Jaudzemis v Ahn Pty Ltd
[2000] VSC 82
•16 March 2000
SUPREME COURT OF VICTORIA
COMMON LAW DIVISION
No. 1151 of 1998
| ALFONS JAUDZEMIS | Plaintiff |
| v | |
| A.H.N. PTY. LTD. (ACN 004 840 304) | Defendant |
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JUDGE: | HEDIGAN, J. | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28-29 February, 1 March 2000 | |
DATE OF JUDGMENT: | 16 March 2000 | |
CASE MAY BE CITED AS: | Jaudzemis v. A.H.N. | |
MEDIUM NEUTRAL CITATION: | [2000] VSC 82 | |
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Damages – Personal Injuries arising from accident in vineyard – Negligence of employer. No contributory negligence of plaintiff.
Damages for lost earning capacity and lost future superannuation benefits.
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APPEARANCES: | Counsel | Solicitors |
For the Plaintiff | Mr. R. Young | Scott Thompson & Co. |
| For the Defendant | Mr. M. Dowling, Q.C. Mr. D. Blackburn | Dunhill Madden Butler |
ALFONS JAUDZEMIS v. A.H.N. PTY.LTD. (ACN 004 0304)
HIS HONOUR:
The plaintiff Alfons Jaudzemis (hereinafter called "the plaintiff" or "Jaudzemis") brings this proceeding claiming damages against the defendant for injuries sustained by the plaintiff in a workplace accident on 13 May 1996 in the course of his employment with the defendant. The defendant is the corporate entity of the Chateau Tahbilk Vineyard, the second-oldest vineyard in Victoria having been established near Nagambie in 1860. The plaintiff, who had worked for the defendant for about three years as a vineyard hand, seriously injured his lumbar spine on 13 May 1996 when, in the company of another vineyard hand, Brian Salter, he was engaged in pulling out of the ground in which it was buried plastic piping which was used as part of the irrigation system for various parts of the vineyard. The plaintiff ruptured a disc at the L3/4 and L4/5 levels. He subsequently underwent two operations including a partial fusion of his lumbar spine. Unfortunately, the second of the operations left him not only with a back in which the pain and disability was not only not relieved but probably worsened, but also the syndrome which occasionally accompanies that surgery, namely the "cauda equina" syndrome which has in his case rendered him virtually impotent as well. The plaintiff claims that the accident and the injuries were caused by the defendant's failure to provide proper equipment, a proper system of work, and proper direction and supervision.
The defendant has denied negligence and has alleged that if it were negligent there was contributory negligence on the part of the plaintiff himself in failing to seek proper assistance and equipment or to notify the defendant employer of the work that he was undertaking, thereby depriving the employer of an opportunity to appropriately instruct and aid him.
Before embarking upon the summary of the substance of the evidence on the liability issue, I should state that there was virtually no dispute concerning the nature and extent of the plaintiff's injuries and disabilities, very little argument about his incapacities and a remarkably small area of disagreement about what the plaintiff's income would likely to have been annually in the years from the time of the accident until the present (had he remained uninjured). The defendant called no oral evidence although it tendered documentary evidence in the form of some medical and other reports, and extracts from the defendant's records such as worksheets. All of the relevant medical reports from either side were tendered without objection. Only one doctor was called, namely the plaintiff's general practitioner.
The plaintiff was born on 17 October 1950. His father was Lithuanian by birth and his mother German. They came to this country in the aftermath of the Second World War and earned their living farming on a small farm near Mulwala. The plaintiff left school at 15 and trained as a butcher. He did not complete his apprenticeship and returned to work on the family farm for a couple of years. Ultimately, however, although not having the full qualification, he worked as a butcher up until about 1991. Most of this period of work was in a butcher shop which he and his wife operated in Nagambie in Victoria, a small but well known town near Seymour in a prosperous farming area. According to the evidence, the rise and flourishing of supermarkets made the conduct of the butcher shop in Nagambie uneconomic and he gave it up. He then did a variety of temporary jobs involving physical activity including some labouring until he obtained employment as a vineyard hand with Chateau Tahbilk in 1993.
The oral evidence on the liability issue, negligence and contributory negligence, was called entirely by the plaintiff. The oral evidence was that of the plaintiff himself, a young man working with him at the time that the accident happened, Brian Salter, and evidence taken on commission in Dublin, Ireland, of one Michael Ciavarella who was the vineyard manager for A.H.N. at Chateau Tahbilk at the relevant time. It would appear that the plaintiff called this witness, whose evidence was by no means wholly favourable to the plaintiff, because the defendant had indicated that it was not going to call any witness. Thus, the situation that prevailed here was that the plaintiff called a witness whose evidence was directed to damaging rather than assisting the plaintiff's case. The plaintiff also called an engineer to give evidence about an alternative method of doing the work which was being done at the time the plaintiff was injured. I observe that the principal of A.H.N., Mr. Alistair Purbrick (of the family which has long operated the vineyard) was not called to give evidence nor was another person at management level, one Ian Hendy. No explanation of their absence was put forward.
I was told that the vineyard is some 400 acres and that Block G upon which the plaintiff was working at the time of his sustaining injury was about 30 to 40 acres in area. In Ciavarella's evidence it was said that there was about 250 kilometres of vines. The evidence indicated that Jaudzemis was very active in the vineyard and worked long hours in it including substantial weekend overtime. He himself said that he had worked hard hoping to acquire further skills and perhaps to go higher in the company thus earning greater money. His work as a vineyard hand involved putting in posts, fixing drip tubes which were themselves connected with other poly-piping which carried water to them, planting vines, running wires, tending young vines and spraying. It was customary to get around the property on a Honda four-wheel drive motorcycle or on a tractor. Block G was one of the later-developed blocks and the plaintiff had had a lot to do with it including putting in the trellising (that is the posts and wires to hold the vines) and running drip tubes. Block G had not been much planted out because the water had not been connected to the drip tubes.
According to the plaintiff, there was no-one officially below Ciavarella, who was on the bottom management rung, both Alistair Purbrick and Hendy being above him. The plaintiff had been working on Block G on and off for some months although he had other work to do outside that block as well. There appeared to be four vineyard hands, the plaintiff, Neil Hourigan, one Hannasky and Brian Salter. Hannasky left before 13th May 1996. The evidence was that the management style of the defendant was easygoing and casual, and that although there might be specific jobs envisaged to be done at particular times, the management approach was that the hands, upon completing some tasks, might decide for themselves what would be the next feasible matter to attend to, that is, so long as they were working to improve and re-establish the vineyard, they were not closely directed.
The plaintiff's evidence was that Ciavarella (who was absent on the day on which the plaintiff was injured) had not given the plaintiff a series of jobs to follow. This, according to the plaintiff, was because he, the plaintiff, knew what had to be done. The plaintiff said that on the relevant day Ciavarella had gone to Tallamba, another winery. Ciavarella's evidence indicated clearly that he was not present on the day on which the plaintiff sustained his injury and, so far as I can determine from the evidence, there was nobody present and in charge. As I apprehend and conclude, this was in harmony with the prevailing practice that because the employees were industrious and could be relied on, they had considerable freedom as to what work they would undertake.
I am satisfied on the evidence that the way in which blocks would be prepared would be to use a ripper (a photograph of which formed part of the evidence) to rip up the ground of the block and that there would be at that time paid out from the ripper into the ripped land, in furrows, black plastic tubing (called poly-piping in the statement of claim) at a below ground depth of something like 12 or 15 inches. Most of that was kept below ground, presumably to protect it, and part of it left above to enable it to be pulled up in relevant areas and attached to the dripper tubes, which were themselves attached to the post and wire trellising. The evidence suggested that the soil re-constituted itself over the piping.
The evidence of the witness Ciavarella (which had been recorded on video and then ultimately put into an accurate transcript which was agreed) had been given before a Commissioner in the Four Courts in Dublin on 21 September 1999. As I have indicated, this witness was called on behalf of the plaintiff. At that point of time the plaintiff had not given any evidence. In his evidence (page 19 of the transcript) Ciavarella stated that Block G was the final block of vines on the A.H.N. vineyard to be established. He said that the plaintiff and Neil Hourigan had been working for three years or more and they had established seven blocks prior to block G, the final one. From instructions that had been previously given, Jaudzemis knew what had to be done generally in relation to that block. In response to a question from the Commissioner, Ciavarella stated that with respect to the issue of the use of mechanical aids in pulling up dripper tubes from below the ground, that there were two ways in which the tubes might be damaged: one would be by cutting it with, for example, a shovel blade; the other way would be to pull it up by way of tractor where it would actually stretch the walls of the tube which would then deteriorate.
Jaudzemis' evidence to me was that on the morning of 13 May when he arrived at work, the work he was to do for that day was to spray weeds in order to kill them so that they did not compete with the vines. However, on checking the weather first thing, he concluded that it was unsafe for spraying because it was too windy, which meant too much drift of the spray might kill the vines. His instructions had been to spray "if possible". Once that could not be safely done then it was up to him to go ahead and do some useful job that needed to be done. He could not ask Ciavarella because he was absent; neither Purbrick nor Hendy were there. Hendy was over at the Chateau but he did not have anything to do with the block upon which the plaintiff was working anyway. Photographs of Block G showed an open area to enable vehicles to turn. There is marked on it in black marking pen a point which the plaintiff indicated in his evidence was the point where he approximately was at the time he sustained the injury to his back. The plaintiff said that when he found the conditions were not conducive to spraying, he went and got Brian Salter and asked him to come with him in order to pull up the drip tubes from the ground on Block G. He said that Salter had not been allocated any particular job on that day and, as I understood Salter's evidence, he agreed with that. It was claimed by Ciavarella that Salter was supposed to be mowing lawn at the Chateau and it would appear from the record that Salter later filled in subsequently (a wages form) that he did do that. However, Salter's evidence to me was to the effect that he went to do that mowing after the plaintiff was injured and that he was not "booked to do it before that" which is why he went with the plaintiff when he asked him to come and assist him pulling up the tubes. The substance of Ciavarella's evidence was that Jaudzemis and Salter had previously been engaged on attaching polyethylene dripper tubes to wires in Block G. He said that if Jaudzemis could not spray because of the conditions, then he should have gone on attaching the drip tubes to the wire and that he should not have embarked upon the task of pulling up the tubing from the ground. He claimed that, whilst he accepted that that work had to be done, it did not have to be done at that time and that he had not asked anyone to do it. Thus the thrust of his evidence was that they should have then gone back to complete the dripper tube fixing and not embarked upon the task upon which they did embark. One makes the observation that if that were the fact then there should have been somebody there, if Ciavarella could not be there, to give directions if there is to be some insistence upon what work was to be done. However, in my view the employer had adopted a casual approach in which the giving of strict directions was not commonplace and a substantial degree of autonomy in the selection of tasks was left with the three vineyard hands below Ciavarella. Ciavarella said that he thought the plaintiff "would agree with me that it was unwise to perform the task of pulling up the dripper tube without my having first instructed him how the job might be done safely". Ciavarella claimed in his evidence that because of soil compaction it was necessary to use some form of mechanical means of assistance to remove the tube from the soil. He did not explain how he knew this with respect to Block G. He said that once the soil dried out, being clay, it could become compacted. He said that the work that Jaudzemis had done was not done while he was vineyard manager. Ciavarella said later that water could be used to soften the ground to enable it to come up more easily.
Jaudzemis's evidence was that the connection of the dripper tubes to the wire (the job that Ciavarella suggested he should have gone back to once he could not spray) had already been completed in Block G so that it became necessary to perform some other task, the one on which he embarked. Moreover, the evidence of Jaudzemis was that on an earlier occasion, some months before, at Ciavarella's direction and under his supervision, he and Ciavarella had gone about the task of pulling up drip tubes by hand. On that occasion, no mechanical or other assistance had been used and they had both, at Ciavarella's direction, followed the method of pulling the buried poly-piping up from below the ground by commencing to pull it up by hand from and by the portion which protruded. The method was simple and was the one that was later followed by both the plaintiff and Salter on the day the plaintiff was injured, namely, the workers simply bent over, took hold of the tube where it protruded from the ground and pulled it. The plaintiff stated that when he had done that on the earlier occasion with Ciavarella it came up easily enough for both of them. Ciavarella did not specifically refer to that incident in his evidence although he described an occasion some months earlier when a similar job was done in a different part of the vineyard where the soil had been freshly ripped. On that occasion he said the pipe was pulled up by hand but the tube was pulled up behind the tractor.
The evidence of both Jaudzemis and Salter was that on the relevant day they went to Block G and they commenced to pull up protruding poly-piping out of the ground. They did this by hand, by bending down and with both hands pulling it up. Jaudzemis said he had then pulled out 20 or 30 sections of piping and that it had not been difficult or hard until, on one of the pulls as he attempted to pull it out, he hurt his back. He said he only expected to pull up two or three metres of tubing at each end. He simply had to pull it back so he could hook it up to the trellis. He said that the tubing had been in the ground for a month or two but was in the wrong position, and that Ciavarella had so told him that. That was where they had worked while they worked on it previously. On that occasion, when he worked with Ciavarella, they realized that the tubes were too close to the post and had to be pulled away. He stated that on that occasion they had driven there in a car. There was no tractor involved but that they had simply pulled them up. This work had been done by them on Block G but in a position out of the photographs that were taken with respect to the event that had happened some months later. The plaintiff said that he had had no problems pulling up the 20-30 pulls on the piping on that day until this particular one when he hurt his back as he tried to pull it out of the ground. He said that he had not pulled it out very far but it had been protruding above the ground to enable him to get hold of it. He might have pulled the pipe about a metre out of the ground. Salter was alongside him doing the same job, but on a tube in the next row.
Asked by Mr. Young, counsel for the plaintiff, "Why did you decide to pull the pipe out of the ground rather than remove it by some other means?", he replied "That's the way Michael and I done it the first time and it worked quite well so we done it that way." He also stated that on that earlier occasion Michael had "nominated" that all the tubes on Block G (which they were on) "had to be pulled up", and that is why and when they started to do them. He said that seemed to be an easy and quick way and that is why he and Salter had done it that way. However, he felt a sharp pain in his back at about the centre of the lumbar spine. It was agony. Notwithstanding that, he worked on increasingly lighter work for a few days before he went off.
Jaudzemis agreed under cross-examination that he and Salter had taken spades with them. He said the condition of the soil on the earlier occasion, when he and Ciavarella pulled up the tubes, was not much different to the one on the day he was hurt, although perhaps a little more compacted because a tractor had been over it. Still, it was not difficult to pull the tubes up. He said that the soil, on both occasions, had been ripped up. Jaudzemis also stated that Ciavarella was incorrect if he said there were 16 hours of work remaining to be done on attaching drippers to the wire. Asked by Mr. Dowling, senior counsel for the defendant "Do you agree that it was unwise to perform the task of pulling up the tube without having first obtained instructions from Mr. Ciavarella, or someone else, on how to do it?", he answered "He is the one who showed me in the first place", going on to say that it was the same method, the conditions were much the same and that the tubes came out pretty easily except for that one. Jaudzemis also referred to another occasion when pipes were pulled up by hand, Ciavarella not being present, some considerable time before, by himself and Wayne Hannasky on Block C.
Brian Salter was called and corroborated the incident in which the plaintiff sustained injury. Salter is now a plasterer and at the time of the happening of this accident he was aged about 20. Salter said that they had first tried with the tractor but it was wrecking the tubes. So they then lifted the tubes with their hands and got them out of the ground. It was when doing that that Alfons hurt his back. He said that Ciavarella wasn't very good at working as such. He "told us what we had to do and it was up to either Fons or Neil Hourigan who I was working with at the time to show us the best way to do it." He said Ciavarella was not very good on the manual side of things, "he was more to tell us what we had to go to do." He said that Ciavarella had only shown him how to prune vines because he was not too good on anything else, "so it was more or less left up to us to work out the best way possible". Salter said that the soil at that point was clay but not all clay, that it was pretty reasonable soil. He said the ground had been ripped through a few weeks prior, had been filled back, but there been rain in between and the soil was still reasonably easy. It was not a difficult task to pull them up but there were different levels of soil and it got harder. He said they only tried a couple with the tractor but the piping started stretching so they gave up. He said that he had been involved in pulling tubing out of the ground before this occasion and he and Anthony Hadley had done that at the end of the block. He said that the only way to get them out was to lift them more or less straight up. They could not be pulled at one end. He said "We tried to dig them out but it was obviously going to take too long." He agreed that his work-sheet did not record him pulling out tubes on that day because, he said, the practice was that when they filled them out they only recorded the big job that had been done for the day; therefore he put in mowing because he did that later. But he had no doubt he and Fons had been pulling tubes out in the morning.
The final plaintiff's witness on liability was an expert mechanical consulting engineer, Mr. Andrew Enkleman, who was a member of the relevant Institutes. He recited considerable experience throughout a range of engineering specialities including dockyards, railway equipment and locomotives, and the design and manufacture of special vehicles and heavy equipment. He operated his own company manufacturing heavy duty trailers and had been a consultant since 1974. He has given evidence in courts as a forensic engineer. Instructed by the plaintiff's solicitors, he had a view of the vineyard and the circumstances on 24 March 1998, at which the lawyers, the plaintiff and Mr. Alistair Purbrick, the owner of the vineyard, were present. He verified all of the photographs of Block G that were shown in Exhibit A and he explained the function of the various equipment shown in the photographs as he understood it. I should say that that description accords with the conclusions which I, and as I believe both counsel, had reached on hearing the evidence. The witness had been told that the plaintiff had injured his back when he was lifting or pulling up the poly-pipe from its underground location. The witness described the soil as he saw it, on the day that he saw it, as heavy clay which on that day was quite hard where it was undisturbed. The witness stated that the particular activity was a planned procedure that loaded the plaintiff's spine unnaturally and not axially, as one would load it when one lifted a weight. The force that might be applied was of unknown magnitude, as contrasted to an object of known magnitude that one might seek to lift. He also said that the force to be applied varied as one pulled it, and the angularity of the force changed as the poly-pipe was progressively extracted. Thus he concluded that the force necessary to extract it was not a constant one, because it varied in both magnitude and direction. The pipe depth observed by the witness on the day that he attended was about 300 millimetres, that is, about 12 inches. What the witness said as to the method by which there might have been followed was this. A mechanical aid should have been designed specifically to extract the piping. A typical possibility was that of a specially designed spade with an attachment so that the pipe would not be harmed in the course of the procedure and where the operator would be using his feet or one foot instead of his back and arms. To this end, he described a normal spade with a narrow blade, with a pipe welded on top of that which was hollow, with a cross-brace on or in which a foot could be rested to apply downward force. The cost of designing this was, he said, negligible. Under cross-examination, the witness also explained his training and experience in the bio-mechanics of the human body. The witness indicated that when they dug the ground with an ordinary shovel, they were able to dig out the pipe but in doing so they destroyed it.
I turn then to consider the issue of liability. Addressing at this point that issue, Mr. Dowling, Q.C., argued that I should not be satisfied that there was any negligence on the part of the employer and that I should accept the evidence of Mr. Ciavarella rather than that of the plaintiff with respect to the critical matters. Thus he said that the plaintiff embarked upon work which he should not have done because he should have chosen to go on with fixing the dripper tubes to the wire (once spraying was out of the question as being too risky) and, even if he did not do that, he should not have embarked upon pulling the tubing out of the ground without first wetting the soil. He submitted the plaintiff ought to have observed that the condition of the soil was different from that on the previous occasion and that he was not entitled to make the assumption that he could go ahead without taking some other steps such as using the tractor or wetting down the soil. If the employer was negligent, he argued the plaintiff was himself was guilty of contributory negligence in failing to take steps to moderate the condition of the soil or use some other aid to get the piping up. He said it was up to the plaintiff to make the estimate that some method other than pulling them up should have been carried out. If the plaintiff satisfied himself that the conditions were appropriate for the method adopted, then, it was put, there was no need for any supervision and no lack of a proper system of work and therefore there was no negligence. He did not argue that the way in which the plaintiff went about the task was unsafe, but that he should have satisfied himself about the change in conditions. This argument in part depended upon establishing that the condition of the soil on the relevant day was hard and compacted. As my findings indicate, I reject that. The plaintiff himself said the soil on that day was much the same state as on the day in which he and Ciavarella had pulled it up some months before, perhaps a little more compacted because a tractor had gone over but that it was not in any way difficult to pull them up. He pulled up 20 to 30 before he struck one that did not come. Salter accepted that they came out easily also but it got harder in certain parts of the clay. He did not say, however, that it was in any way difficult or risky to do.
Mr. Young, leading counsel for the plaintiff, first relied upon the statements by the employers and Ciavarella that the plaintiff was an honest and capable man, as was Salter. He relied heavily upon the management style, that is, that it was not a case of meetings in the morning with directions to be given as to the work that was to be done; it was not a work situation in which supervision was given. The employer encouraged individuals to make their own decisions about what they did. As such, he said, it was quite a comfortable place to work at, so long as what was done was in the employer's interests but, he said, the consequence was that supervision and direction was slack. He argued that I should accept the evidence of the plaintiff and Salter as to what happened on the day and he contended that the earlier work occasion with Ciavarella made it clear that the defendant directed a system of pulling out the tubing out by hand and that the plaintiff followed it. The employer had no person in charge on the day and no directions were given. Since Ciavarella was away, the plaintiff had no option but to make his own decision as to what work he should do. He selected work that it was not disputed had at some point to be done, and that he did it in the way that it was demonstrated to him to be done. He argued that the soil conditions were not materially different. He also relied upon the fact that the evidence indicated that, if Salter's evidence was accepted, that they had attempted to pull the pipes out with a tractor but that it was clearly going to stretch and destroy the piping. They then attempted to use a shovel but that was too slow, so finally they went to the manual method which they found quick and easy. It was only when the plaintiff encountered a subterranean rock or root that he injured his back that trouble arose. Thus he contended Jaudzemis was a vineyard hand who was left unsupervised and undirected, made a reasonable choice as to what work to do and how to do it, based upon the previous demonstration by the employer. Moreover, he relied upon the evidence of Mr. Enkleman who described an alternative system of negligible expense which could have been adopted and eliminated risk, but was not adopted.
I now indicate the findings of fact that I make and the conclusions which I have reached.
This is in some respects a relatively unusual case in that the plaintiff called evidence which might ultimately have been called by the defendant (who had declined to do it) and had it received by evidence on commission from the employer's vineyard manager, Ciavarella. His evidence and the evidence of the plaintiff (and to a much more limited extent, Salter) differed in material respects. However, I take the view that although the plaintiff called Ciavarella and was thereby prevented from asking leading questions, Ciavarella was in effect a defendant's witness. But, whether a witness is called for a plaintiff or a defendant, the task of evaluating the truth of the matter and the evidence of the witness remains the same, so long as it is firmly borne in mind that the plaintiff has the burden of proof of negligence. I was made aware of the substance of Ciavarella's evidence prior to the calling of the plaintiff. I therefore paid particular attention in my observations of the plaintiff and his credibility. The plaintiff is a man not only of limited education but with few gifts of self-expression. However, I am quite satisfied that he is a very truthful person and was quite prepared on occasions to state matters that were conceivably against his interests. I have not only formed the view that he was an honest witness but that he was also an accurate and reliable one about the critical issues. It is often difficult to evaluate the evidence of a witness whose evidence is on commission and on video. It was not made plain to me in any way either from the evidence given on commission or by any evidence led from the defendants as to whether or not Mr. Ciavarella had been supplied with documents or other aide-memoires to the events of May 1996. He certainly affected in his evidence a remarkable memory feat in recalling what the plaintiff had done in the vineyard and who he had done it with on Friday 10 May 1996, if he had not. A self-confidence, verging on self-importance, emerges upon consideration of his evidence. Mr. Ciavarella had been working in the wine industry in France for a considerable period of time at the time of giving evidence.
I have no doubt that the system of work in the vineyard was unregimented and casual, that is that the employer tolerated, probably even encouraged, vineyard hands (particularly during a period when grape picking and tending was in abeyance and property maintenance was the prime concern, as it would have been in the month of May) to exercise their own judgment about the order in which various tasks that fell to them to perform might be done. They had a greater degree of autonomy about such matters than might ordinarily be found in other places but, perhaps, it is more common in viticulture where large acreages are frequently involved with a relatively small number of workers who progress about the property. The evidence of the plaintiff was that so long as they worked in the interest of the employer they were trusted to select the order of work that they might do and that there were not necessarily meetings each day in which directions to them would be given. Both on this issue, and on the issue of the condition of the soil in Block G on 13 May, and the issue of the system employed to pull up the poly-piping, I note that the defendant called no evidence to address these matters. I do not overlook that the defendant had the benefit of Ciavarella's evidence but it was must have been known to the defendant that there was a disagreement as to some critical matters. No explanation for the failure to call some witness who might have said something about these matters was advanced. They included possibly Mr. Alistair Purbrick, the CEO of A.H.N. (who I note was present in the photographs taken on the day of the visit of the consulting engineer Enkleman), or Mr. Ian Hendy or any other person whose experience might have enabled them to speak of the relevant matters. The absence of such evidence does not enable me to speculate or guess at what might have been said but I am entitled to draw an inference, with respect to the disputed issues (from the long line of authorities, including the decision of the Full Court in O'Donnell v. Reichard [1985] V.R. 916) that such evidence was not likely to have assisted the defendant. I do not make too much of this matter as I would apprehend that Mr. Purbrick and Mr. Hendy were less involved with the actual operation. But it would also seem likely that if there were some disagreement with the evidence given by the plaintiff and Salter about the "casual" style of management, such evidence was likely to have been called.
Such a management style often makes the workplace more pleasant for its employees but none of that will exempt the employer from the common law duties that fall upon it to take reasonable care for the safety of its employees in the workplace. Indeed, Mr. Young commenced his submissions to me by reminding me of the statement of Lord Reid in General Cleaning Contractors v. Christmas [1953] A.C. 194 in what was then, and perhaps even more now, a commonplace of workplace law that "it is the duty of the employer to consider the situation, devise a suitable system, to instruct his men what they must do and supply any implements that may be required." In Ferraloro v. Preston Timber Co. Ltd. (1992) 56 A.L.J.R. 872 at 873 the High Court, in an unanimous judgment stated:
"The employer's duty, to whomsoever it falls to discharge it, is to take reasonable care to avoid exposing his employee to an unnecessary risk of injury and the employer is bound to have regard that injury may occur because of some inattention or misjudgment by the employee in performing his allotted task."
The Court emphasised that that was by no means an exhaustive statement of the matters to which an employer must pay attention, stating that if there is a foreseeable risk of injury arising from the employee's negligence in carrying out his duties then that is a fact the employer must take into account. In McLean v. Tedman (1984) 155 C.L.R. 306, a case concerned with the alleged failure of the employer of garbage collectors to discharge his duty of providing a safe system of work, the Court stated that:
"It was the chosen method of performing the work that exposed the appellant to this risk of injury. 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 responsibilities of an employer ... and in deciding whether has an employer 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."
In my judgment the three critical areas of dispute for decision by me are as follows:
(1)whether or not Ciavarella had at some period well before 13 May 1996 demonstrated to and worked with the plaintiff in pulling up below-ground poly-piping by hand and whether or not the conditions on that occasion were similar to those on 13 May 1996;
(2)whether the plaintiff had completed work which he had been doing of tying pipes to wires before the morning of 13 May; and
(3)what were the conditions of the soil in the relevant part of Block G worked on by the plaintiff and Salter on the morning of 13 May.
As to the first of these matters, the plaintiff's evidence was quite clear and I accept it. I find that at an earlier time Ciavarella had demonstrated to the plaintiff the method he desired of pulling up poly-piping when that task was being performed. I find that both of them did it on that day and it was on a part of Block G, not observable in the photographs taken at a later stage. I find that the soil on that occasion had been ripped up some weeks before. It was not ripped up on that day and that both of them were able to pull the piping out, as the plaintiff said. In my judgment that was intended to be an indication by Ciavarella of how to go about the job and that it was so viewed by the plaintiff. I note that the plaintiff referred to another occasion when he and Wayne Hannasky together performed this task on Block C, clearly prior to May 13, 1996.
Ciavarella himself gave evidence that there had been an earlier occasion when pipes were pulled up by hand, although he also said the soil had been just ripped. I prefer the plaintiff's evidence.
As to the second point, the plaintiff stated in evidence that the pipe-tying work had been completed. He initially seemed a little doubtful of his recollection but ultimately was clear that it was done. But I do not accept that that Ciavarella had left a direction that the pipe-tying had priority. In my opinion, the order of work was left to the hands' discretion. As to the condition of the soil, both the plaintiff and Salter stated that there was no real difficulty in pulling the pipes up, until the plaintiff met his unexpected difficulty. I note also that Ciavarella stated in his evidence that the task was dangerous because of soil compaction, and that he was anxious to be there, when it was done, to supervise and assist. This is not the portrayal of him by Salter. But he also said that he had not considered how it would be done, but that it would be necessary to use water or mechanical assistance. None was provided.
I am satisfied that there was negligence on the part of the defendant which was a cause of the plaintiff's accident and the plaintiff's injuries. I accept the plaintiff's account of the earlier demonstration (and thereby the implied direction as to the system to be followed) by Ciavarella of what was to be done on Block G and that the work had to be done, although no specific time was identified. I also accept that there was no direction given to Jaudzemis or Salter not to do the pipe extraction until Ciavarella was present nor that it was not to be done until the pipe-tying was completed. In my view, although the task was uncomplicated and relatively simple, there was always a risk that some unseen, below-ground obstruction might impede the manual withdrawal of the piping, thus putting a strain on the employee's back and spine. In this case, wetting the ground would have done little, as the soil was not badly compacted, as the witnesses say, and it is unlikely that wetting would penetrate to a great depth. The task, properly organised, required mechanical aids. Enkleman's evidence shows how simple it was to do this. As I understand the evidence, the end of the poly-piping above ground was to be threaded through the hollow metal tube and the process of digging along its length, with the tubing safe at the top of the shovel, was then carried out. The lifting risks were therefore eliminated or reduced. The system here was not safe, and the employer had not considered that risk. Ciavarella suggested that he had not got to the point of deciding how to go about it, but this cannot stand with the earlier demonstration. Moreover, no further instruction was given and no supervision was given. This is sought to be explained by claiming that that job was not authorized or directed. But the system at the vineyard was much looser than that. In my judgment, it cannot be that it is the employee who is liable if, under that regime, he is injured. The employer's common law obligations remain. It is for the employer to fulfil them and to reconcile the system of work, direction and supervision with those obligations. Accordingly, I conclude that the defendant failed to fulfil its legal duties and was negligent.
I reject the argument that there was contributory negligence on the part of the plaintiff. The burden of establishing this is on the defendant. I have found that the plaintiff selected this task for performance because his anticipated job (spraying) could not safely be carried out. He performed his task in the way that he had been instructed to do it. The defendant's work practice allowed him to select the order of work. The defendant had not given any warnings or instructions (other than the demonstration) and had no one in charge on the day. The plaintiff, with Hannasky had employed the same system on Block C, as well as on Block G with Ciavarella. Salter's evidence was that an attempt to use the tractor to pull the pipes up was causing damage. Even assuming (to the contrary of the views which I have formed and expressed) that the plaintiff failed to act or take steps to avoid the consequences of his employers' negligence, the employer here (as in Todd) had done nothing to guard against such a want of care. See Todd v. Melbourne Airport Centre [1998] VSCA 90 and Marshall v. Thomas Kelly & Lewis Pty. Ltd. [1998] VSCA 89. An issue was raised concerning the plaintiff's attendance (or non-attendance) at a course concerning occupational health and safety. Although no-one specifically said so, I deem that this was in some way related to contributory negligence. I was ultimately informed that it was agreed that the plaintiff (and another employee) went to one such lecture or talk, but not the second. The evidence was too imprecise for it to be of any significance.
I turn now to the plaintiff's injuries and disabilities. I might say at the outset there was very little dispute about this. Both parties tendered medical reports by examining doctors and whilst there were some differences as to some aspects, and differences in emphasis from time to time, essentially there is no dispute that the plaintiff sustained a serious back injury which has totally incapacitated him from future employment. Only one medical practitioner was called, at the request of the defendant, namely the plaintiff's general practitioner, Dr. Elliott Jarman. This was apparently done to enable the defendant to explore, first, whether there had been any pre-accident history of back disability and second, to explore an aspect about the plaintiff's consumption of alcohol. I am satisfied on hearing that evidence that the plaintiff had had no previous permanent back injuries, although as a butcher he had had some minor back strains from time to time. The plaintiff had also been a moderate drinker and I will refer to this aspect when I later address the consequences of the injuries. The Victorian WorkCover Authority gave a serious injury certificate pursuant to s.135A of the Accident Compensation Act on 22 January 1998, leading to the bringing of these proceedings. Dr. Jarman expressed the view that the plaintiff would be permanently unable to be employed performing manual labour. Although Mr. Jaudzemis continued on, on light duties, for some days after sustaining his back injury, it is beyond doubt as a consequence of a CT scan taken at the Epworth Hospital, after Mr. Jaudzemis was referred by his general practitioner to Mr. Peter Turner at that hospital, that there was a moderate side left posterior lateral herniation of the L3/4 disc which compressed the left L3 nerve. The plaintiff tendered medical reports from Dr. Jarman, from Mr. Peter Turner, Mr. Peter King, Professor Edward Byrne, Dr. Jeanne McGivern and from the psychiatrist, Dr. David Sime, from the Remy-Moffatt Health Care Services and the Barbara Walker Centre for pain management, all of various dates. The CT of the lumbar spine of 28th May 1996 not only showed the L3/4 disc herniation, compressing the nerve root but a small central bulge of the L4/5 disc which was probably compressing the L5 nerve root. This accounted for the then pain and disability experienced by the plaintiff although it is noticeable that those X-rays showed no spondylosis or bony abnormality in the lumbar spine, thereby indicating that it was unlikely that there any pre-accident disability. Even at an earlier stage the plaintiff had numbness around the front of the knee and by January 1997 there was obviously muscle wasting of the left thigh (see report of Mr. Turner of 3rd January 1997). At that point of time the plaintiff was still taking two to four Panadeine Forte tablets on most days to cope with the pain. This is a heavy dosage. Notwithstanding the level of disability conservative treatment was maintained for some time. Ultimately it was recommended that surgical decompression of the L3 nerve root and in L3/4 discectomy. This was done to relieve symptoms and was unlikely to cause any neurological recovery. This surgery did not effect any improvement in the plaintiff's pain (see the report of Mr. Peter King of 7th May 1997). He continued to be troubled by pain and disability and numbness. His Panadeine Forte consumption increased and he went on to sleeping tablets. Mr. Jaudzemis had a limp, some uncontrollable shaking, could not bend and diminished reflexes. In December 1997 he had a "re-do" laminectomy and partial fusion on the lower spine which was fixed with screws. After this operation, the plaintiff developed impotence and a loss of sensation in the bowel and anus, leading to an inability to sense the extent of defecation. According to the report of the urologist Dr. Justin Peters in 1998, the plaintiff's erections disappeared totally after the second operation but, by being put on medication, he got some improvement although it was only about 30%. Dr. Jeanne McGivern who examined the plaintiff in June 1999 set out the plaintiff's then complaints of constant pain in the low back and left leg, limited mobility and the necessity to constantly adjust his position. He had numbness of the skin of the scrotum and penis, and, although he could control his bowels, he had lost the sensation of defecation. He still had erectile dysfunction and could not achieve an erection. He got a good night's sleep by taking three sleeping tablets. All reports accepted that the unfortunate "cauda equina" syndrome had occurred as a consequence of the second operation, so that Mr. Jaudzemis has been left with persistent and permanent neurological damage of the L3 nerve root, in addition to impotence and the loss of anal sensation. She stated,
"Mr. Jaudzemis will never again be fit for manual labour. Since his educational background does not leave him suitably qualified and he has no experience of non-manual work, it is highly unlikely that he will find gainful employment."
She thought his neurological symptoms and signs would persist indefinitely.
A thorough WorkCover initial assessment report did not think that any FCE or vocational assessment was likely to be productive because he would not have the capacity to work. The orthopaedic surgeon Mr. Peter Turner, who had done some of the surgery, expressed the view in August 1999 that Mr. Jaudzemis will continue to experience significant pain in his lower back and leg and will continue to suffer from the neurological impairment. His view was that he would never be able to return to work. The neurologist Dr. Edward Byrne agreed with the conclusion to which I have previously referred. The psychiatrist Dr. David Sime dealt with the psychological consequences in the psychiatric sense of Mr. Jaudzemis's injuries. He stated on 27 September 1999 that "there were no psychiatric contrary indications to work and indeed, quite the contrary, there was strong indication that he was basically strongly motivated for work." He expressed the opinion that he was unemployable because of the level of his back problems. He noted the plaintiff's concern over his financial situation and his wife's concern about suicidal tendencies. There was no direct evidence of this, however.
Significantly the defendant's reports show no more optimism concerning the plaintiff's future. As early as April 1997 the orthopaedic surgeon Mr. Brian Davie doubted whether he would ever return to work and stated that he was totally incapacitated. As late as January 1998 Mr. Davie expressed the opinion that he would assess the plaintiff "to be totally and permanently be incapacitated now and in the future", stating that his prognosis was very poor and that he should be reinstated to the 90% weekly wage, as he had a very serious injury.
The reports of the defendant's Mr. Ian Shumack, including one of the 12 October 1999, are substantially no different, he expressing the view that the plaintiff would not be capable of undertaking any paid employment and not fit to undertake pre-injury employment. He stated that he was totally incapacitated but that might be reduced by appropriate psychiatric care and counselling.
The plaintiff gave evidence concerning his past life and physical activities. He had always worked and worked in physical tasks. Living in Nagambie, he was an active sportsman, involved with the rowing club, playing golf, actively involved with the local Fire Brigade. He and his wife were involved, as most country people are, in the life of their community, including schools and social activity. They had reared three children to whom, as I understood the evidence, the plaintiff devoted much of his time particularly in relation to sporting activities. All of this ceased upon the receipt of his injuries. He has been in virtually constant pain. I observed frequently his inability to sit for very long. He is a person phlegmatic by temperament and, if anything, understated his problems. They were however attested to by other witnesses who were called and particularly his wife who explained some the tensions and some of the difficulties with which they have both been faced as a consequence of this very disabling injury. She has expressed some concern about a mild increase in his drinking of beer. The main problem is that his incapacity leaves him with nothing to do. It is frustrating and upsetting for them both. She gave evidence about the effect of his impotence upon their sexual life and evidence about his consumption of analgesics and tablets of various kinds. Mrs. Jaudzemis at the time of the trial was working about seven days a week and driving a 100 kilometres a day to do it. I would not apprehend that this level of activity would continue, however, as the work appears to be seasonal.
Although Mr. Jaudzemis's evidence was fairly tested in many relevant respects, apart from being pressed about drinking inclinations and habits there was little challenge to the authenticity of his claims of pain, disability and limitations. Mr. Jaudzemis described his difficulties of sleeping, the embarrassment occasioned by accidents as a consequence of interference with his bladder and bowel sensation and faecal soiling because of his difficulty in differentiating sensations. His evidence revealed depression and some frustration and irritability, particularly based upon his inability to work or even do jobs around the house, except from minor housework. He can drive but not for long; he no longer does gardening or car maintenance. He was quite certain that not only did his bowel and impotence arise after the second operation but that his pain levels were unrelieved.
The plaintiff's evidence has satisfied me that he has suffered, and continues to suffer, permanent pain and disability. He has had classic back pain with sciatica. He claims that his pain has been worse since the second surgical intervention. He has, as I have observed myself, a marked left leg limp. He cannot remain seated for long periods nor stand for long periods, a common consequence of serious lumbar spine derangement. The evidence establishes that he takes Panadeine Forte, a powerful analgesic, daily, as well as sleeping and tension tablets.
The evidence from him and his wife is that he cannot attain erection so as to enable intercourse to take place. He cannot work and strongly dislikes having nothing to do, with its attendant isolation from his friends and acquaintances. He has three adult children and two grandchildren with whom he cannot play with as he would wish. His wife works as a picker, presently involving seven days a week and 100 kms travelling daily. She has been a loyal and devoted wife and mother. In my estimation, there is some level of tension from time to time, due to the complete disruption of their lives as a consequence of the plaintiff's injuries. They have had to move from Nagambie, where they lived for 20 years, being fully involved in all aspects of country community life, all dealt with in the evidence. The plaintiff was involved for a long period in rural fire brigade activities. He was heavily involved in many sporting activities including the rowing club, golf, power boating and school activities. He had ceased some of these prior to these injuries. But he is now completely cut off from those activities and from both the pleasures and rewards of the vineyard employment which he greatly enjoyed. He has the embarrassing affliction of bowel dysfunction due to the loss of normal sensation, leading to bowel accidents. There is some evidence that his level of consumption of beer has risen, although he was inclined to deny that it had. He had two previous drink-driving offences. One was a long time go and the second appears on the evidence to have been at the low end of the scale, .08. A rise in his consumption level would occasion no surprise, given the limitations in his life-style, but I am of the view that his consumption of alcohol is by no means grossly excessive.
The plaintiff also called a personnel consultant named Patrick Stanley Smith. Mr. Smith claimed to be a human resource practitioner for 20 to 25 years and had been in Mildura for some years. He says he had done some formal education course run "in conjunction with Deakin University" and that he "was a certified recruitment consultant". It was not clear who certified him but it appeared to be as a consequence of some course done with the Recruitment Consulting Services Association at Deakin University. He said that he was a member of the Australian Human Resource Institute. Mr. Dowling legitimately raised queries concerning whether or not this background qualified Mr. Smith to express any opinion as to whether or not Mr. Jaudzemis's experience be such to have made it likely that his skills would be in demand as a vineyard hand. In the end, he did not object to the evidence but I bear in mind its limitations. However, this witness was Mildura-based, a key area in respect of large low-level vineyards and it is likely that Mr. White's practice and expertise would enable him to say something concerning the likelihood of Mr. Jaudzemis being recruited as a vineyard hand, if he had left A.H.N. uninjured. I note that Mr. Ciavarella had described the plaintiff as an honest hard-working member of the staff and that he was quite capable. He also took the view he was unlikely to progress beyond the vineyard hand level.
Mr. Smith's expert report purported to construe from Mr. Jaudzemis's experience (although he apparently thought it was five years rather than three) and job statement supplied (unexplained) that he had definite prospects of advancement. He did not explain the basis of this opinion other than the fact that the wine industry was undergoing significant growth and that there was a genuine shortage of skilled labour. This was based upon his own dealings with wine industry clients. However, it is one thing to think that a skilled and experienced vineyard hand is likely to be in demand if he left A.H.N. and another for him to reach a conclusion that he was likely to advance to higher levels. He also based, according to his expert report, his evaluation of the rates of pay for a vineyard hand upon the extrapolation of an award rate which appeared to relate to the rates of pay of a supervisor, such as a head cellar man or head storeman, rather than a vineyard hand. Moreover, under cross-examination by Mr. Dowling, the witness rapidly conceded that his statements that the award applied were not strictly accurate, and that employment was based on agreements which were broadly based on the award. He also conceded that because of enterprise bargaining the agreements vary from place to place. He had no idea of the rates of Chateau Tahbilk but he took Mildara and Southcorp, two of the local wineries, as the benchmark. The witness appeared to assume that Jaudzemis would arrive at some supervisory position but he accepted that Mr. Jaudzemis had considerable limitations. However, he thought he had the potential of going beyond being a labourer because of the high regard in which he was held as a vineyard hand. Thus he estimated a gross salary of about $30,000 a year, described by him as a "ball park" figure, were largely based upon the Mildara and Southcorp figures. He placed some reliance upon the plaintiff's own statement that he looked after young vines as indicating reliability. The witness seemed to doubt the plaintiff's skills as a "people person", that is being able to control and supervise them, but thought he had a breadth of knowledge of the wine industry and the vineyards that was impressive.
Both counsel made submissions as to the appropriate level of damages for pain, suffering and loss of enjoyment of life. Counsel for the defendant submitted that the sum of $160,000 for damages other than economic damage would be appropriate. The plaintiff's counsel suggested at least $250,000. There is little utility in adding further to the never-ending judicial pronouncements about the difficulties of estimating in money terms compensation for the loss of most of life's pleasures, and for the constancy of pain, loss of mobility and, in this case, as a specific and uncommon consequence, the inability to express affection in conventional sexual activity. All of these disabilities are due to this accident. He faces a bleak life of pain and incapacity, deprived of the ability to either work or play. The impact of these losses on a man lacking intellectual interests is inevitably severe. He was 46 years old when the event occurred. In modern terms, he has a statistical expectation of life for about another 25 years. I assess damages for pain, suffering and loss of enjoyment and amenities of life for the past and future at $190,000.
I turn next to damages for economic loss. Many of the fundamentals to enable the task of assessment under this head were agreed but a number of key matters were not. The parties, for the purpose of arriving at past losses, apparently accepted that the plaintiff would have earned $20,000 net wages annually between the date of the accident and the date of the trial. There was no agreement as to future wage rates although the difference between the parties on this aspect was defined.
I was informed by counsel that the plaintiff had received "workers compensation" payments totalling $85,539. It was also said that the Fox v. Wood component was quantified at $27,666, and that the net wage loss from the date of the accident to this date was $69,706. Thus I deem that the proper approach is to allow the plaintiff the aggregate of the past loss and the Fox v. Wood component as part of his damages but to order or offset that the sum of $85,539 be repaid to the employer's insurer. I will take this up with counsel.
The next matter to be addressed is that part of the damages that relates to future money losses. No one suggested that any allowance should be made for future medical and pharmaceutical expenses. There were then but two elements to be considered, namely damages for lost earning capacity and damages for lost superannuation benefits. Although the issue is one of lost earning capacity, this is not an arid debate about a concept. The lost earning capacity that is to be compensated is not an abstract either, but is that earning capacity which when destroyed or diminished, leads to financial loss. See Graham v. Baker (1961) 106 C.L.R. 730 at 347; Wilke & Co. Pty. Ltd. v. Ring [1999] VSCA 72. See also the observations made in Todd v. Melbourne Airport Centre [1998] VSCA 90.
I have had the benefit of some actuarial evidence, to enable the Court, as part of the exercise in deciding the appropriate sum to be allowed under this head of damage, to estimate as an arithmetical exercise at any rate, what the loss might be on the basis of an assumed wage loss to a particular age, discounted for present payment. There is one further element to be added to the exercise usually here performed, namely that there has been enacted legislation to reduce the marginal rate of taxation on specified income levels, to offset the Government gains in revenue as a consequence of the introduction of the goods and services tax, from 1 July 2000. Mr. Thorburn, the actuary called to give evidence, was in a position to take the drop in the applicable tax rate at the relevant levels into account. His evidence was in substance as follows and it was not challenged. The figures sought to be adopted for annual net wages in the future were: (1) put by the defendant, $20,000 per annum net (i.e. after tax) and (2) $24,170 per annum net (i.e. after tax) put by the plaintiff. Both figures had been adjusted to account for the new tax rates. The parties agreed that, for this purpose, these elements of economic loss should be founded on that range or band i.e. (20,000-$24,170 net). The evidence was to this effect:
(A) Assumed working life to ages 55, 60 and 65 on $20,000 net,
discounted at 3%
Age 55 $104,293
60 $182,905
65 $250,747
(B)On $24,170 net, discounted at 3%:
Age 55 $126,038
60 $221,041
65 $303,028
These figures take into account mortality but no other vicissitudes, such as unemployment or inability to work due to ill-health, or some other reason. Mr. Dowling submitted a discount of 20% for vicissitudes should be made. Counsel for the plaintiff made no submission as to that. I do not refer to the well-known cases concerning vicissitudes, but approach the issue on the basis that not all vicissitudes are unfavourable.
The critical matter to be estimated is what was the earning capacity of the plaintiff from now likely to have been, had he remained uninjured. The evidence revealed that he enjoyed the job and was desirous of promotion, to be paid more. He had, as I conclude, developed a good understanding of vineyard practice. He was described as honest and reliable. Mr. White, the human resource witness, thought that a change into a different vineyard, a new sphere of opportunity, might lead to him achieving more than his role at Chateau Tahbilk. This was based on the witness' Mildara-Southcorp knowledge, and his conclusion that he plaintiff's reliability and experience would be sought after. However, whilst I do not hold the view that the plaintiff could not have added to his skills and knowledge, I am unable to reach the conclusion that he would have progressed to any managerial position. He was then 46, but he had only been three years at this job. His education level was not high and there is nothing much to suggest that he had organisational and administrative skills that would be necessary for such a position. His ability to give direction and guidance to vineyard staff would, I believe, be limited by his poor communication skills and lack of background training. However, he was likely to have retained his position with the possibility of some increase in status and pay. The difficulty of estimating what his future working life would have been is not as great as in some cases, as he had made a major and probably permanent change of direction in his middle forties. What is more difficult to estimate is the extent of his working life and the events which might have impacted on it. It was not suggested that he was capable of any work and I find that he is not.
I bear in mind, with respect to these aspects, statements of the High Court of Australia in Malec v. J.C. Hutton Pty. Ltd. (1990) 160 C.L.R. 638 at 316 and Sellars v. Adelaide Petroleum Pty. Ltd. (1993-4) 179 C.L.R. 332.
In Malec (supra) Deane, Gaudron and McHugh, JJ. stated (643) contrasting the approach to events which would have or would have not occurred, or might or might not yet occur with events which have or have not occurred:
"The future may be predicted and the hypothetical may be conjectured but the questions as to the future are hypothetical effect of physical injury or degeneration are not commonly susceptible of scientific demonstration or proof. If the law is to take account of future hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring ... where proof is necessarily unattainable, it would be unfair to treat a certain prediction which is a 51 per cent probability of occurring, and ignore altogether a prediction which has a 49 per cent probability of occurring. Thus, the Court assesses the degree of probability that an event would have occurred or might occur and adjust its award of damages to reflect the degree of probability."
In Sellars Mason, C.J. Dawson, Toohey and Gaudron, JJ. stated (350):
"In Malec v. J.C. Hutton Pty.Ltd.. ... this Court drew a distinction between, one the one hand, proof of historical facts - what has happened - and, on the other hand, proof of future possibilities and past hypothetical situations. The civil standard of proof applies to the first category, but not to the second, particularly when it is necessary to determine future possibilities, and past hypothetical situations for the purpose of assessing damages."
The broad approach with respect to future events is therefore one of evaluating the chance of the occurrence of particular events relevant to the assessment of damages, not in terms of probability stricto sensu, but by having regard to the degree of the likelihood of its occurrence, including only the possibility of it occurring, and to reflect that degree of likelihood in the award of damages. See also Adams v. Jenkins (Supreme Court of Victoria, Appeal Division, unreported, 19th May 1992).
I further remind myself that the figures are models proposed by the actuary founded upon reasonably realistic assumptions as to rates of pay. They are no more than a guide for the task of assessment of damages. Even damages for lost earning capacity must include some elements of judgment and impression. An award of damages may not be lawfully arrived at intuitively and it is my duty to indicate at least part of the process of reasoning that underpins the elements of judgment that are reasonably applied to the task. See Gamser v. Incorporated Nominal Defendant (1997) 136 C.L.R. 145 at 147-14. This I have already attempted to do as to the likelihood of advancement. As to the assumed age of cessation of work, the parties' counsel were understandably well apart. It is absurd to assay fine-tuned prediction about this. One can but make an "informed estimation", to use the words of Brennan, J. in Sellars. Broadly speaking, it is my impression that persons do not work on for as long as they used to. On the other hand, their health is better maintained than of yore. I am inclined to the view that the plaintiff's net wage would be close to $24,000 (not a great sum for the hours worked) and that he was likely to have worked a little beyond 60 years of age. Without regard to vicissitudes I would estimate compensation for lost earning capacity at about $270,000. An allowance has to be made for the risks of ill-health, unemployment and misfortunes which may have impacted on his earning capacity in any event. An allowance of 15% seems to me to be appropriate. I round off the sum for this head as $230,000. I note that if one ran the net figure of $24,000 to age 65, but allowed 20% for vicissitudes, the figure is almost the same, $230,000.
The final specific head of loss to be considered is lost superannuation benefits which themselves have to be worked upon gross earnings as the superannuation contribution is based on total, not net, earnings. The variance on $25,000 gross as against $20,000 gross is, on the actuarial evidence, only about 1%. I therefore find the loss to be $5,350 for the past. The future superannuation loss would have to be based on the same net band as was applied in respect of lost earning capacity, $20,000-$24,170. I apply the same broad finding, that the plaintiff would have earned about $24,000 net a year to about 62 or so. The figures presented by the actuary would warrant a sum of $22,500 or thereabouts (see the evidence of Mr. Thorburn T205-206). Thus I allow $28,000 for lost superannuation benefits, past and future.
The components of the assessment of damages are therefore as follows:
(i)Past loss of wages, including Fox v. Wood
component($85,539 to be repaid) $ 97,372
(ii)Non-economic damages for pain, suffering
& loss of enjoyment of life $190,000
(iii)Damages for loss of future earning
capacity$230,000
(iv)Lost superannuation benefits $ 28,000
$545,372
I will hear counsel on the form of the order and costs.
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CERTIFICATE
I certify that this and the 30 preceding pages are a true copy of the reasons for judgment of Hedigan, J. of the Supreme Court of Victoria delivered on March 2000.
DATED this day of 2000.
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Associate
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