Johnson v Kerman Contracting Ltd - [2004] WADC 160

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: JOHNSON -v- KERMAN CONTRACTING LTD [2004] WADC 160

CORAM: DEANE DCJ

HEARD: 28-29 JUNE 2004

DELIVERED : 28 JULY 2004

FILE NO/S: CIV 1629 of 2001

BETWEEN: LEE JOHNSON
Plaintiff
AND
KERMAN CONTRACTING LTD
Defendant

Catchwords:

Assessment of damages for past and future economic loss - Plaintiff 19-year-old at time of accident in November 2000 - No longer able to work as a rigger - Whether plaintiff would on balance of probabilities have continued to work in pre-accident occupation or pursued tertiary studies as he is currently doing - Basis for calculation of loss - Turns on own facts

Legislation:

Nil

Result:

Damages assessed

Representation:

Counsel:

Plaintiff: Mr D R Clyne
Defendant: Mr M W Schwikkard

Solicitors:

Plaintiff: Chapmans
Defendant: Jackson McDonald

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

Fox v Wood (1981) 148 CLR 438
Jongen v CSR Ltd (1992) Aust Torts Reports 81‑192
Malec v JC Hutton Pty Ltd (1990) 169 CLR 638

Case(s) also cited:

Black v Motor Vehicle Insurance Trust [1986] WAR 32
Bowen v Tutte (1990) Aust Torts Reports 81-043

DEANE DCJ: In this matter liability has been admitted. The plaintiff was injured whilst working for the defendant as a rigger on a construction project in Deniliquin, New South Wales, on 16 November 2000. The plaintiff had turned 19 years of age on 2 November 2000. Whilst the plaintiff was involved in helping to set up a 100 tonne crane some outriggers slipped unexpectedly and very rapidly, causing the crane body to slide sideways catching the plaintiff across the left lower limb and foot. He was trapped by his foot and ankle for approximately an hour before he could be freed and transported to the local hospital before then being evacuated to a hospital in Melbourne for further treatment. The nature of the injury to the lower left limb resulted in a below knee amputation which was carried out successfully and without further complication.
The parties have reached agreement in relation to each of the heads of damage claimed (save for past and future economic loss) in the sum of $500,000. As a result of these proceedings it falls to the Court to assess damages in respect of past and future loss of earning capacity.
It is common ground that the plaintiff is unable to return to work as a rigger in the construction industry and this is confirmed by a number of medical reports from Mr R J Beaver, an orthopaedic surgeon, contained in exhibit 10. In a report dated 16 June 2004 Mr Beaver notes that in the report of Dr Anne Brady, exhibit 13, that she has similar concerns to those of Mr Beaver with regard to the plaintiff working at heights. There is a substantial risk that the plaintiff would lose his footing and fall and as a result he would be a risk both to himself and co‑workers. As an amputee the plaintiff is at greater risk of developing degenerative arthritis in his residual limb and the non‑amputated limb suggesting that he would be best served by engaging in alternative occupations to labouring. The plaintiff was noted to lack proprioceptive power in the left leg and as a result it would not be safe to him to climb ladders due to decreased gross motor function in his left foot and decreased sensation proprioception left foot which in turn renders it difficult for the plaintiff to balance on his left leg.
Relevant to the area of damages to be assessed the plaintiff's case was put on the basis that but for the accident he would have continued to work as a rigger indefinitely, and indeed, to retirement at age 65. It was submitted the employment with the defendant was permanent in the sense that the plaintiff was not deferring entry to university to study, but rather whilst that option was open to him it was not one that up until the time of his accident he had any desire to pursue. On the other hand the defendant submitted that it is more likely than not but for the accident the plaintiff would in all probability have ceased working for the defendant and commenced a university degree in 2001 completing it within the normal time frame. As counsel for the plaintiff pointed out this case is somewhat unusual in the sense that at the time of the plaintiff's accident his brother, Jay Johnson, who was two years older, had actually commenced work with the defendant and was on site on 16 November 2000. Jay Johnson has largely remained employed with the defendant since that time and in the course of that employment has obtained a number of tickets. On the other hand, the plaintiff's oldest brother, Corey Johnson, completed a commerce degree at university and now works in property management. For that reason, counsel for the plaintiff pointed out that the Court has before it two very clear examples of what the plaintiff's future career or working path might have been (including his earnings) had he remained either working with the defendant as the plaintiff submits he would have done, or pursuing tertiary education in the form of a commerce degree as the defendant submits in all likelihood would have occurred. Finally, it should be noted that the plaintiff's father, Mr Gerald Johnson, has worked for the defendant for approximately 21 years and now is a site construction manager for the defendant at their Worsley site.
Counsel for the defendant contends that the evidence of Mr Gerald Johnson has little bearing upon the plaintiff's situation and what the plaintiff would have done on the balance of probability, because he works on staff with the defendant as distinct from being a contractor unlike his sons Jay Johnson or the plaintiff.

The evidence

The plaintiff was born on 2 November 1981 and he is now 22 years of age. He attended City Beach High School and did his TEE at the end of year 12 but did not do well enough at that time in order to gain entry to university. Whilst the plaintiff did not have those actual results in terms of his TEE score, his statement of curriculum council results for year 12 in 1998 shows a range of marks from 46 per cent for human biology to 69 per cent for English, exhibit 1. The plaintiff's evidence, which I accept, was that he had no idea whatsoever what he wanted to do by way of a career path upon leaving school at the end of 1998. When he did not gain entry to university at that time, he had no particular plan regarding his future and given his age he was simply enjoying life and socialising. He was a keen sportsman and enjoyed playing football and cricket socially. In addition he played some pre‑season games or engaged in some pre‑season training with the Claremont Football Club.
Over the summer vacation of 1998 and into early 1999 the plaintiff worked with his brother Jay who is a qualified plasterer. Although the plaintiff still had no real or firm idea as to what career path he wanted to pursue, it was decided that he repeat his TEE at Tuart College in order to see whether he could improve his score, the inference being that if this could be done it would widen his options in terms of career opportunities. Again, whilst the plaintiff did not have his exact TEE score results for that second occasion, they had apparently improved to the point where he could gain entry to either Edith Cowan University or Murdoch University.
It would seem again at that point the plaintiff still had no firm idea as to what he wanted to do in his working life. After his TEE exams were completed in November 1999 he had approximately one month's holiday and then his father organised for the plaintiff to do some work with the defendant. It should be noted that this was possible because by then the plaintiff had turned 18 years of age and as I understood the evidence the defendant will not employ workers under 18 years of age. The plaintiff commenced work with the defendant on 17 January 2000 and initially said in his evidence that at that point he did not believe he had received his TEE results although a little later in his evidence he was unsure about that. He did say, however, that when he did receive his TEE results he still had no real intention of using the option, being as I understood it a reference to an option to gain entry to university and pursue tertiary studies.
The plaintiff did some labouring work on a construction site in Leeton, New South Wales as well as on site in the south west of Western Australia. During this period the plaintiff did his basic rigger's ticket. According to the plaintiff's evidence he was earning approximately $1,200 per week net for working about 70 hours a week. He was very busy working and earning what he considered to be a good income. He was enjoying himself in his occupation at various construction sites and took the opportunity to also obtain his dogman and elevating platform work tickets. At the time of his accident the plaintiff's evidence was that he intended doing further study to obtain additional tickets in order to become what he described as a complete construction worker like his older brother Jay Johnson.
There was a period of inactivity in September and October 2000 when the plaintiff was not working for the defendant but he commenced working for them once again as a rigger and dogman at the job in Deniliquin where as has been previously noted he was injured on 16 November 2000.
The plaintiff gave evidence that whilst he was hospitalised following the accident, members of his family arrived and after discussion it was decided that the plaintiff should put his TEE scores in again for the following year. Counsel for the defendant placed considerable emphasis on the fact that the plaintiff used the word "again" in his evidence. But on a review of the whole of the evidence I do not see that the use of this word has any particular significance. There is no evidence so far as I am able to ascertain that the plaintiff had actually applied for entrance to university in any particular course including teaching. He said that he thought he got a place for a teaching degree at Edith Cowan University but he was not sure so he put down a number of different options. In my view the decision which was made at that time is entirely understandable, in that it was no doubt evident at that point that there was little or no likelihood of the plaintiff being able to return to a labouring job or the job of a rigger and dogman. No doubt it was of considerable importance to make a decision as to what alternative course of action was open to the plaintiff by way of employment given that his prior job was no longer a viable option. When asked why he chose to enrol to study for a commerce degree the plaintiff said he did not know why but he had to make a choice and that was it at the time in hospital.
The plaintiff applied for and was accepted into a commerce degree course at Curtin University, which he commenced in early 2001. His evidence was that since that time he has withdrawn on a number of occasions from a few units of study because he felt in need of a break. He withdrew in the first semester between March and June 2003, but returned to study and currently is in the property stream of the course, which incorporates economic and finance units. Exhibit 3 is a record of the plaintiff's academic result records from Curtin University business school. All things being equal the plaintiff hopes to complete his degree in November 2005, approximately 18 months from trial, but at this point he has no clear or firm plans as to what he wishes to do with his degree. He made it plain in his evidence that once he has completed his degree he has no intention of embarking upon further study or post graduate study. It would appear he has not yet done or completed all the property units within the course and believes that his average mark to date is around 61 per cent. Further he has not done any valuation units as yet in the course so does not have a sense of all aspects of property at the current time. Generally the areas that are covered in the course relate to property management, leasing, sales and valuation. His most realistic options for future employment with a degree of this nature are in sales and management of property or valuation of property.
Exhibit 4 are copies of the plaintiff's taxation returns for the years 2000 and 2001 bearing in mind that he did not work for the defendant for a full financial year at any point.
The plaintiff told the Court that achieving academically in the sense of obtaining very good results, had never been a goal for him and that he was more than willing to accept work with the defendant when a job became available. Whilst working for the defendant he was paid on a fortnightly basis putting his hours on an invoice. The plaintiff was not paid either sick leave or holiday pay but rather paid at an all inclusive rate, although he was paid a superannuation levy over and above this. The Court was informed that a superannuation levy was paid up until 20 May 2004. Between January 2000 and 5 December 2000 according to exhibit 5, the defendant's creditors ledger with respect to the plaintiff, he was paid or earned $45,124.50. According to his tax returns the plaintiff's earnings for the period 17 January 2000 when he commenced work with the defendant to 30 June 2000, which was the end of that particular financial year, being a period of approximately six months, the plaintiff earned $33,626 gross or $25,159 net.
The plaintiff's older brother Jay Johnson was born on 30 November 1979. He, however, left school at 15 years of age in order to undertake an apprenticeship in plastering, which he completed over a four year period. He then worked in that industry for approximately two years before commencing work with the defendant on 16 November 2000. He currently works for the defendant as a rear crane driver and during his period of employment has undertaken and obtained all three of his rigger's tickets. Exhibit 6(1)‑(3) are copies of Jay Johnson's tax returns for the years 2001, 2002 and 2003, which indicate that generally he has earned a similar income in each of those three financial years.
His evidence was that between July 2003 and June 2004 he did not work for the defendant for the whole of that financial year. His recollection was that he decided to undertake some plastering work for a period of approximately five months of that year and earned in the vicinity of $1,000 per week gross as a plasterer for that period. It is understood that his decision to do this was for reasons other than there was no work available for him with the defendant. In the financial year 1 July 2002 to 30 June 2003 Jay Johnson earned approximately $69,000.
Corey Johnson was born on 3 October 1974 and is now 29 years of age. His current occupation is as a leasing negotiator for C B Richard Ellis. Corey Johnson completed his TEE over a two year period and then attended university for approximately one semester before withdrawing and working in a variety of jobs, including that as a labourer for the defendant for approximately three to four months. He also gave evidence that he had worked for the defendant during university vacations when work was available.
After some thought, in late 1994 Corey Johnson decided to return to tertiary studies and did so at the beginning of 1995. He completed a commerce degree at Curtin University, which involved commercial leasing and retail in 1999 and commenced work in the property industry in approximately April or May of 2000. According to his evidence, obtaining employment in the property industry, at least in his experience, was not without difficulty as it is a somewhat competitive industry and it was his belief that his contacts in the football world where he played on a regular basis for a W.A.F.L. team were of assistance to him in gaining a foothold in his chosen field. Exhibit 7(1)‑(3) are copies of Corey Johnson's tax returns for the year 2000, 2002 and 2003. His evidence was that he has been unable to find his tax return for 2001. He believed he earned about $30,000 gross in that year and in the following financial year he earned $32,110 gross which did not take into account earnings of $10,700 as a result of playing football. In the most recent financial year being 1 July 2003 to 30 June 2004 he anticipates he will earn approximately $43,000 gross as a result of his work in the property industry, which he has now been engaged in for approximately five years.
Corey Johnson explained that in his experience when one finishes a degree in commerce with an emphasis on property, it is usual that one undergoes a period of training either in valuation or property management, the latter of which is perhaps more lucrative as one begins with a portfolio of properties. He also explained that in order to obtain a job as an on site commercial property manager one would have to be both very senior and experienced in the industry. This evidence was in relation to a document, exhibit 8, entitled "People in Property". Reference to a chart on p 2 of exhibit 8 indicates a range of salaries in respect of various positions connected with the property industry. Relevant to this matter emphasis was placed on the position of commercial property manager (portfolio) where a graduate earns between $25,000 to $30,000 per annum. After two years experience that salary increases to a range of $35,000 to $45,000 per annum and further increases to a range between $45,000 and $65,000 per annum with five years experience. With five to ten years experience it is possible for a person in that position to earn in excess of $65,000 per annum and with 10 years or more experience it is possible to earn an annual salary of $70,000 or perhaps more. On the other hand, it would appear one cannot hope to be in a position as a commercial property manager (on‑site) until one has at least between three and five years experience. When the job is available, an annual salary of $65,000 or in excess of that amount may be earned and then finally after 10 years or more experience, and providing that a position is available, it is possible for one to earn in excess of $100,000 per annum.
Relevant to the position of a valuer or of a person working in the valuation field, a trainee valuer earns between $20,000 and $25,000 per annum. With two years experience this amount can increase to between $25,000 and $35,000 per annum, but thereafter it would seem that the career path, at least in terms of trainee earning ends. If one then becomes a licensed valuer, with three to five years experience a salary of between $45,000 and $55,000 per annum can be earned. With five to ten years experience as a licensed valuer it is possible to earn between $55,000 and $75,000 per annum or more and this amount can increase to $75,000 plus per annum with 10 years experience.
In looking at exhibit 8 it can also be seen a graduate property manager for residential strata premises begins on a salary of $25,000 to $27,000 per year. This gradually increases in both areas after 10 years plus experience to between $40,000 and $45,000 per year. After more than 10 years experience, however, an assistant property manager in either of these areas can anticipate earning $32,000 or more per year..
Gerald Johnson, as has been previously noted, after 21 years employment with the defendant is an on‑site manager for the company at Worsley. His evidence was however that he commenced employment with the defendant as a rigger much as the plaintiff did, and also worked for the defendant in the capacity of a crane driver and boilermaker. Exhibit 9(1)‑(3) are copies of Gerald Johnson's tax returns for the financial years 1998, 1999 and 2002. In those years respectively he earned $91,241 gross, $92,028 gross and $112,456 gross. His tax return for the financial year 1 July 2003 to 30 June 2004 for obvious reasons was not available, but his evidence was that he estimated his income for that period will be in the vicinity of $100,00 gross.

Assessment of damages – past and future economic loss

In this matter it is very difficult to know with a degree of exactness or precision what would have occurred in the future, especially where one is considering a situation involving a young person almost at the beginning of their working life, who unfortunately sustains a serious injury. As was noted in Malec v JC Hutton Pty Ltd (1990) 169 CLR 638:
"In assessing damages where questions arise as to the future or hypothetical effect of physical injury or degeneration, the degree of probability of the occurrence of associated future or hypothetical events will be evaluated by the Court (except in the extreme cases of mere speculation or of practical certainty). Where proof is necessarily unattainable, the Court assesses the degree of probability that an event would have occurred, or might occur, and adjusts its award of damages to reflect the degree of probability, leading to an increase in or a decrease of the amount of damages otherwise to be awarded. The approach is the same whether it is alleged that the event would have occurred before, or might occur after, the assessment of damages takes place."
In essence the Court is placed in a position where the best that can be done is to make an assessment on the balance of probabilities as to what would or would have occurred in all likelihood in the future.
Counsel for the defendant provided the Court with a set of detailed and thoughtful assumptions or scenarios, some of which were based on the premise that defendant's submissions would be accepted, whilst others were based on the plaintiff's case and position, with a further scenario adopting what might be conveniently described as a "compromise" position.
At the outset I consider that the plaintiff gave his evidence in a direct and balanced manner, as a result of which I considered him to be a credible and reliable witness. It must be noted that it was never the defendant's case or submission that the plaintiff presented otherwise. In all of the circumstances in reviewing the plaintiff's evidence and taking into account his presentation however, I cannot accept the defendant's submission that the plaintiff's statement regarding his future vocational intentions was unreliable in the sense that it was subconsciously self‑serving. I do not consider that the plaintiff consciously or subconsciously attempted to enhance his evidence in this manner.
In my view considerable regard must be had to the fact that at the time of his accident the plaintiff was working as a rigger, having obtained a number of relevant tickets within the construction industry which I consider to be a clear indication of his commitment to his employment with the defendant and indeed an indication of his desire to work within the construction industry in order to maximise his opportunities within the industry by way of career advancement and consequently to obtain financial reward. It is also the case that as at 16 November 2000 the plaintiff had not enrolled nor had he attempted to enrol in any tertiary study course at any university, including Curtin University to undertake any form of study. Although the plaintiff, having repeated his TEE year, obtained scores which would enable him to gain entry to university and be accepted into a number of courses, this does not by any means indicate that this is what the plaintiff intended to do. I accept the plaintiff's evidence that academic achievement was not a priority for him, as evidenced by his relatively poor TEE score at the end of 1998 and his moderately improved score at the end of 1999. It is also of considerable importance in my opinion that at the end of his first TEE exams the plaintiff had just turned 17 years of age and therefore would not in any event have been able to obtain full‑time employment with the defendant because he was not yet 18 years of age. That opportunity did not arise until the end of 1999, when as can be seen, he obtained employment through his father with the defendant and continued in that capacity up until the time of his accident.
In assessing on the balance of probabilities what would have occurred in the future in the sense of would it have been more likely that the plaintiff would have followed the career path adopted by his brother Jay, or that adopted by his brother Corey, in my opinion, again based on all of the evidence, the plaintiff would have followed the path of his brother Jay. This is so even though Jay left school without having attempted or completed his TEE exams. The distinct impression given by the evidence of Corey Johnson is that whilst he worked from time to time for the defendant among other entities, in the end result he was quite committed to pursuing tertiary study and that is exactly what he did. Furthermore, unlike the plaintiff it would seem that Corey Johnson had a particular and understandable desire to remain in Perth or at least the metropolitan area given that he regularly played in a WAFL team earning in excess of $10,000 a year for this endeavour. Given the finding in relation to the view that it was more probable than not that the plaintiff would have pursued a career path in the construction industry, as his brother Jay has done, I am minded to generally accept the propositions and calculations put forward on behalf of the plaintiff as a basis for assessing damages relevant to past and future economic loss.
Where it is applicable I accept that it is appropriate to use figures from Jay Johnson's tax returns in exhibit 6, albeit that the return for the financial year July 2003 to June 2004 is not available. It is also necessary to consider the plaintiff's earnings at least for part of the financial year he worked for the defendant from 17 January 2000 to 30 June 2000. The documentation reveals that he earned $33,626 gross during that time, which when tax is deducted results in a figure of $25,159 net for a period of 24 weeks, averaging therefore $1,048 net per week. It is the case that during September and October 2000 the plaintiff was not employed by the defendant due to unavailability of work, but I accept the submission that certainly by November 2000 the plaintiff had recommenced work with the defendant as indeed had his brother Jay. Whilst at that time the plaintiff was two years younger than his brother Jay, on the other hand the plaintiff had more experience in the sense that by November 2000 the plaintiff had eight months more experience in the construction industry and had gained a number of tickets. In that situation Jay earned thereafter $28,689 gross, which after tax gives a net figure of $20,907, and when divided by the period of 32 weeks results in an amount of $653 net per week.
I accept that Jay Johnson's situation provides a relatively precise model or example of probabilities relevant to what the plaintiff's earnings would have likely been after November 2000 and for this reason I accept the figures contained in Jay Johnson's tax returns for the years 2002 and 2003. I consider this to be a somewhat conservative approach relevant to the plaintiff's situation because, as has been pointed out, at the time the plaintiff would have been more experienced than Jay Johnson and he had a number of tickets which would have resulted in a slight increase per hour or hourly rate paid.
Adopting this approach, in 2002 Jay Johnson by reference to exhibit 6 earned $84,324 gross ($55,997 net) or $1,077 net per week. In 2003 he earned $69,131 gross ($48,223 net) or $927 net per week. As has been stated the tax return for Jay Johnson for the financial year 2003‑2004 is not yet available and it is the case that he worked for seven of the 12 months of that year in the plastering industry. During that time he earned $45,000, gross which would on a 12 month basis, all things being equal, result in earnings of $77,142 gross. In the circumstances, because a relatively conservative approach has been adopted for previous years, I am not persuaded that there should be a small deduction for contingencies relevant to the financial year 2003‑2004. On this basis I accept that it is both reasonable and fair to assume for the purpose of this exercise an average net weekly earning of $1,000.
Using the figures from the relevant documentation in exhibit 6, past economic loss is calculated in the following way:

(a) 16 November 2000 (date of accident)
– 30 June 2001 (end of relevant financial year)
= 32 weeks at $653 net per week = $ 20,900

(b)   1 July 2001 – 31 July 2004 (rounding it up
to end of month closest to delivery of judgment)
= 160 weeks at $1,000 net per week =   $160,000
=   $180,900.

(c) Interest at 3 per cent per annum;
Loss $180,900
Less amount paid by way of workers' Compensation $125,500
$ 55,400

$55,400 x 3% x 192 weeks = $ 6,144
(d)Fox v Wood (1981) 148 CLR 438
component relevant to income tax paid agreed at $ 27,994

Total $214,138

Past superannuation

As previously stated the defendant has continued to pay superannuation on the basis of the plaintiff working 40 hours per week earning $706.23 gross per week. I accept that the fairest and most appropriate way to deal with this issue of loss is to proceed on the basis of the difference between the gross earnings of $1,475, based on the median earnings of Jay Johnson being the difference between $84,324 and $69,131 which equals $76,728 or $1,475 gross per week and the sum of $706.23 gross per week.
Taking this formula into account the loss for the period 16 November 2000 (date of accident) ‑ $36,202 at 8 per cent, being a period of 84 weeks is:
$1,475 ‑ $706 (rounded down to the nearest dollar) x 8% x 84 weeks x 70% (to take into account the formula in Jongen v CSRLtd (1992) Aust Torts Reports 81‑192) = $3,617.
For the period 2003 – 20 May 2004 = 98 weeks
The loss for this period is therefore $1,475 ‑ $706 x 9% x 98 x 70% = $4,748.
For the period 20 May 2004 – 31 July 2004 (being end of month closest to date of judgment) = 10 weeks
$1,475 x 9% x 70% x 10 = $929
Total past superannuation = $9,294
Plus interest at 3% per annum for 192 weeks = $1,029
Past superannuation including interest = $10,323
In this case I have carefully considered submissions as to whether or not a reduction relevant to past contingencies should be applied. Whilst I accept that there are arguments for doing so, in my view they are outweighed in the circumstances of this particular matter because it is the case that conservative figures have been used in the submissions on behalf of the plaintiff and regard has not been had (in the sense that it has not been factored into the equation) that there is a very distinct possibility that the plaintiff was likely to have earned more than his brother Jay in 2001 due to the plaintiff's superior experience at that stage had he continued working. Also, I do note as submitted by counsel for the plaintiff and accept that in the opinion of Professor Mulvey, exhibit 12, there has been an increase in average earnings in excess of 13 per cent between August 2001 and February 2004 and again this increase has not been factored into the proposed calculations. In my view this in a sense can be said to balance the need for reductions by way of past contingencies.
Relevant to the calculation of future economic loss, as previously stated I accept on the balance of probabilities that the plaintiff would have continued to work as a rigger and taking into account matters both positive and negative with respect to availability of work within the construction industry he would have earned in the vicinity of $1,000 net per week. I consider that in calculating future economic loss it is appropriate, as submitted by counsel for the plaintiff, to base those calculations on figures contained in exhibit 8 where relevant.
It is the case that the plaintiff is now only 22 years of age and has approximately 18 months of study before him in order to complete his current degree. It is also a fact that his final career path has not yet been decided, although clearly on current indications it will lie within the property area whether that is in some role as a manager or a valuer, is a little uncertain at this time. It is also the case that based on the experience of the plaintiff's brother Corey Johnson, finding employment in the area of property can at times pose difficulties as indeed it did for Corey Johnson. On this point I note Professor Mulvey's observations in exhibit 12. In a report of 10 June 2004 Professor Mulvey considered the occupation of property manager in some detail. Regarding the issue of job availability and referring to relevant documentation, Professor Mulvey came to the view that the employment outlook for property managers is sound and that job competition for new entrants to the occupation is rates "not too hard" while job competition for experienced workers is rated "easy". He further states:
"A good number of vacancies for property managers arise on a regular basis. Accordingly, suitable candidates for property manager positions ought to be able to obtain employment within a reasonable period of time."
In considering the category of real estate valuer as an occupation Professor Mulvey notes that:
"For employment forecasting purposes real estate valuers are included within the occupational group valuers and land economists."
He notes that according to the Australian Property Institute there are approximately 550 licensed land valuers in Western Australia and that buoyant activity in real estate sale, together with new building and land projects have provided impetus to demand in this occupation so that job prospects in the area are rated as good. Employment growth for valuers and land economists to approximately 2009‑2010 is expected to be strong as employment in the occupation rose very strongly in the past five years. In the end result a suitably qualified individual in this area seeking employment should not encounter great difficulty in securing employment within a comparatively short period of time.
Despite the current positive outlook for employment in these fields it will still be another 18 months at best before the plaintiff finishes his degree and it is not certain how well he will do in relation to his final results. Given these factors and that it is still a somewhat competitive industry, I do not consider it unreasonable to assert it may take the plaintiff in the order of 6 months to obtain employment after he finishes his degree. I am persuaded also that on commencing employment, in whatever sphere he chooses to work or is able to find work, initially the plaintiff will commence on a wage that is certainly considerably less than the wage he was earning prior to his accident and this must be taken into account.
I accept, because in my view it is a fair and balanced approach, given the basis of the calculations that the median figures be used, therefore on the basis that most graduates earn between $25,000 and $27,000 for the first two years, that is a median of $26,000 or $500 gross per week or $413 net per week. Thereafter, with two years experience, the median would be approximately $30,000 per year or $576 gross per week, or $458 net per week. Then, for between approximately two and four years experience a median of $41,600 per year or $800 gross per week, or $619 net per week could be anticipated. After four years experience before one could reach what might be termed the optimal earning capacity in the property area as evidenced by the relevant categories in exhibit 8, one would require at least another six years experience to reach the ten year plus experience level where the median of $52,000 per annum or $1,000 per week gross or $755 net per week has been used as a basis for calculation.
In each of these categories, save for the first, one then looks at the difference between $1,000 net per week, which is effectively what the plaintiff was earning prior to his accident and would at the very least would have anticipated continuing to earn, and the net earnings for various years and levels of experience within the property industry.
The calculation for future economic loss can then be quantified as follows:
(a)Loss for 2 years mid 2004 – mid 2006 at $1,000 per week whilst studying and before employment (multiplier 98.5) = $98,500.
(b)Then for 2 years, difference between $1,000 per week and $413 per week (years 2‑4).
$587 x 87.7 (multiplier for 4 years 186.2 minus multiplier for 2 years 98.5) = $51,480.
(c)For a further 2 years difference between $1,000 and $448 (years 4‑6)
$542 x 78 (multiplier for 6 years 264.2 minus multiplier for 4 years 186.2) = $42,276.
At this point the plaintiff will have acquired approximately four years experience as a property manager or valuer. If one assumes a further six years experienced (being years 6‑12 in order to reach the 10 year experience level) multiplier for 12 years being 450.5 minus multiplier for 6 years being 264.2 = 186.3) at the difference between $1,000 and $755 being $245 the loss then becomes:
$245 x 186.3 = $45,644.
I accept that the relevant figures in exhibit 8 indicate that after approximately 10 years experience in the property industry, the likelihood is that the plaintiff would still be earning less than he could earn as a rigger had he continued in the construction industry and gained the range of tickets he anticipated gaining. At that point in time the plaintiff would be approximately 35 years of age.
Counsel for the plaintiff submits that a further lump sum should be awarded to the plaintiff by way of damages, to take into account this matter and to award him for what counsel describes as a "lack of competitiveness". The argument is that for approximately 30 years thereafter until the plaintiff reaches retirement age, he is likely to be at a financial disadvantage because he would not be able to reach the income earning capacity in employment within areas of the property industry that he would have reached were he to have remained within the rigging industry. Further it is argued that his disability means that there is the potential that even within the property industry the plaintiff may well not be able to compete as well as he might otherwise have done. In this regard counsel points to a possible need for future surgery and the possibility of degeneration. Reference is made to Mr Beaver's report of 16 June 2004 where it is noted:
"The prognosis is very good for this young man who is well motivated and is making a successful outcome for his amputation. I do not feel that his situation is likely to change significantly in the near future apart from the concerns by Dr Brady that degenerative conditions may occur in the ipsilateral limb or the contra‑lateral limb or even in the lower back. His overall function should remain as it is at present for the foreseeable future."
It is also the case that the plaintiff, according to that report, has residual minor stump problems, some of which may be related to the fibula being of excessive length, although he has no significant phantom limb pain. The plaintiff's overall physical functioning according to Mr Beaver is excellent, but is subject to limitations in the ability to run for more than short bursts, to squat and ascend ladders as well as an exercise tolerance limited to some extent by stump pain. These limitations are in Mr Beaver's view expected to continue indefinitely. Overall, in my view the plaintiff has made an excellent recovery and is a young, fit individual who is highly motivated. It may well be that in the future he will suffer a degree of lack of competitiveness but on the information currently available I am not persuaded that it would be significant. I consider therefore that a global award of $20,000 would adequately address this aspect of the claimed damages. In light of the amount of this award I am not persuaded that it would be appropriate to reduce it for contingencies as they have already been taken into account in arriving at this figure.

The plaintiff's total future loss therefore is:
$98,500
$51,480
$42,276
$45,644
$20,000
$257,900
There then follows to make an award for future superannuation entitlements:
$1,475 x 9% x 98.5 x 70% = $9,153
$1,475 ‑ $500 = $975 x 9% x 70% x 87.7 = $5,387
$1,475 ‑ $576 = $899 x 9% x 70% x 78 = $4,418
$1,475 ‑ $1,000 - $475 x 9% x 70% x 186.3 = $5,575
Thereafter 9% on net award lump sum of $20,000 = $1,800
Total future superannuation = $26,333

Summary of award

Past economic loss:  $214,138
Past superannuation (including interest):                   $10,323
Future economic loss:  $257,900
Future superannuation (including interest):                $26,333
Global award for future contingencies:  $20,000
$528,694

After discussion with counsel it was agreed that the final figure arrived at with respect to an award for damages should include the amount of $500,000 agreed as between the parties as to all other claimed heads of damage.
There will therefore be judgment for the plaintiff in the sum of $1,028,694.00.