Kent v Mullally [No 2]
[2016] WADC 37
•18 MARCH 2016
KENT -v- MULLALLY [No 2] [2016] WADC 37
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WADC 37 | |
| Case No: | CIV:960/2011 | 14 -16 DECEMBER 2015 & 27 JANUARY 2016 | |
| Coram: | O'NEAL DCJ | 18/03/16 | |
| PERTH | |||
| 36 | Judgment Part: | 1 of 1 | |
| Result: | Judgment for the plaintiff, damages assessed | ||
| PDF Version |
| Parties: | CHRISTOPHER KENT PATRICK MULLALLY PAUL D'AMICO |
Catchwords: | Advisors' negligence Workers' compensation advisor failed to ensure plaintiff's common law action was commenced in time Action statue barred Loss of chance Causation Value of plaintiff's lost opportunity Damages |
Legislation: | Civil Liability Act 2002 s 5B and s 5K Limitation Act 2005 (WA) Occupational Health and Safety Act 1984 s 20 The Mines Safety and Inspection Act 1994 |
Case References: | Falkingham v Hoffmans (A Firm) [2014] WASCA 140 Gervan v Fenton [1992] HCA 54; (1992) 175 CLR 327 Johnson v Perez [1988] HCA 64; (1988) 166 CLR 351 Medlin v State Government Insurance Commission (1995) 182 CLR 1 Nikolaou v Papasavas, Phillips & Co [1989] HCA 11; (1989) 166 CLR 394 Thomas v O'Shea (1989) A Torts Rep 80-251 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
PATRICK MULLALLY
First Defendant
PAUL D'AMICO
Second Defendant
Catchwords:
Advisors' negligence - Workers' compensation advisor failed to ensure plaintiff's common law action was commenced in time - Action statue barred - Loss of chance - Causation - Value of plaintiff's lost opportunity - Damages
Legislation:
Civil Liability Act 2002 s 5B and s 5K
Limitation Act 2005 (WA)
Occupational Health and Safety Act 1984 s 20
The Mines Safety and Inspection Act 1994
Result:
Judgment for the plaintiff, damages assessed
Representation:
Counsel:
Plaintiff : Mr E J Myers
First Defendant : In person
Second Defendant : No appearance
Solicitors:
Plaintiff : Bradley Bayly Legal
First Defendant : Not applicable
Second Defendant : Not applicable
Case(s) referred to in judgment(s):
Falkingham v Hoffmans (A Firm) [2014] WASCA 140
Gervan v Fenton [1992] HCA 54; (1992) 175 CLR 327
Johnson v Perez [1988] HCA 64; (1988) 166 CLR 351
Medlin v State Government Insurance Commission (1995) 182 CLR 1
Nikolaou v Papasavas, Phillips & Co [1989] HCA 11; (1989) 166 CLR 394
Thomas v O'Shea (1989) A Torts Rep 80-251
- O'NEAL DCJ:
Introduction
1 In December 2005 the plaintiff was working as a scaffolder for Thiess Pty Ltd (Thiess) on a project being carried out for Alcoa Australia Ltd (Alcoa) at its Pinjarra Refinery. On 13 December 2005 the plaintiff was injured while working in the hazardous conditions that then existed on site.
2 The defendants carried on business together under the style 'Work Claims Australia'. They purported to act on behalf of people seeking workers' compensation. In January 2006 the plaintiff sought the advice of the defendants with respect to his workers' compensation claim. He dealt with the first defendant. The first defendant agreed to act on the plaintiff's behalf to advance a claim for workers' compensation with the plaintiff's employer Thiess.
3 The plaintiff received workers' compensation but his injuries were significant and persistent. The plaintiff wished to make a common law claim against both Thiess and Alcoa. In mid-2008 the plaintiff was led to believe by the first defendant that the defendants would assist him in advancing his common law claim. The plaintiff was never advised of the existence or the effect of the three year limitation period for such claims. While there were other acts of negligence that affected the rights that the plaintiff had at common law, on 12 December 2008 the plaintiff's common law action against Alcoa became statute barred by operation of the Limitation Act 2005 (WA).
4 The first defendant was once a legal practitioner. There is no suggestion that either defendant was an Australian legal practitioner at the time of these events. How they were able to offer the services they did is difficult to understand. The propriety of their conduct in performing the work that they did does not however arise as an issue in these proceedings.
5 The plaintiff brings this action for damages against the defendants for the loss of his opportunity to bring a claim for damages against Alcoa for the injuries arising from his accident in December 2005. The claim against the defendants is brought for breach of a duty to exercise reasonable care, skill and diligence, both in negligence and in contract.
6 The pleaded cases raised a number of issues, many of which were resolved by admissions or concessions at the beginning of or during the trial. I should record first that the second defendant did not appear at the trial but filed a written undertaking to submit to the result of the trial and any order of the court. The first defendant made the following admissions and concessions:
1. as the occupier of the Pinjarra Refinery, Alcoa owed the plaintiff a duty to take reasonable care for his safety;
2. the defendants owed the plaintiff a duty to take reasonable care in advising him with respect to his common law claim for personal injuries, and breached that duty by failing to advise him of the limitation period or refer the matter to legal practitioners prior to the expiry of the limitation; and
3. the plaintiff did not at any time suffer from a mental disability that rendered him unable to make reasonable judgments in matters relating to his person or property, such that the limitation date for the plaintiff's claim against Alcoa was extended.
7 The only issues remaining for me to decide are:
1. whether Alcoa breached its duty of care to the plaintiff;
2. whether there was contributory negligence on the part of the plaintiff;
3. whether the defendants' negligence caused the plaintiff loss; and
4. the measure of the plaintiff's loss and damage arising from his injuries and the defendants' breach of duty, if any.
The accident
8 The plaintiff is now 60 years old. He grew up in the United Kingdom and left school at age 15 to pursue a professional soccer career. He moved to Australia in 1974 and played professional soccer in the Victorian State League, the National Australian League and later for Adelaide City. In 1985, while playing semi-professionally for a Darwin team, he grew conscious of the fact that his soccer career was drawing to an end. He began to look for other employment. In about 1991, after working at various construction jobs, he obtained an intermediate scaffolding ticket. From that time he has worked for various employers as a scaffolder. In 2000 he came to Perth. By December 2005 he held an advanced scaffolding ticket, a forklift ticket, a confined spaces ticket and a scissor-lift ticket.
9 In 2005 Alcoa was carrying out a programme of expansion and refurbishment at its Pinjarra refinery. Thiess was one of the contractors engaged to assist with this. The plaintiff had previously worked for Thiess as well as other companies on substantial projects.
10 The conditions at the Pinjarra refinery in December 2005 were described by Mr John Walker who gave evidence on behalf of the plaintiff. Mr Walker is also a scaffolder and he was a leading hand for Thiess on this particular job.
11 Thiess' work for Alcoa included adding new scaffolding around existing scaffolding as the Alcoa worksite expanded. That required joining new scaffolding to old. The consequence of this manner of work was that it was necessary to cut into pipes and join different sections of scaffolding, which created a number of hazards.
12 The conditions at the Alcoa site were variable. Some new areas were clean and safe, while others were a mess and dangerous. Areas that were clean one day might be filthy the next. There were problems with steam leakages, and with caustic slurry and muck spilling onto walkways, viewing platforms and scaffolding. Sometimes workers would be covered in mud and caustic slurry if it was necessary to work in the vicinity of or under a conveyor. Steam leaked from pipes making visibility difficult. It was of course necessary for workers to wear full safety gear which included helmets and goggles, but these brought their own difficulties and restrictions.
13 On the day of the plaintiff's accident, Mr Walker's crew had been sent to see how additional scaffolding could be erected around Bauxite Bin 7 to allow access to the whole structure. Scaffolds were normally accessed by a ladder placed for the particular section of scaffolding. However, when Mr Walker and his crew got to the particular section of scaffolding that they were to look at, the refinery had been operating in that area, and the access ladder was almost buried in mud and slurry dropping from the conveyor above. It was also dropping onto the walkway.
14 Mr Walker and his crew walked back to the main staircase and looked for another method of access. They went to an observation deck, and Mr Walker got onto the scaffold from there by going under a handrail from the staircase. He recognised that there was a degree of hazard, but he thought that it was the safest way available. The plaintiff and the third man in the team advised Mr Walker that because of the danger they did not want to come onto the scaffolding.
15 Mr Walker advanced as best he could to the area he needed to look at. As he said, there was limited head height and he had to crouch in order to move forward. The observation deck and the scaffolding were covered in caustic mud and slurry.
16 The plaintiff had special training in occupational safety. As part of his job he was required to do job safety analyses, and he had the power to prevent access to scaffolding if he determined it to be unsafe. The unsatisfactory condition of the Alcoa site, or parts of it, was a matter that he had previously reported on a number of occasions both to his immediate supervisor and the Alcoa representative who attended at daily toolbox meetings.
17 The plaintiff observed that this particular area of scaffolding was especially hazardous. As Mr Walker correctly observed, the plaintiff did not himself want to go onto it. As John Walker advanced along the scaffold however, the plaintiff became increasingly concerned. He had observed the green tag at the access point to the scaffolding that was supposed to mark this section of scaffolding as safe to use. After cleaning the slurry from the tag the plaintiff observed that this particular section of scaffolding had been constructed by another contractor named Ridgeway, not Thiess. In all of the circumstances the plaintiff determined that this section of scaffolding was not or was no longer safe to access, that the green tag was no longer valid, and that the scaffolding should not be used.
18 The plaintiff became concerned about the safety of John Walker and he determined to tell him to get off the scaffold. He shouted at Walker but could not make himself heard over the noise of the plant. The plaintiff made a decision to try and follow Walker to get close enough to tell him to get off.
19 In his evidence before me John Walker described this section of scaffolding as 'a bit of a hodgepodge of odds and ends' and a 'mish-mash'. It was not 'regular scaffolding'. For this reason, as the plaintiff advanced towards Walker, he had to duck under a cable tray which was fixed just under the metal chequer plate floor of the level above. Because of the reduced and limited head height, he had to crouch. There were piles of muck and slurry from the conveyor belt that he had to try and get around.
20 The plaintiff's vision was impaired by his safety equipment. That included a helmet which restricted his ability to look upwards, as well as a fly net and goggles. Goggles were necessary due to the abundant caustic material on site. The evidence is, unsurprisingly, that the goggles tended to fog. The noise of operating machinery made it difficult to hear and to communicate.
21 As the plaintiff ducked under the cable tray and went to move forward, he struck his left shoulder on an I-beam that was parallel to the tray, but at a different height. The lower beam was obscured from his view by the part of the structure he had to duck under. He struck his shoulder with some force. Reeling from the pain of this, he grabbed his shoulder and went from crouching, to kneeling on his right knee. The impact to his shoulder was forceful enough that he thought he might be bleeding. He wanted to turn around to go back towards the staircase, but there was not enough room to turn around. Instead he moved forward, crouching because of the limited height and within two to three seconds struck his head on a 'butt tube', the end of a piece of scaffolding pipe, that was sticking out from the beam to his right side.
22 The force of that impact caused him to fall backwards. He immediately felt nauseous, and had a severe headache with a pain in his neck and shoulder. The impact of the blow had both driven his helmet onto his head and knocked it slightly askew.
23 John Walker heard the plaintiff's last shouts for him to stop and come back. As Walker looked over his shoulder at the plaintiff he saw him duck to get under a beam, strike his left shoulder, crouch down and within seconds, hit his head and fall backwards.
24 The accident was reported to the employer that day.
Negligence of Alcoa
25 The plaintiff has pleaded and the defendant has admitted that Alcoa, at all material times:
1. carried on the business of mining;
2. owned, managed and controlled the Pinjarra Refinery Site and was the occupier of the site as defined by s 2 of the Occupiers' Liability Act 1984;
(3) conducted mining operations at the site as defined by s 4 of the Mines Safety and Inspection Act 1994;
(4) occupied, controlled and supervised mining operations at the sites; and
(5) was thereby the principle employer at the site as defined by s 4 of the Mines Safety and Inspection Act 1994.
26 Section 9 of the Mines Safety and Inspection Act provides as follows:
9. Employers, duties of
(1) An employer must, so far as is practicable, provide and maintain at a mine a working environment in which that employer's employees are not exposed to hazards and, in particular, but without limiting the generality of that general obligation, an employer must —
(a) provide and maintain workplaces, plant, and systems of work of a kind that, so far as is practicable, the employer's employees are not exposed to hazards; and
(b) provide such information, instructions and training to and supervision of employees as is necessary to enable them to perform their work in such a manner that they are not exposed to hazards; and
(c) consult and cooperate with safety and health representatives, if any, and other employees at the mine where that employer's employees work, regarding occupational safety and health at the mine; and
(d) where it is not practicable to avoid the presence of hazards at the mine, provide employees with, or otherwise provide for the employees to have, such adequate personal protective clothing and equipment as is practicable to protect them against those hazards, without any cost to the employees; and
(e) make arrangements for ensuring, so far as is practicable, that —
(i) the use, cleaning, maintenance, transportation, and disposal of plant; and
(ii) the use, handling, processing, storage, transportation, and disposal of substances,
- at the mine is carried out in such a manner that that employer's employees are not exposed to hazards.
…
(5) The duties imposed under subsection (1) on an employer who is the principal employer at a mine are not taken to be carried out only by the appointment of a manager for the mine.
(6) Notwithstanding subsection (1), any duty imposed under that subsection on an employer who is not the principal employer at the mine applies only in relation to matters over which the employer who is not the principal employer has control, or but for an agreement between the 2 employers, would have had control.
13. Principal employers and managers, duties of
The principal employer at and the manager of a mine must take such measures as are practicable to ensure that the mine and the means of access to and egress from the mine are such that persons who are at the mine, or use the means of access to or egress from the mine, are not exposed to hazards.
29 Section 15A the Mine Safety and Inspection Act provides as follows:
15A. Contract work arrangements
(1) This section applies where a person (the principal) in the course of mining operations engages a contractor (the contractor) to carry out work for the principal.
(2) Where this section applies, sections 9 and 9A have effect —
(a) as if the principal were the employer of —
(i) the contractor; and
(ii) any person employed or engaged by the contractor to carry out or assist in carrying out the work concerned, in relation to matters over which the principal has the capacity to exercise control; and
(b) as if —
(i) the contractor; and
(ii) any person referred to in paragraph (a)(ii),
- were employees of the principal in relation to matters over which the principal has the capacity to exercise control.
(a) as if the principal were the employer of —
(i) the contractor; and
(ii) any person employed or engaged by the contractor to carry out or assist in carrying out the work concerned;
and
(b) as if —
(i) the contractor; and
(ii) any person referred to in paragraph (a)(ii),
- were employees of the principal.
(a) the duties of an employee under section 10; and
(b) the duties of an employer under section 15D(2).
(5) An agreement or arrangement is void for the purposes of this section if it purports to give control to —
(a) a contractor; or
(b) a person referred to in subsection (2)(a)(ii),
of any matter that —
(c) comes within section 9 or 15D(2); and
(d) is a matter over which the principal has the capacity to exercise control,
but this subsection does not prevent the making of a written agreement as mentioned in section 15D(3).
(6) A purported waiver by a contractor of a right that arises directly or indirectly under this section is void.
(7) Nothing in this section derogates from —
(a) the duties of the principal to the contractor; or
(b) the duties of the contractor to any person employed or engaged by the contractor.
31 It is not disputed that Alcoa owed a duty to the plaintiff, to so far as practicable, provide and maintain a working environment where employees were not exposed to hazards, consistent with the obligations under the Mines Safety and Inspection Act 1994. The first defendant advanced an argument that no duty was owed in respect of risk of mental harm, but accepted that such a duty was owed in respect of the risk of physical injury. Later in these reasons I will deal with the question of duty of care in respect of mental harm.
32 The first defendant did not concede that Alcoa had breached its admitted duty in the case of the plaintiff's accident, but did not mount any argument against that proposition.
33 It was of course always within the power of Alcoa to ensure that areas in which contractors' employees were to be directed were kept clean. It was always open to Alcoa to restrict access to areas that were covered by slurry because of recent operations, and to insist that its contractors coordinate their activities with Alcoa to ensure that workers were not sent into, and not allowed to work in areas where slurry made their work more hazardous.
34 The evidence before me is that shortly after the plaintiff's accident, there was 'a big clean-up' of the Alcoa site generally. The beams upon which the plaintiff injured himself were removed and replaced by a safer, single support mechanism. It was apparently practicable for this to be done, and there is no apparent reason why it could only be done after the plaintiff's accident, as opposed to before.
35 The risk of harm in the circumstances that I have described is both foreseeable and significant. On the evidence, it was within the ability and means of Alcoa to ensure that the site was cleaned. In all the circumstances it is difficult to see why a reasonable person would not have ensured that any section of the plant into which contractors' employees were to be sent was reasonably free from hazards, at least to the extent that cleaning would allow.
36 On the evidence before me it is difficult to see how Alcoa could have avoided a finding that it failed to do what was practicable to ensure that the area where the plaintiff was required to work was free from the hazards that the plaintiff encountered. I find that Alcoa did breach its duty of care to the plaintiff. I am satisfied that it was that breach that can be said to have caused the plaintiff's injuries.
Contributory negligence
37 The first defendant argues that the plaintiff was injured because he failed to take reasonable care for his own safety. In this regard, the first defendant relies on the obligation of a person, both at common law and pursuant to s 20 of the Occupational Health and Safety Act 1984, to take reasonable care to ensure their own health and safety at work. Section 20(1)(a) imposes a requirement on a worker to report hazards which they are unable to correct, and makes it an offence to fail to do so in certain circumstances.
38 I should also observe that s 10 of the Mines Safety and Inspection Act provides as follows:
10. Employees, duties of
(1) An employee at a mine must take reasonable care —
(a) to ensure his or her own safety and health at work; and
(b) to avoid adversely affecting the safety or health of any other person through any act or omission at work.
(2) Without limiting the generality of subsection (1), an employee contravenes that subsection if that employee —
(a) fails to comply, so far as the employee is reasonably able, with instructions given by that employee's employer or the manager of the mine for the employee's own safety or health or for the safety or health of other persons; or
(b) fails to use such protective clothing and equipment as is provided, or provided for, by the employer as mentioned in section 9(1)(d) in a manner in which the employee has been properly instructed to use it; or
(c) misuses or damages any equipment provided in the interests of safety or health; or
(d) …
(3) An employee must cooperate with his or her employer and the manager of the mine in the carrying out by those persons of the obligations imposed on those persons under this Act.
15. … It is demonstrably clear both from the plaintiff's evidence and the evidence of Mr Walker that the scaffold was hazardous and the plaintiff should not have entered it and should have forthwith reported the conditions to the employer and instead he chose to move forward and sustain the injuries that he described.
16. The plaintiff will be guilty of contributory negligence if he ought reasonably have foreseen that if he did not act as a reasonable and prudent person he would be exposed to the risk of injury: see Dowthwaite Holdings v Saliba [2006] WASCA 72; and Bankstown Foundry Pty Ltd v Braistina [1986] HCA 20.
17. The defendant's submission is that taking account of all of the evidence of the site conditions, the history deposed to by both the plaintiff and Mr Walker, the plaintiff's many years of experience, the plaintiff's knowledge of what was at the scaffold and the walkway he ought to have foreseen the likelihood of risk of injury. The plaintiff was therefore guilty of contributory negligence.
40 Section 5K of the Civil Liability Act provides as follows:
5K. Standard of contributory negligence
(1) The principles that are applicable in determining whether a person is liable for harm caused by the fault of the person also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm.
(2) For that purpose —
(a) the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person; and
(b) the matter is to be determined on the basis of what that person knew or ought to have known at the time.
5B. General principles
(1) A person is not liable for harm caused by that person's fault in failing to take precautions against a risk of harm unless —
(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known); and
(b) the risk was not insignificant; and
(c) in the circumstances, a reasonable person in the person's position would have taken those precautions.
(2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things) —
(a) the probability that the harm would occur if care were not taken;
(b) the likely seriousness of the harm;
(c) the burden of taking precautions to avoid the risk of harm;
(d) the social utility of the activity that creates the risk of harm.
43 First, the risk of some kind of personal injury was foreseeable in the sense that it was not insignificant. Certainly Mr Walker and the plaintiff were alive to the fact that this was a hazardous environment in a number of respects. The presence of the slurry from the bauxite refining process presented a particular kind of risk. The caustic fumes, while not so hazardous as to require breathing apparatus, meant that goggles were necessary. The difficulty of having to navigate through a hodgepodge of someone else's scaffolding, burdened and restricted by the necessary safety gear, carried with it a risk of blundering into some part of the scaffolding structure. The piles of caustic slurry made that hazard greater.
44 The precaution which the first defendant says that the plaintiff should have taken was not to enter onto the scaffolding. There are several things that need to be observed about this. The first is that the plaintiff was an experienced and capable scaffolder who had some familiarity with the risks that presented. It is difficult to see how the work of a scaffolder could be made risk free in any real sense. It is the kind of job where some level of hazard is always present and where safe working practises must be incorporated as routine in almost all aspects of the work carried out, and not merely as an afterthought.
45 The second is that the environment in which the plaintiff found himself was one in which he was expected to function in order to earn a wage. Scaffolding on the Pinjarra site brought its own unique problems. The risk of, for example, striking one's shoulder on some part of the scaffolding, was a low background risk against the greater and more obvious hazards of working at height, on unfamiliar and potentially uncertain structures, in an environment doused with steam and caustic mud. Judgments had to be made about risks that could be accommodated or temporarily accommodated by precautions, and risks that could not be accepted even for a minute.
46 The plaintiff was not oblivious to the hazards. The plaintiff and Mr Walker were alive to the risks. They had protested and refused to work in some circumstances. Protests were made both to Thiess and Alcoa by the plaintiff and his fellow employees. The situation that presented itself on the day of the accident however was one that they were, to some degree, accustomed to by use.
47 The probability that harm would occur if care were not taken was real, but it cannot be described as great for men such as these, experienced in these conditions. The particular hazard that concerned the plaintiff was the risk of prolonged exposure in this environment. The kind of harm to which the scaffolders were exposed included the risk of exposure to caustic mud and steam. The greater risk of a slip and fall, or the lesser risk of blundering into some ill-placed piece of someone else's scaffolding work, were of course present.
48 'Greater' and 'lesser' are used here in the sense of the potential magnitude of harm that could result. The risk of harm from both was real, as was the seriousness of the harm if such an accident were to occur. The likely seriousness was significant but not great, unless falling from a height was included. Of course, harnesses and helmets were standard safety equipment, and were worn by the plaintiff and his workmates.
49 The burden on the plaintiff of taking the first defendant's suggested precaution to avoid risk to the plaintiff of harming himself is somewhat more difficult to assess. The first defendant's submission is, that by entering onto the scaffolding after Walker, the plaintiff 'didn't look out for himself'.
50 On the one hand it would have required literally no physical effort for the plaintiff to remain in the position of safety, and wait for Mr Walker, in the hope that he returned quickly and without incident. In circumstances however where the plaintiff had responsibilities for the safety of others, and had determined that this particular area of scaffolding should not be used for access until it had been cleaned, the burden of allowing a workmate then to continue using the scaffolding is more difficult to quantify. The burden is moral, not physical.
51 In my view, weighing all of those things in the balance, the determining criterion is s 5B(2)(d) – the social utility of the activity that creates the risk of harm. The plaintiff went onto the scaffolding, notwithstanding his concern about the risk, in order to warn Mr Walker and to require him to return to a position of safety. He could not otherwise make himself heard by Mr Walker, or so he believed. In my view the position is analogous, if on a lesser scale, to that of a rescuer. In my view it would be quite wrong to find a breach of duty on the part of the plaintiff where he has consciously and conscientiously acted to protect another worker.
52 Having regard to all of those principles, I conclude that the plaintiff was not contributorily negligent with respect to the injury that he suffered.
The plaintiff's injuries
53 The blow that the plaintiff received to his left shoulder was painful and reasonably debilitating for a time. However, it was the subsequent blow to his head that has been responsible for the most significant problems. The injury to his left shoulder caused acute pain immediately. The plaintiff also fairly quickly developed headache and neck pain.
54 He saw a nurse after reporting his injury at work. The next day he saw his general practitioner. After a couple of days off work the left shoulder pain slowly improved but there was an increasing right-sided neck pain radiating across his right shoulder, down the back of his right arm and forearm and into the right shoulder blade. There was a tingling of the fingers of his right hand.
55 In February of 2006 the plaintiff was referred by his GP to Andrew Miles, a neurosurgeon. Mr Miles arranged for CT and MRI scans of the cervical spine and left shoulder. An MRI scan of the left shoulder showed some acromioclavicular joint arthropathy. The cervical spine images however showed a very large disc protrusion at the C6/7 level, mostly to the right side. Mr Miles observed that that was causing marked compromise of the right C7 nerve root and a slight displacement of the right side of the spinal cord. There was also a smaller left-sided component to the disc protrusion. That was not apparently causing any nerve root compromise on the left, based on the plaintiff's lack of complaint. Mr Miles recommended a C6/7 foraminotomy and discectomy. This was performed in March 2006.
56 Following the operation the plaintiff had some improvement in the symptoms. However he had residual pain radiating along the lateral and posterior aspects of his right upper arm and some sensory disturbance around the index finger of his right hand. Even in that first follow-up of June 2006, Mr Miles' conclusion was that the plaintiff was unlikely to return to work as a scaffolder. In August 2006, despite the surgery, Mr Miles recorded the pain and intermittent paraesthesia radiating into the plaintiff's right shoulder blade, into the right pectoral region and down the back and side of his right arm and forearm, with associated numbness involving the 1st and 2nd fingers of the right hand. Despite the improvements since surgery Mr Miles reports, 'I don't think that there is any doubt that Chris has a significant right C7 nerve root problem given his ongoing symptoms'.
57 The pain and disability from his original injury caused the plaintiff an understandable degree of anxiety and distress that was recognised as an adjustment disorder. However, the failure of surgery to substantially relieve those problems, the limited relief that was achievable with analgesics, the consequent inability to work and loss of general purpose in life resulted in a severe depression. It was of such severity that it totally incapacitated him from work, according to two psychiatrists who saw the plaintiff.
58 In the last 10 years the plaintiff has been examined by a number of medical practitioners on referral by his GP, or at the request of his lawyers or the lawyers for Alcoa, or at the request of the first defendant. The opinions expressed by all of the medical practitioners are remarkably similar.
59 First, the reports consistently point to the accident in December 2005 as the cause of the plaintiff's current physical problems and the substantial cause of his psychiatric problems. Second, apart from the faint hope that is occasionally expressed of the possibility of a degree of improvement that might result in some capacity to do some form of work, there is no realistic prospect of the plaintiff returning to the work for which he is qualified.
60 The first defendant submitted that I should in fact be doubtful that the plaintiff's psychiatric condition had resulted in total incapacity for work. That submission was based on a report dated 29 October 2015 from a Dr Helena Piirto. Dr Piirto is a consultant psychiatrist who examined the plaintiff on 19 October 2015 at the request of the first defendant. The submission of the first defendant is that, based on the evidence of Dr Piirto, I should not be satisfied that the plaintiff's psychiatric condition, particularly his depression, is such that he is in fact totally incapacitated and, that to some extent, his current condition is a result not of his accident but of his underlying personality.
61 With respect, the portions of Dr Piirto's report that the first defendant relies on are taken out of context. In making the observations that she did, Dr Piirto was answering a specific question from the first defendant as to the ability of the plaintiff to make reasonable judgments in respect of matters relating to his personal property in the period 2006 – 2008. Those matters were at that time relevant to the question as to whether or not the running of any limitation should have been postponed for a time when the plaintiff was said to have lacked mental capacity. Dr Piirto, like the other psychiatrists, was not of the view that the plaintiff ever lacked capacity in that sense. Her conclusions are, on the whole consistent, with those of the other doctors. Among other things she says:
Mr Kent presents with a depressive disorder. The differential diagnoses are of a chronic adjustment disorder with depressed mood or a major depressive disorder which has partially responded to intervention.
The onset of Mr Kent's disorder is related to a workplace incident in mid-December 2005. However relevant direct and indirect related factors have resulted in his complex psychological and psychiatric profile being maintained and modified.
Psychiatric disorders can be considered the result of pre-disposing (that is, related to vulnerability), precipitating (that is triggering) and perpetuating (that is, maintaining) factors. These can be considered biological, psychological and social in nature.
62 Dr Piirto refers to aspects of the plaintiff's personality that may have predisposed him to mental problems of this kind. She also refers to the ongoing stressors that he has experienced, that include such matters as personal relationships, finances and accommodation. It is of course the case that some of these ongoing stressors existed because the plaintiff found himself unable to work and unable to obtain a remedy for the injuries that he suffered. As Dr Piirto said:
Mr Kent became distressed in mid-2010 when he was informed that appropriate paperwork had not been submitted on time. Ultimately he had to seek independent legal representation. This stressful situation has contributed to maintaining symptoms in recent years.
63 Dr Piirto accepts however that the plaintiff's mental problems are causally related to his workplace accident. Dr Piirto does not suggest that the plaintiff is likely to return to work in the near future. To the contrary she says:
The prognosis is guarded. I do not anticipate a full recovery in the foreseeable future. However there should be some improvement if there is an appropriate resolution to his issues related to his claim.
Alcoa's duty of care for mental harm
64 Another argument belatedly raised by the first defendant involves Alcoa's liability for the consequences of the mental harm suffered by the plaintiff. The submission is that Alcoa did not owe the plaintiff a duty of care not to cause him psychiatric injury, and that part of his claim against Alcoa would have therefore failed. For that reason the first defendant submits that, in effect, the negligence of the defendants did not cause loss in respect of damages related to psychiatric injury.
65 The first defendant relies upon the provisions of the Civil Liability Act at s 5S as follows:
5S. Mental harm: duty of care
(1) A person (the defendant) does not owe a duty of care to another person (the plaintiff) to take care not to cause the plaintiff mental harm unless the defendant ought to have foreseen that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken.
(2) For the purpose of the application of this section in respect of pure mental harm, the circumstances of the case include the following —
(a) whether or not the mental harm was suffered as the result of a sudden shock;
(b) whether the plaintiff witnessed, at the scene, a person being killed, injured or put in peril;
(c) the nature of the relationship between the plaintiff and any person killed, injured or put in peril;
(d) whether or not there was a pre-existing relationship between the plaintiff and the defendant.
(3) For the purpose of the application of this section in respect of consequential mental harm, the circumstances of the case include the personal injury suffered by the plaintiff.
(4) This section does not require the court to disregard what the defendant knew or ought to have known about the fortitude of the plaintiff.
67 The submissions of the first defendant recognise that the mental injury suffered by the plaintiff is not 'pure mental harm' but rather 'consequential mental harm' arising as a consequence of, or being secondary to the physical injuries which he suffered. The submission however is that
… it is almost inconceivable that Alcoa would have been found by this court to have foreseen that the plaintiff because of (Alcoa's) negligence in the circumstances of this case would have caused the plaintiff mental harm. The plaintiff could not have established on the balance of probabilities that Alcoa knew or ought to have known that its failure to clean up the scaffold site or in having scaffold parts that constituted a hazard would result in mental harm to the plaintiff. His failure to establish that means that Alcoa did not owe the plaintiff a duty of care to prevent mental harm: CLA s 5S(1).
68 With respect, this submission overlooks the effect of s 5S(3). The circumstances from which Alcoa's imputed ability to foresee a risk of mental harm were not limited to the hazardous condition of the workplace. In gauging the extent of foreseeability of mental harm Alcoa, as part of the circumstances of the case, is taken to have regard to the injury suffered by the plaintiff. The injury the plaintiff suffered was one which, despite surgery, left him with significant disability and chronic pain. When those circumstances are taken into account the risk of a debilitating depression is one which Alcoa ought to have foreseen, and it was a risk which was not insignificant. Having regard to the principles in s 5B of the Civil Liability Act, in my view it is a risk which was foreseeable and which a reasonable person would have taken precautions against.
The defendants' retainer
69 As I have recorded earlier in these reasons, it has been conceded that the defendants owed the plaintiff a duty to take reasonable care in advising him about his common law claim for personal injuries, and they breached that duty. It is still of course necessary that the plaintiff establish first, that he has suffered some loss or damage and second, that that loss or damage was caused by the defendants' negligence: see Falkingham v Hoffmans (A Firm) [2014] WASCA 140 [37] – [38]. This issue was averted to in the plaintiff's written opening submissions. During the course of argument I confirmed with the first defendant that he had read the decision in Falkingham and that he was aware of the issues of causation summarised there by the court. I confirmed with him that while he challenged the extent of the claim for damages that the plaintiff could have obtained from Alcoa, he did not rely on other causation issues of the kind outlined in Falkingham in opposing the plaintiff's claim. Given the background to this matter I can understand why that would be.
70 In dealing with the second issue the law requires that the plaintiff establish on the balance of probabilities that he or she would have pursued the opportunity to obtain compensation by way of verdict or by compromise:
Ordinarily, that would be established by proof that the plaintiff would have litigated the cause of action to trial or earlier valuable settlement: Falkingham [40].
71 I have already described the circumstances of the plaintiff's accident and the injuries that he received. In my view the plaintiff's claim against Alcoa for negligence was strong, the plaintiff suffered significant injuries that warranted substantial compensation by way of damages, and a defendant in the position of Alcoa, properly advised, would have been prudent to avoid trial by settlement. Based on the evidence before me, the plaintiff would have succeeded in his claim against Alcoa. When the limitation period expired the plaintiff lost a real chance to obtain compensation by way of settlement or judgment after trial.
72 The next question is whether the plaintiff would have litigated the common law cause of action to trial or earlier valuable settlement. The surrounding objective facts and circumstances may be examined to see what the plaintiff would have done in the circumstances.
73 After the plaintiff reported his injuries to Thiess he began to think that Thiess doubted the fact that he had been injured. Two of the plaintiff's supervisors openly expressed their disbelief in the fact of his injury. He was however placed on light duties on 21 December.
74 The plaintiff was sent for examination by a Dr Adonis, and eventually Dr Adonis referred the plaintiff for a CT scan and physiotherapy.
75 The plaintiff was understandably concerned about the position taken by his supervisors. On 16 January 2006 the plaintiff met with the first defendant at the office of 'Workclaims Australia' at the defendants' office in Joondalup. The plaintiff told the first defendant what had happened. The first defendant said that he would be able to assist. The plaintiff was asked for $750 up front and within two days received an invoice for $825.
76 The plaintiff continued to seek medical assistance. In March 2006 Dr Miles carried out the discectomy procedure previously referred to. The plaintiff was an in-patient at Mount Hospital for three days after this operation. As the medical evidence confirms, the operation was only partially successful. The plaintiff continued to experience pain and disability and his depression grew.
77 From this time the plaintiff was frequently required to attend at medical appointments, both with his treating doctors and as required by Thiess. He attended as required for meetings with the first defendant and met bills that were sent to him by the defendants. That was despite the fact that because of his circumstances the plaintiff either had to borrow from friends or pay the defendants from the proceeds of compensation payments that he received. This included a further bill for $1,760 in April 2007, a bill for $9,995 in June 2007, and a bill for $5,000 in May 2008.
78 In February 2008 the plaintiff and the first defendant attended an informal conference and negotiated a redemption settlement of his workers' compensation claim for $60,657 plus $3,000 in costs. Of this on 17 April 2008 the plaintiff received from the defendants a cheque for $54,291 for the settlement of his workers' compensation against Thiess.
79 A further $26,101 was paid by the workers' compensation insurers as a top-up payment in August 2008. Of that sum the defendants paid the plaintiff $15,851, retaining the sum of $10,250 as money said to be owed. It is the case that there continues to be some dispute as to what was charged and what was paid. It seems however that $5,000 from the money paid by the insurers was retained by the defendants for the purposes of the common law claim.
80 The plaintiff provided the defendants with information and documents that they requested and he accepted their advice as to the steps required in order to pursue his common law claim. In March 2009 he was advised of the costs involved in making a claim for damages against Alcoa in the District Court. At the defendants' request he signed a document entitled 'Authority to engage lawyers' and returned that to the defendants. The plaintiff himself did not meet the lawyer engaged, Ronald Bower of Corser & Corser, until much later.
81 The plaintiff persisted in trying to obtain information from the defendants despite some obvious signs that the enthusiasm of the first defendant for the litigation was waning. In April 2009 the first defendant advised the plaintiff that a writ of summons had been filed in the District Court and served on Alcoa. Thereafter the plaintiff met with the first defendant to be advised of the progress of his claim against Alcoa. Little information was forthcoming. It was only in February of 2010 during a meeting with the first defendant that the plaintiff was told that the first defendant had 'missed the date for filing the court documents against Alcoa by "one or two days" '. The plaintiff said that the first defendant then 'told me that because the date was missed I might not be able to make a claim for damages against Alcoa in the District Court'.
82 The plaintiff was devastated by this news. He continued however to seek information, and he received increasingly dubious advice from the first defendant as to what might be done to pursue a claim against Alcoa. This included a suggestion from the first defendant that misleading conduct on the part of Alcoa had caused the limitation date to be missed.
83 At the instigation of the first defendant, an action was eventually commenced by the plaintiff against Alcoa in the Federal Court of Australia for misleading and deceptive conduct. This occurred in September 2010. The plaintiff attended at a directions hearing in the Commonwealth Law Courts on 8 October 2010 and here for the first time he met Ronald Bower. Regrettably, according to the plaintiff, he was unable to speak with Mr Bower about matters of substance and received no advice from him. A further directions hearing was held at the Commonwealth Law Courts on 22 November 2010 with both the first defendant and Mr Bower, and a mediation conference was listed for 14 March 2011. Again, the plaintiff says he was not given the opportunity to speak to Mr Bower about matters of substance. Nor did he ever see or speak to him again.
84 The Federal Court claim was dismissed by consent on 11 February 2011. On 25 February 2011 the first defendant advised the plaintiff that nothing more could be done with respect to the claim against Alcoa and that the plaintiff's only option was to make a claim against the first defendant personally for negligence.
85 Notwithstanding the hardships that he faced in meeting the financial demands placed upon him by the first defendant the plaintiff continued to do what he was told was necessary in order to advance the claim against Alcoa. Had a claim been commenced in time, any legal practitioner who was properly instructed would have advised the plaintiff that he had a meritorious claim worth pursuing. In my view a reasonable and prudent solicitor who had obtained the evidence that was available would have told the plaintiff that his objective prospects of success were good. In all of the circumstances here I readily infer that the plaintiff would have pursued the opportunity to obtain compensation by way of verdict or by compromise.
Quantum of damages
86 The plaintiff and first defendant have agreed, consistently with the authority of Johnson v Perez [1988] HCA 64; (1988) 166 CLR 351, and Nikolaou v Papasavas, Phillips & Co [1989] HCA 11; (1989) 166 CLR 394 that damages should be assessed from the date that the plaintiff's claim against Alcoa became statute barred, 12 December 2008. The parties have agreed that the plaintiff's past loss is nil, taking into account the workers' compensation that he received including his redemption settlement, with two exceptions. The two exceptions are claims for past loss of superannuation, agreed at $17,152.36, and interest on that amount agreed at $4,245.70.
87 Two significant areas of disagreement are the plaintiff's future loss of earnings, 'future' in the sense of the future as at 12 December 2008, and general damages. I will return to these issues. Otherwise however the parties have agreed the following heads of damage.
Future medical treatment
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88 The argument for the plaintiff is that he has suffered a permanent and total loss of earning capacity. That argument is based on the physical and mental injuries that the plaintiff suffered, the ongoing levels of disability described by him and the various doctors that have examined him, and the conclusion of Dr Rosenthal, a physician practising in the area of Rehabilitation Medicine, in a report dated 9 December 2014.
89 After reviewing previous medical reports, imaging, and electrophysiological investigations, Dr Rosenthal made his own clinical examination of the plaintiff. He concluded that the plaintiff was not fit for his pre-accident occupation, and not likely to regain that capacity in the foreseeable future. He said that the plaintiff 'is not fit to work in any capacity that would have a significant physically onerous requirement' and he was not able to identify 'an alternative vocational program'.
90 The earning capacity which it is submitted the plaintiff has lost is based on the terms of his employment contract with Thiess. That required him to work a 52 hour week, with 36 hours paid at a normal rate of $26.41 per hour and 16 hours at an overtime rate. The effect of that would be to yield $1,690.28 gross per week or $1,264.28 net per week. The submission is further, that by 13 December 2008 the plaintiff would have been working at a pay rate of not less than $100,000 gross per year based on $1,923 gross per week and $1,406 net per week.
91 The rates which the plaintiff relies on for the calculation of lost earning capacity are based on rates negotiated by the Construction, Forestry, Mining and Energy Union (CFMEU). Those rates represented increases over rates contained in the Building and Construction General On-site Award 2010. The CFMEU rates were effective from 1 March 2010.
92 The submission by the first defendant puts forward a number of matters disputing the idea that lost earning capacity should be measured by 10 years full-time employment at CFMEU agreement rates.
93 The first argument advanced by the first defendant is that I should not accept that the plaintiff did suffer a total loss of earning capacity. Two reasons are offered for this. First it is said that I should not accept the plaintiff's own evidence in this respect or what he has said to his treating doctors, because the plaintiff is not a credible witness. Second, I am asked to conclude that in any event, even if the plaintiff is unable to work full-time as a scaffolder he nonetheless has a retained earning capacity.
94 The first defendant also raises as an issue the fact that whatever rates were payable for scaffolders, the plaintiff's tax records for the period prior to his accident do not suggest that his employment was full-time.
95 There is an issue with respect to the credibility of the plaintiff.
96 In 2003 while employed by a company called Blastworks, the plaintiff suffered an injury to his left elbow when he was knocked over by another employee. He was off work for a number of weeks because of it. In subsequent job applications, and in declarations he was required to make relating to his workers' compensation claim, he did not refer to that particular injury. I am satisfied that he intentionally concealed the fact of that injury and that he was not honest in his evidence in that respect at trial, at least initially.
97 In the course of the plaintiff's cross-examination it emerged that on 16 January 2003 while working for an employer called 'Blastworks' the plaintiff was assaulted by another worker. The workers' compensation medical certificates filed in respect of this incident described it as occurring when the plaintiff 'slipped'. He had a 3 cm laceration on his elbow as well as bruising. He complained of pain in his left shoulder and the left elbow was swollen. It became infected. The plaintiff was off work for some 13 weeks with respect to this injury, mainly it seemsbecause of the infection that arose in his left elbow. As it turns out, the first defendant also assisted him in claiming compensation for this particular injury.
98 From documents exhibited in the course of the trial it became apparent that in subsequent job applications the plaintiff concealed the fact that he had experienced this particular injury. He disclosed however that in 2002 he had had an accident where he pinched his right ring finger, which led to the amputation of the tip of that finger. No mention was made of the injury at Blastworks.
99 After the plaintiff was injured working at the Alcoa site, he was asked on various occasions about prior injuries. He did not mention the 'slip' at Blastworks. He signed a form declaring that his only previous workers' compensation claim related to the tip of the right ring finger.
100 When cross-examined about his failure to reveal the 2003 accident he was evasive. Eventually, what appeared to me to be the truth of this particular matter emerged. The plaintiff did not disclose the 2003 accident and the resulting 13 weeks off work, because he was concerned about it affecting his prospects for subsequent employment. Persistent cross-examination led him to acknowledge that a long term injury and workers' compensation claim would effectively be fatal to subsequent employment. Of course, having concealed that injury in order to obtain employment when he was subsequently injured, I infer that it was not possible to then disclose the 2003 injury without revealing his earlier lack of candour.
101 The plaintiff's dishonesty in respect of this matter and his evasion in answering questions about it do lead me to approach his evidence with caution. It does not however lead me to reject his evidence about his incapacity for employment. There are several reasons for that.
102 First, I have no concern that the 2003 injury left him with some sort of residual problem in his shoulder that could be related to his ongoing disability. The records from the time of the 2003 injury and his subsequent employment history do not suggest any such thing. Next, the injury that has caused the plaintiff the most difficulty and has resulted in his current depression, was the injury to his neck. That he did suffer such an injury is objectively established by the evidence of the surgeon who operated on him, Mr Miles.
103 Further, the reason for his failure to disclose the 2003 injury and his dishonesty in that respect, while plainly not to his credit, is understandable in context. The plaintiff's evidence was that it was notorious in his industry that any long term injury, that is an injury resulting in significant time off work, could result in him not being able to gain employment if the injury were known.
104 Finally, the remarkable consensus of medical opinion about the plaintiff's injuries and his ongoing incapacity is persuasive.
105 The more difficult issue is establishing exactly what the plaintiff's earning capacity was for his particular trade in the construction industry. As a general proposition it seems to me that I can accept that the plaintiff had a capacity to earn at the rates set out in the CFMEU agreement. The more difficult question is how much work, at that rate, was available to someone like the plaintiff?
106 The first defendant rightly points to the plaintiff's history of earnings prior to the accident. The argument on behalf of the plaintiff asserts that using the CFMEU base rate for a 36 hour week together with ordinary allowances the plaintiff had the capacity to earn $80,474 gross per year and $62,751 per year net of tax. However, the income tax assessments for the plaintiff in the years prior to his accident show the following taxable income for the year ending 30 June in each case:
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107 The plaintiff gave evidence that in each of these years he also worked in the United Kingdom. A further certificate from Inland Revenue became an exhibit in the trial. This showed that in the year 2003, with a 'leaving date' of 2 October 2003, the plaintiff earned a total pay of £7,653 while employed by Stirling Scaffolding Ltd. That income should be brought into the plaintiff's taxable income for the years ending June 2003 and 2004, although I have not been provided with any assistance in that regard, either in apportioning it or converting to Australian dollars. No other Inland Revenue certificates were filed.
108 Before commencing work with Thiess on the Alcoa site the plaintiff completed a registration of interest in employment. That document, which became an exhibit in the trial, was signed by the plaintiff on 21 March 2005. As might be expected, he was asked about his employment history in the previous five years. The plaintiff listed nine former employers commencing in 2 January 2003. The list included Stirling Scaffolding in the United Kingdom for the period 10 May 2003 to 24 September 2003. The document records periods of employment as brief as three days (Aim Maintenance- 2 January 2003 to 5 January 2003) to as long as four and a half months (at Stirling Scaffolding in the United Kingdom). The plaintiff started the calendar year 2004 with employment for a company called Allstaff at Roxby Downs. This period of employment, which began on 1 December 2003, ended after one and a half months on 17 January 2004. The plaintiff was then seemingly unemployed for four weeks before he took up employment with a company called Mitcon in Adelaide. This employment lasted about three weeks, from 13 February 2004 to 6 March 2004. Like the job with Allstaff Resources, the reason for leaving Mitcon was described as 'work completed'.
109 The plaintiff was then apparently off work for one and a half months before being engaged by Thiess at a job for CSBP in Kwinana. This job lasted for two months from 22 April 2004 until 23 June 2004. The reason for leaving here was 'sinus, tonsils, operation'. The plaintiff was then re-engaged by Thiess at the CSBP job in Kwinana from 23 August 2004 to 20 September 2004. The reason for leaving this job was described as 'work completed'. The plaintiff was then off for a further three weeks before being engaged by Blackadder Scaffolding at a job at Hi-Smelt Kwinana. This employment lasted from 11 October 2004 until 7 November 2004. After four weeks of employment the plaintiff left 'to work at CSBP Thiess'. He was once again engaged by Thiess from 9 November 2004 until 4 March 2005. The reason for leaving here seems to have been a personal one, described as 'relationship breakdown'.110 The plaintiff was re-engaged by Thiess for the Alcoa project and he started work there in July 2005. He worked as a scaffolder until his accident, and then for a time was on light duties. The evidence however was that, except for him, the other scaffolders were all laid off at Christmas 2005.
111 I accept that as a highly qualified scaffolder the plaintiff had the capacity to earn significant rates, the kind established by the CFMEU, when he was employed on some projects. Accepting that there would have been times when his trade was very much in demand, the fact is that his own history shows a considerable rate of frictional unemployment; that is, unemployment in the time between one job finishing and the next job starting.
112 Looking only at calendar year 2004 the plaintiff worked for just seven months and was off work for five months. Of course he would have been entitled to periods of leave. There was also a time when he was recovering following his sinus and tonsils operation. I do not know how much time was needed for recovery, and how much was required to then find another job. Some part of the five months off work may well have been spent taking leave for which he had received payment over the course of the various jobs in 2004. There is no explanation for the low income of other years, beyond what I infer to to be a similar pattern of project employment followed by periods of unemployment.
113 The greatest difficulty in assessing what the plaintiff's true earning capacity is that relatively little evidence was put before me on behalf of the plaintiff. There was little evidence about the nature or pattern of employment for this trade in the construction industry, beyond the records that I have referred to, and assertions from the plaintiff that he was frequently being called to take jobs and would sometimes work in England. I have referred to the one period of employment in England for which there is a record. There is no evidence of the rates that he actually earned in employment, apart from his last engagement with Thiess.
114 As I have said, I am inclined to approach the evidence of the plaintiff with caution. So far as his potential earning capacity in his chosen trade, doing the best I can, in my view the plaintiff was likely to have paid employment, including paid leave, for about nine months of each year.
115 A submission made on behalf of the plaintiff was that 'the High Court has made it clear that what is to be assessed is the loss of capacity'. In support of this the plaintiff's counsel referred to Medlin v State Government Insurance Commission (1995) 182 CLR 1, 4. The manner in which this submission was pressed in oral argument seemed to suggest that all that it was necessary to consider in assessing this future loss, was the weekly wage available for a tradesman with the plaintiff's qualifications, with the appropriate multiplier discounted to the age of retirement. Implicit in it was the contention that the plaintiff's history of earnings was not especially relevant. That approach may suggest why it was that little evidence was offered as to the reasons for the plaintiff's history of seemingly low annual income.
116 The correct position is set out in Medlin (3):
A plaintiff in an action in negligence is not entitled to recover damages for loss of earning capacity unless he or she establishes that two distinct but related requirements are satisfied. The first of those requirements is the predictable one that the plaintiff's earning capacity has in fact been diminished by reason of the negligence-caused injury. The second requirement is also predictable once it is appreciated that damages for loss of earning capacity constitute a head of damages for economic loss awarded in addition to general damages for pain, suffering and loss of enjoyment of life. It is that 'the diminution of … earning capacity is or may be productive of financial loss': Graham v Baker (1961) 106 CLR 340, 347.
117 Thus the correct inquiry about the annual loss that can be recovered may or may not be answered by multiplying earnings by 52. The question is not what could a plaintiff have earned but for an injury, but what would the plaintiff have probably earned but for that injury.
118 Using the CMFEU base rate for a 36 hour week, together with applicable allowances, the plaintiff's counsel argues that a gross salary of $1,547.58 per week (or $42 an hour) or $84,474.16 gross per year is the appropriate starting point for the calculation of the plaintiff's loss. The net figure of $62,751.67 net per year, or $1,206.76 net per week, is then subject to a 6% discount multiplier of 450.5 for 12 years to age 65. This yields a total of $543,645.
119 Using the Building and Construction On-site Award 2010 the first defendant arrives at a figure of $778 gross per week ($21.62 an hour for a 36 hour week) or $40,476 gross per annum. The net figure is $673.39 per week. Multiplied by 450.5 this yields a result of $303,362.
120 With respect to the first defendant's calculation, the plaintiff's counsel points out that the weekly salary of $778 gross per week is rather less than the $1,219 net that the plaintiff earned per week, on average, from the end of July 2005 to 28 December 2005 with Thiess. One difficulty with this calculation is that as shown in material tendered by the plaintiff, the plaintiff was required by Thiess to work a 52 hour week. Thirty six hours were paid at a rate of $26.41 per hour and 16 hours were paid at an overtime rate.
121 The plaintiff's counsel also relies on a handwritten note made by the plaintiff that shows that he was offered $30 per hour 'flat' for a job in Darwin around the time of his employment with Thiess. I am reminded of the plaintiff's evidence that even while injured 'there was plenty of scaffolding work around and I was receiving invitations to apply for work'. There is no reason to doubt that that probably was the case at the height of the mining and resources boom in this state. An assessment of damages in 2008 however would not reasonably have assumed that the boom times would have endured for the duration of the plaintiff's working life. It is also far from clear that the plaintiff was always engaged and would always be engaged at CFMEU rates. These last matters however are perhaps best accommodated when dealing with contingencies.
122 The inexactitude surrounding the assessment of damages for personal injuries in an action for negligence has long been recognised and accepted: Van Gervan v Fenton [1992] HCA 54; (1992) 175 CLR 327, 343. The best that can be hoped for is that the process of assessment will be governed by considerations of practical common sense against the facts of a particular case. The difficulties inherent in this assessment however are not assisted here by the lack of evidence surrounding the plaintiff's employment and income. Doing the best I can here with the evidence that was put forward, in my view the plaintiff has suffered a loss of future earning capacity that is appropriately measured by employment at the CFMEU base rate, with a net weekly figure of $1,206.76 per week, based on employment for nine months per year. Using the plaintiff's calculation, a multiplier of 450.5 to age 65, yields a total of $407,734. Subject to what I will say about contingencies and, subject to any submissions from the parties with respect to the arithmetic, I find that that represents the plaintiff's lost future earning capacity.
Contingencies
123 The claim originally advanced on behalf of the plaintiff was for lost earning capacity calculated to age 70. At trial that was reduced to a claim until age 65. The submission made on behalf of the plaintiff is that given that voluntary reduction from age 70 to age 65 there should be no further reduction for contingencies. I do not accept that argument.
124 First, based on all of the evidence put forward by the plaintiff, the job of a scaffolder is a physically demanding one. There was no evidence about the typical work life of someone in this industry, and no evidence as to the extent to which less arduous but related jobs, such as that of an estimator, were available. There is no evidence as to what wages might be received by someone in those less arduous positions.
125 Quite apart from the injuries suffered in this accident the plaintiff suffered sinus problems as a consequence of workplace conditions and he has Type 2 diabetes, currently being controlled by medication. Psychiatric reports speak of the plaintiff's predisposition to problems like depression because of the nature of his personality.
126 There is also the fact that the over-award rates negotiated by the CFMEU come from a time when the resources boom that Australia experienced was at the peak of its flow. Skilled tradesmen were greatly in demand for the construction of resource related projects and the maintenance of existing plant. No sensible person would have expected that to last for ever and that of course has proved to be the case. Nor can it be safely assumed that the plaintiff would always have been engaged at CFMEU over-award rates even at the height of the boom. At least one document provided by him shows that he was offered an all-inclusive rate of $30 per hour.
127 Given the circumstances of the time in 2008 when damages stand to be assessed there seems little in the way of positive contingencies that might be anticipated. Because of the matters I have identified, in my view a proper deduction for contingencies is 10%.
128 Applying that discount to the figure for lost earning capacity yields $366, 961.
Retained earning capacity
129 The first defendant also relied on an argument that, contrary to the evidence of most of the doctors and the plaintiff, the plaintiff had a retained earning capacity. In essence that was because the plaintiff had other valuable skills apart from being a scaffolder. For example, he also held a forklift driving ticket. The first defendant has carefully sifted through all of the medical reports and has proffered the scant few positive remarks there are about the potential for improvement. The fact is that none of the doctors suggest that there is any realistic prospect of the plaintiff returning to full-time employment, although there are hopes of symptomatic improvement.
130 There is a substantial body of evidence here that the plaintiff has lost his pre-accident earning capacity and that his condition has prevented him from finding alternative employment. Apart from challenging the extent of the plaintiff's physical and mental problems and pointing to the plaintiff's qualification to drive a forklift, the first defendant has put forward no evidence to show, for example that there is some alternative employment that the plaintiff is capable of doing, the opportunities to engage in that employment and the likely earnings to be derived therefrom. The first defendant has pointed to the wages that might be earned by somebody driving a forklift, but beyond tendering the document containing those award rates there is nothing that could satisfy me on the balance of probabilities that the plaintiff was able to do that job, and that there is some job likely to be open to him. The first defendant has not met that evidentiary burden: Thomas v O'Shea (1989) A Torts Rep 80-251.
General damages
131 The plaintiff was 50 years old at the time of his accident in December 2005. The consequences of the accident and the pain and suffering that he experienced were significant. Prior to the accident there were a number of activities he took part in, including jogging, playing soccer, dancing, swimming and fishing. While the plaintiff now enjoys walking if he is feeling well enough and has some limited ability to fish, there is little else available to him as recreational activity.
132 He is in constant pain from headaches and he suffers nausea, in part because of the medication that he has to take and his irritable bowel syndrome. He has pain in his right shoulder and arm radiating into the fingers on his right hand. He describes 'heavy tension and pain' across his shoulder blades and lower back. There is pain in his left arm as a result of over-use. He experiences a tremor in his right arm to the extent that it makes shaving difficult.
133 It is still necessary for him to take a number of medications, although this is somewhat compromised by his irritable bowel syndrome.
134 He says he does not sleep well, averaging around five to six hours sleep per night because of the pain in his neck and shoulder. As a consequence of this, and seemingly also because of the depression that he experiences, he says that he finds it difficult to get motivated in the mornings and he struggles to get out of bed, feeling that he has nothing to get out of bed for. He also experiences anxiety, agitation and stress.
135 No submissions were made to me about an appropriate measure or range of general damages in this case. In my view an award of $75,000 provides appropriate compensation for this head of damages.
Conclusion
136 I will order that the defendants pay the plaintiff damages in the following amount:
Future medical treatment $42, 876
Loss of earning capacity $366,961 ($407, 734 – 10%)
General damages $75,000
Total: $484,837.
137 I will hear from the parties with respect to interest and costs.
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