Miller v BP (Fremantle) Ltd - [2002] WASCA 201

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE FULL COURT (WA)

CITATION: MILLER -v- BP (FREMANTLE) LTD & ANOR [2002] WASCA 201

CORAM: WALLWORK J
STEYTLER J
MILLER J

HEARD: 24 JUNE 2002

DELIVERED : 1 AUGUST 2002

FILE NO/S: FUL 117 of 2001

BETWEEN: DESMOND LAWRENCE MILLER
Appellant (Plaintiff)
AND
BP (FREMANTLE) LTD
First Respondent (First Defendant)
FREMANTLE PORT AUTHORITY
Second Respondent (Second Defendant)

Catchwords:

Negligence - Employer and employee - Place of work - Duty to warn against risks of walking over ropes at wharf - Whether sufficient or alternative walkways - No record of instance of injury - Whether any duty to warn against danger - Whether any duty to instruct employees in manner of access to wharf - Relevance of experience of employee - Contributory negligence of employee aware of risk in walking over ropes

Legislation:

Occupational Health, Safety & Welfare Act 1984, s 20, s 22

Result:

Appeal allowed
Judgment in favour of respondents set aside
Judgment for appellant in sum of $189,818 substituted

Category: B

Representation:

Counsel:

Appellant (Plaintiff) : Mr R I Viner QC &
Mr M E Herron

First Respondent (First Defendant) : Mr P K Walton &
Mr P V Lansell

Second Respondent (Second Defendant) : Mr P K Walton &
Mr P V Lansell

Solicitors:

Appellant (Plaintiff)  :        Gibson & Gibson
First Respondent (First Defendant)          :        Jackson McDonald
Second Respondent (Second Defendant) :        Jackson McDonald

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

Abalos v Australian Postal Commission (1990) 171 CLR 167
Ferraloro v Preston Timber Pty Ltd (1982) 56 ALJR 872
Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18
McLean v Tedman (1984) 155 CLR 306
McLean's Roylen Cruises Pty Ltd v McEwan (1984) 54 ALR 3
Miller v Jennings (1954) 92 CLR 190
Nance v British Columbia Electric Railway Co Ltd [1951] AC 601
Nelson v John Lysaght (Australia) Ltd (1975) 132 CLR 201
Nicol v Allyacht Spars Pty Ltd (1987) 163 CLR 611
Pennington v Norris (1956) 96 CLR 10
Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492
Raimondo v South Australia (1979) 23 ALR 513
Smith v Austin Lifts Ltd [1959] 1 All ER 81
Sungravure Pty Ltd v Meani (1964) 110 CLR 24
Wyong Shire Council v Shirt (1980) 146 CLR 40

Case(s) also cited:

Anglo-Newfoundland Development Co v Pacific Steam Navigation Co [1924] AC 406
Ashford v Ashford (1970) 44 ALJR 195
Australian Coal and Shale Employees' Federation v Commonwealth (1953) 94 CLR 621
Ferraloro v Preston Timber Pty Ltd (1982) 56 ALJR 872
March v E & M H Stramare Pty Ltd (1991) 171 CLR 506
Medlin v State Government Insurance Commission (1995) 182 CLR 1
Milligan v L J Hooker Ltd (1966) 85 WN (Pt 1) (NSW) 160 (NSWCA)
Vozza v Tooth & Co Ltd (1964) 112 CLR 316
Western Australia v Watson [1990] WAR 248
Woods v Multi-Sport Holdings Pty Ltd [2002] HCA 9

WALLWORK J: I agree with the reasons for judgment of Miller J and to the orders proposed by his Honour. I also agree with the additional reasons of Steytler J.
STEYTLER J: I have had the advantage of reading the reasons for decision which have been prepared by Miller J. Generally for those reasons I agree that the appeal should be allowed, that the judgment of the trial Judge should be set aside and that there should, in lieu thereof, be judgment for the appellant against the first respondent in the sum of $189,818.
As Miller J has pointed out, the presence of the concrete block in the path of the route ordinarily taken by the appellant increased the difficulty of negotiating that route and made it more probable that the appellant would do what he did, namely walk along the concrete pathway, stepping over the mooring cables and ropes in that process. It was also reasonably foreseeable that, if the appellant should do this, he ran a real risk of injury as a consequence of the prospect that the mooring lines would lift as he crossed them. That combination of circumstances was sufficient, in my opinion, to require the first respondent to take some step or steps to avoid the risk. In my opinion it should, at the very least, have issued an instruction to its employees not to step over the mooring lines as, indeed, it did after the accident. As was said by Windeyer J in Sungravure Pty Ltd v Meani (1964) 110 CLR 24 at 36, a safe system of work "is not a system which is safe only for persons of superior skill whose attention never wanders". To similar effect is the judgment of the Court in Ferraloro v Preston Timber Pty Ltd (1982) 56 ALJR 872 at 873 where the Court (Mason, Murphy, Brennan, Deane and Dawson JJ) said:
"The employer's duty, to whomsoever it falls to discharge it, is to take reasonable care to avoid exposing his employee to an unnecessary risk of injury and the employer is bound to have regard to a risk that injury may occur because of some inattention of misjudgment by the employee in performing his allotted task."
(See also McLean v Tedman (1984) 155 CLR 306 at 312, per Mason, Wilson, Brennan and Dawson JJ).
Moreover, as was pointed out by Gibbs CJ in McLean's Roylen Cruises Pty Ltd v McEwan (1984) 54 ALR 3 at 7, it is not the case that an employer is never under a duty to warn his employees of risks which are usual or expected. His Honour there gave as an example a case in which

it is apparent that the employees were making a practice of ignoring an obvious danger, saying that in such a case a warning may be necessary. As his Honour also pointed out (ibid), no detailed rules can be laid down and the question is that of whether, in all of the circumstances of the case, the taking of reasonable care by the employer involved the giving of a warning. In this case, in my opinion, it plainly did.

So far as the issue of contributory negligence is concerned, I agree with Miller J that this was not a case of temporary inadvertence or inattention on the part of the appellant which was "excusable in the circumstances because not incompatible with the conduct of a prudent and reasonable man" (see Sungravure, above, at 37, per Windeyer J and McLean v Tedman, above, at 315, per Mason, Wilson, Brennan and Dawson JJ). Rather, this is a case in which the appellant made a deliberate choice to risk his own safety rather than to take a more inconvenient, but less dangerous, course. In doing so he failed to meet the standard of care to which he was required to conform for his own protection and it was this lack of care, together the appellant's default, which brought about his injury. I agree with Miller J that an appropriate apportionment would be one of 50 per cent.
MILLER J: This is an appeal from a decision of Blaxell DCJ in the District Court at Perth on 25 June 2001 dismissing the appellants action for damages for alleged negligence on the part of the first and second respondents. In dismissing the appellant's action, the learned trial Judge made a provisional assessment of damages indicating that, had he found in favour of the appellant, he would have awarded him damages of $379,636. Within that figure was an allowance of $30,000 for non‑pecuniary loss. The appellant contends that this award was manifestly inadequate.
The respondents have filed a notice contending that the decision of the learned trial Judge should be affirmed on grounds other than those relied upon in the Court below and in the alternative, should, in the event of the appeal being allowed, be varied by reducing any liability of the respondents in damages to the appellant to such extent as the Court thinks fit, on the ground that the appellant was guilty of contributory negligence.

Appeal on liability

On 28 February 1995, the appellant was a 47‑year‑old bunkering attendant employed by the first respondent. He had a long history of

experience in that occupation, having first worked with the first respondent in 1967‑68 and after a period in the Australian Armed Forces in Vietnam and in other general labouring occupations, he resumed work with the first respondent in or about 1978 and remained with the first respondent as a bunkering attendant for 17 or 18 years until February 1995. The job of a bunkering attendant involved refuelling ships in Fremantle Harbour. In some instances, ships were bunked from fuel lines beneath the wharf on both North Quay and Victoria Quay, but in other instances a barge was used to refuel ships. This was generally done in the outer harbour, but on occasions, ships were refuelled in the inner harbour. There was a barge refuelling berth known as berth 12A on North Quay, where the barge was fuelled and then taken out to ships, either in the inner or outer harbour for the purpose of refuelling.

The first respondent traded (inter alia) as Fremantle Bunkering Services and it was that business which supplied the fuel to ships in or outside of Fremantle Harbour. The barge used for the purpose of refuelling, when appropriate to use that method, was owned and operated by Fremantle Launch and Tug Co Pty Ltd , a third party in the proceedings. The third party proceedings were settled prior to trial and was the subject of consent orders. The area of the wharf where the barge was located was leased by the second respondent to the third party, but the second respondent retained the right of overall control and management of the area.
The learned trial Judge described in detail the process by which fuel was carried to berth 12A at North Quay. A system of pipes carried the fuel from a terminal in Amherst Street, Fremantle to Victoria Quay and North Quay, and there were three outlets (two for fuel oil and one for diesel) at berth 12A where the bunkering barge was loaded.
Berth 12A was described as being situated at the north‑eastern corner of the inner harbour, hard up against the embankment for the Fremantle Railway Bridge. The learned trial Judge found that unlike other berths in the inner harbour, it had a relatively narrow area of wharf space. The alignment of the wharf was in a roughly north/south direction, which too was different from the general alignment of Victoria and North Quays. Photographs tendered at the hearing and made available to the Court on the hearing of the appeal show the relevant section of berth 12A. Two of these are copied and comprise annexure "A" to these reasons.
Approximately half way along the wharf at berth 12A was a small shed where fuel outlets and valves were located. It was from these fuel outlets that a barge could be fuelled for the purposed of bunkering ships in the harbour or at sea. A bunkering attendant was required to walk down a bituminised slope and then along the level wharf area to reach the shed. The configuration of the wharf was found by the learned trial Judge to comprise on its outer edge a concrete lip or apron, approximately 900 mm wide with bevelled edges raised approximately 200 mm above the surface of the rest of the wharf. Immediately inside the concrete apron was a bituminised strip approximately 2 metres wide, along which were located four double bollards to which the bunkering barge was moored. Two of those bollards were on the north side of the shed and the other two on the south side. The two on the south side are shown clearly in the photographs annexed to these reasons.
To the east of the bituminised strip was a red fuel pipe (described as the Caltex pipe) some 200 mm in height and running along the full length of the wharf. Further still to the east was an unsealed strip of earth about 1.6 metres wide, at the eastern edge of which was a rack of three raised pipes which carried fuel. These pipes turned into the rear of the shed area and fuel from them passed through valves at the back of the shed, through a meter inside the shed and then through a hose coupled to a fitting in front of the shed onto tanks on the barge.
The barge was moored to the bollards by means of steel cable and rope at each of the outer bollards and by means of chains at each of the inner bollards. Depending upon the sea level, the cables and ropes, when taut, raised above the level of the bitumen, but when the barge lay low in the water, they were flat across the concrete apron and sometimes flat on the bituminised surface. When the tide was high or wash from boats caused the sea level to rise, taut mooring cables and/or ropes would be prone to lift above the level of the concrete apron.
The northernmost of the bollards sat on a concrete plinth. This was approximately 230 mm above the surface of the bitumen. The eastern edge of that plinth was approximately 370 mm from the Caltex pipe.
A bunkering attendant called upon to access the shed on berth 12A had a limited means of access to that shed. In the first instance he could proceed in a southerly direction along the bituminised area of berth 12A and when he came to the first set of bollards he could walk between the eastern edge of the plinth on which the bollard sat and the Caltex pipe. He had 370 mm of space within which to do so. Alternatively, he could step over the Caltex pipe when he arrived at the position of the first bollards and walk along the unsealed area between the Caltex pipe and the rack of raised pipes. A third alternative would be to walk along either the bituminised area or the concrete lip on the western side of the first set of bollards. To do this a bunkering attendant would have to negotiate the cable and rope leading from the first set of bollards to the barge.
As it happened, there had been a concrete block placed between the plinth on which the first set of bollards sat and the Caltex pipe. Nobody was able to say where this concrete block had come from or why it was there, but it provided what was essentially a stepping stone between the plinth and the Caltex pipe. A person who wished to walk through the 370 mm gap between the plinth and the Caltex pipe was required to step on it, walk across it and then step down onto the bituminised area.
The first respondent's bunkering manager was Mr A R Watters. He described the dimensions of the concrete block as approximately 300 mm wide, 200 mm long and 160 ‑170 mm high. This estimate of height put it lower than the concrete plinth on which the bollards sat. The learned trial Judge found that the height of the block was most probably in the vicinity of 160 ‑ 170 mm as estimated by Mr Watters, but reached no conclusion as to its width and height. His Honour did, however, conclude that it was a block which hindered a person in passing behind the bollard only to the extent that it would cause such a person to break his normal stride or gait. The length of it would have made it awkward for a person to step over it, but it was relatively easy to step onto it while passing through that gap.
The appellant had contended that the block was of entirely different dimensions, being approximately 18 inch by 2 foot long and jammed into the gap between the plinth and the pipe at an angle. He said the block was higher than the concrete plinth, perhaps halfway up the bollard itself. This evidence was rejected by the learned trial Judge.
There was evidence that the concrete block had been in position for some months. Mr Peter Hughes was the barge master in charge of the barge and he testified that it had been there for months and he had regularly used it as a stepping stone when passing behind the bollard to access the barge. He described it as only a minor inconvenience to step on top of it. Mr A W Mackenzie was another bunkering attendant at berth 12A. He recalled the concrete block as having been near the first set of bollards for a period of some three months or longer. Other witnesses also gave evidence about it and the trial Judge concluded that the concrete block had been in the position described by Watters for a period of some months prior to 28 February 1995, making it necessarily the case that the appellant in the course of his duties as a bunkering attendant must have passed over it on many occasions prior to that date.
On 28 February 1995 the appellant was called upon to attend at berth 12A to load the bunkering barge with fuel. He testified that when he arrived at berth 12A, he followed his usual path down towards the shed, intending to walk between the first set of bollards and the Caltex pipe. He claimed that unexpectedly he found the gap between the bollards and the Caltex pipe obstructed by a large concrete block which necessitated his taking a different path. As I have indicated, the learned trial Judge found against the appellant on this issue. He considered the block had been there for a substantial period of time, was differently positioned from that described by the appellant, and, by inference, the appellant must have passed over it many times prior to 28 February 1995.
However, on 28 February 1995 the appellant decided to take a different path. He said that he made the choice to step onto the concrete apron and walk across the mooring lines. He said he felt it was safer for him to do that than to take any other course. As he proceeded across the first set of mooring lines, the barge moved forward, the line lifted and came towards him. He said that he stepped backwards, lost his footing and landed hard on the wharf on his left shoulder.
As the trial Judge pointed out, the appellant's evidence was that his decision to walk across the mooring lines was not made inadvertently, but made by deliberate decision. He said he was essentially confronted with three choices: to step over the concrete block, to cross to the left over the red pipe, or to step over the mooring ropes. He chose the latter course because he felt it was the safest way to go.
The learned trial Judge noted in passing that the appellant normally got on or off the bunkering barge at either the bow or stern, which necessitated him stepping over mooring lines on those occasions. He found that the appellant was well aware that mooring lines were susceptible to movement as a result of tides and the wash from passing vessels.
The learned trial Judge found that on the day of 28 February 1995 the block between the plinth on which the first set of bollards sat and the Caltex pipe would have made it awkward for the appellant to have stepped over it, but it would have been relatively easy for him to step onto it whilst passing through the gap between the plinth and the pipe. He found that there was some rubbish on the unsealed area to the east of the Caltex pipe which posed a relatively minor impediment, but would not have prevented the appellant from stepping over the Caltex pipe and walking through that area to gain access to the shed. He concluded that the appellant did not, at any time before 28 February 1995, consider either the concrete block or the rubbish to the east of the Caltex pipe to constitute significant hazards to him, particularly as he testified that if he had seen anything that was unsafe on the wharf he would have reported it to his superiors. His Honour concluded that the appellant had deliberately chosen the route that took him towards the mooring lines, but found that the appellant had 18 years of experience as a bunkering attendant and had regularly encountered such mooring lines and was familiar with their tendency to lift, depending upon the movements of the vessel to which they were attached. Although this tendency of the mooring lines to lift was a potential hazard to anyone stepping across them, it was a hazard as obvious to the appellant as it was to his employer.
The learned trial Judge concluded that the first respondent would, in the exercise of reasonable care, have needed to warn employees about the mooring lines only if there was something in the surrounding circumstances to indicate that a warning was necessary. He held that the unchallenged evidence was that there had never been any previous incident involving an employee and he was unable to find anything in the circumstances to indicate that the first respondent should have warned an employee of the appellant's experience of the danger that mooring lines might move whilst he was stepping over them. For this reason, his Honour concluded that the first respondent was not in breach of its duty of care by failing to instruct or warn the appellant against undertaking the risk of walking across the walking lines whilst accessing the berth. He added that even if a warning had been given, there was no evidence from the appellant that he would have heeded it and his knowledge and experience of the risk in question made such a precaution on his part unlikely.

The learned trial Judge found that the significance of the concrete block was such that it only caused the appellant to deviate onto the wharf apron and there was no evidence that the concrete block was a hazard in that sense. It was no higher than a normal step and could conveniently be used as a stepping stone. He described it as only a minor hindrance to the appellant in passing through to the shed. His Honour also held that the appellant could, with minimal inconvenience, have walked to the left, over the Caltex pipe, and continued towards the shed, whilst avoiding any rubbish that may have been there.
In all the circumstances the learned trial Judge was unable to find that the first respondent had breached its duty of care to the appellant in any way by failing to remove the block from the position in which it was placed. His Honour concluded that any failure to remove the block could not be said to have caused the appellant's injury, because the appellant undertook the relevant risk which resulted in the accident.
The learned trial Judge concluded that there had been no breaches of statutory duty within the meaning of s 22 of the Occupational Health, Safety & Welfare Act 1984. His Honour's reasons in this respect were essentially the same as those leading to his dismissal of the appellant's claim at common law.
The learned trial Judge considered that there was no evidence of negligence on the part of the second respondent. He held that the bunkering barge had to be tethered in some way and there was no evidence to suggest that there was any alternative configuration of the bollards and mooring lines which would have been practicable.
The learned trial Judge analysed the relevant legal principles in the following way. His Honour set out the duty of care owed by an employer to his employee as being to take reasonable care to avoid exposing the employee to an unnecessary risk of injury, citing Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18 at 25. His Honour then made it clear that the duty of care owed by the employer did not, however, extend to a need to safeguard the employee from all risks, citing Vozza v Tooth & Co Ltd (1964) 112 CLR 316 at 318 ‑ 319. The learned trial Judge accepted that the employer's duty of care is non‑delegable and extends to risks to be found in the premises of third parties visited by the employee in the course of his employment, pointing out that in the exercise of reasonable care an employer may be required to inspect a third party's premises and ensure that a source of danger, if any, is removed. His Honour cited Smith v Austin Lifts Ltd [1959] 1 All ER 81 at 94.
The learned trial Judge then set out the following principles as being of particular application to the present case:
"66The exercise of reasonable care by the employer will usually require the provision of proper and adequate means for the employee to carry out his work without unnecessary risk, warning him of unusual or unexpected risks, and instructing him in the performance of his work where instructions might reasonably be thought to be required to secure him from danger of injury (O'Connor v Commissioner for Government Transport (1954) 100 CLR 225, 229).
67However, this responsibility is not confined to unusual or unexpected risks; and in appropriate cases the duty to warn or give instructions might extend to risks which are obvious to both the employer and to the employee (Raimondo v South Australia (1978 - 79) 23 ALR 513, 517). If, for example, it is apparent that employees are making a practice of ignoring an obvious danger, the exercise of reasonable care may make a warning necessary (McLean's Cruises v McEwan (1984) 54 ALR 5, 7).
68In McLean's Cruises v McEwan the plaintiff deckhand crushed his arm between the employer's barge and a jetty. He claimed that the defendant was negligent inter alia in failing to warn the plaintiff that he should not put his arm over the railing when the barge was approaching the jetty, and in failing to instruct the plaintiff appropriately. The High Court held in that particular case that the employer was not liable because:
'It is not reasonable to expect that the employer of an experienced deckhand should be obliged to warn him of a danger which is obvious, and of which he is in fact already fully aware, unless there is some circumstance that indicates that a warning is necessary - and there was no circumstance of that kind in the present case.' (Gibbs CJ at 8).
69An employer can nevertheless become liable in respect of an obvious danger if the employee has injured himself as a result of thoughtless or inadvertent conduct. In considering the precautions that the exercise of reasonable care will require in any particular case, the possibility of inadvertence or thoughtlessness on the part of a workman needs to be taken into account (Da Costa v Cockburn Salvage & Trading Pty Ltd (1970) 124 CLR 192, 218). "
Relying on these principles, his Honour concluded that the appellant was sufficiently experienced to appreciate that the route he took on the day in question was one which took him towards mooring lines, which were a relevant risk. This, however, was considered by the learned trial Judge to be a risk or hazard as obvious to the appellant himself as to his employer. This being so, the learned trial Judge concluded that the exercise of reasonable care by the respondent would have required a warning to the employees about the mooring lines only if there was something in the circumstances which indicated that such a warning was necessary. His Honour concluded that, because there had been no previous incident involving any employee and because the appellant was particularly experienced in stepping over mooring lines, that there was no need for any warning to have been given.
The appellant contends that the learned trial Judge erred in the conclusion reached about the absence of any need for a warning to have been given by the first respondent. A number of grounds of appeal also contest the learned trial Judge's conclusion that the concrete block was not a hazard, but it seems to me that it was clearly open to the learned trial Judge to conclude, as he did, that given the dimensions of the concrete block and the consistency with which employees had walked across it (including the appellants), it did not in itself constitute any hazard. The important ground of appeal, in my view, is ground 7, which contends that the learned trial Judge having found the tendency of the mooring ropes to lift to be hazardous, also found it was nevertheless unnecessary for the first respondent, as the appellant's employer, to give a warning about that hazard.
The learned trial Judge did find that a tendency of the mooring lines to lift was a "potential hazard to anyone attempting to step across them", but went on to say that it was a hazard as obvious to the appellant as it was to his employer. The fact remains, however, that there was a finding that the tendency of the lines to lift constituted a potential hazard.
In McLean v Tedman (1984) 155 CLR 306, Mason, Wilson, Brennan and Dawson JJ set out the obligations of an employer in discharging his duty to take reasonable care to avoid injury to an employee, notwithstanding the fact that the risk of injury may occur by reason of an employee's misjudgement in performing his duties. Their Honours said at 312:
"Many statements are to be found in the cases which give emphasis that in discharging his duty to take reasonable care to avoid injury to his employee an employer is bound to have regard to any risk of injury that may occur by reason of an employee's inadvertence, inattention or misjudgement in performing his allotted task. Thus, in Sungravure Pty Ltd v Meani, Windeyer J said: 'A safe system of work is one that is safe for an average workman taking reasonable care for his own safety.' But his Honour immediately followed that comment with the observation: 'It is not a system which is safe only for persons of superior skill whose attention never wanders.' More recently, in Ferraloro v Preston Timber Pty Ltd, the Court in its unanimous judgment said:
'The employer's duty, to whomsoever it falls; to discharge it, is to take reasonable care to avoid exposing his employee to an unnecessary risk of injury and the employer is bound to have regard to a risk that injury may occur because of some inattention or misjudgement by the employee in performing his allotted task.'
See also Da Costa v Cockburn Salvage and Trading Pty Ltd; Turner v South Australia."
Their Honours then added (at 313):
"The employer's obligation is not merely to provide a safe system of work; it is an obligation to establish, maintain and enforce such a system. Accident prevention is unquestionably one of the modern responsibilities of an employer: see Fleming, Law of Torts, 6th ed (1983), pp 480‑481. And in deciding whether an employer has discharged his common law obligation to his employees the Court must take account of the power of the employer to prescribe, warn, command and enforce obedience to his commands."
In Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47, Mason J made these observations in relation to foreseeability of risk of injury:
"… foreseeability of the risk of injury and the likelihood of that risk occurring are two different things. I am of course referring to foreseeability in the context of breach of duty, the concept of foreseeability in connexion with the existence of the duty of care involving a more generalized enquiry.
A risk of injury which is quite unlikely to occur, such as that which happened in Bolton v Stone, may nevertheless be plainly foreseeable. Consequently, when we speak of a risk of injury as being 'foreseeable' we are not making any statement as to the probability or improbability of its occurrence, save that we are implicitly asserting that the risk is not one that is far‑fetched or fanciful. Although it is true to say that in many cases the greater the degree of probability of the occurrence of the risk the more readily it will be perceived to be a risk, it certainly does not follow that a risk which is unlikely to occur is not foreseeable.
In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position.
The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far‑fetched or fanciful is real and therefore foreseeable."
In Abalos v Australian Postal Commission (1990) 171 CLR 167 at 180, McHugh J, after citing a portion of the passage set out above, added:
"The question on the foreseeability issue was not whether the omission to provide proper supervision gave rise to a foreseeable risk of injury. It was whether the conduct of the defendant in requiring the plaintiff to work in this system gave rise to a reasonably foreseeable risk of injury. If it did, the plaintiff was exposed to an unnecessary risk of injury if the injury was reasonably avoidable and in all the circumstances the failure of the defendant to eliminate the risk was unreasonable."
In the present case, it must be said that the learned trial Judge approached the issue of liability from the standpoint of the appellant's experience as a bunkering attendant and his knowledge of the tendency of mooring ropes to lift as vessels rose with tide or sea wash. His Honour considered that because of the experience of the appellant in this area, it was unnecessary for the respondent to have given any warning of the potential hazard which was involved in the walking over ropes in those circumstances.
However, it seems to me that the learned trial Judge missed an important step in his reasoning. His Honour made no reference to the question of reasonable foreseeability of risk of injury to the appellant. As McHugh J pointed out in Abalos v Australian Postal Commission (supra), the question was whether the conduct of the first respondent in requiring the appellant to work in the system which existed at this particular wharf gave rise to a reasonably foreseeable risk of injury. Once that question was asked, the answer would have to be that it did. The reason is that although there were a number of means of access to the shed on berth 12A, it was reasonably foreseeable that the appellant would, in the circumstances of the case, elect to walk across the concrete apron, thus traversing mooring lines. This was because there was an obstacle in his way between the bollards and the Caltex pipe, although not an obstacle which was such to impede his progress. There was also a degree of obstruction to the east of the Caltex pipe caused by rubbish in the unsealed area, although again not sufficient to impede the appellant's progress had he chosen to go that way.
The question was not why the appellant elected to walk via the concrete apron, but having done so, whether there was a foreseeable risk of injury to him. There was ample evidence that other employees had traversed this particular path and whether or not there were alternative means of access to the shed open to the appellant, it was reasonably foreseeable that he too would walk across the mooring ropes on the concrete apron as he did on the day of the accident.
It must be said that viewed objectively, the access to the shed on berth 12A had limitations. The area within which a bunkering attendant was called upon to walk if he chose to walk between the bollards and the Caltex pipe was narrow on any view of it. If (as was the case) there was a concrete block positioned there as well, it only increased the difficulty of negotiating that particular pathway. Likewise, to have stepped across the Caltex pipe and utilised access via the unsealed section on the east meant traversing an area of rubbish, the full details of which are not clear, but which the learned trial Judge accepted would have required the appellant to have "picked his way through" that area.
In all of these circumstances, it is obvious that an employee might choose to access the shed on berth 12A by walking across the concrete pathway over which the mooring cables and ropes lay. Indeed, it was fundamental to his Honour's findings that the witness Watters, the first respondent's bunkering manager, himself utilised that route on occasions. He said that he would have walked over the ropes on occasions and still did. He did not see this passageway as any more unsafe than stepping between the pipe and bollard, or stepping over the back of the pipe. He said that the rope would generally sit at a constant level unless the barge really rose on a high tide, but "its all about knowing that its a hazard or at least knowing what you are working with and keeping your eyes open really".
This evidence begged the question. The question was whether the hazard spoken of by Watters gave rise to a reasonably foreseeable risk of injury to an employee. If so, the employee was exposed to an unnecessary risk of injury and if the injury was reasonably avoidable, and in all the circumstances the failure of the first respondent to eliminate the risk was unreasonable, the first respondent would be liable.
I have already pointed out that the learned trial Judge concluded that the unchallenged evidence was that there had never been any previous incident involving an employee suffering injury whilst walking across mooring ropes. For this reason his Honour could find nothing to indicate that the first respondent should have warned an employee of the danger that mooring lines might move whilst stepping across them. That was not, however, the end of the matter. Nor was it relevant that if a warning had been given there was no evidence from the appellant that he would have heeded the warning. The question was that set out in Raimondo v South Australia (1979) 23 ALR 513 at 517, where Mason J said:
"The duty of the respondent as an employer was to take reasonable care for the safety of its workmen or, as it was expressed by Dixon CJ and Kitto J in Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18 at 25, 'to take reasonable care to avoid exposing the employees to unnecessary risks of injury'. In the performance of this duty it was the responsibility of the respondent to ensure that all reasonable steps were taken to provide a reasonably safe system of working. In general it is for an employer to devise and instruct his servants to follow a system of work which will obviate unexpected and unusual dangers in the undertaking in which they are engaged. This responsibility is not confined to unexpected and unusual dangers; in appropriate cases it extends to dangers which are obvious both to him and to his workmen, as the decision in Hamilton v Nuroof (WA) Pty Ltd itself demonstrates: see especially at 24‑6, 33‑4."
Mason J pointed out (at 518) that there is no absolute proposition that an employer is never entitled to rely on the skill and experience of his workmen in countering a risk which arises in the course of their employment, but the scope and extent of the employer's duty will depend very much on the circumstances of the case. Thus it was that in McLean's Roylen Cruises Pty Ltd v McEwan (1984) 54 ALR 3, Gibbs CJ (at 8) said in the context of an injury to a seaman whose arm was caught between the side of a vessel and a jetty:
"… it should be obvious to anyone who has performed such a task that there is a danger that if the deck‑hand allows his arm to extend beyond the rail of the vessel it may be caught between the vessel and the jetty to which it is being made fast. It is not reasonable to expect that the employer of an experienced deck‑hand should be obliged to warn him of a danger which is obvious, and of which he is in fact already fully aware, unless there is some circumstance that indicates that a warning is necessary - and there was no circumstance of that kind in the present case. The respondent said that, although he had never received any warning of the danger of trapping his arm between the barge rail and the pile, he thought that the employees were all cautioned at different times to be careful, anyway, on any boat. No more explicit warning was shown to be necessary."
It seems to me that although the appellant was an experienced man who had been 18 years on the job as a bunkering attendant, it was no answer for the first respondent to say that by reason of this fact alone it was absolved from any obligation to give warnings or directions in relation to the danger of walking across the mooring ropes. Had the first respondent given appropriate warnings and/or directions in this regard and the appellant ignored them, that would have been one thing. The fact was, however, that no warnings or directions of any sort were given, presumably because it was thought that bunkering attendants were sufficiently experienced to know the risk themselves of rising mooring lines on a wharf. As I have illustrated, however, the cases make it clear that the duty of care owed by the employer goes further than to leave it to experienced employees to work out for themselves the dangers or hazards of some areas of their employment. The employer is bound to have regard to any risk of injury that may occur by reason of an employee's inadvertence in attention or misjudgement in performing his task, notwithstanding his experience.

Although in his case his Honour concluded that the appellant had made a deliberate decision to walk across the ropes and in that sense it was not inadvertent conduct, the fact remains that the appellant misjudged the situation in walking across the ropes as he did. He misjudged the situation because the ropes rose as he approached them and threw him off‑balance, causing his injury. As was pointed out by Mason, Wilson, Brennan and Dawson JJ in McLean v Tedman (supra) at 312, a safe system of work is not a system safe only "for persons of superior skill whose attention never wanders". Further, as their Honours pointed out (at 313), the Court must take account of the power of the employer to prescribe, warn, command and enforce obedience to commands.
In this case, there was simply no consideration given by the employer to the risk of injury to bunkering attendants who might choose to walk across the concrete apron. A practice seemed to have developed of doing that very thing, even by the first respondent's bunkering manager. It would, in my view, have been a simple enough thing for the first respondent to have instructions, as indeed they were given after this accident. An accident investigation report completed by Mr Watters on 28 March 1995, recommended (inter alia) that employees be instructed not to step over ropes, but to walk around the mooring bollards. This was evidence that there were practicable steps that could have been taken by the first respondent to eliminate or minimise the risk of injury by walking across the mooring ropes. That evidence was also admissible to establish that it was unreasonable for the first respondent not to have issued those instructions before the appellant's accident occurred: Nelson v John Lysaght (Australia) Ltd (1975) 132 CLR 201.
The evidence of Watters in relation to the availability to the first respondent of directions by way of warning and/or instruction was as follows:
"If you could turn your attention to down the page a little lower, there's an entry in box number 3. Does that state, in your handwriting, 'Employees not to step over ropes but instructed to walk around the mooring bollards'? --- Yes, it does.
Why did you write that in there? --- Well, our people walk down the wharf there all the time and they take various routes to go down to the wharf. It seemed to me at the time that if someone had fallen over going over that rope that we should at least advise them that it's something they need to be careful about.
Prior to the accident, can you recall whether or not any instructions were given to bunkering attendants in relation to walking over ropes or around mooring bollards, etcetera? --- Not to my knowledge. I don't think I would have done it in my time, as such. I probably - I feel sure that we would have had discussions, two‑way discussions, at all our safety meetings about issues that happened around the wharf. Some of the mooring ropes on the ships have had some rather catastrophic injuries associated with them but the barge wharf was slightly different inasmuch as the ropes there didn't move and they were quite low. It's not like you have a ship tying up to them. I'm not sure that I would have. I just feel that we would have discussed that at safety meetings somewhere along the line. It's just we had safety meetings six times a year and HSC meetings six times a year and all conversations were two‑way so I'm sure we would have had discussions."
It follows, in my view, there was ample evidence that the first respondent breached its duty of care to the appellant in relation to particulars (d) and (e) of the particulars of negligence alleged against the first respondent. They were:
"(d)failing to provide the plaintiff with any or any adequate instructions or guidelines in relation to accessing the berth;
(e)failing to provide the plaintiff with any or any adequate instructions or guidelines in relation to designated walkways on the berth, clear areas of the berth or bollards and mooring ropes."
That is not, however, an end to the matter. Contributory negligence was pleaded by the first respondent. That plea is repeated in the notice of contention. This was, in my view, a case in which there was ample evidence of contributory negligence on the part of the appellant. Clearly, the appellant failed to take proper care for his own safety. He could have negotiated a concrete block between the bollard, plinth and the Caltex pipe, or he could have made his way around the area to the east of the Caltex pipe. Instead, he chose to take the route which incorporated an element of danger. That was the danger of ropes rising as the barge at the wharf itself rose. It was a risk he was well aware of, but he elected to take it. It was not a case within the description given by Windeyer J in Sungravure Pty Ltd v Meani (1964) 110 CLR 24. There, (at 37), Windeyer J pointed out that not every lapse of attention or taking of risk will necessarily constitute contributory negligence:
"When a worker in a factory is alleged to have been wanting in care for his own safety, the jury may, of course, as part of the totality of circumstance, have regard to such things as inattention bred of familiarity and repetition, the urgency of the task, the man's preoccupation with the matter in hand, and other prevailing conditions. They may consider whether any of these things caused some temporary inadvertence to danger, some lapse of attention, some taking of a risk or other departure from the highest degree of circumspection, excusable in the circumstances because not incompatible with the conduct of a prudent and reasonable man."
Accepting this caution, the fact remains, however that the appellant in this case made a deliberate choice to cross the mooring lines, contending in evidence that he thought it safer to do that than step over the concrete blocks. On any view of it, that proposition was unacceptable. The appellant made it clear that he understood that mooring ropes were susceptible to movement caused by tidal changes and the wash of passing vessels, yet he made the deliberate decision to take that route. His claim that it was the safest way to go was simply unacceptable. As found by the learned trial Judge, there was ample evidence that a workman could walk between the bollards and the Caltex pipe simply by stepping over the concrete block. That was the path which was adopted by a number of the bunkering attendants employed by the first respondent and clearly it was the safest way to go. The second safest way to go was by stepping across the Caltex pipe and walking through whatever rubbish there might have been on the eastern side of that pipe.
In this case the appellant was careless for his own safety. Although his own negligence was not a source of danger to the respondent, or to anyone else, it was a situation which "cried out for care": Nicol v Allyacht Spars Pty Ltd (1987) 163 CLR 611 per Mason CJ, Toohey and Gaudron JJ at 618.
An assessment of contributory negligence requires the arrival of a "just and equitable" apportionment as between the appellant and first respondent for the "responsibility" for the damage. In Pennington v Norris (1956) 96 CLR 10 at 16, Dixon CJ, Webb, Fullagar and Kitto JJ put it this way:
"What has to be done is to arrive at a 'just and equitable' apportionment as between the plaintiff and the defendant of the 'responsibility' for the damage. It seems clear that this must of necessity involve 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."
(See also Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492 at 494.)
In my view, the conduct of the appellant was as culpable as that of the first respondent. Whilst the first respondent could easily have given adequate instructions and/or directions to the appellant in relation to the danger of walking across mooring lines, the appellant's long experience led him to understand clearly what risks he was encountering in taking the route that he did. I consider the degree of contributory negligence on his part to have been 50 per cent and I would therefore hold the first respondent 50 per cent to blame for the accident which befell the appellant.
It follows that on the issue of liability I would allow the appeal, set aside the decision of the learned trial Judge dismissing the appellant's claim, and substitute for it a finding that the appellant recover against the first respondent 50 per cent of the damages to which he is entitled. It is unnecessary to consider the grounds of appeal that relate to the first respondent's alleged breach of statutory duty within the meaning of s 22 of the Occupational Health, Safety and Welfare Act 1984.
The appellant contends that the second respondent was also in breach of its common law duty of care to the appellant in failing to remove the concrete block between the plinth and the Caltex pipe and in failing to provide a safe means of access and egress for the appellant to his place of work. In essence, the grounds of appeal which raise this issue rely upon the proposition that the second respondent owed to the appellant the same duty of care as the first respondent to have the concrete block removed and the pathway to the shed cleared. No suggestion is made that the second respondent owed any duty to warn or instruct the appellant.
I have already pointed out that there was a lack of evidence in relation to the source of the concrete block. Further, nobody could say who had placed it in its position between the plinth and the Caltex pipe. It could not be attributed in any way to the actions of the second respondent.
In any event, the learned trial Judge's finding was that the block constituted no more than a stepping stone across which the appellant could have walked. That, in my view, was a conclusion clearly open on the evidence and to the extent to which it is challenged in the grounds of appeal, I am unable to find any substance in those grounds.
In these circumstances, I am unable to find any basis upon which it can be argued that the learned trial Judge erred in concluding that the second respondent was not in breach of any duty of care to the appellant. If the second respondent knew of the existence of the concrete block, there was no reason why it should have taken steps to remove it. The block was not a hazard, but the rising mooring lines were if a worker chose to walk over them in preference to stepping over the block. The duty to warn of the potential danger of stepping over the mooring lines rested with the first respondent, not the second.
I am therefore unable to find any basis for the contention raised in the grounds of appeal that the second respondent was in breach of its common law duty of care to the appellant by failing to take steps to remove the concrete block. For the same reasons I am unable to find substance in the contention that the second respondent breached the provisions of s 22 of the Occupational Health, Safety and Welfare Act by failing to remove the concrete block.
I need only add that evidence of an occupational safety expert that the block obstructed the pathway to and from the shed on the wharf was only opinion evidence which the learned trial Judge was free to accept or reject as he saw fit. In any event, the opinion went to the ultimate issue which his Honour was called upon to decide. The evidence of the expert was reviewed by the learned trial Judge and there is no reason to think that he did not give it full weight in reaching the conclusion he did that the block constituted no hazard to the appellant.
It is true that the block was later removed and it is true that had the first and second respondent given detailed consideration to its existence there, it might have been removed earlier. There was, however, no evidence that any request had been made for its removal. The learned trial Judge found as a fact that it did not constitute a hazard and on the evidence, I find no reason to conclude to the contrary.
Although there is a contention by the appellant that the second respondent failed to provide a safe means of access and egress to the appellant's place of work "because of the obstruction caused by the … mooring ropes", this ground of appeal relies upon the fact that the appellant was obliged to take the route that led him over the ropes. As I have indicated, that was not the case. The block was not a hazard or obstacle that in itself forced the appellant to go that way.
Further, there was no evidence that the bollards were incorrectly placed on the wharf. Why they were set back as far as they were seems to have been unexplained. The plea against the second respondent in the statement of claim alleged only that there had been a failure on the part of the second respondent to design the berth such that the appellant had safe access to the barge moored at the berth.
It is to be observed that when the safety expert Mr Gardiner gave evidence he declined to offer any view on the safety of the positions of the bollards. The learned trial Judge specifically asked him about it in the following passage:
"BLAXELL DCJ: Am I to understand that's meaning you're suggesting that the bollards should have been further towards the edge of the wharf? --- I'm not qualified to say that at all. What my opinion was was that access to the particular workplace would have been preferably not down that particular line, so the person would not have had to come across those obstructions in their path."
It follows, in my view, that there can be no suggestion that the second respondent was in breach of either its common law duty of care or its statutory duty imposed by s 22 of the Occupational Health, Safety and Welfare Act in relation to the actual positioning of the bollards and mooring ropes.

Damages

The appellant contends that the award of $30,000 for non‑pecuniary loss was a wholly inadequate award for this head of damage. The respondents contend that it cannot be said that the award was clearly wrong, nor that there was any specific error or misapprehension of the facts demonstrated by the appellant. This, of course, is the test. It was put as long ago in 1954 in Miller v Jennings (1954) 92 CLR 190 at 195 (adopting what was said in Nance v British Columbia Electric Railway Co Ltd [1951] AC 601 at 613):
"Whether the assessment of damages be by a judge or a jury, the appellate court is not justified in substituting a figure of its own for that awarded below simply because it would have awarded a different figure if it had tried the case at first instance. Even if the tribunal of first instance was a judge sitting alone, then, before the appellate court can properly intervene, it must be satisfied either that the judge, in assessing the damages, applied a wrong principle of law (as by taking into account some irrelevant factor or leaving out of account some relevant one); or, short of this, that the amount awarded is either so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage."
In his assessment of damages the learned trial Judge relied primarily upon an eight page chronology which had been prepared by the defendants and handed to his Honour during closing submissions. Accepting what was contained within that document, his Honour made only very brief reference to the medical evidence. His Honour made reference to the evidence of Mr Peter Hales to the effect that in 1997 the appellant was left with disabilities of 15 per cent in relation to the left shoulder and 10 per cent of the right shoulder respectively. He accepted the evidence of Drs Anastas and Skirving that by the date of trial, those permanent disabilities had progressed to the extent that they were now each 25 per cent. He found the preponderance of medical evidence to establish that the disabilities had rendered the appellant unfit for his former occupation, although he retained a capacity for limited light duties in employment.
His Honour made reference to the fact that there had been a number of supervening and unrelated medical conditions which had befallen the appellant. The onus in relation to these was clearly upon the respondents to "disentangle and qualify the extent to which the (appellant's) problems have been caused by each of these concurrent conditions (Western Australia v Watson [1990] WAR 248, 312)". His Honour made reference to a conflict in the medical opinion between Drs Connaughton and Mr Skirving as to the impact of the appellant's unrelated medical conditions on his retained earning capacity, but there is no need to deal with that aspect of the matter. On this rather brief analysis of the medical evidence his Honour assessed non‑pecuniary loss at $30,000.
For the purpose of this appeal it is necessary to make a rather more detailed analysis of the medical evidence. The relevant facts were that the appellant was 47 years of age when injured in 1995. According to Mr Anastas, in a report of 10 April 1995, the appellant had fallen on his right shoulder and then twisted and in so doing, suffered further impact on his left shoulder. He was considered to have features consistent with a rotator cuff lesion in each shoulder, for which injections under local anaesthetic were prescribed to overcome complaints of persistent aching and pain in both shoulders. Those injections gave initial relief to the right shoulder, but by late April 1995 there had been little effective change. Further injections were given during late April and May and physiotherapy was also undertaken in June. Little change was effective to the right shoulder, although there was some improvement to the left shoulder. By August 1995, Mr Anastas was of the view that with further conservative treatment, some improvement was possible, but there were features of a rotator cuff lesion in each shoulder with osteo‑arthritis at the acromio‑clavicular joints. The lesion was considered by Mr Anastas to be due to the accident, rather than to any pre‑existing arthritic condition.
Numerous further reports from Mr Anastas in 1995 and 1996 detail the treatment received by the appellant until ultimately on 26 February 2001, Mr Anastas indicated that the rotator cuff lesion in each shoulder was giving continuing symptoms for which only conservative treatment could be prescribed. He considered there to be a permanent disability in the shoulder which he assessed at 25 per cent loss of efficient use of the whole of the right upper limb and 25 per cent loss of efficient use of the whole left upper limb.
Mr Peter Hales, a specialist shoulder surgeon, reviewed the appellant over the period August 1995‑March 1997. He performed an arthroscopy of the left shoulder in March 1996, but was at that time unable to see any indications for surgery. He reported in May 1996 that there were complaints of consistent pain in the left shoulder, which might necessitate surgery for which an 80 ‑ 85 per cent result was anticipated. Physiotherapy was undertaken during 1996, but no surgery eventuated. By 11 March 1997, Mr Hales was of the view that there was unlikely to be any dramatic improvement in the appellant's condition which could be assessed as stable and a 15 per cent permanent loss of function in the left arm as a whole with a 10 per cent loss of function of the right arm as a whole.
Mr Allan P Skirving, a consultant orthopaedic surgeon, reported to the first respondent in February 1997, expressing the view that the appellant was then significantly incapacitated as a result of the injury he had sustained to both shoulders. He pointed out that surgery had been performed to the left shoulder and there had been confirmation of damage to both the rotator cuff tendons with suggestions of a similar injury and damage to the rotator cuff tendons on the right side. Mr Skirving considered there to be a number of other components present in the appellant's presentation. He thought the prognosis was better than would appear at that time and he could identify nothing to suggest that the appellant would continue to suffer such severe pain as he was then complaining of. He thought the emotional problems of the appellant were contributing to the severity of his symptoms and recommended psychiatric intervention.

Dr Peter Connaughton, an occupational physician, provided comprehensive reports in February 1998 and February 2001. Those reports were primarily directed towards the appellant's capacity to work, but concluded with an estimate of approximately 15 per cent permanent disability of the upper limb function in each arm.
Amongst the many other medical reports which were tendered to the learned trial Judge were reports of Mr Keith Holt, an orthopaedic surgeon. In a report of 10 September 1998, Mr Holt made reference to a fall which the appellant had sustained in the shower only a month beforehand, causing further problems in relation to the right shoulder where Mr Holt thought there was evidence of an acute onchronic tear of the rotator cuff which required repair. This procedure was duly performed and in a report dated 29 October 1998, Mr Holt expressed the view that there would be 80 ‑ 90 per cent improvement within six weeks or so.
Mr Skirving reported on 6 February 2001 that the operative procedure had been carried out on the right shoulder following a fall. After careful examination of the appellant Mr Skirving expressed the view that "no further intervention was required in respect of either shoulder" and that there was very little difference on examination of the shoulders from when he had last been seen. He thought the permanent residual disability in both shoulders to be 25 per cent of the full and efficient use of the right shoulder and 25 per cent of the full and efficient use of the left shoulder above the elbow respectively.
It appears from the transcript of the proceedings at trial that oral evidence was called from (inter alia) Dr Anastas, Mr Skirving and Dr Connaughton. Much of the oral evidence appears to have been directed to the question of capacity for work, although the inter‑relationship of other problems sustained by the appellant was certainly explored. This is particularly so in the case of Mr Irving, who made it clear that the appellant suffered, in addition to his physical problems related to the shoulders, heart problems and depression. In relation to the former, a pacemaker had been inserted to alleviate the symptoms he was experiencing. Portion of Mr Skirving's evidence was as follows:
"Doctor, after this litigation concludes would you expect his condition to improve? --- His shoulders?
Firstly his shoulders? --- I think that's a difficult question. These things are really very complex in terms of they are not entirely - as I've said, I don't think this is entirely a physical presentation but the fact is that he's had major surgery on both shoulders, it hasn't seemed to work. Certainly on the right side, according to Keith Holt's letter, report, there was a major tear and I think at his age it is unlikely that that will improve significantly. So, I mean, yes, it could improve. On the other hand they can re‑tear as well and he can have - he would walk out tomorrow and retear his shoulders and it would still be related to the original insult and injury to the shoulders.
So there's a possibility of improvement? --- There's a possibility that it - yes.
What about his emotional problems? He has obviously made some improvement since you saw him on the first occasion. Would you expect that ---?--- I'm not sure. I don't know what the precipitating pressures were, if it was precipitating pressures which were the cause of his depression, or whether it was just simply an endogenous depression which really can come on and fluctuate for no obvious reasons. If it were precious, and of course the implication was that his Vietnam experience was partly the cause of some of his depression, then obviously that experience remains. But, again, his psychiatrist would give you more information. Certainly his shoulder injuries and the fact that he couldn't work and all the rest would have caused worsening of his depression. So if his shoulders settle and they are not aggravated and he's allowed to just use them gently and be protective towards them then that may well help in terms of avoiding at least one pressure which may cause an exacerbation of his depression."
The appellant contends that for the shoulder disabilities which have resulted to the appellant, an award of $30,000 for pain, suffering and loss of amenities of life was untenably low and grossly disproportionate to the injuries suffered and permanent injuries which had resulted. It was submitted that an award of between $60,000 and $100,000 would be much more appropriate, particularly as the relevant statutory cap on damages was $256,490.
In my view the award of damages for non‑pecuniary loss was low, but not so inordinately low as to suggest that it was wholly disproportionate to the loss suffered and in need of review. It cannot be said that the award of damages was so clearly wrong as to justify the intervention of this Court. I would therefore dismiss the appeal insofar as it relates to the question of damages.
The end result is that, in my view, the decision of the learned trial Judge dismissing the appellant's appeal should be set aside and in lieu thereof there should be judgment for the appellant against the first respondent in the sum of $189,818.

APPENDIX "A"