Kemp & Kemp v District Council of Yankalilla No. DCCIV-98-198

[2000] SADC 45

KEMP & KEMP v DISTRICT COUNCIL OF YANKALILLA
[2000] SADC 45

Civil Jurisdiction
His Honour Judge David

1. In the early hours of the morning of the 19th February 1995 the 1st plaintiff and two friends were fishing off the Normanville jetty.  The plaintiff fell from the jetty from a height of about 3 metres severely injuring his ankles.  As a result of that fall he and his wife now claim damages from the District Council of Yankalilla for personal injuries as a result of its negligence.

2. At the time of the accident the jetty at Normanville was the property of the Crown vested in the Minister pursuant to the provisions of Section 15 of the Harbours and Navigation Act 1953. It was however at that time under the care, control and management of the defendant who was the occupier of that jetty. The jetty itself measured 66.3 metres in length and ran from the beach in a westerly direction out to sea. At the beach end the jetty was 3.45 metres in width and at the sea end was 3.85 metres in width. The jetty was supported by 11 pylons and its height ranged from beach level to 4.2 metres at the western end of the jetty. At the end of the jetty there was a small barrier running along the northern and southern sides of the jetty attached to a barrier running along the whole of the width of the western end. The barrier extended about 2.5 metres from the end of the jetty down the northern and southern sides. It was 1 metre in height. The surface of the jetty itself consisted of wooden sleeper planks which had an average width of about 0.22 metres. Other than the barrier already mentioned there was no rail or barrier down the northern and southern sides of the rest of the jetty. A plan of the jetty as it was at the time was tendered in evidence (Exhibit P4).

3. The plaintiff gave evidence about how he came to fall off the jetty.  At the time he was 26 years of age and on the evening in question decided to go fishing with two friends, namely Phillip Wood and Garry Allen.  Phillip Wood was called as a witness for the plaintiff.  They arrived at the Normanville jetty at about 11.00 p.m. on the 18th February 1995.  They first went to Goolwa and then to Port Elliott but found both of those locations too windy to fish and then decided to go to Normanville.  The plaintiff gave evidence that he had fished at Normanville on about two previous occasions.  They parked their car in a car park area off the beach at the front of the jetty and commenced fishing right at the western end of the jetty.  At the time the plaintiff was wearing a top, jeans and sandshoes.  They were fishing for about a hour and three quarters before the accident happened.  At one stage during the evening both Phillip Wood and the plaintiff saw the shadow of a large fish in the shallows and they got the impression that it was a small shark.  All three were looking at this particular fish trying to gauge where it was going to go for the purposes of catching it but shortly before the accident Garry Allen left the jetty and went back to the car.  At one stage while fishing on the southern side of the jetty with a handline the particular fish which they were watching took the plaintiff’s bait.  The plaintiff then gave the following evidence:-

   “Q.... So what then happened.

   A.The fish took the bait, I stood up with the line in my hand, turned to my left hand side and started to move back towards the beach along the jetty.

   Q...... Go on.

   A.I had only taken a step or two, I tripped on something, stumbled, and the next think I remember was hitting the ground, landed on my feet and my knees came up and hit me in the chest and knocked the wind out of me and I was in shallow water at the bottom of the jetty.

   Q...... To the best of your recollection where were you when you struck the sand relative to the pylons of the jetty that we can see in photograph 3.

   A.Somewhere between the first and third pylon.”

1. He then gave further detailed evidence of the accident:-

   “Q.... Could you tell us where you were positioned when you commenced to walk in terms of the distance from the side of the jetty.

   A.I was close to the edge but I’m not exactly sure.  I stood up and I can’t say how far, how close I was, I wasn’t standing on the edge, the raised edge of the jetty, but I can’t exactly say how far away I was.  It would have been within a metre from the edge of the jetty.

   Q...... As you commenced to move can you tell us how your body was positioned as best you can recall relative to the jetty.

   A.I was facing the shore but I don’t know whether I walked perfectly parallel with the jetty or walked on an angle towards the edge of the jetty more.

   Q...... And where were you looking as you commenced to walk, straight ahead or in some other direction.

   A.I was looking to my right I’d say, at the fish.  But I didn’t blindly walk without watching where I was going either.  I would have glanced back to see that I wasn’t - it’s unusual to walk with your eyes shut, or looking in the opposite direction.  I would have looked at the fish but then looked back at the jetty as well, to see where I was going.

   Q...... What were your hands doing as you commenced to walk.

   A.One hand was holding the fishing reel, the other hand was on the line.

   Q...... Which way around were your hands.

   A.The reel was in my left hand and the line was in my right hand.

   Q...... Are you right-handed.

   A.Yes.

   Q...... Would you normally use your right hand to play a fish in.

   A.Yes, and to cast with a handline as well.

   Q...... As you commenced to move, as far as you know and roughly speaking, where was the fish relative to the jetty.

   A.It had moved southerly, away from the jetty a bit.  I don’t know exactly how far, a few metres, five metres maybe, away from the jetty.

   Q...... When you commenced to move, at approximately what angle was the line going down into the water.  The best estimate you can.

   A.I don’t know, probably a 45 degree angle I suppose.

   Q...... What then happened.  You’ve told us that something happened with your feet.

   A.Yes, I took a step or two and tripped and stumbled on something.

   Q...... Was it one foot or both feet.

   A.I’m not sure, I can’t remember.

   Q...... What do you remember of the motion of your body.

   A.I just remember stumbling, going forwards, and it just happened so quickly, within the next minute I’d hit the ground and my knees had hit me in the chest.

   Q...... After you felt yourself stumble, or trip, in the way you’ve described, do you know whether any part of your body touched the jetty surface or any part of the jetty again.

   A.No, I don’t know.”

1. The plaintiff gave evidence that his intention with the fish was not to pull it up onto the jetty in the normal way but to drag it along to the beach, he walking along the jetty and the fish still in the water at the end of the line.  It was during that activity that he fell off the jetty.  He gave evidence that he intended to walk down the jetty guiding the fish at the end of the line until the fish was out of the water and on the sand.  He hoped at that stage that his friends would be down on the beach and would take control of the fish.  The plaintiff indicated in evidence roughly the area where he tripped.  It appears to be very near the southern edge of the jetty a short distance east of the end of the rail which runs along that edge.  After the accident the plaintiff was placed in the car by his friends.  They then tried to get the car up off the beach but it got bogged.  With the help of the owner of the caravan park nearby it was towed into the car park and at about the same time the ambulance arrived and ambulance officers attended to the plaintiff.  The plaintiff was transferred into the back of the ambulance which took him to the Flinders Medical Centre.  The plaintiff gave evidence that when he fell off the jetty its height was about 3 metres from the ground.

2. In cross-examination it was put very clearly to the plaintiff that although there are no other eye witnesses to the accident it might well be that he deliberately jumped off the jetty at the point where he says he fell in order to retrieve the fish.  The suggestion was emphatically rejected by the plaintiff.  It was also put in cross-examination that his evidence was confused about how close he was to the southern edge of the jetty when he stumbled and fell and he was also confused about the exact area where he stumbled.  I observed the plaintiff very closely both during his evidence in chief and in cross-examination and I found him to be an honest and reliable witness who was trying to tell the truth.  I reject the suggestion that he deliberately jumped off the jetty and I accept his evidence that the falling off the jetty was accidental.  He himself is not clear as to exactly how that happened but on looking at the whole of the evidence I am of the view that in guiding the fish onto the shore on a jetty which was not guarded by a rail, the most likely explanation and inference that I can draw from the evidence is that he inadvertently got too close to the edge of the jetty and aided by a slight stumble fell over the side.  There was no other eye witness to the accident.  Phillip Wood gave evidence that although he was on the jetty at the time of the accident he had already commenced to walk along the jetty towards the shore before the plaintiff fell.  In other words he was to the east of the plaintiff with his back to him when the accident happened.  He therefore did not see the fall. 

3. My findings of fact are also uninfluenced by the evidence of two expert witnesses who were called.  William Potts, a consulting mechanical engineer, was called by the plaintiff and Peter John Maddern, a consulting engineer, was called by the defendant.  I mention their evidence briefly in order to indicate that neither expert witness assisted me at all in coming to my final conclusions of fact.  I found their evidence to be so theoretical and hypothetical that they can be of very little assistance.

4. Mr. Potts had an interesting theory as to how the plaintiff may have fallen off the jetty and landed on his feet.  He conjectured that while the plaintiff was dragging the fish and walking along the jetty his upper body would have been facing at an angle to the right although he would have been walking directly along the jetty.  According to Mr. Potts when the plaintiff therefore stumbled he would have gone straight over the edge in the direction that his upper body was facing.  Mr. Maddern gave contrary expert evidence to the effect that if a person is walking in a straight line and happens to trip or stumble they inevitably must fall on that direct line and cannot deviate to either side in falling.  The conclusion to be drawn from that evidence is presumably that because the plaintiff stumbled while walking directly down the jetty he could not have stumbled over the side but would have fallen on the jetty itself.  Both experts developed those two theories when giving evidence.  However the nature of the evidence in this case as to how the plaintiff fell off the jetty cannot in my view be reduced to such scientific exactitudes.  I am dependant on his evidence which although understandably vague about precise details I accept as being truthful and from that evidence I have drawn my own inferences and conclusions as to what happened.

5. On the question of liability I make the following findings of fact:-

1...... In the early hours of the morning of the 19th February 1995 while fishing the plaintiff fell off the Normanville jetty severely injuring himself.

2...... The condition of the jetty was as described previously.

3...... The jetty was under the care, control and management of the defendant.

1. The plaintiff was walking along the jetty with his fishing line in the water pulling a large fish into shore.  He was walking very close to the southern edge of the jetty (where there was no rail) and either tripped or stumbled and fell from a height of about 3 metres.

1. There is no evidence linking the condition of the surface of the jetty with the reason why the plaintiff tripped or stumbled.  The surface of the jetty consisted of slightly rough planks as one would expect on a jetty.

1. The fact that there was no guardrail on the southern edge of the jetty was a substantial cause for the plaintiff’s fall from the jetty.  If there was a guardrail in my view he would not have fallen off.

1. However I find that he contributed to the accident because the clear inference from the evidence is that he stumbled and fell off the jetty due to a combination of he being preoccupied with bringing the fish into the shore and walking too close to the southern edge of the jetty.

1. I now turn to the plaintiff’s claim that there was a breach of a duty of care by the defendant whereby the plaintiff suffered damage.

The Duty of Care

1. In my view the defendant owed a clear duty of care to visitors lawfully using the jetty.  The defendant was the occupier of the jetty at the relevant time and the jetty was under its care, control and management.  It clearly had a responsibility to people coming on to that jetty.  The majority judgment of the High Court in Nagle and Rottnest Island Authority (1992) 177 CLR 423 at page 429 held that:-

   “The trial judge was plainly right in concluding that the Board was under a general duty of care at common law to take reasonable care to avoid foreseeable risks of injury to visitors lawfully visiting the Reserve.”

1. In that case the person was injured when he dived into water at a Reserve managed by a Statutory Authority and hit a submerged rock.  The Authority promoted the Reserve for swimming and there were no signs warning visitors of the presence of submerged rocks.

Foreseeability

1. The risk that someone might fall off the jetty and severely injure themselves was in my view foreseeable.  The jetty was obviously a part of a popular holiday area of South Australia and was used and is used extensively by many members of the public both for fishing and general recreational activities.  Parts of the jetty were dangerously high and in my view the possibility that someone might accidentally fall from the jetty should have been foreseeable.

Breach of Duty

1. It is argued by the plaintiff that there was a breach of duty not having guardrails extending the length of the jetty.  There was a lesser argument to the effect that the surface of the jetty was of such poor quality that it caused the plaintiff to stumble.  As I have indicated in my findings of fact there is no evidence to support that latter contention.  I turn to the question as to whether there is a breach of duty by the defendant in not having rails on both the northern and southern sides of the jetty.

2. The defendant sought to argue that on a reading of the High Court decision in Romeo and Conservation Commission of the Northern Territory (1998) 192 CLR 431 that if there is an obvious risk to a plaintiff and if the plaintiff is inadvertent then there is no breach of duty. Clearly in this case there was an obvious risk because there were no railings on the side of the jetty. Also consistent with my findings of fact there was at the very least a clear inadvertence by the plaintiff. However I do not regard the decision in Romeo as authority for the above proposition.  In that case the principles as to whether there has been a breach of duty were clearly set out in the judgment of Kirby J at page 479:-

   “In Wyong Shire Council v Shirt(201), Mason J expressed the test which is accepted in Australia for ascertaining whether a breach of a duty of care of the defined scope has occurred.  He said that the tribunal of fact must ask whether a reasonable person in the defendant’s position would have foreseen that the conduct complained of involved a risk of injury to the plaintiff or to a person in a similar position(202):

   ......... ‘If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk.  The perception of the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have.  It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant’s position.’”

1. In my view on a jetty such as the Normanville jetty which is used by many and all manner of people the probability of someone for all sorts of reasons falling off the jetty inadvertently should have been obvious.  It is agreed that there was no difficulty or inconvenience in guarding against that probability by erecting a rail.  Mr. White, the Works Manager for the Council, who was called by the defendant as a witness gave evidence that at the time of the accident the defendant had the ability upon seeking commission from Transport SA to erect a guardrail if they wished.  He also gave evidence that no such request was made up until the time of the accident because it was considered unnecessary.  Mr. Ian Smith who was also called by the defendant is the Senior Engineer for Transport SA, Marine Operations, and has the responsibility for the maintenance and construction of jetties.  He gave evidence that at the time of the accident if the local council wanted a guardrail around the jetty that is the type of request that they would make to Transport SA.  The position is now different because of changed funding arrangements and the Council would take on more responsibility.  However his clear evidence is that at the time of the accident a guardrail could have been erected but with the permission of Transport SA.  There was also clear evidence that the erecting of a guardrail would have cost something like $10,000.00.  In my view the “expense, difficulty and inconvenience” of the action which needed to be taken is not a factor which would alleviate the defendant from the responsibility of erecting the guardrail.  In my view by not erecting the guardrail there is clearly a breach of duty towards those people using the jetty.

Contributory Negligence

1. In the light of my findings of fact the plaintiff contributed to this accident and that contribution was more than mere inadvertence but was due to his own inattention.  I find that it has been proven that the plaintiff failed to take reasonable care for his own safety in all of the circumstances.  I find that he was clearly negligent in the way he walked close to the edge of the jetty knowing that there was no guardrail and obviously concentrating on the task at hand in bringing in the fish.  There was a lack of care in not watching carefully where he was walking bearing in mind that it was at night, on a jetty without a guardrail and at a dangerous height.  In apportioning responsibility for the accident between the plaintiff and the defendant I bear in mind their respective roles as far as culpability is concerned and also the relative importance of the acts of both parties in causing the damage.  (Podrebersek v Australian Iron & Steel Pty Ltd 59 ALR 529 at page 532-533. I assess the apportionment of responsibility for the accident at 70/30% in favour of the plaintiff. I now turn to the question of damages.

Damages

1. The plaintiff is now 31 years of age and was 26 years of age at the time of the accident.  He was born in South Australia and was educated until the end of third year high school.  Due to the split up of his parents he then went to New South Wales with his mother who remarried.  He worked for 12 months in a tyre fitting business on a part‑time basis and then returned to South Australia at the age of about 16.  He then went to Coober Pedy with his natural father and opal mined.  He gave evidence that he made very little money out of that enterprise.  After about six months he went with his father to the Riverland area and did some fruit picking and harvesting work and eventually got a job as a forklift driver.  When he was about 18 years of age he moved to Loxton and lived there for about two years.  While at Loxton he did a TAFE course for three months and worked in various other casual jobs.  In 1988 when he was about 20 years of age he came back to South Australia and got a job with a company called Southern Beverage.  While working at Southern Beverage he obtained a forklift driving licence.  He worked as a forklift driver for that company from July 1988 to April 1989.  He then changed jobs for a short period of time but then returned to Southern Beverage and worked there until September 1989.  In that month he was married to his present wife and they moved to Murray Bridge.  While living at Murray Bridge he was employed also as a forklift driver with Chapmans Smallgoods at Nairne but was laid off at Christmas 1989. 

1. The plaintiff and his wife then moved from Murray Bridge to the Riverland to do fruit picking but this lasted only for a week or two and they decided to come back to Adelaide.  While back in Adelaide he had various jobs of short duration.  His first child was born in October of 1990 and at that time the plaintiff was unemployed.  From late 1990 into 1991 he was looking for work and he was receiving Social Security benefits.  In 1991 he and his family moved back to Coober Pedy and in October of that year he got a job working on a drilling rig for about 6 weeks.  However he was in a partnership and nothing was found therefore no money was made.  He then moved back to Adelaide with his family in Christmas of 1991.  In 1992 he was still looking for work and did some fruit picking in the Riverland for a short period of time until he was involved in a motor bike accident.  During that year and into 1993 he continued to look for work and did some seasonal fruit picking in the Riverland.  In 1993 he moved into a Housing Trust home at Seaford and he and his wife improved and established that home.  Also in that year he took on the responsibility of a foster child who was the child of his nephew by marriage.  I need not go into the details as to how that came about and why. 

2. The plaintiff gave evidence that during 1993 and 1994 he was registered with the Commonwealth Employment Service but was actively looking for work during those years.  While he was unemployed he continued to work on the house, erecting structures, planting a lawn and doing gardening.  Also during that period of time he would go motor bike riding, fishing and windsurfing.  He also indulged in the practice of “fossicking”.  As I understand it that means going to certain sites and looking for gold.  He continued to be unemployed up until the date of the accident.

3. Immediately after the plaintiff fell off the jetty he gave evidence that he dragged himself out of the water and away from the fish and the line in which he was entangled.  He then found there was something wrong with his legs and he couldn’t walk.  His two friends brought the car down to the beach and he was placed on the back seat of the car.  I have already related how they tried to drive the car off the beach but it got bogged and was eventually towed to the car park area.  When the car got to the car park the ambulance was just arriving and the plaintiff was transferred into the back of the ambulance.  The plaintiff was taken to the Flinders Medical Centre and admitted into the Casualty Section and then to a ward.  About a week later he had an operation to his left ankle and during that period of time was on pain killing medication.  He was in hospital for a period of about two weeks both before and after that first operation.  When the plaintiff went home he was in a wheelchair with both feet straight out in front of him on boards and with plaster on both feet up to the knees.  He gave evidence that he was in plaster for three months but on one of his legs he had removal plaster for a further two months after that.  During that first period of three months he was also in a wheelchair.  Being in a wheelchair for this period of time demanded the hiring of special equipment for the purposes of going to the toilet and to the shower and he was obviously helped by his wife.  During this period he was in great pain to such an extent that he had to continue to take pain killing medication.  He gave evidence that he was taking as many as 10 to 12 Panadeine Forte tablets per day.  He was awake most of the time due to the pain and the discomfort created by his injuries.  Overall it was some five months from the date of the accident before all plasters were off his legs and he could walk with crutches.  He found that his right foot was stronger than his left one.  Although he could start to walk on crutches the transition period from moving from a wheelchair onto crutches took about eight months.  After that eighth month period he used forearm crutches for another six months.  He then moved to two walking sticks and then one walking stick until he was able to walk without any assistance.  He gave evidence that the total period between the accident and being able to walk without any assistance was about two years.

4. At the present time the plaintiff cannot walk on uneven surfaces with any certainty and cannot walk well in bare feet and finds it hard to climb upstairs.  He has a slight limp which is exaggerated when he becomes tired.  He is not able to run.  During this period of two years of course his wife had to do all the work around the house and he could assist only to a limited extent.

5. In February of 1996 his daughter Taylor was born.  On the 28th July 1997 he underwent a further operative procedure namely a right sub‑talar fusion.  He gave evidence this was because of continuous pain in his right ankle.  He was in hospital overnight for that operation but his recovery was slow.  He had a full plaster on his right leg from the knee down and was on crutches again for about three months.  He says he now has much less movement in his right foot and if he steps on something on the edge of his foot it is very painful.  The plaintiff also gave evidence that there was a screw put in his right ankle and that caused problems until it actually wore a groove and fitted in better.  The plaintiff says that he can have an operation to have the screw removed if the position doesn’t improve.  Since July of 1997 when he had his last operation he has not been able to run and he has not been able to partake in many of his previous activities.  He gave evidence that he can go fossicking and has a partnership in a gold claim at Teeulpa.  He says he goes up there once a month for a three day week to do fossicking.  He cannot of course do any work that resembles physical or manual labouring and there is clear evidence both from the plaintiff and Dr. Von Der Borch that he could not be a forklift driver because of his present injuries.

6. Since the accident the plaintiff took on a TAFE course in gold and silversmithing jewellery.  He started that course in mid 1989 and is learning the art of making rings, chains and stone settings.  He would like one day to be a jeweller although he agrees and I so find that the probability of this happening is remote.

7. The plaintiff frankly admitted that he could do forklift driving, for which he had a licence.  However he is unable to do the surrounding work involved with forklift driving such as getting up and down off the forklift, shifting empty pallets and other heavy ancillary work.  He still has problems sleeping because of the pain and he cannot play with his children as freely as he would like. 

8. At the present time the plaintiff sees his general practitioner, Dr. Somers, about once every three months mainly to obtain prescriptions for pain killing drugs.  He has been prescribed Panadeine Forte and he takes up to a box a week.  He is in continual pain. 

9. I was shown the plaintiff’s ankles and I observed obvious scarring on both feet.  The plaintiff can no longer do jobs around the house such as mowing the lawn and general handyman activities such as erecting structures.  He has difficulty lifting anything which is remotely heavy because of the pain that is caused to his feet. 

Medical Evidence

1. I received medical reports from Dr. M.J. Cain an orthopaedic and spinal surgeon, Dr. S.J. Somers the general practitioner of the plaintiff and Dr. A. Von Der Borch an orthopaedic surgeon.  As well as tendering those reports the plaintiff called Dr. Von Der Borch and Dr. Somers to give evidence.  The defendant provided reports from a general surgeon, Dr. E. Eriksen, and called him to give evidence.  There is really very little dispute about the medical evidence.  It is clear from the reports and the evidence that the plaintiff as a result of the accident suffered serious injuries to both his legs.  He had a fracture to his left talus which healed.  His right ankle is more severely fractured there being a dislocation of the sub‑talar joint.  According to both Dr. Von Der Borch and Dr. Eriksen he has been left with a significant restriction of ankle movement.  Dr. Eriksen assesses the plaintiff’s disability at around 60% to 70% loss of function of the right ankle and 40% to 50% loss of function of the left ankle. Dr. Von Der Borch assessed the permanent disability of the left foot and ankle at 40% loss of full and efficient function and the level of residual disability in the right foot and ankle at 50% loss of its normal functions.  The plaintiff had an operation on the 24th February 1995 in which a fracture to his left ankle was reduced and held with screws.  In late July of 1997 he had a further operation on his right foot.  Dr. Von Der Borch gave evidence that he considers it quite possible he will develop arthritis in the right foot in 15 or 20 years.  On the left foot Dr. Von Der Borch thinks there is probably a higher possibility of arthritis in the ankle joint itself.  He was also of the opinion that degenerative changes may become marked in the future.  In his opinion the optimal treatment would be to replace the right ankle joint with an artificial joint.  However he conceded that this is very much a theoretical possibility because an ankle joint prothesis is very much a futuristic concept and is at an early stage of development.  As far as the left ankle is concerned if there was an arthritic change there would be an option to have a fusion of that ankle joint for ankle joint arthritis.  Dr. Von Der Borch was also of the opinion the plaintiff might require an ankle joint replacement of the left ankle in about 15 to 20 years time.

2. Dr. Von Der Borch was also of the opinion that any activity while the plaintiff was on his feet would potentially cause pain.  He was of the opinion that the plaintiff would not be able to resume heavy physical work or any occupation which requires him to be on his feet for prolonged periods of time or which requires a great deal of walking, running or climbing.  He was of the opinion that his future occupation would have to be in a semi‑sedentary area.  He was clearly of the opinion that the plaintiff could not resume his previous occupation as a forklift driver.

3. Dr. Eriksen, a general practitioner called by the defendant, agreed that the plaintiff had a fracture of the left talus and a more severe fracture of the right sub‑talar joint.  He also agreed that the plaintiff will be left with significant restriction of ankle movement, more on the right side than the left, and he said that walking over uneven and sloping surfaces would not be satisfactory in the long term.  He was of the opinion that he could work as a forklift driver although he would have to avoid the ancillary work involved in that occupation.  The plaintiff himself does not disagree with that and I have already found that that would make him unemployable as a forklift driver. Dr. Eriksen to a slight extent disagreed with Dr. Von Der Borch’s opinion that arthritis was likely to develop in the future.  He gave evidence that if there was likely to be arthritis then in his view he would expect indications of it to appear now.  However he conceded that that opinion was not firm and was difficult to resolve.  I bear in mind Dr. Eriksen’s opinion and also the opinion of Dr. Von Der Borch as to the question of the setting in of arthritis and deal with it on the basis that there is some possibility that arthritis might set in in the future with its attendant difficulties and expenses for the plaintiff.

4. I now to the question of the discrete heads of damage claimed by the plaintiff.

Non‑Economic Loss

1. The basis for my assessment of non‑economic loss has been set out in my narrative of events.  I add that I found the plaintiff to be truthful and honest when describing his injuries and the effects they had upon him.  The pain that he has suffered and will suffer is obvious and the effect on his enjoyment of life from being an active young man to a person who now has to live a comparatively sedentary life while he is still at a relatively young age is also obvious.  I assess non‑economic loss at $60,000.00.

Past Loss of Earning Capacity

1. It is clear from the evidence that up until the time of the accident the plaintiff had not worked for something like two years.  For two years previous to that he had worked very sporadically.  In a real and continuous sense he has not worked for up to about four years to the time of the accident.  Details of his work employment record from August 1988 until February 1995 were supplied.  I notice from the record that while working for George Chapman Pty Ltd for about 11 weeks in 1990 he earned as much as $559.51 per week gross.  This translated to about $450.00 per week net.   On other jobs he had earned as little as a small amount over $300.00 per week gross.  It is something like five years from the time of the accident until trial and judgment.  To give me a very general guide I multiple the figure of $400.00 being about his average net weekly earnings by the period of time of five years.  That gives me a very rough gross figure of about $100,000.00.  However I must discount that figure severely because he has a work history of unemployment for something like four years up until the time of the accident.  However I bear in mind that during that five years he may have obtained employment and indeed may have obtained employment at a greater earning rate.  Being as precise as I can in the circumstances taking into account that contingency I set a figure of $45,000.00 for past loss of earning capacity. 

Future Loss of Earning Capacity

1. Once again as a rough guide for the purposes of assessing his future loss of earning capacity and using his past employment as a guide I set the figure of $400.00 per week net as his present level of net earnings if he was in full employment.  The actuarial figures which are supplied to me (Exhibit P11) by consent are that the value of $1.00 up until the age of 60 years is $971.00 and to the age of 65 years is $1,064.00.  I round that out to a figure of $1,000.00 making a gross figure of $400,000.00.  I emphasise that is only a rough guide for the purposes of the present assessment.  In looking to reduce that amount for contingencies I find that he has lost a great deal of his working capacity due to the fact that he cannot do any work of a physical nature and he is not trained to do any other work.  True it is that he has taken on a TAFE course and he has the hope of working as a jeweller in the future.  However I find the likelihood of that happening to be little more than theoretical.  I take into account as I did when assessing past loss of earning capacity the fact that his work record up until the time of the accident was not good.  However I also find that as he is now only 31 and that he has the responsibility of a wife and three children. I find the likelihood of him looking for work more earnestly is greater than either before the accident or between the date of the accident until the time of this judgment.   I find that the likelihood is that he would take a more aggressive role in looking for a job because of his age and family situation.  I bear in mind also that if he did find a job he might well earn more than the net figure that I have set for $400.00 per week.  Bearing in mind all of these matters and looking at those figures as a rough guide I assess future loss of earning capacity at $250,000.00. 

Special Damages

1. Special damages have been agreed at $7,363.10.

Loss of Superannuation Benefits

1. I assess the amount for loss of superannuation benefits at $20,000.00.

Gratuitous Services

1. The plaintiff’s wife gave evidence that from the date of the accident she had to help him to do everyday tasks like going to the shower and the toilet while he was incapacitated with his lower legs in plaster and using a wheelchair.  I find that this type of assistance would have lasted at least until his second operation in late July of 1997.  There is very little evidence as to what she actually did by way of gratuitous services and for how many hours of the day she performed them.  I find that as time went on at least until the second operation in late July of 1997 the extent of her activities in helping her husband would have gradually become less and less.  In my view there was never any intention to employ anyone else to do that work. 

2. In my view the limitations provided by the Wrongs Act upon the amount of gratuitous services as urged by the defence do not apply to a case such as this because this does not involve a motor vehicle accident.  I therefore can set that figure at large.  For about the first 18 months after the accident I find that the plaintiff’s wife was attending him for at least 20 hours a week and I fix a basic rate of $15.00 per hour.  I find her role in helping him lessened as time went on.  I award an amount of $7,000.00 for gratuitous services.

Future Medical Expenses

1. According to the opinion of Dr. Von Der Borch which I accept, there may be various procedures that the plaintiff has to undergo in the future.  The most extreme of those is in fact the replacement of his ankle with an ankle prothesis the expense of which will be about $13,000.00.  However as I have already indicated that procedure is very much in its infancy and the likelihood of that happening is problematical to say the least.  There is also of course the future use of Panadeine Forte or other appropriate pain killers.  The evidence before me is that the plaintiff uses about 3 or 4 per day and a box of 20 is worth about $15.00.  However I must bear in mind that he might become less dependant on Panadeine Forte as the years go on especially if he works less or indulges in less activity.  Also future treatment might reduce the need for analgesics.  Once again my assessment cannot be precise and doing the best I can I set a figure of $7,000.00 for future use of analgesics.  As far as future medical procedures are concerned I accept Dr. Von Der Borch’s evidence that in the future he might require further operations especially an ankle joint replacement of the left ankle in about 15 to 20 years time.  According to Dr. Von Der Borch there is a 50% chance of that happening.  I also find there is a remote possibility of a prothesis as explained by Dr. Von Der Borch.  A joint ankle replacement will be something like $4,000.00.  Allowing for the contingency that the prothesis is theoretical to say the least I set a figure of $8,000.00 for future operative procedures.  I therefore set a total figure of $15,000.00 for future medical expenses.

2. I assess the 1st plaintiff’s damages as follows:-

   Non-Economic Loss  $60,000.00
                Past Loss of Earning Capacity  $45,000.00
                Future Loss of Earning Capacity  $250,000.00
                Special Damages  $7,363.10
                Loss of Superannuation Benefits  $20,000.00
                Gratuitous Services  $7,000.00
                Future Medical Expenses  $15,000.00
     $404,363.10

   Less 30% by way of contributory negligence      $121,308.93
     $283,054.17

The 2nd Plaintiff’s Claim for Consortium

1. I find that the 2nd plaintiff is entitled to be compensated for those acts of consortium which have been lost to her but she is not to be compensated for the mental distress, anguish and concern which she no doubt suffered by reason of the injuries to her husband (Calvaresi and Rota Forma Pty Ltd v Lawson and Lawson (1995) 184 LSJS 147 at page 196). It is clear that shortly after the accident they must have resumed sexual relation as their second child was born one year after the accident. I have very little evidence before me as to any actual detail of loss of consortium.

2. I assess damages for the 2nd plaintiff’s loss of consortium at $7,000.00. I reduce that by 30% because of contributory negligence.  That makes a final figure of $2,100.00.

3. There will be judgment for the 1st plaintiff in the sum of $283,054.17.

1. There will be judgment for the 2nd plaintiff in the sum of $4,900.00.

2. I will hear the parties as to interest and costs.