Brett v Rees
[2008] WADC 9
•1 FEBRUARY 2008
BRETT -v- REES & ANOR [2008] WADC 9
| Link to Appeal : | [2009] WASCA 159 |
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2008] WADC 9 | |
| Case No: | CIV:2259/2002 | 22-25 OCTOBER 2007 | |
| Coram: | MAZZA DCJ | 31/01/08 | |
| PERTH | |||
| 32 | Judgment Part: | 1 of 1 | |
| Result: | Plaintiff's claim dismissed | ||
| PDF Version |
| Parties: | BRENDAN FRANCIS BRETT RANDALL JAMES REES AMERETTO PTY LTD |
Catchwords: | Torts Negligence Plaintiff injured as a result of falling off a ladder leant against a door which First Defendant opened Whether defendants negligent Negligence not proved Provisional assessment of damages Turns on own facts |
Legislation: | Nil |
Case References: | Jongen v CSR Ltd (1992) Aust Tort Reports 81-192 Nagle v Rottnest Island Board (1993) 177 CLR 423 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
RANDALL JAMES REES
First Defendant
AMERETTO PTY LTD
Second Defendant
Catchwords:
Torts - Negligence - Plaintiff injured as a result of falling off a ladder leant against a door which First Defendant opened - Whether defendants negligent - Negligence not proved - Provisional assessment of damages - Turns on own facts
Legislation:
Nil
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Result:
Plaintiff's claim dismissed
Representation:
Counsel:
Plaintiff : Mr B G Bradley
First Defendant : Mr J R Criddle
Second Defendant : Mr J R Criddle
Solicitors:
Plaintiff : Bradley Bayly Legal
First Defendant : SRB Legal
Second Defendant : SRB Legal
Case(s) referred to in judgment(s):
Jongen v CSR Ltd (1992) Aust Tort Reports 81-192
Nagle v Rottnest Island Board (1993) 177 CLR 423
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1 MAZZA DCJ: The plaintiff, an electrician, sues the first defendant, a floor sander and the second defendant as the first defendant's employer, for negligence arising out of an accident in the grounds of Cable Beach Resort, Broome, at about 6.10 am on 23 March 2000.
2 Both liability and quantum are in dispute.
Background
3 Cable Beach Resort is a well-known resort in Broome which opened in 1988. In 2000 the resort had within its grounds 84 accommodation bungalows. In 1999 it was decided to renovate between 30 to 34 of the bungalows. The bungalows were designed in 1987 and built in an "old Broome style" which includes a central bedroom with a surrounding verandah. The verandah windows were covered by flywire and shutters but not glass. Externally, around all areas of the bungalow, except the wet areas, was latticework up to a level of approximately 900 millimetres. Each bungalow had a front door which was the only way in and out of the building. This door opened inwards. It could be opened with a key from the outside and by a latch from the inside. The living areas of each bungalow had timber flooring.
4 In general terms, the bungalows which were to be renovated were to be extended by 700 millimetres at both the front and the back. This enabled an en suite bathroom to be built at the back and a larger lounge, dining and entry area at the front. In addition, the flywire in the windows was to be replaced by sliding glass. Timber flooring designed to match the existing floors was to be laid down in the extended front area. According to one of the architect's plans for the renovations, Exhibit 2, the original entry stairs, shutters and shutter hardware were to be used in the new front façade. Although not specifically mentioned in any of the plans tendered before me, it appears that the front façade built in 1987 or 1988 was to be demolished and a new façade built 700 millimetres in front of it. The new façade was to generally match the old façade in appearance, materials, finish and details.
5 Fini Group Pty Ltd were retained to build the renovations, which included the installation of new electrical works. Fini Group subcontracted these electrical works to Amec Engineering Pty Limited (Amec) who retained a labour hire company, Win Technical Resources Pty Ltd (Win), to supply some of the electricians to work on the project.
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6 The plaintiff was employed by Win on 17 March 2000 and arrangements were made for him to fly to Broome on 19 March 2000. He started work on the project the next day.
7 The plaintiff worked under the direction of both Eddie Dwyer, who was Amec's supervisor, and Toby Harris, who was employed by Win.
8 During the first couple of days of working on the site the plaintiff noted that apart from electrical work, other work was being performed by painters and floor sanders.
9 At some stage on 21 March 2000, the plaintiff began to install sensor lights on a group of perhaps six or seven bungalows. That work involved the installation of a sensor unit and a light which was connected to the sensor unit.
10 On 22 March 2000 the plaintiff mounted the sensor unit underneath the eaves at the peak of the roofline at the front of bungalow 123. He then clipped cable leading from the sensor unit as far as the light fitting but he was not able to mount the light into its position above the front door because he did not have a drill to drill holes into which the light fitting would be screwed. The plaintiff marked the position he wanted to drill and left the light fitting dangling with the intention of coming back early the next morning, Thursday, 23 March 2000, to fix it into position.
Events of 23 March 2000
11 At about 5.55 am on 23 March 2000 the plaintiff went to a bungalow which was being used as a storeroom to get the tools that he needed to finish installing the light at bungalow 123. He anticipated that it would not take long, something less than five minutes, to complete the task.
12 The plaintiff got the tools that he needed, including a battery drill and an electrician's wooden A-frame ladder which was 1.8 metres (6 feet) high.
13 The plaintiff then went to another bungalow, and then he went to bungalow 123. At that time the bungalow was locked and the person from Fini Group with the key to the bungalow had not yet arrived on site.
14 The events leading up to the accident are in dispute and I will deal with this dispute shortly. However, there is no dispute that the plaintiff shortly after arriving at bungalow 123, placed the feet of the A-frame ladder on the top step of the entry stairs to the bungalow and positioned
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- the ladder in its closed position so that the top of the ladder leant against and was supported by the front door of the bungalow.
15 The plaintiff went up the ladder and drilled two holes. While he was up the ladder, but before he had finished installing the light, the first defendant opened the front door inwards. As a result, the ladder dropped inwards and the plaintiff fell backwards, landing heavily on his left shoulder. The impact of the fall caused the plaintiff to suffer a serious and debilitating left shoulder injury which has, it is conceded by the defendants, impacted adversely upon his life and in particular upon his earning capacity.
The pleadings
16 In his statement of claim at trial, the plaintiff set out the circumstances of the accident as follows:
"4. At about 6.10 am on 23 March 2000 at Cable Beach Resort, Broome:
(i) the Plaintiff at the direction of the Third Defendant (Amec) and in the course of his employment with Win and pursuant to the labour hire agreement pleaded in paragraph 3(ii) hereof arrived at bungalow 123 to work on the project to complete the installation of a security light above the front door;
(ii) [Amec] had provided the Plaintiff was an A-frame ladder of approximately 2 metres in length for the task;
(iii) bungalow 123 was unoccupied at the time and the front door was locked thereby preventing the Plaintiff from opening out the legs of the A-frame ladder;
(iv) in order to carry out the task the Plaintiff leant the A-frame ladder against the front door of the bungalow and then ascended the ladder and commenced work on the security light;
(v) whilst the Plaintiff was so working the First Defendant in the course of his employment with the Second Defendant passed by the Plaintiff and
- the ladder and entered the bungalow through a window which the First Defendant had forced open;
- (vi) immediately prior to the First Defendant entering the bungalow the Plaintiff warned him not to open the door whilst the Plaintiff was still on the ladder;
(vii) shortly afterwards and whilst the Plaintiff was standing on the ladder the First Defendant in the course of his said employment opened the front door to the bungalow without warning to the Plaintiff;
(viii) by reason of the opening of the door the ladder collapsed causing the Plaintiff to fall heavily outside the bungalow ("the accident");
(ix) the Plaintiff thereby suffered pain and injury."
17 The plea of negligence against both the first and second defendant is essentially the same and is expressed as follows:
"6A The accident and the Plaintiff's pain and injuries as pleaded aforesaid were caused by the negligence of the First Defendant.
Particulars
The First Defendant was negligent in that he:
(i) opened the front door to the bungalow when he knew or should have known that the Plaintiff was on the ladder which was leaning against the door;
(ii) failed to heed the warning from the Plaintiff made a short time beforehand not to open the door;
(iii) failed to locate and use the keys to open the front door so as to enter the bungalow in a normal manner;
(iv) entered the bungalow by forcing open a side window;
- (v) failed to check by looking out the window or otherwise that the Plaintiff was not on the ladder before opening the door;
(vi) failed to warn the Plaintiff of his intention to open the door."
18 The circumstances of the accident from the defendants' perspective are set out in the defences filed by both the first and second defendants in par 4.5. That paragraph is in the following terms:
"4.5 [the first defendant] when he walked passed the Plaintiff:
4.5.1 [saw] the Plaintiff was looking into a tool box located on the footpath;
4.5.2 the A-frame ladder was not resting against the door of bungalow 123;
4.5.3 he was unaware of the Plaintiff's trade, nor did he know what task the Plaintiff was intending to embark upon;
4.5.4 the Plaintiff was unaware of the First Defendant's trade, nor did he know where the First Defendant was travelling to."
20 The position of both defendants is that they are not liable because, the first defendant was not negligent.
21 Mr Bradley, on behalf of the plaintiff, submitted that I should be satisfied on the balance of probabilities that the plaintiff's account of events is true. But in the alternative, submitted that even if I accepted that the accident happened in the way that the defendant described in his evidence, the defendants would nevertheless be negligent.
22 Mr Criddle, on behalf of the first and second defendant, properly conceded that if I was satisfied on the balance of probabilities that the accident happened in the circumstances pleaded by the plaintiff in par 4, the plaintiff would have established negligence against both the first and
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- second defendants. However, he submitted that the plaintiff was not a credible witness and that I should reject his version of events. He submitted that the first defendant's version of events ought be accepted and that if I did, I must conclude that the defendants were not liable because the first defendant could not reasonably have known or foreseen that the plaintiff was on a ladder leant up against the front door of bungalow 123.
Factual issues for me to determine on the question of liability
23 The first issue for me to determine is whether the plaintiff has established, on the balance of probabilities, that the accident occurred in the circumstances he alleges? If so, the plaintiff must succeed on the question of liability. However, if the plaintiff fails in this regard and I am satisfied that the accident occurred in the circumstances alleged by the first defendant, are the defendants, nevertheless, liable?
Credibility looms large
24 It is obvious that the credibility of the plaintiff and the first defendant is critical to the outcome of this case.
25 Apart from the evidence of the plaintiff and the first defendant, there are no other witnesses to the accident or the events immediately before it. As will become clear, a major difference between the plaintiff and the defendant is the state of the renovation at bungalow 123 on the date of the accident. Surprisingly, given that the plaintiff was seriously injured, no-one appears to have taken any photographs of the area in which the accident occurred on or shortly after 23 March 2000. The only photographic evidence that I have been presented with is Exhibit 1 which is a book of photographs taken by the plaintiff approximately one month before trial, that is, some 7½ years after the accident took place and when the renovations had long been completed. Exhibit 2, while helpful in ascertaining the nature of the works in the renovations, does not tell me anything about the actual state of the front area of bungalow 123 on the date of the accident.
26 I heard from other witnesses who were working at the Resort at the time of the accident. Although they gave evidence concerning the work that they were doing at the Resort in general terms, only one, Toby Harris testified as to the state of the renovation on bungalow 123 as at the date of the accident and that testimony was understandably vague given the 7½ years which has passed since the accident. The passing of time and its eroding effect on memory is something which I have been acutely aware
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- of in judging the credibility of the parties and those who testified about the events surrounding the accident.
27 Given all these matters, the task of resolving what led to the plaintiff's fall from the ladder is an unenviable one but one which I must do as best I can in light of the evidence the parties have put before me.
The evidence as to the circumstances of the accident
The plaintiff
28 The plaintiff said that when he got to bungalow 123 early on 23 March 2000 he found the front door locked. He said that no-one was inside and he checked that by knocking at the front door, calling out and looking in through the windows.
29 He said that he went up the small flight of entry stairs onto a space he described as a verandah formed by two walls separated by no more than 700 millimetres where he opened the legs of the ladder sideways in front of the internal doorway over which he wanted to fit the light. However, he found that the space was too narrow for the width of the ladder and so he was unable to mount it sideways. The plaintiff in his evidence drew a sketch on the Court's whiteboard which was photographed and became Exhibit 10. That sketch shows the stairs, the two walls and the position where the plaintiff tried to position the ladder.
30 The plaintiff said that he then closed up the legs of the ladder and leant it against the front door of the internal wall. He said that the feet of the ladder were on the top entry step.
31 At T 38 and 39 the plaintiff described what happened to him in the following terms:
"Can you explain to his Honour what you did and what happened from that moment onwards?---Okay. I put it against the door and I climbed up on it and checked that it was safe and there was no problem. I didn't have to get up very high at all. I was able to climb up and I had the holes marked, so I drilled my two holes. While I was on the ladder, this man came up behind me and he asked me if I had a key. I know him, that was Mr Randall Rees. He came up behind me and he asked me if I had a key. I said 'No. That you will probably have to hangaround for 15 minutes', and with that he came up alongside me, I had the ladder up against there, he came in alongside and - - -
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- Are you indicating – which side are you indicating – he came to which side of you?---He came onto the right-hand side and I had the stepladder here and he was crouching up along, so I stepped down off the ladder and allowed him in, and he moved in here to this, which - - -
So you're indicating there with your finger that he went in through the open space?---Up the steps - - -
- - - at the front - - -?---Yes.
- - - door and moved to the right-hand side along this narrow verandah?---Yes.
Yes?---Okay. He moved into the right-hand side in it and he checked the windows in it and I was on the ladder again, I had stepped back up on it, and he came over then – I think he was looking for an open window, but otherwise it must have been closed – he came over to my ladder and he crouched down. My ladder was up against the door and he crouched down as if to get under it, so I stepped down off the ladder again and took my ladder off the door – to get out, so as he could easily pass. So he moved over to this side, the left-hand side of the verandah and I stepped back up on my ladder again and he said, 'This window on the side is open'. He said, 'I'm going to hop in through the window on it'. I immediately said to him, 'Just be aware' – I said – 'if you're going to hop in there – just my ladder is up against the door on it', and he - - -
Can you remember the – I know it's a long time ago, but if you can't remember, say you can't?---Yes.
But as you sit here now, do you remember the words you used to Mr Rees?---Yes. Yes, I said to him – I can remember, it's burnt in my mind, that particular time. I said to him – I was on the ladder and I said to him, 'If you want to hop in through the window just be aware' – and I tapped the ladder – I said, 'Just be aware I have got this up against the door on it', he said, 'Okay, okay, you will be fine', and he carried on in through the door (sic), so I went up then and was putting in the two screws on it and he was insider there, he was walking around in it and it was then two minutes and the door swung open and he – again, I fell back down the steps and I think I put up my hand to break my fall, I think my elbow went into the ground and it caused all the
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- weight then on the shoulder. It snapped my elbow – my shoulder.
You're looking at, you're patting your left shoulder?---Yes, and as I say, he came out afterwards and he was very apologetic and he said how sorry he was and he said that he completely forgot. I was rolling in the agony for a while on the ground and it was – it took me a while to get composed. It was very painful, I thought my back was broken as well. Mr Rees then – he asked me – when I sort of stabilised a bit, he asked me what I wanted him to do. I asked him to get Toby, and while I was there I can remember just moving my toes. I thought my back was broken. So he went to – he got Toby then, and Toby – he arrived and some of the guys were with him, and Toby then rang Eddie and Eddie arrived about 10 minutes later. The workmen then helped me to my feet and I was put into Eddie's car and Eddie took me to the hospital."
32 The first defendant said that because he did not have keys to any of the bungalows he adopted a system where he left a rear window slightly open to climb through early in the morning in order to get into a bungalow and start work. The first defendant's account of the events leading up to the plaintiff's injury is starkly different to that of the plaintiff and is set out between T 176 through to T 178:
"As at 23 March 2000, which is the date on which Mr Brett was involved in the accident, which units were you working on?---In total?
Yes?---Or this particular one?
One the date of the accident, which units were your team working? Do you know the answer to that?---I can only answer one of those units.
Right?---And that was 122.
Where was the generator placed on 23 March 2000?---It was placed between units 121 and 120.
Can you tell the court what happened on the morning of 23 March 2000?---I got up early that morning and, as was my routine for the day, I would go and check the oil and the filters and the fuel on the generator – as the hirer that was my
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- responsibility – and I walked out of my unit and around the pathway in between 131, 124 leading me around unit 123, walking down then in between the carpark, which is the grey area, 123 and 122 down to 121, and there was somebody kneeling down by his toolbox to the left-hand side of 122 and there was a small ladder leaning against the handrail on the right-hand side, and then I just walked passed him and proceeded to get on with the job that I had to do because people were starting to want to get to site to do their work by about 6 o'clock.
You say that you walked passed 122 and you saw someone in the front of that unit?---Yes, I did.
What was that person doing?---Kneeling over a toolbox – bending over a toolbox - in the crouch position.
Was anything said by either you or this gentleman who was leaning over the toolbox?---As I recall it would have only been in my character to have said 'G'day' and moved on because I was in a hurry to attend to what I had to do.
So you said that you walked past him?---Yes.
And you went to the generator?---Yes.
What did you do at the generator?---I checked the oil, the filters, and the fuel. I also had to check the battery status as well to make sure that it would start, and all you do is turn a key and the light comes on to say that it's charged sufficiently to start it.
Right, and how much time would have been involved in that process of checking the generator?---Probably three minutes at the outside as that's all I had to do to it on that day.
What did you then do after you had finished checking the generator?---I walked around the back of unit 121 and got in the rear window of 122.
How did you get into the rear window of 122?---I would lift the awning which was left unlocked and stepped up on to the – pushed the window aside and stepped up onto the building and climbed through the window.
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- Right, what did you then do when you were in the building?---I obviously walked around to make sure that whatever stage of the process was being checked that particular morning, ready for the next stage to proceed with that day that everything was ready to go ahead.
From the point where you entered the bungalow, did you have any view of the front of the bungalow?---None at all.
What did you then do?---I just walked out of the building.
All right, how did you walk out?---Through the only door which opened inwards.
What happened when you opened the door?---The ladder fell against my head and then I saw the plaintiff on the ground.
Right. So you said the ladder struck you?---Yes, it did.
Where?---On the head.
Which part of your head?---I think it was about the right-hand side of the head.
Prior to opening the door, were you conscious of anybody being outside the door?---Not at all."
The cross-examination of the plaintiff and the first defendant
33 In cross-examination the plaintiff was adamant that there were two walls at the front of bungalow 123 separated by an area something less than 700 millimetres which he referred to as a verandah. Prior to the trial, he had a model of bungalow 123 made which was admitted into evidence as Exhibit 3 and which the plaintiff described as "pretty close" to the layout of bungalow 123 as he remembered it. That model shows clearly two walls parallel to each other at the front of the bungalow.
34 The plaintiff said that as he recalled it, the inside wall had windows but he did not think that the outside windows were in place. In the model there is clear plastic in the windows of the inside wall suggesting to me that they were glazed.
35 The plaintiff confirmed that so far as the outside wall was concerned, the door was missing from the outside entrance and the gable was in place but he did not recall the latticework being fixed to the outside wall,
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- although there was latticework on the inside wall. He said that there was a roof covering the verandah and that it extended to covering the outside gable. He was unsure about the internal roof supports.
36 As I have said, the plaintiff regarded the area between the internal and external wall as a verandah. He said that all of the bungalows that he had seen had a verandah as he described it: T 85 and T 95. He said that he assumed that the outside wall was to be finished before the inside wall was taken out: T 110.
37 The plaintiff said that the gable of the inside wall was glazed.
38 In cross-examination, the plaintiff was firm that there was an internal wall as well as an external wall and that the first defendant had initially attempted to enter the bungalow via a window to the plaintiff's right and then entered the bungalow through a window to the plaintiff's left. Mr Criddle asked about the nature of the window. He said the first defendant opened "whatever was there": T 114.
39 In Mr Bradley's cross-examination of the first defendant he concentrated very much on the number of the bungalow in which the first defendant said he entered. The first defendant was adamant that he did not enter the bungalow through a front window and that he entered through a window at the rear right-hand corner of the building from the perspective of someone facing the back of the bungalow.
40 The first defendant confirmed the plaintiff's evidence that the bungalows were "handed". That is, although they were all the same design, the location of the wet areas varied between bungalows so that in some bungalows the wet areas were on the right-hand side and in others the left-hand side. The rear external windows were, as I understood it, always on the opposite end to the wet area.
41 Although the first defendant was not able to recall whether bungalows 122 and 123 were handed bungalows, it was agreed by the parties that they were.
42 As I have said, the first defendant agreed that he entered the bungalow at which the plaintiff was injured by the rear right-hand window. That being the case and given that bungalow 122 is a handed bungalow, that is, the rear window was on the left-hand rear wall of that bungalow, there is no doubt that the first defendant entered bungalow 123 and that he was incorrect in his evidence and in his statement of defence when he stated that he entered bungalow 122 and that bungalow 122 is
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- where the plaintiff was injured. In his closing address, Mr Criddle conceded as much.
43 The first defendant said that there was no internal wall behind the outside wall.
44 The first defendant said the reason that he went to the bungalow (which I find to be bungalow 123) is that he wanted to inspect the work that had already been done in that bungalow to make sure that the next stage in the sanding process was ready to proceed. The first defendant said that he entered the bungalow and that he inspected the bungalow before exiting via the front door. He said that there was no internal wall behind the front wall in any of the bungalows that he had worked on.
45 The first defendant made the point that one of the tasks he had to perform was to sand the new timber flooring in the area in which the bungalow had been extended so that it was even with the old timber flooring. This task could not be performed with an internal wall present.
Evidence of other witnesses on liability
Toby Harris
46 Toby Harris was a leading hand employed by Win and was the plaintiff's immediate supervisor. He was called on behalf of the plaintiff. He was told of the plaintiff's accident very shortly after it occurred and he went to bungalow 123. He saw the plaintiff outside that bungalow in a plainly injured state.
47 In cross-examination Mr Harris said he thought that some of the bungalows being extended were 123, 122, 127, 126 and 10.
48 He said that he did not have a very clear recollection of the structure of the bungalows that were being extended. He said that he recalled that the flooring for the extension was down and that the frontage was back from the edge of the extended flooring by about half to three-quarters of a metre. He did not recall any front wall being in place. However, he did say that he did not think that a person could just step on to the verandah but he could not recall the reason why this was. Mr Harris was frank in saying that he was having problems recalling what he saw on the day of the accident because he had been to Cable Beach Resort since the accident. He volunteered that he might be confusing what he saw on later visits with what he saw on the day of the accident.
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49 Mr Harris said that he had no recollection of any internal front wall remaining after the external wall was built.
Susan Thom
50 Ms Susan Thom, who has worked at Cable Beach Resort since 1988, confirmed the general nature of the renovations and the state of the external windows prior to those renovations. She did not give any evidence about the accident or the structure of bungalow 123 on 23 March 2000.
Marcus David Lakey
51 Mr Lakey testified on behalf of the first defendant. At the time he was employed by the second defendant and worked on the Cable Beach project. He said that he operated the drum sanding machine which was operated in the first stage of the floor sanding process.
52 He confirmed that there was an arrangement in place allowing him to access a bungalow that he was working without a key via a back window.
53 Mr Lakey said that part of the task of sanding the extended bungalows was to ensure that the new flooring matched the old flooring. He said that in the bungalows that he worked on there were no walls between the old and new flooring. He said that it would not have been possible to sand the new and the old flooring with a wall separating the two areas. At p 164 he described the reasons for this as follows:
"If there was a wall there, that would've been gone before we got there because you can't, sort of, sand half a floor, knock out the door and do the other half of the floor because it just doesn't work because you get black marks on your coatings, you can't do cross-cuts so everything was already for us to go."
54 Mr Lakey did not give evidence that he had specifically worked on bungalow 123. His evidence was as to the general state of the bungalows that he worked on.
Maree Charmaine Rees
55 Mrs Rees is the first defendant's wife and she went to Cable Beach Resort to assist in the floor sanding work there.
56 She said that when she got there all the structural alterations had been done to enable the floor sanding to proceed. She said that there was nothing between the old and new flooring in the renovated bungalows. It
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- is clear from her description of the internal layout of the bungalows that there was no internal wall just behind the external wall. At pp 195 and 196 the following exchange took place:
"Mr Criddle: During the period you were at the resort, did you at any time come across a wall that was still in place 70 centimetres from the front of the building?---No.
Mazza DCJ: That means inside, on the inside.
Mr Criddle: Further inside from the front of the building?---No."
Submissions on the question of credibility
58 Mr Bradley submitted that I should prefer the evidence of the plaintiff over that of the first defendant.
59 Mr Bradley was critical of the first defendant for testifying that the bungalow into which he entered and then opened the front door thereby injuring the plaintiff was bungalow 122 and not bungalow 123. Mr Bradley submitted that this was not a genuine mistake.
60 Mr Bradley submitted that the plaintiff's evidence that on 23 March 2000 there were two walls at the front of bungalow 123 separated by approximately 700 millimetres was accurate. Mr Bradley said that to some extent, the plaintiff's evidence was supported by Mr Toby Harris.
61 Mr Criddle on behalf of the first defendant submitted that the plaintiff had reconstructed events to suit his claim. He submitted that there was no evidence of two walls at the front of the bungalow and that the plaintiff's insistence that there were two walls was a matter which would cause me to not accept the evidence of the plaintiff.
62 As to the first defendant's evidence, Mr Criddle submitted that while the first defendant got the bungalow number wrong, that was a simple error and one which should not impact adversely on his credibility. Mr Criddle submitted that the first defendant's account of events should be accepted by me.
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Analysis and findings of fact on liability
63 I am satisfied that the plaintiff was injured at bungalow 123. I accept the evidence of the plaintiff and of Mr Harris in this regard and it seems to me that the first defendant's evidence as to the location of the rear window in which he entered the bungalow confirms this fact. I further find, based on the evidence of the plaintiff, Mr Harris and the first defendant that the bungalow was one of those that was being renovated.
64 In my opinion, the floor of bungalow 123 was probably in the process of being sanded on the day of the accident. I have come to this conclusion because I accept the first defendant's statement at T 178 where he said that he, upon entering the bungalow, walked around it to make sure that whatever stage of the process was being checked that morning everything was ready to go ahead. The answer implies that the sanding process had already begun, albeit that the first defendant could not remember the precise stage that the floor sanding process had reached.
65 Based on the evidence of both the first defendant and Mr Lakey, I find that as the sanding process had begun, it was most likely that the system of allowing entry into the bungalows by way of a back window was in place. That is, that a back window had been left open so that initial entry into the bungalow at the beginning of the working day could be effected via that window.
66 In my opinion, as at 23 March 2000, the renovations generally to the bungalows were at a point where the old front wall of each bungalow had been removed leaving a newly constructed front wall. My conclusion and findings with respect to this is based on a number of factors, namely:
1. The general evidence of Mr Lakey and Mrs Rees that there were no internal front walls in the bungalows in which they worked.
2. It would not make sense for floor sanders to work on any bungalow where the old front wall was present. Based on the evidence of Mr Lakey and the first defendant, it would be impractical for floor sanders to perform their work in those circumstances. Given my finding that the floor sanding had begun, in bungalow 123, the renovations must have been at a point where the extended wooden flooring was down and the old front wall had been removed.
3. No-one, apart from the plaintiff, testified that there were two walls at the front of bungalow 123 approximately 700 millimetres apart. Mr Harris gave evidence and indeed drew a sketch of his
- recollection of the front of bungalow 123 on 23 March 2000. That sketch and his description of the front of the bungalow is not consistent with the plaintiff's description. I recognise that Mr Harris said that according to his recollection, the extended floorboards were in place or as he described it "sunken back". I further recognise that he said that, for some reason that he was unable to recall, a person could not just step on to the verandah from the ground. That statement might suggest that there was some kind of railing at the least on the verandah according to Mr Harris. Mr Bradley submitted that it might have been suggestive of a more substantial structure.
- In my opinion, Mr Harris's evidence is too vague and unclear for it to support the plaintiff's contention that there were two walls at the front of bungalow 123 on 23 March 2000. I have also borne in mind that Mr Harris's recollection of the structure of bungalow 123 may have been affected by his subsequent visits to the Cable Beach Resort.
67 It follows from what I have just said that I am satisfied that the plaintiff's testimony concerning the existence of the two walls at the front of the bungalow separated by approximately 700 millimetres is incorrect.
68 What effect does this finding have upon the plaintiff's case?
69 It does not necessarily follow that because I have found that the plaintiff was wrong in his description of the two walls at the front of bungalow 123 on 23 March 2000 that his case fails. It might conceivably be that I could accept his account to the extent that the first defendant entered the bungalow through the left-hand front window of the only external wall to the bungalow at a time when the plaintiff was up a ladder against the front door. I might also accept that the plaintiff warned the first defendant not to open the door.
70 While I am aware that I could, notwithstanding the plaintiff's mistake, accept his evidence about the way that the first defendant entered the bungalow, I decline to do so.
71 The plaintiff's account of the two internal walls went very much to the heart of his evidence. He described, in some detail, how he was unable to place the ladder on the area that he described as the verandah because the ladder was too wide for the two walls. He described how although there were windows on the inside wall he did not think that the
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- outside windows were in place and described how the outside entrance gable was in place as was the roof.
72 In my opinion, the plaintiff was badly mistaken as to the state of the front of the bungalow. Such a bad error has left me totally unconvinced of his account of the events of the morning insofar as they relate to the first defendant's actions. I am not satisfied that the first defendant entered the bungalow through a front window or that the plaintiff gave the first defendant a warning or saw him prior to the accident.
73 There are two further aspects of the plaintiff's evidence which I must mention because they have influenced the way in which I have made my finding as to the plaintiff's credibility.
74 The first is that the plaintiff said that when he was up on the ladder fixing the light, there was glass at the rear of the lattice in the gable. This indicated to me that the plaintiff was actually working on the new front entrance rather than the old one. I say this because according to the plans of the bungalow as they were built in 1987 or 1988 there was no glass behind the gable but, according to the plan of the renovations, there was a note in these terms "Bead single sheets of glass internally to latticed areas around door and in gable". I think therefore that it is highly likely that the plaintiff was not fixing a light on the old and internal front entrance but rather on the new and extended front entrance. That being the case, and accepting as I do that the plaintiff leant his ladder up against the front door, that front door was the renovated one and not the old one contrary to the plaintiff's evidence.
75 Further, I do not accept the plaintiff's evidence that he thought that he had to fix a light to the internal entrance and not the external entrance. I realise as to this that the plaintiff said he was mistaken, but it seems to me that it was an implausible mistake. If, as the plaintiff describes there were two entrances, and as he knew, the internal entrance was to be demolished, it does not make sense to fix a light on the internal entrance. It is much more likely that the plaintiff would have realised that any light had to be fixed on the new entrance.
76 The first defendant's evidence was in a number of respects confirmed by Mr Lakey and his wife. Here I am speaking of the general state of the renovations at the resort and Mr Lakey's evidence about the system of leaving a rear window open to enable access to a bungalow early in the morning. I found the first defendant to be a thoughtful and plausible witness. In my opinion, the plaintiff came to be injured in the
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- circumstances described by the first defendant and not in the circumstances as described by the plaintiff.
77 Mr Bradley submitted that the first defendant's error in identifying the bungalow at which the plaintiff was injured as 122 and not 123 was not a mere mistake but rather went to the heart of his account and his credibility. With respect to Mr Bradley, I reject this submission. While the first defendant was obviously mistaken in this regard and was firmly of the view that the accident happened at bungalow 122, I do not think that this error damaged the first defendant's credibility to a point where I would not be prepared to accept his evidence. I have come to this conclusion because the appearance and layout of all the bungalows were very similar and that bungalow 122 and 123 were in close proximity to each other. In my opinion it would be easy to have made an error in identifying the correct number of the bungalow at which the accident occurred. Moreover, the first defendant, when he described the back of the bungalow in which he entered, described a layout consistent with bungalow 123. The location of the rear window on bungalow 122, as I understand it, because it was a "handed" version of 123 would have been on the other side to that indicated by the first defendant. I am satisfied that the bungalow that the first defendant described was bungalow 123. The fact that he got the number of the bungalow wrong is, in my view, therefore, of little consequence.
Is the first defendant liable to the plaintiff on the first defendant's own version of events?
78 Although not pleaded by way of reply, Mr Bradley submitted that even on the first defendant's own version of events it was reasonably foreseeable to the first defendant that the plaintiff would place his ladder against the locked door and work on it. Mr Bradley submitted that in those circumstances the first defendant was under a duty not to open the door unless he could do so safely. Alternatively, Mr Bradley submitted, the first defendant was under a duty to inform the plaintiff of his intention to enter the bungalow through a rear window and to leave through the then locked front door. On either scenario, Mr Bradley submitted that the real issue was what would have been reasonably foreseeable to a man in the position of the first defendant.
79 Mr Bradley submitted that this conclusion follows from these facts. First, the first defendant saw a workman crouching over a toolbox near the front of the bungalow. Second, there was, on the first defendant's account, a ladder leaning against the right-hand stair rail of the bungalow.
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- Third, the first defendant knew that the bungalows were being extended both at the front and at the back and so, there was a reasonable prospect that the man seen by the first defendant was about to do work at the front of the bungalow. Fourth, the first defendant knew that any workman working early in the morning would know that the front door was locked. Implicit in this is that from the plaintiff's point of view, there was no danger in placing a ladder up against the door.
80 Mr Bradley submitted that it was reasonably foreseeable to the first defendant that the man whom he saw at the front of the bungalow with a box of tools and a ladder was there to do work on the bungalow and that he could lean that ladder against the front door in order to do work and would be at risk of injury if the door was opened without first checking the plaintiff's whereabouts and then warning him of his intention to open the door.
81 Mr Bradley said that this risk was reasonably foreseeable and referred to Nagle v Rottnest Island Board (1993) 177 CLR 423 at 431 where Mason CJ, Deane, Dawson and Gaudron JJ said "… a risk may constitute a foreseeable risk even though it is unlikely to occur. It is enough that the risk is not far-fetched or fanciful".
82 Mr Criddle did not take the point that the plaintiff had not pleaded that the first defendant was liable on his own account of events. He was content to deal with the argument on its merits. Mr Criddle submitted that it was not reasonably foreseeable that a workman such as the plaintiff, would be leaning his ladder against the front door of the bungalow.
83 With respect to Mr Bradley, I do not believe that the risk of injury to the plaintiff was reasonably foreseeable. In my opinion such a risk was far-fetched or fanciful.
84 The first defendant said that he saw a man rummaging in a toolbox and that there was a ladder against a stair rail. Neither man spoke except to possibly exchange early morning pleasantries. Further, neither man apparently knew the other or what duties they were to perform that day or precisely when any duties were to be performed.
85 I do not see how the first defendant could reasonably have foreseen any risk of injury to the plaintiff in all of the circumstances. I have come to this conclusion because:
1 The first defendant did not know and could not have reasonably known what trade the plaintiff was involved in.
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- 2 The first defendant did not know and could not have reasonably known what work the plaintiff was to perform on the morning in question.
3 Apart from perhaps knowing that the plaintiff may be intending to perform some work with a ladder somewhere in the resort where bungalows were being renovated, the first defendant did not know and could not have reasonably known whereabouts the plaintiff would be working.
4 The first defendant did not know and could not reasonably know when the plaintiff was to carry out his work. Was the work the plaintiff intended to carry out, going to be performed immediately or was the plaintiff preparing to perform work later that morning?
5 There was nothing to indicate to the first defendant that the work the plaintiff intended to perform involved the possibility of leaning a ladder against the front door so that it was supported only by the door itself.
6 There was no evidence that the first defendant became aware or ought to have become aware that the plaintiff was up the ladder against the door between the time he saw the plaintiff rummaging in the toolbox and when he opened the door.
The first defendant's apology
86 The plaintiff said that very shortly after his fall, the first defendant was very apologetic and told the plaintiff how sorry he was and that he had "completely forgot". Mr Bradley did not submit that this evidence amounted to an admission by the first defendant of negligence, but for the sake of completeness I think I ought deal with it. In cross-examination at T 190 Mr Bradley asked the first defendant:
"Did you utter any words of apology to him after the accident to Mr Brett?---I may have done, but I don't recall."
87 Mr Bradley did not put to the first defendant that he had said to the plaintiff words to the effect that "he completely forgot" but, I do not think that Mr Bradley needed to do that given that the first defendant was adamant both in his examination-in-chief and cross-examination that he never saw the plaintiff (or anyone for that matter) up a ladder against the front door of the bungalow.
88 While I think it is distinctly possible that the first defendant said that he was sorry for what had happened, I do not have sufficient confidence
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- in the plaintiff's evidence overall, to be satisfied that the first defendant said words to the effect that he had completely forgotten about the plaintiff being up a ladder against the front door. In my opinion, any expression of sorrow by the first defendant was out of an understandable concern for the plaintiff, who had, after all, fallen off a ladder as a result of the first defendant opening the door, albeit in circumstances where the first defendant was not aware and could not reasonably have been aware in my opinion of the plaintiff's presence there. I think it is most unlikely that the first defendant would have said anything suggesting that he had forgotten that the plaintiff was on the ladder when, in my opinion, the first defendant was never aware that he was on the ladder.
Conclusion on liability
89 In order for the plaintiff to succeed, he must satisfy me on the balance of probabilities that the accident occurred in the circumstances he alleged. I cannot come to this conclusion unless I am satisfied that the plaintiff was a credible witness as to the circumstances leading to the accident. For the reasons that I have already outlined in this judgment, I am not able to sufficiently rely upon the evidence of the plaintiff as to the circumstances surrounding his fall from the ladder to accept his version of it. I prefer the first defendant's version of events surrounding the plaintiff's fall. As to the plaintiff's submission that even on the first defendant's version of events I should find the first defendant liable to the plaintiff, I reject that submission. In my opinion, a reasonable man in the first defendant's position would not have reasonably foreseen that his conduct in opening the door of the bungalow involved a risk of injury to the plaintiff and so I reject Mr Bradley's contention that the defendants are liable on the first defendant's version of events. In these circumstances, I must dismiss the plaintiff's claim.
Provisional assessment of damages
90 Had I found in favour of the plaintiff, his damages would have been assessed as follows.
91 Not all heads of damage were in dispute. The parties have agreed that the plaintiff's general damages are $60,000. The parties have also agreed the plaintiff's special damages at $35,883.29 and future handyman services at $19,960.
92 With respect to past loss of income, the parties have agreed that between 23 March 2000 and 30 June 2005 the plaintiff lost $291,590. The parties agreed this figure on the basis that but for the accident, the
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- plaintiff would have earned for the period 23 March 2000 to 30 June 2004 $80,000 gross per annum and between 1 July 2004 to 30 June 2005, $90,000 gross per annum.
93 It is not disputed that the plaintiff, after a period of almost four years after the accident in which he was unable to work as an electrician, found work with Nilsen Electric (WA) Pty Ltd ("Nilsen") assembling switchboards. Based on his PAYG payment summary for the year 2004/2005 he commenced work there on 9 July 2004. His gross income at trial was $1,063 per week or $831 net per week. It is agreed that he will never be fit enough to work to his pre-accident capacity.
94 The undisputed evidence is that the plaintiff was born on 3 October 1951 and was, at the time of the accident, 48 years of age. He qualified as an electrician in Ireland in 1974 and migrated to Australia in 1978, settling in Perth in 1985. His Irish qualification was recognised in this country not long after his arrival and from that time until the accident he worked as an electrician in the industrial sector. His work from time to time took him away from Perth. In the 1990s he worked on a mining project at Marandoo, another project near Barrow Island, the Mount Keith nickel mine and at Port Hedland. From October 1999 to February 2000 the plaintiff worked at Collie on the Worsley expansion project. The plaintiff said in his evidence that he was prepared to work away from home because it was more lucrative bearing in mind that he had onerous family commitments. He said that when he worked away from home he worked a minimum of 60 hours per week up to a maximum of 80 hours per week. All the indicators are that he would have continued to work away from home from time to time in the future in pursuit of higher wages. There is no reason to think that he would not have continued to work up until he turned 65 years of age.
95 The plaintiff said that his pre-accident work involved installing electrical cabling from switchboards to or into industrial machinery. There is no other evidence as to the level of the plaintiff's expertise or whether he had any organisational or supervisory experience.
96 The main issues in dispute with respect to quantum relate to the plaintiff's loss of income from 1 July 2005 to judgment and his future economic loss.
97 As I have already noted, there is no dispute that had the plaintiff not been injured his gross income would have been in the 2004/2005 financial year $90,000 per annum. At this point the two cases diverge. The
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- plaintiff's case is that the income he would have earned after 30 June 2005 would have increased markedly so that in the financial year 2005/2006 he would have earned $100,000 per annum, in the year 2006/2007, $110,000 per year and in the current financial year, 2007/2008 $120,000 per year.
98 The defendants' case is that the plaintiff would have continued to earn $90,000 per annum after 30 June 2005 up to trial.
99 The plaintiff called evidence from two electricians, Mr Damon Thomas and Mr Graeme Castlehow in support of his case as to damages. The defendants led no evidence on the issue.
100 Mr Thomas said that he was an electrical fitter mechanic living in Pannawonica and working for Rio Tinto Iron Ore pursuant to a workplace agreement. He said that his current income was $130,000 gross per annum inclusive of shift loadings, holidays and superannuation. He said that people were ringing him all the time to inquire if he was available for work.
101 I was not told what level of work Mr Thomas performed for Rio Tinto, nor did he give any evidence as to how his remuneration package was structured or as to what he had been earning since 1 July 2005.
102 Mr Castlehow is a very experienced electrician and is the owner and managing director of J & S Castlehow Electrical Contractors in Albany. He has been an electrical contractor for over 25 years, working mainly in the Great Southern-Albany region. He said that he employed a considerable number of electrical tradesmen, including mechanical electricians.
103 In recent years, he has provided between two and five electricians in the construction of the BHP nickel mine near Ravensthorpe. These men work a 13 day fortnight. He said that they worked 130 hours each fortnight and received $60 per hour for their work. In other words, each electrician earns $7,800 per fortnight gross. It was not suggested that the plaintiff would have earned $7,800 per fortnight gross in the future.
104 Mr Castlehow said there had been "an extremely significant escalation" in hourly rates for electricians in recent years: T 141. He said that over the last 2½ to 3 years there had been a real shortage of tradesmen because of the mining boom. As a result he has been forced to increase the hourly rates that he has to pay to his electricians in Albany. He said that some electrical contractors in Albany who were receiving between $28 or $30 an hour 2½ to 3 years ago were now receiving $45
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- per hour. These rates were being paid to electricians who work in and around the town as opposed to those who worked at Ravensthorpe. Mr Castlehow said that the escalation in pay rates for electricians was a statewide phenomenon.
105 In cross-examination, Mr Castlehow said that insofar as his six senior electricians were concerned who were on salaries, their salary was $90,000 a year plus superannuation and a vehicle. Mr Castlehow explained that a level 1 electrician would carry out electrical duties and that he had "learned the skills which enabled him to direct guys and give out technical information".
106 Next level down was a level 2 electrician. Mr Castlehow said that a level 2 earned $75,000 a year plus a vehicle. In evidence, Mr Castlehow described a level 2 electrician as "sort of like the foreman on the jobs".
107 Mr Castlehow said that a level 3 electrician earned between $32 and $38 an hour, although there was one particular subcontractor earning $40 an hour plus superannuation and worker's compensation.
108 Mr Bradley sought to justify his submissions as to the plaintiff's income had he been working in his pre-accident position in this way. He said that the evidence of Mr Thomas and Mr Castlehow demonstrated that electricians' wages have increased substantially in recent years. He submitted that the plaintiff would have earned something close to Mr Thomas and that he would have earned more than Mr Castlehow's level 1 electricians because he would have, from time to time, worked away from home for a minimum of 60 hours per week whereas Mr Castlehow's level 1 supervisors only worked a 38 hour week.
109 Mr Bradley noted that the defendants' position was that the plaintiff would have earned $90,000 gross per annum from 1 July 2005 and that he would not have continued to work away from Perth. As to this, Mr Bradley said that there was no reason to assume that the plaintiff would not have continued working away from Perth and that it was unreasonable to assess the plaintiff's income but for the accident at $90,000 per annum now when he was earning $80,000 gross per annum in 1999/2000 bearing in mind the way electricians' incomes have increased in recent years.
110 Mr Criddle submitted that but for the accident the plaintiff's salary from 1 July 2005 would have been $90,000 gross per annum. He said that if I accepted this submission I should make no further deduction for contingencies when calculating the plaintiff's future loss of earning
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- capacity because the defendants concede that the salary of electricians has increased and will increase in the near future at least.
111 The evidence with respect to the plaintiff's level of income had he not been injured was not as comprehensive as perhaps it ought to have been. I say this because:
1 I was not told how much time the plaintiff spent away from home in jobs that required him to work 60-80 hours per week.
2 Mr Castlehow's evidence as to the rate at which electricians' remuneration was increasing was specific to some electrical subcontractors he hired. While those electrical subcontractors' rates had increased by 50 per cent or more over 2½ to 3 years, there is no evidence that this rate increase had been paid across Western Australia to all electricians. In saying this I do accept his evidence that pay rates for electricians have increased generally across the board over the last 2½ to 3 years.
3 The kind of work performed by Mr Castlehow's level 1 and level 2 electricians involved supervisory work. There is no evidence that the plaintiff ever worked in that capacity. Further, Mr Castlehow's level 1 and level 2 electricians were in addition to the monetary component of their remuneration, given a car. I was not told the value of the use of the car.
112 It is, I think, a long bow to directly compare Mr Thomas's position with that of the plaintiff. As I have already noted, I was not told the value of the various benefits included in Mr Thomas's salary package and it must be borne in mind that Mr Thomas resides permanently away from Perth unlike the plaintiff.
113 Doing the best that I can, in all of the circumstances, I make the following findings. Given that the plaintiff was earning $80,000 gross per annum in 1999/2000 I do not think it is unreasonable to make a finding that in 2005/2006 the plaintiff would have, had he not been injured, earned $90,000 per annum gross. Having regard to Mr Castlehow's evidence to the effect that electricians' wages had increased substantially due to the demand for qualified tradesmen in the mining sector, I find that had the plaintiff not been injured he would have earned $100,000 gross for the year between 1 July 2006 and 30 June 2007 and that income would have increased from 1 July 2007 to a gross rate of $110,000 per annum. I make these findings on the basis that the plaintiff was, in my opinion, at all times prepared to work away from home and would have done so whenever he reasonably could.
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114 With respect to any discount for contingencies in respect of future economic loss, Mr Criddle acknowledged that I should not make the usual 5 per cent discount because electricians' pay rates were substantially increasing and it would not be fair on the facts of this case to discount for contingencies. I agree that in this case no discount for contingencies is appropriate.
115 In relation to the plaintiff's lost superannuation entitlements, an interesting question arose with respect to the appropriate discount pursuant toJongen v CSR Ltd (1992) Aust Tort Reports 81-192. In that case, it was said that the calculation of lost superannuation benefits should be reduced by 30 per cent to take into account income tax and administration costs of the superannuation fund. At the time Jongen was decided, superannuation was taxed differently to now. Since 1 July 2007 superannuation benefits are not taxed on payment, although contributions are still taxed. Both counsel agreed that the discount pursuant to Jongen will need to be modified in light of the changes to taxation on superannuation. In this case, no actuarial evidence was called and the parties asked me to take into account as best I could. Mr Bradley suggested discounting the amount of lost superannuation by 15 per cent. I think this is a reasonable suggestion which I will adopt here.
116 My calculations of the heads of damage which are not agreed are:
Past loss of income
23 March 2000 – 30 June 2005 (agreed) $291,590
1 July 2005 – 30 June 2006
(at $90,000 gross per annum/$1,119 per week net) $62,348
1 July 2006 – 30 June 2007
(at $100,000 gross per annum/$1,358 net per week) $70,616
1 July 2007 – 1 February 2008 $44,520
(at $110,000 gross per annum/$1,484 net per week x 30 weeks)
$469,074
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Less actual earnings (agreed)
23 March 2000 – 22 October 2007 $137,177
22 October 2007 – 1 February 2008-01-23
($831 net per week x 14 weeks) $11,634
$148,811
Subtotal $320,263
Plus tax paid on a weekly worker's compensation (agreed) $13,193
Total $333,456
Future loss of income
117 The plaintiff's present day pre-accident earning capacity is $1,484 net per week. His currently net weekly earnings from Nilsen is $831. Accordingly, his current loss is $653 net per week. This loss will continue until retirement. I calculate his future loss of income to retirement at 65 years of age, using a 6 per cent multiplier, as follows: $653 x 365 = $238,345.
Past superannuation
118 I calculate the plaintiff's past superannuation loss as:
23 March 2000 – 30 June 2000
(14 weeks x $1,538 gross per week x 7 per cent) $1,507
1 July 2000 – 30 June 2001
(52 weeks x $1,538 gross per week x 8 per cent) $6,398
1 July 2001 – 30 June 2002
(52 weeks x $1,538 gross per week x 8 per cent) $6,398
1 July 2002 – 30 June 2003
(52 weeks x $1,538 gross per week x 9 per cent) $7,197
1 July 2003 – 30 June 2004
(52 weeks x $1,538 gross per week x 9 per cent) $7,197
1 July 2004 – 30 June 2005
(52 weeks x $1,538 gross per week x 9 per cent) $7,197
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1 July 2005 – 30 June 2006
(52 weeks x $1,730 gross per week x 9 per cent) $8,096
1 July 2006 – 30 June 2007
(52 weeks x $1,923 gross per week x 9 per cent) $8,999
1 July 2007 – 1 February 2008
(30 weeks x $2,115 gross per week x 9 per cent) $5,710
Subtotal $58,699
Less superannuation contributions paid
1 July 2000 – 22 October 2007 $16,045
22 October 2007 – 1 February 2008
(14 weeks x $1,063 gross per week x 9 per cent) $1,339
Subtotal $17,384
Total $41,315
Less agreed 15 per cent for tax
(In lieu of Jongen v CSR discount) $6,109
Total $35,206
Future loss of superannuation benefits
119 The plaintiff's present day pre-accident earning capacity is $2,115 gross per week. His current gross weekly earnings are $1,063 per week. Accordingly, his gross weekly loss of earnings is $1,052. If superannuation was paid in his present day pre-accident salary until retirement at 65 years, having regard to his retained earning capacity, and including a Jongen v CSR type discount of 15 per cent as follows: $1,052 x 9 per cent x 365 x 85 per cent = $29,374.
Interest on past loss of income
120 The plaintiff, it has been agreed, received workers compensation totalling $89,341. As a result, the parties agreed that for the purpose of calculating interest in the plaintiff's past loss of income I should deduct this sum from the amount I have assessed as the plaintiff's loss.
121 I calculate interest as follows: 3 per cent x ($333,456 - $89,341) x 7.5 years = $54,925.
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- Interest on past superannuation
122 I calculate the interest on past superannuation as follows: 3 per cent x $35,206 x 7.5 years = $7,921.35.
Summary
General damages $60,000
Past loss of income $333,456
Future loss of income $238,345
Past superannuation $34,206
Future superannuation $29,374
Special damages $35,883
Future handyman services $19,960
Interest on past loss of income $54,925
Interest on past loss of superannuation $7,921
Total $815,070
Orders
123 In light of my findings on the question of liability I dismiss the plaintiff's action against the first and second defendants. I will hear from counsel as to costs after the delivery of these reasons.
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