Leigh v Quito Pty Ltd T/As Benara Nurseries

[2000] WADC 38

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION:   PERTH

CITATION:   LEIGH -v- QUITO PTY LTD T/AS BENARA NURSERIES [2000] WADC 38

CORAM:   NISBET DCJ

HEARD:   13-15 SEPTEMBER AND 1 DECEMBER 1999

DELIVERED          :   11 FEBRUARY 2000

FILE NO/S:   CIV 6462 of 1990

BETWEEN:   GAVIN DEANE LEIGH

Plaintiff

AND

QUITO PTY LTD T/AS BENARA NURSERIES
Defendant

AND

INSURANCE COMMISSION OF WESTERN AUSTRALIA
Third Party

Catchwords:

Negligence - Breach of implied term of contract of employment - Breach of statutory duty - Claim for damages by a young man - Approximately 17 years of age at date of accident, 26years at trial - Plea of contributory negligence - Whether available in diminution of damages in contract - Damages - Assessment thereof - Third party proceedings - Statutory insurer denying liability to indemnify in reliance on warranty - Whether driver of tractor licensed within the meaning of the Motor Vehicle (Third Party Insurance) Act 1943 as amended - Whether statutory cover excludes liability in contract where concurrent liability in tort.

Legislation:

Motor Vehicle (Third Party Insurance) Act 1943

Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947

Result:

Damages for plaintiff $317,583.82.
Third Party to indemnify defendant.

Representation:

Counsel:

Plaintiff:     Mr A Stavrianou

Defendant:     Mr M Greenland

Third Party                   :     Mr J Staude

Solicitors:

Plaintiff:     Stoddart & Co

Defendant:     Greenland Brooksby

Third Party                   :     John G Staude

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

Arthur Robinson (Grafton) Pty Ltd v Carter (1968) 122 CLR 649

Astley v Austrust Ltd (1999) 73 ALJR 403

Barber v Pigden [1937] 1KB 664 CA

Barisic v Devenport [1978] 2 NSWLR 111

Beach Petroleum NL & Anor v Johnson & Ors (1993) 115 ALR 411

Ferraloro v Preston Timber Pty Ltd (1982) 56 ALJR 872

Fox v Wood (1981) 148 CLR 438

Garlick v Mercantile Mutual Insurance [1986] Tas R 238 (NC 6)

GRE v Kitson (1985) 3 ANZ Insurance Cases 60-676

Hawkins v Clayton (1988) 164 CLR 539

Hudson v Ridge Manufacturing Co [1957] 2 QB 348

Jongen v CSR Ltd [1992] A Tort Rep 61,706

Karabotsos v Plastex Industries Pty Ltd [1981] VR 675

Kondis v State Transport Authority (1984) 154 CLR 672

McHale v Watson (1964) 111 CLR 384

McHale v Watson (1966) 115 CLR 199

Milligan v L J Hooker Ltd [1966] 2 NSWLR 765 (CA)

Mulcahy v MVIT, unreported; SCt of WA; Library No 4271; 2 October 1981

Pennington v Norris (1956) 96 CLR 10

Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492

Poland v Tilby and MVIT, unreported; DCt of WA; Library No 397; 26 June 1981

Rae v BHP (1957) 97 CLR 419

Rendlesham v Dunne (1964) 1 Lloyds Rep 192

Tesco Supermarkets Ltd v Nattrass [1972] AC 153

Tuncel v Renown Plate Co Pty Ltd [1976] VR 501 (FC)

Watts v Rake (1960) 108 CLR 158

Weber v Birkett [1925] 2 KB 152 CA

Wilson and Clyde Coal Company v English [1938] AC 5

Case(s) also cited:

Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301

BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 52 ALJR 20

Bremer Vulkan Schiffbau Machinenfabrik v South India Shipping Corporation Ltd [1981] AC 909

Broadhurst v Millman [1976] VR 208

Burns v MAN Automotive (Aust) Pty Ltd (1986) 161 CLR 653

Codelfa Construction Pty Ltd v The State Rail Authority of NSW (1982) 149 CLR 337

Foran v Wight (1989) 168 CLR 385

Guerin v Rossiter (1984) 37 SASR 312

Hamilton v Newroof WA Pty Ltd (1956) 96 CLR 18

John T Ellis Ltd v Hinds [1947] 1 KB 475

Lambert v Lewis [1981] 1 All ER 1185

March v E & M H Stramare (1991) 65 ALJR 334

McLean v Tedman (1984) 155 CLR 306

Ralph v Henderson & Pollard Ltd [1968] NZLR 759

Walton v National Employers' Mutual General Insurance Association Ltd [1973] 2 NSWLR 73

Woolfall & Rimmer v Moyle [1942] 1 KB 66

1. NISBET DCJ:  The plaintiff, who was born on 24 April 1973, was seriously injured in an accident at his workplace on 20 March 1990.

2. Having completed part of his Year 11 schooling at John Forrest Senior High School, the plaintiff decided that he should leave school because he was not particularly good at his studies.  He learned of a possible vacancy at the defendant's business, Benara Nursery, from his cousin who was then working there.  The plaintiff applied for and obtained a job as a nursery hand, leaving school one day and starting work the next.  He thought the date of his commencement of employment was 1 October 1989.  He described Benara Nurseries at this time as being a fairly large enterprise which, whilst it operated as a retail nursery, was mainly a wholesale nursery operating out of premises comprising some 85 acres or so in Wanneroo.  (Mr Gary James said it was then 150 acres).  The premises are divided by a gazetted road known as Vincent Road with nursery activities taking place on both sides of this road.  At the time the plaintiff was employed there he thought that the defendant employed about 60 people of whom some 15 to 20 worked in the offices and retail area of the business, six were foremen and the balance nursery hands.  (Mr Gary James thought there were then between 80 and 100 employees).  He described the job of a nursery hand, part of which included being taught to drive the tractors at the nursery, most of which were Massey‑Ferguson.  There are apparently somewhere between 27 and 30 tractors, the plaintiff was not quite sure of the exact number.  Most times these tractors pulled trailers of which there were about 50, the approximate dimensions of which were that they were about two metres wide and between three and five metres long.  Sometimes up to three trailers were pulled behind one tractor.  The trailers were used to transport pots through the nursery from potting sheds and shade houses out into open growing areas and vice versa when the time came to re-pot into larger containers, a process which I understand to be called "potting‑on".  Additionally the trailers were used to cart other materials around the premises such as blue metal and the like.

3. The system of work employed at the nursery was that work was allocated each day at a meeting which took place at 7.30 am near the No. 1 potting shed.  Workers were allocated to a foreman and the various groups then went off to their various tasks in the nursery.

4. Transport through the nursery enterprise was largely by way of tractor and trailer, the nursery hands being permitted to stand on the tow bar of the tractor and the draw bar of the trailer whilst moving about the nursery and, if the trailers were empty by sitting on the trailers.  The plaintiff deposed that he would have ridden on the tow bar of tractors for transport through the nursery premises some 80 per cent of the time and I understood his evidence to be that at other times he sat on the back of the trailer and on some occasions he would walk between work sites.  He told me (and I believe him) that he was never given any instruction about not standing on the tow bar or the draw bar of the trailer whilst moving through the nursery premises.  If corroboration is needed for this (which I doubt having regard to the fact that I accept the plaintiff's evidence without question) it comes from the evidence of Mr Ian James, one of the directors of the defendant company.  Mr James, whom I also believed, testified that the defendant knew that its employees were riding on the tow bar and draw bars of the tractors and trailers through the nursery premises and that up until he received a notice issued by an inspector of the Department of Occupational Health and Safety on 23 March 1990 he thought there was no law against the defendant's employees riding on the tow bars of the tractors and the draw bars of the trailers in this fashion, so much so that Mr James was anxious to say that he thought this was the traditional way of farmers and work persons travelling around properties on tractors even at the time of trial, stressing however, though, that this practice was forbidden now in the nursery following the plaintiff's accident because of the prohibition notice previously referred to.

5. The plaintiff further told how all new employees were shown how to drive the tractors at the nursery regardless of their age, some being as young as 15 and obviously not in a position to obtain motor driver's licences or even learner's permits.  This was corroborated by Mr Nicholas Sillitoe who worked for the defendant for some years and, at the time of the accident, was employed as a supervisor-foreman.  It was likewise confirmed by Mr Ian James who stressed, however, that it was the supervisor-foreman's responsibility to ensure that only licensed drivers drove tractors across Vincent Road, the defendant being fully aware that to permit unlicensed drivers to drive the tractors (which were licensed as motor vehicles within the meaning of the Motor Vehicle (Third Party Insurance Act) 1943) on a road whilst unlicensed would be an offence.

6. Before turning to the accident itself I should make some other observations on the plaintiff's evidence.  He told me that he was instructed to wear closed shoes but not, as I apprehended it, safety boots as such.  By this I take the instruction to mean that workers at the nursery were not permitted to work in thongs or sandals.  Additionally, whilst the plaintiff was shown how to drive the tractors at the nursery he did not have a motor driver's licence or a learner's permit and was not given any instruction in relation to the power take-off on the tractor.  As I am confident most people would know, the power take-off on a tractor is a means by which the engine power can be applied to provide power to a series of other implements such as post hole diggers, sprays, slashers, etc.  Typically, the power take-off on a Massey-Ferguson tractor is a spline which extrudes from the rear of the tractor a short distance above the trailer hitch and tow ball.  Generally speaking before the take-off can be employed, it is fitted with a universal joint which in turn attaches to the implement to be used.

7. It is plain enough from the photographs which were admitted into evidence that it is possible to fit a relatively inexpensive guard over the top of the power take-off of the Massey Ferguson tractor which did not and would not interfere with the operation of the trailer hitch - of greatest relevance to the conduct of the defendant's business - or the power take-off itself.  The defendant fairly admitted before me on the third day of the trial that it was reasonably practicable for it to have fitted guards to both the power take‑off and the universal joint if fitted on all of its tractors at its nursery in 1990.

8. I turn now to consider the evidence in relation to the accident itself.  On 20 March 1990 the plaintiff started work as usual at about 7.30 am and he was allocated to the work group of Mr Sillitoe.  Another member of the plaintiff's group was a Mr Troy Winfield.  When it came time to take the morning tea break at about a quarter past nine Mr Winfield got on a tractor to which was attached two trailers the first of which was partially loaded and the second of which was fully loaded.  Mr Winfield was going to drive the tractor and trailers to the shed where morning tea was usually taken which was about 400 metres away.  In accordance with his usual practice and the practice he had seen employed by other workmen at the nursery the plaintiff was intending to travel to morning tea standing on the tow bar at the rear of the tractor.  As already mentioned, the tow bar is situated directly underneath the power take-off.  When the plaintiff went to stand on the tow bar he noticed that the power take-off, to which was attached one half of a universal joint, was spinning.  There was no guard or cover over the top.  It appeared to the plaintiff to be spinning slowly.  Mr Winfield was in the driver's seat and the plaintiff asked him to turn off the power take‑off and Mr Winfield replied "Yes, no worries".  The plaintiff observed Mr Winfield go forward to adjust something.  He saw him bend over and touch something to his left and the plaintiff assumed that Mr Winfield was turning off the power take‑off.  The power take‑off is operated by a lever to the left of the driver and the lever engages and disengages the power take‑off.

9. After the plaintiff heard Mr Winfield and saw him turn to his left he assumed that the power take‑off had been disengaged and he proceeded to mount the tractor by putting his right foot down on top of the power take‑off and part universal joint.  Unfortunately Mr Winfield had not disengaged the power take‑off, and power was still being transmitted to both the power take‑off and the universal joint.  Whilst I was not told I assume that the power take‑off operates in a clockwise direction as one faces it and, the plaintiff mounting from the right rear of the tractor as I understood him (the right as viewed from behind) in putting his foot down on top of the power take‑off spline had his foot lifted and then as it slipped down towards the tow bar of the tractor the other side of the universal joint came over in a clockwise direction down on top of the plaintiff's right foot jamming it between the bottom side of the joint and the top of the tow bar.

10. The plaintiff suffered immediate and severe pain in his toes and foot.  He tried to pull his foot out of where it was jammed but could not.  He tried to pull his foot out of his boot but could not.  Whether it was after or before or at the same time as pulling to pull his foot out of his boot, it doesn't matter, the plaintiff called to Mr Winfield to turn off the power take‑off again, which he did.  Mr Winfield then ran to fetch one of the foremen to come to the scene.  Evidently a number of people arrived at the scene of the accident.  Certainly Mr Sillitoe came.  He was the foreman who was fetched by Mr Winfield.  He went to the accident scene straight away on his four wheel motorbike and there observed the plaintiff's foot caught in the power take‑off.  Mr Sillitoe described the plaintiff as being very distressed and starting to sob.  All Mr Sillitoe could do was to put his arm around him and try and comfort him.  Mr Sillitoe said that Mr Gary James arrived as did his brother and fellow partner and director Mr Ian James.  The plaintiff and Mr Sillitoe deposed that the James brothers tried to take the tow bar off the tractor but their tools were not adequate for the job and required a lever.  A lever was hastily located and ultimately the plaintiff's foot cleared by removing the tow bar.  Until he was freed the plaintiff was caught with his right foot wedged in the position already described and was obliged to remain in a standing position leaning as best he could to take the weight on the rear of the tractor.

11. At about the time that the plaintiff's foot was released an ambulance arrived.  The plaintiff had not received any first aid up until this time.  The ambulance officers cut away the plaintiff's right boot and sock, the plaintiff observing there was hardly any blood but that his first four toes appeared badly damaged.  In the ambulance on his way to Sir Charles Gairdner Hospital the plaintiff was told that he would lose his second, third and fourth toes but there was a prospect of saving his great toe.  Upon arrival at Sir Charles Gairdner Hospital the doctor who examined the plaintiff in the emergency department told the plaintiff he did not know what to do and that he would need the assistance of a plastic surgeon.  That is all the plaintiff remembers until he woke up in the hospital he thinks the next day.  Operative treatment had been rendered by this time but he required a further operation which he endured.  The plaintiff deposed that otherwise he has very little recollection of his first week in hospital.  He was in hospital for about six weeks before his release.  During the course of his evidence the plaintiff showed me his right foot and the areas of the donor sites for his skin grafts on each of his left and right thighs.  Counsel for each of the defendant and third party were permitted to view the injuries.

12. Without doubt the plaintiff has sustained what Mr Graff, a plastic and reconstruction surgeon, described as a nasty injury - a crush-avulsion injury wherein the plaintiff's great toe and second, third and fourth toes were crushed beyond repair.  The plaintiff's right foot has the appearance of a stump.  It looks awful.  It would be difficult for anyone to appreciate the degree of pain the plaintiff must have endured.  It is quite clear that he has suffered significant loss and damage.  The donor sites on the tops of the plaintiff's thighs have the appearance of redness and roughness like a permanent skin rash of mild to moderate severity.

13. As noted, the defendant denies liability and says that the plaintiff's injuries were caused or contributed to by his own negligence.  The defendant's case in this regard is firstly, without putting too fine a point on it, on the facts as given by the plaintiff the defendant says that the plaintiff was stupid to put his foot on top of the moving universal joint without first ensuring that it had been completely disengaged.  It points to his evidence in cross‑examination that he had observed the power take‑off and universal joint rotating, had asked Troy Winfield to turn it off and had put his foot down without ensuring that the power take‑off was stationary and completely disengaged.  However, in my opinion he put his foot down in the firm belief the power take‑off had been disengaged.  Secondly and more importantly, however, the defendant's case relied upon the evidence of Mr Cary Broadbent.  Mr Broadbent said that at the time of the plaintiff's accident he was a production supervisor at the nursery and on the day of the accident he was travelling on a motorcycle towards the tractor and trailer when, from some distance off, he saw a commotion and heard a screaming.  He saw that Troy Winfield was driving the tractor and heard someone screaming at him to "turn it off".  When, a short time later, he pulled up at the scene of the accident he saw the plaintiff's foot wedged in between the power take‑off and the draw bar.  The tractor was turned off just as he pulled up.  He said that he approached the plaintiff and his first reaction, he remembered, was to ask the plaintiff "What did you do that for?" to which the plaintiff replied "I wanted to see what would happen".

14. This alleged conversation was put to the plaintiff in cross‑examination and he emphatically denied it.  He said that he could not recall Mr Broadbent being at the scene.  If he was at the scene he said that he was 95 per cent sure that no-one at the scene of the accident asked him what he did it for and he never told anybody that he wanted to see what would happen.

15. Mr Broadbent in cross‑examination retreated somewhat from this evidence.  He agreed that he did not say first up "What did you do that for?" because he agreed that his first reaction was to try to comfort the plaintiff and settle him down.  He said it was a confusing situation.  There were a few other people in the vicinity of the accident and there was a bit of panic in the air.  He agreed that the focus of his attention was attempting to get the plaintiff's foot out from where it was wedged and, ultimately, whilst he deposed that he firmly believed that he had had this exchange with the plaintiff he could not then recall whether it was at the accident site or on a later occasion when visiting him in hospital.  That the conversation could have taken place when the plaintiff was in hospital was not put to the plaintiff.

16. In these circumstances, and having carefully observed both plaintiff and Mr Broadbent giving their evidence I find that it was quite improbable that this conversation took place at the accident scene.  As there is significant potential for this conversation to have taken place on a later occasion in hospital when the plaintiff may well have been just making conversation or attempting to make a joke with his visitors, I'm not prepared to give it any weight.  I wish to make it plain however, that I am not finding that Mr Broadbent is not a witness of the truth for he otherwise struck me as being a reasonable man impressed with the solemnity of the occasion of him giving evidence, and trying to do his best to recollect events some nine years old in his memory, in a situation in which he also deposed that the first occasion upon which he had been asked to recall these events was only two and a half years ago, that is to say some six and a half years after the accident in question.  In the end it is best left on the basis that I accept the plaintiff's testimony that this conversation did not take place at the accident site and, in the circumstances, I am not persuaded that it took place in such a way that I can attach any weight to it as being an admission of wilful wrongdoing by the plaintiff.

1. In the defendant's case on the evidence this leaves one issue of fact, namely the plea that the plaintiff rode on the tractor in disobedience of the defendant's written instructions contained in a staff safety booklet.  Whilst evidence was given that the defendant had at one time certainly produced a safety booklet of instruction for its staff, the booklet was not produced in evidence and various witnesses called by the defendant could not recall whether the booklet was produced before or after this accident.  Without being able to see the booklet and consider its terms and without being satisfied of the date of its production and the fact that the plaintiff was instructed to read it I am left quite unpersuaded that the defendant can diminish its liability on this score.

2. This then leaves me to examine the plaintiff's actions of themselves to see whether they amount in law to contributory negligence and, if so, the consequence thereof.  I will deal with this when I deal with the issue of liability.

Liability

1. The plaintiff brings his claim in damages for negligence, breach of contract and breach of statutory duty.  The defendant denies any liability to the plaintiff and further pleads that in the event that it is found liable to compensate him for his loss then the plaintiff caused or contributed to his loss by his own negligence and, further, failed to mitigate his loss by not accepting employment with the defendant when he recovered his capacity for work after the accident.

2. The plaintiff pleads:

   "The defendant was negligent and in breach of its duty of care (sic) to the plaintiff to provide a safe system and place of work."

3. There follow five particulars of negligence which may be summarised as follows:

   1.Allowing the plaintiff to use the tow bar of the tractor as a means of transport.

   2.Failing to ensure the tractor was fitted with a guard over the power take‑off.

   3.Failing to provide sufficient training and instruction to the tractor driver.

   4.Failing to remove the attachment to the power take‑off.

   5.Allowing the implement adaptor to remain attached to the power take‑off.

4. This plea fits within the well known duties of care which the law imposes upon employers which were summarised by Mason J in Kondis v State Transport Authority (1984) 154 CLR 672 at 687:

   "The employer has the exclusive responsibility for the safety of the appliances, the premises and the system of work to which he subjects his employee and the employee has no choice but to accept and rely on the employer's provision and judgment in relation to these matters … In the case of the employer there is no unfairness in imposing on him a non‑delegable duty; …"

5. The duty to devise and maintain a safe system of work requires the employer to provide competent staff (in this case of course the tractor driver):  Wilson and Clyde Coal Company v English [1938] AC 57; Hudson v Ridge Manufacturing Co [1957] 2 QB 348.

6. I have no difficulty in finding that the plaintiff's claim in tort succeeds.  In my opinion the defendant in permitting its employees to ride on the tow bar of its tractors and the draw bars of its trailers was courting disaster.  It knew it was a practice followed by its employees its senior employees, supervisors and the like included.  It does not matter that the precise means by which the plaintiff met with misfortune may not have been foreseen by the defendant, the fact is that this practice created a situation where an accident of some type was bound to happen.  Certainly, the most readily foreseeable type of accident would have been an employee falling and being struck by the trailer, but I don't think this matters.  The defendant ought not to have permitted any of its employees to ride on the tow bars of the tractors or the draw bars of the trailers.  Next, one only had to look at the configuration of the power take off with its part universal joint protruding from the rear of the trailer near where employees were permitted to place their feet to ride on the tow bar and draw bar of the trailers to appreciate that had the defendant turned its mind to it, this too was a situation in which the defendant's employees were exposed to a risk of injury which, by the exercise of reasonable care, might have been foreseen and avoided:  per Taylor J in Rae v BHP (1957) 97 CLR 419 at 430.

7. When one sees the photographic exhibits of a tractor fitted with a guard fitted over the power take off it is plain that the defendant's admission that there were available to it reasonably practicable means of preventing injuries of the type sustained by the plaintiff, was very well made.  Had a guard been fitted the plaintiff could not have put his foot on top of the power take off whether it was engaged or disengaged.

8. Whether an employer's duty of care has been breached is, as the High Court noted some considerable time ago, a question of fact:  McHale v Watson (1964) 111 CLR 384 at 397. I have no hesitation in finding that the defendant breached its duty of care to the plaintiff by failing to provide a safe system of work in failing to ensure that its employees did not ride on tractor tow bars and trailer draw bars and, further, in failing to provide safe working plant and equipment by failing to provide a simple and inexpensive guard over the power take offs on its tractors and, further, in failing to provide competent fellow staff, properly trained such that Troy Winfield should never have engaged the power take off in the first place and should have turned it off immediately he was asked to do so by the plaintiff.

Contributory negligence

1. I turn now then to consider whether the plaintiff may be said to have contributed by his own negligence to the injuries and damage he has undoubtedly sustained.

2. Before the reform of the common law in England in about 1945 by Act No 28 in the eighth and ninth year of the reign of George VI, the position at common law was that it was a good defence to an action for damages for negligence if a defendant could prove some negligence contributing to the event by the plaintiff.  The English reform quickly found its way to Western Australia by way of the Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947 which provides that any negligence of a plaintiff does not disentitle the plaintiff to relief but reduces proportionately to the plaintiff's contribution to the cause of the accident, the amount of damages the plaintiff would otherwise have obtained.  It is this which has led to the expression "contributory negligence".  The Tasmanian provision enacted in 1954 was considered by the High Court of Australia in 1956 in Pennington v Norris (1956) 96 CLR 10. In a joint judgment the court said:

   "What has to be done is to arrive at a 'just an equitable' apportionment as between the plaintiff and the defendant of the 'responsibility' for the damage.  It seems clear that this must have of necessity involved a comparison of culpability.  By 'culpability' we do not mean moral blameworthiness but degree of departure from the standard of care of the reasonable man.  To institute a comparison in respect of blameworthiness in such a case as the present seems more or less impracticable, because, while the defendant's negligence is a breach of the duty owed to other persons and therefore blameworthy, the plaintiff's 'contributory' negligence is not a breach of any duty at all, and it is difficult to impute 'moral' blame to one who is careless merely of his own safety."

3. Having regard to the fact that some stress has been placed on the fact that in this case this was the plaintiff's first employment, that he was just short of his 17th birthday and things of this nature it is as well to record that it has long been established in Australia that there is no rule of law that a young person of any particular age is incapable of contributory negligence:  McHale v Watson (1966) 115 CLR 199. This being so, the proper approach is to look at the duties cast upon each of the plaintiff and defendant as you would in a case involving adults: Barisic v Devenport [1978] 2 NSWLR 111.

4. Here we have a young worker not quite 17 years of age who, seeing the power take off on the tractor spinning, albeit slowly, calls out to the tractor driver to turn off the power take off, sees him apparently go to do so and thereupon thinks it safe to mount the tractor's tow bar.  I cannot see any degree of culpability on the part of the plaintiff in these events as they happened.  Furthermore in terms of causation the direct cause of this accident was the defendant's neglect.  Had the defendant properly instructed its work force not to ride on the tow bars of the tractors and enforced that rule with the degree of vigilance required of employers, and had the defendant employer discharged its duty to provide safe working plant and equipment by covering the power take offs on its tractors, put quite simply, the plaintiff would not have been exposed to any risk of injury at all.  Put another way I decline to apportion any liability to the plaintiff.  (See Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492.)

Liability - contract

1. In Hawkins v Clayton (1988) 164 CLR 539 at 584 Deane J said:

   "The law of contract and the law of tort are, in a modern context, properly to be seen as but two of a number of imprecise divisions, for the purpose of classification, of a general body of rules constituting one coherent system of law."

2. Deane J was here echoing Professor Gilmore, the Sterling Professor of Law at Yale Law School who in 1970 delivered a series of lectures which were later compendiously brought together in a work entitled "The Death of Contract" (Ohio State University Press, Columbus Ohio 1974) in which he wrote:

   "Speaking descriptively, we might say that what is happening is that 'contract' is being reabsorbed into the mainstream of 'tort'.  Until the general theory of contract was hurriedly run up late in the 19th century, tort had always been our residual category of civil liability.  As the contract rules dissolved, it is becoming so again.  It should be pointed out that the theory of tort into which contract is being reabsorbed is itself a much more expansive theory of liability than was the theory of tort from which contract was artificially separated 100 years ago." (p87)

3. And, further, at p94:

   "Let us assume, arguendo, that it is the fate of contract to be swallowed up by tort (or for both of them to be swallowed up in a generalised theory of civil obligation).  We must still provide ourselves with an explanation of what contract - the classical or general theory of contract, as we have called it - was about in the first place and, if it is now dead or dying, what caused the fatal disease."

4. In Australia, the theorists' dilemma has been solved, at least for the time being, by the decision of the High Court in Astley v Austrust Ltd (1999) 73 ALJR 403. In this decision the High Court has emphasised the differing requirements and advantages of each cause of action and distinguished their differing theoretical basis, rejecting Deane, J's theory of a general body of rules etc. The court said that tortious duties were properly described as being duties imposed by law and contractual duties as being duties arising out of the private arrangements made between parties.

5. Professor Fleming in "The Law of Torts" 9th ed LBC 1998 pp3,4 puts it this way:

   "The laws of tort and crime, despite their common origin in revenge and deterrence, long ago parted company and assumed distinctly separate functions.  A crime is an offence against the State, as representative of the public, which will vindicate its interests by punishing the offender.  A criminal prosecution is not concerned with repairing an injury that may have been done to an individual, but with extracting a penalty in order to protect society as a whole.  Tort liability, on the other hand, exists primarily to compensate the victim by compelling the wrongdoer to pay for the damage done.  True, some traces of its older link with punishment and crime have survived to the present day, most prominently exemplary damages to punish and deter contumelious and outrageous wrongdoing.  Yet the principal concern of the law of torts nowadays is with casualties of accidents, that is, of unintended harm.  In this wider field, the law is concerned chiefly with distributing losses which are an inevitable by-product of modern living, and, in allocating the risk, makes less and less allowance to ideas of punishment, admonition and deterrence.

   The law of contract exists, at least in its most immediate reach, for the purpose of vindicating a single interest, that of having promises of others performed.  This it does either by specifically compelling the promisor to perform or by awarding the promisee damages to put him in as good a position as if the promise had been kept.  Thus while contract law as a rule assures the promisee the benefit of the bargain, tort law has the different function of primarily compensating injuries or losses …..

   According to another distinction, tort duties are said to be 'primarily fixed by law', in contrast to contractual obligations which can arise only from voluntary agreement.  Certainly, in classical theory, the function of contract is to promote a voluntary allocation of risks (typically, but not exclusively commercial risks) in a self‑regulating society, while tort law allocates risks collectively in accordance with community values by the fiat of court or legislature."

6. It follows that prima facie, a plaintiff may sue in contract, in tort or in both and I find that it is not the case, as argued by the defendant here, that the distinction is in effect irrelevant because in a case such as this there could not be a breach of contract without there first, in effect, being a tort.  There may very well be many occasions when liability will be concurrent but this in no way precludes a plaintiff from bringing an action in which relief is claimed in both tort and contract:  Astley v Austrust (supra) and see also Stubbe v Jensen [1997] 2 VR 439. The latter case dealt with the argument I apprehend the defendant was advancing before me although not in the clear terms disclosed by the authority. In Stubbe the employer in effect argued that there could be no implied term in a contract of employment that an employer would do that which it was already obliged to do by the law of tort namely provide the employee with a safe place of work, safe system of work and safe working plant and equipment.  This argument was specifically rejected by the Court of Appeal which, doubting the dicta of Deane J in Hawkins v Clayton (supra) (later specifically not followed by the High Court in Astley) said this:

   "In my view it is open to doubt whether the authority of Hawkins v Clayton goes as far as Mr Gillies submitted it does, and whether, in particular, it excludes from all contracts of employment implied contractual terms, in the absence of actual intent, which impose upon an employer a contractual duty which is co‑extensive in content and concurrent in operation with a duty which already exists under the common law of negligence.  At common law it was traditionally the case that a contract of employment did include an implied term that the employer would provide a safe system of work and would not unreasonably expose his employee to unnecessary risks, a duty which is also imposed by the common law of negligence:  see Lister v Romford Ice and Cold Storage Co Ltd [1957] AC 555; Matthews v Kuwait Bechtel Corp [1959] 2 QB 57." (Per Winneke, P at 443.)

7. In this case the plaintiff's plea in addition to that already quoted was as follows:

   "9.The defendant was in breach of its contract of employment with the plaintiff in that:

   (a)it was an implied term of the contract of employment that it would take all reasonable precautions for the safety of the plaintiff whilst he was engaged in the carrying out of his employment, not to expose him to any risk of danger which the defendant knew or ought to have known and to provide him with and maintain a safe and proper system of work;

   (b)the said terms was breached (sic) by the conduct of the defendant pleaded in para 7 and 8 hereof."

8. As found in Stubbe these are terms which the law implies in contracts of employment and in support of which I would add reference to Ferraloro v Preston Timber Pty Ltd (1982) 56 ALJR 872 (implied duty to provide a reasonably safe system of work) and Milligan v L J Hooker Ltd [1966] 2 NSWLR 765 (CA) (implied term to provide reasonably safe equipment, facilities and place of work).

9. In my opinion the defendant was in breach of the implied terms of its contract of employment with the plaintiff that it would provide him both with a safe system of work and safe working plant and equipment for the reasons I have already expressed in relation to my findings in respect of its negligence.

10. During the course of final submissions the defendant moved to amend its defence to add a plea as follows:

    "9B.If, which is denied, the defendant breached the implied contractual term pleaded at paragraph 9(a) of the statement of claim, the defendant hereby counterclaims against the plaintiff for the amount of damages and costs sought by the plaintiff, by virtue of:

    (i)the plaintiff's breach of the duty imposed upon him by s20 of the Occupational Safety and Health Act,

    and

    (ii)the plaintiff's breach of an implied contractual term that he would take reasonable precautions for his own safety,

    and further, the defendant seeks to set off the amount it claims by this counterclaim, against any amount awarded to the plaintiff for damages and costs."

11. This was actuated by the defendant's desire to overcome the decision in Astley (supra).  The difficulty with this is that no authority was cited to me to support the plea in proposed para 9B(ii) and I am not prepared to begin to consider what would be startling new law on the basis of an amendment moved so late in the day.  Apart from which the idea that there could be such a term implied into a contract of employment which would contradict, or tend to contradict the well known terms implied for the protection of workers described by me earlier, strikes me as being more than a little odd, and I would not entertain it without the benefit of considered argument before the trial commenced, let alone after it finished.

12. As to the proposed plea of breach of statutory duty, the same considerations apply.  Again no authority was cited to support its case in the way here intended and the very idea that an employer could sue an employee for damages for breach of an implied term in the contract of employment that the employee take care for his or her own safety, breached by the employee injuring himself or herself is faintly ridiculous.  It has a 'Through the Looking Glass' dimension.  What damage to the employer in the event of breach could ever have been within the contemplation of the contracting parties?

13. I have no hesitation in refusing leave to amend.

14. The defendant further argues that the plaintiff cannot succeed in contract because, in deliberately placing his foot on a moving universal joint he was acting in knowledge of the defendant's breaches of the implied terms of the contract constituted by its failure to guard the power take-off, failing to remove the universal joint and permitting the plaintiff to stand near it.  The defendant then submits that damages in contract are that measure which was in the reasonable contemplation of the parties at the time the contract was made and the parties could not then have reasonably contemplated that the plaintiff would put his foot on the universal joint once he had appreciated the danger.  This argument may be disposed of quite shortly.  The plaintiff never appreciated the danger.  He thought the power take-off had been turned off by Troy Winfield.  Nor did he act in knowledge of the defendant's breaches of the implied terms identified by the defendant.  He acted in complete ignorance of them.  This argument too must be rejected.

Breach of statutory duty

1. The plaintiff also brought his claim for damages for breach of statutory duty.  This claim was very sparsely pleaded and the statutory duty not identified in the statement of claim or in any particular.  Further, the matter was not argued and accordingly I declined to make any finding on this head of claim.

Contributory negligence and contract

1. As Astley v Austrust (supra) makes plain, even in the event that I was to find contributory negligence in the plaintiff this would not have the effect of diminishing the plaintiff's damages.  An interesting question arises in the third party proceedings as to the effect of this, as will be seen later.

Assessment of damages

Pain, suffering and loss of amenities

1. I have already sufficiently detailed the nature of the plaintiff's injuries and the course of their treatment.  I have already made observations of the appearance of the plaintiff's foot and the tops of his thighs.  I accept that the plaintiff must have endured a lot of pain, pain which continues to today and is likely to continue for the foreseeable future and, having regard to the prospect of  his skin aging such that the wound may again break down as per the evidence of Dr Ker it is likely to increase in later life.  I accept too that the impact of the injury upon the plaintiff has been marked and severe.  It has interfered with practically every aspect of his daily life.  It has particularly thwarted his sporting ambitions which I will deal with separately, later.  It seems to me that the plaintiff is entitled to a significant award of general damages and under this head.  I award him $75,000.

Lost capacity for employment

1. I have already canvassed the nature of the plaintiff's injuries however it remains for me to detail his progress.  Following his two operations the plaintiff remained in Sir Charles Gairdner Hospital having graft care, intravenous and oral antibiotics and analgesia.  The split skin graft was initially a little slow to take and in some areas some extra skin was required to be re-layed.  Eventually, the skin graft healed well and the plaintiff was mobilised sufficiently to be discharged from the hospital on 28 April 1990.  He attended the outpatient clinic on two occasions in May 1990 for inspection of his wound.  In June of 1990 he was first seen by Mr Stephen Chan who arranged for the plaintiff to have occupational therapy for re-education of his gait and for the fitting of an appropriate orthotic appliance for his right foot.  Mr Chan also referred the plaintiff to a clinical psychologist at Sir Charles Gairdner Hospital and the Sir Charles Gairdner Hospital report (Exhibit P14) suggests that the plaintiff did not keep his appointment, however he obviously did as is evidenced from the clinical psychologist's report of 9 October 1990 (Exhibit P10).  Mr Chan kept the plaintiff under review and in particular was overseeing the provision of appropriate boots which would comfortably take and protect the stump of his right foot.  At that time Mr Chan thought the plaintiff would be keen to return to work and that once his footwear was corrected it would be appropriate for him to return to work.

2. Earlier, on 8 October 1990, the clinical psychologist Mr Green had noted that the plaintiff was "striving to get back into life".

3. The plaintiff's difficulties in having appropriately fitted boots continued in November of 1990 but ultimately these difficulties were overcome and on 28 November 1990 Mr Chan notes that the plaintiff felt confident that he could return to his previous employment,

   "…. or, at least, he is willing to attempt to do so.

   I have, therefore, cleared him to return back to his previous occupation as from Monday, 3rd December 1990.  He will be reviewed in three months."

4. Based on this, the defendant maintains that the plaintiff was fit to return to his pre‑accident employment on 3 December 1990.

5. The plaintiff did not return to his pre‑accident employment on that day however.  He said that whilst talking to Mr Chan he thought that it "sounded good" and that he would be able to attempt to return to work but after he left the surgery he began dwelling upon his situation and came to the conclusion that he would have difficulty returning to work and accordingly he decided to take a second opinion which he did from his general practitioner, who, he said, knew him well and, accordingly, he went to see his GP, Dr Singh.  Dr Singh had seen the plaintiff on 27 November 1990, that is the day before Mr Chan, and Dr Singh thought the plaintiff unfit for work.  He saw the plaintiff again on 11 December 1990 and notwithstanding that he was aware that Mr Chan had certified the plaintiff fit to return to work, Dr Singh observed that the plaintiff remained sore and tender over the amputation line of the stump, had difficulty in using his boots and accordingly certified him unfit for work and referred him to Dr John K Ker, a rehabilitation specialist.

6. Dr Ker saw the plaintiff on 14 January 1991.  Among other things Dr Ker noted on that occasion that the plaintiff was reluctant to return to nursery work and in particular to the nursery where his foot was injured.  He noted of the plaintiff:  "He has had a significant ablative injury and I believe that returning him to such a workplace would prove quite stressful for him."  Dr Ker recommended a number of treatment modalities for the plaintiff and foreshadowed that:

   "… if, despite physical treatment and appropriate orthotic modifications his standing and walking tolerances are limited he would have to look towards more sedentary work."

7. Dr Ker saw the plaintiff again on 6 May 1991.  On that occasion he thought that the plaintiff had made "quite substantial progress" and thought that it was time to assist the plaintiff to return to work and referred him to the vocational rehabilitation services of the Commonwealth Rehabilitation Service in Midland (CRS).  The CRS conducted a number of reviews and assessments of the plaintiff's capacity for employment.  An assessment conducted in August 1991 noted (relevantly) that the plaintiff was unable to wear boots or steel capped boots and was limited to wearing sand shoes, that he had a history of migraines/headaches and had a limited standing tolerance of only half an hour.  Additionally it was noticed that he continued to endure pain and was unable to play sports like lacrosse and football as he had previously done.

8. About a month later in a further assessment by the CRS to gauge the plaintiff's functional capacity for employment the CRS noted:

   " - No further podiatry intervention - unable to stand for 50 minutes; required to alternate posture from standing to sitting to relieve pain - unable to walk distances over 3 kilometres which results in increased pain - difficulty with balancing if carrying objects load through crowded workshop or stairs (sic) pain when walking on rough gravel without shoes - unable to wear safety capped boots."

9. The plaintiff underwent vocational counselling and a range of realistic work options identified which were noted but ultimately a work training course was arranged through an acquaintance at Bristile Clay Tiles in Caversham as a machine operator.  This involved the plaintiff pulling out damaged tiles from a conveyor belt and unloading and loading pallets.  Initially a 13 week trial was agreed upon and after a job analysis was completed it was recommend that the plaintiff start at five hours a day and increase his hours as he was able to tolerate more work.  The job was said to involve lifting weights up to 23 kilograms and carrying weights of up to 11 kilograms.  The initial work training period was extended for a further six months to allow the plaintiff time to build up to 10.9 hours a day, the standard time for a full time worker at that place.  He completed this work training on 7 August 1992 when it was noted he was able to complete a 10 hour shift.  He was then referred to the Commonwealth Employment Service to search for appropriate employment but none was found by that body.  The plaintiff said in evidence and I accept that he ceased his work trial at Bristile because Bristile was not prepared to offer him full time employment because he lacked the capacity of other workers and whilst they were prepared to keep him on without pay that was the extent to which Bristile was able to assist.

10. Finally, the plaintiff commenced employment for his mother's de facto husband, Mr John Lane, some time in October or November of 1992.  At this point in the assessment of damages there are two issues to be resolved.  The first of these is when the plaintiff first became fit to return to work.  The second is whether the plaintiff should have attempted to return to work at Benara Nurseries.

11. With regard to the first of these issues I find the evidence of Dr Singh and Dr Ker far more persuasive than that of Mr Chan.  In my opinion Mr Chan was prepared to certify the plaintiff fit to resume his former employment based solely upon the plaintiff's willingness to return to work without having any information about the nature of his duties and without the benefit of a rehabilitation assessment or the like really on the basis that if the plaintiff was prepared to 'have a go' then that was all that was required.  Dr Ker was quite clear and unequivocal with his opinion that the plaintiff was not ready to return to work at Benara Nurseries and if asked at the time he would have advised against it for a variety of reasons.  (Notwithstanding that he said in cross‑examination that he would've supported the plaintiff in an attempt to resume his former employment.)  Accordingly I find as a fact that the plaintiff was not fit to return to any form of employment until either October or November of 1992.

12. The second issue is whether the plaintiff should have returned to work at Benara Nurseries.  The directors of the defendant company which operates the nursery were called to give evidence.  The bulk of the nursery work is attended to by the two brothers previously identified namely Mr Ian James and Mr Gary James.  Both of these gentlemen testified that they made a particular effort to visit the plaintiff in hospital and to assure him that his employment with them could continue and that he had no difficulties in this regard.  Additionally both Mr Ian James and Mr Gary James said that work could have been found within the nursery which could have accommodated the plaintiff's injuries.  There was a large range of work available within the nursery which could have enabled the plaintiff to be seated for most of the time, these jobs being in the propagation area where cutting work could be undertaken whilst seated at a bench as could the placement of cuttings into small tubes and containers and the like.  I was impressed by each of Mr Ian James and Mr Gary James.  I thought them gentle and reasonable men who were sincere in their offer of employment to the plaintiff.  I entertained no doubt that they would have welcomed the plaintiff back into their work force and made every effort to accommodate his disability.

13. The plaintiff confirmed that he had been offered a return to work at Benara Nursery whilst he was still in hospital and it is tolerably clear from the medical reports, particularly those of Mr Chan, that the type of return to work being considered for the plaintiff was a return to work with his former employer - the correspondence was being copied to them on some occasions.  Further I accept the evidence of each of Mr Ian James and Gary James that the plaintiff's cousin remained in employment at the nursery and that they would frequently ask him about the plaintiff's progress and when he was likely to return to work.  I think it improbable that the plaintiff was unaware of the defendant's interest in his returning to work at the nursery.

14. In Tuncel v Renown Plate Co Pty Ltd [1976] VR 501 (FC) it was held that a plaintiff could not recover damages in respect of any loss which could have been avoided but which the plaintiff failed to avoid through unreasonable action or inaction (adopting the rules formulated by Professor Harvey McGregor). The question then becomes whether the test of reasonableness is objective, that of the reasonable man, or subjective that is to say viewed through the eyes of the plaintiff. For my part I would find the application of an objective test somewhat incongruous: the reasonable man would not be in the position of the plaintiff. In Karabotsos v Plastex Industries Pty Ltd [1981] VR 675 Young CJ said he did not find it particularly helpful to try and find a distinction between whether the test should be objective or subjective but the court went on in that case to formulate the test as being:

    "… whether a reasonable man in the circumstances as they existed for the plaintiff and subject to the various factors such as difficulty of understanding, the plaintiff's medical history and conditions as they existed for him, would have refused treatment".

    (That being a case where the alleged failure to mitigate or alternatively to avoid loss was the refusal to take further medical treatment).

15. The difficulty I have is that I am impressed by the plaintiff as a witness of integrity just as I am impressed by each of Mr Ian James and Mr Gary James as witnesses of integrity.  The plaintiff struck me as being an uncomplicated sort of young man, unaffected by any degree of sophistication and not given to any intellectual examination of his position.  As far as he was concerned he didn't want to go back to the place that had caused him to lose four toes on his right foot and so alter his life.  Without putting too fine a point on it I think he was scared to go back there and who am I to tell him that his fear, in the events that had happened to him, was unreasonable?  I decline to do so.  Dr Ker said he would have advised against it.  I do not think his fear was unreasonable.  The onus of proving that the plaintiff has not avoided a loss which could have been avoided or alternatively failed to mitigate his lost is of course on the defendant:  Watts v Rake (1960) 108 CLR 158. It has failed to discharge the onus.

16. Presently, I find that the plaintiff is exercising his capacity for gainful employment to the fullest extent possible given his age, education, work experience and the nature of his injuries.

17. As already noted he commenced work with his mother's de facto husband, Mr John Lane, in October or November of 1992 and he has continued in that employment ever since although his conditions of employment have varied.  Initially he was in full time employment but latterly he is a permanent casual who works about half time.  I accept Mr Lane's evidence and that of the plaintiff that the plaintiff's employment with Mr Lane is somewhat sheltered.  Mr Lane's employment of the plaintiff has caused discontent among other of his employees and this was one of the principal reasons he was obliged to change the nature of the plaintiff's employment from full time to casual.  Mr Lane's other employees complained that the plaintiff was being paid the same amount for doing less work than them.  Obviously the parable of the labourers in the vineyard [Matthew Ch 20 v1-16] is not easily transported into modern industrial relations.  But this is not surprising.  Industrial commissions throughout Australia have, for over a century, graded pay rates to match the work undertaken.

18. The reasons for the plaintiff's disabilities are obvious:  he has difficulty standing on his foot for any length of time, in walking over uneven surfaces, in working up ladders, in carrying and in balance.  The loss of four out of five of his toes on his right foot has seriously affected his balance such that he appears to lack coordination.  Mr Lane observed that in the plaintiff's employment on his chicken farm, one of his tasks was to walk through the chicken sheds picking up dead birds.  He said other workers could complete two sheds by the time it took the plaintiff to complete one.  The same applied to most of the other tasks about the farm and it is quite clear that the plaintiff only enjoys his work with Mr Lane because of the family relationship.

19. Nevertheless it should not be thought that the plaintiff in any way treats his work with Mr Lane as some sort of sinecure.  Mr Lane testified, and I accept, that the plaintiff was "keen as mustard".  He was diligent.  He never missed work when he was engaged.  He was always there on time.  He would forego breaks in order to make up for the time which he acknowledged he was costing his employer by reason of his slowness.  In other words his attitude to work could not be faulted.

20. This, it should be noted, is consistent with the view of practically all of the medical practitioners who have seen the plaintiff.  He impressed them as wanting to try to get back to work.  He rarely complained about his condition and in fact the general view seemed to be that he attempted to minimise its impact upon his activities.

21. With regard to the future the plaintiff expressed a wish to obtain a B class driver's licence which would enable him to drive trucks such that he could perhaps buy a truck and commence delivery work for Ingham's Chickens in respect of which he acknowledged there was a long waiting list but that with his contacts with Ingham's Chickens obtained through his employer, Mr Lane, he thought he might be able to "jump the queue a bit".  The plaintiff thought that he could do this sort of work but he had taken no steps to obtain his B class licence and Mr Lane, an experienced observer of the plaintiff, was most surprised to hear that this was an ambition of the plaintiff and even more surprised to think that the plaintiff would succeed in this sort of work.  He pointed out that the plaintiff would have difficulty in carrying boxes of chickens as a delivery driver and would have difficulty in maintaining pressure on the accelerator pedal, and whilst no witness mentioned it, I can foresee difficulties in emergency braking application if the plaintiff was to use his right foot, the natural foot to use.  It seems to me that the prospect of the plaintiff obtaining employment as a truck driver is probably categorised as a hope or a dream rather than a probability.

22. In summary the plaintiff has sustained a significant diminution in his income earning capacity which I will now proceed to calculate.

23. The qualification of the plaintiff's claim in this regard was not a matter of controversy between the parties, wage rates and the like having largely been agreed between them.

Past loss of income earning capacity

1. The parties appear to have agreed that at the time of his accident the plaintiff's after tax income was $176.29 per week.  This would have increased to $198.00 per week on 24 April 1990 (his 17th birthday).  The difficulty with this is that the award appears to provide differently and the bundle of financial documents tendered as Exhibit P4 shows something else again.  Doing the best I can without the benefit of argument addressing the point, according to his group certificates the plaintiff's average gross weekly income in each of the financial years ended 30 June 1990 and 30 June 1991 was $202.89 and $197.15 whereas after his 17th and 18th birthdays respectively the relevant award (Horticultural (Nursery) Industry Award) provided for $181.32 and $211.54 respectively.  The plaintiff did not re‑commence work until 19 November 1992.  I should mention that the award also provided for an increase of pay on his 19th birthday to $241.76 per week.  There was no income tax return for the year ended 30 June 1992 and his group certificate, whilst barely legible, shows an income of (I think) $4316.40 for the whole year, probably because the insurer cut off his workers' compensation payments.

2. I think that it is safer for me to work from the award.  This means that:

   •from 20.3.1990 to 24.4.1990 his gross income would've been $151.10 per week.

   •from 24.4.1990 to 23.4.1991 his gross income would've been $181.32 per week.

   •from 24.4.1991 to 23.4.1992 his gross income would've been $211.54 per week, and

   •from 24.4.1992 to 19.11.1992 his gross income would've been $241.76 per week.

   At these times, the income tax payable on those amounts was:

   •$11.13 per week

   •$15.49 per week

   •$21.54 per week, and

   •$27.58 per week.

   And hence the plaintiff's weekly income after tax would have been:

   •$139.97

   •$165.83

   •$190.00, and

   •$214.18, respectively

1. Had the defendant been able to remain in employment during the relevant periods he would have earned, after tax:

   •$733.91

   •$9,428.64

   •$11,000.08

   •$7,218.26

   $28,380.89

2. The next period to consider under this head of claim is the period 19.11.1992 to the date of this judgment.  Had the plaintiff continued in his employment with the defendant, or in similar employment, he would have earned:

   •from 19.11.1992 to 23.4.1993 $214.18 per week net of tax;

   •from 24.4.1993 to 23.4.1994   $238.35 per week net of tax to 17.8.1993 and thereafter $247.36 per week;

   •from 24.4.94 to 27.5.1994      $272.53 net of tax;

   •from 27.5.94 to 13.6.1996      $278.93 net of tax;

   •from 13.6.1996 to 14.11.1997 $286.36 net of tax;

   from 14.11.1997 to 24.6.1998 $308.32 net of tax;

   •from 24.6.1998 to date (11.2.00)      $310.93 net of tax.

   Calculated out, this reveals:

   • $4,742.56

   •$12,748.75

   • $1,323.72

   •$29,686.12

   •$21,231.55

   • $9,778.15

   •$26,429.05

   $105,939.90

3. Because I have made no allowances for tax deductions for work clothing and the like, or the opportunity for overtime, promotion and other vocational opportunities available to the plaintiff, which, but for his injuries I think he would have exercised, I propose to work on the basis that it is more probable than not that, but for his injuries, he would have earned $120,000 net of tax in this period.

4. During this period the plaintiff had earned $103,954 to the date of conclusion of the trial on 1 December 1999 (which seem includes $16,187.74 by way of workers' compensation payments), and having only worked 10 days or so in the previous five months, ie two days a month, as a casual labourer, it is fair to assume he would have earned another $500 or so since the conclusion of the trial.  Rounding this off, this gives an actual net income of $104,500.

5. The plaintiff's loss in this regard is $15,500, to which must be added $28,380.89, previously calculated, a total of $43,880.89, of which, as stated he has already received by way of workers' compensation payments $16,187.74, a difference of $27,693.15, the sum upon which interest must be calculated.

6. As this is an accumulating loss, the usual formula is to allow half the relevant interest rate on the whole sum (or the whole rate on half the amount).

7. Interest rates on Supreme Court judgments have been as high as 14 per cent, reducing to 6 per cent during the relevant period, but they were mostly at 8 per cent (31.7.92 to 11.9.97).  The plaintiff claims at 5 per cent but I think the proper allowance here is 4 per cent, calculated from the date of his accident on 20 March 1990 to today, 11 February 2000, a period of 9 years 328 days, a total of $10,964.97.

Loss of future income earning capacity

1. Mr Lane testified that the plaintiff has really reached the stage in his employment where because of the difficulties he has encountered with other of his workmen working alongside the plaintiff for the same pay and doing twice the work he has reduced the plaintiff's employment to a casual basis paying him $110 gross per day, $100 per day after tax.  Mr Lane said that the plaintiff was only working two weeks in an eight week cycle.  The plaintiff himself described his employment as being "2 to 3 weeks on … sometimes 2 to 3 weeks off.  It varies.  Whenever he really needs me.  Sometimes I might be 4 or 5 weeks off.  It just varies, but whenever he needs me really."

2. As observed earlier this need over the last six months or so before the trial reflected itself in a situation where the plaintiff had only earned $1000 after tax in five months.  That is to say he had worked a total of 10 days or so.  It seems to me that all things considered the plaintiff has lost two thirds of his work capacity and, having regard to his age, experience, qualifications and the like the range of employment opportunities for him is very small indeed.  He will be 27 years of age at his next birthday.  He would have continued working to age 65 years.  Having regard to the evidence of the likely deterioration of his stump in future years the prospects of the plaintiff ever enjoying full time employment must be considered remote whether now or later.

3. Measuring this loss is not without its difficulties and, notwithstanding the short period of time in which he was employed as a junior nursery hand that employment remains the best yardstick available.  On the information before me if the plaintiff had remained in employment as a nursery hand he would presently be earning not less than $310.93 per week net of tax two thirds of which, rounded up is $210.  The multiplier for the 38 years left of the plaintiff's working life on the 6 per cent tables is 798 and the resultant sum is $167,580.  I propose to award this sum for future economic loss.  I make no deduction for the contingencies sometimes called "the vicissitudes of life".  I have never understood why there should be such a deduction.  It assumes an unnecessarily pessimistic view of human progress.  It assumes a pessimistic view in respect of all plaintiffs, when by any measure of one's experience and observation, unfavourable contingencies are just as likely to be balanced out by favourable contingencies and, in the case of the computation of future economic loss, I see no reason to discount my calculations when I have on the evidence before me assessed the degree of the plaintiff's probable continuing incapacity for employment and then valued that.  This can be looked at another way.  Mr Lane described the plaintiff as being as "keen as mustard".  Such an employee would be valuable to any enterprise and there would be no reason to assume that he may not have been promoted and even worked his way into a share in a business in which he was engaged, hence in his case unfavourable contingencies are likely to be set off by favourable contingencies.  (Refer generally Luntz' Assessment of Damages for Personal Injury and Death 3rd ed, 6.4.1-6.4.21

Lost opportunity to earn income as professional sportsman

1. The plaintiff testified in a matter of fact way to his sporting ability.  He was clearly a good sportsman before the accident.  Equally as clear is that sport meant a lot to him.  At school it was the only discipline he performed well in.  He had won a number of awards and trophies for his sporting prowess.  One of the plaintiff's football coaches, Mr Murray Robinson, was called to give evidence for the plaintiff.  He had coached the plaintiff in the under-14's and under‑15's.  He had a good opportunity to observe the plaintiff's skill.  Mr Robinson said that the plaintiff was one of six players he sent up to the West Perth combined football side in his age group.  The plaintiff was keen, his attitude was good, he went well in his games and he would have undoubtedly obtained a position in the 17 year old squad, have gone to play for the West Perth colts and whilst he thought it was hard to tell in his opinion the plaintiff would have gone on to play league football.  Another witness, the plaintiff's cousin, Mr Jonathon Buchanan, thought the plaintiff a good footballer and gave evidence of his own experience in playing professional football in the country.  Mr Terence Waldron, the general manager of the West Australian Country Football League, testified about the opportunities for professional footballers in the various country leagues (of which there are 24) in Western Australia.

2. Where a plaintiff claims for loss of a chance, as here, the plaintiff must adduce some credible evidence showing a real chance that the loss will occur:  Arthur Robinson (Grafton) Pty Ltd v Carter (1968) 122 CLR 649 at 665.

3. I think it more probable than not that the plaintiff would have gone on to play professional football.  His cousin certainly has.  The difficulty is in valuing the chance.  Everyone knows that professional footballers occasionally sustain serious injuries which cut short their careers.  Further, there would be a prospect of such sporting injuries impacting upon a player's capacity for other employment.  There are other imponderables too.  What level would the plaintiff have reached?  How long would he have played?  What rate of pay would he have earned?  Would his commitment to training and playing have cut into his commitment to other employment?

4. All in all I think these factors weighed against each other are suggestive of only a modest award under this head to compensate for the loss of the chance to play professional football and I accordingly allow $1000.

Past gratuitous services

1. These have been agreed by the parties in the sum of $500 exclusive of interest.  Interest I would allow at 6 per cent per annum from the date of the accident striking as best I can a balance between the accumulating nature of the damage and the fluctuation in interest rates.  This gives an amount of $297.

Past and future loss of superannuation

1. Whilst it was conceded by the defendant that from the commencement of his employment the plaintiff was enrolled in a superannuation plan with the defendant whereby 3 per cent of his gross salary was paid into the Benara Nurseries Superleader Plan there was neither agreement nor evidence on the matters discussed in Jongen v CSR Ltd [1992] A Tort Rep 61,706.  Assessment of an appropriate award under this head is made complicated by the fact that the provision of superannuation by employers for employees is not discretionary but compulsory by commonwealth legislation:  Superannuation Guarantee (Administration) Act 1992.  That provided for a scheme of contributions from employers into recognised superannuation funds on behalf of their employees of amounts beginning at 3 per cent of the gross annual salary of each employee and rising to 9 per cent, a not inconsiderable sum.  An award under this head will, as with any award in respect of an accumulating loss need to be discounted on the basis that it is being received now and, doing the best I can on the paucity of the evidence before me I think it fair to work on the basis that there will be an average rate of contribution of 7 per cent of the plaintiff's gross salary ($373.40 per week) namely $26.14 two thirds of which, is $17.43 which using the relevant multiplier of 798 shows a loss of $13,909.14 under this head which I would round down to $13,900.

Past medical treatment and travelling expenses

1. These have been agreed by the parties as follows:

   1.Travelling expenses  $1,200.00

   2.Pharmaceutical expenses  $2,468.25

   (of which $1501.25 has been paid)

   3.Commonwealth Rehabilitation Service                  $5,720.37

   4.Health Insurance Commission notice of charge         $315.35

   5.Podiatrist's fees   $415.00

   (all of which has been paid)

   6.Dr Singh  $66.00

   7.Mr Graf  $340.00

   (all of which has been paid)

   8.Fox v Wood component  $1,819.60

   9.Other medical and hospital expenses

   paid as statutory allowances pursuant to the

   Workers' Compensation and Rehabilitation

   Act 1991$15,603.90

   $27,948.47

   (of which the sum of $17,860.15 has been paid).

2. Of the amount paid the parties have agreed that $1029.25 came out of the plaintiff's pocket (as opposed to that of the defendant's insurer).  Additionally, practically all of these expenses had been paid by the time the plaintiff started work in November of 1992, having accumulated from the date of his accident until that time.  Having regard to these circumstances and the fluctuation in rates of interest provided on Supreme Court judgments already noted, I think it fair to allow the plaintiff interest at 6 per cent from the time of his accident to judgment, a period of about 9.9 years.  This gives a sum for interest on this amount of $2393.38.

Future medical treatment and travelling expenses

1. Calculation of the plaintiff's future medical treatment and travelling expenses is very difficult because of the uncertainty of prognosis.  Dr Ker was not seriously challenged when his prognosis for the plaintiff was that as he went into later life the skin at the amputation site would begin to degrade and that he would require ongoing medical treatment.  Obviously he would need ongoing podiatry services and would need from time to time bandages, dressings, antibiotics, analgesics and the like.  This will mean that he will incur travelling expenses in travelling to and from doctors, chemists and podiatrists.  He may even need further operative treatment.  It is difficult to say.  Whilst a claim under this head is not capable of any precise mathematical formulation there is and will be a recognised loss for which the plaintiff is entitled to be compensated.  I think a fair award under this head would be $2500.

Summary

Pain, suffering and loss of amenities                  $75,000.00

Past loss of income earning capacity                  $15,500.00

Interest on above  $10,964.97

Future lost income earning capacity                 $167,580.00

Lost opportunity to earn additional

Income as sportsman  $1,000.00

Past gratuitous services     $500.00

Interest on above     $297.00

Lost superannuation  $13,900.00

Past medical etc  $27,948.47

Interest on above  $2,393.38

Future medical etc.  $2,530.00

$317,583.82

Third Party proceedings

1. In the third party proceedings the defendant seeks an indemnity from the third party in respect of any award made against the defendant in favour of the plaintiff by reason of the fact that the defendant was insured by the third party pursuant to a compulsory statutory insurance policy issued in respect of the tractor pursuant to the provisions of the Motor Vehicle (Third Party Insurance) Act 1943.

2. The third party admitted that the plaintiff's injuries were caused by the driving of a vehicle namely the tractor, in respect of which it was the statutory third party insurer, but denied liability on account of what it claimed to be the defendant's breach of its warranty that the motor vehicle in question would not be driven by any person who was unlicensed to drive.

3. In this regard it was established in evidence that the driver of the vehicle at the time, Mr Troy Winfield, did not have a motor driver's licence as such but was the holder of a learner's permit issued pursuant to the provisions of the (former) s50(1) of the Road Traffic Act 1974 (as amended).  In March of 1990 the Road Traffic Act then provided (and continues to provide now by s48C and s50(1)) that a person could be issued with a learner's permit authorising the person to drive a motor vehicle of the class specified in the permit in the course of driving instruction, on a road in conformity with any conditions endorsed on the face of the permit but not "unless accompanied by a driving instructor with whom he is authorised to drive … seated beside him ..".

4. As Exhibit D2 discloses at the time of the accident Troy Winfield was the holder of a learner's permit in respect of a Class A licence which was relevantly endorsed:

   "This person is hereby permitted to act as a driver (or rider) of a Motor Vehicle for the abovementioned class of vehicle within the State of Western Australia whilst being instructed as a driver (or rider) of such a vehicle subject to the following conditions:"

5. By reason of the Road Traffic (Drivers' Licences) Regulations 1975 a licence to drive Class A vehicles would include a licence to drive any tractor not of the prime mover having a tare of 4572 kilograms or less. This tractor was not of the prime mover type and the registration certificate showed the tractor had a tare of 1702 kilograms.

6. Additionally it needs to be recalled that at the time of the plaintiff's accident the tractor was not being driven on a road and, as is well known, the system of licensing of motor vehicles and their drivers in this State applies only to vehicles that are driven on roads as defined in the Road Traffic Act.  In other words there is no legal requirement to have a driver's licence for a vehicle whether licensed or unlicensed which is not being driven on a road.  There are legions of farm vehicles throughout the State driven by the children of farmers not licensed to drive them with never any suggestion that there is thereby an offence against the provisions of the Road Traffic Act.

7. Turning now to the relevant warranty it reads:

   "The owner warrants that the vehicle will not be -

   …..

   (c)driven by or in charge of himself or any other person who is unlicensed to drive ….

   It shall be a defence to any action in respect of the warranty contained in subclause (c) if the owner proves that the vehicle was so driven or in charge of such other person without his knowledge or consent."

8. The defendant and third party agreed that the plaintiff's injuries were "directly caused by, or by the driving of [the tractor];" within the meaning of that phrase as it appeared in s4(1)(a) of the Motor Vehicle (Third Party Insurance) Act 1943 before it was amended in 1994.

9. Section 4(1) of the Act as it now stands only requires an owner of a motor vehicle to insure against liability in respect of a motor vehicle when it is on a road.

10. Dealing with the questions raised by the legislation the first is whether Mr Winfield was licensed to drive the tractor.  In my opinion he was not.  Unlike the authorities relied on by the defendant (GRE v Kitson (1985) 3 ANZ Insurance Cases 60-676; Rendlesham v Dunne (1964) 1 Lloyds Rep 192 and Garlick v Mercantile Mutual Insurance [1986] Tas R 238 (NC 6) the holder of a learner's permit is not to be equated with the holder of a (provisional) licence as was the case in each of those authorities. The scheme of permitting learner drivers to drive on the State's roads is in fact a permission or authorisation to drive without a licence subject to certain conditions being met.

11. The next question is whether Mr Winfield was required to be licensed.  As noted, the scheme of licensing of vehicles and their drivers is such as applies only to vehicles on roads, there being no legislative scheme requiring the licensing of vehicles or drivers for off‑road use.

12. These findings need to be viewed against legislative scheme introduced and maintained by the Motor Vehicle (Third Party Insurance) Act 1943 as it was at the time of this accident, however, namely that the owner of a motor vehicle was required to "insure against any liability etc" any motor vehicle "required to be licensed, and complying with the requirements necessary for licensing, under the Traffic Act …" (Motor Vehicle (Third Party Insurance) Act 1943 s3(1)). It seems to me that the phrase "required to be licensed" in respect of the definition of "motor vehicle" in the Motor Vehicle (Third Party Insurance) Act 1943 means that the requirement to insure only applies to a motor vehicle which it is intended to be used on a road and hence, I find, contrary to the defendant's submissions, that this tractor was required to be licensed and hence was required to be insured because it would be used on a road.  Accordingly the position is arrived at that the tractor was required to be licensed, was indeed licensed, was required to be insured and was in fact insured, and was being driven by an unlicensed driver.

13. This is a curious result.  A person doesn't have to be licensed to comply with the legislation regulating vehicles and their drivers, but does have to be licensed to comply with legislation governing the insurance of such vehicles.  The question is now whether the defendant has proven that the tractor was driven when in charge of Mr Winfield without the defendant's knowledge or consent.  Whether a company can know something or not know something at a given time depends in large measure on the fact, circumstance or thing said to be known or not known as the case may be and, a company not having a mind of its own, the relationship a person or persons said to have or not have the knowledge as the case may be, to the company, is as it was put by Lord Reid in Tesco Supermarkets Ltd v Nattrass [1972] AC 153 at 170:

    "I must start by considering the nature of the personality which by a fiction the law attributes to a corporation.  A living person has a mind which can have knowledge or intention or be negligent and he has hands to carry out his intentions.  A corporation has none of these:  it must act through living persons, though not always one or the same person.  Then the person who acts is not speaking or acting for the company.  He is acting as the company and his mind which directs his acts is the mind of the company.  There is no question of the company being vicariously liable.  He is not acting as a servant, representative, agent or delegate.  He is an embodiment of the company or, one could say, he hears and speaks through the persona of the company, within his appropriate sphere, and his mind is the mind of the company.  If it is a guilty mind then that guilt is the guilt of a company.  It must be a question of law whether, once the facts have been ascertained, a person in doing particular things is to be regarded as the company or merely the company's servant or agent.  In that case any liability of the company can only be a statutory or vicarious liability."

1. von Doussa J in Beach Petroleum NL & Anor v Johnson & Ors (1993) 115 ALR 411 at 570, in discussing this principle said:

   "The Tesco principle creates primary liability in a company, not a vicarious liability as with principal and agent.  The mind of the directors or officers who speak and act as the company is treated as the mind, the ego, of the company itself. ……

   The Tesco principle is one appropriate to be applied to determine criminal responsibility of a company, but the wider notions of the principles of agency should be applied where the issue is civil responsibility arising under the general law.  Cases on the Tesco principle may nevertheless give helpful guidance, as where corporate responsibility attaches under Tesco, it will also attach under ordinary agency principles."

2. Each of the three directors of the defendant company gave evidence that they did not know that Mr Winfield was unlicensed.  There is no room here for imputing knowledge to the company in the manner suggested by the third party who submitted that the defendant had no reasonable grounds upon which to assume that Mr Winfield was licensed and every reason to assume that he was not.  The only evidence of any agent of the company knowing Mr Winfield was unlicensed is the learner's permit, which would lead to a fair inference that Mr Winfield knew he was unlicensed.  As far as I am concerned however this would be too tenuous a ground on which to find that the company knew Mr Winfield was unlicensed, ie, because Mr Winfield knew, the company knew.

3. Dealing with the third party's last submission first I do not quite understand why the third party suggests that the defendant had every reason to assume that Mr Winfield was unlicensed.  At the date of the accident he was 17 years of age and could have held a licence (Mr Winfield was born on 7 February 1973:  Exhibit D2).  Likewise, on the evidence I do not know the basis upon which the third party submits that the defendant had no reasonable grounds upon which to assume that Mr Winfield was licensed.  The defendant gave evidence that work was allocated by foremen at the beginning of each shift; the defendant knew that its tractors had to be licensed in order to cross Vincent Road, and, basically everyone knows that to drive a vehicle on a road requires the driver to be licensed.  And, as noted earlier (p5) Mr Ian James knew, as did Mr Sillitoe, that its employees under 17 years of age were taught how to drive the tractors but weren't allowed to drive them across Vincent Road.  Here the work undertaken in the driving of this tractor was not on a road, but on private property for which the driver did not require a licence to comply with the Road Traffic Act, as I have earlier found.  Why should the defendant have assumed anything one way or the other about Mr Winfield's licence to drive on private property?  As it was put by Pidgeon CDCJ in Poland v Tilby and MVIT, unreported; DCt of WA; Library No 397; 26 June 1981:

   "Is a person entitled to assume for these purposes that a person who offers to drive a car and shows an ability to be able to drive is licensed?  If it can be assumed that such a person is licensed then it would be sufficient for the plaintiff to show that nothing has come to his attention to indicate that he was unlicensed.  I consider the question whether or not such assumptions can be made is a matter that must be decided on the facts of each case."

4. And, further, as Wallace J observed in Mulcahy v MVIT, unreported; SCt of WA; Library No 4271; 2 October 1981 failure to enquire does not fix the owner with knowledge that the driver was in fact unlicensed:

   "Surely what was intended by the warranty was to preclude an indemnity flowing to an owner who knowingly permitted an unlicensed driver to drive his vehicle.  I understand in that manner the words 'so driven' clearly advert to the vehicle being in the control of a person who does not hold a licence to drive it, but of which fact the owner has no knowledge.  In other words it cannot be said that the failure of an owner to enquire of the right of a substitute driver to be in control of his vehicle clothes him with knowledge of the unlicensed condition of the substitute driver."

5. In the circumstances the defendant has proven by the evidence of its directors, the mind, collectively, of the company into which I have to enquire as to the state of the knowledge of the company, that the tractor was driven without its knowledge.

6. This brings me to the balance of the phrase in the warranty "or consent".  I agree with the defendant's submissions in this regard that the "or" is a disjunctive and it is not incumbent upon the defendant to prove that it neither had knowledge nor consented.  As Wallace J said in Mulcahy (supra) the warranty is intended to preclude an indemnity flowing to an owner who knowingly permits an unlicensed driver to drive his vehicle.  That is not this case.

7. In the circumstances therefore I find that the defendant is entitled to an order for an indemnity.

8. Had it not been for the fact that I have found that there was no contributory negligence by the plaintiff and that the defendant's liability is concurrent in both contract and tort the last point which falls for determination in the third party proceedings may have had more practical significance than it now does save for one thing.  The third party submits that where the plaintiff is entitled to damages in both contract and tort only contractual damages should be awarded because, it submits, damages cannot be awarded for both breach of contract and negligence.  The third party goes on to argue that if only contractual damages are awarded to the plaintiff then it is not liable to indemnify the defendant under the statutory policy as the third party's obligation is to insure the defendant for liability for negligence.  This is a surprising submission.  Since the Judicature Acts separate causes of action involving the same parties arising out of the same transaction or series of transactions could be pleaded and brought to trial in one action and judgment delivered in respect of each separate cause of action whether as a lump sum in one award satisfying all causes of action or separately, (the approaches have been different from time to time:  Weber v Birkett [1925] 2 KB 152 CA and Barber v Pigden [1937] 1KB 664 CA) as Astley (supra) made plain, there can be concurrent liability in contract and tort and, where the application of the principles of the assessment of damage to each cause of action resulted in one cause of action giving a plaintiff a greater award than the other, the plaintiff was entitled to judgment in the highest sum, in satisfaction of both causes of action.

9. In this case the measure of damage is the same whether calculated in accordance with the rules applicable to tort or contract.

10. I will hear the parties on the formal orders to be made.