JURISDICTION	:	DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION	:	PERTH

CITATION	:	LEE -v- JAMES HARDIE & CO PTY LTD [2000] WADC 191

CORAM	:	MACKNAY DCJ

HEARD	:	6-9, 13 JUNE 2000

DELIVERED	:	21 JULY 2000

FILE NO/S	:	CIV 3517 of 1998

BETWEEN	:	PATRICK NITTAN LEE
Plaintiff
 
AND
 
JAMES HARDIE & CO PTY LTD
Defendant 

Catchwords:
Negligence - Employer and employee - Duty of care - Machine operator attempting to lift drain cover so as to clean drain - Turns on own facts

Damages - Assessment - Personal injury - Plaintiff 53 year old machine operator at time of accident - Soft tissue injury to back - Assessment of damages to which plaintiff would be entitled total assessment in the sum of $305,004, including non-pecuniary loss $35,000 and loss of future economic capacity $52,800
Legislation:
Nil
Result:
Claim allowed

Representation:
Counsel:
Plaintiff	:	Mr R R Cywicki
Defendant	:	Mr D R Clyne
Solicitors:
Plaintiff	:	Macdonald Rudder
Defendant	:	Barker Gosling

Case(s) referred to in judgment(s):

Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18
Jones v Dunkel (1959) 101 CLR 298
Malec v J C Hutton Pty Ltd (1990) 169 CLR 638
McLean v Tedman (1984) 155 CLR 306
Purkess v Crittenden (1965) 114 CLR 164
Sellars v Adelaide Petroleum NL & Ors (1994) 179 CLR 332
Watts v Rake (1960) 108 CLR 158

Case(s) also cited:

Bankstown Foundary Pty Ltd v Braistina (1986) 160 CLR 301
Commonwealth v Introvigne (1982) 150 CLR 258
Ferraloro v Preston Timber Pty Ltd (1982) 42 ALR 629
General Cleaning Contractors Limited v Christmas [1953] AC 180
Kondis v State Transport Authority (1984) 55 ALR 225
McLean's Roylen Cruisers Pty Ltd v McEwan (1984) 54 ALR 3
O'Connor v Commissioner for Government Transport (1954) 100 CLR 225
Raimondo v South Australia (1979) 23 ALR 513
Wyong Shire Council v Shirt (1980) 146 CLR 40

MACKNAY DCJ:  
Introduction
1		The plaintiff was born on 9 July 1944 in Burma.  
2		On 10 July 1997 the plaintiff was in employment with the defendant as a machine operator and on that day was required with another employee to clean a drain at the defendant's premises at Welshpool.  In the course of doing that the plaintiff says that he suffered a soft tissue injury to his back and has as a consequence been unable to work since that time and will be unable to return to any form of gainful employment in the future.  
3		The plaintiff says that his injury resulted from breach of contract, negligence, or breach of statutory duty on the part of the defendant and claims damages for personal injuries as a consequence.  
4		Negligence or breach of other duty is denied on the part of the defendant which also alleges contributory negligence and says that any incapacity for work of the plaintiff is caused by or contributed to by a variety of alleged pre‑existing conditions so that the plaintiff would have been unlikely to work past age 55 years.  But for the accident the defendant also says that it is likely that the plaintiff would have been retrenched due to a downturn in its business and that given his antecedents the plaintiff would have been unlikely to find work elsewhere.  
Pre‑accident history
5		The plaintiff attended school in Burma to the 7th standard and left at age 14 years.  He then found employment as a professional soccer player, for which he received a salary, and also engaged in track and field athletics.  
6		The plaintiff said that he played in the first division soccer competition in Burma, and played for about 10 years, his position being that of centre forward.  He retired as a soccer player in 1969, the plaintiff said.  
7		The plaintiff was then involved in business selling soccer boots and operating a music shop, he said.  
8		In 1975 the plaintiff and his then wife migrated to Australia, the plaintiff said the reason being that his wife's family had already moved here.  
9		On arrival in Perth and within two/three days the plaintiff said that he found employment with the defendant, members of his wife's family already working there.  
10		The plaintiff said that he initially worked as a labourer and then in the despatch section of the defendant's Rivervale facility.  He later moved to the fibre room where he was required to carry out very heavy work which involved lifting of fibre into machines.  The plaintiff thought that he spent about eight/nine years in the fibre room.  
11		In about 1982 the plaintiff said that he hurt his back in the fibre room and lost one/two weeks work prior to returning.  He had been lifting cement bags at the time of his injury.  
12		The plaintiff said that he had otherwise hardly been sick at all, although he did have some medication for diabetes and to lower his blood pressure, and his intention had been to work to age 65 years.  
13		In cross‑examination the plaintiff was then asked about a number of other matters, and their impact on him prior to the accident.  
14		As to his right knee the plaintiff said he might have told a doctor he had some pain there, but he could not now recall, because "it wasn't really serious at all I didn't take much notice of it at all".  He was unable to recall that the knee had been x‑rayed in 1996, he said.  In relation to a day of sick leave in the same year where the right knee was advanced as the reason, the plaintiff said he was able to give any excuse that he wished to, although he may have had the sore knee.  
15		The plaintiff initially said he had not experienced any further back pain between 1984 and the accident, although he had received acupuncture treatment there as part of the treatment for a sore neck.  The plaintiff later agreed he may have complained in 1992 to Dr Ang about back pain, but said he "didn't take it seriously at all" as his work involved bending and lifting.  
16		The plaintiff agreed that he had experienced neck pain in 1994, but said that after the acupuncture treatment it had resolved.  
17		He said he had no recall of having undergone an exercise stress test in 1996, although he agreed he had experienced some chest pain, and also acknowledged some giddiness, but said it was brought on by lack of sleep between shifts.  
18		The plaintiff later worked as a machine operator on a "break out" machine.  That work involved the separation of "super 6" fencing sheets together with stacking of sheets and was very heavy work, the plaintiff said.  He would ordinarily work eight hours per day but sometimes worked double shifts, with some weekend work, and at times would work non‑stop for an entire month, he said.  
19		The work also required him to clean drains, being the "No.3 drain" next to his machine together with the "No.4 drain".  
20		Cleaning of the drains involved the use of a pipe about 4½ft long, the plaintiff said, and once he was told to clean a drain it was understood he would obtain that pipe which was near to the No.3 drain and would then "crank"
 a drain cover up, prior to lifting it with a hook.  Each drain cover was made or iron and was very heavy, the plaintiff said, and assistance was required.  
21		The drains were cleaned regularly once per week, and sometimes twice per week, the plaintiff said.  
22		There was an overhead crane at each of the No.3 and No.4 machines but the plaintiff said that he had no authority to use that and only the foreman and driver were able to use the same.  
Accident
23		On 9 July 1997 the plaintiff was at work on night shift when the foreman, Mr Arnold Campbell, instructed him to clean a drain at the roller door to the premises, the plaintiff said.  
24		The plaintiff had never cleaned that drain before, he said, nor seen it cleaned.  
25		On the instruction being given the plaintiff said he obtained a pipe about 4½ft in length and with another employee, Mr William D’Souza, went to the drain where he attempted to lift the first section of drain cover.  
26		The plaintiff said that the drain cover was very tight and when he tried to lift it he hurt his back, feeling a click and a fire or needle‑like piercing pain to the right side of the back.  
27		The plaintiff immediately stopped and told Mr D’Souza he had hurt himself, and the latter went and informed the foreman, the plaintiff said.  
28		The foreman then attended to lift the drain cover with a crane, the plaintiff said, but the cover had broken apart when that was done.  
29		For the rest of the shift the plaintiff only picked up some rubbish and did some painting in a seated position, he said.  
30		After seeing a doctor at Prime Occupational Health he had gone to see his general practitioner, Dr Ang, the next morning, the plaintiff said.  
31		Dr Ang’s notes record that visit and the plaintiff’s complaint that:  
“Yesterday, while lifting drain cover with an iron bar – felt a sudden pain in the lower back.  Pain persisted – worse today.”  
32		The plaintiff said that Mr D’Souza had been behind him when the accident occurred but rejected any suggestion the work was being done with a crowbar and pipe extension fitted to the end of it, by the two men, or that the relevant drain cover was the third to be lifted, the first two having been removed without incident.  
33		The pipe had been placed in a small hole at the edge of the drain, the plaintiff said, and with one hand in front of the other, and with his knees bent, he had tried to lift the pipe up.  
34		The plaintiff said he had attended safety courses put on by the defendant prior to the accident, and those had demonstrated how he should lift boxes, but he had not received any instruction about drains, and he originally acquired his method in that regard by observation of others, and was aware as a consequence of what was required.  
35		Mr D’Souza, who was aged about 23 years at the time, was a contract worker who had been at the defendant’s premises since March 1997, initially working as a general hand and later as a machine operator.  
36		He said that on the night of 9 July 1997, after the foreman had directed him and the plaintiff to clean the drain, and he had collected a crowbar, he had lifted two drain covers with that bar, without difficulty.  
37		An attempt was then made to lift a third drain cover, with the bar under one end of the cover and parallel with the drain, he said.  
38		In the course of that a hollow extension pipe was fitted over the end of the crowbar, Mr D’Souza said.  
39		The plaintiff stood in front of him holding the crowbar, whilst he stood behind pulling the pipe upwards, Mr D’Souza said.  
40		Despite trying for “some time” the two men were not, however, able to move the cover “at all”, Mr D’Souza said, and the plaintiff then turned around and said that he had hurt his back.  
41		Mr D’Souza said that he went and obtained the foreman who brought up the crane, that not being available to them.  When the crane was used, however, Mr D’Souza said the drain cover broke up and came out in pieces.  
42		It appeared that this drain had not been cleaned before, Mr D’Souza said, and specific safety instruction had not been given to him in relation to the cleaning of drains.  
43		Mr D’Souza’s recollection was that the plaintiff had for the balance of the shift only cleaned up a little rubbish whilst he had cleaned the other drains, he said, although he agreed an earlier written statement had been to a different effect.  
44		Dr Stephen Chew, an engineer and ergonomist, reported inter alia to the defendant, following an inspection of the premises and a demonstration by Mr D’Souza, that:  
“Taking into consideration the Client’s advice that the Plaintiff at the time of the alleged accident would have had 22 years experience as a breakout operators (sic) working for the Defendant including drain cleaning, and Mr Barough’s statement that the standard procedure for the removal of a drain grating is to use a crowbar at either end of the grating and if resistance is felt the overhead crane is to be used, the Plaintiff on balance of probabilities should have been able to decide when the overhead gantry crane was to be used if he at the time was aware of and had followed the standard procedure described by Mr Barough.”  
45		That procedure was, Dr Chew said:  
“a.	The standard operating procedure for the removal of a drain cover or grating is for the Plaintiff to use a crowbar at either end of the grating, to ease or lift the grating away from the drain and if any resistance is felt the overhead crane is to be used.  
b.	The Plaintiff would have removed countless numbers of gratings from drains over the years and he was unaware of the Plaintiff having any previous difficulties with the procedure.  
c.	The metal grid or grating measures 61 cm long, 22 cm wide and 5 cm thick, the weight is 19 kg.  
d.	The crowbar used is 150 cm long and 3 cm wide and weighs 6 kg.”  
46		Dr Chew also noted that:  
“Over a period of time, physical pressure from passing traffic, and scale deposits, can cause the grating to ‘jam’ against the side of the drain, particularly if the gratings and the drains have a tapered fit.”  
47		In evidence he said the lifting technique was similar for using a crowbar or lifting a box.  
48		Dr Chew pointed out that he had not endorsed any work practice in his report and further that the continued use of a crowbar after resistance was encountered was not part of the work practice described.  Those who had the task of cleaning a drain ought be able to use the crane, Dr Chew said and generally there should be good housekeeping procedures in relation to the maintenance of drains.  
49		He did not agree that the Code for Manual Handling 1996 (the Code) published pursuant to the Occupational Safety & Health Act 1984 (WA) (the "OSH Act") contra indicated the use of a crowbar to lift a drain cover or that the use of a fulcrum lever of the kind depicted in the Code was necessary, although he conceded that a greater mechanical advantage could be obtained by some types of lever.  
50		In relation to the plaintiff’s prior history of a back injury, Dr Chew said that his preference would have been for the plaintiff not to do the job, and rather for him to use the overhead crane, or alternatively he would need to be satisfied that the plaintiff was aware what was needed.  
51		The plaintiff’s safety expert, Dr Nedved, considered the defendant’s method, as set out by Dr Chew, was deficient in that pushing upwards with a crowbar gave no indication when more force should not be used, and no advice was given as to when the worker should cease the attempt.  
52		Dr Nedved thought that the use of a device which incorporated a fulcrum lever, which he said would cost about $500, would have been more appropriate and would have prevented the accident.  
53		The doing of the work in the manner described was inconsistent with the Code, he said, which made provision for the use of a fulcrum lever.  
54		Lifting a drain cover an inch or two would place a strain on the back, Dr Nedved said, and lifting from close to the floor put most strain on the back.  
55		The defendant ought to have anticipated that drain covers would jam, Dr Nedved said.  
56		No sufficient instruction was given to the plaintiff and a safe system of work required both appropriate tools and instructions, he said.  The defendant’s instruction ought also to have included practise under supervision of the techniques demonstrated, he said, with ongoing and regular refresher sessions.  
Medical evidence
57		A total of 13 medical practitioners were called by the parties to give evidence, eight of those being called by the plaintiff.  
58		However, if any inference was sought to be drawn from that fact alone that the plaintiff had some extremely complex medical condition then that would not, I think, be justified.  
59		The plaintiff does have an unusual underlying back condition, it was apparently common ground between the doctors, for a person in this country at least, brought about by tuberculosis at an early age, that having caused a natural fusion of the lower part of the thoracic spine, and the development of a kyphosis, with subsequent degeneration in other areas of the spine, including the neck and lumbar spine, and a degree of canal stenosis.  
60		The plaintiff had spent some weeks away from his employment with the defendant in 1984 after a back injury at work.  
61		In the seven years prior to the accident on 9 July 1997 it appeared that the plaintiff had in fact complained to Dr Ang about neck or back pain on a number of occasions, had on some occasions required some further investigation or treatment and had lost some further days from work.  
62		It was also appeared that the plaintiff had suffered from hypertension and late onset diabetes prior to the accident, had complained to Dr Ang prior to the accident about “giddiness” and on one occasion, about chest pain, and had been sent for an exercise stress test, and had also been seen on a number of occasions about symptoms in his right knee, which had been investigated and found to be degenerate.  
63		The defendant having as stated pleaded that any incapacity of the plaintiff was due in whole or in part to all or some of those pre‑accident problems, and that it would in any event have been unlikely that the plaintiff would have worked “beyond the age of 55 years”, if the plaintiff made good his claim of incapacity following the work accident on 9 July 1997, an evidentiary onus fell on the defendant to make good those pleas:  Watts v Rake (1960) 108 CLR 158; Purkess v Crittenden (1965) 114 CLR 164.  
64		As was said by Dixon CJ in Watts (at 160):  
“If the disabilities of the plaintiff can be disentangled and one or more traced to causes in which the injuries he sustained through the accident play no part, it is the defendant who should be required to do the disentangling and to exclude the operation of the accident as a contributory cause.  If it be the case that at some future date the plaintiff would in any event have reached his present pitiable state, the defendant should be called upon to prove that satisfactorily and moreover to show the period at the close of which it would have occurred.  For myself I do not think that he has proved more than that at an earlier time than other men the plaintiff would have reached a state of disability but not the same disability.”  
65		The defendant, no doubt in anticipation of a need so to do, sought to discharge that onus by calling evidence from Mr N Batalin, who had seen the plaintiff at the request of his subsequent general practitioner, Dr Tan, within, it would appear, a week of the accident of 9 July 1997, and who saw the plaintiff on a number of subsequent occasions, and also from two occupational physicians, Professor Hollingworth and Dr Connaughton, each of whom had conducted a medico legal review of the plaintiff for the defendant.  
66		Mr Batalin said the plaintiff had originally complained of “mid and upper” back pain with restriction of movement, but there had been a very substantial increase in movement when indirect examination was carried out.  Various investigations were done at that time and given the plaintiff’s underlying back condition the doctor said he would have expected the plaintiff to have had far more symptoms earlier than claimed, and was “very surprised” that was said not to have been the case.  
67		There is nothing in Mr Batalin’s initial report to indicate that he accepted that the plaintiff had sustained any discreet injury on 9 July 1997, and in his second report of September 1998 the doctor said that accident “should be simply viewed as a situation under which pre‑existing significant pathology became symptomatic”, that is the plaintiff “was likely to develop symptoms sooner or later and would have done so irrespective of the incident of 9 July 1997”.  In evidence Mr Batalin then said that he thought that would have been “inevitable”.  
68		Irrespective of the accident, given the plaintiff’s spine he had never been fit for work as a labourer, Mr Batalin further reported, and he would in any event have developed similar symptoms within a short time.  
69		Mr Batalin subsequently conceded, in his report of January 2000, that “(b)eing very generous to the (plaintiff) … there may have been a strain ‑ aggravation” of the plaintiff’s degenerate and deformed spine, although that had had “ample time to stabilise and improve”, whilst the plaintiff’s symptoms had worsened, thus “clearly showing work-related factors are not the principal cause of underlying pathology”.  
70		In evidence he said that “being generous to all sides” there may have been a “minor strain”, an “unmasking” event.  
71		The plaintiff’s complaint was now of low not middle back pain, Mr Batalin said, with the pain in a different distribution, and given the time lapse and absence of radiological evidence of injury the only conclusion was that the pre‑existing pathology was the cause of the pain.  
72		Professor Hollingworth, who said he did not believe the plaintiff was “lying in his teeth”, or exaggerating his symptoms, also considered that given the passage of time and the existence of worsening symptoms the likely cause of the increase in the plaintiff’s pain was not a soft tissue injury but the degeneration in the plaintiff’s spine.  
73		As to the risk of back injury prior to 9 July 1997, the doctor said that even if the accident had not occurred he doubted the plaintiff would still be at work.  
74		The plaintiff’s other medical problems would also be reason enough for him not to work to age 65 years, he said.  
75		Professor Hollingworth thought the plaintiff still had some symptoms from a soft tissue injury sustained in the accident, but that given the existence of the degeneration and of pre‑existing symptoms less than 10 per cent of his post‑accident symptoms could be attributed to that injury.  
76		Dr Connaughton did consider examination of the plaintiff revealed what he described as "abnormal illness behaviour and inconsistencies".  That made "an anatomical diagnosis" extremely difficult to arrive at, the doctor reported, although he also considered that "it is reasonable to say on the balance of probability that the (plaintiff) would most likely be experiencing symptoms from his pre‑existing spinal problem even had the incident of 9 July 1997 not occurred".  
77		In December 1999 Dr Connaughton reported that the plaintiff then complained of worsening symptoms, although examination "was highlighted by the full spectrum of signs of functional overlay and inconsistency", and the doctor further stated:  
"Regardless of the issue in relation to the exact anatomical diagnosis and his previous tuberculosis - I think it is important to see his current situation in context with the other factors.  The extensive inconsistencies and functional overlay on clinical examination indicate that factors other than the medical condition in his low back are having a major influence on his current presentation and level of disability.  The normal pattern following a sprain or strain, or aggravation of pre‑existing condition - is that with time the level of symptoms and disability progressively decrease.  In his circumstances he reports that the opposite is occurring - that symptoms are spreading, diversifying, worsening and resulting in greater disability.  In view of that history, together with the functional overlay on clinical examination, it is my view that the most significant factor in his current disability is his Workers' Compensation claim, and the events associated with that.  In my view those issues are of much greater significance than his activities at work 2½ years ago, or the childhood tuberculous infection.  Medical research has clearly demonstrated that the period of disability for work is primarily influenced by compensation status.  Research in South Australia showed that for back injuries that the average time off work was a week, compared to a year for similar injuries covered by compensation."  
78		The doctor later stated that in his opinion the plaintiff would not in any event have been able to do his work to age 65 years, given his medical history, and said in evidence that he thought the plaintiff would have had a disabling episode within two years of the accident date, and that the plaintiff's chances of not being disabled within that time would have been very low.  
79		The defendant also called to give evidence the plaintiff's past and present general practitioners, Dr Ang and Dr Tan.  
80		A senior neurosurgeon, Mr Michael Lee, who was called by the plaintiff, had first seen the plaintiff in August 1997 for what the doctor described as a "second opinion" and had reported to Dr Tan in the same month that:  
"I suspect that what has happened is that he has a long standing but previously asymptomatic spinal pathology but has been mechanically strained when he lifted a heavy drain cover at work on the 9th July of this year.  Six weeks is a very short period of time in the context of this type of injury with underlying pathology, I suspect it will probably take a long time to settle down and what is of course, uncertain, is whether his back has the capacity to recover from such a physical insult.  
From a neurological perspective, I think the state of his spinal cord ought to be considered.  Whilst he appears to be neurologically intact, there may have been underlying cord pathology that may have been affected.  I think it is unlikely but I don't think that one can be that certain to dismiss such a possibility.  I have made arrangements therefore for him to undergo an MR of his spinal cord and I will be in touch in due course."  
81		Following the MRI scan, in early September 1997, Mr Lee then advised Dr Tan:  
"(The scan) has shown long standing changes in the thoraco‑lumbar region consistent with old tuberculosis disease.  It also shows the long standing distortion of the cord but more importantly there is no evidence of cord gliosis or syringomyelia.  There is no evidence of changes in the area of fusion and kyphosis to suggest a recent event.  
The pain that he is experiencing at the moment is predominantly to the right of this vertebral column in the subcostal region.  I don't think there is an inevitability that the pain is related to this long standing pathology.  I think it could well be related to myofacial tear or the like surrounding that region.  
Unfortunately I suspect that there is not much that one can do to relieve him of his pain other than the passage of time.  I have referred him to Dr. Paul Graziotti to see if he feels he can help.  Historically his present condition is related to the accident at work on the 9th July."  
82		In October 1997, when reporting to an insurance company, Mr Lee further stated:  
"(The plaintiff) gives a clear cut history that his present problem started when he lifted a heavy drain cover.  I find it very difficult to understand how such an incident can be ignored in terms of explaining his present predicament.  Certainly I think it is fair to conclude that his back was vulnerable to such an injury by virtue of this pre‑existing and long standing condition but that is another matter."  
83		In March 1998, following a further review of the plaintiff, Mr Lee expressed the view that the plaintiff was not then fit to return to his employment and he thought "the reality of the situation is that he is not going to work again".  
84		In evidence Mr Lee said that "generally speaking" he considered the plaintiff had suffered a myofascial tear in the lumbar spine, and that "injury had de‑compensated a long standing degenerative spine".  
85		The other treating doctors called by the plaintiff comprised Dr Graziotti and another pain specialist, Dr Salmon, and a neurologist, Dr Goodheart.  
86		Three doctors who conducted medico‑legal reviews for the plaintiff's then solicitors, Mr Narula, a neurosurgeon, Professor Harper, an occupational physician, and Dr Tandon, a thoracic specialist, were also called.  
87		Finally, a medico‑legal report of Mr Barrie Slinger, a spinal surgeon, was tendered by the plaintiff.  
88		Dr Graziotti saw the plaintiff in September 1997, when the plaintiff complained of pain localised to the right upper lumbar area, aggravated by any form of movement, and requiring the use of a walking stick.  
89		The plaintiff had reported an episode of back pain 15 years before, treated with massage, and which settled spontaneously.  
90		In Dr Graziotti's view the area below the fused thoracic area had been made symptomatic by the accident.  
91		Subsequently Dr Graziotti administered facet joint injections, and then a radio frequency rhizotomy, with an initial report of improvement by the plaintiff after the latter.  
92		Dr Salmon saw the plaintiff on several occasions between January 1998 and February 2000, and initially recorded a complaint of right‑sided pain in the dorso lumbar region and in the thigh region, with additional pain and variable numbness and weakness in the right hip and thigh to the knee after the radio frequency rhizotomy.  
93		"More recently" the plaintiff had "noticed the onset of pain around the base of the neck, predominantly on the right side", and also variable numbness in the left forearm and two fingers of the left hand, the doctor stated.  
94		The plaintiff "remembered" a similar episode of right‑sided dorso lumbar pain about 10 years before, Dr Salmon said, which had resulted in the plaintiff being off work for a few weeks.  
95		Dr Salmon administered a psychometric test to the plaintiff which showed depression in the moderate to severe range, he said.  
96		In the doctor's opinion it was a "moot point whether (the plaintiff) would have made it to retirement without developing significant back pain …".  
97		The initial treatment recommended by Dr Salmon included a specialised exercise programme and medication, the medication later being altered to include liquid Morphine and then MS Contin, the doctor said.  
98		In January 1999 Dr Salmon reported that the plaintiff then complained of pain in the right knee, which the doctor said he thought arose at least in part from his "lumbar spine and pain related to degeneration (which) may be expected to be provoked by his very much reduced activity and abnormal posturing …".  
99		In the following month the doctor then reported that both left and right knee pain was becoming an increasing problem for the plaintiff, and his "back pain is exacerbated by sitting and his knee pain by standing and walking, the result is he seems to be spending more and more time bedbound".  
100		In evidence Dr Salmon said in January 1998 the plaintiff had said his neck pain had come on in the previous three/four months.  
101		Exercise would improve the plaintiff's symptoms, the doctor said, and it was not too late for him to undertake more exercise.  
102		On being informed of complaints by the plaintiff to Dr Ang prior to the accident of neck and back ache Dr Salmon thought such were "probably par for the course for someone in manual work in their forties and fifties".  
103		Dr Goodheart stated in October 1999 that he had seen the plaintiff, who had been referred to him by Dr Tan for neurological review, and he thought the plaintiff then suffered from "significant spinal cord irritation, both at the cervical level but also at the thoraco lumbar junction level".  
104		On being informed the plaintiff had complained of neck symptoms some years before the doctor said in evidence that made it less likely there was a significant neurological disturbance there.  
105		Dr Goodheart had recorded in his initial report that the plaintiff complained of numbness in three fingers of the left hand, that having become worse after lumbar injections in October 1997, and in evidence, and during cross‑examination, he acknowledged that he had conducted electrical myelography tests on the plaintiff, and that those had not provided any evidence of cervical radiculopathy, and that the numbness in left "hand can be explained on the basis of carpal tunnel syndrome which is the problem here".  
106		Mr Narula saw the plaintiff in May 1999, noted that the plaintiff said he had had only one prior episode of back pain, and expressed the view that the plaintiff had sustained an injury which had left him with a "functional disability" and that the plaintiff's "current disability is directly attributable to the accident at work on 9 July 1997".  
107		In evidence, and on being informed that there were other pre‑accident complaints of back pain by the plaintiff, Mr Narula first said the plaintiff's back condition had left his cervical spine and his lumbar spine predisposed to developing a problem with respect to either wear and tear or injury, and later agreed that "if he has a predisposition, then he is probably getting early symptoms of that".  
108		The plaintiff's neck degeneration and pre‑accident symptoms meant there was a possibility the plaintiff would have had problems in working to retirement age, Mr Narula said, although for his neck pain to increase following the onset of lumbar problems was not unusual.  
109		Professor Harper reviewed the plaintiff in July 1999, and reported that he attributed the plaintiff's "functional disability to the combined effect of his pre‑existing spinal pathology and the lifting incident of the 9.7.97".  
110		In evidence Professor Harper explained that as the plaintiff had worked to the date of the accident he attributed the plaintiff's incapacity to that event, and that a history of complaints of back pain to Dr Ang would not cause him to change that view.  
111		In his report Professor Harper said that it was "at least possible, and it may have been probable" that the plaintiff would have worked to retirement age free of disability, but in the light of his prior back problems and other existing and possible problems he said in evidence that the plaintiff would have definitely been at risk of not getting to 65 years working.  
112		Dr Tandon saw the plaintiff in April 2000 and also expressed the view that the plaintiff's accident was responsible for his present symptoms, and that but for the same he would have continued working until normal retiring age.  In evidence, however, the doctor said that he was not purporting to provide an orthopaedic view as to the matter.  
113		Mr Slinger saw the plaintiff in February 1998 and reported that his symptoms represented a soft tissue injury to the lumbar spine occasioned by the accident of 9 July 1997, the plaintiff's degenerative changes to his lumbar spine having been asymptomatic prior to that accident, on the history provided by him.  
Post‑accident
114		The plaintiff said that none of his post‑accident treatment had really helped him, whilst an injection from Dr Graziotti "really hurt me very badly", with the onset of pins and needles in his legs and hands, that resulting in those, together with numbness, still being experienced in the left knee and foot, and left shoulder, arm and hand, as well as three fingers of that hand.  
115		Dr Graziotti had also "lifted me up very roughly" so as to cause "real pain", the plaintiff said, so that he did not want to see that doctor any more.  
116		The plaintiff had also developed right‑sided neck pain after the treatment from Dr Graziotti, he said, with pain in the shoulder, hands, leg, back, and one side of the leg.  
117		His present lower back pain was on the right, the plaintiff said, and was severe, as though he was being pierced with something sharp, and medication relieved it only for a short period.  He also experienced pain in the left leg.  
118		The neck pain was similar, he said, and he experienced pain in both knees.  
119		As a result of his problems the plaintiff said he had lost the ability to drive a car, lift things, cook, shop, vacuum, and iron clothes.  
120		He was totally dependent on his wife, who assisted him to get up, breakfast, shower, dress, take medication and apply a hotpack, the plaintiff said.  
121		Mrs Lee had not assisted him with any of those activities prior to the accident, the plaintiff said.  
122		The lost ability to drive a car had come about two or three days after the accident, the plaintiff said.  
123		Prior to the accident he was very active, the plaintiff said, and engaged in many sporting and social activities, none of which he could now pursue.  
124		As to how he now spent his day, the plaintiff said:  
"… I have to be lying down.  I have to be in a resting position most of the time and if there's news, I look at the news sometimes on TV.  So I don't get permanently disabled, I try to walk up and down in the house.  That's how I spend the day."  
125		The plaintiff is, he said, very depressed about his situation, and "I think about it".  
Defendant's redundancies
126		Mr Barugh, the human resources and environment, health and safety manager for the site, stated that in December 1995 there were about 230 people employed at the defendant's site at Welshpool, and that number had been reduced to about 120 through a series of retrenchments, after a downturn in production.  
127		The retrenchments, which were done on a voluntary basis, took place in stages, from early 1998, Mr Barugh said.  
128		There were selection criteria, Mr Barugh said, which took into account the ability of a worker to use new machines, and his/her adaptability, the new machines being equipped with computer screens and keyboards so that literacy skills and some computer knowledge and keyboard ability would be essential.  
129		The plaintiff had an absence of the skills required, Mr Barugh said, and in his opinion the plaintiff "had a very limited future" with the defendant, and "it would have been very likely" that but for the accident the plaintiff "would have been offered a retrenchment and strongly encouraged to accept it".  
130		Mr Rodoreda, the defendant's production manager at the Welshpool site, spoke of the identification of employees to be offered redundancy in similar terms and said the plaintiff, who was then on workers' compensation, had in fact been considered and he had spoken to his manager about it who had said that given the plaintiff's then position no action should be taken.  
131		Had it not been for the plaintiff's position he would have been offered a redundancy, Mr Rodoreda said, and given the high level of acceptance it was quite likely he would have accepted.  Although redundancies to date had been voluntary Mr Rodoreda said that might not be the case in the future.  
Liability
132		The plaintiff's claim in contract and that in negligence are in similar terms, the gravamen of the relevant obligations in each case being said to be:  
"(a)	the Defendant would take all reasonable precautions for the safety of the Plaintiff whilst he was engaged in the said employment;  
(b)	the Defendant would not expose the Plaintiff to a risk of damage or injury of which it knew or ought to have known;  
(c)	the Defendant would provide a safe system of work for the Plaintiff;  
(d)	the Defendant would provide a safe place of work for the Plaintiff."  
133		The breaches of contract and of duty alleged are then in identical terms:  
"The Defendant, its servants or agents:-
(a)	failed to take all reasonable precautions for the safety of the Plaintiff in that the Defendant instructed the Plaintiff to open the cover without:-
(i)	first inspecting its condition;  
(ii)	providing suitable equipment such as a mobile crane or welding equipment and sufficient co‑workers necessary to open the cover;  
(b)	exposed the Plaintiff to a risk of damage or injury of which it knew or ought to have known in that the Defendant:-  
(i)	required the Plaintiff to open the cover in the absence of suitable equipment such as a mobile crane or welding equipment and sufficient co‑workers;  
(ii)	with the knowledge that the Plaintiff suffered with a pre‑existing kyphotic condition and further suffered a back injury in the course of his employment with the Defendant in 1984;  
(A)	required him to carry out heavy manual lifting;  
(B)	failed to carry out a functional capacity assessment prior to requiring him to carry out labouring duties.  
(c)	failed to provide a safe system of work for the Plaintiff in that the Defendant:-  
(i)	required the Plaintiff to open the cover in the absence of suitable equipment such as a mobile crane or welding equipment and sufficient co‑workers;  
(ii)	required the Plaintiff to open the cover in the absence of suitable equipment such as a crane or welding equipment and suitable co‑workers;  
(iii)	failed to instruct the Plaintiff as to how to open the cover in the absence of a suitable device or sufficient co‑workers;  
(iv)	failed to carry out a risk assessment of the opening of the cover prior to instructing the Plaintiff to open the cover;  
(v)	failed to implement a safety policy in respect of manual handling of objects by its employees, including the Plaintiff;  and 
(vi)	failed to warn the Plaintiff as to the risk of injury in the event of him applying excessive force to the crow bar to open the cover."  
134		The statutory claim alleges that under the OSH Act, s 19, the defendant was obliged to provide and maintain a work place, plant and system of work such that, so far as was practicable, the plaintiff was not exposed to hazards, and to provide such information, instruction and training to, supervision of the plaintiff, as was necessary to allow him to do his work in such a manner that he was not exposed to hazards, and that in breach of that statutory duty the defendant failed to fulfil either obligation.  
135		Notwithstanding the variety of pleaded causes of action, and as is the apparently universal practice, the case was presented and argument advanced as if the plaintiff's claim was solely one in negligence.  
136		I therefore intend to treat it as such.  
137		The duty of an employer "is that of a reasonably prudent employer and it is a duty to take reasonable care to avoid exposing the employees to unnecessary risks of injury.  The degree of care and foresight required from an employer must naturally vary with the circumstances of each case":  Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18 at 25 per Dixon CJ and Kitto J.  
138		In McLean v Tedman (1984) 155 CLR 306, 313 Mason, Wilson, Brennan and Dawson JJ said that:  
"The employer's obligation is not merely to provide a safe system of work; it is an obligation to establish, maintain and enforce such a system.  Accident prevention is unquestionably one of the modern responsibilities of an employer:  see Fleming, Law of Torts, 6th ed (1983), pp 480-481.  And in deciding whether an employer has discharged his common law obligations to his employees the Court must take account of the power of the employer to prescribe, warn, command and enforce obedience to his commands."  
139		In the present case the plaintiff of course gave evidence and called Mr D'Souza in relation to the circumstances of the accident, but there is a significant disparity as to the events which led to the accident, and as to the precise mechanism of the accident itself, between his evidence and that of Mr D'Souza.  
140		The defendant did not call the foreman, Mr Campbell, to give evidence, and no other evidence was led as to the condition of the drain, the availability of tools, or the availability of the overhead crane.  
141		For reasons which appear later the evidence of the plaintiff cannot be regarded as reliable in several respects, in my view, and having regard to that and the inherent lack of likelihood that the accident would have occurred in the manner described by the plaintiff, I prefer the account given by Mr D'Souza, which seemed far more likely.  Mr D'Souza was, I consider, an honest witness, with a reasonable recollection.  
142		I find therefore that the accident occurred after the plaintiff and Mr D'Souza had been sent to clean the relevant drain, and that after easy removal of the first two drain covers difficulty was encountered with the third.  
143		A crowbar with a pipe extension was then placed under the open end of the cover, and in line with it, and the plaintiff then positioned himself so as to lift the crowbar, with his hands placed near its end away from the drain cover, and with Mr D'Souza behind him so as to be in a position to lift the pipe.  
144		The two men then attempted to lift the drain cover, but despite the application of that force it would not move.  
145		In the course of doing that the plaintiff hurt his back.  
146		On the accident being reported to the foreman the crane was brought up.  However, when an attempt was made to lift the drain cover with the crane it broke into pieces, it would appear as a result of either being wedged into or fixed for some other reason to the drain.  
147		The plaintiff and Mr D'Souza did not have access to the crane, except indirectly by making a request to the foreman.  
148		The drain was not one which was regularly maintained, as were those drains in close proximity to the machines, which were cleaned at least weekly.  
149		As Dr Chew noted, physical pressure from passing traffic, and scale deposits, could cause a drain cover to "jam" against the side of a drain.  
150		It is clear from the above that it was as a result of that occurring with this drain cover that the plaintiff injured his back.  
151		It is also clear that the plaintiff did not follow the procedure which Dr Chew said he had been informed of, as the defendant's standard procedure for the task, and nor would I find that the plaintiff was aware of it, there being no evidence that was the case.  
152		I did not understand Dr Chew to endorse a practice in which there was continued use of a crowbar after resistance was encountered.  
153		In any event, for the reasons given by Dr Nedved I accept his evidence that such a procedure exposed an employee following it to a real risk of a back injury, and further that was unnecessary, as a crane was available and readily able to be used, so that an appropriate instruction would avert the risk.  
154		Alternatively, the provision, and direction for use, of a device of the kind depicted in the Code would produce a similar outcome.  
155		In relation to the condition of the drain, although given my views as to the reliability of the plaintiff's evidence, and the fact that Mr D'Souza had only been there for about four months, a question does arise as to the accuracy of the assertion that the drain had not been cleaned previously, on reflection I consider that the absence of any evidence in rebuttal from the defendant, where it might have been expected if the allegation was untrue, is a relevant circumstance and one which causes me more readily to accept the plaintiff's evidence on this point:  see Jones v Dunkel (1959) 101 CLR 298.  
156		That the drain had not been cleaned for a long time did amount to a failure to observe the need for industrial hygiene, or good housekeeping, spoken of by Dr Chew.  
157		That also gave rise in my view to a need, in all the circumstances, for the foreman to inspect the drain and its covers prior to the plaintiff and Mr D'Souza commencing the work.  
158		Had that been done it would seem probable that the crane would have been brought up to deal with the jammed drain cover, and the accident thereby avoided.  
159		Finally, given the plaintiff's history of a back injury, and in the circumstances here, and in the light of Dr Chew's evidence, in my view the plaintiff ought to have been regarded as somebody who was unsuitable for this particular job, if the use of a crowbar on a drain which had not been cleaned for a long time was contemplated, and the plaintiff ought not to have been required to undertake the work that he did.  
160		For those reasons I consider the defendant is liable in negligence to the plaintiff for any injury caused as a result of the accident on 9 July 1997.  
161		The situation being one where the plaintiff was required, without instruction, to perform an unusual task, and the accident having resulted from a simple failure on the part of the plaintiff to cope with those circumstances, I do not consider the plaintiff ought be regarded as being guilty of any contributory negligence.  
Damages
162		As stated, I am unable to generally rely on the plaintiff's evidence.  
163		In that regard the plaintiff's provision of erroneous or misleading information about his pre‑accident medical condition to various doctors following the accident, and his evidence about his pre‑accident medical condition, which revealed caution and a lack of frankness, and his presentation, demonstrated that unreliability.  
164		Given those things, the plaintiff does appear as a person conscious of his claim and the claim mechanism, and an improvement in both function and symptoms would seem probable once this matter is resolved.  
165		It is the case, as is apparent from his medical history, that the plaintiff was able to function in his employment prior to the accident, and given the nature of that, his spontaneous complaint at the time of the accident, and the medical findings on examination in the period shortly thereafter, I accept that the plaintiff did suffer a back injury such as to then prevent him from working.  
166		At the end of the day there was common ground between the two specialists who saw the plaintiff in that period, Mr Batalin and Mr Lee, that the plaintiff had sustained a soft tissue injury of some kind, and that provides support for that finding.  
167		As to why the plaintiff failed to recover from his soft tissue injury, if there be conflict, I prefer the view of Mr Lee that the plaintiff's injury had decompensated a degenerative spine, as that would appear to accord with the fact that the plaintiff has been inactive, and would lose muscle tone, and hence with ordinary human experience, whilst the doctors' expertise is undeniable.  
168		I say if there is conflict because Mr Batalin did refer to the accident having been an unmasking event, and that would seem to acknowledge a connection between the accident and what that doctor regarded as symptoms later coming from the degeneration in the plaintiff's spine.  
169		I would therefore find that the cause of the plaintiff's back symptoms was and continues to be the accident of 10 July 1997.  
170		Whatever the extent of those symptoms in the past and present, and whatever the likelihood of improvement, such have been sufficient to prevent the plaintiff returning to work, and given his age and lack of skills, and the state of the defendant's present operations, I think it is clear that the plaintiff did effectively lose his economic capacity as a result of the accident, as Mr Lee said in March 1998.  
171		As to the question of how long the plaintiff might have worked had the accident not occurred I would, speaking generally, prefer the pessimistic assessment of Mr Batalin and the two occupational specialists called by the defendant, to the more optimistic expressions of view given by Professor Harper and Mr Narula.  
172		Mr Batalin, in particular, first saw the plaintiff in order to treat him just after the accident and has seen him on a number of occasions since, and not simply for medico‑legal review.  
173		Further, it is common ground that the plaintiff's pre‑accident degeneration was severe, due to the changes in this spine brought about by the tuberculosis suffered by him.  
174		I therefore consider the defendant has discharged any evidentiary onus on it.  
175		As to the age at which the plaintiff might have found it necessary to cease work, if the accident had not occurred, it is the case that since Watts v Purkis the fact that any assessment of that kind relates to a hypothetical event and thus requires a consideration of all competing possibilities rather than a finding on balance of probabilities has been emphasised:  see Malec v J C Hutton Pty Ltd (1990) 169 CLR 638; Sellars v Adelaide Petroleum NL & Ors (1994) 179 CLR 332.  
176		Following any such consideration a balance must of course be struck which reflects all of those possibilities.  
177		In the present case, clearly more than one particular outcome was possible, immediately prior to the accident.  
178		Doing the best that I can, and having regard to the evidence as to the plaintiff's pre‑accident medical condition and skills, the defendant's operations, the medical evidence and my findings above I would assess loss of economic capacity on the basis of an allowance for lost wages and any overtime to date and then for a further two years, without any additional deduction for contingencies for the possibility the plaintiff would have taken a redundancy, or otherwise.  
179		In relation to the claim for voluntary assistance s 93F of the Workers' Compensation & Rehabilitation Act 1981 (WA) (the Workers' Compensation Act) is relevant, and provides in part:  
"(1)	This section limits the damages that may be awarded for the value of gratuitous services of a domestic nature or gratuitous services relating to nursing and attendance that have been or are to be provided to the person in whose favour the award is made by a member of the same household or family as the person.  
(2)	No damages are to be awarded for the value of the services if the services would have been or would be provided to the person even if the person had not suffered the disability."  
180		The plaintiff says that any allowance ought be assessed on the basis of an hourly rate of $14.65, and that is accepted on behalf of the defendant.  
181		The plaintiff's wife gave evidence that the plaintiff engaged in a very wide range of domestic activities prior to the accident, whereas she did not, but I would not rely on that, it being unlikely, and the evidence being self‑serving.  
182		In those circumstances it seems to me that I cannot find that the plaintiff has established, in relation to household work, that it would not have been done anyway.  
183		The plaintiff is not therefore entitled to any allowance in relation to any lost ability to do that work.  
184		I would therefore only make an allowance in relation to assistance given to the plaintiff in respect of personal function.  
185		In that respect, and given my inability to rely on what the plaintiff and Mrs Lee have said to me any assessment is necessarily a conservative one, based simply on the fact that the plaintiff has had a back injury which has been productive of a reasonable level of symptoms, and in those circumstances some assistance would ordinarily be required.  
186		I would allow assistance of one hour per day.  
187		The relevant heads of damage, and my assessment in each case, are then as follows:  
•	Non‑pecuniary loss
188		Section 93E of the Workers' Compensation Act has application.  
189		An appropriate proportion would in my view be of the order of $35,000.  
•	Special damages
190		Special damages, apart from the claimed travel expenses were, I was told, agreed in a sum of $26,483.11.  
191		I allow the claim for travelling of $567.73, in the absence of any dispute about it.  
192		The total under this head may then be rounded off as $27,051.  
	Future medical expenses
193		It is not possible to estimate with any precision the extent of the future medical and pharmaceutical needs of the plaintiff, given my findings.  
194		Not all of his needs will in any event be accident related.  
195		Only a general assessment can be made and I allow $750 per annum.  
196		If the plaintiff's life expectancy is approximately 23 years an appropriate multiplier is 661 and the loss, rounded off, $9,540.  
197		I would not make any reduction for contingencies, those being of each kind.  
	Loss of past economic capacity
198		Amounts said to have been calculated to 6 June 2000 were put forward as follows:  
-	workers' compensation paid	 $75,884.63
-	net overtime said to have been lost $18,654
-	interest claimed on that overtime of $3,257.  
199		The gross weekly workers' compensation payment applicable after that date was said to be $637.77.  
200		An ongoing loss of overtime at a rate of $119.46 per week was also claimed.  
201		However, it is apparent the available overtime has now been reduced.  If there is any ongoing loss I am not in a position to assess it.  
202		The defendant through counsel did not otherwise dispute the above figures and I will therefore allow them, with the exception of interest, which would not appear to have been calculated by the correct method, and which I would halve, apart from an extension of $67.  
203		The lost to date, other than superannuation, is then $99,993.  
204		I allow the claim for past loss of superannuation in the amount sought, $1,346.  
205		The total loss under this head is then $101,406.  
	Loss of future economic capacity
206		The loss for a further two years ought be calculated, it is said to be common ground, on a net weekly wage of $500.56.  
207		An appropriate multiplier is 98.5, and the loss, apart from superannuation, is $49,305.  
208		The equivalent gross weekly wage is said to be $633.58, and superannuation for the same period at 8 per cent less a deduction of 30 per cent for expenses, that being conceded by the plaintiff, would be $3,495.  
209		The loss under this head is then $52,800.  
	Past gratuitous assistance
210		A period of two years and one week has elapsed since the date of the accident.  
211		Assistance of one hour per day at the rate of $14.65 per hour produces a value for the assistance of $102.55 per week.  
212		The amount to date is then $10,768.  
213		Interest for the relevant period at a half rate of 3 per centum per annum ought also be allowed, and that is $153.  
214		The assessment under this head is then $11,421.  
	Future gratuitous assistance
215		Utilising the whole of life multiplier referred to and the weekly value of the assistance of $102.55 produces a sum of $67,786, and I allow that.  
216		I do not make any deduction for contingencies, and in respect of the likelihood that the plaintiff would have experienced some back symptoms in any event, I do not find that the defendant has discharged its onus in that respect in relation to any need for gratuitous services, given that there is no evidence to that effect, and given that the allowance for services made is, as stated, confined to that for personal assistance.  
217		Again, and in any event, not all contingencies are, from the plaintiff's viewpoint, adverse, and the assessment is, as also stated, a conservative one.  

218		In summary:  
			Non-pecuniary loss 				$ 35,000.00
			Special damages					$ 27,051.00
			Future medical expenses				$   9,540.00
			Past economic capacity				$101,406.00
			Loss of future economic capacity		$ 52,800.00
			Past gratuitous assistance				$ 11,421.00
			Future gratuitous assistance			$ 67,786.00
										$305,004.00
219		I will hear from the parties in relation to the question whether the plaintiff is entitled to judgment against the defendant in that sum, in the light of any relevant statutory constraints.