Hubery v Bunnings Forest Products Pty Ltd

[1999] WASCA 107

HUBERY -v- BUNNINGS FOREST PRODUCTS PTY LTD [1999] WASCA 107

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[1999] WASCA 107
Court:	THE FULL COURT (WA)
Case No:	FUL:191/1997	Heard:	10 JUNE 1998
Coram:	KENNEDY J IPP J WALLWORK J	Delivered:	4/08/99
No of pages:	28	Judgment Part:	1 of 1
Result:	Appeal allowed Appellant contributorily negligent to extent of 50 per cent
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Parties:	JAMES BERNARD HUBERY BUNNINGS FOREST PRODUCTS PTY LTD
Catchwords:	Tort Employer's liability Unsafe system of work Timber industry Necessity for scrub rolling before felling Employer liable Contributory negligence on part of employee Damages Employer's liability Award varied Turns on own facts
Legislation:	Nil
Case References:	Commissioner of Railways v Ruprecht (1979) CLR 563 McLean v Tedman (1984) 155 CLR 306 Pennington v Norris (1956) 96 CLR 10 Sungravure Pty Ltd v Meani (1964) 110 CLR 24 Wynberg v Hoyts Corporation Pty Ltd (1998) 72 ALJR 65 Black v Motor Vehicle Insurance Trust [1986] WAR 32 Bressington v Commissioner of Railways (1947) 75 CLR 339 Brown v Rodrigues, unreported; FCt SCt of WA; Library No 970334; 3 July 1997 Devries v Australian National Railways Commission (1993) 177 CLR 472 Dover v H Litis Pty Ltd, unreported; FCt SCt of WA; Library No 960026; 23 January 1996 Gamser v Nominal Defendant (1977) 136 CLR 145 GMH Ltd v Whetstone (1988) 50 SASR 199 Lyndale Fashion Manufacturers v Rich [1973] 1 All ER 33 Sheen v Fields (1984) 58 ALJR 93 State Government Insurance Commission v Toomath, unreported; FCt SCt of WA; Library No 960218; 24 April 1996 Swift v Broken Hill Pty Co Ltd (1957) 97 CLR 337 Tacey v Bell [1985] Tas R 179 Thomas v O'Shea (1989) Aust Torts Rep 80-251 Wilson v Peisley (1975) 50 ALJR 207

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : HUBERY -v- BUNNINGS FOREST PRODUCTS PTY LTD [1999] WASCA 107 CORAM : KENNEDY J

IPP J
WALLWORK J

HEARD : 10 JUNE 1998 DELIVERED : 4 AUGUST 1999 FILE NO/S : FUL 191 of 1997 BETWEEN : JAMES BERNARD HUBERY

Appellant (Plaintiff)

AND

BUNNINGS FOREST PRODUCTS PTY LTD
Respondent (Defendant)

Catchwords:

Tort - Employer's liability - Unsafe system of work - Timber industry - Necessity for scrub rolling before felling - Employer liable - Contributory negligence on part of employee

Damages - Employer's liability - Award varied - Turns on own facts

Legislation:

Nil

(Page 2)

Result:

Appeal allowed

Appellant contributorily negligent to extent of 50 per cent

Representation:

Counsel:

Appellant (Plaintiff) : Mr G P Miller QC & Mr B G Bradley
Respondent (Defendant) : Mr R E Keen

Solicitors:

Appellant (Plaintiff) : Moss Bradley
Respondent (Defendant) : Julian Lentzner

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

Commissioner of Railways v Ruprecht (1979) CLR 563
McLean v Tedman (1984) 155 CLR 306
Pennington v Norris (1956) 96 CLR 10
Sungravure Pty Ltd v Meani (1964) 110 CLR 24
Wynberg v Hoyts Corporation Pty Ltd (1998) 72 ALJR 65

Case(s) also cited:

Black v Motor Vehicle Insurance Trust [1986] WAR 32
Bressington v Commissioner of Railways (1947) 75 CLR 339
Brown v Rodrigues, unreported; FCt SCt of WA; Library No 970334; 3 July 1997
Devries v Australian National Railways Commission (1993) 177 CLR 472
Dover v H Litis Pty Ltd, unreported; FCt SCt of WA; Library No 960026; 23 January 1996
Gamser v Nominal Defendant (1977) 136 CLR 145
GMH Ltd v Whetstone (1988) 50 SASR 199
Lyndale Fashion Manufacturers v Rich [1973] 1 All ER 33
Sheen v Fields (1984) 58 ALJR 93
State Government Insurance Commission v Toomath, unreported; FCt SCt of WA; Library No 960218; 24 April 1996

(Page 3)

Swift v Broken Hill Pty Co Ltd (1957) 97 CLR 337
Tacey v Bell [1985] Tas R 179
Thomas v O'Shea (1989) Aust Torts Rep 80-251
Wilson v Peisley (1975) 50 ALJR 207

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1 KENNEDY J: On 4 February 1991, the appellant sustained injuries in an accident in the course of his employment as a tree feller by the respondent, a logging company, in the Warner block of the Kirup Forest in the south west of this State. The appellant's claim in the District Court for damages for the negligence of the respondent was dismissed on 16 December 1997.

2 The learned trial Judge, in his judgment, described the system generally adopted by the respondent for the felling of trees as follows. An area of State forest is allocated to the respondent by the Department of Conservation and Land Management ("CALM"). An officer of CALM goes through the area and marks those trees which are not to be removed. From CALM's point of view, it is desirable that the destruction of vegetation in the forest should be reduced to the minimum practicable level. The respondent operates with teams which typically consist of five workers, headed by a leading hand, described as the bush boss. Three of the workers are tree fellers, each of whom is allocated an area of approximately 10 acres of forest at a time which, for safety reasons and, his Honour indicated, for ease of calculation of his earnings, is worked individually. Another member of the team is the skidder operator, whose task it is to operate a machine which drags logs from the position where they have been felled to a cleared area, known as a landing. The fifth member of the team is the loader operator, who operates a front end loader which is specially designed to pick up logs in the landing and loads them onto trucks for transportation to the sawmill.

3 After the CALM officer has marked those trees which are not to be removed, it is the responsibility of the bush boss himself to go through the area and to mark other trees which are not to be removed. Those trees are principally located along creek beds or ridge lines, where they are sought to be retained for conservation purposes. Thereafter, the tree feller goes to his allocated block and fells all the trees of commercial quality, other than those which have been marked. The bush boss periodically checks each area to ensure that there are no trees of commercial quality left standing.

4 Trees are felled with the use of a chain-saw. Before felling a tree, his Honour indicated, a sufficient area has to be cleared around it for the purpose of undertaking the task. To produce a millable log, the crown of the tree and any other remaining branches have to be removed.

5 Safety considerations play an important role in the task of felling trees. Initially, the tree feller must establish the direction in which the tree

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will fall. On the side of the tree away from where it is intended that it will fall, it is necessary for the tree feller to clear an escape route, in the shape of a wedge of 45 degrees, to enable him quickly to decamp should anything go wrong. In areas of dense bush, this poses something of a problem for the tree feller, and, in the industry, a practice known as scrub rolling has been established. Scrub rolling involves the flattening down of the bush by the use of a skidder machine or some other available machine. In forest areas such as Nannup, where there is a great deal of heavy scrub, the whole area might need to be scrub rolled. On the other hand, in light country, there may be no need at all for any scrub rolling.

6 The Warner block, where the appellant was working at the time of the accident, was described by his Honour as being generally light country with little undergrowth. It did, however, contain pockets of heavy undergrowth in those areas where the soil is richer. Various estimates of the area of heavy undergrowth were made by the witnesses, the appellant claiming that 20 per cent of the undergrowth in the Warner block was very dense. Be this as it may, the evidence was overwhelmingly to the effect that, in the area where the appellant was working, the undergrowth was heavy.

7 One of the well recognized hazards in tree felling is that of sprung limbs. After a tree has been felled, as a rule, the limbs along the trunk must be removed prior to the skidder machine dragging the trunk to the landing. From time to time, a limb of a fallen tree may be caught by other trees or saplings in the vicinity and placed under tension, with the consequence that, when cut off, it will "spring". This creates a potential danger for a tree feller who is using a chain-saw to remove the limb. Where there is a sprung limb, it is therefore necessary for the chain-saw operator to stand on the side away from that to which the limb is likely to spring, and to cut it in a particular way. The tree feller is therefore required to make an assessment of the position with respect to each limb before he proceeds to cut it off.

8 At about 2.00pm on the day of the accident, the appellant decided to fell a marri tree. The tree was situated in what is described as a blackbutt flat, in which there was heavy undergrowth, said by the appellant to be "thick, heavily dense scrub". The tree was growing part of the way up a slope, and the appellant elected to fell the tree across the slope. He cleared the area around the base of the tree in order to give himself room to work, and he cleared an escape route through the undergrowth. He achieved this, he said, by bodily pushing over the scrub and by cutting down "the bigger stuff" with his chain-saw. He described his escape route

(Page 6)

as "a small area" where he could step back. He admitted that he had not cleared an escape route of the type recommended by the Forest Industry Training Services ("FITS"), a body established for the purpose of assessing the skills of workers in the industry.

9 After the tree had been felled, the appellant climbed up onto the trunk and removed the crown. There was some discussion during the trial as to whether the crown should have been removed by the appellant before the remaining limbs were severed, and it was suggested that it should have been left in place until all the other limbs had been removed, because the crown would give the tree trunk greater stability and prevent it from rolling. This was a matter raised essentially by way of an aside; but it was seized upon by his Honour. It had been put to the appellant that the best method is to remove the limbs first and then to finish off by removing the crown. The appellant responded that it "depended", because each tree is different. It was then put to him that, "normally speaking", with all the branches of the crown spread out, they would form a firm base to prevent the tree from rolling. The appellant agreed with this. The bush boss, Mr G V Watson, was also cross-examined on this point. He indicated that a tree feller would not necessarily take the crown off last. It just depended, he said, on the feller. When it was then put to him that, if a log had fallen across a slope, the crown was going to help to anchor the log, his response was, "It may do, yes". The matter was left in this rather inconclusive state, with no questions being directed to either the appellant or Mr Watson as to the actual situation which had confronted the appellant. There was no consideration given to the angle of the slope or to the likelihood of this particular tree rolling by reason of the slope. His Honour nevertheless found that it was an unsafe practice for the appellant to have removed the crown as the first stage in the trimming of the tree trunk.

10 Having crowned the tree, the appellant walked back along the log, preparatory to de-limbing it. As he did so, Mr Watson made a routine visit to the scene, and the two of them talked together for some 20 minutes before Mr Watson walked away and the appellant returned to the log. The appellant inspected the limb, which was about three metres from the base of the log and about four inches thick. He formed the conclusion that it was not sprung.

11 Springing limbs are common. As I have indicated, they pose a well known danger. They can result from a limb being held by saplings and undergrowth. This particular limb was on the higher side of the slope. The appellant could not see the end of the limb, because it was hidden in

(Page 7)

the scrub. He did not attempt to walk down the full length of the limb to see whether it was sprung, claiming that there was no reason for his doing so. There was a suggestion that the limb was sprung at all material times, and that the appellant had failed properly to assess the position; but his Honour did not doubt the appellant's original assessment that the limb was not sprung.

12 The appellant commenced to cut through the limb. As he did so, the trunk moved. There was no suggestion of there having been any prior indication that it might move. The appellant feared that his chain-saw was going to jam in the cut, and he therefore pulled it clear of the log. He believed that if the limb, when the trunk rolled, were to break where he had made his cut, it would spring back and strike him. He could see that the limb was twisting under pressure and tearing. Before the trunk rolled, he maintained, he was not aware it was under pressure. He indicated that, in his experience, it does happen when you are cutting that you may suddenly realise that a limb is under pressure. He agreed that a tree feller has to act on his own initiative in meeting all manner of situations and circumstances. He also said that, if a tree feller does not "like" a log, he can leave it without lopping all the limbs and proceed to work on another tree. A skidder driver will, in this event, come along later and deal with it at the landing. Mr Watson held a somewhat different view, to which reference is made later.

13 The appellant stepped back as far as he could when he realised the limb was obviously under pressure; but his retreat was blocked by thick vegetation. When the branch broke free, he could not get out of the way in time. It struck him on his left knee, causing the injury which was the subject of his claim.

14 The appellant had not cleared an escape route before starting to remove the limb. He said that if he could have taken another step back, or if the area had been scrub rolled, he would have been able to get out of the way of the branch. He could have moved sideways to safety if a path had been cleared in that direction. As it was, he had nowhere to go. His Honour, however, accepted that an escape route was unnecessary for the removal of a limb unless it was sprung. The rolling of the tree alone, he said, could easily have placed the limb under tension. Save for the factor of the removal of the crown prior to the removal of the limb, his Honour found there could be no blame attributed to anyone because the tree had rolled. There was, he said, no suggestion that a safe system of work would require each tree to be chocked in order to prevent its movement prior to the removal of its limbs.

(Page 8)

15 When the limb struck him, the appellant yelled out, and Mr Watson, who was only about 50 metres away at this time, came to his aid. The appellant thought he had sustained only a badly bruised knee. He finished off the log and then drove back to his home. He did not, as his Honour suggested, keep working for the rest of that day. However, he certainly returned to work on the following day and he continued to work as a timber feller for a considerable period of time afterwards.

16 All the evidence pointed to the fact that the appellant was an experienced and skilful tree feller, and his Honour so found. The respondent did not deny it, and indeed it was part of its case. His assessment by FITS, which made regular assessments of the competence of workers in the industry, classified the appellant as having the highest level of skills and an appreciation of the dangers of working in an industry which relied upon the ability of the workforce to do the job properly and safely. His Honour found that it was for the appellant to make decisions as to the safest manner in which he should do his work and further found that it was unnecessary for the respondent to provide any additional training or instruction.

17 As I have already indicated, the evidence clearly established that there was dense bush in the area surrounding the tree. No one denied its existence. The appellant claimed that the vegetation was very thick, being up to two metres high. Mr Watson himself described the state of the vegetation at the time as being very dense regrowth, with a lot of soap bush growing in the area. Four photographs which were claimed to be of the general scene, but which had been taken some 6-1/2 years after the accident, were tendered. They showed the presence of thick vegetation at that time, but they were of very limited value, having regard to activities, such as burning off, which had since taken place. The photographs were therefore of an area of regrowth.

18 The most senior officer in the respondent company who was called as a witness was Mr W J Gregg. He was a logging supervisor, and the supervisor of Mr Watson. He described the Warner block as generally being very open, but in some cases, he accepted, there might have been some scrub. He claimed that there was some scrub rolling carried out in the Kirup Forest, but not a lot, because there was no need for it. He claimed he had never been asked by anyone to carry out any scrub rolling in this area, but that, if he had been asked, he would have "just gone and done it". He had no recollection of Mr Watson's raising the question of scrub rolling with him.

(Page 9)

19 Under cross-examination, Mr Gregg admitted that there could have been a couple of patches of blackbutt in the Warner block and that it is possible to get thick vegetation where blackbutt is growing. He then agreed that some of the area had thick scrub on it. He said that nothing was done about the thickly vegetated areas before the fellers moved into the Warner block. He agreed that it was the normal practice to scrub roll before the fellers go in where there is thick vegetation, if it is needed. Asked whether, when the vegetation is thick, scrub rolling is needed, he replied, "Yes, but it mightn't be the whole block that is covered in thick vegetation". He agreed that scrub rolling is performed because fellers must have room to move around the trees and to escape from dangerous situations. He also agreed that they must have room to deal with a tree when it is on the ground in the course of de-limbing it, and that this is why scrub rolling is undertaken. When asked whether scrub rolling could have been done at any time if a machine had been sent in, he replied, "If it was available". He then agreed that the machine could be two or three days behind the fellers, and therefore not available for scrub rolling, because it is tied up in keeping up with the logs.

20 Mr Watson, who was called by the appellant, claimed that he had been told by Mr Gregg in relation to the vegetation in the Kirup Forest that they were not to scrub roll, because the bush was not thick enough to warrant it. His Honour made no finding on this issue. Mr Watson also claimed that the question of scrub rolling had been raised by some of the fellers in the area. He agreed that the feller makes the decision to seek a safe working environment. He identified a problem which exists in connection with moving machines from one area to another due to the presence of dieback, and the consequent need to clean the machines down to avoid the spread of dieback.

21 Asked about felling trees in thickly vegetated areas, Mr Watson replied that the tree fellers have to go in like everybody else and do the best they can. It was put to Mr Watson, as the appellant's bush boss, in cross-examination that if the appellant was not working by the book in felling a tree, presumably, he would be on him "like a ton of bricks". His response was, "Supposedly, yes". When it was put to him that, if a feller making an assessment of a log does not like what he sees, he can leave it and have it cleaned up at the landing, his response was, "That's a tricky one because that was generally not the practice to leave any limbs at all if possible". He said it was not really the done thing, but he guessed it was entirely up to the feller. In any event, he conceded, they did not have skidders and loaders in the immediate area. It was not the fact, he said, that skidders and loaders were called in to deal with isolated pockets if

(Page 10)

required. He claimed that the "impression" he had from his supervisors in the company was that they did not scrub roll in Kirup because they thought it was not necessary.

22 The evidence of Mr A J N Holland, an officer of CALM, confirmed that the area where the photographs previously referred to had been taken had a very fertile clay loam soil and, for that reason, the scrub there was fairly thick and dense, and it was higher than would normally be found in the general area. Typically, he said, in blackbutt areas, the scrub could be anything up to 2 metres high, but normally it was between 1.5 to 1.8 metres high.

23 Mr D H Williams, an experienced tree feller, gave evidence that, with very thick bush, it has to be scrub rolled to make it safe. He had worked in the Warner block of the Kirup Forest under Mr Watson. No scrub rolling was being done in the Warner block, and they had continued to fell trees without scrub rolling. This, he said, was often talked about by the fellers, but it just never seemed to get done and they were expected to go in and fell without the area being scrub rolled. He maintained there was very thick vegetation in the Warner block. It was put to him that he could move on to another tree if it could not be made safe. His response was, "Well if you kept on moving and leaving trees like that you would never get anything done. If it is a real dangerous one you do move on." On the evidence, the tree on which the appellant was working was not "a real dangerous one".

24 Mr F E Lindberg, who is the senior training officer with the FITS in Bunbury, also gave evidence. He is a qualified forester who, for eight years, worked with CALM, training chain-saw operators and tree fellers. He tendered a copy of the safety code for logging operations in Western Australia which was operative in 1991. On his evidence, every tree that is felled must be provided with two escape routes at 45 degrees from the intended direction of fall. They should be approximately six metres long and free of obstructions. It is the obligation of the tree feller to ensure that this is done. In relation to the removal of limbs, prior to cutting anything on the ground, a tree feller using a chain-saw should make sure that, if something does go wrong, he can step backwards "out of the road". This is part of the training given to timber fellers. He personally had examined the appellant and confirmed that he was working to the standards which were required by the Australian standards and by the industry.

25 Mr Lindberg also confirmed that scrub rolling is carried out to provide a safe access for tree fellers in the bush so that they can work

(Page 11)

safely. He agreed that it is done so that the task of clearing escape routes from the base of a tree is made easier and in addition so that he has clear room to do his de-limbing. He further agreed that if a tree feller is cutting a limb and he suddenly realises part of the way through the cut that it is under pressure, and that, as a consequence, it could snap free, he should have room to move back before it does so. This is one of the reasons for scrub rolling. He also agreed that if scrub rolling is needed in an area of forest, it is the first step, in the sense that the scrub rolling is carried out first and the tree feller then goes into that area of forest. He indicated that there are certain times when there are small areas where a feller would have to make a path on his own. This occurs when a machine just cannot get in. There is no suggestion that this was the position in the present case. Mr Lindberg said that the absence of scrub rolling in a thickly vegetated area would make the tree feller's job extremely difficult, because he would have to spend a large part of his time clearing escape routes and beating down the scrub around the fellen tree.

26 An employer's duty to his employees was summarised by Mason, Wilson, Brennan and Dawson JJ in McLean v Tedman (1984) 155 CLR 306 at 313:

"The employer's obligation is not merely to provide a safe system of work; it is an obligation to establish, maintain and enforce such a system. Accident prevention is unquestionably one of the modern responsibilities of an employer: see Fleming, Law of Torts, 6th ed (1983), pp 480-481. And in deciding whether an employer has discharged his common law obligation to his employees the Court must take account of the power of the employer to prescribe, warn, command and enforce obedience to his commands."

27 The learned trial Judge concluded that the appellant had failed to satisfy him that the respondent had been in breach of its duty of care to him in failing to scrub roll the area in which he had been working when the accident occurred. He then went on to indicate that, even if the respondent had been in breach of its duty of care to him by having failed to scrub roll, he was not satisfied that any such failure had caused the injury, finding that the allegation of the respondent's failure to scrub roll as the basis for the appellant's claim in negligence lacked genuineness, and was merely a reconstruction of events. Finally, his Honour was of the view that, even if the presence of the thick bush was a cause of the limb striking the appellant's knee, it had been his responsibility to assess the state of the bush, and to clear it himself if that had been necessary.
(Page 12)

28 In relation to scrub rolling, his Honour made an observation which clearly suggests that only where in substance the whole area to be logged has heavy undergrowth, the system is to scrub roll. He added that he was sure that this was as much to ensure the efficiency of the work as to ensure the safety of the workers. That appears to have been an inference drawn by his Honour himself. It is not supported by the clear evidence of Mr Lindberg, who impressed his Honour as a witness with respect to his assessment of the appellant's capacity to perform his work as a tree feller after the accident. Nor is his observation regarding the system of scrub rolling supported by either Mr Lindberg or any other witness.

29 The evidence does not appear to me to justify any suggestion that the appellant could have requested scrub rolling, and that, if requested, it would have been carried out. Mr Gregg himself, in cross-examination, qualified his statement in his evidence-in-chief that if scrub rolling had been requested it would have been done by saying, "if [the machine] was available" and adding that the machine could be two or three days behind the fellers and therefore not available for scrub rolling. The evidence was that the machines were indeed some time behind the fellers and some distance away at the time of the accident. There was no evidence of any practice adopted by the respondent for scrub rolling if that should prove necessary in particular parts of a block. Indeed, there was evidence that there was an expectation that tree fellers were expected to go in and fell in such areas without scrub rolling.

30 It is abundantly clear on the evidence that scrub should be rolled when it is necessary to provide safe working conditions for tree fellers. It is necessary for safe working conditions when the scrub is heavy. The area where the appellant was working was thickly vegetated, but no scrub rolling had been carried out as the first step to be taken before the appellant went into the area, as Mr Lindberg suggested was necessary in such cases. Although Mr Watson, the appellant's immediate superior, acknowledged that the vegetation was very dense, his attitude was indicated by his observation that tree fellers have to go in like everybody else and do the best they can. In my respectful opinion, the learned trial Judge fell into error in finding that the respondent was not in breach of its duty of care by having failed to scrub roll the area where the accident occurred.

31 In my opinion, his Honour was also in error in relation to his not being satisfied that the respondent's failure to scrub roll had caused the appellant's injury. It was accepted that the limb had struck the respondent on his knee. The evidence of the appellant at the trial was that he had

(Page 13)

been unable to retreat because of the heavy undergrowth behind him. The evidence of Mr Watson was that, having heard the appellant yell, he returned to the tree and saw the appellant clutching his left knee, and that the appellant had complained to him that he had been unable to back away because of the density of the scrub. This evidence, which was not objected to, and which was presumably admissible as part of the res gestae, was not challenged. Mr Watson's evidence as to his observation of the scene immediately following the accident was consistent with the appellant's explanation to him. His Honour, however, gave great weight to the contents of a workers' compensation claim form and to an accident report form, both of which, although signed by the appellant, had been typed out by a third party, as well as to the contents of the appellant's solicitors' letter of demand. The forms simply contained factual accounts of the injury having been caused by the limb springing back and striking the appellant's knee. There is no inconsistency between these forms and the appellant's evidence. The same may be said as to the letter written by the appellant's solicitors in October 1994, on which the appellant was not cross-examined, and which did not purport to particularise the legal cause of the appellant's injury. With respect, there was no sufficient basis for his Honour finding that it was "unlikely" that Mr Watson, who was not challenged on this point, had been told that the accident was due to the thick scrub and that he was "in all honesty, mistaken".

32 In my opinion, the evidence before his Honour required a finding that the respondent was in breach of its duty of care in failing to scrub roll the area where the appellant was working at the time of the accident, and that this was relevantly the cause of the appellant's accident and resultant injury. As it was put by senior counsel for the appellant, at this stage, the question is whether the respondent had breached its duty of care to the appellant and not whether the appellant was negligent in failing to provide an escape route. The second question is considered under the heading of contributory negligence. Had the area been scrub rolled, the evidence indicates that the appellant would have been able to get away from the breaking limb and so have avoided injury. No doubt tree felling is a hazardous occupation, and no doubt, also, the appellant was a highly skilled worker; but the obligation on the respondent to provide a safe place and system of work remained.

33 Although, in my opinion, the respondent was negligent in this case, I am also of the opinion that there was contributory negligence on the part of the appellant. Contributory negligence is a plaintiff's failure to meet the standard of care to which he is required to conform for his own

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protection and which is a legally contributing cause, together with the defendant's default, in bringing about his injury. It differs from negligence in that there is no duty of care owed to another person. A plaintiff will be guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not act as a reasonable and prudent man, he would expose himself to risk of injury. However, in applying this standard of care to contributory negligence on the part of employees, the courts have taken into account a variety of factors which have a tendency to excuse the employee for inattention to his personal safety. These factors include inattention born of familiarity and repetition, and an employee's preoccupation with the matter in hand, "with a view to deciding whether any of these things caused some temporary inadvertence to danger, some lapse of attention, some taking of a risk or other departure from the highest degree of circumspection, excusable in the circumstances because not incompatible with the conduct of a prudent and reasonable man" : Sungravure Pty Ltd v Meani (1964) 110 CLR 24, per Windeyer J at 37. See also Commissioner of Railways v Ruprecht (1979) CLR 563, per Gibbs J at 568 and per Mason J at 570 - 573, and J G Fleming, The Law of Torts, 9th ed (1998) at 302 - 303.

34 There was a marked lack of particularity in the respondent's claim that the appellant was guilty of contributory negligence. It was expressed in generalities. There was no claim that the appellant was negligent in removing the crown before he removed any other limbs, and in any event there is quite insufficient evidence to establish this as a ground of contributory negligence. The issue comes down to whether the appellant was contributorily negligent in failing to cut an escape path from the place where he was endeavouring to remove the limb from the trunk of the tree. The appellant's evidence was that he cleared only enough room in which to enable him to use a chain-saw on the limb.

35 Tree fellers are skilled workers and are expected to work on their own to a very large extent. The undisputed evidence of Mr Lindberg was that a tree feller, using a chain-saw prior for cutting anything on the ground, should make sure that, if something goes wrong, he will be able to step backwards out of the way and that this is part of his training. Amongst the things that can go wrong, he identified logs rolling and limbs springing back, the events which occurred in this case. In failing to clear even a small area beyond his limited working area, in my view, the appellant was contributorily negligent. On his own evidence, only a small area of clearing would have sufficed to avoid the accident. In my opinion, the appellant failed to meet the standard of care to which he was required to conform for his own protection, and this was a legally contributory

(Page 15)

cause, together with the respondent's default, in bringing about his injury. In my view, the appellant's failure in this respect was substantial, and I would assess it at 50 per cent.

36 The appellant also appeals against the trial Judge's assessment of damages. In my opinion, an award of a little less than $150,000, before a reduction for contributory negligence, is inadequate. I am of the view that his Honour's description of the appellant's injury, and its consequences, as "an irritation and an annoyance to [his] well-being" was inconsistent with the medical evidence, which was not contradicted, that the appellant had an arthritic knee which might well deteriorate further and which rendered him unfit ever to return to work as a tree feller, as a labourer, or in any of the occupations in which he had any experience. It is clear that his Honour's assessment was significantly influenced by his findings that the appellant's claim regarding the respondent's failure to scrub roll lacked genuineness, that he had deliberately falsified his income tax returns, and that he had exaggerated his physical disability.

37 The first of these findings is without foundation and the second is of dubious foundation, but without the benefit of seeing and hearing the appellant, I do not consider that this Court itself should reassess the appellant's damages by accepting at face value all his evidence. It remains possible that, to a significant degree, the credibility of the appellant could have a bearing upon the weight to be given to the medical evidence which is otherwise favourable to him. Whilst reluctant in the circumstances to reach this conclusion, in my view, the matter should be returned to the District Court for re-assessment of the damages.

38 I would allow the appeal, set aside the judgment below and, in lieu thereof, direct that judgment be entered for the appellant on the basis that the respondent is liable to the extent of 50 per cent for the appellant's injuries and remit the matter to the District Court for re-assessment of the damages by another Judge of that Court.

39 IPP J: I have had the benefit of reading in draft the reasons to be published by both Kennedy J and Wallwork J.

40 I agree with Kennedy J that the respondent was negligent in failing to scrub roll the area where the appellant was working at the time of the accident. I also agree with Kennedy J that the appellant's contributory negligence was substantial and that an appropriate apportionment would be 50/50.

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41 As regards the quantum of damages I agree with Wallwork J that it is open to this Court to determine the damages to which the appellant is entitled. In substance, the medical evidence adduced on the appellant's behalf was not challenged and, in my view, has to be accepted. This evidence materially affects the loss of future earning capacity. As Wallwork J has demonstrated, the learned Judge's findings as to the future incapacity cannot stand against this evidence. A determination on this basis does not depend on the credibility of the appellant. Accordingly, I agree with Wallwork J that the amount awarded in respect of loss of future earning capacity must be increased and agree with his Honour that an appropriate award under this head is $215,040.

42 Also, having regard to the medical evidence to which Wallwork J has referred, I agree that the amount awarded for general damages for pain and suffering and loss of enjoyment of life should be $35,000.

43 Inasmuch as the argument that the loss of past earning capacity should be increased is based significantly on the credibility of the appellant, I agree with Wallwork J that no change should be made to the award made by the trial Judge in this respect. Otherwise I agree with the quantum of damages assessed by Wallwork J.

44 On the basis set out above I would assess the damages as follows:

General Damages $35,000

Past loss of earning capacity $47,579

Future loss of earning capacity $215,040

Superannuation $10,650

Future pharmaceutical expenses $9,600

Total $317,869

45 On the basis of an apportionment of 50 per cent the plaintiff is entitled to a sum of $158,934.50 in respect of damages.

46 I would therefore uphold the appeal, set aside the orders made by the learned Judge and substitute orders that judgment be ordered in favour of the appellant, and that the respondent be ordered to pay the appellant $158,934.50 in respect of damages. I would hear counsel further in respect of any further orders that need to be made.

47 WALLWORK J: The facts of this matter are set out in the reasons for judgment of Kennedy J and I will not repeat them. As his Honour says, it

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is abundantly clear on the evidence, that scrub should be rolled where it is necessary for safe working conditions for tree fellers. His Honour says:

"Although Mr Watson, the appellant's immediate superior, acknowledged that the vegetation was very dense, his attitude was indicated by his observation that tree fellers have to go in like everybody else and do the best they can."

48 Kennedy J has referred to the decision in McLean v Tedman (1984) 155 CLR 306 and to the dicta of Mason, Wilson, Brennan and Dawson JJ at 313 that:

"… in deciding whether an employer has discharged his common law obligation to his employees the court must take account of the power of the employer to prescribe, warn, command and enforce obedience to his commands."

49 In Pennington v Norris (1956) 96 CLR 10 at 16, Dixon CJ, Webb, Fullegar and Kitto JJ when discussing the apportionment of responsibility for tortious acts said:

"The only guide which the statute provides is that it requires regard to be had to 'the claimant's share and responsibility for the damage'."

50 In that decision their Honours referred to the need for a comparison of culpability for the injury. Their Honours said:

"Here in our opinion the negligence of the defendant was in a high degree more culpable, more gross, than that of the plaintiff. The plaintiff's conduct was ex hypothesi careless and unreasonable but, after all, it was the sort of thing that is very commonly done. He simply did not look when a reasonably careful man would have looked. We think too that in this case the very fact that his conduct did not endanger the defendant or anybody else is a material consideration. The defendant's position is entirely different."

51 In Wynberg v Hoyts Corporation Pty Ltd (1998) 72 ALJR 65 at 68, Hayne J said:

"Regard must be had to the "relative importance of the acts of the parties in causing damage (Podrebersek (1985) 59 ALJR 492 at 494) and it is 'the whole conduct of each negligent party

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in relation to the circumstances of the accident which must be subjected to comparative examination' (Podrebersek (supra)."

52 In "The Law of Torts" by Professor Fleming, 9th Ed at 572, when discussing the contributory negligence of employees, Professor Fleming said:

"In step with the rising standard of care demanded from employers has been a trend to take a more charitable view of the mistakes and slips of employees … Again, the conditions of industrial employment are given due weight in determining whether an occasional lapse is sufficiently heinous to attract the quality of contributory negligence, and a generous view is taken in drawing the line where 'mere thoughtlessness or inadvertence or forgetfulness ceases and where negligence begins'. Admittedly, apportionment has weakened the incentive to continue quite the same measure of indulgence; but a worker is still, if no longer wholly, at least largely excused for inattention to his personal safety when absorbed in his work or taking a risk in the interests of his employer or taking it for granted that dangers have been eliminated by those charged with that responsibility."

53 In this case the appellant told Mr Watson that he had been unable to back away because of the density of the scrub. I agree with Kennedy J's conclusion that the evidence compelled a finding that the respondent was in breach of its duty of care in failing to scrub roll the area where the appellant was working at the time of the accident and that this was relevantly the cause of the appellant's accident and resultant injury. His Honour concluded that had the area been scrub rolled, the evidence indicates that the appellant would have been able to get away from the breaking limb and so have avoided injury.

54 With respect to the proposition that the appellant was responsible to the degree of 50 per cent for his own injuries, it is my view that this does not sufficiently take into account the high responsibility of an employer to safeguard his employees from injury. I would assess the apportionment in this case at two-thirds/one-third in favour of the appellant.

55 With respect to damages the appellant was 36 years of age at the date of the accident and 43 years of age at the date of the trial. It was submitted for the appellant that the medical evidence from Mr Anderson,

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Professor Harper and Dr Ray had not been contradicted by other evidence called by the defendant.

56 The learned trial Judge concluded:

"There is no reason why the plaintiff could not work full time in an occupation where the small limitation caused by his knee injury will not hamper him. He is currently doing a training course with CALM and is able to cope with that work. I accept that the amount the plaintiff would earn would be not less than the State minimum wage and that the calculation should be made on that basis."

57 I agree with Kennedy J's conclusion that the learned trial Judge's description in his reasons for judgment of the appellant's injury and its consequences as "an irritation and an annoyance to [his] well being" was quite inconsistent with the medical evidence that the appellant had an arthritic knee which might well deteriorate further and which rendered him unfit to return to work as a tree feller, as a labourer, or in any of the occupations in which he had previously had experience.

58 On 26 September 1991 an orthopaedic surgeon, Mr Anderson, reported that during an arthroscopy on 22 July 1991, he had observed that the appellant had "quite a nasty area of chondral ulceration on the retro patella surface which I would directly relate to the work incident when he was struck on the knee. The roughened area was debrided and the joint widened out. He has obtained little benefit to date."

59 On 7 May 1992 Mr Anderson noted that although the appellant then held down full-time employment as a timber worker, "squatting, walking on rough terrain and leaning the saw on his knee, all aggravate the situation."

60 On 26 August 1993 Mr Anderson advised that the appellant had "increasing symptoms with excessive load through that part of the joint especially when climbing and walking through the bush in his capacity as a timber feller". At that time Mr Anderson assessed permanent disability in that limb at 10 per cent loss of function of the whole leg. The appellant continued to work full-time as a timber feller.

61 On 3 July 1996 Mr Anderson reported that the knee had clearly deteriorated since July 1991. He said he suspected that "wear changes" would be progressive over the years to an extent where he would have increasing arthritic type symptoms. He said that at that time the appellant

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was having increasing problems which had necessitated an arthroscopy in June 1996. Mr Anderson said:

"I would think it unwise that he contemplates a return to work that places high physical demands on the knee. This would include forms of work where he was expected to do excessive squatting, climbing and heavy lifting. It would seem inappropriate that he return to his previous work as a tree feller with the wear changes already evident and he may well need some form of retraining or work deployment. I don't think there is any question of any more major surgery being necessary in the foreseeable future but I do emphasise that I believe his present 'wear features' stem directly from the work incident and that he will seriously have to look at some form of work modification over the years."

62 On 14 July 1996 Mr Anderson said he thought it unwise that the appellant contemplated a return to work which placed high physical demands on the knee.

63 On 17 March 1997 Mr Anderson advised that the appellant was not able to participate in heavy physical activities "and accordingly I would regard him as fit for lighter forms of work where he can alternate periods of sitting, standing and walking. This would include store type work." He again stated that he believed that the appellant had been left with a 10 per cent loss of function of the whole of the injured limb.

64 On 24 September 1997 Mr Anderson advised that:

"The knee will periodically swell more towards the end of the day and he has some ache from the knee at night-time. He is consuming up to six to eight Panadeine tablets on a bad day. I note he is undergoing work experience through CALM which would seem to be a fairly sedentary job where he can work at his own pace and sit down when his knee troubles him."

65 In the course of his evidence at the trial in November 1997, Mr Anderson said:

"I think a dent of that severity is only going to gradually deteriorate over the years. The deterioration could be a fairly slow process over maybe 5 or 10 years, but it gradually gets worse with time."

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66 With respect to the future, Mr Anderson said that the appellant will have good and bad days like anyone with an arthritic knee:

"I mean some days he may function very well but on other days, he may have a lot of symptoms. That's the normal course with joint arthritis…Well I don't think the knee is going to head downhill dramatically over the next few years, but I think ultimately it is going to become progressively more painful. I don't think surgery has a place here. I think his knee is too good for surgery at present but I think it is going to be a question of pain relief and anti-inflammatory medications to try and keep his symptoms under control."

67 In cross-examination Mr Anderson said:

"I think his knee is deteriorating and I think it will continue to deteriorate, and if he has a job which puts high physical demands on his knees every day, he is going to be more symptomatic and he is not going to be of any use to his employer."

68 Mr Anderson said:

"…but based on the surgical findings it is inappropriate to put high demands on this knee. Otherwise you are going to get a fellow who has more regular pain and then that backs me into a corner where I am in a position where we have got to do major surgery. If we can avoid hard physical demands on the knee, we might get another 10 years out of the knee."

69 Mr Anderson further said that the area which had been injured related to the joint between the kneecap and the lower femur:

"That part of the knee joint is aggravated by activities such as squatting, kneeling, climbing steps. Walking on a flat even surface like that I would regard as sedentary work and I have always said all along that I believe this man could do full-time sedentary work."

70 Professor Harper said that the appellant could certainly work full-time at a non-manual job but he did not feel that the appellant could "get out there and earn his living as a manual worker in jobs that he has held previously." When asked what type of jobs he thought would fall into a sedentary occupation for the appellant, Professor Harper said:
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"I feel this is the issue with this man, as I see it. I think his employability in areas where he has not yet worked in, is very low and that he has had experience as a farm hand, as a mill worker, as a labourer, demolition worker, truck driver, driller's offsider, brickies' labourer and farmer, and so he has not had experience in sedentary work, clerical work, administrative work, sales work, real estate sales. He has not been in these areas so I think, as I see it, the problem for this man is his employability and his marketability now at the age of 42 to re-enter the workforce in an alternative area, and it is extremely difficult for someone of his age to make that transition without some assistance, and my point about retraining and vocational counselling addresses precisely what I see is his need for (1) guidance and (2) some training to prepare him to be marketable in some alternative work different to what he has already done."

71 In his report dated 16 June 1997, Professor Harper said:

"However, given his injuries, his age and his work experience, I feel the occupational outlook for Mr Hubery is unfavourable and there is a real possibility that this injury will preclude him from satisfactorily re-entering the workforce or will lead to an early retirement."

72 It was submitted for the appellant that the video-recording which had been made between the date of the first hearing of the trial in Albany and the resumed hearing was not put to the appellant at the trial although it had been put to the doctors. It was said that each of the doctors had decisively rejected the proposition that the video had done anything to suggest that the appellant was otherwise than genuine in every respect to his complaints.

73 It was further submitted for the appellant that his Honour's comment that "my view of the plaintiff's credibility is affected by a clearly false income tax return to which I will refer in more detail in due course." was not sustainable. It was said, and it appears to be the fact, that the accountant who gave evidence said that he had misplaced the relevant entry in the return and that it should have been put under general expenses for the farm run by the appellant.

74 The appellant had said in evidence that he did not know anything about the figures. He had just given all the material to the accountant.

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75 It was also submitted that the learned Judge was in error in accepting the evidence of Mr Lindberg and coming to the conclusion from Mr Lindberg's evidence and the surveillance films and the allegedly false income tax return, that the appellant was exaggerating his symptoms.

76 It is my view, accepting that the medical evidence is correct, that a fair award for general damages for pain and suffering and loss of enjoyment of life would be a sum in the vicinity of $35,000 rather than the $15,000 which was awarded to the appellant by the learned trial Judge.

77 With respect to loss of earning capacity, the learned trial Judge noted that up until 27 June 1996 and apart from time off for medical treatment, the appellant had been able to continue in full-time work as a tree feller, albeit at a reduced capacity. The learned Judge said that after 27 June the appellant claimed not to have worked.

78 The learned trial Judge found that the appellant had not satisfied him that he had lost his pre-accident earning capacity. He accepted that on the evidence of Mr Anderson, there had been a diminution in that capacity but said that the extent of it was very much in question. His Honour found that there was no reason why the appellant could not work full-time in an occupation where "the small limitation caused by his knee injury will not hamper him".

79 As stated above, his Honour's description of the appellant's residual disability as being "a small limitation" which would not hamper him is not in accord with the uncontradicted medical evidence. His Honour's finding that the appellant would earn not less than the State minimum wage and that the calculation should be made on that basis also cannot be sustained in the light of the medical evidence. The appellant does not have sufficient skills for the court to have taken that approach.

80 With respect to past loss of earning capacity, the learned trial Judge allowed a net figure of $40 per week loss for the period 17 July 1993 to 27 June 1996. It was said for the appellant that his Honour had reached that figure without any factual or evidentiary basis and had calculated it on the basis that the appellant would earn not less than the State minimum wage. From that sum a further 10 per cent was said to have been deducted for contingencies because "work in the forests and timber industry is notoriously hazardous and an appropriate deduction for contingencies should be made."

81 Counsel for the respondent did not argue with the calculation of past economic loss as calculated by the appellant up to 24 October 1991, but

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for the past economic loss up to 30 June 1996 it was said there was no evidence to support a loss at the rate claimed in that period. It was said that at best the appellant had thought that his work rate had fallen by 25 to 30 per cent. However, it was said that after 24 October 1991 the appellant's earnings had compared favourably with another employee, Mr Williams. It was said that that comparison brought a lie to the suggestion that the appellant's work rate had fallen by 25 to 30 per cent. It was said that the learned trial Judge had been generous in allowing the past loss at $40 a week up to the time of his second arthroscopy in June 1996.

82 The learned trial Judge found:

"In the circumstances the plaintiff has not satisfied me that he has lost his pre-accident earning capacity. I do accept on the evidence of Mr Anderson that there has been a diminution but the extent is very much in question."

83 It was submitted for the respondent that the learned trial Judge had rejected evidence concerning the income of other tree-fellers when that had been the only evidence available and should have been accepted. That had revealed a gross income of approximately $60-75,000 per year for those persons.

84 It was submitted for the appellant that the appellant's work rate had slowed after his injury. He had left Bunnings in 1992 and commenced with Ghandi's Timbers in August 1993. He had had more surgery in June 1996. At Ghandi's he had had progressive trouble with his knee. His work rate had slowed by 20-30 per cent in his last two to three years there. His difficulties had been observed by others. A schedule was submitted to the court showing the total past loss of earnings at $65,755 compared to his Honour's calculation of $47,579.

85 I am not persuaded that the appellant has advanced sufficient reasons to interfere with the award for past loss of earning capacity and I would not interfere with that aspect of the award. With respect to the claim for past loss of earning capacity for farm work, I would not allow that claim as it was not pursued. In any event it is in my view covered by the allowance for past loss of earning capacity.

86 Concerning loss of future earning capacity, the learned trial Judge calculated a loss based on $113 per week, whereas it was submitted for the appellant that the true loss was $504 per week net, being a total sum of $322,560 before any discount for contingencies. Added to that would be

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a sum for future loss of superannuation benefits in the sum of $10,752 before any discount.

87 It was put for the appellant that Mr Lindberg's evidence that he had not seen the appellant limping had impinged on the trial Judge's assessment of the credibility of the appellant. As was pointed out at the appeal, what Mr Lindberg said was that "if he was limping and there was a safety problem in hampering him walking through the forest, I would have made a note of that." A medical report from Mr Anderson dated 24 September 1997 had recorded that the appellant had said his knee would periodically swell more towards the end of the day. He had some ache from the knee at night time and was consuming up to six to eight Panadeine tablets on a bad day. He was not cross-examined during the trial on the basis that he was not telling the truth. He was not challenged that he was taking Panadeine tablets. It was conceded at the appeal that the video film was not put to him.

88 It was submitted for the appellant that he is unfit for work in the future in any occupation other than what he can do on his small farm. He had said in evidence that he did not really know what he would do in the future. The longest work trial he had had before the hearing was four days in a row. He had applied for a job with Bunnings Tree Farms as a maintenance man but had been unsuccessful. It was submitted that he was not fitted for any particular occupation at all.

89 The way the learned trial Judge calculated the loss of future earning capacity was to allow the appellant $414 a week, less $301 being the minimum wage less 10 per cent for contingencies. His Honour arrived at the sum of $414 per week by taking into account the $40 a week which he had assessed as the appellant's true loss of earnings until judgment.

90 It was submitted for the appellant that the best way to approach the assessment for loss of future earning capacity would be to make a global award. It was submitted that everyone had agreed that about $47-48,000 per annum was what a tree feller would earn, less expenses of about $14,000, leading to a net loss of $31,000 per annum. It was said that to take $504 per week net for the future economic loss would be appropriate. If that sum was taken for the balance of the appellant's working life, it would calculate to a sum of $322,560. To that would have to be added a sum for the loss of superannuation benefits. The appellant's counsel abandoned his claim for future loss of earnings for the farm work.

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91 Prior to the accident the appellant had been working as a tree feller plus 20 hours a week on the farm. The taxation returns indicated that the appellant was losing money on the farm. At the time of the trial he was working on the farm for about 10 hours a week but doing nothing else.

92 It was submitted for the appellant that from the sum for future loss of earning capacity at $504 per week, being $322,560, there should be made a deduction for contingencies to take account of the fact that the appellant was capable of working in some sedentary position. He was not totally incapable of working and was capable of doing some work in some undefined area. It was submitted that that was the only way the calculation could be made. Any calculation was dependant on whether the appellant could obtain any employment. It was submitted that if the deduction for contingencies was 10 per cent or 20 per cent, "then so be it". But it was said that the appellant was not capable of earning the basic wage as assessed by the learned trial Judge.

93 The appellant had said in evidence that he was incapable of working as a dogman or as a crane driver. His leg injury was aggravated by getting in and out of a crane. He could do light work if he could get it, such as cleaning around huts, cleaning picnic areas or dropping firefighters off. That was the sort of work he had done on a trial which was arranged by the worker's compensation insurers. He said he did not really know what he was going to do for the future. It was submitted that most of the rehabilitation programs had been unsuitable.

94 I agree with the proposition that if the future loss of earning capacity on a 100 per cent basis is accepted at $322,560, there should be a deduction from that sum to reflect the possibility that the appellant can obtain some kind of work in a non-labouring capacity. There is not sufficient evidence that he can earn the basic wage. It cannot be expected that he can in his circumstances compete in the labour market against fit young men. He will probably obtain some kind of part-time employment, or if he is lucky even full-time employment.

95 It was contended for the respondent that concerning the loss of future earning capacity, the evidence was that the appellant could work as a timber faller for some modest periods "a day here, a couple of days there".

96 In my view that is not a realistic assessment of the position. The respondent relied upon Mr Anderson's evidence which was:

"I mean he could probably work as a timber faller if he worked a day every now and again, a couple of days every now and

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again. Based on surgical findings it is inappropriate to put high demands on the knee."

It was said for the respondent that there was a suggestion that he could do some work in that capacity. Counsel said he did not know if that type of work was available.

97 It was put for the respondent that the evidence was that the appellant had a diminished capacity to earn and not a total loss of earning capacity. I think that must be accepted. The respondent's counsel said:

"…it was the defendants who suggested to his Honour that, to be generous to the plaintiff, 'let's assume that he wouldn't earn less than the minimum wage.' He might very well earn more than that but there was no evidence that anyone could go on. That is why his Honour has brought in the minimum wage as being an appropriate way to deal with it, doing the best that he can in the circumstances, because there was no evidence led by the plaintiff."

98 It was said for the respondent that in this case on his rehabilitation program the respondent has demonstrated that he could do unskilled work at camp sites in the CALM areas, cleaning up and those sorts of things and he had managed that on a rehabilitation basis for 10 weeks. He was not giving it up. It had been extended for another six weeks. It was said that he did have a retained capacity to work.

99 A matter which should be taken into account when arriving at a sum for future loss of earning capacity is the fact that an injured person will have difficulty in the labour market due to the fact that many employers are interested in whether the proposed future employee has ever claimed worker's compensation before or has been off injured for any length of time on a prior occasion. There is also the fact that he has the disability in the leg, estimated at approximately 10 per cent. It has not been established that there is full-time work available to the appellant.

100 In this case the appellant has not obtained any suitable employment and in the future will not be able to be employed full-time as a tree feller. Also he is not able to be a labourer. To a degree it is speculative as to what the future holds concerning employment for the appellant. Bearing that in mind, the proper approach in my view, is to take the sum calculated by the appellant for a total future loss of earning capacity, being $504 per week for 21.5 years, being $322,560 and to then deduct from that sum one-third to allow for the probability that the appellant will

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find some kind of light employment, even if not full-time, and the other usual contingencies. That would leave the sum of $215,040 for future loss of earning capacity to which would be added the sum of $10,650 for loss of future superannuation benefits.

101 The claim made by the appellant for that last item is for $10,752 before discounts, but looking at his Honour's reasons, it is said that "the parties are agreed that the calculation should be based on a net figure of $440 per week and that the superannuation contribution by the defendant would be 6 per cent". His Honour deducted 10 per cent for contingencies to arrive at $10,650 and that seems to be a suitable figure. Then would be added the cost of future pharmaceutical expenses at $9,600, making a total sum for damages before apportionment of $317,869.