Sam Chamma v Soliman & Sons Pty Ltd & Ors

At all material times, the Plaintiff was employed by the Second Defendant (Chubs) as an apprentice carpenter. On 18 June 2004, during the course of his employment, he was injured when he fell from a partly completed second floor balcony at 9-17 Robertson Road, Sutherland (the building site) on which a block of home units was in the course of construction.

The First Defendant (Soliman) was the head contractor in occupation of the building site and responsible for the construction of the home unit building. It had subcontracted with Chubs for the provision of carpentry work.

The Third Defendant (Atra) had contracted with Soliman for the provision of foreman services at the building site.

In respect of his injuries, the Plaintiff brought this action against Soliman, Chubs and Atra.

At the hearing the Plaintiff was represented by Mr P Semmler QC with Mr G Walsh, Soliman by Mr P S Jones, and Chubs by Mr D O’Dowd. On the first day of hearing, Mr Sandroussi, solicitor, appeared for Atra. He thereafter appeared from time to time but took very little part in the trial. On 14 November 2007, the 23rd day of hearing, upon the application of Mr Semmler, I dismissed the proceedings against Atra with no order as to costs. THE PLEADINGS:

By his Third Further Amended Statement of Claim, the Plaintiff pleaded causes of action in negligence and upon the alleged cause of action arising from breaches of the Occupational Health and Safety Regulation 2001.

Soliman was sued on the basis that at relevant times the building site was occupied by it and was under its care, control and management. Chubs was sued as the Plaintiff’s employer. All these assertions were admitted on the pleadings or during the course of the trial.

The two causes of action were extensively particularised, but it is unnecessary to detail such particulars. Nor is it necessary to refer to the detailed particulars of the Plaintiff’s injuries and disabilities. Suffice to say that he fell over 5 metres on to concrete and suffered injuries, which included multiple fractures of bones in his face, right arm, left wrist and right knee.

The Defendants, in effect, denied negligence; denied breach of the regulation; pleaded the benefit of s151Z and other relevant provisions of the Workers Compensation Act; and pleaded contributory negligence by the Plaintiff. There were cross-claims seeking contribution or indemnity between the Defendants. Those involving Atra were not pressed in final submissions. THE PLAINTIFF’S EVIDENCE:

The Plaintiff was born on 9 January 1983 and grew up in Ashfield and Bonnyrigg, suburbs of Sydney. He is married and lives with his wife, Sharmaine and son, Zayne, born about 6 weeks before the hearing commenced. The family resides in a ground floor duplex unit at Hinchinbrook.

He completed Year 10 at Bonnyrigg High School and acquired a School Certificate. He said that he was “pretty much an average student”. While still at school, he engaged in part time employment and after leaving school worked successively for a kitchen maker, and a form worker. He decided that he enjoyed working with timber and that he would seek to qualify as a carpenter. His ambition was to become a contract carpenter, and perhaps end up as a project builder. He had a number of relatives including his brothers in the building industry.

He enrolled at Miller TAFE in a 3-year course entitled “General Construction (Carpentry) Housing, which he successfully completed and became eligible to receive what was known as a “Certificate III” during 2003.

He also became enrolled as an apprentice, initially with a company which went into liquidation, but, subsequently, with Chubs where he continued his apprenticeship. That firm was engaged in general carpentry work, including roof framing, wall framing, construction of ceilings, pergolas, etc. He said that he “loved” his employment, working with timber and being able to see the finished products of his labour. As it seems, he worked for Chubs for some 2 or 3 years before the subject accident. He said that in his time with the company he was not given any instruction about the dangers of working at heights and this evidence was not challenged.

On 23 October 2002, he was involved in a motor vehicle collision when the car in which he was travelling was struck from behind by another vehicle. He was taken to hospital and x-rays were taken. Lower back pain and disability caused him to be absent from work for a number of weeks during which he received physiotherapy treatment. He was paid benefits under the Workers Compensation Act.

Upon return to work, he performed light duties for a while during which his back injury appeared to recover completely. By 2004, he regarded himself as completely fit and was performing all the work of an apprentice carpenter including heavy work and work in confined places.

His recreational pursuits included playing soccer at weekends with friends, (not in an organised competition), and working out at a gymnasium about 4 times a week. None of this physical activity caused any problems with his back.

Part of his course at TAFE was directed to occupational health and safety, which he said resulted in him receiving a “green card”. However, this course taught the dangers of operating power tools rather than such matters as those of working at heights.

In April 2004, with other employees of Chubs, he first went to the building site. They were accompanied by Mr Charbel (Charlie) Ibrahim, the principal of Chubs, which had contracted to provide “roof framing, roof battens, eaves and gable lining”. The units, which according to the Plaintiff, comprised 3 or 4 storeys (3 seems to be accurate), were not then roofed but the brickwork of the walls appeared to be finished and there was perimeter scaffolding, apparently erected in anticipation of roof construction.

He said that no safety induction was given to him at the building site, although he had previously received such induction on other building sites. Typically, an induction would involve the provision of information as to general safety measures in force at the site, including such things as the location of first aid sheds, the availability of first aid and the identification of places where it was unsafe to work. He did, however, sign a document headed, “Site Work Induction Register”, which he said he did at the request of the site foreman. He said that he understood that Soliman was the head contractor on the site, a circumstance which was common ground.

Between first attending the building site in April 2004 and the date of the accident on 18 June 2004, the Plaintiff said that he worked there, on and off, interspersed with work at other locations. His instructions as to where to go each day were normally conveyed by telephone by Mr Ibrahim and he travelled to where he was directed in a van with other workers and tools. The van had the name of Chubs prominently displayed. Usually a qualified tradesman employed by Soliman was on the site with him.

On 17 June 2004, at the direction of Mr Ibrahim, the Plaintiff, with a second year apprentice, Mr Sarkis Ibrahim, and a labourer, Mr Simon Ibrahim, worked at the building site framing up a gable and lining the underside with fibro. This work was done at the rear of the building near Sutherland Lane and, as it was work at height, a “cherry-picker” or boom lift with an enclosed cage, which was on site, was used with the authority of Mr Atra. The scaffolding, previously around the perimeter of the building, had by then been removed. The cherry picker was fitted with harnesses which the Plaintiff and his co-workers used.

The work performed on 17 June remained incomplete at the end of the day and that night, or early the next morning, the Plaintiff said that he was telephoned by Mr Charlie Ibrahim and told that he was to return to the building site and finish the gables and eaves. Mr Ibrahim said that the work needed to be finished in order for him to be paid, and that if he wasn’t paid then neither would be the Plaintiff. He was told that he would have with him Sarkis Ibrahim and Phillip Sakr, another apprentice.

On 18 June 2004, the Plaintiff arrived at the site between 8am and 8.30am, in Chubs van, accompanied by Mr Sarkis Ibrahim and Mr Sakr. He parked in Robertson Street, across the road from the building site office. The 3 men, having alighted from the van, entered the site through an open gate and approached the site office, noticing as they did so, that the cherry picker was already in use by another contractor.

In the vicinity of the site office, they came upon a man established by the evidence to be Mr David Boswell. The Plaintiff’s version of the conversation which ensued was: “As I was walking there, I met a gentleman named David Boswell and asked him, "Where is Patrick?" And he replied to me that "Patrick is not here today. I am taking care. I am the site foreman". Q. "I am the site foreman"? A. That's correct. He is taking care of the job today. Q. Sorry? A. He is taking care of the job today. Q. He said, "I am taking care of the job today"? A. That's correct. I told him who I was, from Chubs, and "I am here to finish off the gables and the eaves". He said to me, "okay". I told him, "the cherry picker is being used", so he told me, "go upstairs and find out how long they are going to be". Q. "Go upstairs and find out how long they will be"? A. Yes, how long will they be using it. So I went upstairs and spoke to the fascia guys and they said to me that they will be there for most of the day. I came back down and spoke to David Boswell. Q. Where did you speak to him? A. Back down near the front of the shed, front of the site office, sorry. Q. Still about the same place as you have marked with the X there? A. Just around there. I don't know if exactly but just around there, in front of the shed. Q. At the front of the shed? A. Yes. Q. Incidentally, what is the approximate distance from the site office shed to where you parked your van with the word "Chub Constructions" on it? A. 5 metres. Probably, it is a bit too close, probably yeah, about 10 metres diagonally. Yes, probably. Q. Was there anything obstructing the line of sight from the van to the site office? A. No, there wasn't. Q. Alright. So you went back and spoke to Mr Boswell again, did you? A. That's correct and let him know that they were going to be there for most of the day using it. Q. At that stage did you have any particular intention, so far as what you were going to do was concerned? A. Once I found out that they were using the cherry picker most of the day, yes I did. I had intentions of leaving and going to another job. Q. Why was that? A. Because there was no use for me being there. The cherry picker was being used. I needed it, to work from it. Q. So did you, after you had told Mr Boswell that they were going to be using the cherry picker most of the day? A. Yes. Q. Did he say anything to you? A. Well, he found out I will be leaving. I told him I will be leaving, there was no use for me to be there. And he said to me, he said to me "You got to stay and finish off the job because if you don't, Charlie won't get paid". So he ordered me to go up to the courtyard balcony to start finishing off the work, which the eaves had to be done. Q. Right. And in what way did he speak to you on that occasion, could you describe it? A. He was a bit upset, had a bit of a tone which he was like, it had to be done today. He wanted it finished or Charlie wouldn't get paid, so-- Q. Was there a certain urgency about it? A. That's correct.

Following this conversation the Plaintiff said that he, Mr Sarkis Ibrahim, and Mr Sakr commenced to take tools up to a courtyard balcony. They also took there a stepladder borrowed from another tradesman working at the site.

The balcony was on the second floor of the building and access to it was gained through the unlocked door of the adjoining unit. There was no fence or railing demarking the edge of the balcony from a drop of some 5.6 metres to a concrete path below. Although there was no evidence as to the precise measurements of the balcony, Mr Sarkis Ibrahim subsequently estimated it as about 1.5 metres wide and about 2.5 – 3 metres in length. Those measurements seem to accord with various photographs tendered in evidence.

The Plaintiff found an accumulation of rubble on the balcony, which Mr Ibrahim swept to one side, creating a flat concrete surface upon which to base the stepladder. He set this up close to the wall, as far as possible from the balcony edge. The Plaintiff estimated the distance between the ladder and such edge as between 600 and 800 mm.

Asked whether he had safety concerns, he replied that he did not, as in his mind was only the thought that if the job were not done, his employer would not be paid. There was no one senior to him from Chubs on the site to whom he could speak and he did not telephone Mr Charlie Ibrahim to seek further instructions. He claimed that there was nothing on the balcony to which a harness could be attached.

As I understand it, the immediate task facing the Plaintiff and his colleagues was to construct a timber frame from the top of the wall of the balcony under the roofline upon which fibro eaves would sit. For this purpose, the Plaintiff, while standing on the ladder took measurements and called them out to Mr Ibrahim with the intention that he would cut timber to size. This had been occurring for some little time with the Plaintiff standing on the second rung of the ladder when the subject accident occurred. At one point, he said that he watched Mr Boswell walk through the courtyard to the back lane in the course of which he had looked up and, according to the Plaintiff, they had “eye contact”.

Altogether, the Plaintiff said he was on the ladder for about 20 minutes before, as is common ground, the ladder toppled, or the Plaintiff overbalanced and both fell over the edge of the balcony to the ground. At this time, Mr Sakr was in the toilet and Mr Ibrahim was inside the doorway of the adjoining unit.

The Plaintiff said that he has no recollection of the mechanics of the fall itself but he does remember trying to grab the edge of the concrete balcony as he fell past it. He thought he was going to die. Subsequently, he has had frequent upsetting flashbacks of his attempt to save himself. He next recalls waking up in St George Hospital.

The Plaintiff told Mr Semmler that if the cherry picker had been available he would have used it and that if a harness had been available he would have worn it.

He described his general state of health immediately before the accident as “pretty much perfect”, although, apart from the car accident mentioned, he had required surgery during 2003 for an infected pilonidal sinus which required surgical intervention on 2 occasions, 25 June 2003 and 30 October 2003. Thereafter, for a period, he required antibiotics and the attendance of a nurse at his home to apply dressings. He took pride in his level of fitness and attended a gymnasium 4 times a week. He also played social sport at weekends. He had a girlfriend, Sharmaine, and their relationship was serious enough for them to contemplate marriage, an event which subsequently occurred. With sport, attendances at the gymnasium, and social engagements with his girlfriend, he had a very busy life outside his work. He also had ambitions for his career in the building industry which, after a few years, he believed would have him as the proprietor of a project building company, although that was contingent upon him first completing further TAFE courses. He loved his work.

He was also planning his financial security, in that he had put in train the purchase of a residential unit for investment purposes, which was to be financed through the National Bank. The accident prevented this project proceeding and it cost him of the order of $1,200 to $1,500 in cancellation and other fees.

The Plaintiff’s testimony was to the effect that he made a substantial contribution to the household of his parents with whom he lived. He mowed lawns, weeded gardens, did general handyman jobs, including house painting, washed the family cars and assisted his mother in household chores such as clothes washing, washing dishes and cleaning.

He described himself, in effect, as happy and contented with his life, looking forward to a planned and enjoyable future.

Unsurprisingly, the Plaintiff, having fallen more than 5 metres headfirst on to a concrete path, suffered severe and potentially life threatening injuries. It was common ground that this was so, although there was an issue as to the extent of his continuing disabilities. There was also an issue as to whether he suffered organic brain damage, although again it seems to be common ground that he has significant, continuing mental health problems.

He remained in hospital from the accident until 20 July 2004. Asked what troubled him most when he first became aware of his predicament, he replied “the state I was in, my leg, my arm, my whole face, my life, my future”.

Although, understandably vague as to the detail, he was aware that he had emergency surgery to his knee on the day of his admission; surgery on 24 June to his right arm and left wrist, which involved a bone graft and the insertion of plates and screws; a major operation on 26 June to his jaw; and another on 2 July to his face, which posed the worrying risk of him losing his right eye. This last mentioned operation left him with a large scar across the top of his head. He also required dental treatment as there was damage to his teeth, including the loss of a right front upper tooth. Not only were the medical procedures frightening but, according to the Plaintiff, throughout the whole of his stay in hospital he experienced very considerable pain, particularly in his head, right arm and left wrist.

Following the surgical procedures in hospital both of his arms were in plaster and his right leg was in a brace. The brace remained for some months following his discharge from hospital, during which time, as his leg was held in a rigid position, he found mobility very difficult.

The surgery to his right elbow, left his arm fixed in what he described as a 90-degree angle. It remained thus for about a year until partly released in a further surgical procedure.

Whilst in hospital, he said that he felt suicidal, “to me in my eyes my life was over. I couldn’t walk, I was all broken, my future was destroyed ….. no more work for me, no more plans that I had. I couldn’t do them no more. I looked at it as if it was not worth living, too much pain”. He found sleep difficult and when he did sleep he had nightmares about the accident.

He also noticed problems with his short-term memory, especially when questioned about people who had been to visit him and he became irascible towards members of his family, “it was just the state I was in”. He said that he is still easily frustrated, “sometimes I am happy, some times I am snappy. I get stressed, depressed. Just all them symptoms make me snap”. In hospital and subsequently, he has experienced intrusive thoughts of the accident but these, following psychotherapy, have somewhat diminished. Another condition first noticed in hospital which continues to trouble him is blurred or double vision, mainly with his left eye.

When the plaster was removed from his right arm, he noticed that the little finger of his right hand remained in a curled position and he is still unable to straighten it. One side of his right palm always feels numb.

In the course of treatment, many stitches and staples were inserted n his head which felt as if it was “going to explode and was very painful – when I got out (of hospital) it was a bit better. I still get the headaches and the dizziness”.

At the time of discharge from hospital he was taking powerful analgesic medication for relief of pain, virtually over the whole of his body. He was mobile with the aid of a forearm crutch.

Gradually, there was improvement in his mobility, aided by physiotherapy, although as his ability to walk improved he began to experience intermittent lower back pain, which, at times, could be intense and extend into his right leg. He continued to experience difficulty in sleeping and to have recurring nightmares of the accident. He commenced to consult a general practitioner, Dr Sellathurai (Dr Sella) and continued under the care of orthopaedic surgeon, Dr Hugh Jones.

In August 2004, he was returned to hospital under Dr M Klaasen for removal of the metal arch bars which had been inserted in his mouth. He also began to consult a psychologist, Mr V. Herrera. He underwent further dental treatment in relation to his right front upper tooth, which led to Dr P Sibraa replacing it with an implant which was later crowned and is still in place. In September 2004, he consulted an optometrist about his complaint of blurred or double vision.

Between 18 October 2004 and 28 May 2005, he had intensive physiotherapy to his right knee and left wrist, some 59 sessions in all. During this period, or most of it, he was driven to medical appointments by a member of the family as he was, at the time, unable to drive himself. Ultimately he became well enough to drive a car once more.

In April 2005, he was referred to a neurologist, Dr N Griffith, at Liverpool for the purpose of treating his headaches and dizziness which he was experiencing a few times a week and which, when present, lasted” an hour or two”, but he said the medication prescribed by Dr Griffith was ineffective.

It was Dr Hugh Jones who operated to release his right arm in September 2005, but the prospect of the operation worried him, in light of advice that there was the possibility of nerve damage. He sought a second opinion before consenting to the surgery. In the event, the surgery was only partially successful, in that while the arm became less restricted in movement, it remained far from what it had been before the accident. The surgery involved an overnight stay in hospital and having his right arm in a brace for about 6 weeks. He was also required to convalesce at home for a fortnight.

A month later, in October 2005, Dr Jones removed plates and screws from his right knee but was unable to remove them from his left wrist and they remain in place.

As I have indicated, before the accident the Plaintiff and Sharmaine had contemplated marriage. In the result they married on 14 April 2006, somewhat later than they planned, the delay being a direct consequence of the accident. The marriage went ahead, notwithstanding that, according to the Plaintiff, there were strains in their relationship after the accident, ”just my moods, my frustration, the way I always was depressed, my physical side, my mental side, just all affected it”. He said this was a far cry from their pre-accident relationship.

During 2006, the Plaintiff noticed facial twitching in his right cheek and a feeling of numbness, which extended from his top lip up the right side of his face across his skull and down the left side. This feeling continues to trouble him.

During 2007, before the birth of his son, Zayne, on 3 July, the Plaintiff and his wife moved from his parent’s home where they had been living to the rented premises at Hinchinbrook, referred to above, where they have continued to live.

Since May 2007 he has been under the care of Dr Raymond Tint Way, a psychiatrist, who is seeking to control his mood swings and depression. He was referred to Dr Tint Way by Active Occupational Health Services (Active), an organisation retained by his employer’s Workers Compensation Insurer, which has been attempting to secure his return to the work force. Dr Tint Way has prescribed medication which the Plaintiff said he takes.

In the period the Plaintiff was hospitalised from the accident until 20 July 2004, he was able to do nothing by way of caring for himself. During that period members of his family and Sharmaine visited him extensively. Typically, his mother visited each day arriving during the morning, leaving about 3pm and returning about 6pm for 2 or 3 hours. Sharmaine would come to the hospital after work and spend most of her weekends with him. During hospital visits Sharmaine and members of his family would regularly perform services such as feeding him, dressing him, shaving him and wheeling him in his wheel chair about the hospital. He agreed, however, that given time, most of these services would have been provided by hospital nurses.

For three months after discharge from hospital, the Plaintiff needed assistance with virtually every activity of living, including dressing, eating bathing, showering and toileting. He also had to be driven to and from his numerous medical appointments. He required assistance to move about the house and was unable to assist his family in any way with the performance of household chores. He did not keep a record of the time spent by others in performing tasks, which, had he been fit and well, he would have performed himself.

For the next nine months until the partial arm release in September 2005, the main impediment to him being able to care for himself was the very limited use he had of his dominant right arm. He was also hampered by a considerable restriction in the range of movement of his right knee. He was unable to bend, kneel or squat and, as a consequence, still needed assistance in dressing, although he was able to undress himself. He often bathed rather than showered, but needed assistance to raise himself out of the bath. He was partly able to shave himself but his double vision necessitated assistance when shaving one side of his face.

During this nine month period, he said that he continued to feel “depressed, frustrated, disappointed, shattered”. He remained unable to perform even minor domestic chores, even though on occasions he attempted them. Apart from the other disabilities mentioned he found that his grip with both hands was weak.

His situation improved to some extent during 2005 when he became able to drive a car again and was able to take himself to most medical appointments. He still felt unable to drive as far as Campbelltown, a round trip of 1½ hours, where he had physiotherapy twice a week. His brother customarily drove him.

In the more than 2 years since September 2005, there has been gradual improvement in his general condition but he still need assistance, which his wife provides, in drying after a bath or shower, in shaving, in rising from a bath, in putting clothes on his upper body, in putting on his socks and his shoes when laces are involved and in cutting his toenails. He estimates that his wife provides about half an hour a day on his personal needs directly related to the limited use he has of his right arm.

His inability to assist in the performance of household chores remains on going. He helps his wife with the shopping but is only able to lift and carry light items. He said he cannot sweep, vacuum clean, wash clothes, hang out washing or change bed linen, although this is inconsistent with what he told the occupational therapist, Ms Walcot, referred to hereafter. If he could, he said that he would assist his wife with all these activities. She is now engaged full time in household duties, having resigned her employment as a receptionist, two weeks prior to the birth of their son.

He estimates that he would have provided assistance to his wife and otherwise attended to household chores to the extent of 5 or 6 hours a week, which he said he would have been able to fit in after work or at weekends. He said that he would also have found time to perform gardening, handyman tasks and car washing as they are “things I love doing”. Where he lives now has lawn and garden, back and front. Sometimes, one of his brothers who lives nearby attends to it, other times he pays someone to do it. He estimated that his brothers devote 5 or 6 hours per week to work which he otherwise would have done himself.

The Plaintiff also said that he is not able to participate in looking after his son, as he would have wished. Virtually everything required is done by his wife, although he is able to wheel him in a stroller if his wife loads and unloads him. He is unable to place him in, or take him out of a car seat because this involves painful stretching and lifting and for similar reasons he is unable to bath him. When his son wakes at night and needs attention, the Plaintiff, as I understand his evidence, does not hear him if he is in a deep sleep induced by the insomnia medication, which he takes each night. He said that the child, who was only about 6 weeks old when the evidence was given, cries frequently and this makes him irritable to the extent that he will leave the room. He said that he feels “disappointed” that he cannot make a greater contribution to his son and fears that the situation will become worse as the boy grows older and bigger. He estimated that, if he were able, he would spend 2 to 3 hours a day assisting his wife with the child.

He continues to take a considerable amount of prescribed medication - Stilnox for insomnia; the antidepressant Cipranol, which also eases feelings of light-headedness; Epilim, a mood stabiliser; Oxycontin, a pain reliever; and Panadol or Panamax several times a week as needed. He said that medication costs of the order of $90 per fortnight, although documentary material tendered shows that the actual cost is much less than that.

He also continues to see the psychiatrist, Dr Tint Way once every three weeks and finds the sessions helpful. He consults Mr Herrera every two weeks. Twice a week he has physiotherapy, which consists of a gymnasium program and exercises in a hydra pool but he doubts the benefits of these exercises which significantly increase the level of his pain. However, the treatment was recommended and arranged by the “case manager”, appointed by Active and he feels obliged to continue to the end of the program

He told Mr Semmler that he was examined by Dr Roldan, a neuro-psychologist, on behalf of Soliman on 21 November 2005. Dr Roldan conducted neurological tests over some hours, in respect of which he said he participated to the best of his ability. He also agreed that he was examined by Dr Gibson, a plastic surgeon, and by Dr Bodel, an orthopaedic surgeon, on behalf of Chubs.

Mr Semmler took the Plaintiff, in some detail, through his complaints as at August 2007 when he gave evidence. He still has double vision when he looks to the left out of his left eye. Images overlap. He has an obvious scar from ear to ear across the top of his head. This scar, he said, is the subject of frequent comment and questioning which embarrasses him.

He suffers from headaches starting from behind his left eye which last some hours and occur a few times a week. One activity which produces them is operating a computer for more than about half an hour. The frequency and length of the headaches has been virtually unchanged since he left hospital.

He believes that his two eyes now differ in appearance as a result of facial surgery and that the appearance or shape of his chin, underneath which there is a scar, has altered. Generally, he said that his face appears “bloated”, but was unable to say whether this was simply the result of a general weight gain.

He continues to have a feeling of numbness over much of his face which he said is “itchy and annoying”. Sometimes he has severe facial pain from his jaw, extending into both cheeks and intermittently there is a twitching in his right cheek, which, he said is visible to observers and lasts about 2 hours. Episodes of facial pain, in frequency and severity, have also largely remained unchanged since he left hospital.

As indicated earlier, the Plaintiff lost a tooth in the accident, which was replaced with an implant. He said that he suffers “sore teeth” brought on by drinking anything hot or cold. He cannot chew “hard food” such as steak, apples, carrots, because “my jaw gets tired”. Such food has to be chopped into small pieces for him. Sometimes after he has been eating and chewing his mandibular joints, “crack”. He is unable to open his mouth as wide as before the accident. He had plastic plates inserted in his mouth following the accident, which were removed in August 2004. While he had the plates they were uncomfortable.

He said that his worst continuing problem is the restriction in movement of his right arm and elbow, which he cannot completely straighten, although it has improved since the surgery of September 2005. Apart from the fact that he cannot straighten the arm, the elbow is the site of pain and numbness, which he experiences once or twice a day and which lasts several hours. The pain seems to result from weather changes, from his elbow being bumped or knocked, and from writing. The nature and extent of this pain has been static for some time.

As a consequence of the disability in his elbow and right arm he is unable to perform carpentry work; he find it difficult to reach a comfortable sleeping position; he cannot extend his arm to reach for things; and he cannot cut his toe nails or carry anything heavy. There is also scarring which troubles him.

He has what he believes is a permanent deformity in his right little finger and a feeling of numbness which extends from that finger into his right arm. He said that he believes the grip of his right hand is not as strong as it used to be, although it is still stronger than the grip of his left hand. He assessed that his right hand grip is between 50% and 75% less than it was before the accident. As a consequence, he has leaned to use his left hand more, despite being right hand dominant.

There remains a degree of stiffness and lack of flection in his left wrist, which still contains plates and screws. He has scarring about 10cm long on the wrist and the grip of the hand is weak. The wrist is also the source of pain, “whenever I use it”. Again, the condition of the wrist seems to have reached a plateau.

He described his second worst problem as his right knee. He cannot extend his leg or bend it without significant pain and as a consequence cannot bend, kneel or squat. He experiences pain in the knee after “a lot of walking, a lot of standing. Pretty much using it”. If he sits for any time he has to stretch the leg and rub his knee as he said he did in the course of giving evidence. The knee aches when he is in bed at night, particularly in cold weather. It also gives way on occasions, which are unpredictable. He said that he can walk normally but after a while starts to limp.

He suffers intermittent pain in his lower back, which compares in intensity to the pain in his right arm and knee, particularly when it extends down his right leg. He first noticed this pain when he commenced to weight bear after being discharged from hospital. The present situation is that the pain, “comes and goes”, but there is never a week when he does not experience it. He also, sometimes experiences pain from the centre of his shoulder extending into his neck.

He gave a deal of evidence about his attempts to rejoin the work force, such attempts being overseen by Active from its office at Liverpool. On the face of it, at least, it took its responsibilities quite seriously. Unfortunately, however, neither Active nor the Plaintiff through his own devices has been able to find suitable employment.

His contact with Active seems to have commenced with a vocational assessment on 21 March 2006, when he saw a Dr Girdler. Since then he has unsuccessfully applied for about 5 jobs a week. When asked whether he would like to be working now, he replied: “I’d love to. I used to love always working, love always being out of the house. It's just stopped me, just sitting there and seeing always doctors and having appointments. I'd just like to be out there and do my own thing.”

He identified the log of jobs applied for and said that he accompanied his applications with a resume which Active helped him to prepare. It also gave him advice and instruction as to how best to go about seeking employment, advice which he said he followed.

He has also attended twice a week what Active calls a “job club”. The “job club” is a room at the office of Active, where the Plaintiff and others sit around a table for about 2 hours and with the assistance of “case managers” and newspaper advertisements, make applications for employment by telephone, the internet, fax and email. He still attends these twice weekly sessions,

After objections as to the generality of the Plaintiff’s evidence regarding his unsuccessful job applications, Mr Semmler, in effect, asked him to be more specific and there was this exchange: “A. They're my job logs that I used to fill out. Q. What information did you put in those documents? A. It's people that I've called or emailed or faxed, resumes, their names and their numbers, the dates, how I approached them. Q. You mentioned resumes; did the Active people help you to create a resume? A. Yes, they did. Q. Did they give you advice and instructions how best to go about seeking a job? A. Yes, they did. Q. Did you follow their advice and instructions? A. Yes, I did. Q. Did they give you pamphlets on how to seek work and work trials? A. Yeah. Q. Is there a thing called the Job Club? A. Yes, I used to attend that. Q. What is that? A. A Job Club where you got to go twice a week for two hours a day. Q. That's four hours a week? A. That's correct. Where you go in and there's other people sitting around a table. You read through papers, you go through the Internet, call people, fax people, email them looking for work. Q. Is this at the premises occupied by Active at George Street, Liverpool? A. That's correct. Q. Was there a big room, was there? A. Yeah, smaller than this room. Q. Do you still go to that Job Club? A. Yes, I do. “

Later in his evidence, the Plaintiff said that he had entered into an agreement with Active whereby he was bound to make at least 5 job applications per week, on pain of having his compensation payments reviewed. This agreement and his job logs were admitted into evidence as exhibits F and H, as was a Rehabilitation Progress report by Active, exhibit G.

The Plaintiff testified that in addition to assisting with job applications Active arranged for him to have 2 specific work trials, one at Bunnings Warehouse at Bonnyrigg and the other at the Caltex Service Station at Padstow.

He commenced the first trial at Bunning’s in August 2006 and remained for 6 to 8 weeks with periods of absence. The work was part time, 3 days a week, 5 hours a day but, nonetheless, according to his testimony, the work was productive of such a degree of pain that he was obliged to take time off. His duties required him to stack shelves with items of hardware, some of which he was unable to lift. Throughout the work trial, he said that he experienced back pain, knee pain, wrist pain, headaches and some dizziness. He said that he was very enthusiastic about the work and hoped to be appointed to the position of cashier but at the end of the trial he was told there was no position available.

Active sent to WorkCover a “Closure Report” in respect of the Bunnings trial, part of which read: “The host employer Bunnings Bonnyrigg concluded that despite Mr Chamma putting in a great effort, there are too many restriction s for his to enter the workforce and sustain work, due to observed pain symptoms. Mr Chamma is currently job seeking for cashier positions.”

The second trial in the Star shop at the Caltex Service Station occurred in April 2007. For most of the time, he stacked shelves and refrigerators but he was, for short periods over a few days, given the opportunity to work as a cashier. He worked altogether 3 days a week, 5 hours a day for about 6 weeks. During this period he said that he had some time off because of pain in his back and leg. He said that he enjoyed the work but while working as a cashier needed someone overseeing him. He served some customers during quiet periods and was able to sit down when experiencing pain. He gave this evidence to Mr Semmler: “Q. How bad was the pain? A. Do you want me to give you a number? Q. Please. A. Probably about a five. Q. Did you take the money and the credit cards from the customer? A. Yes, I did. Q. How did you cope with handing out the change and swiping the credit card and so on? A. I did a few mistakes. Couldn't do all the credit cards. Q. Why not? A. Because I couldn't remember how to do them exactly. Q. Why not? A. Forgot how to do them. Q. Didn't you have someone there sitting with you? A. Yes. That's when he came in and took over. Q. What are you like generally with figures? A. Before the accident? Q. Yes. A. No problems. Q. Was mathematics your strong suit in year 10? A. Not very strong, but it was okay. Q. How did your arm respond to the work that you were required to do? A. I suffered a lot of pain in my elbow and my wrist. Q. Could you sit down when you were doing the cashier's work? A. Not at the time I was serving, no.”

He asserted that his trial as a cashier was delayed because he did not have a white shirt, a curious situation to which I will return. After 6 weeks when the trial ended he was not offered a position and this disappointed him.

Despite many disappointments, as I have indicated, he has continued to attend the job club at Active twice a week and to make, so far, unsuccessful job applications. Unfortunately, his computer skills, despite temporal opportunities to improve them, remain limited and he can still only type with one finger. He said that sitting at a computer, as stated earlier, for more than a short period is productive of headaches.

Away from the job club, the Plaintiff said that he looks in local papers for suitable job opportunities. He has had some responses to his applications but nothing has led to a job offer. He has, as I understand his evidence, usually disclosed his injured state, which has likely been unhelpful to success but nevertheless, probably inevitable, given that the scar on his head and the disability in his right arm are quite obvious.

He explained his reaction to his failures to obtain employment: “A. They have affected me in a big way to my future. Just makes me see there is no hope for my future. I have been trying so hard to find a job. Just because of my injuries, no-one wants to employ me. It's pretty hard. “

He outlined the restrictions which he saw as affecting his employability as including, inability to lift heavy items; inability to stand or sit for lengthy periods; inability to kneel, squat of bend; inability to drive a motor vehicle for a lengthy time; difficulty walking on uneven ground; inability to climb ladders; and fear of working at a height.

As to other problems which the Plaintiff claims are causally connected to the accident, he listed short term forgetfulness; inability to concentrate for any length of time; nightmares and intrusive thoughts about the accident; enhanced startle response; a feeling of depression resulting from his changed lifestyle; thoughts of suicide; the fact that he is easily annoyed or irritated; the fact that he has changed from a happy person to one who lacks animation and is “full of anger” and “upsetting thoughts”; the impact upon his relationship, both sexual and otherwise, with his wife; and what he sees generally as a bleak future.

He said that Mr Herrera is attempting to address some of these problems, including his short-term memory difficulties and is also encouraging him to resume a social life. According to the Plaintiff, he became withdrawn after the accident and lost a lot of friends.

He claims lack of concentration manifests itself in his inability to follow films and television programs and even such things as games of football. He said that he spends his days mostly at the job club, at home looking for job opportunities, attending medical appointments and undergoing physiotherapy, all of which he finds, ”not satisfying at all”.

Sometimes he goes fishing, but he has been unable to return to social football, nor has he been able to do other than limited exercises at a gymnasium, “no weights like I used to do”. About once a week, he visits a friend at Minto, about which I will make later reference.

As to his sexual relationship with his wife, he said he has lost a lot of his libido and, in addition (or more probably because) sexual intercourse causes him pain. This coupled with his anger and general irritation or moodiness has caused strains in the marriage. Sometimes, after arguing with his wife, he leaves home and spends some hours away “to cool down”.

He summarised the change in his life a the conclusion of his examination in chief: “Q. Just finally, Mr Chamma, how would you compare your life now to what it was like the day before this accident? A. Do you want a number scale from one to ten? Q. Yes. Depends on what the scale is. A. One being the lowest? Q. Yes. A. One. Q. How was it the day before your accident, your life? A. Possibly a nine or a ten. I had ambitions, I had things that - goals that I was trying to get to and investments, investments to get in and just things like that, but now it's just all shattered. “

The Plaintiff was searchingly and comprehensively cross-examined by both Mr Jones and Mr O’Dowd. Mr Jones commenced by taking the witness’s acquiescence to the proposition that at nearly 3 pm on the second day of the trial, he had been in the witness box since 11 am the previous day. The Plaintiff agreed that the only time he had stretched his limbs was as the cross-examination commenced. He also agreed that during the course of his evidence, he had been able to remember recent events as well as events which occurred some time ago. He explained that his short term memory problem relates to minor things such as whether he has locked his car:

He told Mr Jones that before the accident his normal weekday working hours were 7am to 3pm. Once or twice a week he worked overtime, not finishing until 4pm or 5pm. He also worked on Saturdays, either from 8am to 1pm or 7am to 3pm. In order to start work at 7am, normally he had to leave home about 6.20am or earlier depending on the location of the job. He denied to Mr Jones that given his work commitments, weekend sport, regular gymnasium workouts and time spent with Sharmaine and other social activities, he had exaggerated the extent to which he assisted his parents before the accident in, performing domestic chores and providing other household assistance. He said that he could not remember telling an occupational therapist at St George Hospital in July 2004 that his mother did all the cooking, cleaning, laundry and shopping. He conceded, however, that she did most of it, with his help. He agreed that before the accident his mother and father looked after the garden but said that he mowed the lawns.

As to the accident, itself, the Plaintiff agreed with Mr Jones that he was at first reluctant to work on the balcony because he regarded it as dangerous. He said that he felt pressured to do the job, as I understand his evidence, both by Mr Boswell and by his own employer, Mr Ibrahim.

The Plaintiff conceded that he did not mention his conversation with Mr Boswell when on 22 September 2004 he gave an account of the accident to a WorkCover Inspector. He explained, in effect, that he was not asked about such details. There was this exchange: “Q. If indeed you had been told by Mr Boswell to go up and work on the eaves this day and you had been ordered to do a job that you weren't happy about doing, here was your perfect chance to bring this to the attention of the very inspectors that were investigating this accident, that's right isn't it? A. Yes, but like I said, he wasn't, didn't want me to get into the story. He didn't ask me who I spoke to when I arrived there and who I spoke to and why I had to finish this job. He didn't ask me those kind of questions. Q. He asked you the events leading up to and at the time of the accident occurring? A. That is correct. Q. That was your perfect opportunity to tell those investigating this accident about Mr Boswell speaking to you and ordering you up to do the eaves that day? A. At the time he had seen me, I'd just come out of hospital as well, so I was still a bit grogged up and not feeling too well, so. Q. At no stage did you say to the investigators: Look, I have just come out of hospital. I am a bit grogged up and I can't really recall things, did you? A. No, I didn't say that, no. Q. You had enough recall to speak to them about the person working on the fascia? A. Yes. Q. You had enough recall about Mr Ibrahim telling you to do the job, didn't you? A. Yes. Q. Do you say you just simply forgot to tell them about the conversation and the orders from Mr Boswell that day? A. Not forgot, but if I'd been asked, I would have told them. Q. Well, they did ask you, didn't they, to the extent they asked you to tell them about the events leading up to the accident? A. Okay, but what I felt was comfortable was just like to tell them briefly how the accident happened. I didn't get fully into it. Q. They did ask you when they asked you who instructed or directed you to carry out the task? A. I was referring to my boss Charlie who sent me there. Q. Can I suggest this to you, that you have made up this account of Mr Boswell speaking to you and ordering you to go up and do the work on the eaves this day? You have made it up, haven't you? A. No, I haven't. I've got witnesses as well.”

Mr Jones cross-examined the Plaintiff on his TAFE record and suggested that he had failed or withdrawn from a number of courses. He accepted the accuracy of the records and that sometimes he had trouble passing subjects but said: “I'm not going to say I was the smartest one in the class but I was working my way through it and I was trying by best.”

Cross-examined about the stability of the ladder from which he fell, the Plaintiff said, in effect, that he was aware of the dangers of a ladder toppling and of the desirability of a stepladder being held. He said that at his request, Mr Sarkis had held the ladder at some stage while he was on it, but was away cutting a piece of timber when he actually fell. He indicated that he did not apply his mind to the possibility of tying the ladder in some way to the wall of the building.

As to his short term memory, the Plaintiff agreed with Mr Jones that in March 2005, he told Dr Fearnside at Westmead Hospital that his memory was quite good: “A. Yeah. Like I said before, I didn't have a major issue with my memory. It's just the little facts I forgot, yes. Q. Is it the situation that your memory remains quite good? A. Yes, it's pretty much come back to me, yeah. Q. And did you tell him that you didn't feel that there was any impairment or problem of your activities with daily living with regard to your memory? A. Probably at that time, yes, I did say that. Q. I think you told him that on occasions you might forget if you'd locked your car or not, but otherwise you didn't feel there was any impairment or problems of your activities with daily living with regard to your memory? A. Yeah, at that time it was probably right, yes. Q. Well, that remains the situation, doesn't it? A. Beg your pardon? Q. That remains the situation? In other words, as the position was in March 2005, some nine months after your accident, namely, you didn't feel there was any impairment of your activities with daily living with regard to your memory but on occasions you might forget if you'd locked your car or not, that remains the situation, doesn't it? A. Now? Q. Yes? A. Like I said, as I got out there and started doing more kinds of stuff, yes, I noticed some stuff, yes.”

In March 2005, the Plaintiff told Mr Jones that he was contemplating undertaking a TAFE computer course. He made some enquiries but did not pursue the matter.

It emerged from Mr Jones’ cross-examination that, from at least June 2005, the Plaintiff was driving himself quite long distances to medical appointments in unfamiliar locations. In that month he drove from Bonnyrigg to Maroubra Junction to see Dr Athanasou, a drive one way of about 45 minutes. He agreed that he would have had to locate Dr Athanasou’s address with the aid of a street directory. He added “I usually got lost going to doctors”. He agreed that by the time he saw Dr Athanasou he could use the Internet, email, a word processor, and other office equipment. He also agreed that he expressed to Dr Athanasou a wish to return to the workforce. There was this exchange with Mr Jones: “Q. Are you interested in perhaps doing a course to see if you could pick up some further skills and get back into the workforce? A. Yes, I am. It's just my concentration and my disability about doing that side of the - kind of work is - keeps holding me back. Q. Well, your concentration in the last few days in Court has been pretty good, hasn't it? A. Yes, it has. I've been trying my best and I've been suffering from headaches. Q. Well, surely in your course with something as important as getting back to work you would be trying your best too, wouldn't you? A. Yes, that's right. That's why I try my best to get a job at the moment. Q. Well, if you are trying your best to get a job at the moment might it improve your chances if indeed you underwent a course? A. Well, that's the thing. I'm looking for a cashier job, it's not that I need to do a course to get a job, to get that job as to my understanding. Q. Well, what happened such that two years ago you were interested in doing a course such as a computer course or can I suggest to you to Dr Athanasou a course associated with building or architectural field at TAFE, what's happened such that two years ago you were interested in doing that and now you are not interested in doing it? A. Just pretty much the way I've been feeling. My moods, my mentally wise, just the way I've been - my depression. Q. Well, it wouldn't be a situation, Mr Chamma, of perhaps putting off those courses until after the conclusion of this case? A. No, no. Q. That's not a decision that you have made? A. No, it hasn't, no. Q. Well, people have recommended to you that you perhaps undertake some courses, haven't they? A. Oh, yes, they have. “

It was suggested to the Plaintiff that he is capable of clerical work: “Q. Well, in those circumstances wouldn't it be possible to do the sort of work I was just suggesting where you were seated, you could move, straighten your right leg as you needed to, as you have done in the witness box. If you needed to get up you could get up from your seat for some time and then sit back down. We know your writing is okay. We know that you can use a computer. A. Yep. Q. Wouldn't it possible for you to do that sort of job? A. It could be possible. I am just saying, like, me being a person, like, being out doors and doing things keep me, keep my mind busy kind of thing. I am not saying it can't be possible at all. Q. And in terms of yourself as an individual you have been here for a few days and would it be correct to describe you as a personable sort of person, that is someone that can relate to other people. You can relate and deal with other people, you have some person to person skills, don't you? A. Yes, I am not saying I am completely disabled and I can still communicate and talk to people, yes. Q. You are not an unlikable person are you? A. What do you mean by that? HIS HONOUR: Might be for somebody else to make that assessment. SEMMLER: We concede he is not unlikable, your Honour. JONES Q. You are a person that can deal with other people, that's what I am putting to you? A. Yes, like I said I can. Like I said before I get my moods, I get my ups and downs, yes, I am not saying I can't. I am saying, yes, I can. Q. For instance, if you were in a customer service position where people came and spoke to you about matters that needed some service or attention and you might have to refer them on to others or something of that nature, once again if you are in a position where you were seated, where you could stretch out your right leg or occasionally you could get up, you would be able to do that, wouldn't you? A. Um, like I said to you, I am not saying I can't. But what through my past experience I have been trying to get a job and no one has allowed me to do that kind of stuff. No one said I can do that kind of stuff. Even the work trial they didn't allow me sitting behind the register and things like that. I am not saying it is impossible, it is hard to find someone to give me that kind of job, do those kinds of things.”

He also agreed with Mr Jones that he would be capable of performing simple factory processing work. Indeed, he admitted to Mr Jones that on occasions while driving a car he is able to take a call on his mobile telephone, held in his left hand, while at the same time continuing to steer with his right hand, as the transcript records: “Q. See, it would be wrong to suggest, would it not, that your right arm, or hand, and your left wrist, or hand, were such that, really, you had great difficulty doing tasks with either hand, or arm; that would be a wrong suggestion, would it not? A. Yes, it will be, your Honour. I am not saying that I can't use my hands, or I do not use my hands. I am not suggesting that at all. There is lots of things I try to do, and probably one of them is trying to drive, trying to use the mobile. There is a lot of things. “

The Plaintiff told Mr Jones that on occasions he visits a friend, Mr Majad Haddad who has a second-hand car yard at Minto, near Campbelltown, and sometimes lends him a car to drive. He drives himself to Mr Haddad’s premises on the M7, a journey which takes about 20 minutes and spends “an hour, maybe two” with him. While at the car yard he sometimes has contact with prospective customers. Although he agreed that he has an interest in cars and a knowledge of them, he said that he would not be interested in working as a car salesman. He said that he has not enquired from his friend about the possibility of employment.

In relation to the scarring on his head, the Plaintiff agreed that it was, in effect, particularly noticeable as his hair was cut very short. He accepted that if he grew his hair longer there might be some cosmetic improvement but, as I understand him, he believed that the scar would remain plainly visible.

Towards the end of the cross-examination, Mr Jones returned to his suggestion that the Plaintiff was not genuinely seeking work but merely complying with the letter of Active’s requirements. He was asked why it took 5 weeks to obtain a white shirt which, according to his evidence, would have enabled him to have a longer trial of a cashiers position at the Caltex Star shop. His rather convoluted explanation was, in my view, extremely unconvincing. He also agreed that he had made it clear that he was not interested in working indoors in a clerical or factory position, or outdoors as a car salesman, or as a delivery driver: Q. Can I suggest to you, Mr Chamma, that really you have placed a great deal of restrictions upon jobs which you say you might be prepared to consider, what do you say about that? A. No. Q. That really certainly prior to the finishing of this case you have got no interest in undertaking a successful job placement, what do you say about that? A. No, yes I do have interest.”

Mr Semmler re-examined the Plaintiff on the same subject. There were these questions and answers: “Q. I just wonder whether you could assist in relation to this; you gave evidence that you weren't - and we touched on this before the adjournment - interested in certain kinds of jobs. Those were your words, you didn't have an interest, you weren't interested. You also gave evidence to Mr Jones that you would give anything a shot. Can you just explain how the two fit together? A. What I'm trying to say is pretty much your Honour to get back in the work game, I'll get back in there, I will give anything a shot to get in there, and I will see how I cope with the work trials, and that I have tried my best with them. The success I get out of them is the thing that I get out of the job. So I'm willing to give anything a shot with restrictions that allow me to sit and stand, just things like that. So pretty much I've got nothing, I'll give anything a go. Things that as well that I like to do, yeah. “ THE ACCIDENT:

Apart from the Plaintiff, several witnesses gave evidence concerning the accident. The first was Mr Sarkis Ibrahim who was with the Plaintiff at the building site when it occurred. He commenced to work with Chubs in 2003, Mr Charlie Ibrahim being his cousin. In 2004, he was a first year apprentice.

On 18 June 2004, he went to the building site with the Plaintiff and Mr Sakr, having worked there, he said, a day or two previously. He said there was no scaffolding around the building and the balconies were open. Of the three of them, the Plaintiff as a fourth year apprentice was the most senior. When he was last there, the cherry picker was available.

When they arrived at the building site in their employer’s van driven by the Plaintiff, it was parked across the road from the site office 10 to 15 metres away. It was then that he saw that the cherry picker was in use by another subcontractor. He was present with the Plaintiff and Mr Sakr when Mr Boswell told them to finish the balcony eaves, which they had commenced a day or so before. Following this conversation, according to Mr Ibrahim, the three of them climbed the stairs to the balcony upon which they were to work, access being through the adjoining unit and an unlocked door. He said there was some rubbish on the balcony itself, bricks and gravel which he swept to one side, making a level platform for the stepladder which he erected properly, locking the two legs in place close to the brick wall opposite the unfenced edge. He said the ladder seemed stable but was not tied in any way as “there was nothing to tie it up to”, nor did he think there was anything to which to attach a harness. Mr Ibrahim was 17 at the time and had been working in the industry for only about 2 months. He had recently commenced a TAFE course. Asked whether he contemplated telling Mr Boswell that they would not work on the open balcony, he replied, “because his word is final. He was the boss pretty much and the way he said it is we had to do it”.

From the balcony, Mr Ibrahim said that at some point before the accident he saw Mr Boswell walk through the courtyard towards the rear of the building. He testified that it was the Plaintiff who ascended the ladder and took measurements while he cut timber to size inside the adjoining unit. He said that he would then pass the cut pieces of timber to the Plaintiff who would fix them with a nail gun he carried. When he was not cutting he held the ladder as a safety measure to steady it. Mr Sakr at the time was away at the toilet.

Mr Ibrahim said that from the doorway to the balcony he actually saw the Plaintiff fall, but was unable to say how it happened, except that the Plaintiff was, he thought, on the second step of the ladder at the time. According to Mr Ibrahim, both the ladder and the Plaintiff fell over the edge of the balcony towards the ground. He looked over the edge and saw the Plaintiff lying on the ground, “blood everywhere and I wasn’t sure if he was alive or not”.

He ran downstairs and called to Mr Boswell that there had been a fall and to telephone an ambulance. He overheard Mr Boswell say to someone on the telephone, “Someone fell and who I speak to I’m going to tell them that the railings are coming in today”. He also went to the Plaintiff’s assistance and said in a statement made in February 2006 exhibit AJ that he was “conscious”. He was not asked about this at the trial, although he did say that he spoke to the Plaintiff while waiting for the ambulance. His statement to police on the day of the accident indicates that the Plaintiff was breathing but does not indicate whether he was conscious or not.

Prior to the accident, Mr Ibrahim said that he had contact with the Plaintiff “pretty much every day” and that they had some social contact. He described him as, “best bloke to work with”.

As to the Plaintiff’s personality, he said, “he was very easy to get along with, you know funny, everything was good about him”. He also said that he was fit and energetic and “gave 100% to everything he would do”. According to Mr Ibrahim, the Plaintiff loved his work and had spoken about owning his own business one day after qualifying as a carpenter. He visited him in hospital and has seen him a few times since his discharge but no longer keeps in close contact.

However, he was able to comment that after the accident the Plaintiff was “a different person”. When he last saw him about 2 months previously he looked “depressed”. Asked about his conversational ability, he replied: “A. He's a bit slow now, he drags things on now. If he tries to tell you something, he will drag it on. I don't know if he lost his memory or try to explain something and it just keeps going on and on about it. Before what he had to tell you, he would tell you. “

Shown by Mr Jones a copy of his statement made to police on the day of the accident, Mr Ibrahim agreed that it made no mention of any conversation with Mr Boswell or of him seeing Mr Boswell crossing the courtyard.

Mr Jones suggested to Mr Ibrahim that there was no conversation with Mr Boswell and that upon learning of the unavailability of the cherry picker the Plaintiff telephoned Mr Charlie Ibrahim and was directed by him to work on the balcony. Mr Ibrahim denied this suggestion. He was then questioned about a statement he made on 3 September 2004 to QBE Insurance. He agreed it contained these paragraphs: “On Friday we came to work. The cherry picker was there, but they were doing a fascia or the roof gutters. It was something to do with the roof, a fascia, and the cherry picker was being used by the blokes who do that work. This meant we could not use the cherry picker." ……………………………….. “Charlie said to do something else. Charlie was not there that morning. Charlie spoke to Sam on the phone. He said to Sam to go and do the balconies. Sam said that we had to do the balconies.”

Mr Ibrahim agreed that there was also no mention in his statement of September 3 of any conversation with Mr Boswell before the accident.

Mr Jones then asked Mr Ibrahim about a statement made to a WorkCover inspector on 25 October 2004. Again he agreed that there was no mention of any conversation with Mr Boswell until after the accident. Nor was there mention of him overhearing Mr Boswell say on the telephone that the railings were meant to be put up that day.

There was a deal of cross-examination as to whether Mr Ibrahim knew, as at 18 June 2004, that Soliman was threatening to “back charge “ Chubs with the cost of keeping the cherry picker on site unless Chubs completed its contract without further delay. Mr Ibrahim’s evidence was to the effect that he cannot now remember whether or not by the time of the accident he knew of any back charging threat. However, the subject is mentioned in his statement to WorkCover inspector, Victor Larobina, which consisted of numbered questions and answers and included: Q.58. Were any instructions given to either you or Sami by the Principal Contractor, Soliman & Sons P/L, about the work you were doing at the site on the day of the incident? A. Yeah, they wanted the job finished cause they were going to start back charging. Q.59. Who gave those instruction? A. The builder, I’ not sure what his name is. Q.60. Was it David? A. No, I’m not sure what David was there. Q.61. What instructions had you received from Chubs Constructions P/L about the work you were undertaking at the time of the incident? A. He told us to go do the gable cause the cherry picker was available and the builder didn’t want to keep the cherry picker any longer cause they were paying for it. Q.62. Who told you this? A. Charlie Ibrahim. ……………………………

In re-examination, Mr Semmler asked Mr Ibrahim about his interview with a police officer on the day of the accident. His evidence was to the effect that he was only concerned to relate the circumstances of the fall itself. He gave similar evidence as to his understanding of what was being asked at the interview with Mr Larobina on 3 September 2004.

Over objections by Mr Jones and Mr O’Dowd, I admitted the statement of Mr Ibrahim made on 21 February 2006, pursuant to s 108(3) of the Evidence Act. The statement includes the paragraph: “17. On the day of Sam’s accident, as I have said, we were working on the eaves. We were meant to be using the cherry picker to do that work but other contractors on site, being the facia and gutter guys, were using the cherry picker to do that. ……………………………. 19. I do not know if Charbel asked the Foreman to go and hire another cherry picker for us. All I know is that the builder wanted the work to be done, and that we had to use a ladder. ………………………….. 73. Soliman’s just wanted the work done. No safety was offered in any respect. I recall that the builder definitely said to Sam that the job had to be done. I feel that there was possibly a degree of pressure on Sam to do as the builder told him to do. The builder is in charge of the site.”

Mr Ibrahim was recalled to give evidence later in the trial as to the progress of his career and level of remuneration. He said that in 2006 the entity for which he worked changed to Erect Carpentry and Roofing, the principal of which was also his cousin, Charlie Ibrahim.

In 2007, he was given a pay rise as a 4th year apprentice and, according to his evidence, received thereafter $1,000 per week clear of income tax. He denied, in effect, to Mr Jones that he receives preferential treatment because he is employed by his cousin.

Mr Phillip Sakr also gave evidence in the Plaintiff’s case, he being the third employee of Chubs on the building site on 18 June 2004. He was born on 3 July 1986 and had commenced apprenticeship with Chubs during 2002. He had worked on eaves and balconies at the building site before 18 June using for the purpose, either the scaffolding, which by 18 June had been removed, or the single cherry picker on site.

He testified as to his arrival at the building site in the Chubs van driven by the Plaintiff. He remembered it being parked at the front of the site about 10 to 20 metres from the site office. He said there was a conversation with the site foreman who said: “A. Get started on this job. We want it finished. Like, get started on the eaves or gables so that the job can be finished. “

This statement was made in response to the Plaintiff's request, “what would you like us to work on”.

After this conversation, he said they borrowed a ladder and took it and their tools to the balcony from which the Plaintiff fell. He said there was no impediment to their access either to the unit or to the balcony outside it. Soon afterwards, he returned downstairs to use the lavatory and was still there when the Plaintiff fell. He heard the noise of the Plaintiff’s fall and after realizing what had happened went to offer assistance.

Asked to describe the Plaintiff as he knew him before the accident he replied: “A. Best bloke, fit, always running, always there, cracking jokes, having a laugh. Q. When you say "always there" - is that what you say? A. Yeah, like switched on, always motivated. Q. What do you mean by that, "always motivated"? A. Like he always, he was a very good worker, very smart bloke. Q. What makes you say that he was a very good worker and a very smart bloke? A. Because of the way he used to work. He used to get, if someone was to show him something he would click on to it straightaway and just do it. He used to help me. Like, he'd tell me no, that's wrong, you don't build a wall like that, you don't do this, you do that. You learn from it. Q. You mentioned cracking jokes. How would you describe his personality? A. Very positive kind of guy. Out there. Just wanting to-- Q. What do you mean by "out there"? A. Like, he was loving, caring, just a really nice guy to get to know.”

Mr Sakr said he has seen the Plaintiff twice since the accident, both recently. Asked whether he noticed anything unusual, he said: “A. He was a bit slower. He wasn't, like, he wasn't the same I used to know. Q. Why not? A. Because he just wasn't funny, looked paranoid, just didn't seem himself. Q. What do you mean by paranoid? A. Like, not there. When you speak to him he just won't be there. Like, a bit slower. Not as funny as he used to be. Q. Did he crack any jokes? A. Not really. “

Over objection, I admitted into evidence as exhibit U pursuant to s64 (3) of the Evidence Act , a statement made by Mr Sakr on 17 September 2004, which included these paragraphs: “I was working on the site of Robertson Road. We were to put up the roof. I had been working on the job for a couple of weeks. I cut timber, lug timber, pass it up, pass up the tools, and use the nail gun and nail things. I was working with Sam at the time he fell. I am not sure if I was working at the site the day before I can’t remember. I think I got to the site at about the normal time, which is 7am to 7.30am. Sam drive me to work that day. We had to put fibro on the balcony, and do the gables. The cherry picker was being used by someone else. We told the builder and he said to go and do the balconies, and he said that when the cherry picker is finished with we could use it. The builder was a short bloke, an Australian, I think he might have been Dave. Dave said to go and do the work on the balconies, so we went and did it. Mr Sarkis and Sam were going to do that work. We went upstairs first and put the tools down. And I then went straight to the bathroom. I was away for about 5 minutes.”

Mr Jones’ cross-examination of Mr Sakr somewhat undermined his version of what Mr Boswell actually said, in that it emerged that he was not paying much attention to the conversation, but rather reconstructed it from what the Plaintiff told him afterwards. After being further pressed by Mr Jones, he agreed that he was not actually physically present during any conversation the Plaintiff had with Mr Boswell. However, to Mr O’Dowd he said, in effect, that he saw a conversation between the Plaintiff and Mr Boswell take place even though he could not hear what was said.

Mr Sakr agreed with Mr Jones that the two recent occasions he has met the Plaintiff were in Mr Semmler’s chambers and at court, when he would not have expected him to be in a particularly jovial mood.

In re-examination, Mr Sakr told Mr Semmler that during the conversation between the Plaintiff and Mr Boswell he was about 1 metre away.

Mr Sakr was followed into the witness box by Mr Ray James, an Occupational Health and Safety consultant who was employed by Soliman from January 2004 to January 2005, as Quality Assurance and Occupational Health and Safety Manager. As such, he was responsible for six or seven sites upon which Soliman was working. He said that perimeter scaffolding was erected at the building site but was removed about May 2004. He said that he attended a meeting in March 2004 with Mr Atra and Mr Boswell when it was agreed that the scaffolding should be removed but that the balconies should be protected by permanent or temporary railing. This decision was recorded in Mr Boswell’s notebook where minutes of site meetings were kept.

Mr James said that sometime in April he raised the question of the installation of handrails with Mr Boswell who, he understood, was the project manager and was told that their installation had been organised. He said that thereafter he raised the subject with Mr Boswell at least weekly. He also raised the matter with Mr Sam Soliman, a director of Soliman.

A “Safety Walk” report by Mr James distributed to Mr Atra, Mr Boswell and Mr Soliman dated 4 June 2004 contained these paragraphs: There are a number of balconies which require handrails. Have these installed as a matter of urgency. Clean rubbish and debris from balconies. Harness will be required. Purchase safety harness to allow balconies to be cleaned and handrails installed. Provide secure anchor point at each location required.”

On 11 June, Mr James completed another document exhibit W. That exhibit included: “Harnesses – Carpenter in boom lift and working on balcony no handrails. Balconies – barriers – 9 Balconies without handrails. Men working on these.”

He said that his practice would have been to distribute the document to Mr Atra and Mr Soliman. He testified as to a telephone conversation he had with Mr Soliman on 11 June when he emphasised his concerns about the unfenced balconies and Mr Soliman assured him that something would be done about the problem.

When at an inspection on 15 June, Mr James found that nothing had been done in relation to the fencing of the balconies, he gave Mr Atra, Mr Soliman and Mr Boswell a “non-conformance” notice which read: “A. "Scaffold has been taken down and now there are a number of balconies that are not protected by handrails", ………………………, "please rectify situation as a matter of urgency". “

After the accident, Mr James said that he attended a “close out” meeting at the head office of Soliman during which Mr Soliman said, “I accept responsibility for what happened. I didn’t listen to the issues that Ray was raising in regard to the handrails and cleanliness of the site at Sutherland”.

In cross-examination, Mr James agreed with Mr Jones that with hindsight he probably should have reported the situation at the building site to WorkCover before the accident. He denied that his evidence regarding conversations with Mr Soliman was “a figment of a fertile self-exculpatory imagination”.

Mr Andrew Hoult, a roof plumber, testified that in 2004, he was working for a company owned jointly with his brother, Profix Guttering Pty Ltd (Profix). That company subcontracted with Strammit Pty Ltd to work on the building site. Strammit Pty Ltd, in turn, had a contract with Soliman for roof fascia and guttering work. Profix’s contract related to the fascias and guttering. He was on the building site on 18 June 2004 and said he had been working there previously “on and off” for about 2 months.

Mr Hoult said that his work on the site was initially delayed because of the absence of scaffolding in the areas he needed to work. A cherry picker was ultimately made available and Mr Hoult was able to work from it. When he arrived with his brother on the building site on 18 June, the person in charge, who I infer was Mr Boswell, directed him to the cherry picker at the rear of the premises. He drove it to the front of the building and parked it, an operation which occupied 5 to 10 minutes. He and his brother then proceeded to load the cherry picker with their tools. As they were doing this, according to Mr Hoult, the Plaintiff and his colleagues arrived and parked their van across the road from the cherry picker, about 20 metres from the site office and in full view of it. He saw the Plaintiff go towards the site office and then return to where he was at the cherry picker to ask him how long he required it.

When told that they would need the cherry picker all day, the Plaintiff said, “we are going to leave “ and returned towards the site office. About 2 minutes later, the 3 men returned and asked to borrow Mr Hoult’s ladder to which he agreed. He was still on the site when the Plaintiff fell. At the scene of the fall he met Mr Boswell, who told him that he was not aware that the carpenters from Chubs were on the site. Mr Hoult acknowledged that he did not actually see any of the Chubs employee speak to Mr Boswell.

Mr Richard Novotny testified that in 2004 he was the manager of Associated Building and Construction Services Pty Ltd (Associated) which was engaged, inter alia, in the supply and installation of scaffolding and railings. His company contracted with Soliman to supply scaffolding and rails to the building site. He said that perimeter scaffolding, including scaffolding around all balconies, was completed before May 2004 but was entirely dismantled by the end of that month. He did not suggest that any part of it was later reinstalled.

On 17 June 2004, his company received an order, for the installation of temporary handrails on the balconies. Such an order had not previously been received. He thereupon instructed his leading hand Mr Richard Connolly and an employee, Mr Justin Simon to go to the building site and fulfil the order

Mr Connolly, a carpenter and joiner by trade had previously worked on the building site as an employee of Associated. On that occasion he had installed handrails in the stairwells. He arrived at 7am on 18 June with his assistant Mr Simon. A few minutes later a man who described himself as the acting foreman on site arrived and opened the site office. This man who I infer was Mr Boswell spoke to Mr Connolly and, apparently there was discussion as to the work Mr Connolly was to perform. Mr Connolly noticed that after this conversation, Mr Boswell went towards the front of the site, by which time it was about 7.30am. Mr Connolly said that in all he was with Mr Boswell for only 5 or 10 minutes.

Mr Connolly found no difficulty in gaining access to any of the balconies, “all the doors were open”. Although some doors were fitted with locks, none was locked. When the job was almost finished, he became aware of the Plaintiff’s accident. He saw Mr Boswell standing close to where the Plaintiff was lying and he, Mr Connolly, being qualified as a senior first aid officer went to assist.

Mr Connolly told Mr Jones in cross-examination that prior to the accident, he had not seen the Plaintiff working on the balcony from which he fell.

The final lay witness as to the events of the day of the accident was Mr Boswell, called in Soliman’s case. He said that he is a project manager by occupation and commenced to work for Soliman in mid 2003. He said that his role was to monitor time and costs on construction projects, a role he had been fulfilling for approximately 10 years.

In relation to the building site, he said there was a site foreman, Mr Atra. Prior to 18 June he attended it once or twice a week, each time for up to 2 hours during which he discussed the progress of the work generally with Mr Atra.

On the morning of 18 June (or, as he later agreed, on the previous afternoon), he was telephoned and told that Mr Atra would not be attending the building site on 18 June. He was asked to “come in” for Mr Atra until another employee of Soliman became available to relieve him.

He arrived at approximately 7am. He said the scaffolding contractor (Mr Connolly) also arrived and after opening the site shed he went for a walk around the site with him to identify the, approximately, 12 balconies where “scaffolding” (sic railings) was to be installed. The next to arrive at between 7.30 and 8am were the “fascia and gutter people”, (Mr Hoult).

According to Mr Boswell: “They were fixing fascia at the rear of the site and also at the front of the site. They commenced at the rear of the site and then later moved around with the boom lift to the front of the site. “

Mr Boswell said that he had previously spoken to Mr Atra about the balconies: “I more or less said when we do drop the scaffolding he needs to ensure that all the balcony doors are locked until such stage that we have handrails on them and they're safe and secure. “

Mr Boswell testified that when the fascia and gutter workers commenced to use the boom lift, he stood and watched them at the rear of the building for half to one hour, “then they moved the boom lift around to the front of the site and they started to put up …. the facias at the front of the site on the south eastern corner. And I watched them while they installed the fascias and gutter from the boom lift”.

At about 9am, Mr Boswell said he went to a nearby shop to purchase some refreshments, being away for 10 to 15 minutes. When he returned he continued to watch Mr Hoult and his team working from the cherry picker.

Between 9.30am and 10am, someone came running from within the building, shouting, “My friend has fallen, call an ambulance”. He telephoned triple O and while on the telephone went, for the first time, to where the Plaintiff was lying. He said that he was conscious and breathing. As Mr Boswell waited for the ambulance, he attempted to make the Plaintiff more comfortable. He deferred to Mr Connolly when he came to the scene.

Mr Boswell said that he had not seen the Plaintiff on site previously and denied that he had been aware that he was on the site. He expressly denied making eye contact with him.

Later in the day, Mr Boswell said that he sat down and wrote his version of what occurred while it was fresh in his mind. Asked by Mr Jones what action he would have taken had he known the Plaintiff was on the site, he replied: “Well, I wouldn't have allowed him to go and work on the balcony where he had the accident. If there was any other work for him to carry out I would have asked him to do that, otherwise send him home. “

He denied that he expressly told the Plaintiff to work on the balcony and said that if he had known the Plaintiff proposed to work on a balcony, he would have directed Mr Connolly to erect a railing on that balcony as a matter of priority.

Mr Jones examined Mr Boswell upon the circumstance that the perimeter scaffolding was removed some time before the accident. There was this exchange: “Q. At some stage I think there was scaffolding erected around the building at Robertson Street, Sutherland; is that right? A. Yes. Q. And why was the scaffolding removed? A. Well, in the normal course of construction you remove the scaffolding at some point in time. It is very costly having the scaffolding up. The subcontractor wasn't returning to site to complete his works. Q. When you say the subcontractor to whom are you referring? A. The subcontractor that the victim worked for. Q. Chubs? A. Chubs, yes, the carpenters. So, yeah, they were delaying the works by not returning, costing us a lot of money with the scaffolding so we decided to off hire the scaffolding and provide some other means for Chub to undertake their works. “

There was a good deal of argument about the admissibility of Mr Boswell’s hand written record made on the day of the accident, which Mr Jones sought to tender under s64 (3) of the Evidence Act at the conclusion of his evidence in chief. It was objected to by both Mr Semmler and Mr O’Dowd and, in the result, I rejected the tender under s135.

Following the cross-examination of Mr Boswell, I was asked to revisit that ruling on the basis that it contains a reference to a conversation with Mr Sarkis Ibrahim about which Mr Boswell had testified and which the cross-examiner suggested was a fabrication. In the circumstances, I admitted the statement as exhibit 1D-18, not as evidence of underlying facts but solely to restore Mr Boswell’s credit under s108 (3)

Mr Semmler cross-examined Mr Boswell about his statement to a WorkCover inspector on 9 June 2005 that “the scaffolding had just been removed and handrails were being installed on the day of the accident”. The cross-examination continued: “Q. And you well know that you were not referring to some other scaffolding that had been put up in some other part of the site, weren't you? A. No, the scaffolding I was referring to was in front of the balcony. We re - we put scaffolding up on that same side inside the courtyard-- Q. What, in front of-- A. --which is-- Q. In front of the balcony from which the plaintiff fell? A. Yes, and that's the scaffolding I am referring to that had just been removed. Q. The scaffolding in front of the balcony from which the plaintiff fell hadn't been there for weeks, had it? A. I can't - no, no, I'm pretty sure that the scaffolding that I am referring to in that was scaffolding that we re-erected. Q. When did you re-erect it? A. Well, it would have been after the other scaffolding was removed. We found out that it wasn't safe so then we had to then go back in and put it back up again, one section. Q. What, just one section just in front of the balcony from which the plaintiff ultimately fell, is that what you are saying? A. I think it may have been there and then it went down the rear of the site and around the corner. Q. Mr Boswell, you are just making this up, aren't you? A. No, I am not. Q. You are making it up to try and explain the answer that you gave to the WorkCover inspector, aren't you? A. No, I am not. Q. You well know that the scaffolding around the balconies in the inner courtyard of that site was removed weeks before the plaintiff's accident, don't you? A. No, not necessarily. The new scaffolding that I am talking about-- Q. Yes, when was that put up? A. Well, it was put up after the other scaffolding was moved. It was probably - there might have been a short period of time. We made the mistake, pulled all the scaffolding down and then we realised that we had to put some more scaffolding back up. Q. Right. Well, you said that the original scaffolding was removed one or two months before the plaintiff's accident? A. That's correct. Q. Is that right? A. Yes. Q. And so when did the new lot of scaffolding go up? A. It may have been one month after the - the perimeter scaffolding was removed. Q. How long before the plaintiff's accident was that new lot of scaffolding removed? A. It may have just been removed. As I have referred to in that WorkCover statement. Week, one to two weeks. Q. Well, can you remember when it was removed? A. We are talking about four years ago. I am saying one to two weeks. Q. So you are saying now that there was scaffolding in place that was removed about one to two months before the plaintiff's accident, is that right? A. That's correct. Q. And then you say that there was some more scaffolding put up? A. Yes. Q. And you think it was removed a week or two before the plaintiff's accident? A. That's correct. Q. And who removed it? A. The scaffolding company. Q. Which company? A. ABC Scaffolding, I think. Q. You see, that's a lie as well, isn't it? A. Why - no, not that I am aware of. Q. You well know that ABC Scaffolding did not remove any scaffolding from your site in the weeks of June before this accident happened? A. No, it's not a lie. Not that I am aware. ABC Scaffolding was the company subcontracted to provide scaffolding on that site. “

It was then suggested that he had given untrue evidence to Justice Haylen in the Industrial Commission when he told His Honour, “I just happened to call in there and I think the foreman rang in sick, so I am not intimate with the program of works by individual trades for that day”.

It also emerged that he said to Justice Haylen, “I wouldn’t say I was ever acting as foreman”. He denied that this statement was false. There were then these questions and answers: “Q. You well know that you were acting as a foreman that day? A. I - I understood that I was standing in as a relief until a foreman-- Q. Look, sir, you told the police on the day of the accident that you were the foreman, didn't you? A. Well, I have never had experience as a foreman so I was only a temporary fill-in. Whether you title me as a foreman or whatever, that's your choice. Q. I am simply reminding you of what you said. You know that you were the - whether you were a fill-in or a temporary or acting, you were the foreman, the site foreman, when the plaintiff's accident happened, weren't you? A. If you want to say so, yes.”

As to the danger of allowing workers on to unguarded balconies, there was this exchange between Mr Semmler and Mr Boswell: “Q. Would you agree it was a gross departure from reasonable standards in the building industry to have unguarded and unfenced balconies on a building site like this? A. Not if the doors were locked preventing people from going out. Q. Are you saying the doors were locked on the day of the accident? A. I don't know if they were locked. Q. And if they weren't locked you would agree, wouldn't you, that it's a gross departure from reasonable standards in the building industry as at 2004; correct? A. Yes, I would say it would be unsafe if the doors weren't locked. HIS HONOUR Q. If the doors were locked who would have access to the key? A. The builder would be ultimately responsible for the doors being locked. Q. Would the key be kept in a designated place? A. I would think so by the foreman. “

Mr Boswell agreed with Mr Semmler that on the day of the accident, he said to the police: “As far as I'm aware the site has certain places which are unsafe. This would include the balcony sections of the building site as there is no handrails on some of them."

He could not recall mentioning to the police that the balconies would have been safe if locked in accordance with his earlier instruction.

Mr Boswell agreed with Mr Semmler that one of the important functions of a site foreman is to be aware of who is on the site at any particular time and who is scheduled to be there. He agreed there was no attendance register.

As to the discharge by Mr Boswell of his responsibilities as acting foreman on the morning of the accident, the transcript records: “Q. And I think we have already established this morning that you when you turned up in response to the telephone call the afternoon before you were the stand-in site foreman that morning; correct? A. Yes. Q. And you had access to that diary, didn't you? A. Yeah, if I could locate it within the site shed, yes. Q. Well, you knew that it was in the site shed, didn't you? A. I don't know where the foreman keeps all his stuff, but, yeah, I found it on that day. Q. When did you find it? A. I think I started reading it around morning tea time. Q. What time was that? A. Around 9 o'clock. Q. Before the accident? A. Yeah, just before the accident. Q. You see, if you'd been discharging your function as the site foreman that day properly the first thing you would have done upon opening up the site would have been to check that diary to ascertain who was coming on to the site. That's correct, isn't it? A. Yeah. Q. And you didn't do that, did you? A. No. Q. The fact is as at quarter past 9 when you came back from your tea break you had no idea who was on that site, did you? A. Only the people that I saw come in. Q. But there could well have been other workers on that site? A. Yes. Q. And you had taken no steps to ascertain who was where on the site apart from knowing that the guttering people were there out the front doing their work. That's correct, isn't it? Q. And apart from the scaffolding man? A. Yeah. The other thing I attended to was the chaps on the boom putting up the fascia and gutter, because I thought that was a safety issue. So that's why I stayed with them. Q. That's the people out the front? A. That's correct. We were out the back to start off with then came around to the front. HIS HONOUR Q. Why was that a safety issue? A. Because they're working at heights and things could fall and the development was adjoining an existing department of housing development so I wanted to make sure that, you know, the public wouldn't walk over and they would drop something on their heads.”

Mr Boswell denied Mr Semmler’s suggestion that he put himself at the rear of the building for up to an hour in order to explain why he was not aware of the Plaintiff’s presence on the site and thereby exculpate himself. There was this further exchange: “Q. And I suggest to you that when you told them where the cherry picker was, that they then went to the back of the site, they collected the cherry picker and they drove it around to the front; that's correct, isn't it? A. I - I thought they worked at the rear of the site. Q. When you say now, having spent 15 or 20 minutes telling us of your clear recollection of being there while they are working at a height out the back, you are now saying you are not sure about that, aren't you? A. No, no, I - I - well, I recall that they had to do something at the rear of the site. Q. But you have no specific recollection, as opposed to some kind of reconstruction in your mind, of you being with them at the back of the site while they were doing work for an hour or so; that's correct, isn't it? A. I can remember being at the rear of the site because that's where the cherry picker was. Q. But you cannot remember being there with them for an hour while they were doing work at height, can you? A. No. Q. No. So the evidence that you gave about that in the last half an hour is, you would agree, unreliable, wouldn't you? A. I would say it's my word against their word. Q. Are you saying now that you do remember being with them for half an hour at the rear of the site while they were working at site, or an hour; is that what you are saying now? A. I - I - yeah, I - I thought I was at the rear of the site for approximately an hour. Q. So you are absolutely sure about it, sufficiently sure that you can say it on your oath, is that what you are saying? A. I - I - I can't be certain. Q. So now you say you can't be certain that you were with them for an hour at the rear of the site, is that right? A. I can't be certain of the time frame but I was definitely at the rear of the site with them. Q. But you can't even be certain that they were working there, can you? A. I thought they were working there because there was works to do at a height on that corner where they were circled. Q. When you use the expression now "I thought they were working there", there is some doubt in your mind as to whether they were even working at the rear of the site, isn't there? A. Yeah, there may be a little bit of doubt. Q. And I suggest to you that rather than them doing any work at all at the rear of the site - what happened was you told them where the cherry picker was, they went to the back, they got the cherry picker, one of them drove it, that is Mr Hoult, and his brother who was with him walked with him and it was driven around to the front; that's how it happened, isn't it? A. Like I said, the time frame - sometimes we had problems with that cherry picker in even starting it up and they may have been at the rear of the site, you know, for half an hour trying to get the thing going or filling it up with petrol. Q. So you are now saying rather than recalling them actually doing work while you were standing there watching them doing the work, the half hour that you say they might have spent there could have been because they couldn't get the cherry picker started? A. No, I - I don't - I do recall that they were doing a little bit of work on one of the corners there. Didn't take very long but we were around the back of the site for a while and - and to the best of my recollection, I - I can see it being elevated.”

As to whether, on the morning of the accident, Mr Boswell had a belief that the doors to the balconies were locked, the transcript records: “Q. Mr Boswell, when Mr Connolly turned up that morning he was able to access these balconies without any keys at all, wasn't he. A. I don't know whether he had keys or not, but he did access the balconies. Q. Did you inquire? A. No. Q. You didn't inquire because you assumed that he would be able to get straight on to those balconies that morning, didn't you? A. No, I never assume anything. Q. Well, why didn't you inquire when you were showing him around and showing him which balconies required handrails, why didn't you say to him, "Look, I've told the people to make sure these balconies are locked, have you got a key?" Why didn't you do that? A. I wasn't sure of the process with the subcontractors on site. The foreman normally deals with that on a day to day basis. All I did was identify what balconies needed handrails and that's all that was said. Q. But I'm suggesting to you, Mr Boswell, you did not believe at all that morning that those balconies were locked because-- A. No, that's not the case. Q. Because if you had believed that you would have made some inquiries about how this contractor was going to get on to these locked balconies. That's right, isn't it? A. No, it isn't. If he had an access with - a problem with access then I would have solved that problem then and there. Q. You were aware, at least from Mr James's memorandum pointing out that there were people working on these unguarded balconies, that this precaution that you say you took of telling Mr Atra to make sure the doors were locked was not working within a couple of weeks of the plaintiff's accident. That's right, isn't it? A. That's correct. Q. When his Honour asked you yesterday "If the doors were locked who would have access to the key" you said, "The builder would be ultimately responsible for the doors being locked" and you added that they would be kept in a designated place by the foreman, didn't you,? That's what you said? A. That's correct. Q. And you didn't at any stage suggest that the contractors themselves had keys to the same locks in respect of which the keys were kept in a designated place by the foreman, did you? A. That's correct. Q. And you well know, Mr Boswell, that your belief that morning was that the doors were not locked? A. No, that's not correct. “ EXPERT EVIDENCE AS TO LIABILITY:

In the Plaintiff’s case, a report was tendered from Mr John Eccles, a building consultant, and he gave oral evidence. I should say at once that, in my opinion, there was, in this case, very little scope for expert evidence. Unsurprisingly, Mr Eccles concluded that the accident was “preventable by the adherence to well known procedures in the building industry”.

Mr Jones, in his case, called Dr John Cooke, a consultant architect. There was debate upon the admissibility of parts of his report upon which I gave rulings but, in the result, the report did not find its way into evidence.

However, without objection, he gave some oral evidence as to the respective responsibilities of employer and head contractor in situations such as the one under consideration. In the result, I conclude that the resolution of liability in this case is not assisted by expert evidence. Rather it depends on factual findings within my province. CONCLUSIONS ON LIABILITY:

Mr Jones submitted, without, I think, much enthusiasm, that the Plaintiff’s claim against Soliman is answered by Sections 5F, 5G, 5H and 5I of the Civil Liability Act.

I agree with the submissions of Mr O’Dowd and Mr Semmler that the sections have no application to the case. Sections 5F, 5G and 5H seem to be directed to relieving (except in particular circumstances) a person from a duty to warn another of an obvious risk. This is not a failure to warn case – the Plaintiff admits that he was aware of the danger of working from a ladder on the unguarded balcony.

Section 5I is in the following terms: “(1) A person is not liable in negligence for harm suffered by another person as a result of the materialisation of an inherent risk. (2) An inherent risk is a risk of something occurring that cannot be avoided by the exercise of reasonable care and skill. (3) This section does not operate to exclude liability in connection with a duty to warn of a risk.”

In my opinion, the risk which the Plaintiff faced could have been avoided by the exercise of reasonable skill and care. It was therefore not an inherent risk and the section accordingly does not apply.

In considering liability an important issue is whether the Plaintiff had 2 conversations with Mr Boswell on the morning of the accident as he deposed.

Mr Boswell was not, in my opinion, an impressive witness. Generally, in my view, his evidence was very much undermined by Mr Semmler’s cross-examination, both in relation to the matters to which I have made specific reference, and also other matters which emerged during the cross-examination and with which it is unnecessary to detail. For instance, I entirely reject his evidence that after the original scaffolding was removed, some other scaffolding was installed, which was also removed before the accident.

Mr Boswell’s evidence that he had no conversation with the Plaintiff and was unaware of his presence, or the presence of other Chubs workers on the site, seems to me, not only in direct conflict with the oral evidence of the Plaintiff, Mr Ibrahim and Mr Sakr, but also in conflict with the inferences to be drawn from the evidence of Mr Hoult, whom I thought was a particularly impressive witness. Moreover, there was a direct conflict between the evidence of Mr Hoult that the cherry picker was, immediately after his arrival, driven from the back of the building to the front and the evidence of Mr Boswell that he spent up to an hour watching Mr Hoult work on fascias at the rear of the building, about which, I might add, Mr Boswell seemed to become less certain as the cross-examination proceeded. I prefer the evidence of Mr Hoult.

Once Mr Boswell’s assertion that he spent about an hour at the rear of the building from around 7.30am disappears, as I believe it does, there also disappears, what to my mind is, the only possible explanation for him not to be aware of the Plaintiff’s presence on the site.

Apart altogether from the fact that Mr Boswell had a duty to be aware of who was on the site, there are the significant circumstances that the van in which the Plaintiff arrived with Chubs’ name emblazoned upon it was parked in full view of the site office, a few metres away on the other side of the road; that the Plaintiff’s evidence as to his two conversations with Mr Boswell seems to accord in an important way with the evidence of Mr Hoult; and that before the accident, on any view of the matter, the Plaintiff and his team were not only on the site for a considerable period, probably of the order of an hour and a half, but they were also moving about it for various purposes, including carrying a step ladder to the balcony and in the case of Mr Sakr, a journey to the toilet.

Although it is true that the Plaintiff did not immediately mention his conversations with Mr Boswell, I can readily understand that he may not, at first, have regarded those conversations as of significance when describing the accident itself. I am also not unmindful of some vagaries in the evidence of Mr Sarkis Ibrahim and Mr Sakr, but in the result, I do not regard them as significant.

I am satisfied that the Plaintiff had 2 conversations with Mr Boswell on the morning of the accident, substantially as he related. It appears to me that Mr Boswell’s knowledge of the frustration being experienced by Soliman in its dealings with Chubs probably, temporarily, overcame his professional judgment to the extent that he permitted, if not encouraged, the Plaintiff to complete the work on the balconies, despite the absence or unavailability of scaffolding, cherry picker, railings or other means of securing the safety of the workmen.

In the result, the Plaintiff was exposed to, what I regard as, a very dangerous work situation, namely, the requirement that he work from a stepladder on a narrow, unguarded, and unfenced, second floor balcony. The danger was simply avoidable. In the absence of appropriate safety measures, the doors to the balconies, as Mr Boswell, himself recognised, should have been kept locked and the keys retained in a secure position by the foreman. The foreman should have permitted no one to access the balconies.

Soliman sought to avoid liability on the basis that it had subcontracted foreman duties to Mr Atra and it was his negligence which caused the accident. Reference was made to Leichhardt Municipal Council v Montgomery (2007) 81 ALJR 686.

However, in my opinion, there are reasons in this case why Soliman cannot shield behind Mr Atra. The first is that, apart from the bare statement that he was site foreman, there was no evidence as to the terms of his engagement.

More importantly, there is the evidence of Mr James. Although his credibility was attacked, I accept him as a witness of truth. In particular, I accept his evidence of conversations with, and statements by Mr Soliman, such evidence being easier to accept in the absence, without explanation, of Mr Soliman from the witness box.

I find that Mr Soliman, and through him the company, Soliman, of which he was a director, actually knew of the dangers of the building site yet did nothing, except belatedly, about those dangers, knowing that in the meantime workers were likely to expose themselves to the perils identified.

I hold Soliman liable in negligence for the Plaintiff’s accident. It follows from the findings stated that I would have reached the same conclusion even if I had not accepted the Plaintiff’s evidence as to his conversations with Mr Boswell. The liability flows from the principles expressed by the High Court in Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 60 ALJR 194. The statement by Mason J at 199 is apposite to this case. “Although the obligation to provide a safe system of work has been regarded as one attaching to an employer, there is no reason why it should be so confined. If an entrepreneur engages independent contractors to do work which might as readily be done by employees in circumstances where there is a risk to them of injury arising from the nature of the work and where there is a need for him to give directions as to when and where the work is to be done and to co-ordinate the various activities, he has an obligation to prescribe a safe system of work. The fact that they are not employees, or that he does not retain a right to control them in the manner in which they carry out their work, should not affect the existence of an obligation to prescribe a safe system.” The facts also establish liability on the part of Chubs for breach of its non delegable duty to provide the Plaintiff with as safe a place and system of work as reasonable care and skill could make them.

My findings of liability against Chubs and Soliman derive from the Common Law. It is thus unnecessary to consider whether there were proved breaches of the Occupational Health and Safety Regulation and, if so, whether any such breaches gave rise to an independent cause of action. (see for instance Est Late M T Mutton v Howard Haulage Pty Ltd [2007] NSWCA 340). Breaches of the regulation may also of themselves evidence negligence. APPORTIONMENT OF LIABILITY:

Because of the cross claim between the defendants and because this is a case to which s151 Z (2) of the Workers Compensation Act applies, it is necessary to make an apportionment of responsibility between Soliman and Chubs.

The principles applicable are set forth in Atkinson v Gameco (NSW) Pty Ltd [2005] NSWCA 338. At paragraph 18 and following, Ipp JA (with whom Giles JA and Hunt AJA agreed) said: “[18] The mere fact that injury occurred on premises occupied by a third party does not mean that Gameco, as employer, had no duty of care to Mr Atkinson. For example, the content of the duty of care owed by an employer that operates a labour hire business is not diminished by the fact that the employees are sent off to work for customers that hire them: TNT v Christie (at para 67). Nevertheless, the fact that the premises are in the control of a third party will be a relevant matter when considering whether the employer has taken reasonable care for the safety of the employee: Glass, McHugh and Douglas “ The Liability of Employees in Damages for Personal Injury ” (2nd Ed 1979) at 54. [19] In Bourke v Victorian WorkCover Authority [1999] 1 VR 189 Winneke P (with whom Brooking JA and Buchanan JA agreed) said: True it is that, where an employer sends his employee to work at or in premises occupied or controlled by another, … occupation and control by another person may be a relevant fact in considering whether the employer had been in breach of his own independent duty to the employee. But the fact that the employee’s work is required to be done on premises of another does not absolve the employer of his duty. Its impact upon whether he had breached his duty will depend upon all the circumstances. As Lord Denning said in Smith v Austin Lifts Limited [1959] 1 WLR 100: Notwithstanding what was said in Taylor v Sims & Sims [(1942) 167 LT 414 ; [1942] 2 All ER 375] , it has since been held, I think rightly, that employers who send their workmen to work on the premises of others cannot renounce all responsibility for their safety. The employers still have an overriding duty to take reasonable care not to expose their men to unnecessary risk. They must, for instance, take reasonable care to devise a safe system of work … ; and, if they know or ought to know of a danger on the premises to which they send their men, they ought to take reasonable care to safeguard them from it. What is reasonable care depends, of course on the circumstances … (See also Wilson v Tyneside Window Cleaning Co [1958] 2 QB 110 at 121–2 per Pearce LJ; Sinclair v William Arnott Pty Ltd (No 2) (1963) 64 SR (NSW) 88 at 91–2 per Walsh J). One can conceive of a multitude of circumstances where workmen are sent to work upon premises controlled by others in which the impact upon the discharge of the employer’s duty will vary. It will depend no doubt upon such matters as the employer’s opportunity to inspect the premises, the length of time the employer has put his employees to work on the premises, the awareness in the employer of the danger, his capacity to shield his employees from the danger and various other factors. [20] In the present case, Gameco had no opportunity to inspect the premises, Mr Atkinson was visiting the premises only for the purpose of attempting to sell Gameco’s product and had been there for a relatively very short time. Gameco had no knowledge of the particular danger and it had virtually no capacity to shield Mr Atkinson from the danger that materialised. In reality, the only possibly arguable way in which Gameco, practically, might have been able to protect Mr Atkinson from the risk that materialised was by training him in general safety measures. This involves Mr Atkinson’s second argument and I will discuss that later.”

In the result, in Gameco it was held that there was no breach of the employer’s duty of care. However, the factual situation was far different to the present case. Here Chubs was in a contractual relationship with Soliman. For some months it had apparently unlimited opportunity to inspect the building site and make itself conversant with the situation, which confronted its employees when they were sent to work there. Indeed, according to the evidence, Mr Charlie Ibrahim (who like Mr Soliman did not go into the witness box) at one stage worked on the project himself. Chubs knew, or ought to have known, that by June 2004 there was no perimeter scaffolding; that only one cherry picker was available on site; that the balconies which still required attention by Chubs’ employees were unfenced; and that the doors to those balconies, as I find to be the case, were kept unlocked. There was also the evidence that Chubs had given no instruction to its employees about the dangers of working at a height.

Moreover, it was the decision of Chubs to designate as the leader of its team a 4th year apprentice, as opposed to a qualified tradesman. On the other hand, it may be inferred that Chubs knew that the previous day its employees had been able to work safely at height using the cherry picker. A further relevant factor, although not a decisive one, (see Lapcevic v Collier [2002] NSWCA 300) is that Soliman, according to the agreement, exhibit AE, had a contractual obligation to provide scaffolding and handrails.

In my view, the negligence of Mr Boswell in allowing the Plaintiff onto the balcony and the failure of Soliman to act promptly to overcome dangers of which it was expressly made aware was gross, a factor which I regard as relevant. Chubs was entitled to assume that Soliman would not commit such egregious breaches of its duty of care as controller of the building site.

In Maricic v Dalma Formwork (Australia) Pty Ltd [2006] NSWCA 174, Basten JA (with whom Beazley JA and Ipp JA agreed), after remarking that in cases involving labour hire employees, the employer’s liability had been assessed at 20%, emphasised that the liability of the employer must be assessed on the facts of each case. This, of course, is not a labour hire case. The involvment of Chubs was higher than that. Balancing the various factors I have mentioned, I think that an apportionment of 25% as the responsibility of the employer, Chubs, and 75% as the responsibility of Soliman, would represent a just result. CONTRIBUTORY NEGLIGENCE:

The Plaintiff, as a fourth year apprentice, was aware of the danger of working from a ladder on a small unfenced balcony. He should, in taking reasonable care for his own safety, have refused to work there until the cherry picker was available or until a railing was installed. On the other hand, I accept that there was pressure put on him by Mr Boswell to do the work, notwithstanding the dangerous state of the workplace. It may readily be inferred that he also felt a similar obligation towards Chubs.

Mr O’ Dowd submitted that contributory negligence should be assessed as at least 30% and Mr Jones supported that submission.

Mr Semmler on the other hand submitted that no contributory negligence had been proved or if proved would be assessed at less than 10%. He referred to a number of cases, including the passage from the judgment of Jacobs J in Commissioner for Railways v Halley [1978] 20 ALR 409: “The conclusion of the trial judge was that the respondent's common sense should have indicated to him that what he was doing was highly dangerous, and the Full Court concurred in that conclusion. But it needs to be stated before going further to the facts of the case that a finding that the respondent knew or ought to have known that what he was doing was highly dangerous does not necessarily establish that he was guilty of a lack of reasonable care for his own safety in the circumstances of his employment. It would also need to be established by the appellant that the respondent knew or ought to have known that what he did, even though it was highly dangerous, was not required of him in the performance of his duties. An employee may be required in any part of his employment to do work which could be described as highly dangerous. If he is so required, then the obligation on the employer is to take reasonable care to ensure that the employee is aware of the dangerous nature of his work and is aware of the best way of avoiding injury to himself as a result of the dangerous nature of that work. Further, if an employee is required by the nature of his employment to expose himself to some dangers but not to others, the employee is not shown to be guilty of contributory negligence simply by exposing himself to a situation which he knew or ought to have known was dangerous, or even highly dangerous. It must also be shown that he knew or ought to have known that it was not expected of him that he would expose himself to that danger.”

This was not, in my view, a “system” case in the sense that the expression is used in such cases as Davies v Adelaide Chemical & Fertiliser Co Ltd (1946) 74 CLR 541 and State Rail Authority v Wiegold (1991) 25 NSWLR 500, although on the day of the accident, Soliman and Chubs failed to provide a safe system of work. The Plaintiff could have chosen not to go on the balcony, or he could have referred the problem to Mr Charlie Ibrahim. Instead, albeit in advancing his employer’s business, he embarked on a casual act, which was potentially dangerous.

In approaching the matter as required by sections 5 R and 5S of the Civil Liability Act , I am satisfied that the Plaintiff was contributorily negligent in failing to avoid the possibility of the harm which he identified. I would assess at 10% the percentage by which it would be just and equitable to reduce the Plaintiff’s damages. GENERAL DAMAGES – LAY EVIDENCE:

The Plaintiff’s wife Sharmaine, his sister Nasrin, his brothers Rami and Mohammed (Michael), and his friend Majad Haddad gave evidence relevant to his claim for non economic loss. To avoid confusion and without intending any disrespect, I shall hereafter refer to each of them by their first names as I have already done with the Plaintiff’s wife.

Sharmaine said that she was born on 1 July 1982 and met the Plaintiff five years ago, through his sister who was a work colleague at an electronic company where Sharmaine worked in customer service.

Within 2 weeks or so after meeting they were going out together. She was attracted by the Plaintiff’s ability to make her laugh, by his charm, and by his happy nature. She, at the time, was living with an aunt and uncle at Ashcroft, her parents being on the South Coast of NSW where she grew up.

Their relationship developed to the extent that before the accident, they discussed marriage. Asked how the Plaintiff related to other people, she replied: “He was very sociable, outgoing, cracked a lot of jokes. He was a fun person to be around. “ She also described him as “a very confident person, very independent”.

When they met, she said the Plaintiff was working as an apprentice carpenter, “he loved his job” and made comments to her to that effect. Their activities together included going to the cinema, the beach, nightclubs, barbecues, “just normal things that people our age do”. They did not, however, have a sexual relationship before marriage.

Sharmaine said that in the period leading up to the accident, they were very open in communicating with each other, “He was my best friend. I could go to him with anything”. At that time, they were in each others company at weekends and on about 3 days during the week. Often they met at his parent’s home, 5 minutes drive away.

She said that the Plaintiff looked after his physical fitness by going to a gymnasium at least 4 times a week and eating healthy food. She said that although he was a big man, “it was muscle”, whereas now “its fat”. He used to play football and sometimes cricket.

She said she was aware that before the accident the Plaintiff required surgery, which resulted in him being away from work for several months. When he was at home convalescing she would call to see him every day.

In their conversations they not only discussed marriage but of owning their own home; of the Plaintiff’s ambition to have his own carpentry business; and of their mutual wish to have several children. Immediately before he accident she said: “We were both very happy. Never really argued. Like I said, we were best friends.”

She learned of the accident when she telephoned the Plaintiff’s mobile telephone on the morning of it and was told about it by a male who answered. She immediately went to the St George Hospital: “his face was all swollen, there was blood everywhere”. Thereafter, she visited him every day while he remained in hospital. When he was able to take food by mouth she helped to feed him. She also performed other personal services such as giving him water. He appeared depressed and tearful and she sought to “lift his spirits”.

Often, the Plaintiff’s mother also performed personal services. The Plaintiff was unable to do much for himself as his arms were bandaged and, at one stage, for a few days, elevated in slings suspended from the ceiling. Sometimes, she took the Plaintiff in a wheelchair to the hospital coffee shop. Nothing she did, however, seemed to improve his low spirits. Several times he told her that he wanted to kill himself.

She also noticed that he had become aggressive and rude both her and to the nurses. She said his personalty and attitude had changed. He had become forgetful of recent occurrences such as the identity of people who had visited him earlier in the day.

After his discharge from hospital, she continued to visit him at home on a daily basis. His right arm then seemed to be fixed in a position whereby his lower arm was at right angles to his upper arm. This situation continued unchanged until the subsequent release surgery performed about a year later and still continues to a lesser extent as the surgery was only partially successful.

For about a month after his discharge from hospital the Plaintiff was in bed at his parent’s home. During this time, she visited him for a few hours after work each day and for most of the weekends. She fed him when he needed food, brought things to him and later assisted him to dress. Otherwise his mother attended to his personal needs in this period.

Before the accident, she said that the Plaintiff, who “is a perfectionist, so everything has to be tidy”, would sweep and vacuum the floor, wash dishes, mow the lawns, wash cars and do handyman jobs about the house. Once she was aware that he assisted his father paint the interior of the house.

She said that she and the Plaintiff had agreed that she would continue to work after marriage and had discussed the sharing of household chores.

They were married on 14 April 2006 almost 2 years after the accident in a small private wedding performed in the Plaintiff‘s home by a Muslim cleric, they both being of that faith. She would have preferred a larger wedding but deferred to the Plaintiff’s wishes based, as she understood it, on his embarrassment at appearing with his disabilities in public gatherings. Up until then the Plaintiff continued to be, in her assessment, low in spirits.

In any event, throughout the period up to their marriage, she estimated that she spent of the order of 14 hours per week in trying to overcome his depression and in performing various services for him, which he was unable to perform for himself. During this period, she observed his mother also perform such services.

For 4 or 5 months after his discharge from hospital, his mother would shower him, dry him, dress him, help shave him, clean his teeth, dress him and assist him in and out of bed. Either Sharmaine or some other member of the family would drive him to medical appointments.

After their marriage, she continued to work until shortly before the birth of their son. She performs all the housework with no assistance from the Plaintiff and said she is “not coping”, having regard to her added responsibility for Zayne. If money were available she would pay for assistance. On occasions, she said the Plaintiff has tried to help her but has desisted in the face of pain. She estimates that she performs housework of about 15 hours per week, which would have been shared, if not for the accident. She said that her husband does not really help at all in caring for their son.

They live in a rented one storey duplex which has a small yard. The yard is tended by her with the assistance of the Plaintiff’s brothers who also wash their 2 cars. She estimated 4 hours per week as the time taken to mow lawns, keep the yard tidy and carry out necessary home maintenance.

Sharmaine said that the Plaintiff was pleased to engage in the 2 work trials but told her they caused a lot of pain. Asked whether she thinks he would be able to cope with full time employment, she replied that it would depend on the job and how much contact with the public it involved. She said he regularly speaks rudely to and “snaps” at people, including herself, his mother and members of his family and would not be able to hold a position with significant public contact.

She also gave instances of the Plaintiff apparently being overcome by noise and crowds of people in shopping centres and insisting that they leave. If she remonstrates, he will either ignore her or otherwise shout at her in abusive terms. She said he was never like that before the accident. He can also be rude on the telephone.

He uses a computer in looking for employment and down loads music but types very slowly with one finger on his left hand.

On a typical day, if he has no medical appointments, she said that he stays in bed until 11 or 12 o clock which she relates to Stilnox, the medication he takes for insomnia. After arising from bed, she said he “mopes around”. He appears unhappy but he eats breakfast, watches some television and checks job vacancies on the Internet. She has, in the meantime, been up since 6am tending the baby and doing the housework. Although he watches television she has noticed that he appears to lack concentration if it is a film, either on television or on DVD.

She would like to return to part time work but need to find someone to look after Zayne. She said the Plaintiff would be unable to do this, “He can’t even pick him up. He can’t change his nappy”.

Asked why she married him in the knowledge of his changed circumstances, she replied: “Yeah, that's right. Well, the reason I married Sam is because I loved him and he was my best friend and I always thought that as the years went on he would get better. “

Sharmaine said that apart from the Plaintiff filling in his day about the house, he attends the job club and visits a friend. Going out seems to lift his spirits. He also sometimes goes for a 15 minute walk “around the block”.

At night she said they often go to his parent’s home for dinner, which saves her from having to cook. He goes to bed usually about 10pm. The baby wakes twice a night and she attends to him.

She said her husband complains to her of pain in his back and right leg and right elbow and of double vision. He also complains of headaches four or five times a week for which he takes Panadol.

Sometimes when they are out walking or even about the house, his knee gives way. He always, to her, appears to walk with a slight limp. She said that he does not seem to be able to sit still for more than about 15 minutes without needing to move about. He has experimented in growing his hair longer to hide the scar but she said that this was not altogether effective and, in any event, he has always had very short hair and did not like wearing it long. She seemed to agree with my suggestion that the Plaintiff’s hair during the course of the trial had grown a little longer and that this had made the scar less noticeable.

Before the accident, she said he had a lot of friends but probably only has one now, Majad Haddad. His memory is bad, according to Sharmaine, in that he loses money, forgets where he has put things, forgets recent conversations with her etc. This sort of things happens on a daily basis.

She said that he did not read books before the accident and does not do so now. Sometimes, he reads a newspaper or magazine. She looks after the family finances because of his habit of losing money and failing to pay bills on time.

As to their sexual relationship and the state of their marriage generally, there was this exchange between Sharmaine and Mr Semmler: “Q. Forgive me for asking about this, but it is important. What has your sexual relationship with your husband been like since his accident? Well, indeed since you got married, because you didn't have any sexual relationship with him before that; is that right? A. Yeah, that's right. Q. And what's it been like? A. Not very good. Q. Why not? A. Well, I guess as newlyweds you'd expect that that kind of thing happens a lot, but not in my situation. Q. What seemed to be the problem? A. Well, sometimes it was hard for him to maintain an erection. Q. For Sam? A. Yeah. I don't know. Well, that was pretty much the problem. And I would try talking to him, like to see if there's things on his mind or, like, why is that happening and it's pretty much been like that since we got married. Q. So is it fair to say, without going into the details, that sexual relations between the two of you happen less frequently than you would like? A. Yeah. Q. How would you describe how easy it is to live with Sam these days? A. Well, 99 per cent of the time it's unbearable. “

Sharmaine still assists her husband in showering and bathing. She washes his back and legs when, as usually is the case, he takes a shower. Sometimes he has a bath to relieve pain and she has to help him into and out of it.

Giving examples of the Plaintiff’s anger and irritability, she said that there had been an outburst of anger that morning because there was no breakfast cereal left. If their son, Zayne, cries he will say angrily, “can you shut him up. What the hell is wrong with him”. Recently, she said when they were at his parent’s house he started to argue with her in a loud voice in front of all his family, to her great embarrassment. Although previously he seemed to enjoy the company of children, now they appear to irritate him. He calls on them to “shut up” or “stop running around”.

She does not think his consultations with Mr Herrera have helped alleviate the problems in the marriage. When she spoke to him about his anger outbursts, he told her, “I can’t help it”.

When Mr Semmler asked her whether more children were planned, she said that she would not like to have more children, “because I don't even know where Sam and I, like our relationship is heading.”

Asked to expand on that she said: “Well, the way he treats me, I feel like I am under so much pressure because I do everything around the house, I look after our son, I am just not coping.”

Nasrim, born on 6 January 1977, the second eldest of the Plaintiff and his 5 siblings and employed as a client service officer with the Department of Housing, said that she was married and left home in December 2002. However, she continued to visit the family home nearly every day.

Asked whether she saw the Plaintiff perform chores around the house, she replied, “I used to see him sometimes do the lawn, take out the garbage, do little chores around the house, like helping Mum”. She said he sometimes helped out with the washing and swept the floor, “little things, you know, used to help Mum out”. She said that he used to provide more assistance about the house than his siblings.

She said that he had a happy bubbly personality and was a man who appeared to enjoy life and who took pride in keeping himself fit. His dream was to have his own building company.

As to her brother after the accident, Nasrim said that she noticed a big change in his personality manifested by apparent constant depression and by him saying that he did not want to continue living. She said that he also became verbally and physically abusive. She said that this trait has not diminished with the passage of time.

Rami was born on 25 October 1985 and still, as a single man lives with his parents. He works and intends to keep working in the building industry. He said that before the Plaintiff’s accident both of his sisters had left home, leaving their parents and four sons. As I understand his evidence, all the sons made some contribution to the jobs which needed to be done but the Plaintiff made significantly more than the others, particularly in assisting his mother in what Rami described as “girly stuff”. He thought he contributed to the extent of about 10 hours a week.

Rami visited the Plaintiff in hospital. Initially he said he was unable to speak but when he could communicate, he said that the pain was unbearable and “I want to kill myself, just let me die”.

In similar terms to his siblings, Rami described his brother before the accident as “very fit – loved going to the gym, didn’t smoke, didn’t drink”. According to Rami, the Plaintiff loved his work to the extent of keeping his tools in the wardrobe with his clothes and, “he had big plans - opening up his own business as well”. As to his personality, he said: “Just good to hang out with, always had a laugh. Can make the grumpiest times like very amusing and, you know, good to be around him when you are depressed. “ According to Rami, his brother had many friends.

In the six months following the Plaintiff’s discharge from hospital, Rami said that he largely accepted the responsibility of driving his brother to medical appointments. There was a lot of waiting involved and he estimated that he spent about 15 hours a week providing this service. After that the Plaintiff started to be able to drive himself and Rami obtained employment. Rami said that the Plaintiff continues to complain about pain: “Aches throughout his whole body, headaches, head spins and stuff. “ As to his temperament, Rami described him “just always down and grumpy”.

Rami still sees the Plaintiff frequently. He said that he and his younger brother look after the Plaintiff’s garden, lawn mowing and heavy household jobs like moving furniture.

Although, according to Rami, the Plaintiff has not mentioned suicidal thoughts since being discharged from hospital, he makes statements such as “look at me now”, referring to his scars and physical disabilities. There was this exchange with Mr Semmler: “A. His personality has gone ever since. Q. What do you mean by that? A. Can't have a normal conversation with him like you used to before, where he would turn it into a joke. Now you have got to be sensitive to what you say to him because he can easily get in a mood and just sit in his own little couch and not want to speak to no-one. Q. How often does that happen? A. Regularly. Q. Can you just please tell us what happened on the last occasion? A. The last occasion was two nights ago. We were having a laugh about one of his mates or just having a normal conversation, just having a laugh about -- Q. You and Sam. A. Me, Sam and my brother Mick, and we were just sitting down having a normal laugh and then he just all of a sudden grabbed his head and swore out loud "fuck", you know like. Q. He used the "F" word? A. Yes, he used the "F" word. Q. How did he grab his head? A. He grabbed it like that (illustrating). Q. One hand on each side of the skull? A. Yes, both, and he was like "shit", and we were like "what is wrong?" He just got a sharp - I don't know exactly what the pain was, but he just said he got something sharp through his head, so we were like "Are you okay? Are you okay?" Instantly he just went down again and just didn't want to talk to no-one, just goes off either into another room where no-one is, just wants to be left alone.”

Rami said that he had accompanied the Plaintiff on a visit to his friend at the car yard in Campbelltown (sic Minto): “Q. Would you describe what he does as in the nature of work, like is he there talking to the customers? A. No, just there either sitting down in the office, just speaking to his best mate. They are very close and when there is no-one at home, he is always with him, if Sharmaine is out shopping he will just go up there instead of being alone. “

Mr Jones, in cross-examination, challenged Rami’s estimate that the Plaintiff spent about 10 hours per week in providing domestic help to his parents before the accident and upon his evidence that before the accident he did not drink alcohol. He said in relation to the latter: “To my awareness, I have never seen him drink or smoke. Maybe behind closed doors, I don't know what happens, but to my awareness, what I have seen, never seen him drink or smoke. “

Rami told Mr Jones that as at November 2007, either he or his younger brother mowed the Plaintiff's lawn every 2 weeks.

Michael, aged 29 and a formwork carpenter by occupation, said that he earns $1,500 per week net of tax but including overtime from the company for whom he has worked for 3 years. He had previously been apprenticed and completed a 4-year TAFE course in construction carpentry.

Michael lived in the family home until he was 20 when he moved away upon marriage. The marriage, however, was short lived and he returned to the family home about 2 years later. There was also another period of about 18 months when he was working in Canberra. Apart from these periods he lived with the Plaintiff until the Plaintiff himself was married.

According to Michael, the Plaintiff was the most helpful about the house of all the siblings, “He was like Mummy’s boy. He was the one doing everything that was meant to be cleaned and stuff”.

He said that before the accident the Plaintiff had a friendly, happy personality, “always wants to do things”. He said that he enjoyed sport and going to the gymnasium and was the most active of all the family.

In hospital after the accident, the Plaintiff, according to Michael, was particularly concerned about the damage done to his appearance. Initially, when the Plaintiff came out of hospital, as I understand Michael’s evidence, he was not living at home. However, he continues to see him about twice a week. There was this exchange with Mr Semmler regarding his personalty: “Q. How would you compare him these days based on your observations on the occasions when you see him to what he was like before the accident? A. Like anything can get to him. Q. What do you mean by that? A. If someone says something he can straight away jump and, start yelling and going off and taking off. Q. What do you mean by that? A. If something happens around him and he doesn't like it he'll get angry and just take off go for a walk, start yelling. Q. What kind of things are you talking about there? A. Just normal things like between brothers and stuff. Q. Such as? A. Like just me and other brothers was arguing around him he'll get angry and take off, start screaming, tell us to be quiet. Q. Was he like that before the accident? A. He never used to get involved with anything. Q. Never used to? A. He used to calm people down and, you know, like help the situation what's going on. Q. Are there any other respects in which he's different? A. Well, like he can get triggered straight away over little things that to us is normal. To him he thinks it's very bad. “

Mr Majad Haddad, aged 23, owns a second-hand car business at Minto, called “Extreme Auto Traders”. He basically deals in cars worth less that $5,000. He first met the Plaintiff when they were at school together. He said the Plaintiff’s ambition was to own a carpentry business. He also said that he and the Plaintiff frequently socialised together before the accident. They lived about 2 kilometres apart.

He learned of the Plaintiff’s accident and visited him in hospital “he was pretty battered up”. Since the accident, he said that the Plaintiff has visited his car yard but has not done any work there. Sometimes he arrives with mutual friends. They sit in his office, “it is like a house. TV and couches” and “chat”, when he is not actually attending to a customer. The visits occur about once a week and last from about ten minutes to one hour.

He said that he would be not be willing to employ the Plaintiff, “he is not capable of doing the work that I do”. Pressed as to what he meant by that, he gave this evidence: “A. Hasn't got the physical strength to do what I do, to wash the cars, booster them up, mechanically fix them. He hasn't got the patience for customers. Q. What do mean by that? A. I mean, I sell cheaper kind of cars, you know, they need a bit of patience with the customer. Q. What is the problem with the patience? A. Patience - you need it - if the customer for example offers you $1,000 for a car you are trying to sell for two and a half, you have got to be patient to try and bring them up. Q. What, you can't scream at them? A. You can't scream at them, kick them out of the yard, you know. Q. You tell me what you have got to do to sell a car to somebody? A. Most of my business is repeat, word of mouth, that is my best advertising. You have got to be nice and gentle to people. Q. Can he do that? A. Sometimes yes, sometimes no. Q. What do you mean by 'sometimes no'? A. He gets in his little moods, you know, can't handle people, can't handle too much talk. “

Mr Haddad said the Plaintiff seems to have lost interest in things like football and visiting friends, which he enjoyed previously. He said that he takes him out with him sometimes because he appears “depressed” and “stressed”. He said that the Plaintiff has confided in him about unhappiness in his marriage and complains about constant pain. He has also told Mr Haddad that he misses his work as a carpenter.

Mr Haddad agreed with Mr Jones that on occasions he has seen the Plaintiff speaking to one of his potential customers and that he has not witnessed any argumentative behaviour exhibited to a customer. PLAINTIFF’S MEDICAL EVIDENCE:

Three large volumes of medical and hospital reports comprising hundreds of pages were tendered in the Plaintiff’s case and a number of the authors gave oral evidence. There was, if I might say so, a good deal of what I regard as unnecessary duplication of evidence in the same discipline. For that reason I will not make reference to all the material. Indeed, in respect of physical disabilities there is not much issue between the parties, as I understand it.

St George Hospital, upon admission of the Plaintiff following the accident, noted the presenting problem as “multiple fractures”. The records show he was admitted on 18 June 2004 and discharged on 20 July the same year. Surgery was carried out to his right elbow, left wrist, right knee and face and jaw. There were lacerations, abrasions, bruising and swelling over much of his body. However, on arrival at the hospital he was recorded as having a Glasgow Coma Scale of 15/15.

He was hospitalised, this time at Sydney Southwest Private Hospital, on 6 August 2004 for “removal arch bars maxilla and mandible”. He was discharged on 9 August and while in hospital was under the care of Dr Michael Klassen:

On 23 September 2004, Dr Hugh Jones, his orthopaedic surgeon, reported: “I reviewed Sam Chamma today following his trauma. Sam has a very stiff right elbow with the range of motion from 90-120 degrees. Supination is 90 degrees and pronation of 40 degrees. He has had subjective sensory deficit in the ulnar nerve distribution and some very mild hypothenar wasting, but interosseous power appears satisfactory. Light touch and pinprick are intact in the ulnar nerve distribution. Examination of his left wrist also reveals significant stiffness with dorsiflexion to zero or 10 degrees past neutral and palmar flexion to 35 degrees. In regards to his right knee he has a significant ongoing quads lag and is unable to straight leg raise. Passive range of motion is from 0-85 or 90 degrees. I have arranged for him to have follow up x-rays which are satisfactory. He needs an aggressive therapy programme including a hydrotherapy or pool programme in addition and he would benefit from some serial night time extension splinting of his right elbow. I will see him in one month’s time.”

Thereafter, commencing 18 October 2004, the Plaintiff had physiotherapy every day or so until the end of May 2005.

In September 2004, Dr Paul Sibraa, periodontist, replaced with an implant tooth1.1, which had required extraction as a result of the accident. Dr Sibraa said that the implant will probably need to be replaced in 10 to 15 years.

Dr James Vote, orthopaedic surgeon, reviewed the Plaintiff for his lawyers from an orthopaedic perspective on 15 November 2004. He noted: “His orthopaedic injuries consisted of a severe comminuted fracture of the right elbow joint which was treated by debridement and open reduction and internal fixation using recon plates and multiple screws. He also sustained a fracture of his right patellar which was treated by tension band wiring. Since that time he has been convalescing steadily. He is still receiving treatment in terms of physiotherapy for his elbow, knee and wrist. I understand he is still under treatment by Dr Jeff Lvoff for his facial injury. His treating orthopaedic surgeon is Dr Hugh Jones.”

Dr Vote went on to report: “Physical examination reveals a man who walks quietly with no obvious limp. He still appears slightly swollen about the face and had some teeth missing. In relation to his orthopaedic injuries, his right elbow is virtually ankylosed at a position of 90 degrees. There are multiple incisions of a keloid nature posteriorly over the distal humerus and olecranon. He appears to have a full range of supination pronation, which will be really useful but virtually has no range of movement in the planes of flexion and extension. There are also marked signs of sensory and motor ulna deficiency in his right hand consequent to his injury. In relation to his right knee he has a well-healed anterior incision. He still has an effusion present. He has no active extension of the joint and has very poor quads power at this point in time. He has a normal range of flexion when it is done passively. The joint seemed stable in terms of cruciate and collateral ligament mechanics. In relation to his left wrist he has a well-healed dorsal scar consistent with distal radial surgery. He has a quite limited range of movement with flexion and extension of the wrist being 20% of normal. Ulna and radial deviation of the wrist are also 20%. His range of supination pronation is 75% of normal. There are no abnormal neurological findings in his left hand. He is able to carry out a full wrap up and make a fist in terms of his IP and MCP joints. I reviewed x-rays taken in September 2004. Those of his elbow show a grossly damaged joint with some anterior bone formation and multiple screws, together with a distal humeral recon plate and a proximal ulna recon plate. There has been gross disorganisation of the joint surface. X-rays of his knee show a figure 8 tension band wiring technique being used for a fractured patellar which is in quite good position. X-rays of his left wrist show a distal radial fracture which involves the joint surface, with a plate in place.”

On 13 January 2005, Dr Jones provided a report to the Plaintiff’s solicitors which contained the following summary: “His orthopaedic injuries are as follows: 1. Comminuted intra-articular fracture right distal humerus and olecranon complicated by recovering ulnar nerve lesion and post-traumatic stiffness. 2. Comminuted intra-articular fracture left distal radius complicated by post-traumatic stiffness. 3. Comminuted open right patellar fracture complicated by post-traumatic stiffness. Out of the three issues currently the right elbow is the most disabling involving the dominant arm and would benefit most from further surgical intervention in the way of extensive release. The prognosis is very guarded in the long term given that he has sustained significant intra-articular injuries to his right elbow and left wrist. He may develop post-traumatic degenerative change and pain in these joints and may require further treatment surgically in years to come. At the moment his condition is not stable and permanent impairment is not assessable. His treatment and intervention is ongoing. I note that Mr Chamma has been unable to return to work in any capacity during this period and is unlikely to be fit for his pre-injury duties for a minimum of six months further. It is quite possible that Mr Chamma will be unable to return to his pre-injury occupation and as such vocational retraining at this early stage may be appropriate.”

On 7 September 2005, he was admitted to Kareena Private Hospital under Dr Jones for “removal of hardware and release right elbow”. He was discharged the following day.

Records of Kareena Private Hospital show that he was again admitted on 19 October 2005 and discharged on 20 October. He was admitted under Dr Jones for “removal of hardware in right patella and left wrist”.

The Plaintiff was referred to Dr Raymond Tint Way, a consultant psychiatrist, in March 2007. He wrote a report on 16 July 2007, by which time the Plaintiff had seen him on 5 occasions. In relation to his mental state examination, Dr Way said: “Mr Chamma’s mental state examination revealed a well-structured young man of stocky build who presented casually dressed, with a scar across the temporal area. He was pleasant and co-operative but he appeared somewhat jumpy. He was keen to talk about his problems and his plight since the accident. He made good eye contact and his speech was spontaneous. His mood was changeable, from depressed mood to irritability. There was no formal thought disorder or overt psychosis. He described frustration, depressed mood and difficulty in controlling his temper. He was preoccupied with obsessional worries concerning the series of losses he had suffered as a result of the accident. He expressed feelings of hopelessness and worthlessness. He felt that life was not worth living because of his poor quality of life. There were no obvious delusions or active suicidal thoughts. Cognitively, he was well oriented to time, place and person. His concentration and attention were poor. He showed good insight and awareness of his problem. On bedside frontal lobe testing, he tended to perseverate and had difficulty in performing alternate sequential tasks, suggesting some dysfunction of the frontal lobe (a formal neuro-psychometric testing might be helpful to assess his frontal lobe function more comprehensively).”

His answers to questions posed by the Plaintiff’s solicitors included: “His psychological injuries include organic mood disorder with mood instability and recurrent bouts of depression as well as symptoms of PTSD, such as recurrent nightmares; flashback memories of the traumatic experiences associated with the accident, increased startle response, and avoidance of any activity that might remind him of the accident. The accident has adversely affected his self-esteem; he had previously taken pride in his physique and his ability to work long hours, whereas since the accident he has felt inadequate and incapable of measuring up to his former level of productivity. He became frustrated at his diminished sexual potency and sexual enjoyment, causing him to perceive an additional strain on his marital relationship. In my observations of him in my therapy sessions, he appeared to have a low mood and to be demoralised and preoccupied with obsessional worries about his series of losses and how they might impact on his future. He has become significantly disabled, with the loss of functioning in several domains, such as the activities of daily living, as well as cognitive functioning, including concentration and memory. It is likely that his disability will run a chronic course. The temporal relationship between his accident and his medical condition, as outlined above, suggests that his psychological injuries and consequent disabilities have arisen from the head injury.” ………………………… With regards to his prognosis, Mr Chamma’s head injury was serious enough to cause cognitive impairment, including symptoms of frontal lobe dysfunction such as impulsivity and disorganisation, as well as poor memory and concentration and mood instability, resulting in a poor prognosis. He is unlikely to be able to return to work at pre-injury duties or even alternative light duties, with the result that his quality of life is poor. He can only perform even light duties for a very limited time. Regarding his present condition, he has remained frustrated and demoralised, and continues to show poor affect regulation, with frequent anger outbursts, causing problems in interpersonal relationships, particularly in his marriage. Mr Chamma remains unfit for his pre-injury duties. His ability to do even light duties or part-time work is severely limited by his chronic pain and restricted mobility, decreased concentration and cognitive impairment. Although Mr Chamma is keen to return to work, his ability to do so is severely limited for reasons that I have described and therefore his quality of life remains poor.”

Dr Way gave oral evidence in which he said that he has a particular interest in mood disorders. He said that he spent a lot of time with the Plaintiff, each session being scheduled for 1 hour, but the first two ran into one and a half to two hours. He said the Plaintiff has been consistent in his presentation “he strikes me as a genuine fellow”.

Asked by Mr Semmler why he performed a “bedside frontal lobe testing”, Dr Way said that it was because he suspected some organic brain damage. As a consequence of this testing “which is a very crude one”, he referred him to Professor Sitharthan for formal psychometric testing. Dr Way said the result of the test administered by Professor Sitharthan confirmed his view of some frontal lobe dysfunction caused by trauma. He continued: “Frontal lobe dysfunctioning is important in this particular case because of its impulsivity, difficulty to control his impulses, mood swings because of episodic anger outbursts, because of an inability to make, do abstract thinking in a proper sense, because of difficulty to think clearly, all those things often are determined by so-called prefrontal functioning and I take a special interest in that because this man had a big blow on the front part of his head.” He said that there can be injury to the frontal area of the brain without being identifiable on any scanning.

Later in his evidence, there was this exchange with Mr Semmler: “Q. Now, is it fair to say that in addition to your opinion that he has suffered an injury to the frontal lobe, to the brain itself, do you also consider he has suffered psychiatric consequences flowing from his accident? A. Very much so. As I said earlier on, he had multiple problems. In fact head injury is one, of course serious one, he had other what we call sequelae of head injury, psychosocial, so very significant psychosocial sequelae of head injury which I include series of losses. He has lost lobe functioning, loss of employment whereas he worked long hours previously and took pride in his physical prowess, he used to take pride, he told me that he was able to work hard and bring in money for his family. Now he found himself not being able to do that. He doesn't have the will to do it. He lost zeal in doing that. He lost his motivation. He becomes apathetic and, because of that, he became very frustrated. Q. Could I just stop you there, before we move off from apathy, isn't it possible that you misinterpreted apathy as a deliberate decision on his part to do nothing and wait until he gets a big court payout? A. In my capacity as a psychotherapist, one part of my task is to review his medication because I have a special interest in mood disorder. I practice mood management assessment of mood disorder. Another part of my practise is purely as a trained psychotherapist so I took him on, this poor man, to provide him with supportive psychotherapy. I have seen him as I said earlier on. I spent a lot of time with him, let him ventilate his feeling, the anger, frustration. I let his feeling of low self esteem and the anger and frustration validate it, so I let him ventilate his anger and frustration. I have seen him over the last 6 months, several occasions, as I said earlier, he struck me as a genuine man with a lot of disability and suffering. So I don't think that this man tried deliberately to mislead me in any way. ………………………………………. Q. Is apathy an unusual consequence of the kind of condition you have diagnosed in this man? A. Not unusual at all, he has a serious head injury, I am dealing with somebody with significant sequelae psychosocial sequelae head injury which includes apathy on top of the list. Q. Can I come back to the psychiatric as opposed to the organic or brain injury consequences of this accident that he had, is it fair to say you diagnosed a number of conditions recognised by the as diagnosable conditions in the DSM IV including post traumatic stress disorder and chronic depression and organic mood disorder, is that right? A. That's right. Q. Could I just deal with them in turn, is it fair to say that you think that the two and a half years of psychotherapy he has received from Mr Herrera has assisted with the post traumatic stress disorder problem he has? A. That's correct. Q. Does he still manifest to this day a condition of post traumatic stress disorder? A. Very much so your Honour, a lot of residual symptoms of post traumatic stress disorder, mainly probably flash back memories, he also reported nightmares, he's often irritable and often reported increased startle response. For instance the door bangs. He gets quite startled and in my mental state examination cross-sectionally, as when I observe him, as I mentioned in my mental state examination here, he appeared as a rather anxious man who is a bit jittery and hyper alert which is not uncommon within people with post traumatic stress disorder. That is my objective assessment. Q. Can post traumatic stress disorder be disabling in terms of occupational and social functioning? A. Very much so because of their difficulty, for instance, like he still had some fear of travelling even though a lot of those problems has been resolved, assisted by his good psychologist who provided him with desensitisation, he still also manifests like nightmares, for instance, sleep disturbances which would make him fatigued in the morning so that has an ongoing impact on his ability to function well. Q. Thank you. Now notwithstanding the improvement in that particular condition of post traumatic stress disorder, given that he is still manifesting symptoms now well over 3 years since his traumatic accident, what do you consider the prognosis for that particular condition to be? A. Your Honour, I have to say that his prognosis is poor particularly, even in this case of PTSD, because when PTSD has been complicated by other conditions such as depression there has been ample evidence in the literature that PTSD tends to chronicus. Q. Could you see him having it for life? A. I can see it as an ongoing problem for a long time.

After saying that depression and mood disorder while separate conditions interact with each other, Dr Way gave the following evidence: “A. Two separate classification, just because he has a head injury and say something like some frontal lobe dysfunction or apathy doesn't necessarily mean he can't have adjustment disorder with depressed mood because he deal with a lot of stresses. For instance he has to be dealing with a lot of losses. That would put anyone in issue and would get very depressed so he can get from time to time very depressed. One thing I am worried, if I can continue, is his relationship is on the rocks. It is very shaky. He is very fearful his wife might be leaving because of all these problems. Should this sort of thing happen it poses a major stressor for him. I very worried that my client will get very severely depressed because he is already telling me that life is not worth living. Q. He said that? A. He told me already because, as I said earlier on, he lost his physical ease, strength, he lost ability to work, so a series of losses and he lost his employment. In fact he was telling me before the accident he was planning to complete his whatever you call it, internship or the traineeship for 4 years to be qualified as a carpenter and one of his aims has been to set up a private business for his family. That dream has gone now. So he cannot do that. So his earning capacity has dropped significantly. So, all those losses is leading him to be what we call perpetuates his depression. Q. Can the depression, this chronic depression you have diagnosed, can that have an effect on a person sexually? A. Yes he already complained to me about the sexual dysfunction. He, before this accident happened, he was planning to get married. He was going to get engaged and just before he got married he got involved in the accident. And then he was able to marry this lady only last year. But that time he had already suffered from severe depression, serious head injury, post traumatic stress problems and things like that and he has been on medication, pain killers. All those factors contributed to his decreased libido which can also manifest on his own right in a severely depressed person and he had erectile dysfunction, he cannot maintain his erection.”

According to Dr Way, the Plaintiff's psychiatric problems are likely to be life long and will need continuing monitoring. He said that, in his opinion, it does not matter whether or not the problems are organically based. In his view, the monitoring should involve a consultation with a psychiatrist every 3 or 4 weeks and a psychologist every fortnight, “for the purpose of a course of cognitive behaviour therapy or for him to be able to learn certain things, like social skills, relaxation therapy, desensitisation, those sorts of things, and a psychiatrist, for continuing treatment of mood problems and also ongoing investigation”.

He made the point that because the Plaintiff takes Epilim, his liver function needs to be overseen by a psychiatrist and regular blood tests will be necessary.

Mr Jones cross-examined Dr Way as to the benefit of the treatment being provided: “Q. Doctor, if in the past he hasn't had the benefit of your treatment, he has seen the psychologist and there has been a partial resolution with treatment, would you not expect an improvement or a continuing resolution now that you're involved as well as a psychologist? A. It's very difficult to prognosticate the cause of such an illness, how much is going to get resolved. It all very much depends on the person's coping skill and other life stresses. Q. But doctor, if looking in the rear view mirror you can see there has been a partial resolution and then on top of the prior treatment, being that of the psychologist, you’re involved, why wouldn't you expect there to be an improvement in that resolution? A. I think, your Honour, because we are dealing with a very complex case regarding major depression and a person with a chronic pain, a person with coping skill problems, a person with ongoing marital conflict, a person having psycho stresses, loss of employment, loss of capacity all continue to complicate his problems. So it is two interacting; the anxiety problem of PTSD and depression compounding each other. One can only do a certain amount of work with him, so my involvement has been monitoring of his mood state, stabilizing of his mood and supportive psychotherapy and the psychologist has been treating him for PTSD symptoms. Medication can also address certain symptoms of the PTSD so that it will alleviate some anxiety and stress. We are dealing with a very complex case. Q. You keep saying that, doctor, I am just putting this simple proposition, that if despite your treatment there's been a partial resolution, surely with the added benefit of your treatment there will be a continuing resolution? A. There is a possibility, but I find it very hard to prognosticate such a situation, such a complex situation. Q. Don't you think your treatment is going to further benefit him? A. Again, further benefit him, but I am addressing several issues, depression, suicideality, marital problems and nightmares. For instance, PTSD is manifested in this case. His nightmares, these continue despite my treatment, despite the hypnotic medication that he is taking, Stilnox, which helps him sleep. Q. If you think your treatment isn't progressing this man, have you thought about perhaps stopping treatment? A. No, if anything I would think about getting more help, more - like I was going to recommend a course of cognitive behaviour therapy to deal with his PTSD symptoms, and that can be done only when his mood has stabilised. Only when one can concentrate better one can absorb things, one can think clearly, which is not happening to this man at this stage.”

Mr Jones pressed Dr Way as to the period for which, in his opinion, the Plaintiff would need ongoing psychiatric assistance: “Q. Well, I am simply asking you doctor, are you really saying to this Court that it is going to take the rest of his life to stabilise his mood? A. No. To stabilise his mood is going to take a long time. I cannot say how long it will be. Q. Do you ever actually cure any of your patients? A. Yes, some people with major depression, just only purely - major depressive illness is a curable disorder. You have probably read from the media it is a curable disorder. That's a good message. Q. Do you have any of your patients whom you don't have to see ad infinitum? A. Yes. Q. You do? A. I do. Q. What percentage is that? A. You mean after having treatment I do not see them again? Q. Yes. A. Okay. I can't put a figure or anything like that, but from my clinical experience, a small number of patients.

Later Dr Way agreed that he was aware that a CAT scan taken when the Plaintiff was in hospital revealed no abnormality.

Mr Jones also questioned Dr Way about the presentation of the Plaintiff in the witness box during this trial: “Q. Assume, will you, that over those three days he was able to hear the question, think about it and respond appropriately. It suggests that his concentration over those days was pretty good, doesn't it? A. Not completely true. Because stress can manifest in different ways but to bring it down to the concentration problems, attention problems unless we did the specific tests it is hard to pick it up. When you are talking about the subtle derangement or subtle impairment. So, what - Q. Isn't -- A. Can I just complete my answer? Just because he can answer the question, listen to it, respond to it doesn't necessarily mean that his attention and concentration are significantly, are quite intact. Because if it is the case we are not going to need any subtle testing like psychometric testing or neuropsychological testing, like highly sophisticated testing. We need highly sophisticated testing to pick up certain deficiency in the cognitive function. “

Mr Jones suggested that giving evidence in court would be far more demanding than working as a cashier and received the reply: “Can I please remind the court that he doesn't, his problem is not only solely a concentration problem. His problem is multiple. Multiple problems including depression, mood swing, anger outbursts along with concentration problems. So this condition can fluctuate. Sometimes he might be good, he might be angry another time. A couple of days he might be able to do that. So that is how it varies. “

Associate Professor Sitharthan, the clinical psychologist who administered a psychometric test to the Plaintiff at the request of Dr Way, gave oral evidence. His report to Dr Way became exhibit AF. Early in the report Professor Sitharthan included these paragraphs: “Mr Chamma was prompt to the assessment session. He had no difficulty in understanding my questions or test instructions. He was pleasant and very co-operative. He described his accident and its impact on his life, the details which you are familiar with so I will not focus on them in my report. He mentioned his life has changed since the incident, and how easily he becomes frustrated and angry. He reported that his mood could change dramatically and he sometimes takes it “out on his wife”, which he regrets later. He said that he has “lost friends” and does not feel like engaging in any of his favourite pastimes. He said that he smokes about 5 to 10 cigarettes a day, but denied any excessive alcohol consumption. Mr Chamma attempted all the test items, but became easily frustrated when the items became progressively more difficult. This behaviour pattern is very common among individuals who suffered head injury. I am providing below brief information about the tests administered and Mr Chamma’s performance on these tests.”

After outlining the Plaintiff’s performance in each of the 5 standardised tests administered (the tests themselves being annexed to the report) the Professor concluded: “Mr Chamma clearly exhibits poverty in learning new information, has poor planning and problem solving skills, and in my opinion this condition is not reversible. His poor performance on a range of tests administered and described above is common among individuals who have experienced head injury. The poor performance is also exacerbated with the frustration that he is not coping well with the demands of the tests.”

Professor Sitharthan gave oral evidence expanding on the nature of the tests administered and the Plaintiff’s performance of them. He was vigorously cross-examined. Nonetheless, he maintained the thrust of his evidence that the tests were standard, that they were administered properly; that the Plaintiff seemed to be trying his best; and that he performed very poorly. I see no reason to doubt any of those conclusions except the one that the Plaintiff tried his best. It is difficult to accept that a man who presented as well and as intelligently as this Plaintiff did in the witness box, could, if he were trying, perform so poorly in the quite simple tests that were administered. The professor conceded to Mr O’Dowd that with the benefit of hindsight he would have administered an “effort” or forensic based test with the objective of determining whether there was evidence of lack of effort by the Plaintiff in attempting the tests. For whatever reason, I would regard the test as of doubtful validity, although, on the other hand it was conceded that, some time previously, psychometric testing was carried out by Dr Roldan at the behest of Soliman. The results of Dr Roldan’s testing were not tendered and Mr Jones maintained privilege in respect of them. I draw the inference that the results would not have assisted Soliman’s case.

Dr Patricia Jungfer, consultant psychiatrist, was qualified as an expert by the Plaintiff’s solicitors in June 2007. She provided a detailed report dated 19 June 2007 and gave oral evidence.

Some errors in Dr Jungfer’s assumptions are noted viz that he fell “three to four storeys” and that he, in 2007, was 34 years of age. She also recorded, perhaps more significantly, that he was rendered unconscious by the fall, a matter which seems to me very dubious. However, she accurately noted that his Glasgow Coma Score rose rapidly to 15. The assumptions contained in her “Executive Summary” continued: “Subsequent to the accident he is left with multiple residual impairments, a frozen right elbow and difficulties with pain and instability in his right leg. He also is known to have a lower back injury. Due to his facial fractures he is left with a number of residual sensory and pain complaints and has difficulties with regards to eating. There has also been alteration in his physical appearance with facial asymmetry. Mr Chamma’s problems from a psychiatric perspective as a consequence of the accident are that of a post traumatic stress disorder and a major depression. There is also suggestion that he may have sustained a traumatic brain injury at that time of the injury with abnormalities of cognition in particular difficulties with concentration, new learning and short term memory. His wife has noted changes in personality and Mr Chamma reports difficulties with irritability and reduced emotional control. Mr Chamma meets the diagnostic criteria of that of DSM IV for a post-traumatic stress disorder. The fact that he probably sustained a head injury does not exclude the diagnosis of a post-traumatic stress disorder as he has had no period of measured retrograde amnesia. Mr Chamma has had extensive clinical psychological and psychiatric intervention but continues to be symptomatic. This would suggest that he has a poor prognostic disorder. Mr Chamma’s past and developmental history is not contributing to his current presentation. Drug and alcohol factors are not implicated in his presentation. Mr Chamma’s current impairments and deficits that is his post-traumatic stress disorder, his major depression and cognitive disorder secondary to an acquired brain injury are solely related to the injuries he sustained on 18 June 2004. Mr Chamma will be permanently disabled as a consequence of these impairments. In my opinion, when considering the multiple disabilities from a cognitive, psychiatric and physical perspective would be considered unemployable on the open market. Mr Chamma’s impairments will have a residual impact on his socialisation and interpersonal relationships. There is limited prospect for further recovery. Due to the chronic nature of his symptom complaints Mr Chamma will require ongoing psychiatric and clinical psychological care.”

Later in her report, Dr Jungfer recorded: “He has significantly difficulties with regards to sleep in particular severe problems with initiation of sleep. He takes the medication Zolpidem (Stilnox) to assist him with regards to sleep and reports that he cannot sleep without the medication. Even with the medication there is a delayed onset of sleep, there is a fragmented quality of sleep related to pain and nightmares. He has a significantly reduced amount of total sleep and approximately only has four to six hours of sleep, this is with the sedative hypnotic. He feels fatigued, tired and rarely wakes feeling refreshed. He has a low self-esteem, he sees life as being a failure and he struggles to see how he can continue and what he is able to do. He is desperate to find some form of activity or task that gives him meaning. He reports that prior to the accident he loved getting up everyday for work, he really enjoyed his work and he struggles to see a way of being able to identify what he can now do with his problems. ……………………………………… There have been a number of changes in his personality and cognition since the time of the injury in particular he has difficulties with regards to his memory, problems with respect to recalling where he has put things. He is no longer able to concentrate and attend on, for example, a television show, reading a newspaper, and tends to be restless in these situations. There are issues with regards to his motivation and initiation of tasks but part of the motivational problem appears to be related to a lack of activity, the things that he cannot engage in. He has difficulties in completing tasks because of his distractibility. There have been substantial changes in his personality, he tends to be short tempered, irritable, easily loses his temper and he has episodes of verbal aggression, particularly in a vehicle although he has not confronted any individual because he feels he would not be able to protect himself. He is impatient and at time becomes very distressed and upset regarding what he is and is not doing or what he cannot do”. His speech was fluent and I noted that he was an individual who provided short and precise answers to questions. He tended not to give large and detailed descriptions. There was no abnormality regarding his capacity to speak English. He tended to be a somewhat inert and passive participant in the assessment, he reported his mood as being depressed, there was some reactivity of affect and he could demonstrate appropriate responses to humour in the assessment. There was no formal thought disorder; he described the substantial psychiatric symptoms associated with those of post- traumatic stress disorder. There was no evidence of cognitive abnormalities in the clinical assessment, although this is insensitive often in detecting the more subtle abnormalities associated with brain injury particularly that of the executive impairments.”

Dr Jungfer diagnosed post traumatic stress disorder and major depressive illness. She also opined that there are features “consistent with that of a cognitive disorder secondary to a traumatic brain injury” and that he should continue psychiatric treatment.

Having regard to the fact that his symptoms have been present for more than 12 months, she regarded his prognosis as poor. She thought that having regard to the combination of his physical and metal impairments his options for employment on the open market are very limited.

In her oral evidence, Dr Jungfer said that the Plaintiff’s fall, particularly while conscious and after unsuccessfully trying to grab the ledge of the balcony, would make it an event outside his normal realm and with the potential to cause his death have constituted an emotional stressor sufficient to cause PTSD. This disorder itself she said can prevent sufferers working and assessed it in the Plaintiff’s case as moderately severe.

Dr Jungfer said that from the notes with which she had been provided the Plaintiff had been appropriately treated. Confirming her report on this subject, she said that the probability of recovery is now “extremely remote”.

As to the impact of depression upon his ability to work she said: “A. It would affect his motivation, it would affect his interaction. Patients who have a serious depression are often very withdrawn. They don't make as much effort because they can't make as much effort, you know the kind of, their ability to experience a reward is directly affected by the mood disorder. So, we maintain behaviour because we get rewards. So, they often are not as good employees, they are not as fast, they are not as interested, they are not as engaging. So, that would particularly have an impact in terms of trying to get him any kind of work that involves interacting with the public, for example. “

In Dr Jungfer’s view, the Plaintiff’s depression is likely to be lifelong. In support of her opinion as to the likelihood of organic brain damage, she said that his severe facial fractures were a predictor and that “unpredictable inappropriate outbursts of irritability” are very characteristic of temporal damage to the frontal and the frontal temporal regions of the brain.

She suggested that he should attend a pain management course, such a course being recognised as of assistance to people with chronic pain. As to the Plaintiff’s sexual difficulties with his wife, there was this exchange with Mr Semmler: Q. You mentioned that his reduction in sexual functioning - his problems with regard to maintenance of an erection were consistent with the clinical experiences that have been reported in the literature. Could you just expand on that. What I'm really asking is if you assume he has a problem with maintenance of an erection is it probably in your view psychiatrically based? A. Pain and - but also particularly the young men who have problems with concentration and attention, they have problems in terms of achieving an erection and then even maintaining the erection, but pain is obviously the biggest impacter usually on sexual function. Q. Is there anything that can be done about that? A. Theoretically what you'd get them to do is if you think it's substantially psychiatrically based, anxiety performance issues, you give them Viagra because they then have this - they think the pill is going to work magic and it-- Q. It has a placebo effect? A. I mean, it has a genuine effect in terms of vasodilation so it has a clinical effect, but it actually overcomes the anxiety component because they view the pill as being what's going to make it work and then obviously they go on to have further sexual activity. You normally get them to take the analgesia half an hour or an hour beforehand so they are in the least amount of pain. There is also counselling about what type of position to take in the sexual act which can be a bit challenging with Middle Eastern men in terms of taking advice as to what to do and what not to do. Q. Could you see in this man if you assume he's had this problem now both before his marriage which occurred in April 2006 and since, since the accident, can you see that problem being solved by that kind of techniques and do you see it as mainly psychiatric? A. Look, I would see it as being - well, I'm not suggesting the pain that he experiences is a psychiatric symptom, but he will have a component of performance anxiety which affects his ability and that therapeutic technique will assist with regards to that. HIS HONOUR Q. The pain management clinic might assist too? A. And it may assist as well. So that he can have some form of sexual life, yes. SEMMLER Q. Have you had much experience of referring people to a pain management clinic, people who have had multiple significant orthopaedic injuries, say? A. Yes. Q. And what are the results? Do they magically cure these people? A. No, look, they're never cured. For most of them what they actually learn is to manage their pain better. So they still have pain but whereas before if they had a good day they'd over exert themselves and get really severe pain and then they'd have a few days of recovery, it actually teaches them to pace themselves and to manage their pain better and to use their analgesia more effectively. So it doesn't cure the pain, it just helps them to manage it better. Q. Is there a possibility, if he genuinely has effective dysfunction now, that he will have it for life? A. Look, there's a likelihood if - he may also not be someone who responds as well as to the therapeutic suggestions so it may continue to be a problem. If he's got life long pain that is going to affect his ability because pain is a very significant adversive experience as far as sexual activity is concerned. Q. Can the kinds of symptoms that we've been discussing this morning impact upon a victim's relationship with a spouse in your experience? A. My clinical experience is that these individuals with complex multiple medical and psychiatric problems, their spouses have a substantial burden of care and it has a very significant impact on them. “

During her evidence as to the employability of the Plaintiff, I raised the suggestion of car salesman: “Q. His interest is cars. You don't see him as a car salesman? A. That involves talking with members of the public and so I would have concerns about that. It also involves quite lengthy use of a contract, you know, the many hundred pages that these car contracts are these days. How good he is going to be in filling that in terms of the detail, and people who are depressed don't focus as much on the fine detail and the effort, so I would have some concerns about it.”

Mr Jones, in cross-examination, raised the apparent contrast between Dr Jungfer’s diagnosis and the presentation of the Plaintiff in the witness box: “Q. Well, doctor, as night follows day isn't it the situation that if in an unstressed environment he can't even follow the TV it is more probable than not he's going to have great difficulty concentrating in a witness box? A. I raised to you the issue of relevance. You know, sitting in front of a TV, what's on may not be particularly interesting to him, may not be as relevant, he doesn't focus on it. Here this is very important to him and he may well be able to sustain his concentration much better. “ ……………………………………… Q. Look, assume, will you, doctor, that he gave evidence over a number of days. About three days. Assume, will you, that he did not appear to have any difficulty concentrating on the questions, listening to the questions, thinking about it and responding appropriately over three days. That's not what you would have expected of this person suffering from the traumatic brain injury which you proffered or suggested that he may be suffering from, is it? A. Yes, he could behave like that and still have a brain injury.”

At the conclusion of his cross-examination, Mr Jones turned to Dr Jungfer’s opinion as to the severity of the Plaintiff’s mental state: “Q. Before you could give any prognosis for this individual in terms of either his brain injury, if any, or PTSD, if any, wouldn't you have to know the severity of either condition? A. I will answer that in two parts; regarding the brain damage, if he has had a brain damage, regardless of the severity, by this point in time any form of neuronal recovery would have occurred, regardless of the severity. So that's brain injury. Post traumatic stress disorder, an understanding of the treatment, the severity, the response to treatment, you take into account for prognosis. Q. But if you are going to proffer up a prognosis, let's deal with the PTSD in terms of this man having it for the rest of his life, wouldn't you want to be in a position to work out what the severity of the condition is? A. Yes. Q. And is it the situation that you cannot as at today's date tell the court the severity of any PTSD if he had it? A. I will say - I will have to say yes to that based on what you've told me. “

Mr O’Dowd, in his cross-examination of Dr Jungfer, also broached the asserted conflict between her diagnosis and the Plaintiff’s appearance in the witness box, as the transcript records: “Q. And I think you have fairly conceded this: Based upon the accuracy of the assumptions Mr Jones put to you, and bearing in mind you weren't sitting in court watching what happened, but if all of those things that he described about the plaintiff's ability to sit in court for a long period of time, answer many questions, answer them appropriately, you know, everything from what sort of things he used to do around the house specifically, even to the point of being asked to describe what sort of toilet cleaner was used, that sort of minutiae, to his work habits, to his friends, his leisure activities, then that clearly presents a different clinical picture to that which you understood pertained in respect of Mr Chamma; correct? A. Yes. Q. Just on one point, and I will probably be kicked for saying this, on the issue of irritability, and that was one of, if you like, not linchpins but one of the factors which you considered to be important, generally speaking irritability is something that can - it most often manifests itself in a cumulative way. I mean, you reach a threshold and then you spit the dummy, if I can put it that way? A. There are two types of irritability. There's the one you described and a more spontaneous one. Q. True, but the more common type is the one I have described though, isn't it? A. Yes. Q. Assume that Mr Chamma's in the witness box being asked lots of question over a long period of time by Mr Jones. It might be thought that that might be an irritating experience. Would you accept that? A. It could be. Q. And Mr Jones could be considered in some circles as irritating? A. Yes. Q. I would like you to assume at no time in the entire period that Mr Chamma was in the box did he come across as anything but amenable, sometimes pleasant, certainly not unlikable, and did not display one iota of irritability at Mr Jones or even me. That would be something that would be on the negative side when one were weighing up the existence of those characteristics in Mr Chamma, wouldn't it? A. Yes. Q. So that's more information that you get given today that you hadn't had before? A. Yes. Q. I would also like you to accept that on numerous occasions in the witness box Mr Chamma said words to the effect that, "Look, I love to work. I'm motivated to work." That wasn't the impression you got when you saw him, was it? A. No. It was more, "What am I going to be able to do." So he didn't express an interest in not working at all. It's just what could he do.”

As to employability, there were these exchanges with Mr O’Dowd: “Q. One of the other things that you would have experienced I'm sure on many occasions through your clinical experience having treated patients, not just appearing on their behalf as a medico-legal expert, there's a great deal of focus on the case, isn't there? A. Huge amount. Q. And it's a huge stressor? A. Yes. Q. And it really prevents to a large extent them focusing on getting on with their life until this case is over, doesn't it? A. Yes. Q. Wouldn't this too be a case where you would expect that to be a feature as well and wouldn't you be hopeful that at the end of this case there would be some positive impact upon Mr Chamma? A. Most research suggests that on the resolution of the litigation there's a reduction of stress. Q. Just quickly with respect to possible jobs, assuming the things that we've said pertained, I have suggested to other witnesses that there are lots of other jobs that we don't normally think about it. Bearing in mind Mr Chamma clearly can drive, he can navigate, he can walk around, he can sit for, it seems, long periods of time, so long as he can get up and stretch from time to time. A job as an assistant, a gofer, for example, in a business, just a general hand that didn't involve lifting and repetitive movements, that would be something he could do, assuming those matters to be right? A. From what I've been told today, yes. Q. Maybe to work as a cashier, so long as it didn't involve having to stack heavy shelves or enormously complex electronic machinery? A. Yes, he'd need to be assessed for that. The gofer idea Is—“ Q. But there really are a myriad of occupations that assuming those assumptions to be correct he could apply himself to? A. There appear to be more options based on what I have heard today. “

Associate Professor Michael Fearnside, neurological surgeon, for medico legal purposes examined the Plaintiff on 3 March 2005. His report of the same date is valuable in that it comprehensively lists continuing complaints at that time: “1. He slept poorly because of pain in his neck, elbow, wrist and right knee’. 2. He had headaches on most days. Occasionally these were on one side or the other or they may be generalised. They were like a feeling of pressure or a tight band around his head and occasionally, he experienced light headiness. Although these are probably occipital headaches, there are some features of tension headaches. 3. He had no sensory loss in the right temporal or left temporal regions. He did have sensory loss in the scalp in the left posterior frontal and region of the supraorbital nerve. 4.He had symptoms consistent with a bilateral mental nerve lesion with sensory loss on the left side of the gingival and buccal surfaces of his mouth and his left lower teeth were numb. He had sensory loss in the right upper lip and right infraorbital nerve distribution. 5. His bite and occlusion were normal. He was able to eat a normal diet but he said he experienced pain when he was chewing firm food and he avoided apples. 6. He had diplopia on looking to the left. 7. He had ongoing neck pain with some aching. Occasionally, the neck pain woke him at night. He had a restriction of the range of movement of his neck. 8. He had sensory loss in the right fourth and fifth fingers and the hypothenar eminence of the hand. The distal part of the lower forearm was also involved. He had clawing of the right fifth finger. There was slight weakness in the hands and loss of manual dexterity of the fourth and fifth fingers. The first through third fingers had normal dexterity and normal sensation. The right elbow was ankylosed at about 90 degrees. 9. He had no sensory loss in the left hand but the hand was generally weak and he had a loss of range of movement of the left wrist. 10. There was no sensory loss in the right leg. He had chronic pain in the right knee from the fractured patella. From time to time the right knee would give way. The range of movement resulted in clicking and crepitus but no locking. 11. The left leg was asymptomatic. 12. Generally, he felt that his memory was quite good. He said that on occasions he might forget if he had locked his car or not but otherwise, I did not feel that there was any impairment of his activities of daily living with regard to memory. However, concentration was short and he could sit and read a book or watch a movie for only a short time and would need a break when he was concentrating on a task. He said that he was disinterested and found it difficult to motivate himself. 13. He had symptoms of anxiety with vivid dreams He was seeing a psychiatrist but was not being treated with any medications. 14. He had not returned to work. 15. With regard to activities of daily living he found personal care activities difficult because of his ankylosed right elbow. He was able to drive a car without modification. He was unable to help with domestic chores. He spent most of his time seeing physiotherapists and doctors. He was able to keep his room clean at home and make the bed. He did not socialise as much as he did previously as a result of his multiple injuries. He slept poorly because of pain and found it difficult to fall asleep. 16. He was having physiotherapy twice per week, mainly for his right elbow, left wrist and right knee. On two other occasions per week he would have hydrotherapy. 17. For pain relief he relied on Tramal 150mg twice daily and he also took Panadol twice daily. When his neck or back pain was more severe, he took some Voltaren.”

Professor Fearnside also recorded that the Plaintiff had lost the ability to open his mouth beyond about 60% of normal and that he walked with a limp, favouring his right leg. He listed the injuries sustained as: “1. A head injury. 2. A scalp laceration. 3. An injury to the right knee. 4. An injury to the left wrist. 5. An injury to the right elbow 6. Avulsion of an upper tooth. 7. Complex factures of his lower jaw, maxilla, and orbit.”

The Plaintiff’s solicitors obtained a medico legal report from psychiatrist, Dr A P McClure in March 2005. The history he took included: “Mr Chamma has become considerably more irritable. Most days there is an outburst directed mostly at a family member or his girlfriend. He is particularly irritated by “too many questions”. This was not previously a problem. He thinks about the accident often and in fact “it is always there”. Reminders such as photographs of his injuries, driving past job sites, seeing tradesmen working on construction sites and the site of unit balconies (e.g. near his home) cause him to feel an increase in anxiety and distress. He tends to avoid these sites. Until, recently he had not been exposing himself to heights. There is a persistent sense of loss. “Work was everything” and Mr Chamma says that he greatly enjoyed it. He often worked six full days a week. He feels depressed and often wishes to cry but cannot. He feels “sick of life …it’s too much.” He often thinks of dying and in fact often desires to die though he has not (since leaving hospital) felt any suicidal impulse. He finds it very difficult to act “happy”. His enjoyment is limited. Your client is also self-conscious in public about the fixed flexion of his elbow and the appearance of the scars in the temporal area of his scalp. Concentration is reduced. Mr Chamma attempts to read a book or watch a movie at home but tends to “give up “ after 15 minutes or so. Appetite is reportedly normal. Mr Chamma had lost around 16kg in hospital. He has regained this weight. He has not been training. Your client reports difficulty with his libido and reduced persistence and quality of erections. He is unable to maintain his “focus” when having sex.”

Dr McClure concluded that the Plaintiff described symptoms consistent with PTSD with secondary depression. In relation to employability, he said: “Even without considering Mr Chamma’s physical injury, it seems unlikely at the moment that he could cope with work of a demanding nature on more than a part-time basis because of his reported distractibility, difficulty concentrating and preoccupation with his difficulties.”

Dr McClure reviewed the Plaintiff in December 2005 and again in June 2007. In a report dated 5 June 2007, after recording the Plaintiff’s complaint of continuing physical restrictions, and of difficulties in his sexual relationship with his wife, he continued under the heading “psychologically”: Mr Chamma reports continuing depression since the subject accident with little associated enjoyment. He believes that his course has generally been “downhill”. There have been major changes in lifestyle. Previously, he says, he worked six days a week attended a gymnasium four day a week and had a busy social life. There have also been major financial losses. Overall, the changes have caused “frustration … stressful”. Sleep is disturbed unless Mr Chamma takes “Stilnox” Without it, he tends to stay awake late because of pain and discomfort and ruminations about his situation. He has frequent vivid dreams related to his previous work and to falling from a height. He also has dreams of his experiences in the hospital. Mr Chamma tends to “comfort eat”. He has gained weight since the subject accident. He will wake some days irritable and “moody”. Relationships are “up and down” and there are regular arguments with his wife and family members. Concentration is poor. Mr Chamma tends to ‘drift off” when reading, using a computer or watching a movie or a sports event on television. He cannot persist with these activities. He has little interest in them. He will “skim” headlines only in a newspaper. He “surfs” the internet for no more than 30 minutes.

Dr McClure, in the result, confirmed his earlier diagnosis of PTSD with secondary depression, but added that “the PTSD symptoms have, at least partially, remitted since I last saw Mr Chamma”.

The Plaintiff’s solicitors referred him in March 2005, to Dr Pete Duke, ophthalmic surgeon. Dr Duke diagnosed “residual diplopia on looking to the left”. He related this to the subject accident and said the prognosis was favourable, although added that it would adversely affect his capacity to carry out the normal duties of a carpenter. He confirmed the diagnosis when he saw the Plaintiff again in February 2006, adding that the diplopia appeared stable and was “less troublesome to him over the past year”. He said that the Plaintiff (presumably from the perspective of his speciality) was fit for modified pre injury duties as a carpenter.

Another medical specialist to whom the Plaintiff was referred for medico legal purposes was rheumatologist, Dr David Champion, who provided a report dated 10 March 2005 and a second, following review on 4 January 2007. In the latter report, he summarised the accident related injuries and consequences: “Cranial and facial injuries. Healed fractures of the right and left sygomatic arch with involvement of the right temporomandibular joint, healed comminuted fractures of the middle third of the facial skeleton and orbits, healed fractures of mandible (compound fracture left ankle of mandible, compound fracture parasymphyseal mandible). The consequences have included left temporomandibular joint pain/dysfunction with impairment of mandibular extension (mouth opening). He has scars across his head and minor post injury asymmetries in forehead, temples and chin. There are continuing sensory impairments in forehead, lower lip and chin and a residual hyperalgesic state of his scalp/cranium. There are symptoms consistent with bilateral mental nerve lesion with sensory loss on the lower lip bilaterally. There is post-injury headache which includes a cranial traumatic component and a cervicogenic component. He has impaired vision, diplopia, on looking to the left. Dental disorder. The right upper central incisor tooth was lost and needed to be replaced by an implant. He has Class 2 molar occlusion. There is a titanium plate as a result of upper jaw fracture repair. Cervical spine. There are continuing symptoms from a low grade cervical spinal pain syndrome with multilevel vertebral tenderness. Traumatic brain injury. Traumatic brain injury has been suggested, initially by extensive post-traumatic amnesia, but as point out by A. Prof M Fearnside the significance and extent of this requires formal neuropsychological testing and is difficult to evaluate in the presence of post-traumatic stress disorder. Post traumatic stress disorder, with relatively severe depression. This has been consistently diagnosed and I believe this to be an important component of his disability, interacting with his chronic pain state. This contributes to his chronic pain impaired sleep disorder. Right elbow pain and dysfunction. He had sustained closed comminuted bicondylar fracture of the right distal humerus with a comminuted fracture of the olecranon process. This required internal fixation. He is left with impairment of range as well as pain and he regards this pain related dysfunctional elbow as a high priority. Right ulnar nerve injury at the elbow. This contributes to impaired function of his right hand. Comminuted fracture of the distal left radius, complicated by extension of the fracture to the articular surface of the left wrist joint and followed by important loss of range and impairment of function. Injury to the right wrist, with residual minor impairment of range and reduced function. Also contributes to hand dysfunction. Bilateral hand impairment. This is multifactorial including the right ulnar neuropathy, secondary consequences of the wrist injuries, a neurological component related to chronic pain reduced use, as discussed previously, bilateral weakness of grip. Right little finger lacks full extension. Lumbar spine. The evolving consequences of lumbar spine injury include chronic low back pain and referred pain into the right upper limb, pain-related inhibition of range of movement of his back, but no neurological deficit. I am unclear about any underlying pathology. Right knee. The initial injury was comminuted Grade 2 open fracture of the right patella requiring internal fixation. He has impaired function of the knee, particularly lacking flexion disability in respect of gait and this also contributes to handicap for work.”

Dr Champion commented: The post-injury disorders have stabilised since I examined him in March 2005. There has been improvement in some regions, e.g. right wrist, but deterioration in his right elbow and lumbar spine in particular. The sum total of the consequences of this fall presents a serious and disturbing set of symptoms, impairment of function, extensive disabilities for activities of daily living and major handicap for work.”

Later he added, on the subject of employability: “It seems that the probability of working full time in any capacity in the open market is very low. It may well be that with a sympathetic employer he could perform light duties part time, particularly with encouragement and general support. The earlier mentioned suggestion of at least a trial of four hours light duties on three day a week would be reasonable.

Psychological assessment by Mr Raymond Field concluded in June 2007 that the Plaintiff’s present mental status was consistent with PTSD and major depressive disorder. He regarded his employability as “uncertain mindful of the medical, physical and psychological symptoms reported on this occasion”.

Mr Vinicio Herrera, psychologist, commenced to treat the Plaintiff in September 2004 and has continued to do so. Several of his reports were tendered, the earliest dated 25 September 2004 and the most recent 9 August 2007. In the earliest report, Mr Herrera recorded the following history: “Mr Chamma stated that as soon as he opened his eyes he became very scared that he had broken his neck or back and that he may not be able to walk again. He said that he did initially think that he may die but he was re-assured by everyone that he was going to survive. He stated that he became upset and cried uncontrollably. He stated that the stay in hospital was horrible and shocking. He said that he was constantly scared as he was advised that the operation to be undertaken could be dangerous. He said that he expected to hear the worst from the doctor and avoided hearing what the doctor had to say. He stated that he had constant dreams of going to work, of himself falling and often cried uncontrollably. He said that he loved his work and feared not being able to return. He stated that his pain has improved but it is still constant and is worse at night. His pain increases according to the activity level and describes his pain as sharp with muscle spasms. On the VAS (Visual Analog Scale) where 0 is not pain and 10 is extreme pain Mr Chamma rates his pain in the day as an 8 and at night 9 or 10. He stated that h e is also starting to experience back pain. Mr Chamma stated that since the accident he has not been able to wash the car, cut the grass nor make his bed and is not able to have a shower independently. He stated that he has started to completely rely on other people for his day to day living. He stated that a simple thing like opening a can may require assistance. He said that he becomes frustrated when attempting to dress but often has to resort to assistance by his family. E.g. pulling up his trousers. He said that he has difficulty going to the toilet due to restriction of movement. He is unable to make a sandwich by himself. He said that he is incapable of standing for long periods due to the pain. He said that he tries to walk as often as possible but still ties easily. He said that since the accident he is unable to drive his manual car as he feels physically limited and is fearful of having an accident due to his disability. He stated that his sleeping pattern has been disturbed and fins it difficult to fall asleep. He said that on average it take 3 to 4 hours to fall asleep, wakes up 4 to 5 times, finds it hard to fall asleep again and has only 3 to 4 hours of broken sleep. He feels tired exhausted and has little energy. Mr Chamma stated that since the accident he has experienced difficulty with his family. He said that he has become rude, has little tolerance towards people, lacks patience, and has problems controlling his temper. He feels that he takes his frustration out on his family and said that he was not like this before the accident. He said that this behaviour often makes him feel guilty. He said that he tries, but cannot, control his temper. His relationship with his girlfriend has also been adversely affected and is under significant strain because of his behaviour. He state that he cries easily over every little thing and whilst he was in hospital cried every day. He stated feeling helpless and hopeless at not being able to do what h e did before the accident. He stated that everything that he does causes pain. He stated that he has regained his eating pattern but he cannot open his mouth too wide as it causes pain. He stated that he gets upset when he looks in the mirror as he no longer looks the same. He feels ugly and unattractive, has lost interest in looking after himself, fears losing his girlfriend and never being able to find someone as he perceives himself as a cripple. He has difficulty concentrating and paying attention. Now and again he has problems recalling what he has said in conversation. He stated that h e has tried to participate in social group activities but feels limited by his physical disability, since he requires assistance from others. He stated that he experiences severe, sharp pain behind his left eye and gets sporadic headaches. He has daily upsetting thoughts about what has happened, what he has gone through and its consequential effects. He finds that he ruminates about the accident, has nightmares approximately 3 to 4 times a week and experiences the same fear that he experienced whilst in hospital. He stated that he tries to avoid thinking but is still having trouble. He stated that he has lost interest in previously enjoyable activities. He feels distant and cut off from everyone, feels he should go away and be on his own. He thinks about his lack of hope for the future as he can no longer own his own business. He said that he is overly alert to loud noises, screams and loud talk. He is apprehensive and scared of retuning to the site of the accident and is wary with regards to heights. Mr Chamma reports having upsetting thoughts or images about the accident, experiences physical reactions when reminded of the event, tries not to think or talk about the accident, tries to avoid activities, people that remind him of the accident, not able to remember an important part of the accident and feels as if his future plans or hopes will not come true.”

The report of 9 August 2007 reported improvement in several areas, including level of pain and nocturnal pain and in a capacity to rely less on others for day to day living. Mr Herrera continued: “He stated that his sleeping pattern continues to be disrupted and now depends on medication to help him sleep. He still finds it difficult to fall asleep. He stated that he does feel rested when he gets up but he feels “groggy”. Mr Chamma stated that he continues to experience difficulty with his family. He said that he still becomes rude, has sometimes little tolerance towards people, lacks patience, and has problems controlling his temper. He feels that he takes his frustration out on his family and said that he was not like this prior to the accident. He said that this behaviour often makes him feel guilty. He said that he tries, but cannot control his temper. He said that despite getting married he is still unsure of the relationship’s future. He states that he no longer cries but still feels helpless and hopeless at not being able to do the things that he used to do before the accident. He stated that he no longer gets upset when he looks in the mirror as he now looks much better than following hospital. He does not feel as ugly and unattractive as before and is more interested in looking after himself. He said that he still fears losing his wife and still perceives himself as a cripple. He also has erectile difficulties. He has difficulty concentrating and paying attention. Now and again he has problems recalling what he has said in conversation as he is constantly thinking of his upcoming operation (sic litigation). He stated that he has tried to participate in social group activities as much as he can. He stated that he now attempts to engage in previously enjoyable activities. He said that he no longer feels distant and cut off from everyone. He thinks about his lack of hope for the future as he can no longer own his own business. He said that he no longer is overly alert to loud noises, screams and loud talk. He said that he is not fearful of returning to the site of the accident or of heights but remains somewhat apprehensive. Mr Chamma no longer reports having upsetting thoughts or images about the accident, bad dreams or nightmare; does not relive the accident as it is occurring again; nor does he feel emotionally upset when reminded of the accident and does not experience physiological reaction when reminded of the event.”

Mr Herrera also expressed the opinion that finalisation of this litigation is likely to improve the Plaintiff’s mental state, particularly if he can find employment or an enjoyable hobby.

Dr Luba Eikens, rehabilitation physician gave a report to the Plaintiff’s solicitors on 25 September 2006 and also gave oral evidence. In her report Dr Eikens said: “I believe that Mr Chamma has been unfit to return to his previous work since the accident, and remains unfit to return to work as a carpenter due to residual disability with both upper limbs and right knee. He will not be fit to perform any form of work requiring manual dexterity, heavy physical work, work requiring prolonged standing, walking, frequent squatting or working at heights or from a ladder, in the future. I believe that at present Mr Chamma is not fit to return to even lighter duty work due to presence of depression associated with loss of incentive, impaired concentration and learning ability. I believe that Mr Chamma has no skills that could be readily transferable to alternative lighter duty work in the future. If there is significant improvement of depression in the future Mr Chamma may be able to co-operate with retraining in semiskilled clerical or retail work. However, it is likely that work would be restricted to casual or part-time work provided by family or social support network rather than on the open labour market. I note a comment by psychologist James Athanasou in his report of 10.6.2005 that from reading tests, “Results indicated an educational standard of around primary school level”. My clinical assessment would be in accord with this result. Accordingly, I believe that Mr Chamma’s potential for retraining at TAFE or a tertiary institution would be very low. With respect to domestic assistance or handyman assistance, currently Mr Chamma is residing with his parents and does not require assistance. However, were he to live in a freestanding home he would require domestic assistance, handyman and gardening assistance, level of assistance depending on the type of property and residence he obtained. It is expected that Mr Chamma will continue requiring analgesics or anti-inflammatory medication for the future, and is likely to require antidepressants for the foreseeable future. He will require frequent consultation with his general practitioner to supervise and co-ordinate his management; he will most likely require ongoing consultation with a psychiatrist and he may require referral to orthopaedic surgeon, ENT surgeon neurologist in the future. If he undergoes further orthopaedic surgery he would most likely require further physiotherapy for a limited period of time. He may also develop complications from his medications and may require referral to a gastroenterologist or haematologist.”

Dr Eikens said that the Plaintiff’s clinical presentation, his symptoms and his physical examination were all consistent with the type of injuries that he sustained without any sign of exaggeration.

In relation to low back pain mentioned in her report, Dr Eikens said that it was likely to be secondary to the knee problem which had caused an abnormal gait. She also said that he was coping “fairly poorly” with his injuries. She expanded on that : “I felt that his ability to cope with pain was quite limited. That is one feature of the clinical aspects. I felt that his ability to try and deal with the disabilities was also limited, for example, in simple measures like getting dressed. People who have more resources perhaps, more imagination, would find ways of getting dressed without requiring assistance from a mother or a wife, whereas Mr Chamma more passively accepts assistance rather than actively participating in his own ability to cope. Q. Are you describing some type of malingering there? A. No, I'm not describing malingering. I'm describing somebody who has limited coping resources and somebody who is depressed. Depression limits your ability to cope, to experience and learn new ways of doing things. So it's a combination of the depression and the injuries, and the underlying personality. “

Dr Eikens said that if the Plaintiff were to live on his own he would need assistance on a daily basis for housekeeping, gardening, shopping, organising his activities, etc, which she quantified at between 6 to 8 hours per week.

Finally, in her evidence in chief, she said that she did not think the Plaintiff would ever be capable of earning money in the open labour market.

Asked by Mr Jones in cross-examination as to the basis of her calculation that the Plaintiff would need 6 to 8 hours per week assistance, she agreed, in effect, that all she had done was make an overall estimate without seeking to attribute a time to any particular activity.

She conceded to Mr Jones that there is no “proof positive” of organic brain damage, “It’s a result of looking at the whole clinical picture and one’s knowledge of what one expects to find in patients with particular injuries particularly facial fractures”.

Dr Eikens also conceded to Mr Jones that the Plaintiff’s presentation in the witness box over three days suggested good concentration but she would not agree that it necessarily demonstrated good memory.

Another rehabilitation expert, whose reports were tendered and who was called in the Plaintiff’s case was Dr Stephen Buckley. He provided 2 sets of reports respectively dated 28 September 2005 and 3 July 2007.

In the first set he noted complaints of pain and disability in the right elbow, left wrist and right knee; of double vision; of memory loss; and of bad temper especially with his family and fiancée.

Following examination, Dr Buckley recorded a diagnosis of traumatic brain injury, apart from noting the bony injures to the Plaintiff’s right elbow, left wrist, right kneecap and face. He recommended a forensic neuropsychological assessment.

In his report of 3 July 2007, Dr Buckley repeated his diagnosis of traumatic brain injury in the “severe range with probable deficits of higher cognitive functions”.

He made the following assessment of the Plaintiff’s requirements for care: “Medical care: General practitioner – four visits annually. Orthopaedic surgeon (elbow) – once annually Orthopaedic surgeon (knee) – once annually Hospitalisation: provision for total knee joint replacement. Physiotherapy: 6 treatments annually. Handyman: 3 hours per week. Housekeeper 5 hours per week. Transport: requires a vehicle with power steering and automatic transmission. Fitted with mobile phone.

Dr Buckley expressed the opinion that the Plaintiff is unfit for employment on the open market.

In relation to the Plaintiff’s complaint of bad temper and irritability, Dr Buckley recorded: “He loses his temper, he admits. He shouts and swears and broke the television set in 2006 when he threw a cup at it. Other glass has been broken and a wall at his parent’s has a hole in it, several plate and cups have been broken since last Christmas. He has not hit anyone and Sharmaine is not frightened of him but she said “but I get out of the way and let him shout and scream … I understand the problem” There have been no fights and the police have never been involved but he would “ let a check-out girl know that I’m not happy”. Sharmaine said that he will not remain in a shop if it is too crowded or noisy or if there are kids running around and screaming. He has some road rage when driving, shouting and swearing, but being unable to gesture because of his elbow injury and he had never gone on to tailgate or follow anyone, saying “I’m not that physical, I can’t threaten anyone”. His sister’s children aged 3 and 9 cause him frustration.”

In oral evidence, Dr Buckley told Mr Semmler that his speciality is in brain injuries as well as having wide experience in relation to the rehabilitation needs of people with orthopaedic injuries, including the assessment of the employability of injured people. His experience in that connection extends, he said, to thousands of people. He had difficulty in identifying a job the Plaintiff could do.

Dr Buckley said that his mental state examination suggested “ a mild to moderate deficit of higher cognitive function”.

During Dr Buckley’s evidence, Mr Semmler asked him, in effect, to comment upon Professor Sitharthan’s psychometric tests referred to earlier. This met with strong objection from both Mr Jones and Mr O’Dowd but ultimately, I was persuaded that I should allow Dr Buckley to comment upon Professor Sitharthan’s report. He said: “Well, I don't believe that in its overall testing that it covers all the areas that I would want tested in the forensic context. If I was treating Mr Chamma and I obtained a clinical report like that, then that would confirm my views that he had brain injury and I would continue to treat him as a brain injured person. But it doesn't meet, to my estimation, the full forensic standard, mainly because it doesn't comment strongly on testing for effort.”

In response to Mr Semmler’s question as to whether the Plaintiff’s main problem is physical or psychological, Dr Buckley said: “That is a very difficult question. I believe that his physical injuries are, for example, sufficient in themselves to explain why he has not returned to work. I think there would be some people who were particularly determined who may find some niche in the workforce despite those physical injuries, but I think that the combination of the brain injury or psychological impairment together with those physical injuries would definitely rule out employment.”

Dr Buckley expressed the opinion that the Plaintiff will eventually come to knee replacement surgery, which he costed. He explained the reason for such likely surgery: “It's that the fractured kneecap will cause rapid progression of arthritis in the patella-femoral joint and the giving way of the knee joint because of that pain will cause damage to the main knee joint, the femoral tibial joint and that too will deteriorate with osteo-arthritic change.”

Finally, in his evidence in chief there was this exchange with Mr Semmler regarding the Plaintiff’s claim of back pain: “Q. He complains of back pain that he says he began to notice after he got out of hospital and began to weight bear, because up until then he had been on crutches, his knee had been in a brace. Is it consistent with your understanding of what has occurred in him from an orthopaedic perspective that there could have been an injury to his back in this accident? A. Yes. Q. The injury to the knee and the anatomical effect of that injury, could that itself contribute to a back problem? A. Yes, I think so. Q. In what respect? A. I think the giving way would be likely to be a cause of back strain or disc injury and he may have sustained a disc injury in the accident itself.”

Mr Jones closely cross-examined Dr Buckley upon a number of areas of his testimony, including that there was organic brain damage. The subject of the Plaintiff’s presentation in the witness box was pursued: “Q. Assume, will you, that in the witness box over the two days that he was there that he was able to have a pretty good recall in terms of his memory for events years ago and in terms of his events for very recent matters. Make that assumption, will you? A. Yes. Q. It suggests, doesn't it, that his memory as a result of any possible brain injury is unaffected? A. Well, I would not agree with that. Firstly, memory for events from years ago is relatively preserved in brain injury. It must be an extremely severe brain injury before one is likely to lose significant pre-accident memories. Memory for more recent events, it depends upon exactly what one means in terms of memory for recent events. Many people can tell me they went to the Zoo three or four days ago, they saw the lions, but when it comes to remembering, for example, a message that they received on the telephone while they were busy doing something else, that memory is lost. So I don't believe that cross-examination in the witness box is a replacement in any sense for a neuropsychological assessment. Q. No, I'm not suggesting it's a replacement but what I'm putting to you is that for all intents and purposes he presents as a feature of normality in relation to his memory and concentration and that in those circumstances you could hardly use those factors to support a diagnosis of a traumatic brain injury? A. What - sorry, I don't quite understand your question because certainly I wouldn't use factors of his performance in Court as evidence particularly for or against brain injury when we're talking about this level of severity of brain injury but people often have significant deficit which is not recognised by others and you regularly see people in the hospital who are clearly in post traumatic amnesia, the orthopaedic surgeons and orthopaedic nurses caring for them, and not noticing the fact that they are quite severely cognitively disturbed because of the concomitant brain injury. Now I'm saying that in Court it is unlikely that the Court process would detect this kind of brain - this type of deficit of higher cognitive function. Q. Wouldn't you expect any such deficits to be highlighted by stressful events? A. They may be. Q. They would certainly be relatively stressful for an individual to be sitting in a witness box and being asked a lot of questions-- A. It's very stressful. “

As to the suggestion that the Plaintiff was fit for employment in a clerical capacity, Dr Buckley said: “Supervising manual labourers possibly. He is physically fit to do something like that, but I can't see him being employed in that capacity given his overall educational and work history, let alone the additional question of brain injury. Q. You understood, did you not, that he had passed some TAFE courses? A. Yes.

In relation to the exercise of effort at psychometric testing, Dr Buckley agreed in cross–examination that depression can cause people to be less inclined to perform than they otherwise would be. HOME AND LIVING SKILLS – PLAINTIFF’S CASE:

Two home and living skills assessments were carried out by Prudence Consulting Pty Ltd. The first conducted by Ms Kelly Walcot when the Plaintiff was still living with his parents occurred on 19 and 28 December 2005. The second conducted by Ms Prue Sandford took place on 27 June 2007 at the residence of the Plaintiff and his wife, shortly before the birth of their son. Both Ms Walcot and Ms Sandford provided reports and gave oral evidence.

During the assessment by Ms Walcot the Plaintiff was able to do most of the activities suggested by her, albeit often with difficulty and with an apparent aggravation of pain. He could not, however, kneel, crouch or squat; he could not, while standing, reach below knee level and he could not, while sitting, reach his left foot. His mother assisted him into the shower recess and into and out of the bath. He was unable to wash his feet and could only reach his hair with his left arm. He could only partially wash and dry himself. His mother provided assistance with dressing his upper body. He was able to reach the clothes line with his left arm and was able to vacuum clean with his left hand. He could sweep using a long handled broom with his left hand and could steer a motor vehicle with his left hand.

Ms Sandford’s report was, of course, much more recent and, moreover related to where the Plaintiff is actually living. She also assessed that he is independent in many aspects of daily living but recorded that he cannot kneel or crouch because of insufficient right knee flexion. He remained unable to lower himself into, or raise himself from a bath without assistance and could not wash his feet or back. He also required assistance to shave the left side of his face due to his impaired vision and could not retrieve items from either a low or high surface. While he could prepare snacks and drinks for himself, he required assistance for meals which involved prolonged standing, stirring, chopping, lifting, carrying or opening jars, bottles and cans. He also, according to Ms Sandford, required assistance to straighten bed linen, vacuum, sweep, mop, hang out clothes and shop. She said that he lacked physical skills required in parenting

Ms Sandford made recommendations as to the features which should be contained in the Plaintiff’s home and she recommended items of equipment which would assist his daily life. All her recommendations other than home modifications were costed.

In her oral evidence Ms Walcot noted that the Plaintiff’s actual sitting tolerance was one hour, whereas he had told her that it was 10 to 15 minutes.

Mr Jones’ lengthy and detailed cross-examination undermined somewhat, in my view, Ms Walcot’s costings and her opinion as to the need for some of the items she recommended. For instance, although the Plaintiff had and still has a driving license, she recommended that he be allowed the cost of 7 lessons with a driver rehabilitation centre and for the cost of a special RTA assessment.

Ms Sandford, like Ms Walcot, an occupational therapist, said she is the principle of Prudence Consulting Pty Ltd. In examination in chief to Mr Walsh, she said that there was no material change in the functional level of the Plaintiff between the assessment by Ms Walcot and her own assessment.

Cross-examined by Mr Jones, she attributed the significant increase in her costings beyond those of Ms Walcot to the fact that the Plaintiff’s domestic circumstances had changed and his wife was expecting a child. She agreed that her charges were based on people brought into the home at commercial rates rather than on a basis that the work would be performed by family members. She said, for instance, that the sum provided for toenail cutting viz $34,000 was based on eight visits to a podiatrist per annum over his life expectancy. She said that she assumed Sharmaine would be his wife and partner, not his carer. 371 Although I do not suggest that Ms Walcot and Ms Sandford were not doing their best to assist the court, I find a good deal of their evidence difficult to accept. There was, I think, a failure to recognise that the Plaintiff is not entirely incapacitated and that the provision of the household aids and equipment suggested will probably leave him wholly independent in caring for himself. They should also enable him to provide assistance to his wife in carrying out her household chores and in caring for their child. I will need to return to the details of the claim made by the Plaintiff on this aspect of his case. DIMINISHED EARNING CAPACITY: THE PLAINTIFF’S CASE:

Apart from the Plaintiff’s own evidence, the evidence of Mr Sarkis Ibrahim, the evidence of his brother, Michael, and the medical evidence, other witnesses contributed to the quantification of his claim for diminished earning capacity.

Mr Rodney Stinson, a specialist consultant in occupational labour markets, prepared a report exhibit AB and gave oral evidence.

Among the assumptions Mr Stimson made were that the Plaintiff was earning $950 gross per week at the time of the accident; that he intended to work as a carpenter until retirement age of 65; and that he was of average ability. The following points appear from the report: · Mr Stinson had no information (nor was any provided to the court) as to the Plaintiff’s business acumen or ability to manage his own business. · But for the accident the Plaintiff would likely have worked in the building industry in the Sydney metropolitan area. · Mr Chamma would have been considered a qualified carpenter but to have been awarded a “Certificate III” would have needed to satisfy the requirements of the TAFE college where he was enrolled. · It would be very unusual for a supervisor not to hold a Certificate III. · Employment as a carpenter does not require any form of licensing. · Licenses are required for certain contractors and for supervisors of residential building work and certain other work. · In the opinion of Mr Stinson most carpenters having finished their apprenticeship would need to gain experience in the industry before obtaining a Qualified Supervisor’s Certificate. · A newly qualified carpenter of average ability should be able to obtain an Individual Contractor’s Licence within a year provided he has a Certificate III and meets other requirements. · As at early 2006, there were 21,000 jobs for carpenters in the Sydney metropolitan area and about 880 jobs for supervisors. · Carpenters seeking work would have had little difficulty in obtaining employment. · The building industry is cyclical and during downturns demand for labour, including carpenters falls. · The average weekly gross earnings of carpenters of all working ages as at May 2004 was $940.50 with a relative standard error 5.6%, according to an employer survey focussing on medium sized and large employers. A second survey published by the Australian Bureau of Statistics encompasses all types of business, including small and also self-employed persons. The earnings were lower in that survey being $781 per week in August 2004.

According to Mr Stinson, the figures I have quoted were the latest available when he made his report of 19 January 2007. He expressed the opinion that for a carpenter working on his own account, an income premium in the order of 20% to 30% would apply. In oral evidence, Mr Stinson said, as I understand it, that the figures quoted in his report were adjusted upwards by about 6.8% during 2007.

Mr Stinson agreed with Mr Jones that “not all carpenters are going to become contract builders”. He also agreed that not all project builders remain as such as “there would be movements in and out of the occupation”. In answer to my question whether to be a successful project builder requires significant management skills, he replied, “that’s right, administrative and management skills”.

During his cross-examination, Mr Stinson was shown TAFE records as to the Plaintiff’s actual performance during his course which revealed some subject failures and withdrawals. There was this question and answer: “Q. And if someone had passed all their subjects first time, it would suggest that perhaps their ability to possess those greater academic type skills, such as preparing plans, reading plans, submitting plans to council, et cetera, would be more likely to succeed someone who was failing and withdrawing from courses? A. Over and above any other reasons for failing and withdrawing, a lack of basic educational ability, then that would be a problem. “

Mr Stinson told Mr Jones that, in his opinion, a cashier working full time would earn about $620 per week and he estimated the annual income of a car salesman at between $40,000 and $ 80,000.

Mr David Zanetta, a builder who works fulltime as a carpenter, said that in 2000 he was earning $15 per hour but took a position with Winfix at which he was paid about $1,000 per week for a 5 day week. In 2001 he started his own carpentry business, which he still operates through a corporate body. It engages in a wide range of residential carpentry work and now has 4 employees. He said that his highest paid carpenter earns $20 per hour for a 38 or 40 hour week, although he contemplated increasing his rate to $22 per hour. On the other hand, he said that contract carpenters were paid between $40 and $50 per hour.

There was also evidence from another carpenter, Mr Jason Drew, who completed a carpentry course in 1998. He worked as a carpenter up to 2006, but not as an employee beyond 1998. Altogether, he worked in the building industry for about 14 years. He said that in 1998, he was earning $1,000 per week net of tax. He then earned considerably more as a carpenter on his own account, but in 2000 took employment as a foreman in high-rise buildings where he earned $1,250 per week. He continued in other capacities to earn roughly $1,000 per week net of tax until he left the building industry altogether in 2005. ATTEMPTS TO FIND EMPLOYMENT:

I have already referred to the Plaintiff’s evidence as to his attendances at the “job club” conducted by Active, as to his trials with Bunnings and Caltex, and as to his other attempts to find suitable work.

I now come to the evidence of Mr Stefan Knight, the Plaintiff’s “case manager”, employed by Active. He confirmed that Active was retained by Chubs’ workers compensation insurer for the purpose of seeking to return the Plaintiff to the workforce. He said that the Plaintiff regularly attended “the job club” on Monday and Wednesday mornings each week.

As the Plaintiff’s case manager he has familiarised himself with his injuries and his wishes in relation to future employment and has spoken to him on many occasions since April 2007. He said that Plaintiff is always one of the first to start using the resources at the job club, mainly the Internet and newspapers in search of employment. He is one of about 13 regular attenders.

In relation to the job trial at Caltex Service Station, Padstow, he said that before the trial started an occupational therapist went there to identify any special equipment he would require. A sit/stand stool was ordered, as was an extension reaching tool, but they did not arrive in time. There was also a requirement that he wear a white shirt but this problem, for reasons which, as I have indicated, seem to me incomprehensible, was not overcome until very late in the trial. There was also confusing evidence about insurance for a car the Plaintiff was using to travel to work.

In the result, there seems to have been a litany of errors, which resulted in the trial being largely a waste of time. It was intended as an opportunity for the Plaintiff to obtain experience as a cashier but he really only carried out packing duties, which increased the pain in his back and leg. He had only short experience as a cashier at the end of the trial.

The Caltex trial reflected poorly on all involved, and the least said about it the better, in my opinion. It certainly was of no assistance in resolving any issue in this case. It would be surprising if the trial did not add to the Plaintiff’s depression.

Mr Knight frankly conceded that in his time at Active he had not been successful in placing anyone in work.

However, he said that the Plaintiff related well to him and to other attendees at the job club and, in his opinion, would be capable of working in some retail shops. He suggested a mobile telephone shop where he would not be required to sit or stand for lengthy periods and would not have to life heavy objects.

As mentioned, the Plaintiff participated in another trial, namely at Bunnings Homebush. This occurred before Mr Knight joined Active. However, the store manager, Mr Rino Del Rosario, gave evidence.

He said the trial took place in the tool shop where the Plaintiff was not required to lift weights above 5 kilos, nor above his shoulders, or below his waist. It was also work in a small area, which did not involve a lot of walking.

He was required to fill shelves and answer customers questions. Mr Del Rosario observed the Plaintiff at work and said that he seemed to be happy to get back to work. However, on occasions, the Plaintiff telephoned to say that he could not come in because “he was struggling from the day before, physically needed rest”. Mr Del Rosario conceded that the job required repetitive lifting and said that the Plaintiff was not offered employment at the end of the trial. COST OF HOME MODIFICATION:

Mr Greg Strachan gave evidence as to the cost of modifications to render the Plaintiff’s home more suitable to his needs, particularly the removal of the hob into the shower. He is a licensed builder who specialises in modifications for people with disabilities.

He visited the Plaintiff’s home the day before he gave evidence and said the shower recess has a hob 140mm high. He explained that it could not be removed without further building work, particularly in relation to drainage and waterproofing. He said the cost of necessary work generally would range from $7,000 to $26,000. He quoted $17,000 for modifications to the Plaintiff’s present house and described what needed to be done. He also suggested the provision of a bidet and the installation of handrails.

However, as all parties recognised, the Plaintiff lives in a rented house and there is no reason to think that any modifications will be carried out to it. DEFENDANTS MEDICAL EVIDENCE:

In Soliman’s case reliance was placed on the reports and oral evidence of Dr Ross Mellick, Dr Anthony Smith and Dr Selwyn Smith. Chubs relied on the reports and evidence of Dr Ross Mills. There were also tendered in Soliman’s case the reports of Associate Professor Richard Jones, Dr Michael Delaney and Dr David Wilson, none of whom was required for cross-examination.

Dr Mellick, a neurologist, first assessed the Plaintiff on 11 October 2005. Following examination, he noted orthopaedic injures to the right knee, right elbow, left wrist, face and mandible. He also recorded diplopia on upwards gaze to the left and complaint of mild vertigo and headache. In relation to these matters, Dr Mellick reported: “The abnormalities of right elbow, right knee and left wrist function are permanent. I would expect the mild vertigo and diplopia at the extremes of gaze to resolve entirely with the passage of further time. As there is no identifiable posttraumatic cause for the headache and as the headache is devoid of features pointing to an intracranial traumatic mechanism, I would also expect the headache to improve with the passage of further time. Mr Chamma presented as a reasonable man with good insight and again one would expect that any mood disorder emanating from the accident would be maximum in close proximity to the time of the trauma. I would therefore expect the mild lability of mood to which he refers and which does not have any features pointing to an intracranial physical cause to also become less as time passes. The orthopaedic injuries impose restriction on his work capacity. The restriction arises because of impaired mobility of the right elbow and left wrist and associated pain when endeavouring to perform strong motor contractions of muscles responsible for elbow and wrist movements. The right knee injury is also producing significant wasting of the right quadriceps as well as pain and accordingly imposes restriction in relation to the performance of a variety of tasks necessary in his former trade as a carpenter.

Dr Mellick reviewed the Plaintiff on 18 July 2007. He noted some improvement in the intervening period and, in relation to the possibility of brain injury, said: “My re-examination did not identify any evidence of a brain injury, there being no features pointing to the presence of cognitive dysfunction, determined by brain injury. At the time of his previous visit, lability of mood was identified and recorded. However, it was my opinion at that time, that the mood disorder was not due to an underlying neurological disorder of personalty production and mood control, arising as a result of neurological injury, but rather as a consequence of Mr Chamma’s reaction to the injury suffered peripherally, most particularly involving the knee, elbow and wrist. I previously recorded my judgment that he showed insight and that the long term prognosis, in relation to the mood disorder, was likely to be favourable. He had headache, at that earlier time, which was not associated with features indicating an intra-cranial cause and I regarded it likely that the headache would resolve in time. His recent assessment revealed no evidence of cognitive dysfunction or abnormalities of personality production or mood control, determined by a brain injury, and headache was not a significant ongoing problem”

398 Dr Mellick agreed with Mr Jones that during his examination of the Plaintiff no complaint was made of low back pain but he did record discomfit in the cervical region. He observed that on examination in July 2007 he could find no identifiable diplopia. As to his view that there was no evidence of brain injury he said: “A. Well, the patient gave a clear history. It was presented in a sequential, sensible way. He showed a good ability to concentrate and provide the history in an ordered way. He had a good grasp of questions which I put to him and he was able therefore to concentrate and to apply focused attention. There was no evidence of thought disorder or distractibility or impaired concentration and I thought his mood was unremarkable. He certainly didn't exhibit any abnormalities of personality production or mood control and the examination also did not identify any abnormal physical signs which might be associated with abnormalities of parts of the brain associated with cognitive impairment or neurological abnormalities associated with the production of mood or personality disorder. So there was nothing to point to a neurological abnormality inside the skull. “

He was asked by Mr Jones about the Plaintiff’s presentation while giving evidence: “Q. Assume, will you, doctor, that during the course of these proceedings he gave evidence over a period of three days and that during those proceedings he was asked a great many questions, that he appeared to be able to comprehend the question, respond appropriately, that in terms of his recall of events he had good memory for incidents that occurred years ago, months ago, days ago, hours ago and even minutes earlier. And assume, will you, as an example that a question was asked of him and an objection was taken by one of the other counsel at the bar table, that there was then a debate before his Honour about whether or not the question was admissible, that after hearing the various submissions his Honour ruled on the admissibility of the question, the question was permitted and then the plaintiff was asked whether he needed the question repeated for him to answer it and he indicated he did not need the question repeated and proceeded to answer the question appropriately. What if any significance does that have in terms of the suggestion that this man is suffering from some brain injury? A. Well, the significance of your observations don't change the significance of my observations. What you're telling me is entirely consistent with what I've said. I think it is important to - to perhaps answer your question in another way, generally speaking experienced people have no trouble identifying brain injury or cognitive impairment due to brain injury or psychiatric problems due to brain injury. No difficulty. “

Dr Anthony Smith is an orthopaedic surgeon who first saw the Plaintiff on 14 December 2005. He reviewed him on 18 July 2007. On that occasion, he noted these complaints: “He continues to complain of pain in the neck and headaches although the headaches are not as bad as they used to be. His neck is generally no better. There is ongoing pain in the right elbow and a restriction in the range of movement there. The right elbow pain and paraesthesia has not improved at all. The right knee continues to ache and give way. He also continues with the pain in the left wrist and a restriction in the range of movement which has not improved either. Sometime after December 2005 when he was doing these work trial jobs he developed low back pain and pain running down the right leg.”

After stating his findings on examination, Dr Smith expressed this opinion: “This man gives a history that would suggest he had a significant fall at work on 18 June 2004 and sustained a number of severe fractures which I have described in my previous report. Subsequent to seeing him last the right elbow is exactly the same. Wrist movement on the left has improved however and he continues with the global manufactured weakness in both upper limbs and the hypoesthesia he exhibits in the right upper limb is manufactured as well There was nothing wrong with his low back when I saw him last and there is nothing wrong with it clinically today either. The right leg, where he had a facture of the patella, is much the same as when I last saw him as well. The restriction in flexion however in the right knee has increased for he had a 10 degree loss on that occasion and he has a 30 degree loss of flexion on this occasion. On the last occasion that I saw him I suggested it was necessary for him to have x-rays of both knees with weight bearing and skyline views and I think that ought to be done and I also think he needs an x-ray of his right elbow and his left wrist. In the event that he has developed low back pain and right-sided sciatica some time after December of 2005, it is not related to the accident of 18 June 2004. In the event that he has an MRI of the back demonstrating disc bulging that is fairly unremarkable and not necessarily indicative of any significant back pathology. There is clinically little evidence of elbow arthritis, knee arthritis or wrist arthritis affecting the right knee, right elbow and the left wrist. It may well be that up to date x-rays demonstrate none and it may well be that he is not likely to get any either. I think he is better than he makes out he is. I would have though he could work fulltime in an appropriate job. He possibly could not do the work of a carpenter because of his right elbow injury. I would not have though the left wrist would prevent him from working as a carpenter nor would the right knee in all probability but in the absence of the appropriate investigations that is difficult to be absolutely certain of that. He is prepared to manufacture physical signs and I think he is manufacturing symptoms. I think he has been fit for full time work for quite some time but would not be fit for work that requires heavy and repetitive bending and lifting activity or repetitive heavy work regarding the right upper limb. I do not think he requires anything in the way of treatment and I cannot think of any treatment that could improve him “

In his earlier report, Dr Smith had also referred to weakness in his upper limbs as to which he said: “There is no organic illness that could produce the weakness he exhibits in the upper limbs for he has weakness of shoulder elevation bilaterally which is performed primarily by the trapezius muscle which is supplied by the 11th cranial nerve which could not be affected unless he had an overt episode of brain trauma in the fall and I would think Dr Fernside’s (sic) opinion rules that out.”

In respect of his use of the phrase “global manufactured weakness in both upper limbs” in the report of 18 July 2007, the transcript records this exchange with Mr Jones: “Q. You noted in your opinion that his wrist movement had improved on the left but he continued with the global manufactured weakness in both upper limbs and hypoesthesia exhibited in the right upper limb is manufactured as well. Now, just returning to the global manufactured weakness in both upper limbs, was that exhibited on examination on this second occasion almost two years later or 18 months later after your first examination? A. Yes, it was. Q. And is that set out at the top of page 3 of your report? A. Correct. Q. And to assist the Court, did he exhibit the same features that you described a short time ago in relation to your first examination? A. Correct. “

Cross-examined by Mr Semmler, Dr Smith said that on each of the 2 occasions he had examined the Plaintiff for about half an hour. He said that he had probably not been aware that the fracture of the left wrist was both comminuted and intra articular. He agreed that this indicated a worse fracture than he was aware of when he wrote his reports. There was later this exchange: “Q. What would you expect if someone is suffering from a fracture that goes through the joint, as we are dealing with here, the actual wrist joint as you demonstrated on the diagram there, what would you expect them to have by way of symptoms? A. They would complain of pain with various activities and then on examination you would notice a restriction in the range of movement, especially with regard to dorsiflexion. Q. When you examined this man he did complain of pain and restriction of movement, didn't he? A. That is probably correct. The first time I saw him he complained of pain in the left wrist and restriction of movement. Then on the second time I saw him, well, he said he was not any different. HIS HONOUR Q. You mention it at the top page 2 of your second report? A. Yes, he complained about the wrist as well. JONES: Second last paragraph page 2. WITNESS: I think I can read quickly. He has a small restriction. SEMMLER Q. Is there any orthopaedic significance in the way in which the fractures occur? What do you call a fracture that runs down the bone as opposed to across it? A. Well, you can have, say, a split, but mostly they are oblique fractures. It is unusual to split the length of a bone, but you do see a fracture that is oblique and long and they heal much better than transverse fractures because of the big surface area. The bigger the surface, the better the heal.”

Dr Smith agreed with Mr Semmler that ongoing pain and restriction of movement could be due to osteoarthritis. Mr Semmler than pressed Dr Smith as to the severity of the fractures to the Plaintiff’s right elbow. There was this question and answer: “Q. And when you were describing earlier in your evidence the weakness in both arms, we talked about the left arm earlier on, but the right arm weakness, would you agree that that at least part of that could well be due to the pain and restriction of movement consequent upon the intra-articular fracture and the early development of osteoarthritis? A. It's possible - if he has a weakness about the elbow joint then it is possible to detect it, but not if he's manufacturing the weakness. He would have to present honestly and then you could determine whether or not there was any likely true weakness. “

In relation to the Plaintiff’s right knee, Dr Smith agreed that the weakness in the quadric muscles is evidenced in the wasting, which he measured, and can cause the knee to give way unpredictably when weight is placed on it. He also agreed that there was a possibility of osteoarthritis developing in the knee over time. If this occurred he would suffer greater pain than he experienced now and there would be further restriction of movement.

As to lower back pain, Dr Smith agreed that it was possible, although he thought it unlikely that the pain would not be noticed until the Plaintiff started to bear weight on his legs.

The third medical practitioner who gave evidence in Soliman’s case was Dr Selwyn Smith, a psychiatrist. He has a particular interest in PTSD.. He saw the Plaintiff on 8 August 2007. He produced a report of that date and a later one 17 August 2007 after considering a number of reports in the meantime.

Dr Selwyn Smith’s second report contained these paragraphs: “I reviewed the injuries that Mr Chamma sustained and which were highlighted in the Amended Statement of Claim. He confirmed the extent of the injuries. He stated that he has undergone ten operative interventions. He stated that he has improved significantly and is strongly motivated to re-engage in productive work. His current symptomatologies comprise pain in his knee, elbow, left wrist, hand and face. He also reported that he has continued to consult with his family physician, as well as a counsellor. In addition, he consults with a psychiatrist, Dr Raymond Tint Way. He attends a gym programme. He reported that he is being assisted in regard to seeking alternative work. Mr Chamma stated that his main concern is pain, which did interrupt his work trial whilst at Bunnings. He stated that he was to be at the checkout counter but additional tasks were requested of him, including stacking articles on shelves. He found this exacerbated his pain. He reported that his appetite has incremented and he has gained weight, the exact amount of which he could not state. He described his concentration as poor. He reported utilising hypnotics to assist him with sleeping. He stated that he has been depressed. He has experienced anger and significant frustration over his altered lifestyle Mr Chamma stated that his libido has diminished. He attributed loss of erectile functioning to the pain he has experienced. He also described a loss of interest. He stated that this is of concern to him. He was concerned about the impact it was having on his wife. Mr Chamma reported that he was able to care for himself. He stated that his wife does help him in connection with the restrictions posed by his right elbow. He described his right elbow as being “locked in”. He stated that he does try to go out socially. He also enjoys his fishing. He stated that he is able to travel and can operate a motor vehicle with no restrictions. He reported ongoing impairments in regard to his concentration, particularly in regard to watching television or movies. He expressed irritability. As stated, he did express a strong desire to re-engage in productive work.”

Asked by Mr Jones to comment on the significance of evidence as to the Plaintiff’s ability to travel to medical appointments, there was this exchange: “Q. Now I want you to assume that in preparation and in involvement in this case he has been required to see quite a number of doctors for all sides, that during that time he was either living at Bonnyrigg or Hinchinbrook which is out west and that on occasions he had to go to places with which he was unfamiliar, such as Kogarah, parts of the city, Mosman and Chatswood. And I want you to assume that on occasions he has driven there himself unaccompanied. So that he's been able to negotiate a route in his car from Hinchinbrook or Bonnyrigg to those various destinations. Now, first of all, what's the relevance of that against a suggestion that this man has a traumatic brain injury? A. Well, the scenario you have outlined is indicative of a man with good memory, ability to focus and concentrate and certainly is not consistent with a man with traumatic brain injury. “

On the subject of the Plaintiff’s presentation in the witness box, there were these questions and answers: “Q. I want you to assume that during this hearing he gave evidence over three days from the witness box and that he was asked to recall and apparently recalled without any great difficulty events some of which were years ago, some of which were months ago, some of which were only weeks ago, some hours ago, some minutes ago and some seconds ago. Just dealing first of all with the issue of memory, what relevance does that have in terms of any suggestion that this man has a traumatic brain injury? A. It's no evidence at all. The man has got good memory, both short, recent and long-term memory. It suggests his brain is functioning pretty well. Q. I want you to assume also that during the course of those three days he was obviously asked a lot of questions, initially by his own counsel and then by two other counsel. And assume, will you, that in responding he was able to listen to the question, think about it and respond appropriately so that he was able to concentrate on that question and give an appropriate answer. What is the relevance of that over a period of three days in terms of any suggestion that this man has, firstly, a traumatic brain injury? A. Memory is made up of the ability to register information and then you have the indelible imprint of that information. So you have the ability to retain. Then you have the ability to recall. Now if you've got impairment of brain functioning you're not going to register material very well. You're going to be distracted. Your ability to focus and concentrate on the import of the question is impaired. And if you're not registering you therefore by definition are not retaining and when you are asked to recall you have impairments in recall. So if an individual is able to register the import of the question and that has been indelibly imprinted, even momentarily, and then they can recall, it tells me their memory is functioning pretty well and that would be a strong discounter of traumatic brain injury. “

Further examination of Dr Smith was directed to the Plaintiff’s involvement in Active’s “job club”. As the transcript records: “Q. And if he had that condition (Chronic pain syndrome), would you have expected it to have had some effect upon his concentration and memory? A. Not necessarily. Pain certainly is a factor that could intrude into one's ability to focus and concentrate and is a major distraction in regard to someone undertaking certain tasks and that obviously impacts on their memory. That certainly happens in practice. Pain by itself or, as I say, pain disorder can be associated with that, but not necessarily. Q. In terms of obtaining the history from him, any perception of pain by Mr Chamma was not such as to prevent a cogent history? A. That's correct, he was able to articulate the history with no problem. He didn't - you know, people with pain syndromes are a bit more florid in their presentation and can be flamboyant. They frequently get up from the seat where I am interviewing them from, they walk around the office or they are very pain focused in their mannerisms. Q. Did he present that way? A. No, he did not. Q. I want you to assume that during the course of the hearing there is evidence that he has been aggressive towards his wife - I do not mean physically aggressive, I mean verbally aggressive - he has been rude and she complains of a lack of communication and that he has been rude to other members of the family. I want you to assume he has seen a rehabilitation consultant over a period of some months. He has seen him now for about six and a half months to seven months and he readily sees him a couple of times a week because he is required to see him as part of the workers' compensation process. He is also required to be a member of what's called a job club and he and about 13 other people are in the job club and they use computers to gain Internet access to job sites, matters of that nature, and they communicate with potential employers, that sort of thing. I want you to assume that this is how he presented to the rehabilitation consultant - when asked to describe Mr Chamma personality, he said this: “Depending upon Sam's mood, normally when I have met Sam he has been quite upbeat. Occasionally, I have met him when he has been down, having rejections from positions he has applied for but the majority of the time Sam is really upbeat. Sam has got quite a good sense of humour." “Sam seems to get on with other people, so I can't see personally any problems. I have never seen Sam have problems with anyone else." Now, first of all can you tell us the significance, if any, of those observations by that person over a period of time based upon regular attendances in respect of the proffered conditions, be it traumatic brain injury, post-traumatic stress disorder, major depression, or indeed a chronic pain syndrome, is that the sort of presentation you would have expected from someone suffering from any of those conditions? A. It is difficult to generalise. You know, each individual is unique in their own way with regards to how they respond to life stressors, in regards to how they react to adversity, in regard to how they respond to their own inner turmoil and pain. I certainly found Mr Chamma, yes, to display a sense of humour. He was a very pleasant affable man. He was not irritable in my presence, as indeed many people are. Many of them, frankly, are hostile to be examined, but he was not. He was very pleasant. So, I can't comment, as a general rule, as to linking that presentation to any specific diagnosis. Sometimes people with major depression can also be very pleasant, those with chronic pain can be very pleasant, other times you get them offbeat or at the wrong time and they can be very, very difficult to deal with. Q. Tell me, you would have expected if someone seeing Mr Chamma over a matter of six months, a bit more, for them to have noticed some irritability, aggressiveness if indeed he had one of the proffered conditions? A. The import of the question is, if he has been seeing the rehabilitation consultant for six months, the rehabilitation consultant has noted that overall he has been pretty upbeat, he has experienced some episodic irritability in response to frustration over not obtaining work, and the question, therefore, is, does this mean you can exclude major depression, post-traumatic stress disorder, traumatic brain injury, is that the question? Q. Yes? A. Certainly I anticipate that you are going to see episodic irritability given the constellation of what's going on in Mr Chamma's life. The fact is, the more important statement is that most of the time he is upbeat, which would go against the diagnosis of major depression and would go against other major psychiatric disorder. The rehabilitation consultant knows him well, he is trying to work with him and get him work, and most of the time he is pretty positive except when he does not get work. The key is he is upbeat most of the time, and that's why I came to the diagnosis of adjustment disorder because he has difficulties adjusting from a psychological perspective. I thought that that was a more accurate diagnosis. Q. You see, is it significant that over that six and a half month period that the consultant has never seen Sam have problems with anyone else? A. Very significant, he knows him well.”

As to whether the Plaintiff is likely to require admission to a psychiatric hospital in the future, Dr Smith said: “A. Well, I would have anticipated that the most sensitive time for Mr Chamma to, perhaps, have the major depressive like symptoms requiring hospitalization might have been, say, in the first to two years post- accident when he would have had extreme difficulties processing what he was experiencing, both from a physical and psychological perspective. The fact that he did not require hospitalization during that point in time, the fact, as I reviewed the history, no-one has suggested psychiatric hospitalization, it argues very strongly against the presence of a major depressive episode in the intervening period, from the time he has had the accident to date. Now, psychiatric hospitalization would be indicated if Mr Chamma was demonstrating a major psychiatric disorder such as major depression whereby he was posing a risk to himself or to others, where he required the secure setting of a hospital surrounded by assisting personnel with psychiatrists, psychologists, nurses et cetera, but based upon my examination I certainly did not see the need at the time I saw him nor prior to the time that I saw him for that. As I stated, it does not demonstrate that degree of depression requiring admission. Now, you say, well, what about the future? Well, I can't predict the future with any degree of certainty, but I think, on the balance of probabilities, in regard to this particular accident causing a major depressive disorder, it would be highly unlikely. Will something else occur in his life in the future? Who knows if that is going to compound his problems requiring an admission. But insofar as this particular accident is concerned, I think it is highly unlikely that he will require hospitalization. I would also emphasise that hospitalization while it carries important treatment and preventative issues may also be detrimental in that it creates a dependency, it creates a reliance and an avoidance in regard to re-integrating into other issues. There are many people who in fact spend a lot of time in hospital and while hospitalization maybe necessary, it is often times unnecessary and may cause further problems for the patient.”

Although Dr Smith said that, in his opinion, it was reasonable for the Plaintiff to continue seeing Mr Herrera for a further 6 to 8 months, he did not regard as reasonable the suggestion that he should consult a psychiatrist once a month for the rest of his life.

In cross-examination, Dr Smith agreed with Mr Semmler that continued unemployment is likely to compound the Plaintiff’s depression and that this may prolong the need for continuing consultations with Mr Herrera. He also agreed with Mr Semmler that there can be subtle or gross degrees of brain injury and that the Plaintiff appeared well motivated and was not malingering. He accepted that his biggest concern was not being back at work.

Mr Semmler asked Dr Smith about the Plaintiff’s presentation in court: “Q. What I'm trying to put to you is that simply because to a whole lot of lay observers a person in a witness box may have appeared to have certain cognitive and emotional characteristics, does not by itself mean that that person was not suffering from a psychiatric disorder at the time, would you agree with me? A. That's correct, that's correct. Q. Would you agree that people can work who have psychiatrist disorders, and that includes people like barristers, judges, psychiatrists? A. Very much so. “ As to the opinion of Dr Jungfer: “Q. You mentioned in your report that you essentially agreed with the conclusions that Dr Patricia Jungfer? A. Yes. Q. Are you aware that she has a special interest in-- A. Yes, I know Patricia very well. I respect her, she previously worked at St John of God hospital with me. I know her well. Q. Do you know she is one of only three psychiatrists in the world who has special expertise in relation to the psychiatric aspects of brain injuries? A. Yes, she takes a special interest in that. Q. You accept that this accident to Mr Chamma was a significant psychological blow to him? A. Correct. Q. Is it fair to say it is not unexpected that he would or could, even three and a half years following the accident, suffer psychiatric consequences of that accident and its sequela? A. I have said that, yes. Q. Is it fair to say that it is possible in his case, particularly if he doesn't return to work, that he could suffer a psychiatric disorder for life? A. Yes, this could be ongoing in the same manner for a long period of time, that's correct. “

Dr Smith also told Mr Semmler that he had become satisfied, on balance, in light of further material provided to him that the “criteria” for PTSD had been satisfied and that he may have that disorder. He agreed with Mr Semmler that he could not rule out that the Plaintiff suffers PTSD as well as the psychiatric condition “adjustment disorder with depressed mood”.

As to the prognosis for the Plaintiff’s continuing mental health problems, there was this exchange with Mr Semmler: “Q. Would you agree that if Mr Chamma, if he does genuinely suffer from some degree of irritability and aggressiveness on occasions and problems with his memory and concentration, regardless of the aetiology of those problems, would you agree that given that he has had them for three and a half years, the long-term prognosis for those problems is not good? A. Not necessarily. Q. What causes you concern about that proposition? A. Well, I come back to the points I was making before, that he continues to harbour dissatisfaction and frustrations over a number of practical issues in his life. My view would be if he could relieve some of those pressures, particularly work, ameliorate his pain, overcome some financial concerns, improve his family relationships, I think his overall psychological state would significantly improve. Q. Would you agree that whilst he is unable to work, this psychological state you are referring to is likely to continue? A. That's true, I have conceded that. “

As to the link between fractures of facial bones and organic brain damage the transcript records: “Q. Do you agree there's an increased incidence of brain injury following facial fractures of the kind that he had? A. As a general principle, that's correct. Q. Do you agree that there are some studies that suggest a person is six times more likely to have a brain injury with this kind of facial fracture that he's had? A. As a general principle. I again emphasise general principle. “

Dr Smith’s views were conveniently summarised by his answer to a question Mr Jones asked in re-examination: “Q. You were asked a whole lot of questions, doctor, about generalities. Could I ask you some questions in re-examination about this specific individual? Assuming that this specific individual suffers from a psychiatric condition as you have diagnosed in him, or one of the other conditions that has been suggested may be appropriate to him, doctor, how important is the effect that it has on him in relation to his ability to function out in the real world as opposed to affixation of a particular label? A. Well, the label, as you say, is a label. It doesn't equate to disability necessarily. Do I view Mr Chamma as being disabled on psychiatric grounds? The answer is no. Do I view him as being significantly impaired in regard to his ability to function interpersonally, socially, vocationally? The answer also would be no. Am I denying that he has a psychiatric problem? No, not at all. That he's suffered? Not at all. That he even may require ongoing assistance? Not at all. But that's a separate issue from his ability to function in society. I think he can function in society quite well. “

The final witness to whose evidence I will make reference is Dr Ron Mills, a specialist occupational physician, called by Chubs. He examined the Plaintiff on 18 June 2006 and then assessed the Plaintiff as having a “significant residual work capacity”

In the course of his report dated 6 July 2006, Dr Mills commented: “Mr Chamma’s presentation is consistent with him having sustained significant injuries on 18 June 2004. There are, however, inconsistencies indicating that he is under-representing his true activity tolerance.”

Dr Mills concluded the report with this expression of opinion: “His conditions have reached maximal medical improvement, and I would not consider further physical treatment to be indicated. I am unable to comment with respect to any potential need for future surgery (as this is outside of my area of expertise). I would consider Mr Chamma to have a significant residual work capacity. He should be able to work full-time (subject to gaining work fitness, either through a progressive return to work trial or a time-limited and compliance linked land-based exercise program simulating work activities). I would consider Mr Chamma to require the following restrictions as a result of his upper limb injuries: No exposure to significant impact or vibration forces to his upper limbs. No heavy pushing or pulling. No prolonged or repetitive elevation or over-reaching with his right arm. No prolonged above shoulder work. Maximum lift 5-kilograms and this to chest height only, and to be kept close to body. With respect to his right knee injury, I would consider Mr Chamma to require the following permanent restrictions: No repetitive squatting, climbing or kneeling. No prolonged walking or standing. If required to sit for prolonged periods of time, he needs sufficient leg room to extend his right knee. Other: Due to his report of dizziness, I would recommend that, as a precautionary measure, Mr Chamma avoid working at heights or in confined spaces. He should also avoid operating heavy machinery whilst under the influence of Tramal. Thus, I would consider Mr Chamma long-term to be fit for selected duties, fit to work full hours within these restrictions, an example of appropriate jobs to include sales, clerical or administrative duties. His vocational options are likely to be increased if he completes the paperwork for his carpentry trade qualification. This should enable him to perform such duties as estimator, building inspector, CAD design or other allied duties.

He told Mr O’Dowd that his consultation with the Plaintiff would have occupied about 1 hour. He also told Mr O’Dowd, as I understand it, that the conclusion in his report that the Plaintiff was “under-representing his true active tolerance” related to his administration of “Tamar Dynamometry” tests.

Mr Jones, in cross-examination, asked questions in relation to the Plaintiff’s emotional fitness for employment: “Q. Assume this is what the rehabilitation counsellor had to say when he was asked about Mr Chamma's presentation: “Depending on Sam's mood normally when I've met Sam he has been quite upbeat. Occasionally I've met him when he was down, having rejections from positions he is applied for, but the majority of the time Sam is reasonably upbeat." …………………. “Sam seems to get on with other people so I can't see personally any problems. Never seen Sam have problems with anyone else." Assume, will you, that this was the evidence from a manager at Bunnings where he had a work trial: “I think he was - he was happy to get back to work. Happy to be around people. He wanted to do well." Now against a background of his presentation at home and outside home as I've just taken you to, what do you say about the opinion you expressed that appropriate jobs would include sales, clerical or administrative duties A. I'm unclear as to what I'm being asked. Q. Well, part of getting someone back to work includes I think not only the physical but also the psychological aspect; is that right? A. Correct, yep. Q. At page 8 did you consider both aspects when you set out the sorts of work this man could do? A. Yes. Primarily my opinion is directed towards his physical work capacity. Q. Now I'm asking you to assume from a psychological perspective the matters which I have just put to you. Is there anything I have put to you which would cause you to change your assessment or alter it in terms of your recommendation that sales, clerical or administrative type duties would be suitable for this man? A. No, I would consider if - no. I would consider that to be supportive of it.”

In answer to Mr Semmler, Dr Mills said that when he made his assessment in July 2006 he had no information as to the Plaintiff’s psychiatric condition. He did, however, make a judgment based on presentation, demeanour, ability to provide answers to questions and “appropriateness in the setting”.

Pressed by Mr Semmler as to the significance of knowing the extent to which the Plaintiff had actually applied unsuccessfully for employment, the transcript records: “Q. If Mr Chamma has made numerous applications for work under supervision of a reputable rehabilitation provider and he has been unsuccessful in obtaining anything but one interview, which did not result in any job, that might by itself would be a relevant piece of information to factor into the analysis of his realistic prospect of returning to work, would it not? A. It is useful, yes, but the success in obtaining interviews does not necessarily - it reflects a lot more on work capacity and there need not necessarily be a direct relationship. There are many factors other than work capacity which determine whether or not a person is successful in job application. For example, the appropriateness of the job, presentation at the interview, or with the application, the form of the application, motivation, job availability in the local labour market, et cetera. and later: Q. Is it fair to say to you that all you have looked at is his work capacity? A. That is correct. Q. You have not factored in the prospects of, realistically, this man getting back into the open market place, his capacity in obtaining a job, have you? A. Yes, I have. No, I have not conducted a formal section 40 assessment nor supervised a return to work programme. However, I have assessed what I consider to be reasonable and conservative work capacity, and I would have thought that given his age, given his presentation, given his physical conditions, that, yes, he does have a reasonable likelihood or should have a reasonable likelihood of returning to paid employment. “

Dr Mills conceded to Mr Semmler that the Plaintiff had been out of work a long time viz 3½ years and that, as a general proposition, the longer a person is out of work the less likely it is that he will return to the workforce: “Q. What I'm suggesting to you is that the practical reality of the open employment marketplace is that employers tend to be less attracted to someone who hasn't worked for a prolonged period than to someone else with the same physical capacities who has been in recent employment. Would you agree with that or not? A. No, I would not. I think that is a generalisation which is unfair and in some situations you can put a contrary view. A person who has been out of work for a period of time and who has a disability can actually make a more loyal worker simply because they are so much more grateful for having a job. In addition to that under the - my understanding, your Honour, anyway, is under the workers compensation system if you have a workers compensation claim there are actually workers compensation benefits to employing that person for the first 12 months with respect to protection against a claim. So it's not a simplistic yes or no. Q. So you don't acknowledge that as one of the barriers to placing people with disabilities back into the workforce. That is a prolonged period of no work at all. You don't acknowledge that as a factor? A. No, I did not say that. Yes, that can be a barrier, but it needn't necessarily be an obstruction. In some situations it can be a benefit.”

The value of Dr Mills’ evidence was reduced, in my opinion, by the circumstance that he made his assessment as long ago as July 2006 and that he did not have psychiatric reports available to him. I was unconvinced for that reason that he justified his comment that the Plaintiff under-represented his true activity tolerance, at least if that was intended to imply that he did so deliberately

As I have said, in Soliman's case, reports were tendered from Associate Professor Richard Jones, Dr Michael Delaney and Dr David Wilson, none of whom was required for cross-examination.

Professor Jones, in June 2006, regarded the Plaintiff as “independent in personal care and in many activities of daily living of a domestic nature, albeit with some degree of discomfort”. He suggested he would require 3 hours a month paid assistance for heavy home maintenance.

As to employability Professor Jones said: “He would not be capable of returning to his previous employment as a carpenter and physically demanding duties would never be appropriate for him. He will require vocational advice and may benefit from learning skills in computer management. At this time he said he is discussing the options with rehabilitation providers and in the first instance may work as a cashier. That occupation would be appropriate at this time although he regarded himself as an outdoor person. He would not be capable of trades that required heavy manual processes.”

Dr Delaney, an ophthalmic surgeon in November 2005 diagnosed “slight restriction”: “Inward movement of the right eye, which was associated with double vision beyond 40 degrees from fixation when looking up and to the left, and beyond 35 degrees from fixation when looking horizontally left, and 30 degrees from fixation when looking down and left. There was a significant amount of enophthalmos (a sunken appearance of the eye in the orbit) and there was altered sensation present over the right cheek and over his forehead on the right and left sides.”

He related the disability to fractures of both orbits suffered in the subject accident, which were also causally connected to the enophthalmos and altered sensation.

Dr Wilson, an oral and maxillo-facial surgeon, examined the Plaintiff in respect of his facial jaw and dental injuries on 18 October 2005. He recorded injuries as follows: “Mid-facial and upper level facial fractures. These fractures involved the zygomatic complex on both sides, and on the right side, the zygomatic arch on its posterior aspect, which is closely related to the temporo-mandibular joint (TMJ) on that side. The facial fractures can be classified as Le Fort 2/ Le Fort 3 (middle and high level). Typically, this type of fracture involves the upper jaw, maxillary sinuses, the orbital framework and the nasal bones. Bilateral fracture to the mandible. A fracture of the symphysis, or midline area, of the lower jaw, as well as a fracture to the right angle. Facial lacerations – involving the lower lip and under the chin. Bruising and swelling to the right eye and conjunctival bleeding. The upper left central incisor tooth sustained a crown fracture.”

Dr Wilson recorded the Plaintiff’s complaints as sensitivity, particularly to cold of the upper and lower front teeth; numbness of gums around the lower teeth; inability to chew food effectively due to restricted jaw movement; sensory disturbance of the face which he related to the scalp flap; numbness of lower lip extending into the jaw on the left side; and facial disfigurement.

Dr Wilson costed the replacement every 10 to 15 years of three crowns viz $2,500 each. He said that the implant should last indefinitely but if replacement is required, the cost is about $3,000. THE CREDIBILITY OF THE PLAINTIFF:

The Plaintiff was in the witness box over a periods of 3 days. I have already indicated my acceptance of his evidence as to the events of the day of the accident.

Mr Jones submitted that to determine the facts of the case, it is necessary to determine the credibility of witnesses “and critically, the credibility of the Plaintiff”. I do not entirely accept the last part of this submission. Although the credibility of the Plaintiff is important, a large part of his evidence was not really in issue. A lot of it was virtually common ground.

Nonetheless, Mr Jones attacked the Plaintiff’s credit, relying for the purpose on a number of matters, including evidence that apparently for a few months he received “New Start” benefits to which he was not entitled as he was in employment a the time. This conduct was reprehensible but as far as I can glean the relevant period was relatively short and not a great deal of money was involved. I do not regard the matter as significant in determining his credibility.

Nor do any of the other matters relied on by Mr Jones seem to me of much significance, including arguably incorrect histories as to previous health, given to Mr Herrera; the apparent overstatement of the amount he spends on medication; and the apparent exaggeration of his involvement pre-accident in performing chores in and about his parents home.

In my opinion, the Plaintiff did his best to assist the court. This, of course, does not mean that I accept everything he said. Indeed, in my view, at times he understated his physical capacities but I do not think he did so deliberately. Rather, I accept the explanation given by Dr Eikens that he has limited coping resources and is depressed. In other words, as I understand it, he lacks the motivation to be more positive in seeking to overcome his very serious disabilities. It may be that his presentation in court indicates what he can be motivated to achieve, but I see no reason to conclude that he is always capable of always presenting in such a fashion. To do so would be, in effect, to find contrary to most of the medical evidence that he is a malingerer.

The fact is that his complaints and presentation since the accident, to his family, friends and medical practitioners, have, to my mind, been remarkably consistent and also consistent with his evidence. Even if it could be said that his wife, brothers and sister were biased in his favour, the same could not be said with equal force of such persons as his work colleagues, Sarkis Ibrahim and Philip Sakr and his friend Majad Haddad, let alone Dr Tint Way who has been seeing him for several months on a regular basis and Mr Herrera, who has been counselling him since September 2004.

In any event, I accept as credible all the lay witnesses who gave evidence in the Plaintiff’s case. INJURIES:

There is no issue as to the extent of the physical injuries suffered by the Plaintiff in the accident to his right arm, left wrist, right knee, face, jaw and head. I am satisfied that those injuries have left him scarred and with significant physical restrictions, substantially as he related. I am also satisfied that his personality has changed and he has lost the capacity to concentrate, as testified by Sharmaine.

I accept his evidence that he experiences pain from the sites of the bones fractured in the accident, including headaches, and that he experiences back pain, which on the probabilities, is related to the accident. As to back pain, in my view, the temporal connection, he having mentioned low back pain to Mr Herrera as early as September 2004, is compelling and I accept Dr Eikens’ explanation for its aetiology. Whether his reduced libido and the difficulties of his sexual relationship with his wife are physically based or arise from mental disorder, they constitute a very significant factor in the claim of a young man newly married. I am satisfied that this circumstance alone has already placed strains on the marriage, which cast doubt on its survival. I am further satisfied that he continues to experience a degree of diplopia,

A good deal of evidence was given as to whether the Plaintiff sustained organic brain damage. Medical evidence on the subject is not easy to reconcile.

As I understand it, markers suggesting brain damage, include multiple facial fractures, sudden bouts of irritability and anger and his very poor performance in the psychometric testing performed by Professor Sitharthan.

On the other hand, contrary indications include his presentation to Mr Knight and others at the “job club”; his presentation to Mr Rino Del Rosario; his presentation in court; his ability to find his way to medical appointments in unfamiliar locations far from home; and the fact that his cognitive functioning seemed unimpaired when he was examined by various psychiatrist and other medical experts.

In the result, I am not satisfied that organic brain damage was proved but even it were the damage was slight and probably not of great significance to the Plaintiff’s case, although one would think as a matter of common sense that it might render the manifestations of mental illness more intractable.

All psychiatrists, Mr Herrera, and Mr Field agreed that the Plaintiff suffers from diagnosable psychiatric illness within DSM IV. The labels attributed differed slightly but, on balance, I prefer those of the treating psychiatrist, Dr Tint Way, namely PTSD and chronic depression”.

By far the preponderance of the medical evidence is that the Plaintiff’s complaints are genuine and that he is not a malingerer. To the extent that Dr A Smith and Dr Ross Mills suggest otherwise, I reject their evidence, which is not only in conflict with other medical evidence but also conflicts with the evidence of the Plaintiff, himself, and lay witnesses whose evidence I accept. GENERAL DAMAGES AGAINST SOLIMAN:

The assessment of damages against Soliman is subject to the provisions of the Civil Liability Act. Division 3 of Part 2 regulates an award of damages for non economic loss.

The maximum amount which may be awarded is for the purposes of this case $442,000. That sum can only be awarded “ in a most extreme case”.

This is, in my view not a most extreme case, (nor did Mr Semmler submit that it is), and accordingly I must fix a percentage of a most extreme case under section 16 (3). In substance, I agree with Mr Semmler’s submission that a high percentage should be fixed having regard to the Plaintiff’s youth, the severity and multiplicity of his physical and mental injuries, the devastating impact they have had on his life and the rather bleak prognosis. However, I think 90% as suggested by Mr Semmler is substantially too high. Nor do I think that the percentage of 45% suggested by Mr Jones represents a realistic assessment.

In my opinion, a finding that the severity of his non-economic loss represents 75% of a most extreme case does justice to the parties. Such finding results in an award of $331,500. PAST OUT OF POCKET EXPENSES:

This was agreed at $178,136. “FOX v WOOD” ALLOWANCE:

The sum equivalent to income tax paid or payable upon workers compensation received by the Plaintiff and which he must repay to his former employer was agreed at $11,940. This sum constitutes part of the damages to which he is entitled against Soliman. PAST ECONOMIC LOSS:

Under this head, the Plaintiff claims $175,005 as calculated in the report of Mr Robert Nielson, chartered accountant, dated 9 November 2007, part of exhibit AT.

Mr Neilson’s report included these assumptions: “The Plaintiff would have continued to earn the income he was earning at the time he sustained his injuries until 1 January 2005, at which time his wages would have increased to $1,000 per week net ($1,404.00 per week gross on basis of 2005 income tax rates). The Plaintiff would have commenced employment as a self employed builder on 1 January 2007 and would have received a gross income from that employment of $1,301.00 per week gross (983.00) per week net based on 2007 rates) being the average of estimated gross incomes of a self employed builder over the age range from 20 to 64 years as set out in paragraph 81 Page 34 of the report of Mr Rodney Stinson dated 19 January 2007 (the Stinson Report).”

The Plaintiff’s evidence was that at the date of the accident he was earning $956 per week gross, which represents, according to Mr Neilson, approximately $725 net of income tax.

I am not prepared to find on the evidence that the Plaintiff would by now have become a project builder. I do accept, on the balance of probabilities however, that sometime in the period since the accident he would have become a contract carpenter, working on his own account.

In light of the evidence of Mr Sarkis Ibrahim as to his income in 2007, the absence of any records of the earning of comparable employees produced by Chubs despite a subpoena requiring such production, and other evidence of the earnings of carpenters, including the evidence of his brother Michael and the expert evidence of Mr Stinson, I think it would be reasonable to assume that but for the accident, the Plaintiff over the period since 18 June 2004, would have averaged a net income loss of $850 per week. On that basis his loss to 1 March this year is $164,050. I am satisfied that for the whole of that period the Plaintiff has been wholly incapacitated by the accident from earning income. LOST SUPERANNUATION BENEFITS:

The Plaintiff is entitled to lost superannuation on past earnings. It is impossible to be precise for reasons which include the fact that during the period, as I have found, the probability is that he would have become self employed and responsible for his own superannuation. Doing the best I can, I allow $13,000. LOSS OF FUTURE INCOME EARNING CAPACITY:

Although evidence in the trial to which I have referred was to the effect that the Plaintiff has a residual income earning capacity, the evidence also indicated that his present physical limitations are unlikely to improve, that the prognosis for his mental illness is, to say the least, guarded and that despite very considerable professional assistance by Active, he has been unable to find employment. I am satisfied that before the accident, he was highly motivated towards his career as a carpenter and in the building industry and that he was a willing and competent worker. I am also satisfied that he is anxious to return to the work force, although his motivation is probably affected by mental illness. For the purposes of s13 of the Civil Liability Act, I make the findings or assumptions that, but for the accident, the Plaintiff would have worked as a carpenter or otherwise in the building industry until retirement at age 65, and that he is permanently incapacitated from pursuing that occupation. On the other hand, Mr Jones submitted that the Plaintiff has a significant residual earning capacity in some other field, which he quantified at a little over 40%. He referred to expressions of opinion by medical experts, including Dr Mills. However, Dr Mills himself listed a number of restrictions which he regarded as appropriate and which, by their nature, I think, cast considerable doubt upon his optimistic outlook. Mr Semmler submitted that I should find that the Plaintiff is, in effect, unemployable on the open market. In all the circumstances, I think a realistic assessment of the Plaintiff’s residual earning capacity is 20%.

I do not think the evidence is sufficient to warrant a conclusion that the Plaintiff, despite his stated ambition, would have become a successful self-employed builder. However, as indicated, I am satisfied he had aptitude as a carpenter and that sometime, between 1 January 2005 and the date of this judgment, he would have become self-employed as such. Having regard to the evidence referred to in paragraph 458 above, I think it reasonable to base a calculation of his loss upon the sum of $1300 per week reduced by 20% to $1040. Applying 5% tables to that loss for the period until 9 January 2048 when he attains 65, using a multiplier of 894.4 produces $930.176.

There should be a deduction for vicissitudes which Mr Jones submitted, having regard to the vagaries of the building industry, should be 20%. However, while that is true and there are periods of recession, there are also periods of boom, I see no reason why the normal deduction of 15% should not be applied. On that basis I would award $790,650 compensation for future diminished earning capacity. INTEREST:

Interest is payable in accordance with s18 of the Civil Liability Act on the allowance for past economic loss, less the reimbursable payments made to the Plaintiff. I am unable to calculate the figure accurately from the evidence but doing the best I can, I allow $10,000. The parties will be given leave to apply in respect of the adjustment of this figure. PAST GRATUITOUS SERVICES:

I was informed that the parties have agreed upon the amount claimed by the Plaintiff viz $37,014. FUTURE DOMESTIC SERVICES:

There was a large measure of disagreement between the parties on this issue. I am satisfied that the Plaintiff to a greater extent than his siblings contributed to household chores both inside and outside when he was living with his parents before the accident. However, at least in the period immediately before the accident the other demands upon his time suggest that his recollection as to what he actually did is somewhat exaggerated.

However, its importance is that I accept his evidence that he and Sharmaine intended to share the household chores between them and that he would have played his part of the bargain. To a significant extent he is now unable to perform his share.

I am not persuaded that the Plaintiff needs anything like the 10 hours per week domestic assistance claimed. He lives in a small unit with a small garden. In my view, he is physically capable of performing some household chores which he apparently does not now attempt, particularly if he paces himself and uses appropriately designed implements. It would, however, I think be reasonable to allow a degree of paid domestic and garden assistance which he seems likely to require for the rest of his life. I would allow 3 hours per week at the hourly rate of $35, suggested by Mr Semmler. On the basis that he has a life expectancy of a further 61 years, the amount I award is $100,957. HOME MODIFICATION:

Evidence was given as to the cost of modifying the Plaintiff’s present home to meet his accident caused requirements. As the home is rented, it seems more likely that the Plaintiff will buy a new home and modify it. The cost quoted by Mr Strachan for the present house seemed somewhat excessive in the light of the cross-examination. I would allow, $10,000 for necessary modifications, which seems to be within the general range suggested by Mr Strachan. FUTURE MEDICAL TREATMENT and MEDICATION:

There was evidence that presently the Plaintiff pays about $30 per week for prescribed medication and Panadol. The prescribed medication comprises Cipramil, Epilim, Oxycontin and Stilnox.

Mr Semmler submitted that a sum should be allowed for the rest of the Plaintiff’s life while Mr Jones submitted that the allowance should be for 10 years only. There seems to me no particular reason for restricting the Plaintiff’s need to 10 years, but I think it reasonable to discount appreciably the sum of $30,660 claimed to $20,000. The Plaintiff’s claim of 4 visits per annum to a general practitioner was accepted by Mr Jones and $4,212 should be allowed.

The Plaintiff claims one orthopaedic attendance per annum for his elbow and one for his knee at a total cost of $132 per annum. There was no evidence that he has been regularly consulting an orthopaedic surgeon, and I accept Mr Jones submission that one visit per annum would be reasonable. I allow $1,289.

In relation to psychiatric treatment, Mr Semmler submitted: “There is abundant evidence in this case that the plaintiff will require an enormous amount of psychiatric assistance and support, not only to maintain his current diminished level of functioning, but also to treat deterioration in his mood, which may well occur because of the likelihood of long term unemployment and the real possibility that his wife may leave him.”

A claim was made for regular psychiatric consultations as recommended by both Dr Tint Way and Dr Jungfer, for the rest of the Plaintiff’s life. A costing of Dr Jungfer’s recommendation is $40,190 and of Dr Way’s $51,125.

Mr Jones submitted that the Plaintiff did not consult Dr Way until March 2007 and thereafter on an irregular basis. He proposed a global allowance of $5,000.

I agree that there should be an allowance for future psychiatric treatment, but I think it unreal to do so on the basis that the Plaintiff will continue to have treatment for the rest of his life expectancy, a period of more than 60 years. I allow $15,000.

The Plaintiff has been consulting Mr Herrera on a regular basis but his evidence was that the Plaintiff will only need therapy for another 6 to 8 months following the termination of the litigation. I agree with Mr Jones that some such limitation should be placed on the claim. The present cost per visit is $192. I will allow for 20 visits, namely $3,840.

Dr Buckley suggested that osteoarthritic changes in the Plaintiff’s knee will ultimately bring him to knee surgery. I think this prospect is more than speculative and, moreover, the multiplicity of the Plaintiff’s orthopaedic and other injuries persuades me that on the probabilities, he is likely to require further surgery at least once. I would allow $25,000 against the possibility of future surgical intervention.

Dr Eikens suggested that because of the medication he ingests, the Plaintiff should consult a gastroenterologist from time to time. On the basis of one consultation a year $3, 907 was claimed. Mr Jones pointed out that the Plaintiff has never seen a gastroenterologist but I think a small allowance is reasonable. I allow $2,000.

In light of my assessment that the Plaintiff has residual income earning capacity, there should be an allowance as sought by Mr Semmler for vocational rehabilitation. I would allow $5,000 as claimed.

Dr Jungfer suggested that the Plaintiff would benefit from attending a pain management course costed at between $7,000 and $8,000. Pain is clearly, in my view, one of the Plaintiff’s main problems and I think it would be beneficial for him to attend such a course. Mr Jones suggested instead that the “land based psychology/counselling course” suggested by Dr Mills would be more appropriate. Dr Mills did not accept that the Plaintiff suffered chronic pain.

In my opinion, the Plaintiff does suffer chronic pain and I do not accept Dr Mills’ opinion to the contrary. I think some allowance for pain management should be allowed, although the Plaintiff himself did not give firm evidence on the subject. I would award $5,000.

Regular blood test were suggested by Dr Tint Way to monitor liver functioning, having regard to the medication which the Plaintiff takes. A relatively modest amount of $8,240 is claimed. I think it is reasonable to make some allowance but there should be a substantial discount as the Plaintiff has not been having regular blood tests and may well decide not to have them on a regular basis in the future. I would allow $2,000

There is a claim for future physiotherapy. The Plaintiff presently attends twice a week to participate in a gymnasium program and hydrotherapy. The cost has been about $100 per week. The Plaintiff accepted that he is unlikely to continue the program for the rest of his life and it was suggested by Mr Semmler that an allowance of $20,000 would be reasonable.

In his evidence the Plaintiff doubted that the physiotherapy was helping him but, nonetheless, said he would continue the program arranged and would follow medical advice.

There should, I think, be some allowance for future physiotherapy but a relatively small one having regard to the Plaintiff’s attitude. I would allow $5,000.

Finally there was a claim by the Plaintiff for future travel expenses. I agree with Mr Semmler that the Plaintiff will be put to expense potentially over the rest of his life in travelling to medical appointments, health professionals for treatment etc. I think the sum of $5,000 suggested is reasonable and I allow it.

In the result, therefore, I award a total of $93,341 for future out of pocket expenses and medication etc. EQUIPMENT COSTS:

This subject was dealt with in the reports of Ms Walcot and Ms Sandford and has been partly dealt with under the heading of Home Modification above. In my assessment, the Plaintiff does not need and it would be unreasonable to require Soliman to pay for many of the items suggested by Ms Walcot and Ms Sandford. However, I agree with Mr Semmler that the need for a number of the items was established. I would allow from Ms Walcot’s report for a handheld shower hose, $70, an adjustable height shower stool $119, a long handled sponge $42, a long handled toe wiper, $27, a long handled shoe horn $8, a dressing stick $48, a laundry trolley $40, cook set $299, travel iron, $59, Homecraft cooking basket $85, long handled dustpan and brush $23, battery powered upright vacuum cleaner $129, peg less clothes line $20, kettle tipper $64, Etac relieve knife – smooth $49, Etac relieve knife serrated $49, Y peeler $10 Seiger can opener $69, and Dycem jar opener $149, Therapod height adjustable posture chair, $920, car accessories $1,000, and car seat insert $135. These items total $3,414. However, he will no doubt over the years identify other items which will assist his living requirements and have some causal relationship to the accident. I would allow a further $3,800 making in all an allowance for equipment of $7,214, which I round up to $7,250. SUMMARY OF DAMAGES AGAINST SOLIMAN: Non Economic Loss . . . . $331,500 Past out of Pocket Expenses . . . $178,136 “Fox v Wood” Allowance . . . . $ 11, 940 Past Economic Loss . . . . $164,050 Loss of Past Superannuation . . $ 13,000 Compensation Future Diminished Earning Capacity . . . . . $790,650 Interest on Past Economic Loss . . . $ 10,000 Past Gratuitous Services . . . $ 37,014 Future Domestic Assistance . . . $100,957 House Modification . . . . . $ 10,000 Future Medical Treatment and Medication etc. . $ 93,341 Equipment . . . . . . $ 7,250 TOTAL:. . . . . . . $1,747,838

In accordance with my finding of contributory negligence, the above damages should be reduced by 10% to $1,573,054. DAMAGES AGAINST CHUBS:

By virtue of section 151 G of the Workers Compensation Act , in his action against Chubs, the Plaintiff is only entitled to damages in respect of past and future economic loss which in this case are constituted as follows: Past Economic Loss . . . . . $164,050 Interest on Past Loss . . . . . $ 10,000 Superannuation Loss . . . . . $ 13,000 “Fox v Wood” component . . . . $ 11,940 Future Economic Loss . . . . . $790,650 TOTAL . . . . . . $989,640 That sum would also be reduced by 10% for contributory negligence to $890,676. CONCLUSION and ORDERS:

It follows from my findings that the Plaintiff is entitled to a verdict against Chubs for $890,676 less the payments it has made under the Workers Compensation Act as pleaded in paragraph 10 of its Defence.

Damages have been assessed against Soliman in the sum of $1,573,054 but those damages are to be reduced in accordance with s151 Z (2) (c) of the Workers Compensation Act. On the basis of my apportionment of liability as to 75% to Soliman and 25 % to Chubs. Soliman would be entitled to contribution from Chubs but for the provisions of Part 5 of the Workers Compensation Act in the sum of $393,263. However, for the purposes of s151 Z (2)(c), I must also calculate the amount of contribution to which Soliman is actually entitled, namely, in accordance with s151 Z (2)(d), “as if the whole of the damages were assessed in accordance with provisions of Division 3 as to the award of damages”.

Soliman’s actual entitlement to contribution is therefore 25% of $890,676 viz $222,669. In accordance with s151 Z (2)(c) and authorities upon it, the Plaintiff’s damages against Soliman must be reduced by the difference between $393,263 and $222,690 viz $170,594 to the sum of $1,402,460 (See e.g. Leonard v Smith (1992) 27 NSWLR 5 and Goljak v Trivan Pty Ltd (1994) 35 NSWLR 82 ).

Contrary to what seems to be suggested in Mr Jones’ written submissions, the Plaintiff is entitled to a verdict for the full amount of the damages awarded against each defendant ( Glynn v Challenge Recruitment Australia Pty Ltd [2006] NSWCA 203).

There should be a verdict against Soliman for $1,402,460 and a verdict against Chubs for $890,676, less the total of the payments made by it under the Workers Compensation Act.

On its Cross Claim, or pursuant to s5 of the Law Reform (Miscellaneous Provisions) Act 1946 Soliman is entitled to a verdict against Chubs for $222,669. Its Cross Claim against Atra should be dismissed with no order as to costs.

Soliman and Chubs should be ordered to pay the Plaintiff's costs. I would declare that as between themselves the costs should be borne as to 75% by Soliman and 25% by Chubs.

My provisional view is that there should be no order as to the costs of the cross claim by Soliman against Chubs, but I will reserve the question for further argument if the parties are so minded.

The only order I make now is that the matter stand over until Monday 10 March at 9.30 am. I invite the parties to agree in the meantime on minutes of order which reflect these reasons. O0O