Chertes v J Thomas & Sons Pty Ltd [1992] QSC 424

TRANSCRIPT OF PROCEEDINGS (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau.) SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION REViSED COPIES ISSUED Stata h8~Jrling 8ure 2:u DatedoG-! I.:U p ~ ~ WHITE J '----· No 2464 of 1989 VASILE CHERTES Plaintiff and J THOMAS & SON PTY LTD Defendant BRISBANE .. DATE 16/12/92 JUDGMENT \ 1 -- 1 of 34 -- ,.. 161292 HER HONOUR: In this action there will be judgment against .the plaintiff and in favour of the defendant. I publish my reasons. The order of the Court is .that the plaintiff pa.y the def;endar:t' s costs of and incidental to the ~c_-t:5_ol1, j_ncluding reserved costs, if any, to be taxed. JUDGMENT 2 10 20 30 40 50 60 -- 2 of 34 -- IN THE SUPREME COURT OF QUEENSLAND Writ No. 2464 of -1989. BETWEEN: VASILIE CHERTES Plaint·iff AND: J. THOMAS & SONS PTY. LTD. Defendant REASONS FOR JUDGMENT - WHITE J. Delivered the 16th day of December, 1992 CATCHWORDS: Counsel: Solicitors: Hearing Dates: 29 year old Romanian plaintiff panelbeater - alleged injury at work lifting car shell from ground to trolley - whether lift occurred - whether plaintiff injured - if so quantum of plaintiff's injury N. Samios with him C. Milne for the plaintiff D. Draydon with him P. de Plater for the defendant Walker Fender for the plaintiff Quinlan Miller & Treston for the defendant 1st to 5th June, 1992 and 10th to 20th November, 1992 -- 3 of 34 -- IN THE SUPREME COURT OF QUEENSLAND Writ No. 2464 of 1989 BETWEEN: VASILIE CHERTES Plaintiff AND: J. THOMAS & SONS PTY. LTD. Defendant REASONS FOR JUDGMENT - WHITE J. Delivered the 16th day of December, 1992 The plaintiff, a single man, now aged 35 years, was employed by the defendant as a panel beater in its business at Ipswich. He alleges that he injured his back whilst engaged with five other employees in lifting a motor vehicle shell from the floor of the workshop so that a trolley could be placed underneath it. This allegedly occurred in late November/early December 1986. The ~· plaintiff continued working for the defendant until the 22nd May, 1987 when he ceased work due to alleged disability associated with ~ his back. He has not been in employment since that date due to that disability. No other witness was able to support the plaintiff's account of the event to which he attributes his injury. Witnesses called for the defence recall an earlier and different lift at the defendant's premises which involved the plaintiff but which the plaintiff denies. -- 4 of 34 -- The plaintiff is Romanian by birth. He came to Australia in June 1981 at the age of 24 years. It appears that this fact ·together with the nature of the claimed injury alerted the suspicions of the Workers' Compensation Board which has led to a lengthy and, at times, it seemed to me, unnecessarily complex trial. The defendant has put the plaintiff's credit in issue on every element of his case. The plaintiff's understanding of the English language became significant, largely because of what r--·"- defence witnesses said the plaintiff told them in the years \__.: . ; ~ following his ceasing work and what he said to his fellow employees about the circumstances of the lift said to have caused trauma to his back and I shall return to that issue in due course. Liability The plaintiff said in evidence in chief that in late November/early December 1986 whilst he was working panel beating in the workshop area of the defendant's business premises at Ipswich the foreman, Alex White, and the owner, Bob Thomas, called on everyone in the workshop to lift a damaged red Ford Falcon utility shell ("the damaged shell") onto a trolley so that it could be taken to the paint shop in an adjoining but separate building, to have some paint removed. The plaintiff did a sketch (ex. 1) depicting his position and that of the other employees around the damaged shell. He took up position on the front left, Wayne was next to him in the middle and Spot at the left back. The foreman, Alex, was on the front right side, next to him was Cim and at the back right, Scott. The damaged shell was located near the office -- 5 of 34 -- J. in the workshop ahd was- positioned approximately where a different red utility is shown in the photograph -ex. 2. The damaged shell which was t·o be lifted had a chassis, cab and tray top but no tyres, wheels, engine, doors or front panel. It was said by the plaintiff to be resting on the cement floor of the workshop. The plaintif~ said that he put his arms under the chassis to lift it and, with his knees bent, his body was bent over about half-way. On ,the call given ·by Alex White the men lifted the damaged shell, :the plaintiff taking the lift on his forearms. In the course of his evidence, the-plaintiff showed a faint sea~ on the middle of his right ·forearm which he said was caused by the chassis cutting into his·arm during this lift. When the damaged shell was raised, Wayne who was next to the plaintiff on his right, let go completely to pull a trolley which *as nea~by, under the shell. The plaintiff said that lifting the shell altogether was not very heavy but when Wayne let go it was so heavy that· he wanted to drop it but did not as it would be likely td smash onto his legs and feet. He said that he felt pressure on his arms and all of his body and on his lower back. The shell was then lowered onto the trolley and pushed to the paint shop via the large opening shown on the left side of the photograph ex. ·5 and .into the paint shop, the opening to which is on the right of that photograph. The plaintiff said that he recalled mentioning to Alex Whi.te that it was a heavy lift and showed. him the cut on his arm and that Alex had agreed that the lift was heavy. At this.stage, the plaintiff said that he felt pressure on his back but was not o: 0 0 c -- 6 of 34 -- sore. The plaintiff said that at that time there was a crane (or gantry or A-frame) avai:lable in the workshop with a block and tackle (as depicted in the photograph ex .. 4) which was regularly used for lifting motors and engines in the work:;;hop. . The pla,int,i_ff said that the damaged _shell was to be taken to the paint sho,p_for some of the paint to be stripped off. Mr. Boris Smolakovs, a mechanical engineer with Geoff McDonald and Associates, prepared a report after consultation with the plaintiff and a further report 1 ~ after a visit to the defendant 1 s premises (ex. 46) . He concluded that the plaintiff was required to -.lift a load which placed his action point well above the maximum permissible limit, that he was participating in a multi-person lifting operation which could impose additional loads on him and that he was r.equired to,hold the load for some period of time. Th.e travelling A-f;xame obs_erved by Mr. Smolakovs at the defendant 1 s·premises on his visit and which was availc;tble on the day o.f the lift would; in his opinion, haye been adequate to handle the required lift of. the dama,ged shell . . '-..___.· There was not, in fact, any real dispute that· if the plaintiff 1 s description of the lift during which he alleged that he sustained his injury was accepted negligence on the part of the defendant was established. Mr. Bob Thomas, .a director of the. defendant, who had. worked for the defendant for 22 years and. who has motor mechanic qualifications recalled.that shortly before the plaintiff stopped working in April/May 1987 he told Thomas that. he had a sore back which he explained had occurred when a utility body was lifted off -- 7 of 34 -- the back of a truck, ·Thomas said that at the time of that converpation the plaintiff pointed towards the paintshop and then walked from the middle of the workshop to the entrance to the paintshop where a new white Ford utility shell had been lifted off a t~uck some six months previously. Tho~as recalled that a red ·Ford Falcon utility had been received into the workshop after being involved in a rollover accident~ The body was damaged beyond economic:repair. The-defendant ordered in a new shell from Ford · ("the new shell") into which the usable components from the damaged vehicle were to be;placed. It-arrived at the defendant's premises on the back of a truck, probably in the second week of October 1Q86. This was the only occasion on which a new utility body shell .'had been brought into the. defendant • s premises to the recollection of Thomas and Alex White the foreman. The truck which delivered . " ' . the new .. shell w~s not equipped with a hoist and sling to unload the shell as had occurred on a previous delivery. The driver was in a hurry anq.was not prepared to wait whilst a sling was arranged so Thomas summoned. all the available employees on the premises to assist in unloading the new shell. Thomas estimated that 12-15 men were involved including the plaintiff. Two or three men, including the driver of the truck, got on to. the back of the truck and the ' ' -~ . remaining nine or ten men positioned themselves near to a number of .60 litre qrums upon. which the shell was to rest in the paintshop. The:· men on the truck_ pushed the new shell off the back of the truck and . the men . on the ground guided it onto the drums.. The shell rested on the drums and the back of the truck unti+ the men got off -- 8 of 34 -- the truck and it was then completely positioned on the drums. ·The new shell was white and was to be painted red i~ the paintshop before being taken across to the workshop to have the damaged shell's parts put in it. The foreman, Alex White, said that the plaintiff told him shortly before going off work on Workers' Compensation that he hurt his back lifting the new body shell off the back of the truck and indicated that it had occurred in the area outside ·the paintshop as shown in the photograph, ex. 6, just below the "J. Thomas & Sons" sign. White definitely recalled that the plaintiff was involved on that occasion and that the two back drums had not been. quite in position to: receive the new shell so that the men had to juggle the car body around a little to make surethat·it wasbalanced~ ·white recalls that the adjusting occurred on 'the corner where the plaintiff, one Scott andone other man were.holding the new shell. Timothy Gillam, a motor mechanic with the defendant, recalled the new shell being lifted from the back of ·a truck by all the employees present on the premises of the defendant. The plaintiff denied participating in thi.s lift and asserted that a crane was used to lift the new shell off· the truck. He denied telling.Thomas and White that he had hurt his back lifting the new shell near the paintshop-entrance. The likelihood of a lift as described by' the pla1ntiff was firmly rejected -by White, Thomas and Gillam who -have had many years experience in the panelbeating and spray painting business. It can be supposed that the "Cim" to whom the plaintiff referred-was Tim -- 9 of 34 -- 1. Gillam, 'he being the only employee at the time with a name similar in sound. · .. It is true· that ·neither White nor Gillam were able to · deny absolutely that a lift as described by the plaintiff could have occurred but ·neither could recall being involved and both thought it highly unlikely that the damaged shell would ever have been on the floor rather than on drums or jacks. Thomas was adamant that the damaged shell had never rested on the workshop ·floor. His evidertce was that as a matter of practice damage was likely to occur to the suspension or brake components if a car body were placed on th~ floor after·removing the wheels. Further, he said that it would be extremely difficult to get jacks underneath it once it was• on the.floor in order to lift 'it up again. He said ·thatthe·usual practice would be to put the body on stands so that a.trolley could be put underneath when it became·necessary to move it.· Mr.· Smolakovs, who had had some experience in panel beating ··shops, conceded that this would be a reasonable way to go about s_tripping a car body. Thomas said that he was on the workshop floor working with the , . men· sixty· per cent of every working day and that for ·the remainder of the time he· was in his· office situated in a corner of the workshop. overlooking the . work area. The damaged utility was brought into the· workshop and remained outside his office until the work was completed of transfering parts from it to the new shell. It ·was then taken out into the holding-yard where it remained for . some· ··time, occasionally being used for -scrap, _be-fore being· taken to another yard. -- 10 of 34 -- According. to White, the motor.and gear box were taken. out.of the damaged shell using a gantry. The car was jacked up and put· on stands, so that the wheels and other parts could be removed. ·The -wheels and differential were taken to the paintshop and attached· to the newly painted new shell. and . it was pushed across to the workshop and placed next to the damagedshell sothat all the parts stripped from the damaged shell could be put into the new shell. No witness was able to offer any reason as to why the damaged shell would have been taken to the paintshop·as it'was ultimately to be dumped and the paintshop was not used for storing anything in the nature of the damaged shell. It was suggested by Mr. Samios for the plaintiff that there may have been some misunderstanding as to . which area ·of. the defendant's-premises the plaintiff-was referring· to when-he spoke to White and Thomas and that when the damaged. shell was-: finally taken into the yard it may have been taken out of .the door of the workshop near the entrance to the paint shop as shown in photograph ex. 5. Thomas . said that this was practically. speaking ··a very difficult procedure because, as can be seen from the photograph ex. 3, the workshop is on two levels and where the·damaged. shell was standing outside Thomas's office, was higher than the level of the workshop door near the paint. shop. A ramp l'ed down to the ·lower level but Thomas' evidence was that the ramp was not wide enough··to bring a car down and that in fact it would have been taken straight out of-the workshop into the_holding yard as shown in photograph ex. 5. -- 11 of 34 -- The plaintiff points to the Workers' Compensation Form 4 which ··describes the· incident which·· caused the injury as occurring "when helpingto lift.a utility body". The plaintiff's Form 3 describes ·the event as "while lifting utility body". Both forms are-dated the·22nd May; 1987 and make no reference to a lift from the ground or from a truck. ·The information was provided by the plaintiff and did not in my view, invite the defendant to question the plaintiff further as to the occurrence. The information on the form was ·entirely consistent-with a lift from the truck. ·- The plaintiff saw John·· Currie, litigation assessor, in . April/May -1988 about his common law claim against the defendant ·and, with his assistance, prepared a statement dated 18th May, 1988 C, (ex. 23)-in which·the-lift -was said to have been onto a trolley. There is -no mention of a lift from the ground. It would appear on a plain reading of the statement at p.7 that the car was lifted manually whilst containing the engine notwithstanding Mr. Currie's explanati0n . that the reference to a 4. 1 engine at p. 3 ·of the c ·-statement was merely a description of the type of car and was not to be- taken as implying that there was an engine in it. In -evidence and to Mr. Smolakovs in December 1990 the plaintiff said C that there was no engine in the car when it was lifted. Mr. Currie did not use an interpreterwiththe plaintiff and said that he was familiar with_clients whose first language was not English, that he had· access to a Romanian interp~eter -had he considered it necessary, and that he was able, with care; to take·a satisfactory statement from the plaintiff. Mr. Currie said that he went through -- 12 of 34 -- -._, il ,!~ the typed statement with the plaintiff carefully and made n~cessary corrections. The plaintiff said that the statement had,been read through to him prior to attending upon Mr. Currie by a friend and he understood it. He certainly made changes reducing the numbe_r, of men involved in the lift from 7 to 5. There is thus no_thing in the statement to support the plaintiff's version as to how the litt occurred, nor apart from the reference to the engine anything to contradict it. Two of the men said by the plaintiff to have been_involved in the lift of the damaged shell have absolutely-no recolle9tion of the incident. They have only relatively _recently bee~ asked-to recall the occasion-of a lifting incident involving the plaintiff at work. However, the arrival of a damaged red Ford utility and a new Ford shell were uniqu~ occurrences and h~ve been _recalled inconsiderable detail. The lift described by_ the plain~iff and explained by Mr. Smolakovs would have been so yery on~~ous, and-of such an extraordinary departure from usual _and sensible-wo:r:-kshop "-- practices that it might have been something remembered. Ther~ was no suggestion that White or Gillam were-: deliberately, fa,.ili:p.g to recall that lift or that Thomas did see the shell_on the ground. The evidence of Thomas, White, Gilam and th~ plaintiff leaos meto conclude that the defendant's .-business . was . _well. run. · It wa,s suggested that Thomas may have been ~is taken. when the plai_ntiff explained to him how-he suffered_the injury to his back becaus~ of his poor English and/or because Thomas was annoyed.at the thougllt that the plaintiff might be. making a fraudu.;Lent .. claim to suqh. an -- 13 of 34 -- ll extent that his evidence _was tainted. As to the latter submission, I thought that Bob Thomas.gave his evidence on essential matters about the plaintiff fairly. He regarded the plaintiff as a competent worker and had_ .conversations with him during working hours of· a- cordial kind. The plaintiff liked working there and had -nothing adverse t-o say about Thomas. The business appears to have been and to be a place of stable employment and the plaintiff was and has ;been the most recent new employee. He was the only non- native English speaker and both White and Gillam spoke pleasantly c about him. Allowing for language difficulties, although none of Thomas; White or Gillam thought it difficult to understand what the plaintiff was.saying at work, the fact remains that the plaintiff C demonstrated to Thomas where the incident occurred. There is no evidence to support the plaintiff's version apart from what he has -said from - 1988 onwards and there is much evidence to make it uplikely that it o~curred as he has said. I conclude therefore that more likely than not a lift did not occur as described by the plaintiff. It is possible that the c plaintiff, in attempting to identify a cause for the increasing "discomfort which he was experiencing in his back in April and May c= -1987, thought that the removal of the new shell from the truck was the most l:i,kely explanation and that.was what he told Bob Thomas and Alex White, but in the course of the year his recollection gradua~ly became: confused. But that is mere speculation on my part. If it were the lift from the truck which caused trauma to the plaintiff's back there is no evidence that it was negligent of the ----------- -- 14 of 34 -- defendant to involve the plaintiff in that lift given·the number of men used and the method employed. No attempt was made to ask Mr. Smolakovs to evaluate a lift of that kind. The medical specialists who provided reports and who gave evidence considered that trauma of some kind occurred- to the pli:lintiff' s spine. I do not recall. them being asked if· the bulging discs seen radiologically could only be attributed to trauma, but at least some of the specialists were concerned· only with treatmen-t ~ and not cause, arid all were of the understanding that t'rauma of some kind had occurred during a lifting incident. Even if ·that be so, there is no evidence apart from the pl~intiff's, which I do not ~.. accept, which links the defendant in a legally relevant way to the ·~ ~~- plaintiff's back con:di tion such as to make the· defendant. liable :·in damages. Should I be found to be incorrect in my conclusion as to.lack of liability in the defendant I propose to consider the-quantum of the plaintiff's damages. Damage The defence contends that if the plaintiff suffers any symptoms from ··his back at all those symptoms a:te grossly exaggerated and further, that if the symptoms-are present 'th~y are explicable by reference to one leg being· shorter· than the other and/ or the natural · progression of a -naturally occurring degenerative dise~se in his spine and not to any event for·which th~ defendant is liable. -- 15 of 34 -- It. is the plaintiff's. case that as a cqnsequence of the ,lifting. incident in November/December 1986 injury to his back pccurred and, accordingly, since May 1987 he has been unable to engage in remunerative employment and will continue to be so disabled.for the future. C.T. ·scans taken in August 1987 at the behest of Dr. Peter Sharwood, orthopaedic specialist, to whom the plaintiff was sent by Dr. Petrovich, general practitioner in June 1987, show evidence of .degenerative lumbar spondylosis at L4/5 level with a tendency to .disc_protrusiqn at L3/4, L4/5 and LS/81. Befpre considering medical opinion in relation to the symptoms r demonstrated .. by the plaintiff it is necessary to consider the ~ evidence of symptoms of a sore back in the plaintiff between the time of the lifting incident in November /December 1986 and his _first visit to. a medical practitioner in May 1987 and following. :T,he plaintiff said,that he had no back symptoms prior thereto. The _plaintiff's evidence in chief was that he experienced ','pressure" at the time o~ the lift but no pain but that the _f<;>llowing m_orning he felt pain in his back. He went to work that day but his back became stiffer and stiffer in the following weeks and c~used him,increasing ~ifficulty at work until April when he .mentioned that he·had a ~ore back and was advised to see a doctor w:ho gave ~im, one or two days off work. He returned to work but :again felt unable to continue and was given about a week off. He aga~n returned to work ?u~ found it impossible to continue. due to his back pain and saw another general practitioner who referred him cl -- 16 of 34 -- to Dr. Sharwood who certified after each visit that he should have progressively longer periods off work until August 1987 wheri: he was paid off by the defendant. He actually ceased working on 22nd May, 1987. In cross-examination it was put to the plaintiff that -he had a number of Mondays off sick in the period January-April 1987 and he attributed at least some of these absences-to his stiff back. After the plaintiff saw Dr. ·Sharwood in June-1987 he said that he experienced pain in his back all the time. Whilst at work he attended to his work but said that he adjusted his position to take account of his sore back and occasionally sat on a tin' to do his work until upbraided by his employer.- He said that he·was in·pain by Christmas 1986. The plaintiff went to live with Mr. and; Mrs. ~azarescue= and their four children at Bundamba· in about October 1986. Mrs. Lazarescue gave evidence that the plaintiff came home from work one ~ day and told her that he had injured his back 'in a work accident '-.._./ and thereafter she observed him walking "crooked", moving a ·lot slower than previously, that he was bent over and ~as -very sad compared to his previous outgoing happy personality. Mrs. Lazarescue was ·not able to place this event with any certainty. She said it may have been a couple or a few months after he came to live with her family. She also said that it was perhaps a few months or a couple of months before the plaintiff: stopped work after she had observed his changed gait and personality; It ~as clear from Mrs. La2arescrie's vague and unc~rtain·evidence On this -- 17 of 34 -- point that she is of little assistance in'relating what she saw of ·Ehe p-l~:dntiff' s movements to an event in November /December 1986. Mr~. Lazaresc~e was also di~tressed and distracted by a family problem which had occurred the day before she gave her evidence. During the ·period from November/December 1986 to May 1987 nothing different was·noted in the piaii:l.tiff's-demeanour at work until a few weeks before he werit off work on compensation. Given Mrs. L~z~rescue~s ·description of his cond~ct at home, if it were contemporaneous with this period, it could be expected that the ·plairit1ff would have been unable to conduct himself all day and every day at work without revealing his disability to his employer and fellow workers.· The explanation may well be that what Mrs. Lazarescue observed about-the plaintiff occurred much closer to the time when the plainti·ff stopped work than she now recalls. About six weeks before the plaintiff stopped work he was seen sitting on a· tin by ·Bob Thomas and noted by Alex White to be raising himself stiffly byholding on to the side of the motor vehicle on which he ~as;working.' It was· the defence case that· at about this time the p~aintiff, bein~aware of- common law claims made by a number of his ·COmpatriOtS 1 decided . tO fake SymptOmS • Dr . Cameron, general practitioner, saw the plaintiff on ·14th May, · 1987 and issued a ·certificate for two days· off work. The plaintiff ·complained to him of· tenderD:ess at L2/L3 bU:t was recorded as normal in toe touching, leg raising, reflexes, and hip'movement and.he concluded that the 'plaintiff had suffered a ndnor strain and that two days rest would be likely to effect a -cure. · Dr. Cameron · did not record for how c r ~ c I I -- 18 of 34 -- long the plaintiff told-him that he had been experiencing pain.but did say in evidence that had the plaintiff complained of continuous pain over months and had he expressed an inability to continu~ working he would most likely have ordered X-ray investigation and not have been content with giving him two days off work ... The plaintiff saw Dr. Howes two weeks later on-28th May, 1987 and apparently told him that the lifting incident which he thought caused his back problem occurred "three to -four months ago". Dr~ Howes did not give oral evidence,·· the certificate only going into evidence. He· certified the plaintiff as incapacitated for £our days. Dr. Sharwood saw the plaintiff on the 19th Ju~e, 1987. He stated in his report that he had some difficulty _in obtaining an exact history from him but thought that his trouble arose from lifting at work some weeks prior to the consultation-. His c;::l-inical findings were consistent with those of Dr. Cameron. He,could .find no evidence of . significant back ·injury. Dr. Sharwood saw the plaintiff during August and September 1987. The clinical signs did not change although he noted that the plaintiff continued to complain of back pain. By the 17th May, 1988 Dr. Sharwood noted restriction on straight leg raising. ·In Dr. Sharwood 1 s opinion it was quite consistent with a person having an injury some five months previously managing to cope at work and then getting. to-a stage of being· unable to continue working an9, whose symptoms changed in severity ·from day·· to- day. . Dr. Sharwood was firmly of the opinion that the plaintiff 1 s symptoms· were and· are· due to -- 19 of 34 -- ll pathology,.that there.was something seriously wrong with his back in 1987 and· at the present time even allowing for conscious exaggeration . of his symptoms by the plaintiff. Dr . Sharwood .considered that a person with chronic-disc disease (as is the case with the plaiptiff) may go for weeks or months even without symptoms and with appropriate flexible employment could probably cope reasonable well, but he considered that in the plaintiff's case his •. back pathology would prevent him from doing any manual work involving lifting or bending . . Dr. Greg Gillett,- orthopaedic surgeon, saw the plaintiff in June -199_1 .. for a medico-legal report and gav~ oral evidence. He was satisfied as=to the presence of pathology in the plaintiff which would.account for h~s symptoms, but also formed the view that the plaintiff had.overstated those. symptoms and such overstatement was consistent with chronic pain syndrome. As an example, he said that the plaintiff demqnstrated . straight leg raising limited to 60 degrees in the right.leg and 40 degrees in the left yet he was able to sit UPfight with his le9s extended which was the same physical movement. Dr. Doughty, a specialist _in occupational medicine, considered that _the plaintiff's history, stated symptoms a1;1d clinical and radiological findings were consistent save that his lack of back movement was overstated. Dr. Doughty was careful to note that the plaintiff's hands, feet and musculature were consistent with lack of physical activity over a prolonged period of time. Dr. Sutherland, to whom the plaintiff was referred in September 1988, I c c -- 20 of 34 -- \ J ~/ similarly expres~ed the-opinion that the plaintiff suffer~d th~n and · present·ly from· · degenerative lumbar spondylosis. Dr. Sutherland's opinion as to the causes of the disease {s illuminating and of assistance in understanding this plaint"iff .- A.t p. 5 of his report of the "30th September, 1988 (ex.-· 19) the following appears:- "The cause of degenerative lumbar spondylosis is usually multifactorial-congenital, metabolic 1 mechanical, degenerative and traumatic factors alr·playing a part in varying degree so that 'the cause' such as a fall or strain may be simply 'the str-aw that breaks the camel's back', (Kranzler LI, et al. Recent advances in thetreatment of ruptured lumbar ~ntervertebral discs. ·rn Neurologic Clinics, 3, 405--16,1985). However, Fry~ayer regards the following as 'risk · factbrs' - repeti'tive lifting in a forward bent and twisted position, vibrations from industrial machinery; repetitfous~ · boring, dissatisfying occupation, a tendency to depression, anxiety hypochondriasis (F~ymayer JW. ~ack' ·· pain and sciatica. New England Journal of Medicine, 318,291-300, 1988). ·Undoubtedly, · however, · ·disc - protrusion is commonly the result of trauma, the commonest type of·stress be~ng in lifting a·heavy object in a bent forward position. In this case it is difficult to isolate a single stress· other than·that indicated-by Mr. Chertes - the lifting of a vehicle body in November, .· 1986. ' ., Although a constitutional tende-ncy to depression· oranxiety as a 'risk factor' has been mentioned, these may be the result of disability. However, it has bee~ ~y' experience that in many cases an insecure financial status and an inability to express themselves adequately in English as well as, perhaps, job dissatisfaction in this Country· contribute significantly to -anxiety and · depression and to the continuance_of symptoms." ; .. Dr. D. Watson, orthopaedic specialist, accepte<?-. that the plaintiff has a disc disease but, in his usual robust fa~h~on, he was of the opinion that the plaintiff had persuaded himself that his condition was worse that it actually is. -- 21 of 34 -- There is, ' ·in. ·-.fact, 'consistency ' between· the medical ·practitioners ·who examined· the plaintiff. · Dr. · Watson' s opinion . that the shorter leg had contributed to· the onset of the disc . disease was not. raised with the other specialists who had not noted the different leg length except Dr. Doughty who considered it to be "insignificant". The preponderance of medical opinion does not attribute the onset of the disease to uneven leg lengths and if it necessary to make. a finding in that regard, which I doubt, I find . that if - the .leg lengths are different, that fact has not .contributed in a significant-way to the onset of the disease. I have concluded-that the plaintiff's exaggerated description of ·symp-toms,. were due· in part to deliberate overstatement and in part asa consequence of his chronic pain syndrome.which I accept he.has.:·He presented to all the medical specialists and to Mrs. Coles · :as ·· depressed- and · impassive and related a. boring, impoverished, sedentary lifestyle dependent upon the goodwill of his landladies·for the supply of·his daily needs and that he was . unable td. s:it .. or drive for· longer than 30 minutes without experiencing pain~ He presented to them and in evidence in chief ·as very much an isolated and lonely man who had little or no contact with .. the Romanian community. In Court, when not in the .witness box~ the plaintiff sat quietly for at least an hour at a ·time before moving around. Dr. Mulholland found the plaintiff in ·mio-1990 and again inmid-1991 to be suffering from·a·significant -degree of depressive illness. However, the life style hinted at by the neighbours from .Princess Street where he lived with Mr. and -- 22 of 34 -- Mrs. Bucianmannj= called· by the defence, and the exhaustive (and exhausting) cross-examination by senior defence counsel-· gave . a somewhat different picture of the plaintiff. He-bought and soldia number of cars during the period.1987 to thepresent. He lived at many more addresses than he was prepared · to . admit and, . more important, lived with and fraternised with many members of the Romanian community both in Brisbane·and interstate. ~He assisted his friends· and their friends with their ·.cars doing a bit of panelbeating, adjusting carburettors and painting, but not, I find, to any great degree. Indeed, the defence case as it developed in submissions was not that the plaintiff worked:secretly but that he could workmore than he did and chose not·to do so. The plaintiff said that he was not directly paid by .his friends but.merely repaid loans in this fashion. This is consistent with his·quite regular visits to Jupi ters Casino at the Gold Coast where he apparent·ly enjoyed gambling without great success or great loss .. ·In :evidence ~ in chief he indicated that he visited the Casino two or'three'times a year, but it became clear in cross-examination that he ·was .a regular vi si tor. He apparently drove from Sydney· to .Brisbane ·after purchasing a Mercedes Benz motor vehicle in 1987. He clearly enjoyed cars and· being associated ·with them. · The neighbo·urs recalled that· the plaintiff was observed getting into his· 'car without apparent difficulty, revving it loudly and roaring down Princess Street in excess of the speed limit and in an unsafe driving fashion, sometimes several times a day. Loud mus·ic ·was heard coming from 2 .Princess Street associated with·the plaintiff -- 23 of 34 -- l1 and wa.s· the _cause of ·neighbourly complaints on two occasions. The plainti·ff possibly had a source of money other . than from his ·invalid pension not entirely explicable from the sale· of his cars from time to time, but no significant amounts have been established nor their source . . The plaintiff's- capacity to understand the questions put to him in the course of giving ~vidence and in relating histories to medical-practitioners and fellow employees was very much in issue. He was examined by Mrs • Elaine w·ylie, an expert in language testing C at ·_the. Language ·Testing and Curriculum Centre at Griffith University. The plaintiff was given a low level of proficiency in li.stening ·and speaking English. Mrs. Wylie concluded that the plaintiff would have ·significant problems in following questions in Court which· might· lead to misunderstandings. She reported that t:Pere was consistency in his language behaviour which suggested t~at he was not deliberately depressing his levels of skill. Bob Tpomas;-Alex White, and Tim Gillam, conceded that the plaintiff's spo~e ."broken _English" at- work, but none could identify any proplems associated with language in his carrying out directions and conversing satisfactorily. The plaintiff was rarely . accompanied· by an interpreter when seeing medical practitioners and . they all considered that they were able to achieve satisfactory results with his level of English. Dr. Sharwood.particularly noted -a qonsiderable improvement in the plaintiff's English between 1987 :and··199J. .:Lorraine Phillips, who had a long association with the Romanian community and who was thus, no doubt, attuned to the -- 24 of 34 -- accent, said that she could communicate with the: plaintiff satisfactorily from 1984 although she noted a marked improvement by 1990. Mr. Currie felt no need to call on an interpreter when he took a statement from the plaintiff and the plaintiff's counsel was satisfied as to his capacity to give evidence in English; . I formed the view that the plaintiff-understood sufficiently to answer the questions put to him for most of the time that he was in the witness box. His style was .unusual but understandable-- perhaps more so orally than might appear from the transcript. He regularly indicated when he did not understand a word or an expression. However, after he had been in cross-examination for some ·four days __ .... the plaintiff showed signs of random answers· and· considerable physical distress. The latter was confirmed ·by the G·. M. 0. Dr. Carol. In my view, it would be unwise to rely too much upon:his evidence on the morning of Friday, 5th June and I. do not 'do· so-. The passages of the plaintiff's evidence which raise some ~ doubts about his. credit do not derive from answers to particular linguistically difficult questions or even questions conta~nihg conceptual difficulty; as an example, .. the plaintiff advanced a Griffith v. Kerkemeyer claim based upon domestic assistance given to him by three women at whose homes he lived sequentially and·,· he said, continuously from 1987 to.the present. In cross-examination he agreed that for many weekends he stayed with other:~riends~and did his own domestic work and that·he lived at another address at Muller Road, Boondall for seven or eight months without the be.ne·fit of. this assistance .. He further admitted that·· he had.· -been -- 25 of 34 -- imprisoned .-for some . _months in 1990 for -unlawful dealing with a motor vehicle and was required to attend to his own personal needs. Another example. related to his- ownership of cars. His pwnership of a.nu~b~r of cars was very reluctantly admitted after initial . denial._ The plaintiff told Dr. Mulholland in early May 1990 that he had a car but. was trying to sell it due to lack of finance. He did indeed sell a car a few days after seeing Dr. Mulholland but also owned at that time a Mercedes-Benz and a Holden utility. The plaintiff went to~ considerable lengths to conceal his C contact with the Romanian community with plain denials initially in crqss-examination .. It is difficult to understand the reluctance to speak.of.his -pwnership of cars. They were not many and no serious allegation was advanced that he was in the business of dealing with the cars. His reluctance to be associated with the Romanian community given the observations which he made of some of them being "bad" and re-ferences to at least some of his acquaintances being in prison. is probably easily enough explained. None of these matters . s.eeme(i to . me _to be explicable by reference to language ·difficulties. _Capacity.· for work - Bob- Thomas spoke well of the plaintiff as an employee. He was good at hi-s work and-_ also see~ed to enjoy working with cars. He had skills as a construction- fitter greater than he was able to utilise due.to the non-recognition of his qualifications in this country and his poor E11glish. He obtained work as a labourer with c -- 26 of 34 -- E. P. T. shortly after arriving in Australia· for a ·-month or so near Eaton. He resigned, he said, to become naturalised and worked on the south coast of Queensland in high rise construction for just under · two years . He was. substantially unemployed until ·he commenced work with the defendant in July 1986. He ·received a pay- out from the Workers 1 ·Compensation Board in 1989 and since then has been in receipt of an invalid pension. As mentioned above, he·has done some work on his cars and on those of friends. He would probably best be able to work in the context of his own small motor repair business with an employee or two to carry out· the heavy· work whilst he supervised. His situation: is such-that,-- even accepting the deliberate exaggeration of his symptoms, because of the degenerative disease in his back and his psychological attitude to his disability, he is commercially unemployable. The defence made much of comments said to have· been made to Lorraine .Phillips · ih 1990 by the plaintiff that he was on compensation and not·working ~ and that he did not want to get caught by the Workers 1 ·compensation Board. He mentioned·his court·case to her and that when it·wa:s over he planned to visit Romania and to come back to Australi:ci ahd ~/ set up a small car repairing business. Mrs. Phillips was firm that she could recall his conversation correctly and I could find no basis for disbelieving he·r evidence. Ion Borbil opened a garage in Boonah in February 1988 and asked the plaintiff td work for him. He admired the work which the plaintiff had done on his· own Mazda and asked him why he did· not finish it more quickly as·it· could be sold at a profit. The plaintiff said to Borbil that.he couldnot -- 27 of 34 -- becau$e . the Worke_rs ·' Compensation Board .. people. were.· looking for him. H~ also said. tha.t he .could not work because he was too sick and_ discussed _the likelihood of the success of a spinal operation with Borbil. Although it was. suggested to Borbil that he was lying ~hen_giving his account of the conver$ation with respect to the Workers' Compensation Board, I considered that he was an honest witness in this regard. The defence also relied upon the evidence of Dan Harper who was a fellow inmate of the plaintiff at Palen Creek Prison Farm · in . 1990. .,. ·Mr. Harper . maintained that the C plaintiff worked. out regularly in the evening in the prison gym wit~ we.ights. He said that he saw him as he passed through into t~e h~bby Foom on some occasions and that the plaint;i.ff returned wet.with.sweat to their cabin most evenings. Harper said that the - . plain~if.f worked in the. ·machinery shed generally welding broken slashing .. machines during the day and that his rate of work was such that he, Harper, would employ him outside the prison. He concluded th~t .. th.e .-plaintiff worked harder than any one else in the prison ,wor~shops. an<!f observed. that. he saw him_ crouching down and welding C' underneath. a tractor. He also emphasised that the plaintiff spoke fluent English "the same as you and I" and said that on a rare C occasion the plaintiff stqpped to, search· for. a word. Harper is a licensed private detective and does freelance work for the Workers' Compensation Board of Queensland. His bland answer about ·the plaintiff's Engli_sh must be incorrect ... He gave his evidence in an ove:c-confident manner and I .have concluded :that he grossly exag~e;rated the evidence .which-he gave about the :plaintiff. -- 28 of 34 -- : ~\ As I have concluded above, the plaintiff· does have some residual capacity for work greater than found by Mrs. Coles but, in the absence of financial capacity to start up a business or of an employer who would give him part-time work at his own pace1 he is unlikely to be able to exploit it to its full.extent. I turn then to the traditional heads of damage to be considered. Pain and suffering and loss of the amenities of·life It is necessary to discount the plaintiff's pain and suffering because of my finding that he has deliberately ~xaggerated ·his symptoms and also the fact that his· description ·of his life style since his in.jury is not consistent with other evidence. The plaintiff has experienced p~in, discomfort and frustr~tion because of the condition of.his back. There is little evidence as to when the plaintiff might have been expected to experience symptoms but for the trauma which he aileged · occurred; but Dr.··· Sutherland ' ~ mentioned that it is possible that he might have remained ·symptom:.... ~/ free to age 70. This seems unlikely in view of the 'kind of heavy labouring work which· he engaged in( ·but· taking all matt'ers ·into ~ ~/ aC:-count I assess the plaintiff's general damages at $35, 000, $20,000 of which is attributed to the·· pre:....trial period. Past economic loss The defendant has operated-a ·profitable business since the plaintiff left and employees in the workshop· when the plaintiff was . there have been· retained. On the other hand;· the plaintiff did: not -- 29 of 34 -- have an established continuous employment history since coming to Australia in 1981 ... He .-has demonstrated no long term attachment to ~cco~modation, cars or employment. It is unlikely on that history that he .would have remained with the defendant to trial notwi ths.tanding his assertion. ,that he was happy with the defendant and would. ,have remained there . Exhibit 45 establishes . the . ari thmetica;t calculations . done by an accountant based on net earnings after tax for a panelbeater during the period 3rd June, 1987 to 8th November, 1992. To that should be added an extra five ~ ~ weeks net wages of approximately $1,717 making a total amount of app~oximp.tely $86,937. .. From that. figure must be deducted the p,eriod ;from SepteJ!lber to Peceinber 1990 when the plaintiff was in prison . ~hich is approximately. three months at $4, 125 making an arqount of $82,912 .. That amount should be discounted by one-quarter t_o take_ account of my conclusion that the plaintiff wquld have been . . _u,n_likely to remain employed during the whole of the period and this gives ~~igure of $62,109, Future economic loss The present weekly wag~ for a panelbeater is $342.60 gross. The .. plaintiff. said that: had. he .. not been. injured. he would have cqntinued as .l,_ong as he could in panelbeating wor]:<.. Given the heavy nature of the work and the .degenerative disease in his spine • ~ " : e ' - • ' • • the plaintiff may nothave worked beyond 55 years. Using_ the five . - ' . '. ' . . p~rq_ent tables this gives a figure of $224, 208. Now that the lit~gation.has concluded_I think :i,t likely, that the plaintiff will c -- 30 of 34 -- engage in a little more work on cars for his friends for which he will be paid in some form or another. I will suppose that :he could earn about one-quarter of his panelbeating wage over the next 20 years allowing for fluctuations in availability of work and the progress of his back symptoms. That leaves a·figure of $168,156. It ought tobe discounted for the prospectof unemployment on the plaintiff's past history and for the usual vicissitudes of life tb a figure of $140,000. Griffith v.· Kerkemeyer claim The plaintiff initially claimed · that · he had needs of a domestic kind generated by' his injuries for the whole period from May 1987 to the present which were met by Mesdames Lazarescue, Sainy and Buciamann. The latter did not; in the event, give evidence. She and her husband have moved away from where the plaintiff live-~. As mentioned, the evidence reveals that the plaintiff -did nbt -, reside for the whole of the period claimed with the-~~zareicue, Samy and Buciamann families. Doreen Omiros from Domicare gave evidence as to commercial rates for domestic' assistance at·.:- the '----... relevant times. It is difficult to make any· precise calculation in this regard particularly, as here, when the assistance offered was in the context of a f'amily situation where an attempt has been made to assess by how much· the· helpers' ordinary domestic-: tasks have been extended and the difficulty of recalling after ~·ntimber of -\ ·.' years those times. I accept· that the work was done arid that·· the plaintiff needed some assistance due to his-back disability. When -- 31 of 34 -- he did not live with them he had to fend for himself and did so to a .limited extent, no doubt,. but this does not diminish the need. The plaintiff paid board but it was not suggested that these tasks were done prior to the injury and included in the rent. The amount . claimed on behalf of. Mrs. Lazarescue is $5, 070. .I will deduct a quarter of that amount to reflect time spent living elsewhere during the. period. I.t is quite impossible to be precise as it is a matter of impression from the evidence. That amounts to $3,803. Marie Samy's evidence was that the plaintiff lived with her family between May 1989 and February 1990 and that she, like Mrs . . Laz,arescue spent about six hours per week assisting the plaintiff. There is: _li tt.le evidence as to what time was spent away during this period but I,.will round off the claimed figure of $2,376 to $2,000. • 1 • • The evidence _of the provision of services by .Valeria Buciamann between March 1990. and August 1992 is not very satisfactory. I will conclude that she spent no more time per week than Mrs. Lazaresc~e or Mrs. Samy assisting the plaintiff.which brings the amoun,t qlaimed down to $8,500 .. The plaintiff spent a period living at Muller Road, and not with her at 2 Princess Street in 1990. The plaintiff was imprisoned from September to December 1990 and visited Romania about Easter 1992 for approximately six weeks. I will take about a third off for these periods and allow an amount of $5,600 for the services provided by Mrs. Buciamann. The total amount allowed under this head is $11,403. No claim has been made by ··the plaintiff for future Griffi th v. Kerkemeyer needs. c I ( ~ c -- 32 of 34 -- ....__.../ Special damages Special damages have been agreed in the amount of $7,404. 82·. Interest Interest is allowed on pa:st ·general damages ·for · pain and suffering and loss of the amenities of lif~ at two percent per annum from December 1986 to December 1992, ·a. period of six years. (Camm v. Salter [1992] 2 Qd.R. 342 and Jackson v. Bagwell ibid at p.390.) Interest is allowed on past loss of wages at six percent per annum from August 1987 to date. No figures have been adduced setting out the plaintiff's actual loss, that is, the difference between the invalid pension paid and lost wages, and, following Camm v. Salter, ibid., I will not attempt to do so. Interest has been claimed· generally in submissions ·and the defendant has not submitted that it ought not to be awarded· on the Griffith v.· Kerkemeyer claim if allowed. It is allowed at six percent per annum for five years amounting to $3,421 whidh I will round off to $3,000. Summary Pain and suffering and ioss of theamenities of life past and future Interest on $20,000 at 2% per annum Past loss of wages Interest Future loss of earning capacity Special damages $35,000.00 $ 2,400.00 $62,109.00 $19,875.00 $140,000.00 $ 7,404.82 -- 33 of 34 -- Griffith v. Kerkemeyer $11,403.00 Interest on Griffith v. Kerkemeyer damages $ 3,000.00 Total $281,191.82 Less repayment to the Workers' Compensation Board after subtracting the Fox v. Wood component of $3,767.29 $30,153.44 Total $251,038.38 As I concluded, above, at p.12, I do not find the defendant liable and the plaintiff's action is dismissed. There will be judgment against the plaintiff and in favour of the defendant. I will hear submissions as to costs. '. -- 34 of 34 --