and then he would have tried to move on to the mines at Kalgoorlie. It was the plaintiff's evidence that he had not had discussions with Jodey about moving to Kalgoorlie but that they were willing to follow each other. He had asked her to marry him but she had declined because she was too young. The plaintiff says that the work in the mines was such that you would work for two months and then get a month off. He would only have continued until they were financially sound enough to get their own home (t 170). While the plaintiff gave evidence that he intended to work in the mines at Kalgoorlie in Western Australia for a few years, I do not think he would have done so. 133 In 1996 James Haldane worked with the plaintiff at Storm Constructions as an Excavator Operator. He supervised the plaintiff while he was learning to operate the excavator and it was his signature that appeared in the plaintiff's logbook (Ex C). Mr Haldane gave evidence that excavator operators earn between $20 and $22 per hour depending on experience and if they are good and have been operating the machine for a long time they can get up to $30 per hour (t 234.8-21). I accept that, had the accident not occurred, the plaintiff would have obtained his Plant Operator's Licence. The plaintiff had already completed the 200 requisite hours of driving. He just had to complete the test. The evidence suggests that he had the skills necessary to operate an excavator. 134 However, prior to the accident, the plaintiff had a number of periods off work, the longest being a significant period of about nine months. He was, at the time of the accident, 25 years of age. As previously stated, it is my view that it was unlikely that the plaintiff's drug use would have abated. He had been regularly using drugs since 15 years of age. Just prior to the accident he had peaked in his drug use, smoking at least 15 to 20 cones per day, maybe more. As previously stated, it is my view that the plaintiff's motivation and psychiatric state is largely attributable to his continued heavy drug use and had the accident not occurred, the plaintiff's future would have been uncertain. Ultimately, the plaintiff would no longer have been able to hold down a fulltime job. From time to time the plaintiff may have cut down his drug use and been able to work again for a while. The most likely scenario is that he would have worked periodically. It is possible that the plaintiff would have, at some time in the future, sought treatment for his drug addiction. It is possible that, ultimately, treatment may have been successful. The future was uncertain. 135 The plaintiff has not returned to work since then, except for on an eight week part time basis, where he worked at the Bigga Pub "the quietest pub in Australia". The plaintiff's evidence was that he carried two or three bottles of beer at a time from the cool room to stack in the pub. He stacked chips and cigarettes and poured drinks. He did this work for a few hours per day, a few days per week. The plaintiff says that he may be able to work in a nursery. 136 To reflect these considerations in assessing damages for economic loss is difficult. Doing the best I can, I accept that it is more likely than not that the plaintiff would have worked at Woollams for about 2½ years (ie to December 2001). The plaintiff did not work on a fulltime basis. I have calculated the amount on the basis that he worked, on average, four days per week, at 7 hours x $20. That means that he earned somewhere around $560 gross per week (which equates to approximately $460 nett per week) for 130 weeks. $460 nett x 130 equates to $59,800. During this period the plaintiff was totally incapacitated for work due to the injuries and disabilities suffered in the accident. I assess the plaintiff's past economic loss for the period from 25 May 1999 to 31 December 2001 at $59,800. 137 From 1 January 2002 onwards, the task of assessing the plaintiff's loss of earning capacity due to the accident is more difficult. I agree with Dr Chen that the plaintiff is capable of performing the type of work outlined by her on a part time basis. I assess this amount of casual or part time work to be between 7 to 10 hours per week somewhere between $15 to $20 per hour nett. I assess the plaintiff's residual earning capacity at $140 nett per week. 138 There are two reasons why the plaintiff will be unable to earn his pre-injury wage from 1 January 2002 onwards. They are firstly, due to the injuries and disabilities he suffered in the accident and secondly, due to his drug use. It may be that some time in the future the plaintiff would have sought treatment, which may have led to him giving up or severely curtailing his use of drugs and worked on a fulltime basis. Sometime in the future he may not have been able to continue to work at all, or only worked periodically. Given that the plaintiff was 25 years of age when the accident occurred and by that time he had not acquired any qualifications, it is my view that he would not have advanced in his career other than to obtain his Excavators Licence. He would have continued in employment as a semi-skilled worker. Therefore, I have based his economic loss on his estimated wage prior to the accident of $460 nett per week. At that time he was earning $20 nett per hour, which was at the lower end of the range for qualified Excavator Drivers. I have apportioned half of this weekly amount as representing the amount the plaintiff would have earned but for the accident. That is $280 nett per week, less the amount that the plaintiff is capable of earning, namely $140 nett per week. The plaintiff's economic loss for the period 1 January 2002 to 24 November 2006 is calculated as 255 weeks at $140 nett per week, which equates to $35,700. The total of past economic loss is $95,500. Future loss of earning capacity 139 The plaintiff provided a number of calculations in relation to future economic loss. Firstly, $393,967.30 for future economic loss was calculated on the award rate for a shovel excavator up to three cubic metres (see Schedule A, Ex R), or a sum of $403,469.75 for past economic loss was calculated on the award rate for a shovel excavator from three cubic metres (see Schedule B, Ex R). The plaintiff also provided figures based on CFMEU rates of $508,765.20 and $529,027.03 respectively (see Schedules C and D, Ex R). The plaintiff submitted that he would now be an experienced Excavator Operator earning somewhere between the CFMEU rate for an excavator less than three cubic metres ($708.34 per week) and the rate payable for an experienced Excavator Operator (evidence of Jamie Haldane, t 234.18-19) ($887.42 per week). That assumes that the plaintiff worked every day of the week, which was not the case. 140 For the reasons given earlier, I assess the plaintiff's future economic loss at $140 nett per week until the age of 65 years. That is for the period 24 November 2006 to 25 July 2039, which is approximately 32 years (multiplier 845). $140 x 845 equates to $118,300 less 15% for vicissitudes totals $100,555. Loss of superannuation 141 The plaintiff submitted that the likelihood is that, but for the injury, he would probably have become an employee and his employer would have paid superannuation at the statutory rate. The plaintiff submitted the amount should be 9% on half his lost earnings for three years ($120,000 x 9% x 3 years) which amounts to $32,400.00. Adopting this methodology, 9% on half lost earnings for 3 years is $47,750 x 9% which equates to $4,297.50. 142 Pursuant to s 15C of the CLA, the plaintiff claims $51,714.00 ($574,600 x 9%) in respect of lost future superannuation. Again, adopting the same methodology, $100,555 x 9% equates to $9,050. The amount assessed for loss of superannuation (past and future) is $4,297.50 plus $9,050 which totals $13,347.50. Interest on past superannuation is $373.88. The total amount for loss of superannuation is $13,721.38. Domestic assistance and attendant care 143 The plaintiff submitted an amount of $144,480.36 in respect of past domestic assistance (see Schedule F, Ex R). This amount is calculated on the provision of 20 hours of assistance per week. The plaintiff submitted that he will require assistance in performing domestic duties such as cleaning gutters, painting, repairs, gardening, lawn mowing and car maintenance if and when he acquires his own home. The plaintiff further submitted that he would require assistance with domestic tasks such as clothes washing, kitchen cleaning, shopping and household cleaning in general and claims 20 hours per week at rates calculated in Schedule F. 144 To determine the applicable amount to be awarded for home care services, it has been identified which services the plaintiff would reasonably need, resultant from the defendant's wrong. Or expressed another way, the plaintiff is to be compensated for the loss of the plaintiff's capacity to look after himself, which was caused by the accident – see Van Gervan v Fenton (1992) 175 CLR 327. According to s 15(2) of the CLA, no compensation is to be awarded if these services would have been provided to the plaintiff, had he not been injured. Sullivan v Gordon (1999) 47 NSWLR 319 reaffirmed this principle. Furthermore, s 15(3) of the CLA states that no damages may be awarded to a claimant for gratuitous attendant care services if the services are provided, or are to be provided for less than 6 hours per week, and for less than 6 months. 145 For the first two years after the accident, the plaintiff required help getting in and out of the shower each day and getting in and out of bed on a regular basis. He could not carry out any of the household tasks, such as cooking, vacuuming and cleaning. He could not mow the lawn and do the gardening. Both the plaintiff's mother and Jodey spent time massaging the plaintiff, although this touch did make him scream in pain. The plaintiff's mother estimated that carrying out these tasks was two to three hours per day. Jodey estimated two hours per day and two to three hours each weekend on the yard duties. 146 Had the plaintiff not injured his back he would have been able to carry out these duties himself. In a modern relationship, it would have been expected that the plaintiff would have carried out some household tasks. Jodey says she would have made him contribute half an hour to one hour per day. Of the two hours per day Jodey expended on household chores, it is my view that 1½ hours per day represents the amount of service that is necessary but would not have been required had the plaintiff not been injured. So far as the garden is concerned, had he not been injured he would have done half the work that Jodey did. Jodey was required to spend an extra two hours per week on yard maintenance, so the amount that the plaintiff would have performed but now cannot is one hour per week (total 11.5 hours). The total number of hours per week of domestic assistance from 25 May 1999 to 13 September 2001 is 11.5. I allow past domestic assistance from 25 May 1999 to 13 September 2001, which represents the period from the date of the accident and a period of time for recovery after his back operation. This equates to 120 weeks and a total amount of $23,107.33 (calculations based on plaintiff's Schedule F). 147 Associate Professor Jones, at a best guess, estimated that the plaintiff would require approximately three hours per month of domestic assistance for heavier household chores. Dr Chen's view is that the plaintiff is fully independent in self care and did not require assistance for personal care. The plaintiff described being able to manage his share of internal domestic cleaning and cooking. The plaintiff told Dr Chen that while he was sharing a house with his friend Tony Digger at Buxton, Mr Digger did the yard work and mowed the lawn while he [the plaintiff] kept the kitchen clean. They took turns doing the vacuuming and to clean the bathroom. They took turns cooking. The plaintiff stated that he usually did the grocery shopping with his sister. The plaintiff now lives with his brother and is capable of carrying out the same tasks. He can do the shopping, provided that his niece or nephew carry the heavier bags. 148 The plaintiff agreed that he told Dr Chen that it took him about 1.5 hours to vacuum three rooms and that he took a break after each room. He was able to sweep the kitchen, stating that they hardly ever mopped the kitchen floor and they tried not to make a mess. Dr Chen considers that the plaintiff is physically capable of this. However, Dr Chen accepted that the plaintiff might have difficulty with lawn mowing, and that this would be the only area where he might require assistance. The cost of such assistance depends on the size of the lawn and the plaintiff's living circumstances, meaning that if he lived in a unit or house without a lawn, there would be no requirement for assistance. Dr Chen's estimate is 0.5 to 1 hour a fortnight in summer, once a month in spring and autumn and once every six weeks in winter. 149 Taking into account the plaintiff's evidence and that of Dr Chen and Associate Professor Jones, I allow four hours per week of domestic care for heavier domestic chores. From 14 September 2001 to 24 November 2006 is 270.15 weeks x 4 hours per week. This equates to $21,348.89 (calculations based on plaintiff's Schedule F). Future care 150 The plaintiff submitted that the plaintiff will need continuing domestic assistance in the amount of 20-hours per week at the commercial rate of $36 per hour. Based on a weekly rate of $720 and a multiplier of 961.5, the total amount submitted by the plaintiff for future domestic assistance (961.5 x $720 less 15% vicissitudes) amounts to $588,438.00. 151 For the reasons given earlier, after 24 November 2006 future care is calculated at the rate of 4 hours per week at $21.40 x 961.5 less 15% which equates to $69,958.74. I have calculated this sum at the statutory rate as, to date, care has been provided by family members. The plaintiff has resided with friends and family members. He currently resides with his brother and this is likely to continue into the future. 152 The total amount for past and future domestic assistance and attendant care is $114,414.96. Claim for tax on compensation payments 153 Fox v Wood payments are agreed at $28,564.67. This amount has already been deducted from the plaintiff's workers compensation payment and paid as tax. The plaintiff will be required to pay back workers compensation payments which include the Fox v Wood component. I allow this amount. Workers compensation payments 154 It is noted that the total amount of workers compensation payments made by the employer to the plaintiff to date is $272,119.16. ********** 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.