Hill v Stork ICM Australia Pty Ltd - [2001] WADC 225

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: HILL -v- STORK ICM AUSTRALIA PTY LTD [2001] WADC 225

CORAM: O'SULLIVAN DCJ

HEARD: 3 SEPTEMBER 2001

DELIVERED : 27 SEPTEMBER 2001

FILE NO/S: CIV 3078 of 1999

BETWEEN: BRYAN RICHARD HILL
Plaintiff
AND
STORK ICM AUSTRALIA PTY LTD
Defendant

Catchwords:

Negligence - Master and servant - Assessment of damages - Rotator cuff injury - 58 year old pipe fitter - Past and future loss of earnings - General damages

Legislation:

Nil

Result:

Plaintiff awarded general damages of $30,000; past loss of earnings $167,459; future loss of earnings $144,637.50; past and future loss of superannuation $32,241; total $374,337.50

Representation:

Counsel:

Plaintiff: Mr M E Herron
Defendant: Mr D R Clyne

Solicitors:

Plaintiff: Gibson and Gibson
Defendant: Pynt McKay

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

Fox v Wood (1981) 148 CLR 438
Wade v Allsopp (1976) 10 ALR 353
Watts v Rake (1960) 108 CLR 158

Case(s) also cited:

Abbott v Pacific Industrial CO (WA) Pty Ltd as Trustee for Steelfab Unit Trust trading as Pacific Industrial CO (1979), unreported; FCt SCt of WA; Library No 970079; 4 March 1997
Bennett v Minister of Community Welfare (1992) 176 CLR 408
Bowen v Tutte (1990) A Tort Rep 81-043
Gardner Bros & Perrot (WA) Pty Ltd v Seat, unreported; FCt SCt of WA; Library No 7318; 13 October 1988
Hollis v Vabu Pty Ltd [2001] HCA 44
Lend Lease Employer System Ltd v Lydon, unreported; FCt SCt of WA; Library No 980088; 27 February 1998
March v E & M H Stramare Pty Ltd (1990-91) 171 CLR 505
Medlin v State Government Insurance Commission (1995) 69 ALJR 118
Stevens v Brodribb Sawmilling Co Pty Ltd (1985-86) 160 CLR 16
Thomas v O'Shea (1989) A Tort Rep 80-251
Western Australia v Watson [1990] WAR 248

O'SULLIVAN DCJ: The plaintiff was injured in an accident at work on 25 June 1997. He has brought a claim for damages in respect of his injuries and, while liability is admitted, quantum is in dispute.
The plaintiff was born on 3 June 1943 and is by trade a pipe fitter. He qualified in the United Kingdom and worked there as an employee and later in partnership with his brother until he came to Australia in 1983. Upon arrival here he gained a job welding and fitting mufflers for about a year and a half and then obtained other employment working, mainly in short spells and for as long as a job was available, in the construction and mining industries in Western and Northern Australia.
The accident occurred at the Kwinana Nickel Refinery of WMC Resources Ltd. At that time the defendant had a contract to carry out work on a project known as the Fire Water Ring Main and Pumping Station upgrade and the plaintiff was working at the station. Four pumps were fixed onto a concrete base and one of them had been removed while the others were due to be. Steel bolts protruded from the base from which the one pump had been removed. Just before the accident a crane had been used to lift pipe work and the plaintiff and others were removing tools and equipment from the area. The plaintiff picked up two canvas slings and the crane's chain block and was carrying them when he tripped over one of the bolts protruding from the concrete base.
The plaintiff injured his shoulder and right knee as he fell to the ground. He described the incident in these terms:
"I … stood down from the pump base and just caught my toe on this small protruding stud bolt out of the concrete, which made me topple over quite slowly really. I didn’t think there would be anything bad in the injury but I couldn’t throw off the chain block and the slings because they were over my shoulder so I tried to roll as I hit the ground so I wouldn’t hurt myself too much. More worried about my knee than my shoulder. My shoulder was sore but my knee was quite grazed …"
The plaintiff attended the medical centre at the refinery and was seen by a nurse and then by a Dr Lord who diagnosed soft tissue injury in the right shoulder and referred him for physiotherapy and placed him on light duties. He carried on working at the refinery doing he said:
" … really the same as what I had been doing before, but I wasn't doing any heavy lifting or helping with anything that was too heavy. I found doing up bolts really tightening them up was a little bit sore on the shoulder. I could do more or less everything but the shoulder was sore and that was it really."
The plaintiff was laid off about four weeks after the accident. Just before he ceased work he saw Dr Lord and complained that the physiotherapy seemed to be making his shoulder worse and so treatment ceased.
After being laid off the plaintiff obtained employment at a workshop and then at the Shell Refinery in Fremantle. About a week later he found that he could not reach out to close the door of his car and so he went to his general practitioner who referred him to Mr Peter Honey, an orthopaedic surgeon. Mr Honey diagnosed a rotator cuff tear and trauma to the right bisceps muscles and ligaments.
The plaintiff underwent surgery on 15 August 1997 and, thereafter, a period of convalescence and physiotherapy. When Mr Honey saw him on 13 November 1997 he considered him fit for light work and potentially for full duties after six weeks. However his problems persisted and he continued to experience shoulder pain doing heavy lifting or repetitive work involving the right arm and shoulder or overhead work. It is Mr Honey's opinion that these disabilities are now permanent and that they prevent him from resuming his pre-accident occupation.
It is not in dispute that the plaintiff is no longer fit to work as a pipe fitter but the defendant maintains that his working life was threatened by a pre-existing knee condition in any event. More importantly the extent of the plaintiff's residual work capacity and his desire to exercise it is very much in issue. Before turning to consider these and other matters it is appropriate to set out some further history.
In late 1997 the plaintiff joined a gymnasium to build up strength in his shoulder and generally to regain fitness with a view to going back to work as a pipe fitter. He coped quite well with all exercises save those involving heavy repetitive or overhead lifting but he became concerned that his shoulder did not seem to be improving and he saw his general practitioner Dr Hernamen who arranged further investigation of his condition.
The plaintiff persisted with efforts to resume work and in mid 1998 commenced a trial with Clough Engineering which he himself arranged with the help of his brother who was then working as a supervisor for that company. The trial involved working with another pipe fitter and he said that he coped quite well because the work was, for the most part, on heavy pipes which were lifted into position by crane and did not require manhandling. As to his shoulder the plaintiff said:
"It was still very sore but … I thought that was something I was going to have to live with anyway …"
The trial at Clough Engineering lasted nine weeks during which worker's compensation which the plaintiff had been receiving ceased. At the end of that time he did not reapply for payments because he said:
"I thought that was going to be it as far as worker's comp. I thought I would be back working in the work force again so I never even thought about going back to worker's comp …"
The plaintiff is a widower. His wife died of cancer in October 1998. She had been suffering her illness for many years and from time to time the plaintiff did not work or declined work away from home so as to be with her. It is against that background that the plaintiff's efforts to re-enter the workforce fall to be considered.
At or about the time the plaintiff ceased working for Clough his wife became bedridden and so he devoted himself full time to looking after her and did not pursue any employment opportunities. After the death of his wife he went to England for a short time and then returned home. It was then that he experienced further pain in his shoulder when attempting to start a lawn mower and after consulting Dr Hernamen he made a further claim for worker's compensation. Among the exhibits tendered is a copy of a statutory declaration made by the plaintiff relating to the further claim. The declaration is dated 22 February 1999.
Following the resumption of payments of worker's compensation some efforts were made to place Mr Hill in suitable employment and by consent there were tendered a number of reports and other documents prepared by a company known as Prime Rehabilitation Services Pty Ltd ("Prime"). It seems that the author of a number of those reports was a person by the name of Mandy Leicester but unfortunately she was not able to be called as a witness to elaborate upon or speak to them. Nevertheless a reading of them discloses what then occurred.
In about June of 1999 the defendant contacted Prime to offer the plaintiff work assisting the Quality Assurance Manager, Mr Tom Sawyer. Mr Sawyer gave evidence saying that the work involved collecting and collating information relating to the quality and quantity of materials and workmanship applied by the defendant to particular projects. The work required some basic computer skills and, as originally formulated an ability to lift some weights over 10 kilos but that requirement was later deleted. According to Mr Sawyer a day was fixed for Mr Hill to start work but he did not turn up.
When Mr Hill was cross examined about this matter he said that he discussed the offer of work with Prime and Mr Sawyer and objected to the cost of travelling from his home in Joondalup down to Rockingham every day. He said it was true that he had earlier worked at Kwinana but "then I was on $1,300 a week and not $350". Mr Hill said that he had no confidence that the work he was being offered would last but when asked why he did not at least "give it a try" he replied:
"Because of the money side of it. The most important thing was that. I cannot live on $350 a week not with a $533 mortgage. I cannot afford $70 to $80 per week on petrol travelling that distance. I told them that. If they would have paid the petrol I would have done the work trial."
Mr Hill's objection appears to have held things up for some time. On 29 July 1999 Ms Leicester wrote in a letter to Ms Kathy South of SGIO:
"Mr Hill declined to participate in graduated return to work with Stork ICM mainly due to the travel involved from his home in Joondalup to Stork ICM in Rockingham.
Prime Rehabilitation advised to put Mr Hill's vocational rehabilitation on hold pending further advice from SGIO Insurance."
In a further letter dated 11 October 1999 Ms Leicester wrote:
"Mr Hill was required to attend the Conciliation and Review Directorate on 17 September 1999 in an attempt to facilitate the return to work programme. Mr Hill signed the return to work agreement but was concerned as he still wanted confirmation from SGIO that they would fund transport. Mr Hill advised that it was suggested by his conciliation and review officer, Mr Nigel Steele, that he make his own application to the Conciliation and Review Directorate when travel costs had been incurred and if SGIO refused to pay. It was advised that Mr Steele would definitely support the travel costs."
According to Mr Hill he decided not to turn up for work on the date set which was 29 September 1999 after receiving advice from his solicitor that he did not have to. He said his solicitor:
" … explained to me my obligation and told me I was within my rights to turn it down because of the travelling. I could not afford to travel down there and live on that money."
In her report of 11 October 1999 Ms Leicester wrote:
"we were asked to put Mr Hill's file on hold by Ms Kathy South of SGIO on 29 September 1999 … we will wait the outcome of further action by SGIO due to Mr Hill's non-compliance and we look to re-starting the programme once advised."
On 25 November 1999 Ms Leicester wrote to the plaintiff's solicitors stating:
"I am writing to you to confirm my conversation with Mr Hill on 23 November 1999 when it was requested to provide yourselves with correspondence in regards to the latest development in Mr Hill's vocational rehabilitation.
We are in contact with Ms Joelene Treasure, Stork ICM, on 22 November 1999 who advised that there was no opportunity for a return to work for Mr Hill at present as the workshop would be closing down for Christmas and would not be open until 17 January 2000.
We will now look towards meeting with Mr Hill to discuss the options originally identified in the vocational assessment on viable options he would be interested in pursuing … "
On 2 December 1999 Ms Leicester wrote to Mr Ross Monger of the Conciliation and Review Directorate stating:
"Further to our telephone conversation I write to provide you with details on Mr Bryan Hill's vocational rehabilitation programme.
I confirm that I was contacted by Mr Hill on 19 November 1999 who advised the outcome of the conciliation hearing and requested Prime Rehabilitation liaise with Stork ICM to find out whether the work trial was still available and to confirm a start date.
We were in contact with Ms Joelene Treasure on 22 November 1999 who advised that there were no opportunities at present as the main workshop would be closing down until 17 January 2000. In contact with Mr Hill on 23 November 1999 he advised that he had been in contact with yourself who advised that we write a letter to Gibson & Gibson, Mr Hill's solicitors, explaining his current situation. Mr Hill's solicitors could then approach Conciliation and Review to have his wages reinstated as Prime Rehabilitation would now be looking at an outside work trial. A month's time limit placed on Mr Hill to comply with rehabilitation would also be lifted.
I met with Mr Hill today to further discuss an outside work trial and to also go through the options previously identified in the vocational assessment report. The options identified were:
•Purchasing Officer
•Locksmith
•Forklift Stores
•Home handyman
•TAFE lecturer
In discussion with Mr Hill it was advised that we had forwarded correspondence to Dr Hernamen in regards to physical appropriateness of these duties. Dr Hernamen felt that home handyman may not be tolerated full time dependant on the nature of the work eg overhead arm work which would exacerbate Mr Hill's shoulder. Mr Hill advised that he had discussed this with Hernamen previously and felt that this would not be a problem and stated having completed painting and decorating, wood working, general maintenance and gardening around his own home. He stated this would not be a problem unless he had to carry out any repetitive movements on a daily basis. Mr Hill felt that home handyman was the best option to consider for a placement and said that this was something that he could realistically do and may do once he has settled his claim.
We will therefore look forward to sourcing an appropriate work trial for Mr Hill in a home and office maintenance/handyman type role and will run the specific duties past Dr Hernamen once obtained. Mr Hill was open to considering other options identified but felt that realistically this one was the most viable for the future."
The next event of significance appears to be that Ms Leicester arranged a work trial for Mr Hill at Bunnings in Joondalup. The trial went ahead, commencing on 24 January 2000, and lasted six weeks. It involved working in the plumbing department. Ms Leicester reported to SGIO by letter dated 7 April 2000 that the trial had been completed and that at that stage no jobs with Bunnings were available.
On 1 August 2000 Ms Leicester wrote again to SGIO stating:
"Action since last report:
•We have continued to maintain contact with Mr Hill and he has recently advised us his case is scheduled for a Review Hearing on 2 August 2000
•In discussion with Mr Hill on 24 July 2000 he advised that he had recently been in liaison with his contacts in the pipe fitting industry and it was definite that a few large contracts would be ready to commence in October. Mr Hill has a contact who is in charge of one of these contracts and feels he should be able to secure some work in a quality assurance/pipe checking role.
•Mr Hill was reviewed by Dr Gary Garside, Occupational Physician, on 19 June 2000. Dr Garside states that Mr Hill has in his opinion "recovered sufficiently to carry out specific jobs such as pipe fitting supervisor, quality assurance officer, forklift operator and purchasing operator on a full time basis should such work be available for him. Dr Garside states that Mr Hill's prognosis remains excellent provided he continues to be careful with the type of heavy physical activities he undertakes using his right arm.
•Dr Garside has given Mr Hill a permanent residual disability of 10% of the right arm at/or above the shoulder as per the Second Schedule entitlement.
Planned Action:
•We will await the outcome of the review hearing on 2 August 2000. It is felt there is little that can be done for Mr Hill from a vocational rehabilitation point of view and it is our opinion that he will obtain employment in a quality assurance/pipe checking role once a position comes to hand. We have assisted Mr Hill with a work trial placement, resume development and job search support.
•Should there be some resolution in Mr Hill's claim on 2 August 2000 we look forward to finalising our involvement."
The remaining correspondence written by Ms Leicester indicates that the Conciliation and Review Hearing scheduled for 2 August 2000, which was to discuss Mr Hill's ongoing entitlement to worker's compensation, was cancelled and that for the rest of that year Prime continued "low key monitoring" of the plaintiff's case, discussing employment opportunities with him and obtaining reports from him as to efforts which he himself had made to secure positions. It ultimately became clear that this matter was going to trial and Ms Leicester then closed her file.
I have set out the reports and correspondence written by Ms Leicester at some length because in my view it puts in context the evidence concerning the defendant's offer of work and the plaintiff's rejection of it. Counsel for the defendant submitted that by refusing his client's offer the plaintiff was in breach of his duty to mitigate his loss but I do not accept that submission. The onus of establishing such a breach is, of course, upon the defendant (Watts v Rake (1960) 108 CLR 158) and on all the evidence I am not satisfied that that onus has been discharged. It is clear that the plaintiff raised the matter of travel expenses quite soon after the offer of a position was made. The matter was discussed at a conciliation and review meeting. Ms Leicester recorded that Mr Steele, the review officer, was of the view that travel expenses should be paid. The decision not to attend work was only taken by Mr Hill after he had received legal advice. There was then a delay during which further conciliation discussions were held. By that time it was November 1999 and no job with the defendant was available until January 2000. In January, or perhaps earlier, Ms Leicester arranged for a work trial at Bunnings and the plaintiff commenced such a trial on 25 January. Once that trial came to an end there were some further discussions with Mr Hill concerning other avenues of employment and ultimately it became clear that the matter would be coming to trial. I can find nothing in this evidence to suggest that it should be held that the plaintiff acted unreasonably in objecting to the defendant's offer of work.
Apart from the specific submission that the refusal of the defendant's offer was a failure to mitigate his loss it was also contended that the plaintiff has not made reasonable efforts to find work in any event. It was put to him in cross examination that he is and has for some time been fit for a wide range of occupations not involving heavy lifting or repetitive work using the right shoulder or overhead work and he agreed with that proposition. Since the accident it is clear that he has worked around the house painting gutters, doing some carpentry and the like and it is the view of the plaintiff himself that he might be able to work, perhaps within limitations and upon a part-time basis, as a home handyman. He said that he has not yet started such a business because he cannot afford to. He said in evidence:
"I have been on this low money now for four years. I can't afford to even keep my house. I am $28,000 in the red. I've had to loan money to put it back on my mortgage at the moment just to keep alive and I've got no money to do anything. How could I set up a business?"

In the plaintiff's opinion he would need to buy a trailer and a ladder and "a lot more tools than I've got" to go into business as a home handyman. He thought that an amount of about $5,000 would be necessary to acquire all the appropriate equipment.
It was put to the plaintiff that while he could not work as a pipe fitter any longer he could do the job of a pipe checker but the plaintiff said that he had come to realise that he could not do this work because it was too physically demanding since it involved climbing ladders and getting into tight spaces and lifting pipe which might be on the ground. In any event he said:
"I know just by talking around with my friends in the trade that I just wouldn’t be able to do (it). They won't take a man on who's got limitations in what he can lift to do pipe checking."
The plaintiff said that he had applied for about seven jobs in the last four or five months and that he regularly looked in the paper and had attended at the Centrelink office. The jobs he had applied for were those involving home maintenance or handyman skills because that is what he thought he could do.
In my opinion the efforts which the plaintiff has made to find employment since the accident have been appropriate and reasonable. He is of course a 58 year old man who has been a pipe fitter all his life. The skills which he has relate for the most part to that trade but he recognises the need to be adaptable. He has, I find, been generally cooperative with the rehabilitation consultants in looking for alternative positions and the fact that he has not found work to date does not appear to me to be surprising given his age, his physical limitations and his background. As Stephen J said in Wade v Allsopp (1976) 10 ALR 353 at 361:
"the process of selecting one from a number of applicants for employment is, on each occasion, an all or nothing affair in which the applicant with diminished capacity may each time be wholly unsuccessful."
I turn to examine further the question of the plaintiff's capacity for work. I have already noted that it is conceded that the plaintiff cannot resume the occupation of a pipe fitter being unfit for heavy lifting, repetitive work involving the right arm and shoulder and working overhead. However the defendant argues that the plaintiff's knees were such that it was unlikely that he would have continued to work as a pipe fitter in any event.
In 1995 the plaintiff saw Mr Honey complaining of problems with his left knee due to osteoarthritis and on 28 July of that year he underwent a total knee joint replacement. In about early 2000 the plaintiff was trying to get fit and began to experience pain in his right knee. He saw Mr Honey again and on 10 March 2000 underwent arthroscopy, chondroplasty, partial meniscectomy and removal of a loose body. When Mr Honey reviewed the plaintiff on 1 August 2001 he found a good range of movement with reasonable strength in the left knee and a better range in the right.
Mr Honey is of the opinion that the plaintiff's knee problem would not have shortened his working life. In his report of 1 August 2001 he stated:
"I believe Mr Hill would be fit to work as a pipe fitter were it not for his shoulder currently. He did work as a pipe fitter from the time of his total knee joint replacement until his shoulder surgery without difficulty and the knee continued to enjoy equivalent function to the situation then. The right knee has a little arthritis as well but not so bad that a total knee joint replacement is warranted. The degree of arthritis is not excessive for someone of Mr Hill's age and I believe it would not prevent him from working. He may have some difficulties with prolonged walking, standing or a lot of repetitive kneeling but, as I say, worked normally with that replaced total knee from the time of the joint replacement to the time of his shoulder injury.
I believe that he would have been able to work as a pipe fitter until retiring age if it were not for his shoulder. That is to say that the partial disability associated with his knees could have been compensated for by increased reliance on his upper extremities, but presently he is not able to do that because of his upper extremity problems."
On 28 January 2000 Mr Hill was examined by Mr Nick Batalin, orthopaedic surgeon. In a report of that date Mr Batalin noted "significant inter current problems effecting both knees". In a further report dated 24 August 2001 Mr Batalin wrote:
"There is no doubt that degenerative problems affecting both knees with evidence of previous left total knee arthroplasty adversely contribute to his capacity for work. In fact if I was managing this patient and carried out a left total knee arthroplasty, I would have advised him to retire from work such as pipe fitting following left knee operation."
Although Mr Hill returned to work as a pipe fitter after his total knee replacement in 1985 and appears to have coped well Mr Batalin's point is that that is no guarantee that he will continue to be free of problems. He said:
"One quickly learns that total knee arthroplasty's are not indestructible and in fact they loosen, wear out for many reasons. Weight is another important problem … all these factors effect the longevity … I think most people agree work in a lighter occupation which does not subject the knees to … climbing stairs, kneeling, twisting, walking on uneven ground … if the work doesn’t involve this then that's fine."
Mr Batalin did not provide any specific estimate of the time within which he expected Mr Hill to develop problems in his artificial knee and that of course is not surprising. In the end it seems to me that all that can be said is that the possibility of the plaintiff's working life having been cut short by reason of knee problems is an adverse contingency which should be taken into account in assessing the claim.

Economic loss

The plaintiff was not fully employed as a pipe fitter in the years before the accident. There were a number of reasons for this including the nature of the industry in which he worked, a desire on his part to build a house and the need to take time off after a knee reconstruction. In addition, and importantly, his wife was suffering from cancer and he naturally wanted to be with her. This complicates the task of assessing the plaintiff's pre-accident earning capacity but the evidence allows for a number of different approaches.
At the date of the accident the plaintiff had been working for the defendant for some 11 weeks. In that period the least he had earned in a week was $537 net and the most was $972. His average weekly net earnings were $788.18. Of course, even if the accident had not occurred he would not have remained with the defendant at the refinery site because as I have noted he was made redundant shortly afterwards.
In the 9 years up to and including the year of the accident the plaintiff earned taxable incomes which varied widely. The highest amount he earned was $51,857 in 1995 and the least was $16,231 in 1993. His average weekly earnings over the whole period were $682.01 gross and $496.32 net. Applying the new tax scales which came into force on 1 July 2000 his net weekly earnings calculated on this basis would now be $536.01.
Evidence was called as to the incomes earned by other pipe fitters whose circumstances can be compared and contrasted with those of the plaintiff.
Kevin Donlan is a 56 year old boiler maker/pipe fitter who earned an average of $789.04 net per week over the years ended 30 June 1998, 1999 and 2000. Ronald Burns who is 38 years of age earned an average of $915.80 net over the same period. Other evidence which was called demonstrated that over specific periods of time Brian Taylor, a 62 year old pipe fitter, was recently able to earn an average of $1,098.04 net per week and Edward Evans a 58 year old man earned $922.50.
The circumstances of all these men are of course different and the amounts which they earned depended to some extent upon their desire to work and their preparedness to travel away from home. Nevertheless their evidence provides some guide. In my view in the light of all the evidence the plaintiff had a pre-accident earning capacity of $750 net per week and it is upon that basis that I proceed to assess his claims for past and future economic loss.

Past loss

In my opinion the plaintiff is entitled to be compensated for past loss of income from the date upon which he was certified unfit for work (14 July 1997) until he commenced working for Clough Engineering. After ceasing employment with Clough he then understandably did not seek work while his wife was critically ill and in the period immediately after her death. He was again certified unfit on 15 December 1998. Two hundred and eighteen weeks have past since 14 July 1997. The period in 1998 when the plaintiff did not work for reasons unrelated to his claim or was working for Clough amounts to 25 weeks. The result is that the plaintiff should be compensated for lost income over a period of 193 weeks. The result is a sum of $144,750.
To that amount must be added the tax paid by the plaintiff or assessed (Fox v Wood (1981) 148 CLR 438). That figure is $14,848 giving a total of $159,598.
Finally in respect of this aspect of the claim the plaintiff is entitled to interest at 3% on the difference between the sum of $159,598 and worker's compensation received. The amount of worker's compensation was $88,993. The difference is $70,605 and the result is therefore $7,861.

Future loss

At the plaintiff's present age the appropriate multiplier on the 6% tables is 290 and applying that to a weekly net wage of $750 the result which represents a total gross loss of earning capacity in the plaintiff is $217,500.
Counsel for the defendant submitted that this sum should be discounted by 10% to allow for adverse contingencies including the likelihood of problems affecting the plaintiff's knees but I consider this to be too pessimistic. The plaintiff managed to work as a pipe fitter after surgery in 1995 and experienced no problems with his left knee notwithstanding the fitting of an artificial joint. Mr Honey the practitioner who treated the plaintiff is of the opinion, which I accept, that his knees would not have prevented him from working until retirement age. In my view, balancing the favourable and unfavourable contingencies, a discount of no more than 5% is justified in all the circumstances. This reduces the sum calculated as representing a total loss of earning capacity to $206,625.
Counsel for the defendant submitted that the plaintiff should be regarded as being capable of presently earning an amount at least equal to the minimum wage of $344 net per week. However that submission assumes not only the level of the plaintiff's retained earning capacity but the availability of work. I have already noted that I do not find it surprising that he has found no employment to date, given his age and background and in my view it would be wrong to take the approach suggested.
In my opinion, while the plaintiff remains physically capable of quite a wide range of occupations he faces significant obstacles in finding suitable employment. He did impress me as an intelligent and resourceful man who is unlikely to give up efforts to find work but the fact is that there are limited opportunities available to him. He himself speaks of going into business as a home handyman and it seems to me that in all probability that is something that he will pursue. However there is no evidence before me to justify any finding as to the amount of income which he might be able to earn as a handyman and it would be speculative to seize on any particular figure.
In my opinion, doing the best I can on the material before me, it would be appropriate to assess the plaintiff's residual earning capacity at 30% of his pre-accident capacity. It follows that I assess the extent of his future loss in the sum of $144,637.50.

Superannuation

A weekly net wage of $750 equates to a gross income of $1,192. I therefore assess the plaintiff's claim for loss of past superannuation entitlement (at the rate of 8% and after allowing 30% for administration expenses and deducting 25 weeks from the total number of weeks which have elapsed since 14 July 1997) in the sum of $12,883. In respect of loss of future entitlements the amount of $19,358.

General damages

The plaintiff claims damages for pain and suffering and loss of enjoyment of life. The nature and extent of his injuries and disabilities are not really in dispute. Following surgery and convalescence he was required to undergo extensive physiotherapy and expected to regain full use of his shoulder but he has been left with an inability to lift heavy weights or to engage in activities which involve repetitive use of the right arm and shoulder or overhead work. This obviously limits him in the work he do around his house and in any vigorous physical pursuit he might undertake and to that extent his capacity to cope with and enjoy life has been impaired. In my view there should be an award of $30,000 to compensate the plaintiff for his injuries, pain and suffering and the residual consequences.

Conclusion

The plaintiff should have damages in the sum of $374,337.50 in respect of the following:
Past loss of earnings  $167,459.00
Future loss of earnings   $144,637.50
Past and future loss of superannuation      $ 32,241.00
General damages  $ 30,000.00
I have not been provided with any figure for special damages. I will hear from counsel as to appropriate orders.