Hinnen v Mitchell Erectors Pty Ltd - [2001] WADC 3

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: HINNEN -v- MITCHELL ERECTORS PTY LTD [2001] WADC 3

CORAM: VIOL DCJ

HEARD: 3-6 OCTOBER 2000

DELIVERED : 19 JANUARY 2001

FILE NO/S: CIV 5067 of 1998

BETWEEN: KEVIN RANDALL HINNEN
Plaintiff
AND
MITCHELL ERECTORS PTY LTD
Defendant

Catchwords:

Negligence - Breach of statutory duty - Plaintiff stepping on wet surface - Whether plaintiff contributorily negligent - Assessment of damages - Whether injuries caused by accident and/or pre-existing conditions - Turns on own facts

Legislation:

Nil

Result:

Defendant employer liable - No contributory negligence - Total award in damages $525,658

Representation:

Counsel:

Plaintiff: Mr K J Bonomelli
Defendant: Mr P P McCann

Solicitors:

Plaintiff: Anthony Torre & Monaco
Defendant: Phillips Fox

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

Commissioner for Railways v Ruprecht (1978) 142 CLR 563
Davies v Swan Motor Co (SWANSEA) Ltd [1949] 2 KB 291
Jongen v CSR Ltd & Anor (1992) A Tort Rep 81‑192
McLean v Tedman & Anor (1984) 155 CLR 306

Case(s) also cited:

Adams v Ascot Iron Foundry Pty Ltd (1968) 72 SR (NSW) 120
Arthur Robinson (Grafton) Pty Ltd v Carter (1968) 122 CLR 649
Baird v Roberts [1977] 2 NSWLR 389
Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301
Bennett v Minister of Community Welfare (1992) 176 CLR 408
Black v Motor Vehicle Insurance Trust [1986] WAR 32
Bowen v Tutte [1990] A Tort Rep 81-043
Bradshaw v McEwans Pty Ltd, unreported; HCt of Australia; 27 April 1951
Commissioner for Railways v Halley (1978) 20 ALR 409
Crombie v Uniting Church in Australia Property Trust (WA) (1997) 17 WAR 291
Gardner Brothers & Perrott (WA) Pty Ltd v Seat; SCt of WA; Library No 7318; 13 October 1988
Haber v Walker [1963] VR 339
Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18
Holloway v McFeeters (1956) 94 CLR 470
Jones v Dunkel (1959) 101 CLR 298
Kondis v State Transport Authority (1984) 154 CLR 672
Linsell v Robson [1976] 1 NSWLR 249
Malec v J C Hutton Pty Ltd (1990) 169 CLR 638
March v E & M H Stramare Pty Ltd (1991) 171 CLR 506
O'Connor v The Commissioner for Government Transport (1954) 100 CLR 225
Purkess v Crittenden (1965) 114 CLR 164
Thomas v O'Shea (1989) A Tort Rep 80-251
Tubemakers of Australia Ltd v Fernandez (1976) 10 ALR 303
Van Velzen v Wagener (1975) 10 SASR 549
Vandeloo v Waltons Ltd [1976] VR 77
Watts v Rake (1960) 108 CLR 158
Wynn v NSW Insurance Ministerial Corporation (1995) 184 CLR 485
Wyong Shire Council v Shirt (1980) 146 CLR 40

VIOL DCJ: The plaintiff who was born on 31 October 1958 and is now 42 years of age, was employed by, at all material times, the defendant as a rigger.
The plaintiff says he was injured in an accident at work on 16 August 1996. The plaintiff has alleged that the accident was the result of the negligence of the defendant and that he was injured in the accident to such an extent that he has been totally and permanently disabled from work. The questions of liability and damages are both in issue.

Pleadings and Issues

The plaintiff says that because the defendant was his employer, it was under a duty, by virtue of the contract of employment, to provide and maintain work premises and sites in as safe a condition as reasonable care would make them, to observe reasonable care in the provision and maintenance of proper plant and equipment for use by the plaintiff, to establish and maintain a safe and proper system of work, and take all reasonable precautions for the safety of the plaintiff whilst he was engaged upon his work as a rigger.
The plaintiff says that in the course of his employment at about 8.30 am on 16 August 1996, he was working at the Whitfords Cinema Complex. At that time, the defendant was a contractor on site, attending to certain steel construction work. This work involved the "grouting" of areas to the base of steel structural columns and, in particular, the filling in of spaces left between the concrete floor and the columns. The plaintiff alleges that in order to carry out his duties, he was required to walk across an area of wet concrete carrying a bucket of grouting cement and, whilst doing so, slipped. The plaintiff says that the defendant was negligent in the following respects: (the defendant)
(a)failed to provide a safe system or safe place of work;
(b)failed to take any or any adequate precautions to ensure that the plaintiff would not and could not slip at the premises;
(c)caused or permitted water to accumulate on the floor of the premises;
(d)failed to employ any or any adequate means to ensure that water would not be left on the floor of the premises;
(e)permitted the plaintiff to walk in the area of the pool of water when they knew or ought to have known that it was unsafe and dangerous for him to do so;
(f)failed to give the plaintiff any or any adequate or effective warning of the danger of the premises; and
(g)caused or permitted the said pool of water to become or to remain a danger to the persons lawfully using the said premises.
Alternatively, the plaintiff says that the defendant breached a statutory duty owed by the defendant to the plaintiff and created by s 19 of the Occupational Health Safety & Welfare Act 1984. Particulars of that breach are as follows: (the defendant)
(a)failed to provide and maintain a workplace plant and system of work such that so far as was practicable, its employees and in particular the plaintiff were not exposed to hazards;
(b)failed to make arrangements for ensuring that the use of plant at the workplace was carried out in a manner such that its employees and in particular the plaintiff were not exposed to hazards; and
(c)failed to ensure that the floor of the premises were as even, slip resistant and free from obstruction as practicable in breach of reg 332(1)(b) of the Occupational Health Safety & Welfare Regulations 1996.
As to these allegations, the defendant denies the duty of care alleged to be owed by it and does not admit the circumstances of the accident as pleaded in par 4 of the statement of claim. The defendant goes on to say that if the accident occurred, which is denied, then:
"6.1the alleged activities (which are not admitted) being carried out by the plaintiff comprised a simple task, the carrying out of which task did not expose the plaintiff to a foreseeable risk of injury; and
6.2alternatively, if the plaintiff was exposed to a foreseeable risk of injury (which is denied), then there were no reasonably practicable precautions which could or should have been taken by the defendant to prevent the accident."
Despite the apparent inconsistency between par 4 and par 6 of the defence, it was the position of the defendant at trial that there was a general traverse of the plaintiff's allegations as to the occurrence of the accident, the circumstances in which it occurred and, if the accident was found to have existed as alleged by the plaintiff, par 6.1 and par 6.2 should be upheld.
The defendant has pleaded that if there was any negligence on its part, the accident was caused or contributed to by contributory negligence on the part of the plaintiff in that he failed to keep a proper lookout as to where he was walking, and failed to take reasonable care for his own safety in the circumstances.
The plaintiff says that, as a result of the accident, he suffered an injury to his lumbar spine, causing annular bulging of the L4/5 disc, a lateral extrusion of the right L5/S1 disc and annular bulging of the L3/4 disc. The plaintiff says he has, in effect, undergone continuous and conservative treatment under the care of a general practitioner and a neurosurgeon, Mr Bannan. He says he has had assessments by rehabilitation groups.
The plaintiff says that he has certain residual disabilities ie.:
(a)restriction in straight leg raising on the left side to 80 degrees;
(b)pain and discomfort in the right leg;
(c)impairment of walking skills;
(d)25 per cent efficient use of the back; and
(e)preclusion from his pre‑accident employment.
The plaintiff alleges that he has lost his previous enjoyment of life in that he is either unable or restricted in his ability to engage in recreational activities in which he participated prior to the accident, namely gardening, general domestic duties, providing skilled and unskilled help to family and friends and playing with his children. Also, it is alleged that there have been changes to the plaintiff's character such as impatience, frustration, loss of self‑esteem and feelings of inadequacy.
These allegations are denied by the defendant. The plaintiff also alleges that because of the accident, he has been totally and permanently disabled from working and claims past economic loss together with interest thereon, and future economic loss being damages on the basis that the plaintiff would have continued in his pre‑accident capacity until the normal retirement age of 65 years.
The defendant's plea as to the plaintiff's claim as to disability is to be found in par 9 of the amended defence.
The plaintiff also claims past and future medical travelling and other expenses which claims are denied by the defendant.
As can be seen, there is very little in this matter which is not in issue although the amount of special damages claimed was agreed between the parties.
One of the issues which arose was as to the exact site of any accident that occurred. Further, it appears, notwithstanding that the plaintiff was not cross‑examined in any detail at all as to the particular circumstances of the accident, that they were in issue - I will comment further on this in due course.
Notwithstanding suggestions by defence counsel that this was not the case, it is clear that the questions raised as to the plaintiff bona fides by the defence and the conduct of the defendant's case - findings will be made on this and any other relevant area in due course.
As to the pleadings, it became clear during the trial that the defendant accepted that the plaintiff did sustain an injury to his back at work on the date in question ie. 16 August 1996, but was putting the plaintiff to proof that he was injured in the circumstances alleged in par 47 of the statement of claim.
In the course of the trial the defendant conceded that the plaintiff could no longer work as a rigger but could perform full‑time work of a sedentary nature not involving repetitive lifting, twisting and bending. Such work, the defendant submitted, could be as a shop assistant in a video or CD store, courier driver, usher, commissionaire in an office building, and a car park attendant.

The Evidence

The plaintiff was born on 31 October 1958. He is married with three young children. He obtained an Achievement Certificate and left school after third year and qualified as a butcher. He never really enjoyed the work of a butcher and has not worked in that occupation for many years. Before working for the defendant the plaintiff had a variety of jobs including oil fill hand, trades assistant in a ship building yard, and further work for four years in offshore oil exploration. During this time, the plaintiff injured his knee and was off work for approximately three years. He then returned to work as a service technician in the oil industry until 1989. He then ran a timber business in partnership with two other men working in the yard as the yard boss. He did no bookkeeping, ordering or buying or selling. He returned for a time as a service technician and then he and his wife decided to travel around Australia for approximately two years. During this time he was on call with the company involved in the oil exploration overseas and occasionally worked for them. This situation continued whilst the plaintiff and his wife lived in Bridgetown. He did some other casual work during that time. They then returned to Perth and the plaintiff obtained a crane driver's ticket and then a rigger's ticket. He was hoping to get work as a crane driver because that was easier than the work of a rigger. After mid‑1995 the plaintiff began looking for work as a rigger in the metropolitan area and ultimately was employed by the defendant in mid‑1996.
Before this he had never had any trouble with his back at work. He was able to work notwithstanding the injury to his knee some years before.
The plaintiff had never had any experience in the building industry but was employed as a rigger in effect to erect the steel framework for the cinema complex being constructed by the defendant as one of the contractors. He worked on three sites for the defendant – Murdoch University, a high school and the cinema complex.
In addition to the lifting of the framework by cranes, the plaintiff was involved in grouting the steel columns. As part of the process there is a gap left between the bottom of the steel column and the concrete slab for each floor and that has to be filled up with a mixture of cement, water and sand.
He had done some grouting the day before having been shown by Mike Mitchell from the defendant company. The only equipment needed was a plastic bucket with a mixture of sand, cement and water, and a trowel.
The plaintiff described the position with the building as of 16 August 1996 ie. that the first level being a car park level was basically enclosed. The next level was the shopping forum level which he said was basically finished saved that there were no walls – it was just a slab of concrete with columns rising to the next floor which was the cinema level. There were no walls on the cinema level or at the shopping level. The only access from the shopping level to the cinema level was by stairs – the escalators were not in operation.
The plaintiff was shown a plan exhibit D and pointed out where the accident occurred. It was just in front of the stairs and the escalators in a square box marked "RL27.0". Above that there was a skylight which was uncovered and allowed the rain to come through on to the floor.
On the day of the accident the plaintiff said it was raining as he went to work that day and they were not allowed to start work because of that.
The workers sat on the car park level in the smoko shed for some time when somebody poked their head in the door and told them to start work because it had "stopped raining".
He was working on his own and was proposing to do some grouting on the very top level which was above the cinema level – he thought it was known as the machinery level. He went to the wind lobby area where he mixed up a paint bucket which was in fact a 20 litre bucket three quarters full. It was a mixture of cement, sand and water and when mixed the total weight was 30 kilos. He proceeded to walk across the floor to the staircase in order to access the top floor. He was carrying the bucket in his right hand and had his left hand free. He was walking across the shopping centre forum level. The plaintiff said that the rain had come in not only through the skylight but from the sides because there were no walls. As he walked towards the stairs he slipped on the concrete which was wet and caught his hand on the edge of the bucket as he went down and then jarred his back – his right foot slipped away from him in a forward direction.
The area where he slipped had not been "bunted off" ie. made not accessible by the use of red tape.
Just as this happened a union representative (Bob Thompson) asked the plaintiff what he was doing there and told him that he should not be there because they had not finished their inspections of the areas yet. The plaintiff told him that he had injured his back and Thompson advised him to go and report it to the medical safety officer which he did – he reported it to one Mark Binstead.
The plaintiff was in considerable pain and went to a general practitioner Dr Jarvis and then drove home. Because the pain was so intense he went to the Wanneroo Hospital and saw his local general practitioner, Dr James McBealy, who ultimately referred him to a specialist Mr Bannan.
The plaintiff said that when he obtained employment with the defendant he was seeking sufficient experience to sit for his mobile crane driver's ticket and he intended to work permanently in that position.
As a result of the accident the plaintiff said he has been unable to return to his work as a rigger and has been involved in rehabilitation programmes. As one of the such programmes he attempted a work trial at a fishing and tackle shop in Joondalup – this was unsuccessful. There were several attempts to do this work but the pain in his back prevented him from continuing. He was involved in stocking the shelves and he found that opening the boxes and stacking the shelves caused his back to be painful.
He said that the pain in his lower back has been there continuously since the accident and all the time – it was a pain which ran through his buttock into his leg, although his right leg was the one which mainly caused him difficulty he also had some pain in his left leg. Because of the radiating pains he has difficulty sleeping and sleeps in fact on the floor. He is unable to wear shoes for any length of period and wears thongs. The plaintiff said that the pain was very bad just after the accident but although it has "mellowed" it has never gone away. The plaintiff has tried gardening and general domestic household duties but finds that these aggravate his back and cause pain into his legs. He used to do handy work around the house and play with his children but is limited in those activities as a result of the accident.
The plaintiff said that had he commenced as a mobile crane driver, there would not have been a great difference between his earnings in that occupation compared with that of a rigger, however, the former job was not as physical.
The plaintiff was cross‑examined for a considerable time as to a variety of issues. He was cross‑examined as to possible delay in discovering his income tax return – there was little relevance in this cross‑examination and little effect on the plaintiff's basic credibility. The tax returns demonstrated the plaintiff's earnings from time to time – these will be commented on later and the fact that he was unemployed for certain periods. One of the reasons for that unemployment was that his rigging work was on a contract to contract basis and between contracts he was not working – he was actively seeking work he said during that period because he had a wife and two children.
The plaintiff agreed that he worked for the defendant on a casual basis but said that he should not have been employed for that long on this basis because it contravened the agreement with the relevant union. The amount he received varied depending on the amount of hours he worked. The plaintiff marked on exhibit D (drawing A202) where he mixed the grout which in fact was outside the building near a tap. He did the mixing there because he had a bucket and a trowel there. He disagreed that a pre‑mixed construction grout coming in 20 kilogram bags was used for the mixture. He also disagreed that the supplies were on the cinema level ie. the next level up. The supplies had come from Mr Mitchell's boot of his car the day before. He was grouting on all levels from the top and working his way down. He was not sure whether he had grouted on the retail level ie. the level on which the accident occurred. He was unsure of how long he did the grouting on the retail level. He also disagreed that he only had his materials on the cinema level. He confirmed that he was carrying his bucket of cement from the retail level up through the cinema lobby, through the "bio box" and then up to the plant room. These areas were confirmed on a plan MFI4 with a drawing number A3.02.
He was again challenged on the basis that the only grouting he was required to do was on the cinema level and the plant room level, his answer being that he walked around the site looking for any column that required grouting and did that grouting whenever and wherever it was necessary. He was shown some photographs and another plan and accepted that he could have been mistaken in his evidence to the effect that he did grouting on the retail level. He was however not mistaken he said as to where he mixed the grouting. In relation to that he recalled in cross‑examination that either the day before or two days before the accident Mr Mitchell drove his car next to the area where he mixed the grout, opened the boot of the car and said "ssh don't tell anyone about these bags of cement" and required him to use that in the mixing process. That conversation reminded him of where it was that he had in fact mixed the cement. He was adamant that he had mixed the grouting on the position marked by him.

The plaintiff was then cross‑examined as to the position of the escalators and whether or not he had made it known to his solicitors at least that the accident occurred near the escalators. Having reviewed the cross‑examination I am satisfied that the plaintiff had a good memory of the accident itself and the place at which the accident occurred. The cross‑examination did not affect the plaintiff's bona fides in this regard in my view. The plaintiff confirmed that he may have needed a pair of gloves that day to mix the cement because he was mixing it with a trowel in the bucket. He was not mixing the grout on the concrete because he was not prepared to clean the mess up which that would have made. He was reasonably sure that Mr Mitchell was not there early in the morning although he may have been there when he first got to work at 7.00 am. He was cross‑examined as to time and other matters and did his best to answer what were rather equivocal questions. He agreed that he told some medical practitioners that the bucket weighed approximately 10 kilograms but said that he was mistaken in that estimate when he made it and that in fact the bucket three quarters full of the mixture weighed 30 kilograms. The plaintiff was then cross‑examined as to the events which occurred after the accident. Save for confirming where the plaintiff said the accident occurred, there was no cross‑examination as to the state of the floor, the manner in which the plaintiff slipped or any other matter as to the particular circumstances of the accident itself.
The plaintiff agreed that he could take recreational walks on the beach and had attempted to ride a bicycle without any great success. He occasionally mows his lawn and does some work in his garden. He has used a whipper snipper from time to time and uses very light weights for exercise. He occasionally goes beach fishing with his family. The plaintiff agreed that he had given some thought to owning a freezer van or a trailer with a freezer as a mobile fishing bait supplier and felt that he could get a licence to do so but whether he could manage the carrying of the boxes of bait etc. he was not sure. He agreed that he could drive a motor vehicle and had driven with his wife from Perth to Darwin and back sharing the driving a year or so ago. He felt that he could possibly work as a shop assistant provided he was not obliged to repetitively lift heavy weights and could also do the job of a courier which did not involve heavy lifting. He had some reservations as to whether he could work on a full time basis but could possibly work as a franchised courier driver. From the cross‑examination it is clear that the plaintiff felt that he could no longer work as a mobile crane operator – that seems consistent with the other evidence on this particular point. In any event, in re‑examination the plaintiff confirmed that in order to obtain a ticket as a mobile crane operator he needed to have considerable practical experience as a rigger – an occupation which he is no longer able to engage in.
I was able to observe the plaintiff for a considerable time giving his evidence. He was not sophisticated but appeared at all times to be attempting to give honest answers to the questions and from my observations at the time and reviewing of the transcript and my notes of evidence I am satisfied that the plaintiff was an honest witness and one whose evidence could be relied upon. I am not satisfied that the plaintiff attempted to mislead me or the defendant's solicitors or counsel at any time and I am satisfied that he had a good memory of the incident involved in this particular matter.
Mr Andrew Van Der Meer is a consulting engineer. He was called to give evidence on behalf of the plaintiff as to the opinions of a Dr Stephen Chew in a report of 29 August 2000 (exhibit 11). He prepared his own report of 29 September 2000. There were several bases upon which he said Mr Chew's opinion was unreliable, in particular the fact that the tests were performed on a surface which was different to that on which the plaintiff was walking at the time of the injury. According to Mr Van Der Meer the concrete surfaces are highly variable and that variability would introduce a considerable area of error in Dr Chew's findings. He also raised matters concerning the type of concrete used in the building and the fact that the curing compounds specified may have caused the slab to become slippery when moisture is added to it – a process known as re‑emulsification. What appeared to be clear from Mr Van Der Meer's evidence was that any valid opinion as to the state of the floor by an expert was dependant upon the ability to replicate the exact condition of the floor at the point which the plaintiff slipped. One of the points made by Mr Van Der Meer in this regard was that in the laying of a concrete slab no matter what mix of concrete is used and method of smoothing the surfaces used there can be variations from place to place – with the possibility that the surface could be affected by water not only in terms of the water on the surface but also the possibility of PVC re‑emulsifying.
Mr Robert Steven Thompson is a health and safety representative who was employed at the Whitfords Cinema Complex by Westfield Constructions as an occupational health and safety representative. He was there on a full time basis and knew the plaintiff. He confirmed that on the day of the accident there had been a considerable amount of rain and the workers were waiting in the sheds for the commencement of the work after a site inspection. He said there was still a lot of water coming through the building. Until the site was opened there were considerable dangers from electrical problems and including slippery surfaces. After the inspection it could be that some areas were opened for work and others were bunted off, that is flagging or para tape could be used with a "no access" sign put up. He went to the retail section and found that it was wet, "covered in water" and there were "puddles of water all through there". Mr Thompson said that he went into the retail section and came up through an access in the far south west corner and saw a person there who was in fact the plaintiff. He yelled out to him to go back down until the inspection was finished but he did not think the plaintiff had heard him. The plaintiff was walking away from him and he (Thompson) quickened his pace and was going to yell at him again when he saw the plaintiff slip in a puddle of water. He saw the plaintiff's foot go from under him and he fell half backwards and got up holding his hip. He said that the concrete after it has been wet was often very, very slippery particularly in the process of concrete curing. He had discussed with Mr Binstead the type of curing agent to be used on the concrete but was unsure as to exactly what agent was used. He confirmed that when the plaintiff slipped the particular area had not been cleared and in fact he had just started carrying out his inspection – it was the first part of his inspection. Ultimately the area on which the plaintiff slipped, being the main access area, was cleaned off with "squeegees" which was the normal procedure. He confirmed that the area near the accident was ponding and with puddles of water below the area of the skylight. It was put to him as to whether he was sure the plaintiff slipped. He said he may have some doubt about the appearance and layout of the site but he was in no doubt that the plaintiff had slipped and in the position as described by both him and the plaintiff. He had been cross‑examined about whether or not there was support work in place for the concrete form work on that particular area but said that he could not recall exactly how much frame work was there at the time. He was sure that there was some back propping on the floor on 16 August 1996 but could not be sure of the extent of that.
Having observed Mr Thompson give evidence I am quite satisfied that he was an honest witness and had a good memory of the accident itself. I am quite satisfied that he observed the plaintiff walk across the floor, the status of the floor and saw the plaintiff slip as described by him. His evidence corroborates that of the plaintiff in a number of important details.
On behalf of the plaintiff certain medical reports were tendered by consent.
Dr Stephen Chew is a chartered professional engineer and gave an opinion as to the surface upon which it is said the plaintiff had his accident, the opinion being 29 August 2000, exhibit 11. He tested an area of floor on the cinema level of the building which he was advised by Mr Michael Mitchell for the defendant as being similar to that on which the plaintiff had his accident. He arrived at certain conclusions as to the friction coefficient values on the surfaces and found that they complied with certain Australian standards and he concluded that because of this compliance there would be a low risk of anyone slipping when the surface is dry or when it is wet.
In cross‑examination he said that he had no knowledge at all of the concrete or the nature of the concrete upon which the plaintiff slipped.
Dr John Bell's report was admitted into evidence by consent as part of the defendant's case – exhibit 12.
John Robert Spence was a project manager at the relevant time employed by Westfield Constructions and was involved in overseeing the construction of the Whitfords City Cinema site. So far as he was concerned there was no structural steel at the relevant time on the cinema or retail levels although he qualified this by saying that there may have been a couple of columns but he could not have been sure of that without some further investigation. He said that there was a broom finish used in the relevant area which is said to be the same as the area seen by Dr Chew. He said that he did not recall any evidence of re‑emulsification in the relevant area in this matter. Mr Spence was recalled to give evidence and said as at 16 August 1996 he did not believe that there were any steel supports remaining on the retail floor. This evidence is a little difficult to reconcile that given his evidence‑in‑chief – the impression I was left with was that he was still uncertain as to the exact appearance of the floor on which the plaintiff said he was about to do some grouting work. The evidence of Mr Spence in this regard does not contradict the plaintiff's evidence to an extent to lead me to doubt the plaintiff as to that matter, nor to doubt the evidence of Mr Thompson.
Miss Narelle Elizabeth Gastovich is a rehabilitation consultant employed by Work Focus. That organisation had the conduct of the plaintiff's rehabilitation for some time during 1997 and 1998. She had some discussion with the plaintiff about the possibility of selling bait from a mobile trailer but her evidence as to that was of little value to the defendant save that the plaintiff had approached the Shire of Wanneroo as to the obtaining of a licence.
Miss Debbie Ann Larson is a labour market economist employed by Labour Net. The reports of Miss Larson, exhibits 14 and 15, are self‑explanatory and will be referred to by me in due course. She agreed in cross‑examination that the wages in the building industry are mainly arrived at by the enterprise bargaining process and that the figures mentioned in her analysis could be earned at a higher rate by people in the industry.
Anna Jane Shortland is a qualified occupational therapist and was involved in testing the plaintiff. She reported in a report dated 30 June 1997, exhibit 16. On p 2 of the report there are conclusions as to the plaintiff's physical work abilities and physical work restrictions. When the tests are considered, being of a retracted and limited nature, in my view there was very little to be gained from the opinions expressed either in the report or in court. For example the "elevated work test" which involved dealing with some bolts at head height was tested for something in the region of five minutes. The application of what was known as the "Izenhagen Test" appeared to me to be somewhat artificial and of limited value in the enquiry before me. This is particularly so in light of the answers by Miss Shortland in cross‑examination. The tests appear to be a laboratory alternative to actually seeing a person work on the job and the tests and the opinion of Miss Shortland should be looked at in the light of the medical evidence and other evidence for obvious reasons.
Mr Peter Stewart Hollingworth is an associate professor of occupational medicine. He saw the plaintiff on three occasions on 20 October 1997, 3 November 1998 and 3 December 1999. He had been provided with some medical reports and some radiological films. In his report of 22 October 1997 (exhibit 17A) Professor Hollingworth was of the view that the plaintiff had extensive degeneration in the lumbar spine with specific degeneration at L4/5 and L5/S1. The plaintiff had some variable days. Professor Hollingworth thought it was quite likely given the extensive degeneration that the plaintiff would have had some back pain sooner or later even without the accident. He felt the plaintiff had a current work capacity on full time basis if it is appropriate work. There were a number of restrictions placed upon the plaintiff's ability to work. The plaintiff, he thought, was never going to return to the heavy labouring work such as a rigger or working on oil rigs. A work trial was necessary. Some conservative treatment was recommended but inappropriate work could easily precipitate a position where surgery was inescapable. He noticed on the MRI's taken of the plaintiff between August 1996 and December 1998 that there had been some improvement in the protrusion at L5/S1 in that the bulge appeared to have narrowed. This can be caused by shrinking and causes less pain.
In his report of 20 February 1998 (exhibit 17B) Professor Hollingworth confirmed his view that the plaintiff was fit to work a number of suitable occupations provided there was a sufficient work trial.
In his report of 6 November 1998 (exhibit 17C) Professor Hollingworth referred to the new symptoms noted by the plaintiff in his right hip and groin going up to his neck. He thought further investigations were necessary for that. He felt at that time that the plaintiff was not fit for work. In his report of 12 February 1999 (exhibit 17D) Professor Hollingworth felt that the plaintiff's symptoms should have been settled by that time and that his continuing symptoms were related primarily to his degeneration rather than to the work injury. Finally in his report of 3 December 1999 (exhibit 17E) he felt that there had been some protrusion of the plaintiff's disc at L5/S1 as a result of the accident as described by the plaintiff. He confirmed his previous opinions and felt that the plaintiff would under normal circumstances have had to retire from his work as a rigger somewhere between 50 and 55. He did not recommend that the plaintiff undertake surgery and confirmed that the plaintiff was fit for work of a light nature with certain restrictions and with a work trial of sufficient length and applicability.
In cross‑examination Professor Hollingworth agreed that the injury on 16 August made what was an symptomatic back condition symptomatic. He confirmed that the nerve root had been originally irritated by the injury but thought it should have settled down in the meantime. He felt that it was probable that the degeneration had taken over as a cause of his present symptoms rather than the original soft tissue injury. He also said, in answer to a question from myself, that he could not come to any conclusion as to what was causing the new symptoms and could only base any opinion on clinical grounds rather than any recent MRI.
Mr Allen Leo (Jim) Mitchell is the managing director of the defendant company and has been in that position for 34 years. He is still involved in carrying out steel rigging on construction sites in the Perth metropolitan area. His son Michael Mitchell is a construction manager and he is the overall field supervisor. At that time Mr Mitchell senior was involved in partial management of the field work. He gave a job to the plaintiff on a casual basis and for as long as the cinema complex lasted. He confirmed what the plaintiff had said, namely that when if it was raining at the start of work (7.00 am approximately) workers were not allowed out of the hut until called on to commence work. The safety representatives inspect the site and then give the all clear for people to go on site. He was not at the site on 16 August 1996. The plaintiff's weekly pay prior to the accident was in the region of $661 per week. He felt that there was no grouting to be done on the retail level at the time of the accident but thought that there were about two columns on the retail level later. He was involved in supplying trade names of grout to the site from time to time. He agreed in examination‑in‑chief that several days before the accident that he had used some water and cement and sand which were not from a trade organisation but were in fact the property of other contractors on site. He also agreed that there may have been some conversation with the plaintiff albeit not in the terms that the plaintiff used. He confirmed that they had undertaken that method as a temporary measure to "keep the management quiet" until the correct grout was available on the site. This he said occurred about three days before the accident. He agreed in cross‑examination that he could have delivered a bag of cement as suggested by the plaintiff and could not say that the plaintiff was wrong in his evidence in that regard nor could he deny the plaintiff's evidence that he mixed cement and sand and water in a bucket to take it to grout the columns. He agreed that it was possible that he took a bag of brickies cement and commented to the plaintiff. He was not sure exactly what the position was.
To some extent this evidence of Mr Mitchell senior corroborated that of the plaintiff's and Mr Mitchell senior was commendably honest in making the concessions that he did. He agreed that on exhibit F he wrote some parts of the form and used the expression "main floor slab" to note that the accident occurred there and meaning in fact the retail slab, as mentioned by the plaintiff in his evidence. He wrote in the date and time of the occurrence and the fact that the plaintiff was "carrying a bucket of grout cement". From that point of time he was aware that the accident occurred in the retail section and other matters related to it. This confirms my view that the plaintiff has always been open to his employer and in turn the insurers as to the time and place of the accident. The form must have been given at a very early stage to the insurers. Exhibit L was in fact a copy of exhibit F and "Employers Indemnity Insurers Report Form". Mr Mitchell senior confirmed that there were various allowances payable to employees such as the plaintiff under the relevant enterprise bargaining agreement – this will be referred to in due course.
Michael James Mitchell is the son of Jim Mitchell and was at the relevant time the construction manager of the defendant. His duties included organising the men to do their work on different sites and to supervise this work. He confirmed, as the plaintiff said, that when it is raining and it is not possible to work under cover workers sit in the site sheds until safe to do so. He said that there was no grouting to be done on the retail level. He recalled that it was drizzling that morning when he arrived for work about 7.00 am and that this continued for 10 or 15 minutes from the start time. He said that he had a discussion with the plaintiff about doing some grouting work on the cinema level (not the retail level) and that they went upstairs to commence that work when the plaintiff asked for some gloves and a trowel. He went to the hardware store for some 40 minutes. He said at that time the rain had stopped. When he returned he heard that the plaintiff had had an accident at work. He was using commercial grouting which he mixed on the floor with a shovel. This he did on the cinema level that day. He gave some evidence as to the procedure with people on casual employment. He confirmed that in cross‑examination that he had gone upstairs with the plaintiff. He also said that he was unaware that cement was used from sources other than the trade grouting, for grouting purposes. An examination of the evidence of Mr Mitchell junior shows that there is inconsistency between his evidence and that of the plaintiff as to the movements of the plaintiff that morning but does not in any way affect the plaintiff's evidence and that of Mr Thompson as to the plaintiff walking across the floor on the retail level. Mr Mitchell junior was obviously away from the site when the accident occurred and was in no position to contradict the evidence of the plaintiff as to the circumstances of the accident. Clearly there was grouting intended to be done that day and although the plaintiff may have been mistaken as to the exact site he was to do the grouting, Mr Mitchell's evidence has no bearing on the accident itself and the circumstances in which it occurred. On careful analysis the evidence of Mr Mitchell has no real effect in my view on the plaintiff's case.

The parties agreed that the special damages in this case would be represented by medical and other expenses paid by the workers' compensation insurer in the sum of $12,972.25 and that the plaintiff had received workers' compensation to the date of trial on a gross basis of $122,139.
Mr Paul Bannan is a neurosurgeon who saw the plaintiff on a number of occasions and prepared a number of medical reports which became exhibit 1. He confirmed that plaintiff ruptured his L5/S1 disc in the accident. As a result there was compression of the nerve root. He confirmed that the plaintiff's discs were degenerative but stated that the extent of such degeneration and whether it was age related was obviously a speculative matter. He said it was almost impossible to give a definite opinion as to whether and when the plaintiff would have had to stop work without any accident occurring, due to the degeneration in his spine. He said that repetitive manual work accelerates disc degeneration and that the type of work the plaintiff was doing was accelerating the wear and tear on his back. The plaintiff he said was unfit to return to his work as a rigger. The return to work involving any heavy manual labour would result in further injury. He was unable to place an age upon which he thought the plaintiff would have had to stop work, although in one of his reports he suggested that this may have occurred at around the age of 50. He confirmed that in his view the plaintiff was fit for light duties which did not involve any repetitive heavy lifting or forward bending or manual work. There would need to be a reassessment by rehabilitation experts to identify a suitable job and that he should lift nothing more than 10 kilograms, particularly on a repetitive basis. There was a limited possibility of the plaintiff requiring surgery and did not need regular specialist reviews – these would only be necessary if the plaintiff was in trouble. His reports and his evidence confirm the basis of the plaintiff's continuing pain and the fact that this was related to a combination of his degenerate discs and the work accident. He was of the view that the accident in August 1996 precipitated the injury to his disc and given the plaintiff's consistent complaints and right L5 pain, that incident was still the causation of his current symptoms (see his report of 7 December 1999). In cross‑examination Mr Bannan confirmed the changes in the appearance of L5/S1 on the MRI's. He confirmed that the disc herniation had largely resorbed but there was still an amount of disc bulge and some bone pressing on the nerve. He said that the plaintiff still had a disc protrusion, the disc was still bulging and he still had some pressure on the nerve root albeit that this had improved over time. He confirmed that the history given to him by the plaintiff was consistent with disc injury and that this causes leg pain and did so in the plaintiff. He also confirmed that the plaintiff's leg pain, which became greater than the low back pain was consistent with damage to the nerve root itself. The plaintiff's right leg pain in particular he said was due to nerve root damage. He confirmed that some part, the percentage of which he did not specify, of the plaintiff's ongoing complaints of pain mainly in the back were due to the underlying wear and tear changes in his discs. He said that it was impossible to confirm how much of the plaintiff's back pain was work related ie. due to the rupture of his L5/S1 disc and how much was due to the underlying wear and tear. He was also of the view that had the plaintiff not had the injury he may have had no symptoms. His opinion was that it was almost impossible to design a study from which one could conclude the percentage of people who, with degenerative change would or would not have pain symptoms.
The clear conclusion from Mr Bannan's evidence is that the plaintiff's continuing leg pain is work related and a portion of his back pain is work related but that is impossible to determine the extent of that. Further that it is not possible to place a restriction on the plaintiff's likely length of employment to the age of 50 - in fact it was Mr Bannan's view that he could not say with any certainty that the plaintiff could not have worked through till 55 or more without the work accident. He was of the view, although he was not happy to give this opinion, that the plaintiff could work in a job that was mainly clerical where he could get up, move around and serve people providing he was not involved in repetitive lifting, bending and twisting. Other jobs were possible including working as a courier driver, car park attendant or shop assistant given the restrictions he had mentioned. He confirmed in re‑examination that this opinion was subject to the need for input from a rehabilitation specialist as to detailed knowledge of the particular jobs about which he had been cross‑examined.

Findings of Fact and Law

The law relating to this matter is well settled and requires little exposition in this case. Although the duty of care alleged to be owed by the defendant to the plaintiff was denied by the defendant, it is clear in my view that the duties set out in par 3(a) to par 3(d) of the statement of claim were in fact owed by the defendant as the employer of the plaintiff, to the plaintiff. There has been no proper basis put to me as to why such duties were not owed in this particular case.
I have already made some comments on the evidence of the various witnesses as to the accident itself. In my view there was no acceptable basis put to me upon which I could not accept the evidence of the plaintiff and Mr Thompson as to the happening of the accident itself. It is clear that the plaintiff was walking across the retail floor carrying a bucket of grout and intending to use that grout on some part of the premises – in the end it does not affect the case in my view whether or not the plaintiff was intending to grout on that floor or the floor above. It is clear also that the floor was wet and that there were puddles on the floor. The fact that there were puddles confirms the position, which commonsense also would cause one to conclude, that the floor was not precisely level and that there were some areas of a slightly different height than others. It is also the case in my view that the floor was differed from place to place in terms of its surface. For that reason it is not possible in my view for the defendant to be able to rely upon the evidence of Dr Chew – it is impossible for the defendant to replicate the exact circumstances and surface upon which the plaintiff was walking at the relevant time. In any event, the failure by the defendant to cross‑examine the plaintiff on any of the circumstances further reduces the ability of the defendant to rely upon the expert evidence of Dr Chew.
It is clear that the floor upon which the plaintiff was required to walk was wet, given to being slippery and with a surface that varied as one walked across it.
It is clear also that the plaintiff was working there as a rigger and this work involved the grouting described by the various witnesses. There is no evidence that the plaintiff was given any training or guidance as to the carrying out of his work and in particular the necessity to be careful on wet surfaces. The one matter that can be derived from the evidence is that the protocol at the time on that site and most other sites was that when there had been rain, or there was still rain falling, no work was to proceed on concrete surfaces until a safety inspection had confirmed that surface as safe, or non‑safe surfaces had been cordoned off.
It is also clear that the plaintiff was advised that he could start work and this he did – it is clear that the obligation involved in this lies upon the defendant. I accept that the plaintiff was carrying a bucket of grout and that had been made up by him as described by the plaintiff – the evidence of Mr Mitchell senior tends to support the evidence of the plaintiff as to this matter. Whilst not specifically finding that the evidence of Mr Mitchell junior is not acceptable on this point, his evidence does not in my view provide any basis upon which the plaintiff's evidence should not be preferred.
The plaintiff I find slipped on the floor surface and injured himself in the manner confirmed by the various medical practitioners.
This accident was in circumstances in which the defendant knew or ought to have known that the floors were unsafe, and failed to prevent the plaintiff from walking on the floor or taking any precautions to ensure that the plaintiff would not slip on the wet floor. It is also clear that the defendant failed to use any means to ensure that water would not be left on the floor of the relevant premises.
I find therefore that the plaintiff was injured in the manner alleged by him in his statement of claim, that there was a duty of care owed by the defendant to the plaintiff as alleged and that there was a breach of that duty of care as alleged in par 5 of the statement of claim. It is also possible in my view to find a breach of the statutory duty alleged by the plaintiff.
Turning to par 6 of the defence I do not accept the proposition therein that if it could be said that the plaintiff was carrying out a simple task the carrying out of such task did not expose the plaintiff to a foreseeable risk of injury. It is clearly possible in circumstances such as this where given a plaintiff engaged in what could be possibly be described as a simple task, that he be injured in the course of carrying out that task by circumstances arising from a negligent employer. This is in fact the case here in my view.
As to par 6.2 there were clearly reasonably practical precautions that could or should have been taken by the defendant to prevent the accident – some have already been mentioned by me and were in fact the subject of evidence.
It is clear in my view that the defendant, by its negligence, caused the accident to the plaintiff.
I turn now to the defendant's plea in contributory negligence. As to this once again the plaintiff was not cross‑examined at all as to the circumstances in which the accident occurred, and in particular as to the basis of the plea in contributory negligence set out in par 7.1 and par 7.2 of the defence.
Without even a consideration of the relevant law on this matter there was no basis upon which I could find that the plaintiff failed to keep a proper lookout as to where he was walking – it is a reasonable inference to draw from the evidence that the plaintiff was concentrating on the job ahead of him and was walking towards an area around the stairs. Similarly there is no evidence upon which I could find that the plaintiff failed in any way to take reasonable care for his own safety.
As to the law applicable:
"The real question is not whether the plaintiff was negligent in some legal duty, but whether he was acting as a reasonable man with reasonable care." (Davies v Swan Motor Co (SWANSEA) Ltd [1949] 2 KB 291 at 324)
Further, the employee's conduct must go beyond "mere inalteration or inadvertence" (McLean v Tedman & Anor (1984) 155 CLR 306 and Commissioner for Railways v Ruprecht (1978) 142 CLR 563)
It is well open to find in this case that the plaintiff was taking reasonable care for his own safety - perhaps there may have been an element of inattention or inadvertence to the state of the floor, but the lack of evidence as to the state of the plaintiff's mind, other than the fact that he was concentrating on the job he had to do and the route to be taken to get there, prohibits a finding that the plaintiff's conduct went beyond his.
In all the circumstances therefore I find that the accident was due to the negligence of the defendant and that there was no contributory negligence on the part of the plaintiff.
As to the sequelae of the accident it is the case that the plaintiff had a degenerative spine before the accident. This was however, asymptomatic, notwithstanding the plaintiff having worked for the majority of his working life in manual occupations. A review of the medical evidence including that of Mr Bannan and Professor Hollingworth confirms the position that it is not possible to predict whether or not any particular person is likely to become symptomatic for reasons other than work in the future, or even for work reasons.
It is clear that the plaintiff sustained an injury to his lumbar spine which caused a bulging of his L4/5 disc, a lateral extrusion of the right of the L5/S1 disc and annular bulging of the L3/4 disc.
The course of treatment was as described by the plaintiff, with referrals to Mr Bannan, neurosurgeon. The plaintiff's attendances on his general practitioner (Dr McKneeley) appear to involve a constant pattern of complaints, consistent with the back injury suffered in the accident.
The medical evidence confirms, in my view, a continuance of symptoms in the plaintiff's back consistent with the injuries to the plaintiff's lower spine. Although Professor Hollingworth opined that the back symptoms were now referrable to the generation rather than the injuries, Mr Bannan, the treating neurosurgeon, was far less certain on this point, and thought that a proportion of his leg and back pain were still work related (T17 - de bene esse). In my view, there is an ample basis to find that the plaintiff's continuing back symptoms are accident related per se.
As to the plaintiff's leg pain, Professor Hollingworth was rather strongly of the view that this was a recent result of degeneration and a new physiological condition. Mr Bannan's view was as above. Mr Bannan also confirmed that the plaintiff's leg pain could be connected to the back injury and explained the mechanics of this. Bearing in mind this explanation and the evidence generally, I consider that on the balance of probabilities, the plaintiff's continuing level of pain both in his leg and his back is accident related.
These views I have arrived at with the background that pre‑accident, the plaintiff's back and legs were asymptomatic, but this position changed after the accident and that the predominant medical opinion is that one cannot, with any certainty, predict when (and whether) a person such as the plaintiff engaged in the work he did, would inevitably suffer such symptoms due only to degeneration.
Despite the opinion of Professor Hollingworth and submissions on behalf of the defendant, I consider that there was ample evidence upon which I can conclude that the plaintiff's present symptoms are work related, that is, caused by the accident and not to some degenerative process.
It is appropriate then, at this stage, to consider the likely future work history of the plaintiff. He was involved in manual work and intended to continue this although his aim was to qualify as a mobile crane operator because the work was easier. Given the plaintiff's personality, work ethic and attaining of qualifications in the past, I have no doubt he would have become a mobile crane operator. Bearing this in mind, and the clear connection capable of being drawn from the medical evidence that it is almost impossible to predict the future of any person with a degenerative back doing mainly manual work, it is a reasonable and proper conclusion to draw that the plaintiff would have been capable of working as a rigger and/or mobile crane operator to approximately 60 years of age ie. a further 20 odd years after the accident date on 6 August 1996 and 18 years from now. I will act on these findings in due course.
As to the claim for loss of amenities, enjoyment of life etc. several matters must be, inter alia, born in mind ie.:
(1)the plaintiff's obvious honesty and general ethics;
(2)the plaintiff's pre‑accident engagement in normal social, marital and recreational activities;
(3)the plaintiff's enjoyment of his work and family pre‑accident;
(4)the considerable restrictions on these activities which have arisen since the accident; and
(5)the plaintiff's attempts to return to his pre‑accident situation regarding these matters.
Bearing in mind these matters and the evidence generally, an appropriate order for general damages is the sum of $50,000.
I now turn to the claims for loss of earnings and loss of future earning capacity.
It is clear on all the evidence that the plaintiff, since the accident, has been unable to return to his job as a rigger and will never be in this position. It could be argued that at some point between the accident and the date of trial, the plaintiff became fit for some limited light duties. The medical evidence suggests some reduction in symptoms and Mr Bannan thought from time to time during that period, that the plaintiff may be able to attempt to return to some type of work. The position is clear, however, that the plaintiff did have continuing symptoms both in his back and leg, and that his attempts at a work trial virtually failed. That the plaintiff continued to have nerve root damage appears to be clear. On all the evidence, I am unable to find, as the defendant has submitted, that the plaintiff was at any stage before the trial, fit to return to work, even of a light nature with the limitations already expressed.
The defendant has pointed to some periods during which the plaintiff was unemployed before the accident. These do not, in my view, provide a basis to doubt the plaintiff's basic work ethic - he was in an occupation which was, to some degree "seasonal", taking of a year off to travel around Australia was not out of the norm for a young couple and some work was in fact done during this period. I propose, therefore, to calculate past economic loss on the basis that the plaintiff's accident related injuries precluded any real possibility of him performing any work between the accident and the hearing. As to this, I consider it is open on the evidence to apply a limited deduction for the periods the plaintiff may have had off work for reasons of seasonality of the work, but I will not make any deduction for any possibility that the plaintiff's degeneration in his spine would have become symptomatic in that period. I consider a deduction of 5 per cent would be appropriate.
As to the rate upon which I should assess past economic loss, as I understand the plaintiff's submissions it is contended that the plaintiff could have earned far more for work that he was able to recover by way of workers compensation entitlements. Reliance was placed, inter alia, upon the evidence of Ms Larson and the Enterprise Bargaining Agreements (exhibit M and exhibit N).
On the basis of the plaintiff's pay records (exhibit 3), the average gross weekly earnings of the plaintiff for the six weeks before the accident were $661.89 per week. The average amount received by the plaintiff by way of weekly payments of workers' compensation from the accident to the date of trial was $567.29 ($122,139 for 215.3 weeks).
The plaintiff relied upon evidence as to the use of "collective bargaining" practices to submit that a higher rate of pay should be used to calculate part of the earnings. No exact figures were suggested, although in his submissions made on behalf of the plaintiff, a figure up to $1,000 per week was suggested. Ms Larson's evidence suggests that a figure in the region of $850 to $890 per week gross were applicable to the position of a rigger in 2000.
It is reasonable to conclude from the evidence that between the date of the accident to trial, the plaintiff would have enjoyed an increase in his wages, although the exact amount of this is not readily arrived at. On the available evidence, in my view an appropriate weekly rate of pay to use as a starting point for the calculation of part loss of earnings is $650 per week nett (or $850 gross) as an average. Using this figure, the loss for 215.3 weeks is $139,945. Applying a deduction of 5 per cent (an amount of $6,997) gives a figure for loss of past earnings of $132,948.

The plaintiff is also entitled to interest on his past loss of earnings. The interest is calculated as follows:
$148,200 x 6 per cent per annum x 4.1 years = $36,408
The plaintiff claims, and is entitled to past superannuation lost. Using a figure of $850 per week gross the calculation is:
6 per cent x $850 = $51
$51 x 215.3 weeks = $10,980
Less discount of 5 per cent - $549, leaving a figure of $10,431
(as per Jongen v CSR Ltd & Anor (1992) A Tort Rep 81‑192)
As to the claim for future economic loss, I have already found that the plaintiff would have worked as a rigger/mobile crane operator to the age of 60 years. The plaintiff had left a working life from the date of hearing to the age of 60 years of 18 years. The 6 per cent multiplier for 18 years is 582.
Bearing in mind the various allowances applicable to the plaintiff's work referred to in evidence, the appropriate figure for the calculation of future loss is $700 per week nett (or $925 per week gross) giving the following, $700 x 582 = $407,400.
There must be a deduction for the retained earning capacity of the plaintiff. The evidence is that the plaintiff will, given a reasonable time to be trained and to assimilate the duties, be fit for work in various capacities of a light nature, with the restrictions already mentioned. Bearing in mind the type of occupations mentioned in the evidence and the wage levels applicable thereto, I conclude that a deduction of 30 per cent is appropriate - this gives a figure of $285,180.
There should also, bearing in mind the plaintiff's inherent physical condition and work history, also a deduction for contingencies of 5 per cent, leaving a figure of $270,921 for future loss of earnings.
Future superannuation is calculated as follows:
$42 per week ($700 x 6 per cent) x 582 - $24,444
Less 30 per cent for the deduction already referred to = $17,111
Less 30 per cent (as per Jongen v CSR) = $11,978
The special damages (as agreed) to be awarded to the plaintiff amount to $12,972.25.
The plaintiff is thus awarded:
General damages  $ 50,000
Past earnings   132,948
Interest on past earnings   36,408
Past superannuation   10,431
Future earnings   270,921
Future superannuation   11,978
Special damages      12,972
TOTAL  $525,658