Coatz v Westcourt Limited - [2002] WADC 84

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: COATZ -v- WESTCOURT LIMITED [2002] WADC 84

CORAM: HH JACKSON DCJ

HEARD: 1, 2 & 5 NOVEMBER 2001

DELIVERED : 3 MAY 2002

FILE NO/S: CIV 1205 of 2000

BETWEEN: KENNETH ARTHUR COATZ
Plaintiff
AND
WESTCOURT LIMITED
Defendant

Catchwords:

Occupiers' liability - Negligence - Liability and damages - Building site - Site cleanup - Knee injury

Legislation:

Occupiers' Liability Act 1985, s 5

Result:

Claim dismissed - Provisional assessment of damages

Representation:

Counsel:

Plaintiff: Mr B J Singleton QC with Mr D J Bayly
Defendant: Mr P A Monaco

Solicitors:

Plaintiff: Bradley & Bayly
Defendant: Godfrey Virtue & Co

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

Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479
Black v Motor Vehicle Insurance Trust [1986] WAR 32
Bowen v Tutte (1990) A Tort Rep 81‑043
Keogh v Dom‑Uie Pty Ltd, unreported; FCt SCt of WA; Library No 950649; 29 November 1995
Purkess v Crittenden (1965) 114 CLR 164
Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 60 ALJR 194
Thomas v O'Shea (1989) A Tort Rep 80‑251
Watts v Rake (1960) 108 CLR 158
Westralian Caterers Pty Ltd v Eastment Ltd (1992) 8 WAR 139

Case(s) also cited:

Andriolo v G & G Constructions Pty Ltd (1989) A Tort Rep 80-235
Bressington v Commissioner for Railways (NSW) (1947) 75 CLR 339
Bryant v Fawdon Pty Ltd (1993) A Tort Rep 81-204
Burnie Port Authority v General Jones Pty Ltd (1994) A Tort Rep 81-264
Bus v Sydney City Council (1989) 167 CLR 78
Coles & Ors v Montague Grant Architects Pty Ltd & Anor, unreported; SCt of WA; Library No 950374; 12 June 1995
Hill-Douglas v Beverley [1998] QCA 435
Performing Right Society Ltd v Mitchell & Booker (Palais de Danse) Ltd [1924] 1 KB 762
Sarvanidis v Chicago Bridge & Iron Constructors Pty Ltd (1989) A Tort Rep 80‑292
Scott v Boral Timber Tasmania Pty Ltd [2000] TASSC 120; 30 August 2000
Torette House Pty Ltd v Berkman (1939) 39 SR (NSW) 156
Tressider v Austral Stevedoring & Lighterage Co Pty Ltd [1968] 1 NSWR 566
Turner v State of South Australia (1982) 29 SASR 552
Vozza v Tooth & Co Ltd (1964) 112 CLR 316
Wyong Shire Council v Shirt (1980) 146 CLR 40
Zuijis v Wirth Bros Pty Ltd (1955) 93 CLR 561

HH JACKSON DCJ: This action is brought by the plaintiff who was born on 19 August 1945 and is and was formerly a bobcat operator. The defendant company occupied and controlled a building site at Lot 322 Cessna Drive, Jandakot where it was engaged in building a residential residence, and was at all material times an occupier of the site within the meaning of s 5 of the Occupiers' Liability Act 1985.
The defendant engaged the plaintiff to attend at the building site to complete the removal of building debris and the cleaning of the site.
It is alleged that on 23 November 1999, the plaintiff was working at the site and "in the course of attempting to remove a piece of mesh his right foot became entangled in a second piece of mesh buried in the sand thereby causing him to twist, fall to the ground and suffer injury" to his right knee.
The plaintiff's fall, pain and injury are alleged to have been caused by the negligence of the defendant, its servants and agents, in that they:
"(a)failed to adequately supervise the site to ensure that all rubbish and debris was placed in a single pile and not strewn across the site;
(b)allowed debris to be strewn across the site;
(c)failed to advise sub‑contractors to leave their rubbish in one pile;
(d)caused or permitted pieces of mesh to become buried and concealed in sand at the same, thereby creating a hazard."
The plaintiff claims resulting consequential damages. Both liability and damages are in issue.
By its defence, the defendant says that it was not in exclusive occupation or control of the site.
The defendant admits that it engaged the plaintiff as alleged, but says that it was not responsible for, and did not seek to exercise any control over, the system or method of work adopted by the plaintiff at the site.
The fall and injury are denied.
In the alternative, if the plaintiff tripped and fell as alleged, the defendant:
(a)denies that the object over which the plaintiff allegedly tripped and fell was concealed;
(b)says if the object over which the plaintiff slipped and fell was concealed as alleged, the plaintiff was engaged specifically because of his expertise in the detection and removal of both concealed and unconcealed rubbish and debris from the site;
(c)says the object on which the plaintiff allegedly tripped and fell was placed there by the company, engaged by the owner of the site, to install a below‑ground swimming pool and says the defendant was not responsible for, and was unaware of, any concealed rubbish or debris left by the said company;
(d)says the plaintiff knew or ought to have known of the danger in trying to remove the piece of mesh and should have had the common sense, the experience and the strength which could and should have left the plaintiff to remove the mesh in an alternative proper and workmanlike manner.
In the alternative, if the accident occurred as alleged, the defendant says that the plaintiff was guilty of contributory negligence in that:
(a)he knew or ought to have known and been aware of the obvious dangers in cleaning the site;
(b)with his expertise and extensive experience in site cleaning, should have had the obvious common sense to find an alternative safe method in removing the mesh;
(c)he was an experienced bobcat driver and site cleaner and should have known of the risk of harm involved and carried out his work differently to avoid any danger.
Section 5 of the Occupiers' Liability Act 1985 provides:
"5.(1) Subject to subsections (2) and (3) the care which an occupier of premises is required by reason of the occupation or control of the premises to show towards a person entering on the premises in respect of dangers which are due to the state of the premises or to anything done or omitted to be done on the premises and for which the occupier is by law responsible shall, ... be such care as in all the circumstances of the case is reasonable to see that that person will not suffer injury or damage by reason of any such danger.
(2)The duty of care referred to in subsection (1) does not apply in respect of risks willingly assumed by the person entering on the premises but in that case the occupier of premises owes a duty to the person not to create a danger with the deliberate intent of doing harm or damage to the person or his property and not to act with reckless disregard of the presence of the person or his property.
...
(4)Without restricting the generality of subsection (1), in determining whether an occupier of premises has discharged his duty of care, consideration shall be given to -
(a)the gravity and likelihood of the probable injury;
(b)the circumstances of the entry onto the premises;
(c)the nature of the premises;
(d)the knowledge which the occupier of premises has or ought to have of the likelihood of persons or property being on the premises;
(e)the age of the person entering the premises;
(f)the ability of the person entering the premises to appreciate the danger; and
(g)the burden on the occupier of eliminating the danger or protecting the person entering the premises from the danger as compared to the risk of the danger to the person.
6.(1) An occupier is not liable under this Act where the damage is due to the negligence of an independent contractor engaged by the occupier if -
(a)the occupier exercised reasonable care in the selection and supervision of the independent contractor; and
(b)it was reasonable in all the circumstances that the work that the independent contractor was engaged to do should have been undertaken.
..."
In the present case, it is not argued that s 6 has any application. It should, however, be pointed out that in the conduct of the case, counsel provided no particular comment on the matters the subject of s 5(2) and s 5(4).
Nor was any distinction sought to be drawn between the statutory regime so established and the common law as enunciated by the High Court of Australia in cases such as Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479.
In Westralian Caterers Pty Ltd v Eastment Ltd (1992) 8 WAR 139, Malcolm CJ, with whom Franklyn and Murray JJ concurred, said:
"The purpose of the Occupiers' Liability Act was to achieve by statute what was achieved by the development of the common law by the decisions of the High Court. The statutory provisions did not create a new cause of action for breach of statutory duty. What they did was to replace the former common law rules regulating the standard of care owed by occupiers to persons entering the premises in given situations, by a single standard of care in terms of the general duty of care referred to in Donoghue v Stevenson.
In other words, the statute did no more than reform the content of the duty of care at common law in the case of occupiers for the purpose of the common law action for negligence. Thus, s 5(4) sets out a number of considerations relevant to 'determining whether an occupier of premises has discharged his duty of care'. That duty of care is the duty, the content of which has been defined by the statute, but only for the purposes of simplifying the law governing the cause of action in negligence against occupiers. There is nothing in the statute which would have the effect that the cause of action in negligence at common law against occupiers has been converted into a cause of action for breach of statutory duty.
The Western Australian Occupiers' Liability Act is based on the Occupiers' Liability Act 1957 (UK) and the Occupiers' Liability (Scotland) Act 1960. In any action in which the duty of care provided for in the Act is relied upon, the question will be whether the occupier has taken reasonable care in all the circumstances. This is, in effect, the same question as arises in any ordinary negligence case.
In my opinion, a breach of the duty as formulated in the Occupiers' Liability Act provides an example of negligence per se or 'statutory negligence' as it has sometimes been called: cf David v Brittanic Merthyr Coal Co [1909] 2 KB 146 at 164, per Fletcher‑Moulton LJ. The statute defines the content of the relevant duty for the purposes of determining whether the occupier is liable in damages for negligence."
Both parties referred me to Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 60 ALJR 194 but, apart from some undoubted statements of general principle, that case is essentially concerned with issues not here relevant. The statements of general principle must be applied to the facts before me. There is no argument that the general duty of care expressed in the tort of negligence as replicated in the Occupiers' Liability Act is owed by the defendant to the plaintiff as an independent contractor.

Liability

Plaintiff's evidence

The plaintiff was 56 years at trial. He left school in England at 14 and worked in various jobs before emigrating to Australia with his then wife and son in 1965. He then worked in a number of other physically demanding jobs. In 1970, he underwent a knee operation by Mr Rowe, orthopaedic surgeon, following an assault and was off work for five or six months. However, he then became a crayfisherman and a deckhand on a prawning boat before becoming a bobcat operator in 1972. He also raised pigs. In the mid‑1970's, he established his own bobcat business trading as Ken's Bobcat Hire. After ceasing to raise pigs, he took up kangaroo shooting and then pet food supplies.
In 1994, he returned to bobcat and truck hire trading as Thompson's Lake Bobcat and Truck Hire, mainly cleaning up building sites and driveways for building firms. These included the defendant which trades as Plunkett Homes.
He described the usual work thus:
"In a site clean our job is to go to the site, pick up the rubbish, which is usually in a pile or two piles, put it onto the truck, level off the site, cut the carport and the driveway to minus one.
...
How do you pick up the rubbish?---... we have a special bucket made with teeth, so that when you pick - go into the rubbish and shake it, the sand falls off. So you've only got the rubbish to put on the truck, otherwise it costs you too much at the tip, and then what was - any other small stuff, such as papers might blow around, you pick up, but we put the rake against the house and pull it all into what you call a windrow and then push it into the heap and put them on the truck and then you'd smooth it off with the - with the ordinary bucket when we'd finished, so it looked nice.
Okay, and using the bucket, you put the rubbish into the back of the truck?---Yes.
Generally on a building site what sort of rubbish would there be after a house had been built?---After the - we had a first clean, there's usually broken bricks - what you call bricks straps, pieces of paper and plaster is rubbish.
And plaster is rubbish?---Yes.
Would you have any rubbish left over from grano workers?‑‑‑Not usually.
And generally what was the general nature of the building sites that you went onto for Plunkett Homes?---They was usually pretty good - pretty good - pretty tidy. They had a sign on the front of each house, 'All rubbish to be placed in one pile for a bobcat,' and that was pretty good.
And generally was most of the rubbish placed in one pile?‑‑‑Yes.
And when it was placed in one or two piles, did that allow you to use your bucket to scoop up the rubbish and put it in the back of the truck?---Yes.
And did you need to get off your bobcat in order to collect other rubbish?---Sometimes - the loose stuff that would blow around that you couldn't get in a pile.
What sort of loose stuff would that be?---Cement bags, food wrappers - mainly cement bags and bits of plasterboard.
And in 1994, when you were working for the defendant, Plunkett Homes, did you notice signs on building sites?---Yes.
And what did those signs say?---They said, 'We work safe,' and I'll always remember because Plunkett had it. It said, 'All rubbish to be placed in one pile at the front for bobcat.'
And where was that sign placed generally?---Usually on the front wall or the front - in the front window."
It was usual on a building site to do one site clean after plastering had been done, another before the site was handed over to the owner.
He then explained that when given a job by Plunkett Homes, he was told the address, the date, a job number, a plan, a cost sheet and a description of the work.
In about July 1999, Mr W Tyler of Plunkett Homes asked him to do a first site clean at 322 Cessna Drive. This was a large site with a large home being built on a building "envelope" within the larger lot, the remainder of which remained thick bushland. A plan of the area is exhibit 1. The building envelope was connected to the roadway by a limestone track or driveway. He unloaded the bobcat from his truck, parked the truck on the road verge and he, using his bobcat and assisted by his female partner, removed the rubbish from the site to the tip. He described the site as very messy with rubbish everywhere, not collected into one or two piles, spread around the perimeter of the house site and in the pool area, but within the building envelope.
Subsequently, he returned to the site on another occasion to prepare it for brick paving and for the grano work in the garages. He described the site as being, on that occasion, "a pigsty". He removed light rubbish such as cardboard boxes and pieces of plasterboard.
Towards the end of November 1999, Mr Tyler asked him by telephone to return to the site urgently to do a final clean. Mr Tyler apologised for the condition of the site and said that if Vicki White could also assist, they would pay for her also. He attended with her in the middle of the afternoon of 23 November.
He parked his truck and bobcat on Cessna Drive and they walked around the site. He could not drive the bobcat on the new driveway because if would damage the kerbing, so he drove it through the bush in the south‑west of the site. There was "rubbish everywhere, in the bushes, in the trees, just the whole front was like someone had gone bush with a bag of confetti". There was a pile of rubbish at one point but light bags, concrete bags and cardboard boxes everywhere.
He removed the pile of rubbish with the bobcat and returned. Vicki White removed rubbish from the house and pool areas to other piles which he also removed. They then collected rubbish by hand in an area south‑west of the driveway, working northwards. The bobcat could not get access to the area without damage to the bushland so they placed collected rubbish in the bucket of the bobcat after walking through bush. In the vicinity of a green electricity dome, there was rubbish comprising paper bags, straps and brick paving offcuts. To the south of the dome was a piece of reinforcing mesh about two metres by one or two metres in size. The squares formed by the mesh were about six inches by six inches in area. There was also a site toilet and an aluminium door or window frame lying on the ground.
He described what happened:
"What did you do with the piece of mesh that you had seen lying as you described?---I lifted it and pulled it to wrap it up.
Was that piece of mesh that you pulled lying on top of the ground?---Yes.
What happened when you pulled on the mesh?---I pulled on the mesh, just flicked it and I pulled it and as I pulled it I couldn't go anywhere. My feet - I felt my foot get caught - me right foot and as I went to go like this - the other foot and I just twisted around and fell on the doorframe that was there.
Okay. You have pulled the mesh?---Yes.
What happened to your feet?---They was entangled in another piece of mesh that was buried. I didn't see it.
Had you walked on the sand towards the piece of mesh?‑‑‑Probably five or six times at least.
Did you see the piece of mesh that your feet became entrapped in?---No, no.
What happened when you felt your feet entrapped?---I couldn't do much. I just kept - just kept - I couldn't go no where. I just couldn't get out because I had this mesh in me arms. I just twisted and fell.
When you fell down, did you feel anything?---Yes.
What did you feel?---I felt and I heard a crack in the right knee."
On 25 November, two days after the event, the plaintiff returned to the site and made an audio‑visual tape of the scene and his comments thereon: Exhibit 2. I am satisfied that that was, to the best of his ability, an honest and accurate account. Of course, the plaintiff's verbal commentary on the videotape would normally be inadmissible in evidence, but counsel for the defendant asked that it be played. The videotape does show an untidy building site surrounded by areas of sand and native bush.
In the oral narration to the videotape, the plaintiff says:
"The truck was parked down there and we had to come all through this bush here, exactly the bush, picked my way through. There was rubbish all the way through there along side the kerbing not only Plunkett's rubbish but other contractors that worked on the job and we came through this bush behind this bush here picking up rubbish and this rubbish here which we couldn't get from this side so we had to come through from the bush.
As you can see I really don't need, we come in through that gap up there and started hand throwing in all this rubbish. There is a big door frame just here, just here there is straps, pieces of paper, tin, reinforcing and as I went to pick this piece of mesh up here, the mesh that was laying on the end of that reo bar there was half sunken underneath the door frame and the sand, consequently as I tried to pull this out my feet became entangled in that lot of mesh there. I swung around and that is where I came down on top of that um frame there. I am only doing this because I just like the people at Plunkett to know some of these dirty jobs that I have to do and I believe there is no reason for a job to be this untidy."

In a statutory declaration made 10 December 1999, exhibit 8, the plaintiff said:
"I arrived at Lot 322 Cessna Drive Jandakot at approximately 3.00pm, with Vicki White.
I initially attended the main rubbish pile, located on the left hand side of the driveway in front of the house. I used the bobcat to clean up the rubbish pile and load it into the truck, which took approximately until 4.20pm. I also loaded all the tin into the truck using the bobcat during this time and 50% of the pallets, tin, limestone blocks, roofing and swimming pool tin and the boxes.
I loaded all of these into the truck and then drove to the Kwinana tip which took approximately 1 hour to drive, unload and return to the site. During the time on site initially, Vicki White collected loose papers and rubbish from the surrounding bush and house location and she then accompanied myself to the tip. I've arrived back on site at approximately 5.30pm and cleaned and loaded the rubbish on the top right hand side of the house, before attending to the rubbish on the left side of the driveway but mainly located within thick bush.
The top left hand pile contained brick bats, brick paver rubbish and I could not position the bobcat due to the bush.
The bottom left hand side contained brick straps, plastic, corrugated iron sheets, 3/8th reinforcing steel rods, 4 inch steel mesh and a large double window frame and these were piled together, being approximately 2 feet high and spread over two metres.
The driveway was kerbed and the only access was through the thick bush with the bobcat. I initially collected pushed the bobcat through the bush but I could not operate the bobcat due to the location of the rubbish.
I had to manually lift and load the rubbish into the bucket on the bobcat which required 10 buckets prior to my accident.
I walked to the front of the rubbish which was cleared between the kerbing and a toilet on the right hand side in an area of 2 metres of black sand. Laying on the ground was one piece of steel mesh which was approximately 1 metre square with 4 inch square meshing and laying on top of it was cement rubble. A door frame was over the right hand side corner of the mesh.
I placed my both hands in the centre of the mesh and with my knees and back bend forward, being half crouched, I pulled the mesh upright and shook it after it became free from the other rubble. I stepped one or two paces backwards turning this motion and I now had the mesh gripped in both hands with my arms fully extended directly in front of myself.
My right foot and leg where now behind my left foot and leg, when I realised my right heel was located in the square of another piece of mesh and my left foot was entangled in the same piece of mesh. I dropped the mesh I was holding as I became unbalanced and twisted to my right hand side, which prevented my feet from moving initially.
My right knee twisted outwards during my fall to the ground with my body in a full twisting motion. I landed on the corner of the door frame and due to my left foot being stuck in the mesh, I only partially fell on my right hand side.
I then stood fully upright by pushing myself up using both my arms and then I pulled my left foot out of the mesh. My right foot (heel) had freed itself during the twisting and falling motion.
During the twisting motion and falling I heard a crack but I did not know what had happened, but when I placed weight on the right leg, my right knee wobbled and instant pain.
I stated to Vicki White that I had hurt my knee, and was working a metre away to my left hand side. I realised I had severely injured my knee and ceased loading the rubbish onto the bobcat. I had to drive the bobcat back to the truck, hook up the trailer, load on the bobcat and drive the truck home.
During these tasks the right knee was extremely painful and swelling, and it was busted up. I left the site at approximately 6.40pm, which was about 10 minutes after my accident.
The mesh that I stood on was buried in the black sand and I did not see the meshing when I attempted to lift and load the first piece of mesh. I was wearing my safety boots, shorts, tee shirt, hat and ear muffs.
The weather was very hot initially and a clear evening with sufficient light to work in and I intended to stay on site until completing the job at approximately 7.30pm.
I arrived home at approximately 7.00pm and telephoned Wally Tyler after packing my right knee in ice and washed myself down.
I advised Wally Tyler that I had not completed the job."
At trial, he was further questioned thereon. He said he had previously on the afternoon concerned walked across the same area but not seen the mesh he became entangled in then or while picking up the piece of mesh he did see. Ms White was about 10 or 12 feet to his north. He described the area as "littery", meaning the area was not distinctly marked and there was no orderly rubbish pile. He could not use the bobcat to collect the rubbish because of lack of access. He stopped work and went home. After going home, he rang Mr Tyler to say the job was not finished and that he had hurt his knee. Mr Tyler said words to the effect that the site had "got away from him" and that it "had been going on for a while".
The plaintiff was cross‑examined. He agreed that he has extensive experience in site‑cleaning which enables him to operate the business without supervision from the builder concerned and that, essentially, it was a matter for him how the work was done.
He did not agree that the rubbish on this extensive house and bush site had, on his three visits, been collected or accumulated by the tradesmen and builders concerned into two distinct piles or areas. He agreed that there were two such piles, one at the south‑east and the other at the south‑west corner of the house site. On the first clean up, all sorts of rubbish had been in the bush area and he had removed it where possible. That clean up had been very extensive. The second visit was to clean up the verandah and carport areas. The third was a final site clean to collect accumulated rubbish and leave the site in a condition for handover to the owner. There was a small rubbish pile more to the east, but none to the south‑west. Rubbish had accumulated to the south‑west or west of the driveway in the area in which he saw a piece of mesh.
He uses a six wheeler truck and a bobcat which has a rake and a bucket attachments and which is transported in a trailer. The decision on site as to whether rubbish is collected by hand or by using the bobcat and rake is one for him and depends on the circumstances of the site, such as access for the bobcat and the size and quantity of rubbish.
On the third visit, he parked the truck on the roadway and drove the bobcat through a scrub area west of the driveway to collect rubbish from the western side of the driveway. After filling the truck and removing that load to the tip, he returned and drove the bobcat to within 10 or 12 feet of the electricity dome.
His opinion at trial was that the mesh he picked up was approximately two metres by two metres.
He was shown a bundle of photographs: Exhibit 5. These taken with his evidence suggest he was wearing heavy work boots. Photographs 7, 8, 9 and 10 show rough areas of sand and building debris.
Photographs 7 and 8 show the mesh that he believes he stepped onto. The reinforcing rods shown in the videotape, exhibit 2, are not shown in the photographs, which were taken sometime between 23 November and 9 December, nor in the videotape: Exhibit 7.
A diagram drawn by the plaintiff accompanied the statutory declaration and is exhibit 6.
The plaintiff agreed that the defendant's general practice is to create rubbish piles in convenient locations on each site and then to have those piles removed by independent contractors. This particular site was a large one with space for construction of the very large home built on it. Before the driveways were constructed, there was ample room to allow storage of building materials or rubbish removal. After the driveways were constructed, there remained space for rubbish storage, provided it was stored in the available open spaces. He agreed that the main rubbish pile had been on the right hand side of the house and a secondary pile to the left. He agreed that, at times, rubbish was stacked to the right hand side of and away from the front of the house. He denied that there was a clear five to six metre building envelope around the house, flat, open and with plenty of access to the building works. He denied telling Mr Tyler later by telephone that he had tripped on reinforcing rods. He said he had intended to pick up the piece of mesh he had seen, roll it up and squash it to place in the bucket of the bobcat.
He agreed that by November 1999, the major construction work on the house was complete and that the bulk of the rubbish had been removed.
A video film made on 30 August and 2 September by the building owner, exhibit 7, was played to the plaintiff. He agreed that neither of the two videotape films, exhibits 2 and 7, nor the photographs, exhibit 5, nor others, now exhibit 17, showed what could be described as a "pigsty", saying that in each case, he had previously cleaned up the site.
I accept the truthfulness of the plaintiff's evidence. I accept the plaintiff's evidence that he could not get the bobcat to the area in question without damaging the bush.
The plaintiff says the mesh into which he stepped was buried or hidden under sand and not visible before he stepped into it, although it was partially uncovered when seen soon after by Ms White.
I do not think the commentary he gave two days later when recording the videotape or in his statutory declaration , exhibit 8, are to the contrary or that I should not accept his evidence on the matter.

Ms White

The plaintiff's partner, Ms V White, gave evidence confirming that she had given the plaintiff unpaid assistance picking up loose rubbish for removal on this and other sites and the events of the day of the plaintiff's injury. They had not been able to take the bobcat to that point without causing damage to the native bush:
"The site had a portable toilet located at the left‑hand side of the driveway when viewed from the street and further up the left‑hand side of the driveway in the bush was a rubbish pile.
The rubbish pile contained strapping, building rubble, steel meshing and rods from the swimming pool, window frame and it was generally very untidy.
The bobcat could only access the rubbish pile via the bush and we then manually lifted the rubbish into the bobcat's bucket."
She confirmed that the injury had occurred at a point shown in the centre of photograph 7 in exhibit 5.
"I initially heard Kenneth Coatz call out in anger and I turned around and viewed him in a half‑crouch position near the bush. He was picking up steel meshing, but it was now laying on the ground. He began to stand upright and stated that he had hurt his knee due to standing in some mesh.
I walked over to him and he was holding his right knee and hobbling and stated, 'the mesh was under the ground'. I had not noticed the mesh previously."
The site was very untidy with rubbish in "numerous inaccessible locations".
Ms White confirmed that she had not seen the mesh into which the plaintiff trod prior to his doing so. She had walked across the area and seen the other mesh lying on the sand. After the plaintiff called out, she had seen the mesh into which he had trodden, then partially on top of the sand. It had not been resting on logs as in photographs 9 and 10 on exhibit 5. The plaintiff had been wearing safety boots as shown in photographs 3 and 4. She had, at that time, known the plaintiff for some 15 months and had never seen him limping or complaining of knee problems. He worked very long hours.
Cross‑examined, she confirmed that she had been picking up papers and other light rubbish closer to the bitumen driveway than the plaintiff had been, then walking to the bobcat to place them in the bucket, passing the plaintiff and the area where the mesh had been a number of times. She had seen the window frame, reinforcing rods and other rubbish.
Ms White, in her statutory declaration made 10 December 1999, exhibit 8, described what happened:
"I attended the site again on the 23rd November 1999 at an unknown time, but it was extremely hot temperature and probably mid to late afternoon.
I intended to assist Kenneth Coatz collect the loose rubbish and place it in a pile for him to load into the truck with the Bobcat. The site had a portable toilet located at the left hand side of the driveway, when viewed from the street and further up the left hand side of the driveway in the bush, was a rubbish pile. The rubbish pile contained strapping, building rubble, steel meshing and rods from the swimming pool, window frame and it was generally very untidy. The Bobcat could only access the rubbish pile via the bush and we then manually lifted the rubbish into the Bobcat's bucket.
We had initially cleaned the rubbish on the other side of the driveway and driven to the tip and returned to the site.
It was late afternoon when we worked on the rubbish pile at the left hand side of the driveway and I was picking up straps whist working 2 to 3 metres in front of Kenneth Coatz. I initially heard Kenneth Coatz call out in anger and I turned around and viewed him in a half crouched position near the bush. He was picking up steel meshing, but it was now laying on the ground. He began to stand upright and stated that he had hurt his knee due to standing in some mesh. I walked over to him and he was holding his right knee and hobbling and stated the mesh was under the ground. I had not noticed the mesh previously, but I now noticed the meshing partially uncovered from the ground. We ceased work, loaded up the Bobcat and drove home to Kenneth Coatz house and by now his knee was swollen and painful.
It was approaching darkness now, but it had been sufficiently light to work in at the site.
Kenneth Coatz was wearing his safety boots, shorts, tee shirt and hat.
The site was generally very untidy and rubbish was piled in numerous inaccessible locations.
I considered it a dangerous site due to the poor access and the way the rubbish was thrown around the site.
There was nobody else working on the site.
The main cause of his injury was the meshing laying in the ground unforeseen and not having been placed in an accessible rubbish pile. He could not have prevented his incident.
The driveway was bituminised with kerbing, which prevented the Bobcat access to the rubbish piles."

Mr T W Everitt

The plaintiff called evidence from the concrete swimming pool co‑ordinator for Aquatic Leisure Technologies, the company which built the swimming pool at Lot 322 Cessna Drive, Mr Everitt. He had visited the site on several occasions. He confirmed that the owner's videotape of construction, exhibit 7, shows the use of reinforcing bars, timber and galvanised iron in construction of the pool, but not iron mesh of the sort shown in photographs 9 and 10 of exhibit 5. Such mesh was not used in construction of the pool. The engineering drawings plan for the pool and the authority approved by the City of Cockburn for construction, exhibit 13, and the purchase order, exhibit 14, were tendered in confirmation. A bundle of photographs, exhibit 15, simply illustrate the construction method used.
Mr Everitt's evidence is that on completion of the concrete pouring stage of construction, his firm's practice is to arrange a site clean of their own rubbish by one of their labourers. The rubbish is generally left in one pile as close to the pool as possible. The reinforcing bar appearing in the videotape, exhibit 2, was similar to that used in construction of the pool, but would have other applications in the building industry.
Cross‑examined, Mr Everitt estimated the completion date of the pool to have been in December 1999, perhaps just before 13 December, or possibly January 2000.

Mr W L Tyler

The defendant's building supervisor, Mr Tyler, had supervision of construction of the house on Lot 322 Cessna Drive. The preferred method for rubbish removal is to have one or two rubbish piles, as accessible as possible, and at various stages of construction, to have site cleaners called in to remove rubbish. Up to four site cleans may be required. On this site, there were two rubbish piles, one just north of the toilet marked Site WC on exhibit 1, the other near the rubbish pile marked on exhibit 1.
Other rubbish not initially put on the piles was generally gathered up and put there or into a smaller pile. The site was reasonably level and accessible, with "very sandy" soil, and not particularly difficult for rubbish removal. Building material delivered to the site would be delivered either just past the site toilet or at the end of the limestone track from the road.
Mr Tyler said he had engaged the plaintiff to clean the site on the third occasion for handover to the client. It was not a "pigsty" but a typical building site. He would expect the rubbish to include various types of building rubbish. He was not responsible to supervise the swimming pool construction, which was ongoing.
On 23 November 1999, the plaintiff rang him advising of an accident on site. He later made a statutory declaration dated 8 December 1999 in which he summarised the plaintiff as stating "that he had broken his knee due to catching his foot in some reinforcing rods left over from the swimming pool contract". The plaintiff stated that he was trying to extract some more rubbish, he had lost his balance and fallen over, his body going one way and his knee/leg remaining in a rigid position. He agreed that at times, on various sites, the plaintiff would have to manhandle rubbish into the bucket of the bobcat, but required no direction or supervision. He was shown the plaintiff's videotape, exhibit 2. He did not regard the site shown as unduly untidy. He agreed that the defendant had used steel mesh of the type shown in the construction of the house, but not the reinforcing bars. The mesh was used to reinforce the concrete floor slab, but not the driveway. If so, it should have been removed on one of the earlier site cleans. Rubbish should not have been left outside the building envelope, although some papers would blow out. From the video, he thought the steel mesh and reinforcing bars to have been inside the building envelope. Some of the building envelope still had vegetation on it. The owner has removed it since.
Cross‑examined, Mr Tyler confirmed that he had known reinforcing bars were then on site. There had been delay in constructing the pool. Whilst agreeing that the steel mesh may have come from the house construction, Mr Tyler added that it may have been dumped on the site by outsiders.
Mr Tyler visited the site the following day and described its condition as being similar to that shown in the videotape, exhibit 2, spread around an area of about four metres square. In his opinion, a bobcat could have gone to that area. He agreed though, that paper items might have scattered through the trees. A week or so later, he ordered the site cleaned. Steel bars were removed.
Mr Tyler made it clear that he regarded the plaintiff as a genuine and hard worker.

Mr D M Willshee

The owner of Lot 322 Cessna Drive, Mr Willshee, produced a number of photographs of the house during construction, exhibit 17. At the time, he had been living overseas and visiting Perth from time to time. On his visits, the site had been clean. "There had been a lorry size in mass" of rubbish in the rubbish pile at the spot shown as such on exhibit 1. The site had very loose sand. "You could sink in well deeper than your feet." By the end of November or early December, the house was being carpeted and tiled.
When he arrived in the first week of December, the site was being landscaped. Concrete was poured for the swimming pool in late December or early January. A videotape film of the house under construction, exhibit 7, was made on 30 August and 2 September. He did not visit between that time and early December. He had, however, seen the door or window frame in the same position as shown on the videotape, exhibit 2.

Conclusions on liability

The plaintiff says the defendant owed him a duty not to allow the site to become hazardous by, for example, requiring rubbish to be placed in piles and not allowing it to become buried in sand, albeit the plaintiff accepts that the weld mesh was in an area designated as a building rubbish area, although not being part of a pile. The plaintiff says the site generally lacked supervision in relation to rubbish becoming strewn across a site the nature of which was such that it could easily become hidden. It was foreseeable both that rubbish would become buried and that injury might result. Avoidance thereof was easily achievable at little, if any, cost. The fact that the plaintiff's task was to clean up the site was irrelevant.
There is, the plaintiff says, no question of contributory negligence, given that the mesh was hidden. He was simply walking along a sandy track doing his work of picking up rubbish when he stopped to do so and his foot caught in the hidden mesh.
The defendant says that the plaintiff in his oral evidence, his oral narration accompanying the videotape, exhibit 2, and his statutory declaration made 10 December 1999, exhibit 4, has given three versions of the way injury occurred. That the mesh was only partially concealed is, the defendant says, supported by the audiotaped description of events given by the plaintiff on exhibit 2. The defendant says that a different, more methodical system of working away from the bobcat would have revealed or would have been more likely to reveal the mesh and to avoid injury. In any event, the defendant says, the description of the mesh as being only partially concealed combined with the plaintiff's system of work which involved him walking backwards and forwards across the relevant constitutes at least contributory negligence on his part.
Whilst the defendant does not admit or accept that the plaintiff injured his leg in the way he alleges, I am satisfied to the appropriate standard that he did so. I find him to be a reliable and truthful witness and I prefer his evidence on the matter to Mr Tyler's later recollections of the plaintiff's telephone account of what occurred.
The defendant denies that it was negligent in allowing the site to be strewn with rubbish or in failing to adequately supervise rubbish on the site and to ensure that was placed in piles. The system of accumulating rubbish into piles in designated areas was, it says, both appropriate and achieved.
More specifically, the defendant says that exhibit 2, the videotape, and exhibit 5, the photographs, show that the mesh was not buried or concealed. The defendant accepts the probability that the mesh was left over from its building operations on the site.
Whilst, as it must, it accepts a duty of care, it argues that here we have an experienced man who did not require instruction or supervision, working to clear an open, level site on which was found usual and typical building rubbish and materials in designated areas.
The defendant says that the mesh, the reinforcing rods and the door or window frame were all part of a designated rubbish pile, some of which the plaintiff had already removed. It does not accept that his foot lodged in the steel mesh or that the mesh was hidden, buried under sand. Nor does the defendant accept that the plaintiff could not access the site of the mesh and other materials directly with the bobcat.
In any event, however, the defendant says that the plaintiff should have been aware of the likelihood of building materials being in the area and hidden or buried either in the sand or by other rubbish or vegetation. Further, the plaintiff should have adopted a methodical approach to cleaning the site, first removing rubbish closest to the bobcat and working towards the driveway so that it was not necessary to repeatedly walk across uncleared areas.
Nor can it be said that the defendant has invited or allowed onto the site a person unable to or inexperienced in dealing with such a task as cleaning the site and in doing so foreseeing and avoid risks and dangers, including that of hidden debris.
The defendant pleads contributory negligence said to be the result of the plaintiff's method of work.
Whilst I accept the facts as given in evidence by the plaintiff and Ms White, I do not find them to establish a negligence by the defendant by way of breach of its duty of care as an occupier to the plaintiff. He was aware of the nature of the site and of his tasks, an experienced operator working without supervision who chose his own method of work.
The defendant took reasonable steps to keep building and site rubbish within the building envelope, and this event occurred there. Both parties accept that that was an attempt to keep rubbish in specific piles but also that light papers would blow away over the site. There is no particular evidence of how the hidden mesh came to be where it was, but clearly, it was in an area in which there was other building rubbish. Whilst it was foreseeable to the defendant that such rubbish may become buried by sand, it was equally foreseeable to the plaintiff. More importantly, however, it is not apparent that the defendant failed to take reasonably available steps to prevent it. The defendant did have a system to deal with rubbish.
The most that can be said from the plaintiff's perspective is that the defendant should have done more to restrict the various rubbish to one or two strictly defined piles. There is no evidence as to exactly how much more it should have done in that regard. It was obvious that a pile had accumulated where the mesh rods and frame were, and almost inevitable that objects such as mesh would become partly or wholly submerged in the sand. It is not obvious what else it could do to remove such items except engage such a contractor as the plaintiff.
I am not satisfied that it was negligent in what it did. Realistically, a building site inevitably involves such materials and hazards and, notwithstanding designated areas and regular cleanups, it must be inevitable that some items will be dropped or left elsewhere or become hidden or covered.
Having regard to the considerations referred to in s 5(4) of the Occupiers' Liability Act, I am not satisfied that negligence is established. No question of contributory negligence therefore arises.

Provisional assessment of damages

Notwithstanding my finding as to liability, I think it appropriate to make a provisional assessment of damages.

Quantum

The plaintiff's evidence

The plaintiff said that when he felt the pain, he heard a crack as if from inside his knee and then sat down. He then felt pain. He did not continue cleaning the site but loaded the bobcat on the trailer and went home. He rang Mr Tyler. He applied ice packs to his knee. On 24 November, he consulted Dr Buxton and was referred for x‑rays after the swelling was reduced.
On 20 December, he underwent surgery from Mr D Wright, orthopaedic surgeon. He described the pain to that time as excruciating. He was not working.
On 17 January 2000, he saw Mr F Bell, orthopaedic surgeon, at the defendant's request.
He returned to work on a part‑time basis in late March 2000. His knee remained stiff and still does.
He commenced working for different builders, who maintained ten cubic metre skips or bins on site. The work required is less and takes less time for the same reward. His hours had been reduced because he could only work four hours or perhaps five or six per day because of his knee. On occasion, his son had assisted with urgent or additional work.
He described the situation as becoming worse. He could hardly work because of inflammation and pain from using the pedals. He has trouble walking on uneven ground. He described the pain as "excruciating, like a red hot needle searing sensation". He described sharp pains on a daily basis, together with loss of flexibility causing him to stumble. He uses ice packs and a bandage.
Prior to the accident, he said he had ridden his horse, gone fishing, bowling and walking. Because of his knee, he can no longer ride a horse, kick a football or go crabbing.
He takes, he said, 200 milligrams of Celebrex each morning at a cost of $21.60 per month. He sees his general practitioner for prescriptions two monthly.
Cross‑examined, he said the injury to the knee had produced stabbing pain, stiffness and a dull ache. In December, he underwent arthroscopy under general anaesthetic, after which he suffered excruciating pain for another month. He had physiotherapy for three months, until returning to work. He repeated that he now works five to six hours per day, but works six or even seven days per week. He agreed he is now earning more per hour than prior to the accident.

Mr K R W Coatz

The plaintiff's son, Mr K R W Coatz, confirmed that he had assisted the plaintiff after the accident four or five times weekly, often without recompense but sometimes being paid. He confirmed that his father had worked very long hours prior to the accident.

Medical evidence

Mr J D Wright, orthopaedic surgeon, saw the plaintiff at the request of Dr Buxton. His reports are exhibit 9A to 9E. An arthroscopy was conducted on 20 December 1999. On 5 January and again on 19 January, the plaintiff's right knee was reported as very painful and stiff. The plaintiff walked with a limp and had restricted range of movement. He was referred to physiotherapy. Mr Wright reviewed him a number of times up to April 2001.
In June 2001, Mr Wright reported:
"The plain X‑Rays showed deformity of the lateral femoral condyle with some mild to moderate degeneration of the lateral compartment. An arthrogram showed that most of the lateral meniscus had been removed previously and that there was tearing of the posterior horn of the medial meniscus.
Mr Coatz did give a history of a knee injury more than 25 years ago following which he had required surgery including a lateral meniscectomy. It took a long time for him to recover but ultimately he had a good result and had been working in heavy, manual occupations over the years without any undue discomfort.
...
I found mild to moderate medial degenerate change with a stable tear of the medial meniscal posterior horn. On the lateral side there was moderate degenerate change with evidence of a previous lateral meniscectomy. There was a partial tear of the anterior cruciate ligament that appeared to be a new injury because there was bruising of the tendon substance. Mr Coatz's knee continued to be very painful and swollen following the operation. He was referred for physiotherapy treatment and with time and exercise his condition did improve. When I reviewed him on the 28 March 2000 he had only resumed work a week before and was only managing to work four to five hours per day.
I reviewed him recently on the 24 April 2001. His knee is still uncomfortable and he is unable to work fulltime and said that he works an average of about three hours per day. A new X‑Ray of his knee showed severe narrowing of the lateral joint compartment on the intercondylar view. There was chondrocalcinosis of the medial compartment and there was irregularity of the lateral articular surface.
...
When first seen Mr Coatz had a stiff, painful, swollen knee with a range of movement from 15 to 90 degrees. When last reviewed he had a range of movement from 5 to 100 degrees with no swelling.
Mr Coatz has pre‑existing degenerate change. In the accident on the 23 November 1999 he twisted the knee and sustained a partial thickness tear of the anterior cruciate ligament and also aggravated the pre‑existing degenerate change.
...
No specific treatment is required at present apart from ant‑inflammatory medications.
...
Mr Coatz has significant residual disabilities as a result of his injury. Before the accident he was working fulltime in his own business - he is now struggling to work three hours per day on five days per week. He has to avoid heavy jobs. Although there was pre‑existing arthritis his symptoms have been significantly aggravated by the accident.
It is unlikely that Mr Coatz knee will improve any more and his current condition is likely to prevail for a lengthy period of time.
He is fit for pre‑accident duties as a bobcat operator but is unable to work fulltime.
I doubt that he will ever be able to return to fulltime work as a bobcat driver."
Giving oral evidence, he agreed that the injury and symptoms were consistent with the plaintiff's description of what had occurred. He described the plaintiff's pre‑existing degeneration as mild to moderate. However, the plaintiff had been without pain and worked in labouring jobs for long hours over many years. Although there was pre‑existing arthritis, the injury had significantly aggravated the symptoms in that with ageing, the plaintiff would now suffer greater aches and pains in the knee than otherwise would have been the case. His work disability is considerable and likely to prevail for a lengthy period of time. He did not accept that the plaintiff's present symptoms are entirely due to the progressive and pre‑existing degenerative arthritis inevitably resulting from the much earlier injury which led to the meniscectomy or to the plaintiff's age and employment. He thought the plaintiff would require anti‑inflammatories on an as needs basis fairly regularly for the rest of his life.
Mr Wright disagreed with the opinion expressed by Mr Brash that the absence of instability in the knee ligaments indicated lack of injury to the anterior cruciate ligament. He also disagreed that symptoms would inevitably have flowed from the pre‑existing degenerative arthritis or with Mr Brash's description of it as significant degeneration.
Mr Wright was not asked about the likely need, cost or timing of future knee surgery, although a claim is made in respect thereof.
A report by Mr F G Bell dated 18 January 2000n was tendered by consent as exhibit 12. Mr Wright agreed with Mr Bell's conclusion that the plaintiff's incapacity resulted from the injury superimposed on the pre‑existing degenerative changes.
Mr S W Brash, orthopaedic surgeon, saw the plaintiff on 9 October 2001. His report is exhibit 11:
"Conclusion
This patient suffered a torn meniscus and had a lateral menisectomy some 30 odd years ago. We know that the inevitable result of a menisectomy, especially an open menisectomy in a young man is degenerative arthritis. Thus, it was completely predictable that this man would have and does have significant moderate degenerative arthritis in the right knee.
I say this patient has significant degenerative arthritis because of the following:
•genu valgus deformity
•significant wasting of the right quadriceps muscle
•fixed flexion deformity
•lack of full flexion of the knee.
Thus, prior to 23 November 1999 this patient did have inevitable and significant degenerative arthritis in the right knee. According to him it was asymptomatic. It was inevitable that sooner or later, even if this patient had not suffered the incident on 23 November 1999 that this degenerative arthritis would have become symptomatic.
There is no evidence that I can now see that this patient has any significant pathology that one can attribute to the incident on 23 November 1999. There is no doubt this patient did suffer a soft tissue injury to the right knee. According to the arthroscopy this may have involved some damage to the anterior cruciate ligament because there was some bruising here. However, this ligament would have healed and it is most important to note that there is no sign of any ligament instability at the present time. Thus this patient did not suffer any significant to the anterior cruciate ligament. Likewise he suffered no significant injury to the meniscus.
It is therefore my conclusion that this patient's symptoms are now entirely due to the pre‑existing and progressive degenerative arthritis in the right knee which was an inevitable result of the menisectomy that he had some 30 odd years ago.
...
I believe that this patient did suffer a soft tissue injury to this right knee on 23 November 1999. This injury of course was against the background of long standing, pre‑existing and progressive degenerative changes in the right knee.
...
I believe that this patient's are due to the long, pre‑existing and progressive degenerative changes in the right knee.
There is no obvious discrepancy between the patient's subjective symptoms and the objective clinical findings.
The arthrogram findings are entirely predictable with a previous menisectomy some 30 years ago.
The major cause for his disability is the menisectomy some 30 odd years ago. However, this patient has worked for almost his entire working life in a job involving jumping up and down on bobcats, twisting, bending, crouching and lifting. Thus his employment probably contributed to an acceleration in the rate of deterioration of the long standing, pre‑existing degenerative changes.
I believe this patient has made a complete recovery from the incident he suffered on 23 November 1999.
Clearly Mr Coatz has a current work capacity and he is working on a daily basis, 4‑5 hours a day as a self employed bobcat and truck driver. Quite clearly he could work full‑time if he was not placing a strain upon the right knee with its very significant degenerative arthritis.
Because of the significant degenerative arthritis in the right knee it is doubtful whether this patient can work as a plant operator or bobcat driver in a full‑time capacity.
The basis on which I formed this opinion is because of the quite obvious moderate degenerative changes in the right knee.
...
At this point in time the patient requires medications. I do not believe at this point in time he requires surgical intervention. It could well be and probably will be that he will come to surgery for this right knee in later life.
The patient does have a permanent loss of function of this knee, and I believe that this is due to the pre‑existing progressive degenerative arthritis in this right knee."
Mr Brash, in oral evidence, explained that he had concluded from Mr Wright's reports and the arthrogram as well as his own findings of no ligament stability that this was what he described as a case of grade 1 ligament damage, that is one of intra substance tearing but the ligament remaining intact and functioning being competent. Such injury, he said, does not lead to degenerative arthritis. He had assumed from Mr Wright's silence on the matter that Mr Wright had not found acute damage to the articular cartilage. Such a twisting accident would usually damage the anterior cruciate ligament. He described the plaintiff as suffering prior to the accident:
"... significant degenerative arthritis. He had a fixed flexion deformity. He had a valgus deformity. He had wasting of the quadriceps muscle and he lacked full flexion. From the x‑rays and that, ... this means that he had significant degenerative arthritis and it had taken certainly 30 years to get to that stage, but it was significant and because it was significant degenerative arthritis, it was moderate, moderate severe and increasing and deteriorating - progressing - sooner or later he would have become symptomatic and probably required further surgery."
Mr Brash agreed that he could not say when this would have occurred.
Cross‑examined, Mr Brash agreed that the injury would have caused the bruising and inflammation Mr Wright noted but said he expected it would have settled. There is no evident ongoing pathology resulting from the injury. He could not be firm about whether or when or what future knee surgery might be required or its cost but it would not be the result of the injury in any event.
I prefer the evidence of Mr Wright to that of Mr Brash where they differ. The injury not only caused pain and limitations at the time, but by rendering the pre‑existing degeneration symptomatic and aggravating, it caused the ongoing condition. However, I also accept that given that pre‑existing condition and the plaintiff's age and employment, such a condition would have, in any event, resulted at some, albeit unknown, point of time.

The defendant says that on the medical evidence, it was inevitable that the plaintiff would have suffered arthritis from the degenerative change following the lateral meniscectomy some 25 years ago. The soft tissue injury suffered in the accident led to an arthroscopy but no other surgery and he returned to work as a bobcat operator. Stiffness and pain and the ongoing need for analgesics, the defendant says, largely result from the degenerative change. The plaintiff had not found it necessary to consult a treating doctor or physiotherapist during 2000 or 2001.

General damages

I would assess these in the sum of $30,000.

Financial loss

The plaintiff's income tax papers for the years ending 30 June 1996 to 30 June 2001 are exhibit 3. A summary is exhibit 18. His evidence is that prior to the accident, he was working about 10 hours per day, six days per week. He said he had intended to work indefinitely. At the time of trial, he was working four or five hours per day, six days per week. In the financial year in which the plaintiff suffered his injury, 1999‑2000, his personal net income was $47,144. In the year 2000‑2001, it was $152,004 gross, net $62,065. In the year 1999‑2000, the trading entity, the Coatz Family Trust, had a gross income of $110,945, in 2000‑2001, of some $152,000.
This is partly explained by work done for the plaintiff on a gratuitous basis by his son, two or three times per week. However, the plaintiff says he is now doing work which earns greater hourly income because it involves more individual jobs in less time.
Mr S D Barnard, plant manager for an earthmoving broker, confirmed that the plaintiff had been highly sought after as a building site cleaner. Average earnings at present for bobcat drivers not supplying their own machinery are in the range of $20 to $22 per hour gross, and with machinery $44 to $60 per hour gross. His firm would be able to provide the plaintiff with up to 220 hours work per month.
The plaintiff, I accept, was unfit for work between 24 November 1999 and 1 April 2000. Thereafter, he worked less hours per day than prior to the accident.
Mr Bayly put the hourly net loss at $18 and the loss of hours at five per day and says those figures should be the basis of assessment. Thomas v O'Shea (1989) A Tort Rep 80‑251 and Bowen v Tutte (1990) A Tort Rep 81‑043 place an evidentiary burden on the defendant to show any alternative. He urges that loss of future capacity be allowed to age 65 subject to a discount for contingencies of 6 per cent: Black v Motor Vehicle Insurance Trust [1986] WAR 32. In Keogh v Dom‑Uie Pty Ltd, unreported; FCt SCt of WA; Library No 950649; 29 November 1995, the Full Court took the view that the possibility that the plaintiff's working life might have been cut short by a pre‑existing condition should be dealt with as part of the overall discount for normal contingencies.
The plaintiff not only made good recovery from his original knee injury, but over many years, performed hard manual work over long hours, yet remained asymptomatic until the injury the subject of the present claim.
The plaintiff says, on the basis of Watts v Rake (1960) 108 CLR 158 and Purkess v Crittenden (1965) 114 CLR 164, that the defendant has not discharged the evidentiary burden of showing that but for the present injury, the knee would have become symptomatic. That said, however, I am satisfied on the medical evidence that at some indefinite future time, it would have. As to the impact of the present injury, I prefer the evidence of Mr Wright.
The defendant says that the plaintiff has failed to produce evidence of shortened working hours consequential upon his injury and that his evidence differs from the particulars contained in the pleadings and schedules. However, it was not suggested either that he was working longer hours than he said he was. On his evidence, he has worked since the injury and his return to work between 20 and 36 hours per week compared to about 50 hours per week before the injury. The fact also is that because he has changed the builders he is working for, with changed arrangements flowing from that, he is earning more rather than less than prior to the injury. But for the accident, the defendant says, he would have continued to do so. However, subject to liability, he is entitled, in my view, to damages for loss of capacity. I accept his honesty as to that, but it must be borne in mind that he would, in any event, suffer arthritic pain and loss of movement from degenerative change and that he is a man now 56 in heavy manual labouring work. Although the defendant does not argue with the plaintiff's plea that he intends to work to age 65, the question of the onset of symptoms from ongoing degenerative change remains. I would assess damages under this head provisionally in the following way:
I would allow $25,000 for the period between the accident and April 2000 plus $1,000 in interest. I would allow loss of future earning capacity of 15 hours per week for five years at $15 per hour nett discounted at 6 per cent. I choose five years, given the inevitably of symptoms in due course. That results in a figure of almost $51,000.

Special damages

These are agreed in the sum of $1,216.40, subject to liability.

Conclusions as to provisional assessment of damages

But for the issue of liability, I would assess damages as follows:
General damages  $ 30,000.00
Past economic loss  $ 26,000.00
Future economic loss                  $ 51,000.00
Special damages  $    1,216.40
TOTAL  $108,216.40