Duzevich v Carrier Air Conditioning Pty Ltd - [2000] WADC 277

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: DUZEVICH -v- CARRIER AIR CONDITIONING PTY LTD [2000] WADC 277

CORAM: COMMISSIONER MARTINO

HEARD: 4, 5, 6, 7, 13 APRIL 2000

DELIVERED : 8 NOVEMBER 2000

FILE NO/S: CIV 779 of 1999

BETWEEN: IVAN ROBERT DUZEVICH
Plaintiff
AND
CARRIER AIR CONDITIONING PTY LTD
Defendant

Catchwords:

Damages for personal injuries - Content of duty of care owed by defendant who was not the plaintiff's employer - Loss of earning capacity that had not been exercised before the injuries were suffered

Legislation:

Workers' Compensation and Rehabilitation Act 1981

Result:

Judgment for the plaintiff for $359,499

Representation:

Counsel:

Plaintiff: Mr I L K Marshall
Defendant: Mr R G Walton

Solicitors:

Plaintiff: Paul O'Halloran
Defendant: Crisp & Partners

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

Jongen v CSR Ltd & Anor (1992) Aust Torts Reports 81–192
Stevens v Brodribb Sawmilling Company Pty Ltd (1986) 160 CLR 16

Case(s) also cited:

C N Jenkin v Dalrymple Shire Council, unreported; SCt of QLD; BC9303204; 23 April 1993
Hamilton v Nuroof (WA) Proprietary Limited (1956) 96 CLR 18
Paul v Rendell (1981) 34 ALR 569
Raimondo v State of South Australia (1979) 23 ALR 513
Shiers v Alfa-Laval (SA) Pty Ltd & Anor (1984) Aust Torts Reports 80-671
Turner v The State of South Australia (1982) 56 ALJR 839
Vozza v Tooth & Co Ltd (1964) 112 CLR 316
Water Board v Moustakas (1988) 180 CLR 491
Waugh v Kippen (1986) 64 ALR 195
Wyong Shire Council v Shirt (1980) 29 ALR 217
Zuijs v Wirth Brothers Pty Ltd (1955) 93 CLR 561

COMMISSIONER MARTINO:

Introduction

The plaintiff was born on 3 April 1974. He claims damages for personal injuries alleged to have been suffered on 26 February 1993 while working as an apprentice mechanical fitter at the defendant's premises.

Background

The plaintiff left school at the end of 1990, having completed year 10. In 1991 he attended Rockingham TAFE, doing a pre-apprenticeship course in metals, engineering and mechanical fitting.
On 28 January 1992 the plaintiff commenced an apprenticeship with the Metal Industry Group Training Association of WA (Inc) ("MIGTA"). The trade in which he was doing his apprenticeship is described in the apprenticeship agreement as Engineering Tradesperson (Mechanical). It was referred to throughout the trial as the trade of mechanical fitter. The apprenticeship period was to be for four years.
In 1992, while still employed by MIGTA under the apprenticeship agreement, the plaintiff worked for Wavemaster International. There he worked on catamaran boats doing welding, pipefitting and machining.
In approximately November or December 1992 he commenced working at the defendant's premises in Subiaco. He remained employed by MIGTA who provided his services to the defendant.
The plaintiff's job at the defendant's premises was to work on an assembly line on which industrial air conditioning units were manufactured. His tasks were to fit compressors, pipes, panels and radiators and to weld the parts that made up the units. His supervisor was Bradley Chugg. Mr Chugg was employed by the defendant as a leading hand. Above Mr Chugg in authority was Mr Philip Smith, the foreman/supervisor who was also employed by the defendant.
The plaintiff ceased working at the defendant's premises in July 1993. He left because he lost his driver's licence. His apprenticeship with MIGTA was then suspended.
Around that time the plaintiff's father and brother and their families moved to Kalgoorlie. The plaintiff's brother was working for JGB Contracting ("JGB") a machinery and truck maintenance organisation. The plaintiff applied for and obtained employment with JGB and his apprenticeship was transferred to that organisation. He commenced at JGB in November 1993. He ceased working for that company in around January or February 1996. He obtained his trade as a mechanical fitter at that time. He had not completed the full four years of his apprenticeship period but he received a four-month dispensation. He applied for that dispensation because of back pain. He obtained the dispensation as a result of evidence from his foreman and supervisor at JGB that his work was of sufficient standard for him to be a qualified mechanical fitter and that was accepted by the relevant authority.
Since then the plaintiff has had some employment as a trainer but has been unemployed for lengthy periods and was unemployed at the time of trial.

The issues

By his statement of claim the plaintiff claimed that he was employed by the defendant. The circumstances of the accident and the defendant's liability to the plaintiff for injuries suffered in the accident were alleged as follows:
"4.On 26 February 1993 whilst acting in the course of his employment with the defendant the plaintiff was required to get inside an industrial air conditioning unit to weld a leak in a pipe. In order to get to the pipe it was necessary for the plaintiff to adopt a very awkward posture. He had to hold the oxy acetylene torch in his right hand and braising (sic) rod and mirror in his left hand and twist his body to the left to get at the pipe to weld the leak. As he was completing the weld to the pipe he felt a sharp pain on the right side of his lower back ("the accident").
Fault
5.The accident was caused by the negligence and/or breach of statutory duty and/or breach of contract of employment of the defendant, its servants or agents.
Particulars of negligence
The defendant, its servants or agents, were negligent in that it or they:
(a)required the plaintiff to work in a restricted area and adopt an unnatural posture which placed stress on his musculoskeletal system;
(b)failed to provide a device or to devise a system of work which did not expose the plaintiff to a risk of injury;
(c)exposed the plaintiff to a risk of damage or injury of which it knew or ought to have known.
Particulars of breach of statutory duty
The defendant, its servants or agents were in breach of the Occupational Health Safety and Welfare Act (WA) 1985 ("the Act") in that it or they failed to provide and maintain a working environment in which the plaintiff was not exposed to hazard and in particular:
(a)failed contrary to s 19(1)(a) of the Act to provide and maintain a workplace and system of work in which the plaintiff was not exposed to hazard;
(b)failed contrary to s 19(1)(b) of the Act to provide such information, instruction, training and/or supervision of its employees as were necessary to enable the plaintiff to perform his work in such a manner that he was not exposed to hazard;
(c)the plaintiff repeats the particulars of negligence herein as particulars of the defendant's breach of its statutory duty.

Particulars of breach of contract
The defendant, its servants or agents, breached the express and/or implied terms of the contract referred to in par 3 hereof in that it or they:
(a)invited or required the plaintiff to perform work that was dangerous or unsafe for the plaintiff;
(b)failed to warn the plaintiff of any or all dangers associated with the work that he was invited or required to carry out;
(c)exposed the plaintiff to hazard and/or danger in the course of his employment;
(d)the plaintiff repeats the particulars of negligence herein as particulars of the defendant's breach of its contract of employment with the plaintiff.
Injuries
As a result of the accident the plaintiff has sustained the following personal injuries ("the injuries"):
(a)Soft tissue ligamentous injury to the lumbar spine with associated acute L5/S1 disc protrusion.
(b)Facet joint strain across the lower levels of the lumbar spine.
(c)Depression and anxiety."

The defendant denied that he employed the plaintiff and claimed that the plaintiff's services were hired from MIGTA. Par 4, par 5 and par 6 of the statement of claim were denied and further the following positive case was put forward:
"5.If, which is denied, the plaintiff has suffered injuries, loss and damage as alleged, or at all, the defendant says such injuries, loss and damage were caused or contributed to by the plaintiff's own negligence.

Particulars of plaintiff's contributory negligence

The plaintiff was negligent in that he:
(a)failed to remove the front left hand corner post of the air conditioning unit, which would have facilitated access to the area to be welded; and
(b)failed to use his own common sense to determine the most appropriate method of gaining access to the weld site.

6.Further, if the plaintiff has suffered injury; pain and suffering and undergone medical treatment as alleged (which is denied), or at all, the defendant denies such injury is a consequence of the alleged incident of 26 February 1993, and says that such injury (if any) relates to pre-existing lower lumbar degenerative disc disease.
7.Further, and in the alternative, if the plaintiff has suffered injury as alleged (which is denied), or at all, and suffers loss or damage as a result (which is denied), the injury suffered is not a "serious injury" as that term is defined in s 93D(1) of the Workers' Compensation and Rehabilitation Act 1981 (as amended), and the plaintiff is not therefore entitled to damages."

In his closing submissions counsel for the defendant clarified the defendant's position in relation to par 7 of the defence. The defendant's case is that if the plaintiff were employed by the defendant at common law then the defendant would be entitled to the restrictions contained in s 93D of the Workers' Compensation and Rehabilitation Act 1981 (before that section was amended by Act number 34 of 1999). If, as the defendant contends, the plaintiff was not so employed by the defendant then the restrictions contained in that section do not apply because the defendant would not then be the worker's employer independently of the Act – s 93B(1).

The plaintiff's evidence

The plaintiff gave evidence that he suffered injury on 26 February 1993 at the defendant's premises. He said that on that day the production line was quite full, they were behind schedule and the production line was stacked with air conditioning units butted up against each other.
There was a leak in a pipe of one of the air-conditioners. Mr Chugg asked the plaintiff to weld the leak. To do so the plaintiff had to lean inside the air-conditioner, twisting to his left and looking up under the pipe. He had an oxyacetylene torch in his right hand and a brazing rod and mirror in his left hand. While doing that task he felt a sharp pain in his lower back.
The plaintiff said that he reported the accident to Mr Smith on that day. He did not immediately seek medical attention because he hoped his back would settle down. After one week it had still not settled down and so he had the day off work and went to see his general practitioner Dr Jose of the Rockingham Medical Centre. At that time the plaintiff was suffering lower back pain going into his buttocks. Dr Jose gave to the plaintiff some medication and sent him for physiotherapy and chiropractic treatment. Dr Jose told Mr Duzevich not to work that weekend and to go back to work on Monday, avoiding lifting or bending. The plaintiff did go back to work on Monday and continued to work at the defendant's premises. As long as he did not bend, lift or twist he was okay, he still experienced some pain but it was bearable as long as he did not overdo anything. He had been told by Mr Smith not to do any awkward bending, twisting or lifting and he remained on these light duties until he ceased working at Carrier in July 1993. The reason that he ceased working at Carrier was that he lost his driver's licence.
The type of air-conditioner upon which he was working at the time of his accident was an S16 or an S18. They were similar units.
Upon his ceasing working at Carrier Air Conditioning the plaintiff's apprenticeship was suspended.
The plaintiff's family moved to Kalgoorlie and the plaintiff joined them there in July 1993. From July to November 1993 he was looking for work. The plaintiff's brother assisted him to obtain an apprenticeship with JGB and his apprenticeship was transferred to that company.
When applying for employment at JGB he completed a confidential medical record, that record asked the plaintiff whether he had ever had "any disease of, or injury to the neck or spine including back strain, disc disorder, lumbago, etc.?". The plaintiff answered that question "No". His evidence was that he answered that question incorrectly because he wanted the job and he thought that if he told the truth he would not get the job but, he said, he would tell his employer after he got the job, after he was successful in obtaining the job. He told Mr Bavich, the principal of JGB, after he had been at JGB for approximately two months.
The plaintiff remained at JGB until January 1996. He completed his work with quite a bit of difficulty as there was quite a bit of bending, twisting and lifting involved which caused continuing lower back pain.
While working at JGB he went to see Dr Tham for his back pain. Dr Tham referred the plaintiff to Mr Croser, orthopaedic surgeon.
The plaintiff obtained his trade qualifications in February 1996 and he then ceased working for JGB Contracting. He then returned to Perth.
Upon his return to Perth he approached the Commonwealth Rehabilitation Service ("CRS"). The CRS organised a work trial with Rockingham Kwinana Youth Skills Training. The plaintiff did not seek work as a mechanical fitter because of his ongoing lower back pain.
Initially the plaintiff did volunteer work at the work trial doing 10 hours per week. His responsibilities were supervising and instructing juveniles in mechanical and fabrication work. It was not heavy work. The plaintiff became employed by the Rockingham Kwinana Youth Skills Training Centre, his hours gradually increased and in February 1998 he commenced full time work. He ceased that work on 21 May 1999. He was asked in his evidence-in-chief why he could not continue to do that sort of work at the training centre if it did not involve heavy work. His evidence was:
"I can continue doing work as a trainer. I do get frustrated due to my lower back pain and, yes, apart from the frustration and not being able to keep my calm with the students, I can continue doing work as a trainer.
Why is that your not able to keep your calm? How did the frustration's arise? - - - Just working with young juvenile offenders. They can be very disobedient, even threatening and abusive, and with my lower back pain also, I just found it was a lot – too much to cope with." (Transcript p 21)
The plaintiff was asked in cross-examination about why he left that employment:
"Yes, Okay. You didn't leave there because your back was sore either, did you? - - - No. My back was sore, but I was able to cope with the duties.
Yes. You coped with the duties which were teaching duties within your trade, I think, weren't they? - - - Yes." (Transcript p 41)
The plaintiff has been unemployed since May 1999. He has attempted to obtain work but has not been successful at doing so.
While working at the Rockingham Kwinana Youth Skills Training Centre he completed a five day course in training. He obtained a first aid certificate in 1997 and he obtained an occupational health and safety certificate in 1998.
He is currently doing voluntary work with people with intellectual disabilities which he commenced in January 2000. He is working between 12 and 15 hours a week. He takes them out shopping, to cafes and to the movies to assist them in socialising and getting into the community. At the time of giving his evidence he had been offered a part time position but he did not know whether that would commence, if it did it would be between 12 to 15 hours work per week and remuneration would be at the rate of $14 per hour.
The plaintiff gave evidence that twisting, lifting and bending caused a sharp pain in his lower back down into his buttocks and into his legs. He has difficulty in standing in any one position and difficulty in sitting in a chair for half an hour without getting lower back pain. He is very stiff in the mornings when he wakes up, he cannot do the social sports he used to play, football, cricket and tennis he is restricted to swimming and cycling.
Driving for lengthy periods causes him problems because he cannot sit for long periods and if he drives a manual car using the clutch causes pain down his legs.
The plaintiff gave evidence that he has been provided with assistance by family members, his brother Wayne has helped him with servicing and working on his car and on work around the garden. His stepmother used to clean around the house for him. His sister in-law Lennie Duzevich used to do the same. His father rubs cream into his back. The plaintiff estimated that his brother Wayne helped him with the garden about one hour per month and with the car about four hours per month. In 1995 his sister in-law Lennie did 10 hours per month work around the house, his stepmother would have done about five hours per month in 1994. Since 1993 his father has been helping him by massaging cream into his back.
The plaintiff's evidence was that he has not continued working in his trade as a mechanical fitter because of his ongoing lower back pain. He said that if he had not suffered an injury he would be working up north in the north west Tom Price, Port Hedland or Darwin with his brother who is a Manpower operations manager in Tom Price. He can now do light duties work which enables him to stand up walk around and stretch when he needs to and does not involve awkward positions or sitting for lengthy periods. He had recently commenced a computer course and found that after doing that for more than an hour he was so stiff he could barely move.
In the course of his cross-examination Mr Duzevich was shown video film of him which was taken in October 1996. The film showed him bending looking under the bonnet of a motor vehicle, getting into a motor vehicle, squatting and taking items off the tray of a motor vehicle including a large box which he carried with the assistance of another person. The plaintiff agreed that the film did not show him displaying any signs of discomfort but did not agree that the film meant that he was fit for his pre-accident duties.
The film taken on 13 October 1996 was approximately two minutes in length and the film taken on 22 October 1996 was approximately 11½ minutes in length.

The evidence of Mr Chugg and Mr Smith

The defendant called Bradley Chugg and Philip Smith. Mr Chugg gave evidence that as at 26 February 1993 in his position as leading hand with the defendant he might have given instructions to the plaintiff to repair a leak in a pipe in an air conditioner on the production line. He could not recall giving such an instruction to the plaintiff.
Mr Chugg's evidence was that it would not be unusual to try to fix a leak in a pipe in an S16 or S18 air conditioner without removing the corner panel. Mr Chugg said that the only purpose to remove the corner panel when carrying out a weld would be to stop the paintwork being burnt by an inexperienced welder. The person who decided whether the corner panel was to be removed would be the individual operator. If the air conditioners were too close together on the production line to enable the corner panel to be removed then the operator could use an overhead gantry or a forklift to remove a air conditioner and the individual employees were free to do that if they choose to do so. Mr Chugg said that as at February 1993 he had been working on the production line for five years and in the whole of that time he was not aware that anybody had a back injury. He was not aware that the plaintiff had a back injury although there was an entry in the daily first aid treatment register that the plaintiff suffered a strain to his back on 26 February 1993 (Exhibit 26).

Mr Chugg said that on 26 February 1993 the usual knock off time was 1.05 pm.
Mr Chugg's evidence was that the task of welding the vertical pipe on an S16 or S18 air conditioner was not made any easier by taking off the corner post, that was because there was too much behind the corner post to enable clear access to the pipe by taking the panel off. Mr Chugg said that if you did take the corner panel off it was still not possible to approach the pipe to be welded from the side of the air conditioning unit.
Mr Chugg said that the pipes shown on an S16 or S18 air conditioner in Exhibit 1 was shown in the standard position and had not been pulled forward out of the corner post.
The time of 2 pm showed on the accident entry in Exhibit 26 for the plaintiff's injury could have been either the time that it was claimed the accident occurred or the time that the daily first aid treatment register entry was made, there had not been any instruction as to what that time stood for.
Mr Smith also gave evidence that the pipes as shown on Exhibit 1 were shown in the standard position for an S16 and S18 air conditioning unit.
Mr Smith said that it was not necessary to remove a panel to repair a weld in the vertical pipe on an S16 and S18 air conditioner and it is often repaired without a panel being removed. He said that if the plaintiff wished to remove a panel he did not have to ask he could just take it off himself. If there was not sufficient space on the production line for him to take off the panel then he could take another unit off the production line and push the unit back. Mr Smith had done some welding on S16 and S18 units but not much as his responsibilities were essentially supervisory. He had done welding on the vertical pipe but not on the horizontal pipe, he was not aware of any accident involving back injury occurring before the plaintiff's accident. In February 1993 the usual work hours on Friday were 7 am to 1.05 pm, he could not remember much of what occurred on 26 February 1993. Mr Smith said that if you removed the corner panel you would still need to use a mirror to see behind the vertical pipe. In cross-examination he said that if the corner panel was removed you would not have to twist at all. He said that it was quite a common practice to remove the corner panel or side or top panels to give you accessibility to weld, it would not make much difference to the access to the vertical pipe to carry out the weld, he then said that it would give better access if the corner panel was removed. In the course of his cross-examination the following occurred:
"Do you agree that it's a lot easier to access the weld site on the vertical pipe if you have removed the panel on the left, as I am talking about? - - - Yes.
The corner post is readily removable? - - - Yes." (Transcript p 289)
Mr Smith did the design work on S16 and S18 air conditioners.
Mr Smith said that he had not made a search of the first aid book to see who suffered any back injury or back strain but that all persons working in the factory were alerted to major injury. He agreed that he did not know about every back strain.

Non-medical expert evidence

Each of the plaintiff and the defendant called expert evidence from an ergonomist. The plaintiff called Ms Jennifer Rosemary Miller. The defendant called Dr Ian McKenzie Gibson. An unusual aspect about the expert evidence was that neither Ms Miller nor Dr Gibson inspected an S16 or S18 unit. Dr Gibson attended the defendant's premises on 4 August 1999. Although he was informed that the plaintiff was working on an S18 unit he inspected an S14 unit. Ms Miller attended the defendant's premises on 3 November 1999 in the company of the plaintiff and Mr Philip Smith, she also inspected an S14 rather than an S16 or S18 air conditioning unit.
An S14 air conditioning unit is similar to but significantly different from an S16 or S18 unit. One significant difference is that the corner panel is much larger on an S14 unit. As neither Ms Miller nor Dr Gibson inspected an S16 or S18 unit the differences between the evidence of the plaintiff, Mr Chugg and Mr Smith as to whether removal of the corner panel would make welding the vertical pipe an easier task were not clarified by the expert evidence.
In her report dated 4 April 2000 (Exhibit 21) Ms Miller expressed the opinion that the position which the plaintiff had to adopt in order to do the welding required full deflection of the trunk while twisting to the left and that with his height of 1.85 metres he would have to bend over to fit his into the opening of the air conditioning unit. The flexed and twisted posture of his trunk while holding his arms in forward flexion to reach into the unit would have place strain on his lower back and increased his risk of injury, the action could have been avoided if the leak in the pipe had been detected before attaching the outside panels. In the event of the leak not being detected removing the left front panel would allow the plaintiff to adopt a safe working posture and would be a safer technique.
The facts upon which Ms Miller based her opinion were that the plaintiff bent over to see inside the air conditioning unit, that the pipe was running vertically just inside the opening to the unit and that the leak that the plaintiff was welding was near the bottom of the unit.
In the course of her cross-examination Ms Miller was asked what position would be if in fact the plaintiff was kneeling when he was carrying out the weld, her evidence was in that event he would not have to bend so far but he would still have to lean in and twist to see the pipe. Ms Miller was shown photographs of an S16 and S18 unit (Exhibit 1) there were two differences in the unit described in the photograph from her understanding, the first was that the pipe was set into the unit itself not behind the door panel the second was that the pipe did not go down to the floor of the unit. Having seen the photographs of an S16 and S18 unit Ms Miller said that the task of welding a vertical pipe is certainly less awkward than she had originally been told but it is probably not particularly comfortable. It certainly had a lot less risk of injury from what the plaintiff led her to believe was the case (Transcript p 222). Ms Miller said that if the vertical pipe was as shown on Exhibit 1 the task of welding the vertical pipe would be safer than the way the plaintiff described it to her, that the safest method of all would be to remove the corner panel (Transcript p 225).
Dr Gibson wrote a report dated 25 August 1999 in which he expressed the opinion that the task of welding the units piping when repairing leaks requires skill and postural control rather than strength. Most of the piping appeared to be within reasonably comfortable arms length although it may be necessary to sustain static postures for a few minutes at a time when welding. From an ergonomic point of view the main problem is that he could not visualise with any certainty the plaintiff's exact posture at the time he was doing the task. While it may have been an awkward posture Dr Gibson did not think that it need have been extreme as the plaintiff claims.
Dr Gibson noted that his conclusions are necessarily limited because he had not been able to make a faithful reconstruction of the accident situation however based on his understanding of the task he was not able to identify any factors which would be expected to expose the plaintiff to a reasonable risk of back injury.

The medical evidence

Dr Ross Douglas Jose is a general medical practitioner practising in Rockingham. He first saw the plaintiff on 4 March 1993. The plaintiff reported low back pain and Dr Jose noticed that he had some tenderness along two parts of his back – the central or upper back and the lower back and he attributed this to facet joint pain. Dr Jose issued a first medical certificate dated 4 March 1993 (Exhibit 18) in which he reported that the plaintiff had told him that he injured his back bending welding at East Perth on 26 February 1993. Dr Jose certified the plaintiff as fit and requiring treatment.
The plaintiff returned to see Dr Jose on 18 March 1993. He was still suffering from upper and lower back pain. On 23 April 1993 the plaintiff saw Dr Jose for low back pain. Dr Jose certified the plaintiff as unfit for one week, prescribed some anti-inflammatory medication and indicated in a progress medical certificate of that date that physiotherapy would be required. On 3 May 1993 Dr Jose provided another progress medical certificate. At that stage the plaintiff was still suffering from low back pain. Dr Jose certified him as fit for light duties and requiring treatment. The last time that Dr Jose saw the plaintiff was on 18 May 1993. The pattern to Mr Duzevich's attendances was overall that his low back pain was gradually improving.
Dr Pui-Ching Tham is a general medical practitioner practising in Kalgoorlie. The plaintiff consulted her on 24 May 1994 complaining of a worsening lower back pain which he told Dr Tham had come from the time of his original injury on 26 February 1993. Dr Tham's report dated 28 June 1994 (Exhibit 15) refers to the date of the original injury as being 26 February 1994 but that was a typographical error; the plaintiff had told her that the original injury was on 26 February 1993 (Transcript p 167). The plaintiff told Dr Tham that the original injury occurred when he twisted his back to the right to weld a pipe in an awkward place. The plaintiff could not relate the recurrence of his back pain to any particular incident. The plaintiff saw Dr Tham on approximately 20 occasions. Dr Tham prescribed physiotherapy and anti-inflammatory medication. On 13 June 1994 she referred the plaintiff to Mr J Croser, orthopaedic surgeon. Dr Tham also prescribed some medication for stomach irritation caused by the anti-inflammatory medication and analgesics.
Mr John Lindsay Croser is an orthopaedic surgeon who now practices at the Joondalup Health Campus. In 1994 he practised in Kalgoorlie. Mr Croser saw the plaintiff on 18 July 1994; the plaintiff told him that he suffered a lower back injury after working in a confined space underneath a pipe while welding on 26 February 1993. He reported symptoms of pain over the lower lumbar spine and sacroiliac area and on forward flexion he experienced pain down both legs. Mr Croser diagnosed an acute L5/S1 disc bulge.
On 28 January 2000 Mr Croser again saw the plaintiff. The plaintiff's back was considerably stiffer than it had been in 1994 and his spinal movement was considerably more restricted. Mr Croser found no obvious discrepancies in the clinical findings compared to history. In his view the prognosis was guarded in somebody of the plaintiff's relative youth in whom disability had persisted for in excess of five years. In the absence of any evidence to the contrary he was of the opinion that the plaintiff's condition has been caused or contributed to a recognisable degree by the accident on 26 February 1993. It was most unusual that a relatively minor incident could result in symptoms which had proved so persistent and disabling over so long with such a paucity of clinical signs. In his opinion the plaintiff was not fit to return to his previous occupation. He was fit to undertake light duties not requiring him to work in a confined space or to lift in excess of five kilograms from ground level or 10 kilograms from waist level and he should not be required to maintain one positional posture for long periods. He estimated the plaintiff's loss of function as 20 per cent loss of effective use of the lumbar spine. In his opinion the plaintiff could engage in a wide range of light duty occupations.
Mr Croser had been shown film of the plaintiff, some of that film was the film that I had been shown to the plaintiff in cross-examination (Exhibit 29). He had also seen film taken on 20 November 1997. Having seen the film he had no reason to change his opinion.
Professor Andrew Craig Harper, Occupational Physician had seen the plaintiff on four occasions. The first was 13 June 1997. The last was 21 February 2000. In Professor Harper's opinion the plaintiff is permanently incapacitated from working in his trade as a mechanical fitter and for any other manual work involving repeated bending, lifting, twisting and carrying. Professor Harper felt that the plaintiff should change his career and that he was capable of working normal hours in a non-manual occupation. Professor Harper expressed the opinion that the plaintiff's competitiveness in the open labour market has been very significantly reduced. He is not employable in the open job market in manual areas but in non-manual areas his back pain and restrictions would carry much less importance with regard to his competitiveness. (Transcript p 126).
Mr Peter Watson, Neurosurgeon, first saw the plaintiff on 23 October 1996. The plaintiff told him that on 26 February 1993 he was welding inside a large industrial air conditioner and was twisting over to the right when he developed a sudden sharp pain in his low lumbar spine. Mr Watson last saw the plaintiff on 2 March 2000. At that time he had available to him an MRI scan of the plaintiff's spine performed on 17 February 2000 which showed disc degeneration at the L5/S1 level with a shallow disc bulge and a tear of the annulus. In Mr Watson's opinion the plaintiff had ongoing symptomatology relating to a soft tissue and ligamentous injury of the lumbar spine caused by the events of 26 February 1993. He expressed the view that the plaintiff had developed a tear of the annulus and the disc at L5/S1 and possibly also a facet joint injury at L5/S1 which had caused him lower back pain ever since (Transcript p64). In his opinion the plaintiff will not return to his employment as a mechanical fitter he is fit for lighter duties of a sedentary or clerical nature. The plaintiff's only ongoing treatment is self-directed exercise and strengthening programme of the lumbar spine with very occasional visits to his general practitioner and intermittently to a physiotherapist on his general practitioners advice. He felt that the history of the plaintiff's accident was consistent with the injuries suffered. Mr Watson was not asked about the video film of the plaintiff.
On 4 August 1999 the plaintiff was seen by Mr Desmond Lionel Williams, orthopaedic surgeon. Mr Williams was of the view that the plaintiff had clear pathology related to his accident of February 1993 and he had disability problems that were significant. Mr Williams felt a MRI scan of the lumbar spine was indicated.
Mr Williams saw the plaintiff on 2 February 2000 and afterwards saw the results of the MRI scan taken 17 February 200. In Mr Williams' opinion the plaintiff had a minor back disability related to the disc degeneration and facet arthritis and no evidence of disc pathology to justify surgical intervention. He had persistent back pain and would benefit from intensive physical rehabilitation efforts of swimming and exercise schedules. He had an annoying level of disability limiting him with activities such as heavy lifting, bending and awkward posture positions but leaving him with a wide range of functional work capacities. In Mr Williams' opinion the plaintiff should not return to heavy work but should look at lighter sedentary work that avoided particular stressors on the lumbar spine and that even in that work it is important for the plaintiff to keep up an exercise schedule that maintains good muscle tone. Mr Williams was not asked about the video film of the plaintiff.
Mr Barrie Stephen Slinger, spinal surgeon saw the plaintiff on 22 November 1995 on referral from Dr Tham. He wrote a report dated 5 December 1995 in which he expressed the opinion that the plaintiff had suffered a soft tissue injury of the lumbar spine. Whether this was associated with an acute disc protrusion or herniation was impossible to determine at that time. In Mr Slinger's opinion the major thrust of his management would be for sensible avoidance of provocation, an exercise activity programme to maintain his excellent generalised muscle tone and local measures of treatment including physiotherapy would be useful as times of systematic exacerbation. Mr Slinger could see no reason why he should not continue in his then employment as a mechanical fitter.
Mr Slinger saw the plaintiff on 27 March 2000 he remained of the opinion that the diagnosis was a soft tissue injury to the lumbar spine occasioned by the incident of 26 February 1993. He did not attribute significance to the MRI scan showing the tear of the annulus. In Mr Slinger's experience soft tissue injuries can become chronic and do not always proceed to improvement or resolution. Mr Slinger is now of the opinion that the plaintiff is not fit to return to his pre-accident occupation however he is fit to return to alternative duties of a full time nature avoiding any heavy lifting or repetitive bending. Mr Slinger was not asked about the film taken in 1996.
The medical practitioners called by the defendant were Mr Nickolay James Batalin, orthopaedic surgeon; Dr John Graham Rosenthal a specialist in legal and rehabilitation medicine; Dr Andrew George Marsden, an occupational physician and Mr John David Hamilton Bell, orthopaedic surgeon.
Mr Batalin saw the plaintiff on 12 November 1998. The plaintiff informed him that he was kneeling down on one of his knees whilst leaning forward twisting to the left inside a unit while doing welding, while in an outstretched and twisted position he felt pain in his lower back he was maintaining an awkward posture for about two or three minutes. Mr Batalin diagnosed the plaintiff as suffering from degenerative L5/S1 disc disease. In Mr Batalin's experience an incident as described by the plaintiff in an otherwise normal man does not produce a significant problem or lasting pathology. However Mr Batalin felt that the plaintiff had minor tendency for degenerative L5/S1 disc disease so in his opinion the incident described by the plaintiff could have made this disease symptomatic. In Mr Batalin's opinion the plaintiff was fit for work as a mechanical fitter/trainer however he should not subject his back to repetitive bending or heavy lifting or lifting objects greater than 15 kilograms in weight.
Mr Batalin found some inconsistencies in the plaintiff's presentation but he did not attribute great significance to those inconsistencies. He felt that they indicated that the plaintiff was human and it was just a human frailty that if you condition somebody to do something in a certain situation they will perform as you expect them to perform. Mr Batalin had seen film taken of the plaintiff taken in 1996 that indicated to Mr Batalin that the plaintiff was not as disabled as was indicated when Mr Batalin examined him and that he was capable of gainful employment with reasonable agility.
Dr Rosenthal saw the plaintiff on 29 January 1998 and 21 January 1999. The plaintiff told him that on 22 February 1993 he was welding inside an industrial air conditioning unit in a crouched position rotated to the left when he felt pain in the lower back which he immediately thought was a pulled muscle there was no buttock groin or lower limb referral and at the time of onset of symptoms his back was not under load. Dr Rosenthal could not see how the incident described could have caused any significant pathology and that if such a simple manoeuvre did result in some permanent degree of pathological change then this would have been an inevitable outcome irrespective of that specific incident. Dr Rosenthal diagnosed abnormal illness behaviour with multi-focal non anatomical complaints and a possibility of a mild degree of underlying mechanical lumbar dysfunction. Dr Rosenthal felt that the plaintiff was fit for his pre-accident occupation. Dr Rosenthal had seen the film taken of the plaintiff in October 1996. The film did not alter Dr Rosenthal's views.

Dr Marsden saw the plaintiff on 3 September 1999. He diagnosed a chronic back ache with some mild degenerative changes he was not convinced that the disc protrusion was of significance. He felt that the plaintiff had a 5 per cent loss of efficient function of his lumbo sacral spine which he attributed to the injury on 26 February 1993. He recommended that the plaintiff should keep himself fit and active and settle his claim. He was not convinced that the plaintiff was disabled as he presented and in his opinion the plaintiff could work as a mechanical fitter or as a mechanical fitter/trainer on a full time basis with appropriate care and the use of appropriated hoisting, lifting and carrying equipment. He had seen film of the plaintiff which confirmed his view that the plaintiff was not as disabled as he had presented to Dr Marsden. Dr Marsden did not dispute that the plaintiff was suffering from back pain and he accepted that if the plaintiff had tried to do mechanical fitting work and not been able to keep it up there may be some doubt as to his capacity to do that work.
Mr Bell first saw the plaintiff on 16 February 1998. The plaintiff told him that on 26 February 1993 he was working on a production line inside a large air conditioner he twisted to the right as he was working and developed a sudden sharp pain in his lower back. Mr Bell last saw the plaintiff on 30 September 1999 he assessed the plaintiff as suffering from low back pain with facet joint inflammation over the lowest three mobile segments of the lumbar spine and possibly also some inflammation at the L5/S1 disc and associated aches of the muscle and tendons in the mid thoracic spine mostly on the right. He considered that the plaintiff's muscle tone was excellent and this suggested reasonable function and reasonable activity. Mr Bell had some doubts about the plaintiff's work capacity. The plaintiff maintained that he was unable to work as a mechanical fitter and Mr Bell felt it reasonable to give him the benefit of the doubt and assess him as unfit for those duties. In Mr Bell's opinion he was fit for alternative lighter duties on a full time basis. Mr Bell has seen film of the plaintiff taken in 1996 and 1997. He felt that the film substantiated the views expressed in his report. He did not believe it altered anything except perhaps to throw even more doubt on the claim of there being a problem. In the course of his evidence Dr Bell made it clear that he felt that it was becoming more and more difficult to give the plaintiff the benefit of the doubt and that he felt that there was abnormal illness behaviour on the part of the plaintiff.

Other evidence

Rodney Neville Duzevich is the plaintiff's older brother, he is qualified as a boilermaker first class welder and has had that trade for approximately 14 years. He is employed as operations manager for Monadelphous Engineering in Tom Price and he has been with that company for approximately 10 years, he employs people to go to destinations to carry out work. His evidence was that with the plaintiff's experience in the gold fields and on mining plants in his trade as a mechanical fitter if he was able to carry out the work the plaintiff would be able to obtain work in the north west and in the Northern Territory. In his experience people working in such jobs can earn between $1,100 to $1,250 after tax a week depending on the hours they work.
Neville Steven Duzevich is the plaintiff's father. He saw video film taken of the plaintiff in 1996 carrying a box with assistance of one of his friends. The box was a box made up by Mr Duzevich senior to throw things into to keep his shed tidy. The box is made of aluminium and he had it painted black it would not weigh any more than 25 kilograms when unloaded. He also gave evidence that since February 1993 the plaintiff has lived in his house for approximately three and a half years. The plaintiff would walk the house at night time and Mr Duzevich would rub his back with balm he said it would happen twice a night and probably up to two or three times a day he was not working at that time.
Lennie Duzevich is married to the plaintiff's brother Rodney. In 1995 the plaintiff lived in their house in Kalgoorlie because the plaintiff's back was sore he could not do all the domestic tasks that were his responsibility so Mrs Duzevich would sweep the floor for him, vacuum and wash dishes and on the odd occasion when it was quite obvious he was in a bit of pain, she would hang out the washing for him and it probably would have taken about 10 hours per month.
The plaintiff also called Mr Colin Saunders, a union official who gave evidence as to rates of pay.
The defendant called Mr John Graeme Bavich. He is the managing director of the company which trades as JGB Contracting. If a worker in the his company goes on workers' compensation his company continues to make fortnightly wages and claim the money back from the workers' compensation insurance company. He produced the company's wages book for the period 5 June 1994 to 28 August 1994 which recorded wages paid to the plaintiff.
Mr Bavich said that there was no secret to the fact that the plaintiff had had a back problem prior to his working for his company. That fact was disclosed to him after Mr Bavich had taken on the plaintiff Mr Bavich kept him on as an employee. On his observations of the plaintiff he formed the view that the plaintiff was a willing worker but his back disability restricted him from carrying out the full range of duties as a mechanical fitter. The plaintiff always attempted to do every job that Mr Bavich gave to him but there were things that he was not capable of sustaining. He could not recall the date when he found out that the plaintiff had a back disability.
Mr Brian Horton is a human resources manager of the defender, he gave evidence as to rates of remuneration.

The credibility of the plaintiff

The defendant attacked the credibility of the plaintiff. Counsel for the defendant submitted that the plaintiff should not be believed. He pointed to a number of matters:
1.The plaintiff's resume (Exhibit 5) does not contain an accurate record of the plaintiff's duties while working for the defendant in that some of the duties described were not carried out by him;
2.When the plaintiff applied for his job with JGB Contracting he completed a confidential medical record (Exhibit 6) in which he said that he had not ever had any disease or injury to the neck or spine;
3.He told a number of doctors that he was bending over to the right at the time that he suffered his back strain whereas his evidence and his statements to other doctors were that he was bending to the left;
4.In the first medical certificate issued by Dr Jose (Exhibit 18) the accident is described as having occurred in East Perth whereas the defendant's premises at the time were in Subiaco;
5.He told Mr Slinger and Mr Williams that no particular incident precipitated his pain;
6.His description of the accident to Ms Miller was that he was bending down welding near the ground;
7.His description of the accident to Mr Croser was that he was welding underneath the pipe;
8.He said in cross-examination only that he was put on light duties;
9.There was a long period from mid 1993 to mid 1994 when he appeared not to have received any treatment.
10.The plaintiff claimed that the accident occurred between 2 pm and 3 pm when it was likely that no work was being carried out at the defendant's premises at that time.
The course of the plaintiff's evidence was disrupted due to witnesses being interposed. He completed his evidence-in-chief and much of his cross-examination on the first day of the trial. His cross-examination was recommenced and completed on the third day of the trial his re‑examination commenced on that day and was again interrupted by the interposition of witnesses before it was completed. Throughout the whole of that evidence the plaintiff appeared to me to be attempting to give his evidence in an honest and straightforward manner. When asked why he could not continue to do training work at the Rockingham Kwinana Youth Skills Training Centre he said that while he gets frustrated he could continue doing that work. There were some discrepancies in the descriptions of the accident given by the plaintiff over the years. The plaintiff is not a naturally articulate person and it would be easy for misunderstandings to occur as he is describing matters to professional people. I do not attribute those discrepancies to any lack of credit on the part of the plaintiff.
I do not attach any significance to the fact that the first medical certificate said that the accident occurred in East Perth when in fact the plaintiff was working in Subiaco. There is no suggestion that the plaintiff was working in East Perth at the time. I do not know why the first medical certificate described the accident as having occurred in East Perth but I do not attribute it to any lack of credit on the part of the plaintiff.
Nor do I attach any significance as to credit on the plaintiff's resume (Exhibit 5). That resume was prepared for him, probably by the Commonwealth Rehabilitation Service. Its purpose was to assist him in getting a job that had training/teaching capacity in his field of mechanical fitter. The fact that the document describes him as having done more tasks in the early part of his apprenticeship than he ended up doing does not in my view affect the substantial accuracy of the resume. The plaintiff's medical record given to JGB Contracting (Exhibit 6) does contain a material misstatement in it stating that the plaintiff had not ever had a disease or injury of the neck or spine. I understand why the plaintiff made that misstatement. It was so that he would obtain a job and complete his apprenticeship. At the time that he applied for the job the plaintiff intended to inform JGB Contracting if he obtained a job. He did so Mr Bavich had no complaint about the fact that medical record was not accurate.
While the defendant called Mr Smith, Mr Smith did not give evidence contradicting the plaintiff's statement that after the accident on 26 February 1993 he asked Mr Smith for him to be placed on light duties and Mr Smith did so.
In cross-examination the plaintiff was asked what time the accident occurred. He said that it occurred later in the afternoon between 2 pm and 3 pm. (Transcript p 50). 26 October 1993 was a Friday. Mr Smith and Mr Chugg gave evidence that the usual practice at that time was for work to finish at 1.05 pm on Friday's. There is an entry in the defendant's accident record book to the effect that on 26 February 1993 at 2 pm the plaintiff suffered a strain to his back. (Exhibit 26). I am satisfied that the incident described by the plaintiff did occur on 26 February 1993, it probably occurred at around 2 pm or it may be that the plaintiff was mistaken as to the time and it occurred earlier on that day. Whatever the time the accident occurred I am satisfied that it was an accident as described the plaintiff did occur on 26 February 1993.
I have concluded that the plaintiff was an honest witness who endeavoured to give his evidence to the best of his ability.

Findings of fact

The plaintiff's employment contract was with MIGTA under an apprenticeship agreement, a copy of which is Exhibit 2. The services of the plaintiff were provided to the defendant by MIGTA from late 1992. MIGTA continued to pay the plaintiff, as appears from the plaintiff's tax return documents. (Exhibit 4). The plaintiff carried out work as directed by the defendant but his employment contract remained with MIGTA.
The plaintiff worked on an assembly line of industrial air conditioning units being manufactured by the defendant. On 26 February 1993 the production line was quite full with air conditioning units which were S‑16 or S‑18 models. The manufacture of the units was behind schedule and the production line was stacked up with the air conditioning units which were butted up against each other. A component of the air conditioning units, an electrical box, was apparently not ready. This meant that the air conditioning units could not be completed and the units on the end of the line could not be taken off until the components were ready.
Mr Chugg, asked the plaintiff to repair a leak in a pipe in one of the air conditioning units. The pipe was a vertical pipe at the front left side of the unit. The pipe passes behind a horizontal pipe.
The tools used by the plaintiff to carry out the repairs were an oxyacetylene torch, which he held in his right hand, and a brazing rod and mirror which he held in his left hand. To carry out the repair the plaintiff knelt down on the floor, leant inside the air conditioning unit, twisted to his left and looked up under the pipe. While has performing that task he felt a sharp pain in his lower back.
The plaintiff had repaired leaks in pipes in air conditioning units before. On those occasions there had been enough space between the units on the production line for the plaintiff to get between them and unscrew the panels. By removing the panels there was enough room to get to the pipe without adopting an awkward position.
The evidence of Mr Chugg was that the decision as to whether to carry out the repair to such a leak with or without the corner panel in place would be up to the individual operator, in this case Mr Duzevich. If the air conditioning units on the production line were less than say 300 millimetres apart the operator could not access the screws to remove the corner post without difficulty. The options then available were to move the units in front of the one in which the repair was to be carried out or if he could not do that drop the first unit off the line and using the overhead gantry that was installed or a forklift or to communicate to other members on the production line that space was needed to take a unit off to enable the operator to have access to the unit to be repaired. Mr Duzevich would not have had to consulted with Mr Chugg to do that. Everyone was instructed as to what they were supposed to achieve and Mr Chugg could not babysit the employees under his supervision.
At the time of the accident the plaintiff was aged 18. He was a second year apprentice who had been working at the defendant's premises for approximately three months. I am satisfied that it was not realistic for him to ask other workers to interrupt what they were doing to enable him to get access to the corner panel and the task of repairing the weld on the air conditioning unit on the day of the accident meant that he was required to do so without removing the corner panel.
The question remains whether removing the corner panel would have made the task any less difficult. This issue was not clarified by the expert evidence of Ms Miller or Dr Gibson because neither of them inspected a unit of the kind on which the plaintiff was working at the time of the accident. In his evidence-in-chief Mr Chugg said that taking the corner post off would not make the task any easier because there is too much behind the corner post to enable clear access to the pipe. (Transcript p 349). Mr Philip Smith, the defendant's former supervisor, said that it is a lot easier to access the weld site on the vertical pipe if you remove that corner post panel. (Transcript p 289). Mr Smith designed the air conditioning units. I conclude, on balance, that the plaintiff and Mr Smith's evidence is correct and that of Mr Chugg is not correct and that the plaintiff's access to the weld site would have been easier if he had been able to remove the corner post panel.
I have set out earlier in this opinion the various medical evidence as to the plaintiff's condition. In addition there is the evidence of the plaintiff as to his pain and restrictions in his lumbar spine and the evidence of Mr Bavich that the plaintiff was a willing worker but who appeared to him to have a back disability which restricted him from carrying out the full range of his duties as a mechanical fitter. Accepting as I do the evidence of the plaintiff I conclude that on 26 February 1993 the plaintiff suffered a soft tissue and ligamentous injury to his lumbar spine which has left him with chronic low level low back pain. This pain precludes the plaintiff from working as a mechanical fitter and from carrying out other manual work involving repetitive bending, lifting, twisting or carrying. He is however fit for full time work that does not involve these manual activities.
If the plaintiff had not suffered his injury he would have had the opportunity to continue in the trade of mechanical fitter and with his experience obtained working at JGB Contracting where he worked in the goldfields and on mining plants and with the connection of his brother Rodney he would have had the opportunity to obtain work in the north west and the Northern Territory.

The duty of care owed by the defendant to the plaintiff

Although the defendant was not the plaintiff's employer the defendant nevertheless owe the duty of care to the plaintiff according to ordinary principles of negligence: Stevens v BrodribbSawmilling Company Pty Ltd (1986) 160 CLR 16. The plaintiff was working on the defendant's production line as part of a team constructing the defendant's air conditioning units under the supervision of the defendant's staff. The defendant therefore effectively had control of the plaintiff's environment and in my view there is no significant distinction between the content of the duty of care that the defendant owed to the plaintiff and that owed by an employer to an employee.

Whether the duty of care owed by the defendant to the plaintiff has been breached

It was foreseeable that if the plaintiff had to adopt a position of bending, leaning forward with tools in both hands and with his back twisted that he would suffer some injury to his back. That was for example the evidence of Professor Harper.
That risk of injury could have been reduced or eliminated if the defendant had followed the normal course of allowing sufficient space between the air conditioning units for the corner panel to be removed without difficulty. Alternatively the defendant could have ensured that space was made available for the plaintiff to remove the panel before he was required to carry out the repair. I conclude that in failing to take either of these steps the defendant was in breach of its duty of care to the plaintiff and that as a result the plaintiff has suffered personal injury.

Whether the plaintiff has been guilty of contributory negligence

The defendant claims that the plaintiff's injuries were caused or contributed to by the plaintiff's negligence.
I have already related the circumstances in which this accident occurred. The plaintiff was a young man in the second year of his apprenticeship who had not been long working on the defendant's air conditioning units. Having received a request from Mr Chugg to repair the leak in the pipe he had no realistic alternative other than to proceed to repair it without removing the corner post. In my view there has not been any contributory negligence on the part of the plaintiff.

Damages

The plaintiff did not suffer any economic loss until he ceased his apprenticeship with JGB Contracting in February 1996. Thereafter he would have had the opportunity of working as a mechanical fitter in the north west. A guide to what that the plaintiff could have earned if he worked in the north west is contained in Exhibit 10, The Hot Briquetted Iron Project Agreement and the evidence of Geoffrey Colin Saunders of the Australian Metal Workers Union. Using that evidence as a guide the plaintiff could have earned $2,161.17 gross per week which equates to $1,298.31 net. The plaintiff has lost the opportunity to earn that level of income. However there is more than the usual level of uncertainty as to whether the plaintiff would have exercised his earning capacity to earn that level of income if he had not been injured. I am satisfied that he would have obtained employment earning around that income at some stage after completing his apprenticeship but the fact that he was not ever able to take up that employment means that it is uncertain as to whether the plaintiff would have kept up employment in the more difficult working and living conditions for which that high level of earnings is compensation. I propose to reflect those uncertainties in a higher than usual level of reduction for contingencies for both past and future loss of earning capacity. The figure of $1,298.31 is the level of potential earnings in one of the positions in the north west. I do not know in what position the plaintiff would have obtained employment. The plaintiff has used the figure of $1,000 net, $1,800 gross in his schedules of loss and in my view that is a reasonable starting point.

The period from February 1996 when the plaintiff completed his apprenticeship is 248 weeks. From the potential earnings of $1,000 per week is to be deducted the plaintiff's actual earnings and earning capacity. In his schedule the plaintiff deducts the sum of $415 net per week being actual earnings in compensation payments received from February 1996 to June 1999, a total of $71,795. However the plaintiff has a demonstrated capacity to earn as trainer earning $416.55 net per week which he was capable of earning at least from February 1998. I begin the calculation of the plaintiff's past loss as follows; $1,000 ‑ $416.55 = $583.45. $583.45 x 248 weeks = $144,695. I have decided to make a large deduction of 40 per cent for the contingencies to reflect the facts that it would have taken the plaintiff some time after completion of his apprenticeship to obtain employment in the north west, that once having obtained that employment the plaintiff may not have liked the harsher conditions and have returned to a lower level of income in a less remote area and the usual contingencies. This gives a figure of $86,817. In view of the high level of uncertainties I have not made a separate allowance for the income tax paid on the sum of $36,493.10 workers' compensation received. Interest on this figure on the rate of 3 per cent per annum = $12,421.
For the future I have decided to deduct a higher level of contingencies to reflect the fact that as the plaintiff got older the prospects of his remaining in the harsh conditions of the north west would have reduced and the prospects of him returning to employment in the metropolitan area would have increased. I have therefore made a deduction for contingencies of 60 per cent. The plaintiff acknowledges the likelihood that he would not have remained in the north west for the whole of his working life. His schedule of future loss of earning capacity is prepared on the basis that he would have ceased working in the north west at age 45. I have not used that method of calculation because it gives an illusion of precision when none exists. All I can find is that as the plaintiff got older the prospects of his remaining working in the north west reduced. The plaintiff is aged approximately 26½ and there are approximately 38½ year until he turns 65. The multiplier for 38½ years is 800.45. $583.45 x 800.45 = $467,022. Less 60 per cent for contingencies equals $186,808.
I calculate the past loss of superannuation using an average for the period of contributions of 6 per cent on gross salary. There has been no evidence of what the administration and fund management fees would be nor as to the impact of taxation on the gross contributions. I can therefore only guess as to what the impact of those expenses would have been on the superannuation benefits that would have been received by the plaintiff and I adopt the figure of 30 per cent which was used in Jongen v CSR Ltd & Anor (1992) Aust Torts Reports 81–192. The calculation is as follows:
Gross earnings in the north west $1,800
Gross earnings as a trainer $532
$1,800 - $532 = $1,268
$1,268 x 6 per cent = $76.08
$76.08 x 248 weeks = $18,867
Less 40 per cent for contingencies = $11,320
Less 30 per cent for fund fees and taxes = $7,924
Interest on that figure at 3 per cent per annum = $1,133
For future loss of superannuation I use the percentage gross contribution of 8 per cent. The calculation is as follows:
$1,268 x 8 per cent = $101.44
$101.44 x 800.45 = $81,197
Less 60 per cent for contingencies = $32,479
Less 30 per cent for fees and taxes = $22,735
For past medical and rehabilitation expenses I allow the sum that has been paid by way of worker's compensation as shown in Exhibit 34. In addition the plaintiff's schedule of special damages totals $4,819.50. The defendant's schedule of damages raises no objection to that claim and I allow it so that the total special damages allowance is $14,660.65. As to the future the plaintiff's injury will require only occasional treatment for relief of symptoms. I allow a global figure of $2,000.
The plaintiff has made claim for past and future gratuitous services rendered to him by members of his family. Although the plaintiff has back injury which restricts him from carrying out heavy manual labour I am not satisfied that he has in the past or will in the future reasonably require services which if not provided by members of his family would be required to be incurred at cost. I make no allowance for gratuitous services.
For his general damages for the pain and suffering that the injury has and will cause him in the future and the loss of satisfaction of pursuing a career as a mechanical fitter I allow the plaintiff $25,000. In summary therefore I allow the plaintiff damages as follows:

Past loss of earning capacity

$ 86,817

Interest

$ 12,421

Future loss of earning capacity

$186,808

Past loss of superannuation

$    7,924

Interest

$    1,133

Future loss of superannuation

$ 22,736

Special damages

$ 14,660

Future treatment costs

$    2,000

General damages

$ 25,000

Total

$359,499

Past loss of earning capacity	$ 86,817
Interest	$ 12,421
Future loss of earning capacity	$186,808
Past loss of superannuation	$ 7,924
Interest	$ 1,133
Future loss of superannuation	$ 22,736
Special damages	$ 14,660
Future treatment costs	$ 2,000
General damages	$ 25,000
Total	$359,499