Kember v Thackrah - [1999] WADC 76

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
CIVIL

LOCATION: PERTH

CITATION: KEMBER -v- THACKRAH [1999] WADC 76

CORAM: FENBURY DCJ

HEARD: 29-31 MARCH, 11 MAY, 5 AUGUST 1999

DELIVERED : 21 SEPTEMBER 1999

FILE NO/S: CIV 4301 of 1997

BETWEEN: CLINTON BRIAN KEMBER
Plaintiff
AND
ALBERT EDWARD THACKRAH
Defendant

Catchwords:

Damages - Motor vehicle accident - Serious injury to right lower leg - Compound fracture - Arthritis - Relieving surgical procedure - Turns on own facts.

Legislation:

Nil

Result:

Judgment for plaintiff in the sum of $200,902.45.

Representation:

Counsel:

Plaintiff: Mr S Sirett
Defendant: Mr B Sierakowski

Solicitors:

Plaintiff: Wojtowicz Kelly
Defendant: Brian Sierakowski

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

Nil

Case(s) also cited:

Bowen v Tutte (1990) A Tort Rep 81-043
Cullen v Trappell (1979-1980) 146 CLR 1
Dunn v Unwin (1963) ALR 280
Gardner Bros & Perrott (WA) Pty Ltd v Seat [1988] AC 72; FCt SCt of WA; 13 October 1988
Malec v J C Hutton Pty Ltd (1990) CLR 169, 638
O'Brien v McKean (1968) 118 CLR 540
Struthers v Harris (1983) WAR 123
Thomas v O'Shea (1989) A Tort Rep 80-251

FENBURY DCJ: This action requires an assessment of damages for injuries sustained by the plaintiff in a motor vehicle accident negligently caused by the defendant. The plaintiff has conceded that he was guilty of contributory negligence and the issue of liability has been agreed between the parties on the basis of equal responsibility.
Little needs to be said about the facts of the accident itself. On 9 October 1992 on a country dirt road in daylight the plaintiff was riding a motor bike and the defendant was driving a 4‑wheel drive motor vehicle in the opposite direction. The two vehicles collided head‑on and the plaintiff sustained his injury.
The plaintiff's injury was very serious. It was described in the medical report of Douglas Sneddon, exhibit B1, as a "compound fracture of the right distal tibia extending into the ankle joint, with an associated fracture of the distal fibula on the same side."
Dr Sneddon's report contains a convenient summary of the early treatment undergone by the plaintiff as follows:
"Primary treatment by Mr Ecker involved wound debridement, internal fixation of the fibula fracture and external fixation of the tibia fracture.
Mr Kember was referred to me by Mr Ecker for fitting of an Ilizarov frame by myself, and after discharge from hospital has been regularly reviewed in the orthopaedic outpatient clinic.
On 18 December 1992 further compression at the fracture site of 2mm was applied and, when seen on 29 January 1993, check x‑rays were satisfactory.
When seen on 26 February, 1993 full weight bearing was commenced on the fractured limb; and when seen on 26 March 1993 clinically and radiologically the fracture was united and the Ilizarov frame was removed. The newly healed fracture was protected in a plaster cast for a further month, and when seen on 23 April 1993 the plaster cast was removed."

The plaintiff

The plaintiff was born on 12 February 1973. At the date of the accident he was 19 years of age and at the date of trial he was 26. The plaintiff is a married man with two children aged 3 and 2. His wife has an 8 year old child from a previous marriage.
The plaintiff is a large young man. Prior to the accident he weighed approximately 105kg. By the time of trial he weighed approximately 130kg.
The plaintiff has spent all of his life in country areas, having been raised in Eneabba in Western Australia. He attended schools at various places in the country. He has never worked nor lived in Perth.
The plaintiff used to be interested in sports engaging actively in basketball and golf. He also liked pursuing goats on his motorbike, jumping off and chasing them through the bush.
At the time of the accident the plaintiff was in the third year of a four year apprenticeship as a boilermaker with R. G. C. Mineral Sands Limited. He was earning the sum of $327.14 net per week. He intended to pursue employment in the industry with a view eventually to starting up his own business.
Immediately following the accident the plaintiff was taken to Royal Perth Hospital where he was admitted as an in‑patient and remained from approximately 9 October continuously, except for a day or two, until 12 December 1992.
Having regard to the severity of his injury it is not surprising that the plaintiff described feeling a great deal of pain and discomfort. No doubt those symptoms were alleviated from time to time by analgesics. However, both the injury and the types of procedure that the plaintiff underwent to rectify the damage to his lower right leg were painful, uncomfortable and inconvenient. The fitting, wearing and eventual removal of the Ilizarov frame also was productive of pain and discomfort.
On about 7 June 1993, some eight months after the accident, the plaintiff returned to work. He continued to experience painful symptoms and swelling in his leg and ankle, particularly at the end of the day. Once he finished work he required to undo the shoelaces of his right boot in order to ease the pressure and reduce discomfort.
The plaintiff was referred to orthopaedic surgeon Douglas Sneddon who wrote in his report, Exhibit B1, dated 25 February 1994, that the plaintiff commenced full weight bearing on 26 February 1993. The Ilizarov frame was removed on 26 March and a plaster applied which was removed on 23 April 1993. The plaintiff was given exercises to perform and certified as being fit to carry out light duties.
The plaintiff continued to feel painful symptoms and swelling in the leg and upon his return for review by Mr Sneddon in August 1993 he complained of foot swelling in the wearing of work boots. He was referred for physiotherapy. Later that year he complained of pain in the ankle on walking upon uneven surfaces, however, he had not been able to participate in any of the sports he used to enjoy.
At the beginning of 1994 Mr Sneddon certified the plaintiff as being fit to return to his employment although his conclusion was that the plaintiff had a permanent disability in the right lower limb. At that stage Mr Sneddon's opinion was that the plaintiff may develop post‑traumatic degenerative arthritis in the right ankle joint. Unfortunately Mr Sneddon's prediction became a reality and there is no doubt that during the years that followed, as a result of arthritis, the plaintiff has continued to suffer a great deal of pain and discomfort in the ankle. In his letter of 5 May 1994, Exhibit B2, Mr Sneddon states that if the plaintiff's ankle continues to deteriorate "to the extent where he begins to experience severe and disabling pain from his right ankle" he may need to have the ankle joint arthrodesed. Indeed that procedure is now to occur.
There is no doubt that the plaintiff has continued to have painful symptoms in his right ankle over the years. However, for reasons which are not clear, he did not pursue, nor was he advised to pursue, Mr Sneddon's advice concerning the pain relieving procedure of arthrodesis. Chronic pain has obviously had an increasingly intrusive adverse effect upon the plaintiff's life to the extent that he deteriorated to the level about which he spoke in his evidence. He described to the Court spending large amounts of time sitting around at his home all day watching television and drinking alcohol. The plaintiff's evidence was that he was capable of drinking a bottle of bourbon whisky in a day or alternatively, a block of beer over a period of two days. This alcohol consumption and lack of activity are obvious factors contributing to the plaintiff's obesity.
The plaintiff has a very young, petite, loving and obliging wife who gave evidence. It is obvious that she has taken it upon herself to cater for the plaintiff's every need during the past few years. There is no doubt that by reason of chronic pain and lack of gainful occupation the plaintiff has been caught up in a cycle of self‑pity and apathy from which he has not had the ability to break out. It is indeed most unfortunate that the plaintiff has suffered in this way in light of the fact that, according to the medical evidence recently presented, surgery in the form of an arthrodesis would have largely removed the cause of his misery and that such a procedure was probably appropriate years ago.
Given the evidence of Mr Sneddon and Mr Horta, the podiatrist, there is a very high probability that a procedure by way of fusion of the ankle joint will remove the plaintiff's painful symptoms and also the swelling of his ankle. When it has settled down following the procedure the plaintiff should have neither pain nor swelling from his right leg. He will suffer some loss of function and will find it difficult to squat, for example, but otherwise he will be able to walk about and carry out normal activities. He may have difficulty in running or mountain climbing but otherwise he will be able to lead a normal life. Significantly he will not have pain.

Loss of amenities

The assessment of damages for the plaintiff's pain and suffering and loss of enjoyment of life, his loss of amenities, must take into account the pain and discomfort and loss of function that immediately followed the accident, but must also take into account the unrelieved chronic pain in the seven years since. Account must also be taken of the fact that the surgery is also likely to produce its own painful and uncomfortable results in the short term. There is also a small chance that, in the future, the plaintiff might have discomfort at the subtalar joint as a reaction to the fusion.
The plaintiff is still only 26 years of age. He cannot, and has not for some seven years, been able to engage in vigorous physical and sporting recreational activities. He should be able to do so in the future following surgery but he is entitled to be compensated for the inability to engage in those sorts of activities in the past seven years. Even following surgery he will find that the more active sports are not available although I think it is probable he will be able to resume the playing of golf.
I am of the view that a fair assessment of damages for the plaintiff's pain and suffering, residual disability and loss of enjoyment of life would be the sum of $55,000. Although the plaintiff's disabilities will be reduced in the future it must be recognised that he has suffered pain for a very long time in the past.

Past economic loss

As I have mentioned the plaintiff was employed as a third year apprentice boilermaker at the time of the accident. He was in receipt of a net weekly income of $327.14.
The plaintiff returned to work on about 7 June 1993 resuming light duties. He went back to fabricating work on about 1 July. The plaintiff remained at R G C Mineral Sands as an apprentice until his apprenticeship was complete on or about 28 November 1994.
The plaintiff was not employed as a qualified boilermaker/welder at R G C Mineral Sands. His evidence was that most apprentices were kept on after they qualified, however, this was contrary to the official line taken by his employer.
By reference to a helpful schedule prepared by counsel for the defendant entitled "Income Schedule" the plaintiff's working history since the accident can easily be seen at a glance. The plaintiff commenced employment on 23 January 1995 with a company called Future Engineering where he worked for five weeks until 27 February. Thereafter he was employed on 10 March 1995 for a period of two weeks with Cay's Engineering. From some date in March until another unknown date in April, being somewhere between six and eight weeks, the plaintiff was also working, on a part‑time basis, with Hakido Security as a guard.
The plaintiff's next employment was on 24 August 1995 until 1 September where he worked at Roche Brothers for a period of about nine days. Thereafter the plaintiff did not engage in any further employment.
The plaintiff told me that throughout his attempts at employment since the accident he suffered significant symptoms in the form of pain and swelling in his foot. He had problems with wearing safety boots and keeping employment because he was unable to comply with footwear safety requirements. He also had difficulty with employment that required him to stand for long periods or to carry loads and move about.
I have no reason to disbelieve the plaintiff in relation to any of this, or in fact any of his evidence. He presented as a rather pathetic young man who, as I have already mentioned, has been overcome by the chronic symptoms felt in his right leg. He has made a considerable effort to return to the workforce but he has not been able to retain employment for any length of time in part because his reserves of determination and persistence have been exhausted as a result of his chronic symptoms. In short I think he has done his best to mitigate his damages and indeed counsel for the defendant did not suggest otherwise.
That is not to say that with a greater exercise of will the plaintiff could not have reduced his alcohol intake and engaged in some form of exercise and activity in order to maintain at least some level of fitness and therefore employability. But this was not a case where any serious suggestion was put to the plaintiff that he has failed to mitigate his damages.
As I have mentioned the plaintiff sustained his injury during the third year of a four year apprenticeship. He had never entered the workforce proper and had thus not established any pre‑accident work history apart from the apprenticeship.
However, I consider that the plaintiff has made reasonable efforts since the injury to get into the workforce. He has exhibited a degree of persistence and determination and, as I have mentioned, I think he has done his best. Although the plaintiff had not entered the workforce, once he had qualified he would have been likely to seek and obtain work and, given that it was available, he would have been employed for all of the time since the accident.
The difficulty in the assessment of past economic loss is the lack of evidence about the availability of work in the plaintiff's industry in the country during relevant periods. Mr James Phillips, the Managing Director of Phillips Engineering Pty Ltd which is a company that operates in the industry in Melville, Perth gave evidence in August 1999 to the effect that:
"…Today, our business or the whole climate in the business is down on the bottom now. We are battling for work and that. At the moment Phillips Engineering ‑ I will give you a couple of figures. In June we had roughly 114 people working for us. We dropped back to about 30. Last Friday we had 4 people working only in the shop yet again we are back on this week we have still got about 35, something like that, back in. So there's a big fluctuation."
Later, in discussing the question of whether people with physical disabilities would be employed in the industry, Mr Phillips said this at T207:
"…There opportunity is better because there is lack of trade. I mean, today you dare not put an ad in the paper otherwise you are flooded. Go back 3 years ago, and I will use that as a broad sense, we were battling ‑ well, you are always battling for good tradesmen ‑ to get your numbers. …"
It is relevant to note that Mr Phillips gave evidence of his experience and the situation in the metropolitan area.
The plaintiff adduced evidence from Mr Fred Wayne Faithful of Exmouth. Mr Faithful was a qualified boilermaker and welder who was unable to give oral evidence because of his commitments in Exmouth following cyclone Vance. His evidence was received by way of an affidavit sworn 26 March 1999. Of course Mr Faithful was not cross‑examined.
Mr Faithful's affidavit disclosed that he had completed his apprenticeship in 1970 and worked as a tradesman between 1970 and 1987, when he was employed by various companies. He commenced his own business in Norseman in 1987 after 17 years' experience.
Mr Faithful's affidavit states that over the years the hourly rates for a boilermaker/welder have increased. He said:
"When I was employed I received hourly rates of $20 per hour. When I set up my business I was able to determine my own rates."
In para 15 of his affidavit Mr Faithful said:
"As I employed boilermakers, I am able to say that the hourly rates I pay to them vary between $25 per hour to $35 per hour depending upon their level of experience."
Finally, he said:
"I am able to say, by reason of my experience in the industry and as an employer, that had Mr Kember (the plaintiff) been operating as a boilermaker/welder in Exmouth, and had he been fit to do this type of work, I would have been prepared to employ him at a rate of $35 per hour."
As I have mentioned the plaintiff returned to work after his recovery from his injuries and completed his apprenticeship. He then engaged in some sporadic employment in the following 2 years. Some of that employment involved work in his industry. The plaintiff's period of 5 weeks employment at Future Engineering between 23 January 1995 and 27 February 1995 is a useful guide to his earning capacity. During that period the plaintiff earned $2,633.50 net which calculates at $526.70 net per week.
In his evidence on 5 August 1999 the plaintiff stated that the "job like criteria" for his employment at Future Engineering was 10 hours per day 6 days per week. He also said that "They also called you on occasions when the work load was over to work half a day Sunday."
The plaintiff then described his employment at Cay's Engineering, where he worked for 2 weeks from 10 March 1995 to 24 March 1995 and earned the sum of $1,023.34 net ($511.67 per week) as being a "8 hour day job and when there was work may be on the weekends". The employment was for 5 days a week.
Apart from the evidence about the plaintiff's employment at Future Engineering and Cay's Engineering in the first 3 months of 1995, the only other evidence of what the plaintiff could expect to have received in the industry was that of Mr Faithful and Mr Phillips. Mr Faithful's evidence related to what he would pay a boilermaker/welder in Exmouth, presumably at the time of trial. Mr Phillips evidence related to the metropolitan area of Perth. He stated that all employees were on contract and that they received $23 per hour. Obviously each employee would need to make provision for expenses and tax. $23 per hour for a 40 hour week equals $920 less tax of 32 per cent equals $625. I reiterate that because the rate is for a subcontractor then overheads and expenses including insurance would need to be taken into account. There was no evidence concerning those matters.
The evidentiary problems in this case make a calculation for past economic loss most difficult. The rate at which the plaintiff was paid whilst he worked at Future Engineering, and Cay's Engineering in early 1995 is a reasonable guide for that period. The average of the two net weekly incomes the plaintiff received from those companies ($526.70 plus $511.67 divided by 2 equals $519.18 rounded up to $520) is a fair starting point although the hours of work for each position were different.
The only other evidence I have about remuneration rates up until the time of trial is the evidence of Mr Faithful which only related to current rates. There was no evidence about rates for the years 1996, 1997 and 1998.
The calculations put forward by counsel for the plaintiff assumed a gross hourly rate of $35 for the entire period since the plaintiff qualified. I do not think that that is a reasonable assumption in the circumstances and I do not propose to accept counsel's model for assessment of past economic loss.
As I have mentioned Mr Faithful's evidence was that he would pay $25 to $35 per hour depending upon experience.
•$25 per hour for a 40 hour week = $1000 gross less tax of approximately 32% = $680 net per week.
•$30 per hour for a 40 hour week = $1200 gross less tax of approximately 32% = approximately $816 net per week.
•$35 per hour for a 40 hour week = $1400 gross less tax of 32% is approximately $952 per week.

Mr Phillips said that people in the industry in Perth normally worked 50 hours per week. I was not provided with any evidence on the question of how many hours per week people worked in the industry in the country. The plaintiff obviously had had one experience of working up to 60 hours per week and another experience of 40 hours per week. Counsel for the plaintiff's suggested model for calculation referred to a 40 hour week. I shall assume the plaintiff would have worked at least 40 hours per week although that is a conservative approach.
As I have already indicated I think it is fair to assume, on my assessment of the plaintiff, his work ethic and potential capacity, that he would have been employed continuously since the accident. Probably he would have enjoyed increments in his income over the years but as to how much and with what regularity there is no evidence. It seems to me to be reasonable to attempt a calculation upon the assumption that the average of the plaintiff's income at Future Engineering and Cay's Engineering in early 1995 would form a fair basis for calculating the income the plaintiff would have earned up until about the end of 1996 which for the purposes of the exercise is a period of 2 years.
Thus 104 weeks at $520 net per week = $54,080.
For the years 1997 and 1998 it seems to me to be reasonable to accept that there would have been some increase in the plaintiff's income and perhaps Mr Faithful's figure of $25 per hour for a 40 hour week resulting in $680 net per week would be reasonable.
Thus 104 weeks x $680 = $70,720.
For 1999, having regard to Mr Faithful's evidence that he would pay a person like the plaintiff $25‑$35 per hour "depending upon their level of experience", and having regard to the fact that by then the plaintiff would have had about 4 years experience, then it is reasonable, if not generous, to assume that he might have received $30 per hour for a 40 hour week which would result in $816 net per week ‑
Thus 1 January‑21 September 1999 = 264 days ÷ 7 = 38 weeks x 816 net per week = $31,008.
This gives a total of $155,808 less the amount earned during the period since the accident of $37,575.44 = $118,232.56.
Doing the best that I can this figure represents a fair calculation of the past economic loss of the plaintiff. The plaintiff's counsel made submissions upon the basis that the plaintiff intended to set up his own business and that he would have been likely to have earned greater income than that received by an employee. I do not think the plaintiff would have set out on this course by the time of trial had the accident not intervened. I note that Mr Faithful worked for wages for 17 years before he went "out on his own".
The figure for past loss of $118,232.56 should not be discounted for contingencies especially in light of my assumption that the plaintiff would have worked an average of at least 40 hours per week. That assumption is conservative and any discount for contingencies that may be required is inbuilt. Indeed having regard to all of the circumstances I would round the figure for past economic loss upwards to $120,000.

Loss of past superannuation benefits

Counsel for the plaintiff provided schedules for the calculation of the loss of past superannuation benefits which although not otherwise useful provided for a commencement date being 1 July 1995 ‑
For the period 1 July 1995 to 31 December 1996 = 78 weeks. $520 net = $764 gross x 6% = $45.84 x 78 weeks = $3575.
For the period 1 January 1997 to 30 June 1998 = 78 weeks 6% of gross weekly income being ($680 net = $1000 gross) = $60 x 78 weeks = $4680.
For the period 1 July 1998 to 31 December 1998 = 26 weeks. Superannuation calculated at 7% of gross income = $70 per week x 26 = $1820.
For the period 1 January 1999 to 21 September 1999 = 37 weeks x 7% of gross income ($816 net = $1200 gross) = $84 x 37 = $3108.
Total superannuation on past loss at 6% until 30 June 1998 and at 7% thereafter = $13,183.
Although I did not receive submissions on the matter it seems to me that this figure should be discounted by 30 per cent for taxation and administration costs which results in the sum of $9,228 which I award for the loss of past superannuation benefits.

Interest on past loss

I would allow interest on the past loss of $120,00 at a half rate of 3 per cent per annum from the date of the accident on 9 October 1992 to 21 September 1999 = 6.94 years = $24,984.

Future economic loss

As I have described, the plaintiff's present situation is that he is going to undergo surgery in the form of an arthrodesis of his troublesome ankle. He does not have a date for this surgery but I imagine he will be having it as soon as it is reasonably possible. Once he has had the surgery then he will of course be unemployable for a short period of time whilst he recuperates.
As I have already remarked the chances of a successful result for this surgery are very high and I should assume that the plaintiff will make an excellent recovery. He should no longer have pain or swelling in the ankle. He will, however, suffer some loss of function. Particularly he will not be able to crouch or squat on one of his legs.
A question raised by the evidence is whether the plaintiff may develop arthritis in his subtalar joint following arthrodesis. On this point Mr Sneddon said in his report of 30 April 1999:
"It is possible, as a result of the ankle arthrodesis, he may subsequently develop osteoarthritis of the subtalar joint. Studies that have been published demonstrate that most patients following ankle arthrodesis develop radiological changes of osteoarthritis of the subtalar joint, but there seems to be little if any correlation between the development of radiological changes and the development of symptoms in the subtalar joint. Long term follow up with patients following ankle arthrodesis do not appear to require eventual subtalar arthrodesis."
In his report of 16 June 1999 Mr Sneddon was very optimistic about the future for the plaintiff. He said:
"If Mr Kember has a successful fusion of his ankle, it would provide him with long term predictability with minimal complications to him. In the event that the ankle fusion operation is successful, I believe that Mr Kember would be able to return to work as a welder/boilermaker. He would certainly be fit for all forms of sedentary work. In the event that fusion is successful, Mr Kember would be fit for all forms of sedentary work, light duty work and physical type work of a full‑time nature. The physical restriction that he would suffer as a consequence of the fusion would be the loss of all ankle joint movement, and he would find it impossible to squat on that side."
Mr Mario Horta, podiatrist, said in his report of 27 May 1999 that:
"A successful fusion operation would allow Mr Kember to return to work as a welder/boilermaker. It would also allow him to participate in other kinds of work. A fusion procedure would not preclude Mr Kember from sedentary work, light duty work and full‑time heavy duty work. The main physical compromise would be loss of ankle joint range of motion in plantar and dorsiflexion. This may affect his ability to squat, however it should still be possible. In any case it would mean modification of his work procedure. It may preclude him from working in a low crouched position."
When he has made a full recovery the plaintiff will obviously have been devalued, to some extent, as a commercial unit. Hopefully he will be a large, fit young man with a stiff ankle. He is of course a qualified boilermaker/welder. It is true, however, that when competing against another person with the same qualifications and of the same age with no history of ankle injury, that the plaintiff will be at a disadvantage. He is not likely to be a preferred employee in a market where the supply exceeds demand.
The plaintiff has always lived in the country and he gave evidence that he hoped eventually to start up his own business. I do not think the plaintiff would have been likely to have presently been in business on his own as a boilermaker/welder if the accident had not occurred. I note that Mr Phillips worked for wages for some 17 years before "going out" on his own. It is not possible to be certain about this but given that the plaintiff is only now just 26 years of age I think he would still have been earning wages. Of course were he to go out on his own then he is more likely to be able to cope with his disability by adaptation of his working environment. Obviously the plaintiff will be able to do bench work. He will be able to stand and walk for long periods. He will be able to lift weights and do heavy work. His only difficulty will be in crouching down and squatting. That will be a distinct disadvantage but not one which will prevent him from working in the industry for which he has been trained.
The assessment of future economic loss in this case is particularly difficult given the amount of variables. The plaintiff may be able to obtain employment fairly soon after his recuperation and he may never suffer unemployment thereafter. On the other hand, he may have some difficulty in obtaining employment because of his ankle problem. Overshadowing either of those possibilities is the state of the industry which, at the present time, is characterised by unemployment. As I have commented the plaintiff is a big strong young man and I have the distinct impression that once he is able to get his ankle problem alleviated by surgery and thereafter come to the realisation that life is worth living, that his young family want him to start supporting them, then I would be very surprised if he is not able to obtain and keep remunerative employment. I emphasise that he should be pain free. He will be able to do heavy work. His only problem will be in squatting and crouching. He of course will present with an accident history, which is a distinct disadvantage, but I think he should be able to get work in the industry, presuming it is available, especially given that he has spent all his time in the country and that is where he wants to remain.
Upon the basis that the plaintiff was totally and permanently incapacitated from earning any income then the following calculation would be appropriate. Utilising the 6 per cent discount tables and assuming retirement at the age of 65 which is in some 41 years this gives a multiplier of 813. Assuming that the plaintiff would be paid at least $35 per week for a 40 hour week this results in a net weekly income of approximately $952. Multiply this by 813 and this results in $773,976.
The evidence is that the situation in the industry at the moment is characterised by considerable unemployment. Indeed it is an industry which fluctuates. It seems to me that the figure of $773,976 should be significantly discounted because of this fact and I think by as much as 30 per cent which gives $541,783.
Having regard to all of the circumstances I think that the plaintiff has lost about 30 per cent of his earning capacity which gives a figure of $162,534.
I have not taken into account the fact that the plaintiff will be required to undergo substantial surgery in the very near future in the form of an arthrodesis. There was no evidence as to the time the plaintiff might be required to recuperate from this surgery. Obviously during the relevant period he will be totally disabled. Purely as a guess, in the light of the absence of evidence, upon the assumption that he might be off work for, say, 3 months then 3 months work at $952 net per week ($35 per hour for a 40 hour week) = $11,424. Discounting this by 30 per cent to allow for the award for future economic loss already made results in $7996 rounded up to $8000.
Thus I award the sum of $170,534 for future loss of economic capacity.

Loss of future superannuation benefits

Counsel for the plaintiff invited me to take account of increases in the percentage rate for the purposes of calculation of superannuation benefits in the future. Given that legislation is often subject to change I have decided to assess this loss by reference to the present rate only being 7 per cent. In my view a fair way to approach the matter is by use of the 7 per cent discount tables calculating the value now of receipt of a lump sum payment for a future entitlement.
In my calculations for future economic loss I have assumed that the plaintiff could now earn $35 per hour for a 40 hour week = $1400 per week. 7 per cent of this sum is $98. By use of the 7 per cent discount tables for a period of 41 years (until age 65) this gives a multiplier of 723 x $98 = $70,854. Loss of the plaintiff's earning capacity being assessed at 30 per cent = $21,256. There should be a deduction for taxation and administration expenses of about 30 per cent which results in $14,879 which I award under this head.

Past medical expenses

I was advised that the sum of $3409 was agreed and I award that sum.

Future medical expenses

The only evidence concerning future medical expenses was that contained in the report of Dr Sneddon dated 26 March 1999 which was exhibit B3.
Mr Sneddon gave no oral evidence on these costs. His estimate was $670.90 for surgical fee, $300 approximately for follow‑up, $300 for an anaesthetist and the cost, unspecified, of approximately 5 days in hospital. Physiotherapy would apparently not be required.
I know that hospital costs are expensive but there is no evidence of the daily rate. I find it very difficult to see how they could be any less than $500 per day, in this day and age, so doing the best that I can I will award $2500. Thus I would allow the sum of $3770.90 by way of future medical expenses.
In summary ‑
General damages ‑ loss of amenities  $55,000.00
Past loss of earning capacity  $120,000.00
Loss of past superannuation benefits  $9,228.00
Interest on past loss  $24,984.00
Future loss of economic capacity  $170,534.00
Loss of future superannuation benefits  $14,879.00
Special damages ‑ past medical expenses  $3,409.00
Future medical expenses  $3,770.90
$401,804.90
As it has been agreed the defendant will pay 50 per cent of all damages assessed at trial then the plaintiff is entitled to judgment in the sum of $200,902.45.