| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : CHRIMES -v- TW & DA LUCAS (A FIRM) & ANOR [2002] WADC 68 CORAM : COMMISSIONER REYNOLDS HEARD : 31 OCTOBER 2001 DELIVERED : 9 APRIL 2002 FILE NO/S : CIV 3251 of 1999 BETWEEN : BRETT RAYMOND CHRIMES Plaintiff
AND
TW & DA LUCAS (A FIRM)
First Defendants
VERRILLS WARD PTY LTD (In Liquidation) (ACN 071 934 346)
Second Defendant
Catchwords: Damages - Work accident - Shed erector injured when steel framework of shed collapsed - Failure to properly design shed and provide proper materials to secure the framework during construction of the shed
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Legislation:
Corporations Act 2001
Corporations Law
Occupational Safety and Health Act 1984
Workers' Compensation and Rehabilitation Act 1981
Result: Liability established - Damages assessed in the total sum of $489,649 Representation:
Counsel:
Plaintiff : Mr B E S Lauri
First Defendants : Mr T W Lucas
Second Defendant : No appearance
Solicitors:
Plaintiff : Leonard Cohen & Co
First Defendants : In person
Second Defendant : No appearance
Case(s) referred to in judgment(s):
Fox v Wood (1981) 148 CLR 438
Case(s) also cited:
Nil
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Introduction 1 The plaintiff was born on 9 July 1962 and is 39 years of age. By this action he claims damages against the first defendants and the second defendant as a result of personal injuries suffered by him in a work accident on 9 March 1998. At the time of the accident the plaintiff was engaged as a sub-contractor by the first defendants to assist in the erection of a shed designed and manufactured by the second defendant. During the erection of the shed the plaintiff was on part of the steel framework about six metres above the ground. The framework began to collapse and so he jumped to the ground with the idea of moving away from it to avoid being struck. He landed heavily on the ground and alleges that he suffered injury to his back and right foot as a consequence. Save for a short work trial in about November 1998 the plaintiff has not returned to work since the accident. He claims damages for economic loss, loss of superannuation, gratuitous services, medical expenses and general damages. 2 On 23 August 1999 pursuant to s 93D(4) of the Workers' Compensation and Rehabilitation Act 1981 ("the Act") this Court granted the plaintiff leave to commence an action against the first defendants and the second defendant with respect to disabilities sustained by him as a result of the accident. In the context of the Act "disabilities" can be read to mean "injuries". 3 On 5 April 2000 judgment was entered in favour of the plaintiff against the first defendants to pay the plaintiff damages to be assessed. 4 On 25 June 1999 the Honourable Justice Anderson of the Supreme Court of Western Australia on an application by the plaintiff against the second defendant (in liquidation) ordered that the plaintiff have leave to proceed under s 500(2) of the Corporations Law with this action for damages against the second defendant. On 20 September 2001 Master Bredmeyer of the Supreme Court of Western Australia ordered inter alia that pursuant to s 601AH(2) of the Corporations Act 2001 the second defendant be reinstated to the Register. Evidence in a document of the Australian Securities and Investments Commission shows that the second defendant was reinstated to the Register on 23 October 2001. The reinstatement of the second defendant means that its registration continues as if deregistration had not occurred. The registration of the second defendant remained current as at the time of trial.
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5 The only outstanding issue between the plaintiff and the first defendants is assessment of damages. Both liability and assessment of damages are in issue as between the plaintiff and the second defendant.
The accident 6 The plaintiff's evidence consists of the contents of a written proof of evidence which he confirmed to be true and correct together with oral evidence on a variety of issues. The plaintiff called William Apgar (Mr Apgar) as an expert witness. Mr Apgar is a qualified engineer/scientist with 25 years experience in engineering, industrial research and development, consulting, design, forensic engineering, project management and business management. He investigated the accident and produced a written report dated 5 August 1999 which sets out his conclusions. His report was received into evidence as an exhibit. Mr Apgar supplemented the contents of his report with oral evidence. 7 I find that the plaintiff was an honest and reliable witness. I am satisfied that Mr Apgar thoroughly investigated the accident and I accept his conclusions on the causes of the accident. 8 The plaintiff commenced work as a sub-contract shed erector with the first defendants in or about late December 1997. He was paid $17 gross per hour and received no payment for sick or holiday pay. He was paid in full at the completion of each shed. The arrangement between the plaintiff and the first defendants was that the plaintiff provided his labour and Tim Lucas (Mr Lucas) the first-named first defendant provided all of the tools and equipment. On this particular occasion the second defendant provided the first defendants with the materials, plans and drawings for the erection of the shed. The plaintiff estimated that he completed about five sheds with Mr Lucas between late December 1997 and 9 March 1998. He said that the erection of the sheds was basically a two-man operation consisting of him and Mr Lucas with Mr Lucas supervising the erection of each shed. 9 The particular shed in question was being constructed by Mr Lucas and the plaintiff at a farmer's property in Gillingarren located about 30 kilometres from Moora. When the plaintiff and Mr Lucas arrived at the farm about one week prior to 9 March 1998 most of the materials for the shed had been supplied by the second defendant and were already on site. Some materials were missing and Mr Lucas arranged for them to be supplied by the second defendant. When the plaintiff and Mr Lucas first arrived at the farm a level site had already been cleared and a gravel
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surface and concrete footings had already been put in place. Both the plaintiff and Mr Lucas commenced to erect the shed about one week before the accident happened. 10 The shed was to be used as a machinery shed. It was designed as follows. Its dimensions were 36 metres long, 15 metres wide, a peaked roof 5.6 metres high near the eaves and 7.1 metres high near the peak. The main structure consisted of five steel frames which included columns and roof beams. Each frame was in line and parallel with the others and the distance between each frame was about 9 metres. Looking at the shed from the front it was open on the left hand side across three bays between the first and the fourth frames. Again, looking at the shed from the front, the fourth bay between the fourth and fifth frames was enclosed with sheet metal surrounding a roller door in the middle of the bay. Three of the five steel frames have four columns. Again looking at the shed from the front and from left to right these three frames were frames 1, 4 and 5. Frames 2 and 3 in the open bay area on the left hand side of the shed each had two columns. The bases of the columns are bolted to concrete footings. The frames are spanned with Z-purlins which support the sheet metal skin of the shed. The shed relied upon its sheet metal skin for its ultimate strength and stiffness. The rear of the first three bays from left to right was completely covered with a sheet metal skin and the rear of the fourth bay had a sheet metal skin and roller door the same as the front of the same bay. A steel metal skin was installed inside the shed on the fourth frame so that this fourth bay was fully enclosed save for a doorway between it and the open bays of the shed. 11 The plaintiff and Mr Lucas started to erect the shed by assembling and raising the left end frame onto concrete footings which had been previously installed. Four of the roof purlins were used as temporary diagonal braces on the left end wall frame. While the frame was held up by a mobile crane operated by a third person the purlins were temporarily attached to the column with tec-screws at the upper end. They were pinned to the ground at the lower end using light steel pins. The steel pins were driven through bolt holes in the purlins and into the ground. The steel frames were very floppy and flexed a great deal while they were being picked up by the crane. They would not have stood in place without the temporary diagonal braces. 12 The second steel frame in the open bay area of the shed was then lifted into place. The plaintiff described this second frame as being "more floppy" than the end frame because it only had two columns. While the second frame was being held in position by the crane a series of purlins
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were attached between the end frame columns and the columns of this second frame. Temporary purlins were attached to the front columns using tec-screws. Four roof purlins were then placed and loosely bolted across the tops of these frames so that the second frame would stand on its own. This procedure was repeated for the remaining three frames. The purlins on the roof and back wall area were bolted into their actual positions but the bolts were left loose until the building frame was straightened. 13 At about 1.30 pm on 9 March 1998 the plaintiff was at the top of one of the columns fixing purlins. At this stage no part of the sheet metal skin had been installed. The structure suddenly started to collapse and the plaintiff immediately moved towards the back wall and jumped from the fascia beam to the ground about 6 metres below. He landed heavily on his right foot and then onto his entire body. He was wearing steel capped safety boots, shorts and a tee-shirt at the time. 14 The plaintiff gave evidence that before the structure started to collapse all of the frames were up and most of the purlins had been installed on the back walls and side walls. Most of the roof purlins had been installed between the first three frames but the bolts had not been tightened. No diagonal bracing had been installed on any of the wall sections or roof sections. When the plaintiff first felt the structure moving he noticed the temporary diagonal brace holding the left front column pull loose from the ground. When the structure started to fall he heard popping noises of tec-screws pulling out.
The pleadings 15 The plaintiff alleges that the accident was caused by the first defendants' breach of their common law duty of care to the plaintiff to provide adequate safety equipment throughout the erection of the shed and/or their breach of s 19(1)(a) of the Occupational Safety and Health Act 1984 ("the OSH Act"). He also alleges that the accident was caused by the second defendant's breach of its common law duty of care to the plaintiff to take reasonable care in the design and manufacture of the shed to ensure that the shed framework would not collapse and/or the second defendant's breach of s 23(3)(a) of the OSH Act. That section provides: "A person who designs or constructs any building or structure, including a temporary structure for use at a workplace, shall so far as is practicable ensure that the design and construction of the building or structure such that (a) persons who properly
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construct, maintain, repair or service the building or structure, and (b) persons who properly use the building or structure, are not in doing so exposed to hazards." 16 Given that liability is only an issue as between the plaintiff and the second defendant I will only set out the plaintiff's alleged particulars of breach against the second defendant. The plaintiff relies on the same particulars to establish that the second defendant breached one or both of its common law and statutory duties. The particulars pleaded are:
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vertical position when maximum bending loads were applied to those columns and some of the columns had not brackets or footings at all. The Second Defendant should have provided heavier brackets for all of the vertical columns and footings for all of those columns." 17 By par 10 of the second defendant's defence it has pleaded that if the plaintiff suffered injury as alleged (which is denied) then he contributed to his own injuries by failing to take sufficient precautions for his own safety. The second defendant has not pleaded what particular precautions the plaintiff should have taken for his own safety.
Determination of liability 18 Photographs were taken of the collapsed framework of the shed soon after the accident. These photographs were shown to Mr Apgar and he made a number of conclusions from them. At the front of the shed the frames have fallen to the right (when looking at the shed from the front). The columns at the back of the shed have buckled and bent towards the front of the shed. The vertical columns at the front of the shed have fallen over with little or no bending near their base. This indicated that the mountings at the base of these columns were very flexible and offered little resistance to the columns overturning. The temporary diagonal brace from the left rear corner of the shed to the ground outside the left end of the shed held that corner in place so that the rear columns did not fall sideways. 19 When Mr Apgar inspected the site on 30 July 1999 a machinery shed of the same sort and dimensions that the plaintiff and Mr Lucas had started to erect was constructed in the same position. He noted that the new shed had much heavier brackets on the base of the columns than the brackets at the base of the damaged columns of the collapsed structure. Mr Apgar expressed the view that the original brackets would have provided very little stiffness to help support the columns and keep them in a vertical position. 20 Mr Apgar noted in relation to the collapsed structure that the two inner columns on the four column frame to the right of the open bay area ie, the fourth frame as described by me, had no footings whatsoever. Such being the case he stated that these columns would have provided no resistance to overturning. Mr Apgar also expressed the view that the design and construction of the shed indicated a minimalist approach and
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suggested that costs had been kept to a minimum. He was also of the view that the structure itself appeared to be very light. 21 It was Mr Apgar's view that two main factors caused the accident. They were (1) the structural failure of the shed frame and (2) the absence of suitable safety equipment and/or use of safe work practices. The first of these two factors directly concerns the second defendant because it designed the shed and supplied the materials for its construction. 22 Mr Apgar expressed the view that because the shed relied upon its sheet metal skin for its ultimate strength and stiffness it was absolutely essential that during the construction process procedures were adopted to ensure that the structure did not collapse before it was completed. He stated that this usually required the use of supplementary supports such as braces. Mr Apgar stated that the following practices should have been incorporated into the erection of the shed: "1. The designer of this building should have provided a written erection procedure including drawings of engineered ancillary equipment. The erection contractor should then work to this procedure.
2. The brackets on the base of the columns should be such that each column can be set up in a vertical position while providing for the maximum bending loads that could be applied. 3. Temporary engineered footings should be provided for the temporary braces, which, for example, support the first frame. 4. Diagonal bracing should be installed progressively on the end frame and between adjacent frames so that the structure is straight and rigid. As each frame is added the additional diagonal braces would progressively increase the rigidity of the structure in order to accommodate the additional windage loads that are incurred."
23 Mr Apgar stated that if the steel skeleton was properly erected and braced then it would be stiff and properly aligned before the installation of the sheet metal skin. 24 There is no direct evidence that the second defendant failed to provide the first defendants and in particular Mr Lucas with any written
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erection procedure. However, the fact that purlins were used as temporary diagonal braces rather than some other material supplied solely for that purpose such as steel strapping supports the conclusion that at the very least not enough and suitable bracing material was supplied and in turn the conclusion that a proper written erection procedure was not provided. Accepting the plaintiff's evidence that the steel frames and in particular those with only two columns were "very floppy" I find that extensive temporary bracing should have been incorporated into the design. 25 I conclude from Mr Apgar's evidence that some of the columns did not have brackets or footings at all. I accept his evidence that the designer of the shed (ie, the second defendant) should have provided heavier brackets at the bases of the columns and footings for all of the columns to provide sufficient support for the columns to maintain a vertical position when maximum bending loads were applied to them. 26 In my opinion the second defendant had a common law duty to take reasonable care when designing the shed and supplying the materials for its construction to ensure that the framework of the shed would not collapse. I consider it reasonably foreseeable that a person engaged in the erection of the shed would be injured if the framework of the shed collapsed. 27 For all these reasons I find the second defendant also liable for the accident. Although the second defendant did not appear at trial I consider it necessary to determine the second defendant's plea that the plaintiff contributed to his own injuries by failing to take sufficient precautions for his own safety. 28 I have already mentioned that the second defendant did not give any particulars in its defence on how the plaintiff failed to take sufficient precautions for his own safety. 29 The plaintiff's work history shows that he has worked on about eight different occasions since 1987 and for a total of about four years as a shed erector. Such work has been punctuated by other employment as a labourer and periods of unemployment. While I accept that the plaintiff may well be more familiar with some types of labouring work, including shed erection, than others, the fact of the matter is that all of his working life has essentially consisted of him providing his labour. In this particular case while the plaintiff was a sub-contractor he did no more than simply provide his labour and was subject to the directions of Mr Lucas.
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30 I have little doubt that the plaintiff was generally aware of the need for strong brackets, sound footings and the use of bracing when erecting sheds. However, I am not satisfied that the extent of his knowledge and experience and the extent of the knowledge and experience that could be reasonably expected of a person holding himself out as being able to properly do the work required of the plaintiff in the erection of this particular shed provides sufficient basis to conclude that he did or should have held some real concern for his own safety at the time of the accident because of something to do with the brackets, footings or bracing or any lack thereof. The plaintiff was a labourer and not an engineer or qualified in any way in shed design.
31 When Mr Apgar expressed the view that absence of suitable safety equipment and/or use of safe work practices was a cause of the accident he was referring to the absence at the site of any one of (1) a safety harness with an inertia reel being worn when working above ground level, (2) a self-propelled boom arm platform (cherry picker) being used to work above ground level, (3) netting below the roofing framework, (4) a lift with a work platform on it and (5) handrails fitted around the perimeter. He was also referring to the dangers of slipping and/or falling when climbing on smooth and sloping surfaces of steel roof frames and also being cut by the sharp edges of steel framework. 32 Mr Apgar acknowledged that a safety harness with an inertia reel system was probably too cumbersome for erecting a shed. If any one of a cherry picker, lift platform or net was used then the steel framework may have fallen on it. In any event the plaintiff had no management or supervisory role in the erection of the shed and he was in no position to direct Mr Lucas to put any such equipment on site. Further, the accident was not caused by the plaintiff slipping off the steel framework. 33 Further to all of this the plaintiff jumped off the steel framework when it started to collapse to avoid being struck by it and in my opinion he cannot be reasonably criticised for doing so. 34 For all these reasons I find that the plaintiff did not contribute to the accident and his own injuries.
The medical evidence and the plaintiff's injuries 35 When the plaintiff jumped from the collapsing steel framework he landed heavily on his right foot and then onto his entire body. He was wearing steel capped safety boots at the time. He landed on rough ground
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consisting of gravel with some exposed clumps of rocks. Immediately after landing on the ground he felt extreme pain in his right foot and back. He also found it difficult to breathe and talk. He was given some Panadeine Forte and then driven to the Moora District Hospital. There he underwent x-rays and his right foot was immobilised. He was then conveyed by ambulance to Royal Perth Hospital. 36 In a letter from Royal Perth Hospital dated 18 May 1998 Dr Hammond stated that the plaintiff's injuries included fracture to the L4 vertebra with a simple anterior wedge fracture and a fracture of the fifth metatarsal and navicular in the right foot. The metatarsal fracture was fixed with Kirschner wires which were removed some six weeks after surgery. It was also noted at that time that the plaintiff also complained of cervical pain. Cervical x-rays were taken which showed some mild degenerative change in the cervical spine, but no evidence of acute injury. 37 Thereafter the plaintiff attended on Desmond Williams ("Mr Williams"), an orthopaedic surgeon at St John of God Medical Centre. Mr Williams reported as follows on x-rays taken on 6 January 1999 of the plaintiff's lumbar spine and right foot. The x-rays of the lumbar spine showed loss of lumbar lordosis. There was a wedge compression fracture of L4 involving the superior end plate and producing loss of vertebral height of the order of some 30 per cent. There was also an intra-osseous disc herniation into the superior end plate of L4 with mild loss of height at the L3/4 disc. Anterior osteophytes were present at L3/4 and to a lesser extent at L2/3 and L5/S1. The x-ray of the right foot showed bony union of the comminuted displaced and angulated fracture of the fifth metatarsal. The fracture line seen earlier through the navicular had healed soundly. 38 Mr Williams last saw the plaintiff on 3 August 2001. On that occasion he had the opportunity of examining x-rays taken on 27 July 2001. The x-rays showed the healed fracture of the fifth metatarsal with considerable residual deformity at the fracture site. He noted that the plaintiff was tender in this area. Mr Williams also noted significant metatarsal varus deformity such that there was a wide angle between the great toe metatarsal 1 and the second toe metatarsal 2. He also noted degenerative change in the MP joint of the little toe. He assessed the percentage disability of the right foot in the order of 8.5 per cent. He indicated that no surgical measures were necessary in the management of the plaintiff's foot problems.
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39 Mr Williams assessed the overall level of disability of the plaintiff's lumbar spine as a permanent residual disability in the order of 15 per cent loss of full efficient use of the back including the thoracic and lumbar spine.
40 Since the accident the plaintiff has seen Dr Christianson, a general medical practitioner, on many occasions. Dr Christianson has had the opportunity of reading a number of specialists' reports on the plaintiff. I am satisfied that Dr Christianson has a sound knowledge of the plaintiff's injuries and the appropriate treatment thereof. On 28 October 2001 Dr Christianson reported that the plaintiff had three problem areas. They were: 41 Dr Christianson doubted that the plaintiff would ever be free of low back pain and ankle pain and stated that his symptoms could be more severe with increasing osteoarthritis. He indicated that ongoing medical treatment included medication, physiotherapy and possibly surgery. 42 I accept all of the medical evidence set out herein.
Economic loss 43 The plaintiff was born and educated in Northam. He left school after he had completed Year 10 at Northam High School in 1977. He worked at Co-operative Bulk Handling ("CBH") in Northam from 1977 to about 1984 as a grain handler which essentially involved work as a labourer. 44 Between 1984 and 1987 the plaintiff lived in South Hedland and worked for a number of different employers as a labourer. During this period of time he was unemployed for about six months. In 1987 the plaintiff moved to Gingin and worked as a shed erector for about eight months. Thereafter he returned to Northam and until 1989 he worked for a number of different employers as a shed erector. During this time he was unemployed for about three months. In 1989 the plaintiff returned to work with CBH in Northam. Thereafter until 1994 he worked for CBH as
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a labourer during six different periods of time for a total of about 28 months. Between 1989 and 1994 he also worked as a brick paver for about 10 months and was unemployed for a total of about 14 months. 45 Between 1994 and December 1997 the plaintiff worked for two different employers as a shed erector for a total of about 26 months, with CBH as a labourer for about 10 months and was unemployed for about 11 months. The plaintiff started to work with the first defendants as a shed erector in about late December 1997 and thereafter until the date of the accident completed about five sheds with Mr Lucas. 46 Having regard to the contents of medical reports written by Mr Williams, Dr Hamzah, a consultant in anaesthesia and pain management, Mr Lee, a neurosurgeon, Professor Taylor, a pain management and spinal medicine consultant, Professor Harper, an occupational physician and Dr Christianson I am satisfied that the plaintiff is permanently disabled from returning to work as a shed erector or any other work requiring heavy activity. 47 I am satisfied that the plaintiff is capable of light sedentary work with limitations on a full time basis. In the plaintiff's case this presents as a real problem because since he left school after Year 10 he has always worked as a labourer and has no qualifications in any other area of work. 48 In a report dated 25 March 1999 Professor Taylor stated inter alia: "When I last saw Mr Chrimes he told me that he was working for 9 hours per week doing light duties, but that he was very stiff and sore in the back at the end of each work session. It was my opinion that he required further rehabilitation before considering increasing his hours of work, and that this should include vocational rehabilitation for a more sedentary form of employment that would not require bending and lifting and that would enable him to move around at regular intervals. In particular, any work should not require prolonged sitting or prolonged standing. I understood that he had some skills in woodwork but was limited in his capacity to engage in this because of his inability to bend and lift regularly." 49 In a report dated 8 August 2001 Mr Williams stated inter alia: "I believe he has the capacity to work full working hours in an appropriate light sedentary work area and this includes a range of opportunities with the limitations of prolonged standing to
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limit any pain from his foot and eliminate particular stresses on his lumbar spine as I have outlined which would include repetitive bending heavy lifting and working in awkward polar postures." 50 In a report dated 18 September 2001 Professor Harper stated inter alia: "Work restrictions are to avoid repetitive bending, heavy lifting, twisting and manual labouring (sic) in general. He should avoid climbing, twisting and prolonged static postures. He is capable of light physical work or a sedentary occupation which permits him to alternate sitting and standing as required. He would be capable of part time work but I would anticipate the best prospect for work would be through self employment in his own workshop where he could work staggered hours. He is probably unemployable in the open job market due to his skill level and the manual nature of his part work experience. I expect these limitations to continue for the foreseeable future." 51 In a report dated 28 August 2001 Dr Hamzah stated inter alia: "I certainly do not think that Mr Chrimes will be able to return to any manual labour but, as he is interested in wood-working and welding, he may be able to find some occupation in these fields if it did not require any heavy lifting of items weighing more than 5 kilograms." 52 The plaintiff participated in a work trial with Dempster Steel for about three months from 4 November 1998 working three hours per day, three days per week undertaking various tasks including raking, pruning, installing reticulation and visiting shed sites. He stopped because of ongoing pain in his lower back. 53 I find that as a result of his accident-caused injuries and symptoms the plaintiff is now only capable of pursing sedentary type employment which does not involve any prolonged standing or sitting, bending, working in awkward positions or lifting items weighing any more than five kilograms. The plaintiff's parameters of employment are further limited because he left school at the end of Year 10 and has no trade or any other qualification in any field of work. The sad reality is that the plaintiff will find it very difficult to obtain even light work in the open market.
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54 The plaintiff's Book of Tax Returns in evidence shows as follows:
Year ending
30 June | Employer/Income
Source | Gross Income
$ | Taxation $ | Net Income
$ | | 1995 | CBH
Social Security
Brick paving | 8,889
6,008
4,662
19,559 | 2,413
368
934
3,715 | 15,844 | | 1996 | Social Security
Dempster Steel
Subcontract work | 1,378
19,863
5,795
25,658 | 60
4,466
1,160
5,686 | 19,972 | | 1997 | Social Security
CBH
Dempster Steel | 482
20,591
5,154
25,745 | 15
5,174
1,275
6,464 | 19,281 | | 1998 | Dempster Steel
Workers' Compensation
(Second Defendant)
Subcontract work | 19,084
8,344
4,020
31,448 | 5,070
2,124
804
7,998 | 23,450 | 55 I conclude from the plaintiff's own evidence on his work history from 1984 to 9 March 1998 inclusive that he worked for a total of about 127 months of a possible 171 months which equates to an average of about nine months per year. His taxation records show that his income from social security reduced from $6,008 gross in 1994/1995, to $1,378 gross in 1995/1996, to $482 gross in 1996/1997 and to zero in 1997/1998. 56 In light of all of this I will assess his past economic loss, which I regard as relatively short term, on the basis that but for the accident he would have been continuously employed or in work as a sub-contractor and his future economic loss, which I regard as long term, on the basis that he would have been continuously employed or in work as a sub-contractor for a total of 10 months per year.
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57 When the plaintiff was employed by Dempster Steel from 1 July 1997 to 9 December 1997 he earned $19,084 gross or $14,014 net after tax. This equates to $825 gross per week and $606 net per week after tax. He earned a total of $4,020 in the nine weeks or so before the accident which equates to about $447 gross per week. His gross income for the financial year ending 30 June 1998 was $31,448 which equates to $605 gross per week. I appreciate that for the later part of this year he was receiving workers' compensation payments. The significance of this is diminished by the fact that his working relationship with the first defendants was still ongoing at the time of the accident.
58 Counsel for the plaintiff has used $615 gross per week and $488 net per week after tax to calculate the plaintiff's past and future economic loss. While this level of income is well above what he earned when working with the first defendants, it is only marginally above his average weekly income for the year ending 30 June 1998 and well below what he was capable of earning as shown by his average weekly earnings at Dempster Steel in 1997. I therefore find that the figures used by the plaintiff's counsel are fair and reasonable and I propose to use them in my assessments.
Past economic loss 59 Prior to trial the plaintiff received workers' compensation payments in the total sum of $117,689.09 gross ie, before the deduction of tax. The plaintiff is required to repay this amount. Pursuant to Fox v Wood (1981) 148 CLR 438 the plaintiff is entitled to the amount for taxation being included in his past economic loss because he must repay the gross amount of workers' compensation payments which includes taxation. The period of time from the date of the accident to the date of trial is 190 weeks. The amount of gross income lost by the plaintiff from the time of the accident to the time of trial is calculated as follows: $615 gross per week x 190 weeks = $116,850. The sum of $116,850 gross is marginally below $117,689.09 gross. I award the plaintiff damages for past economic loss in the sum of $116,850.
Past loss of superannuation 60 The statutory superannuation rates for the years 1997/1998, 1998/1999, 1999/2000, 2000/2001 and 2001/2002 are 6 per cent, 7 per cent, 7 per cent, 8 per cent and 9 per cent respectively.
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61 If the plaintiff was paid superannuation from the time of the accident to the time of trial his past loss of superannuation would be calculated as follows:
1. For the period 9 March 1998 to 30 June 1998 $615 gross per week x 16 weeks x 6 per cent = $590 2. For the period 1 July 1998 to 30 June 1999 $615 gross per week x 52 weeks x 7 per cent = $2,239 3. For the period 1 July 1999 to 30 June 2000 $615 gross per week x 52 weeks x 7 per cent = $2,239 4. For the period 1 July 2000 to 30 June 2001 $615 gross per week x 52 weeks x 8 per cent = $2,558 5. For the period 30 June 2001 to 31 October 2001 $615 gross per week x 18 weeks x 9 per cent = $996 $8,622 Less 30 per cent per Jongen v CSR Ltd & Anor
(1992) A Tort Rep 81-192 $2,587 Total past loss of superannuation = $6,035 62 On the evidence the sub-contract arrangement between the plaintiff and the first defendants did not include payment of any amount for superannuation. I am not satisfied that the arrangement was such that the first defendants were required to pay it. When the plaintiff worked for Dempster Steel he would have been entitled to superannuation payments. But for the accident he may have worked for someone other than the first defendants and pursuant to an arrangement by which he received superannuation payments. In the circumstances and doing the best I can I award the plaintiff damages for past superannuation payments in the global sum of $3,000.
Future economic loss 63 The plaintiff gave evidence that he intended to work as a steel erector or labourer until he was 65 years of age. Accepting that to be so I nevertheless think that there is a real chance that he would not have done so if the accident had not happened. Apart from the ever-present risk of injury doing heavy labouring work the plaintiff would have become less efficient physically as he aged and thereby less attractive as an
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employment proposition. Given that shed erectors are required to do heavy labouring work well above ground level I think that there is a real chance that the plaintiff would not have done such work to age 65 years. In addition to all of this the usual contingencies need to be taken into account. 64 I repeat my earlier findings that the plaintiff is no longer capable of working as a shed erector or doing heavy labouring work. His ability to perform sedentary or light duty work is limited and he has no qualifications. 65 In the plaintiff's case I think that a discount of only 20 per cent in total should be made for the combination of retained earning capacity and contingencies. I have already mentioned that the plaintiff's future economic loss should be assessed on the basis that he would have worked for a total of only 10 months per year. The 6 per cent multiplier for 26 years (the number of years to the plaintiff's 65th birthday) is 699. Using the various discretionary judgments made by me the plaintiff's future economic loss can be calculated as follows: $488 net per week x 699 x 10/12ths $284,260.00 Less 20 per cent for retained earning capacity
and contingencies $56,852.00 Total future economic loss $227,408.00 66 I award the plaintiff damages for future economic loss in the sum of $227,408.00.
Future loss of superannuation 67 If the plaintiff worked full time and received superannuation payments then his future loss of superannuation would be calculated as follows: ($615 gross per week x 9 per cent) x 699 x 10/12ths $32,241.00 Less 20 per cent for retained earning capacity
and contingencies $6,448.00 $25,793.00 Less 30 per cent per Jongen v CSR Ltd & Anor$7,738.00 Total $18,055.00
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68 I repeat the comments I made in relation to past loss of superannuation. Again in the circumstances and doing the best I can I award the plaintiff damages for loss of future superannuation in the global sum of $9,000.
Past and future gratuitous services 69 The plaintiff spent about four days in Royal Perth Hospital immediately after the accident. Mrs Chrimes collected the plaintiff from hospital and drove him to his parents' home in Northam where he lived for the next two weeks. The plaintiff gave evidence that his parents spent six hours per day caring for him during this time. Mrs Chrimes gave evidence that she visited the plaintiff daily and also provided him with assistance during this time. The plaintiff then returned to his own home in Northam. 70 Mrs Chrimes gave evidence that she provided daily assistance to the plaintiff from the time he returned to his own home. The plaintiff's leg was in plaster for about five weeks and he was using crutches until about the end of May 1998. During these early months after the accident the plaintiff needed assistance to do many things including showering, personal hygiene, bandaging, preparation of meals, washing, attending doctor and physiotherapy appointments some of which required travel to and from Perth, and shopping, including the purchase of medications. 71 Dr Hamzah performed an epidural injection on the plaintiff on 1 November 1999. It did not provide the plaintiff with much pain relief and so on 20 January 2000 Dr Hamzah performed facet joint rhizolysis bilaterally on the plaintiff. This resulted in quite a severe amount of post-operative pain. The plaintiff underwent cryorhizolysis of the lower facet joints on 13 April 2000. On 23 July 2001 Dr Hamzah performed a bilateral L3/4, L4/5 and L5/S1 sacro-iliac joint radio frequency rhizolysis. The plaintiff required extra care after each one of these procedures. 72 The plaintiff gave evidence that his wife has cared for him for an average of about seven hours per week since the accident and continues to do so. Mrs Chrimes gave evidence that she does the washing, cleans the dishes, cleans fish tanks and rakes up around the house. I think that the plaintiff is capable of doing all of these things. Mrs Chrimes also chops the wood, changes the oil and tyres of the family car and shifts furniture. I do not think that any of these tasks would need to be performed very frequently.
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73 The plaintiff's father does work about the plaintiff's home including carrying wood, mowing the lawns, clearing gutters and shifting heavy bags of feed for the chickens.
74 While I am satisfied that the plaintiff needs domestic help in and about his home I am not satisfied that help totalling seven hours per week is necessary. While the help provided by the plaintiff's father is important and must be taken into account I am not satisfied that it is anything more than occasional help. The plaintiff is able to do the light handy man work about the house. It is only the heavier work that he needs help with on an occasional basis. He can cook and he does not require any personal assistance. 75 The assessment of gratuitous services in this case is subject to the provisions of s 93F of the Act as they were before 5 October 1999. 76 Doing the best I can I award the plaintiff past gratuitous services in the sum of $10,000 and future gratuitous services in the sum of $20,000.
Past medical and rehabilitation expenses 77 A total of $35,112 has already been paid for medical and rehabilitation expenses. This amount will need to be repaid in full by the plaintiff.
Future medical expenses 78 The plaintiff is currently taking on average two Panamax tablets, two Celebrex tablets and one Tarzac tablet on a daily basis. He uses about one tube of Voltaren gel each month. The total cost of all of this medication is $118.80 per month. The safety net threshold under the pharmaceutical benefits scheme is $669.70 and thereafter all scripts are charged at $3.50 per script. Based on current usage the plaintiff needs 16 scripts for the remainder of the year after the safety net threshold has been reached. The net result is that the plaintiff is currently spending about $725 per annum or $13.94 per week on medications. It currently costs $30 per consultation for the plaintiff to attend on his general medical practitioner. He has been attending on his general medical practitioner about six times per annum at an average cost of $3.46 per week. If the plaintiff maintained this level of usage and consultation for the rest of his life expectancy then it would cost $13,880 [($13.94 + $3.46) x 797.7].
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79 I am not satisfied that the plaintiff will need to maintain these levels for the rest of his life. Doing the best I can I allow the sum of $7,000 for future medications and consultations.
80 The plaintiff has an ongoing need to wear inner soles in his shoes at a cost of $380 per pair. Each pair lasts for about two to three years. If he bought a new pair every 2.5 years then the total cost for the rest of his life would be $2,330 ($2.92 per week x 797.7). I allow this amount in full. 81 The plaintiff will not need any further surgery. He may need occasional physiotherapy. 82 Doing the best I can I award the plaintiff damages for future medical expenses including medications, consultations, physiotherapy and inner soles in the total sum of $10,000.
General damages 83 I have no doubt that the plaintiff's life has been seriously affected by his back and foot injuries in particular and symptoms as a result of the accident. He continues to suffer from low back pain, neck pain, pain to the right foot ranging from a dull throb to sharp pain and numbness in the thigh above the knee. The plaintiff is no longer able to enjoy many outdoor activities including building and renovating in and about his house, kicking a football with his two sons from his first marriage, picking up and carrying his young son from his current marriage, walking for long distances particularly over sandy or uneven ground, rifle shooting on uneven ground and heavy gardening. 84 The plaintiff has difficulty sleeping at night due to back pain and numbness in his right leg. As a result he lacks energy during the day and is irritable. His sexual relationship with his wife has been impaired. The plaintiff acknowledges that his wife has been very supportive of him despite his injuries and symptoms. 85 The plaintiff is only 39 years of age and will therefore likely endure symptoms at varying degrees for a very long time. 86 I award the plaintiff general damages in the sum of $58,279. 87 Section 93E of the Act as it used to be applies to the assessment of the plaintiff's damages for non-pecuniary loss. The maximum amount that may be awarded is $264,903 and this may only be awarded in a most
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extreme case. I assess the plaintiff's damages for non-pecuniary loss to be 22 per cent of a most extreme case which equates to $58,279.
Conclusion 88 I assess damages as follows: Past economic loss $116,850.00 Past loss of superannuation $3,000.00 Future loss of superannuation $9,000.00 Past gratuitous services $10,000.00 Future gratuitous services $20,000.00 Future economic loss $227,408.00 Past medical and rehabilitation expenses $35,112.00 Future medical expenses $10,000.00 General damages $58,279.00 Total $489,649.00 89 I award the plaintiff damages in the total sum of $489,649 from which the total sum of $152,081 needs to be repaid for workers' compensation payments and medical and rehabilitation expenses as mentioned here.
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