Payton v Van Der Wielen - [1999] WADC 29

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: PAYTON -v- VAN DER WIELEN & ANOR [1999] WADC 29

CORAM: MACKNAY DCJ

HEARD: 24, 25 MARCH 1999

DELIVERED : 10 AUGUST 1999

FILE NO/S: CIV 1167 of 1996

BETWEEN: ALAN ROBERT PAYTON
Plaintiff
AND
JOHN VAN DER WIELEN
KYLIE ELIZABETH VAN DER WIELEN
Defendants

Catchwords:

Negligence - Dangerous premises - Plaintiff injured by fall at night in front garden of private residence - Occupiers Liability Act 1985 WA ss4 and 5 - Whether breach of duty of care of occupier - Whether plaintiff guilty of contributory negligence - Turns on own facts

Damages - Assessment - Personal injury - Plaintiff fisherman then aged 37 years - Fracture to left leg - Plaintiff left with 20 per cent loss of function below left knee - General damages $35,000 - Past and future loss of economic capacity $118,897

Legislation:

Occupiers Liability Act 1985 WA

Result:

Claim succeeds in part

Representation:

Counsel:

Plaintiff: Mr K J Bonomelli
Defendants: Mr J R Criddle

Solicitors:

Plaintiff: Anthony Torre & Monaco
Defendants: J R Criddle

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

Bartlett v Robinson (1981) 27 SASR 342
Jaenke & Anor v Hinton (1995) A Tort Rep 81-368
Romeo v Conservation Commission of the Northern Territory (1998) 72 ALJR 208
Stannus v Graham (1994) A Tort Rep 81-293

Case(s) also cited:

Nil

MACKNAY DCJ:

Introduction

On 29 April 1991 the plaintiff, who was then aged 37 years, having been born on 7 January 1954, suffered a serious leg injury when he fell whilst walking through the front garden of a house at premises owned by the defendants at 4 Sinian Crescent, Willetton.
The plaintiff alleges in his statement of claim, and the defendants admit in their defence, that pursuant to the Occupiers Liability Act 1985 (WA) ("the Act") the defendants were the occupiers of the premises.
The plaintiff also alleges that his fall resulted from a breach of the duty of care owed to him by the defendants pursuant to the Act.
The defendants deny any breach of duty, say that the plaintiff voluntarily consented to accept any risk and to waive any claim in respect of any injury that might have been occasioned to him by reason of the state of the front garden, and say further and in the alternative that if the plaintiff fell as alleged, that resulted from his own negligence.
Damages are claimed by the plaintiff.
Accident
The defendants had tenants in the house, but there is no plea as to that, or that that fact in any way altered the position, either legally or factually, and hence in my view that is ultimately without general significance, given the pleadings and the defendants' admission, and the manner in which the trial was run.
The tenants were Mr and Mrs Hookham, and they advertised a bed for sale in the Sunday Times, with their telephone number.
On 29 April 1991, the day of the accident, and in the evening, the plaintiff telephoned in answer to the advertisement.
A short time later, at about 8.00pm, and accompanied by a friend who was not identified and who did not give evidence, the plaintiff arrived at the premises in a motor vehicle.
It was dark.
The plaintiff's friend drove his utility into the driveway of the premises, the plaintiff alighted from the vehicle, and the friend then reversed out of the driveway so as to turn the vehicle around, for possible loading purposes.
The driveway is on the left side of the house, when viewed from the street, and runs up to a carport, where the defendants' vehicle then was. To the right of the vehicle, as the plaintiff said he observed, was a rubbish bin.
Otherwise the front of the house was largely obscured by closely planted trees and shrubs which both ran alongside the driveway and also across the front of the house.
To the left of the driveway was a street light, which illuminated the driveway, for part of its length, said the plaintiff, and for its whole length, according to Mr Hookham, who also gave evidence.
What was not in dispute was that the street light also illuminated part of a path, which ran off the driveway to the right, through a gap in the vegetation, part way along its length.
The path went to the area of vegetation across the front of the house, turned left so as to be in a line with the front door, and terminated on the edge of an area of brickpaving at the front of the house.
The section of the path immediately after the left turn, and through the thickly vegetated area, was not constructed of brick but rather consisted of three or four timber sleepers laid side by side, with a drop down on the left which Mr Hookham said was "roughly" of about 18in, so that the section was described in evidence as a "bridge".
The plaintiff said that he did not observe any exterior lights but there were interior lights on.
Mr Hookham said that after the plaintiff's telephone call, which was taken by his wife, he was instructed by her to, and did, turn on the exterior lights, those being "coach" lights fixed to the front of the house, one to the right of the front door, and the other 3/4m to the left.
When lit the two exterior lights illuminated the brickpaving at the front of the house between the carport and the front door.
In any event Mr Hookham agreed that the bridge was not illuminated by the exterior lights, and the path was "very badly lit", and at one point in his evidence said that was one of the reasons that the bridge was not used, particularly at night.
There was vegetation encroaching onto the left side of the bridge, and Mr Hookham described the vegetation there as being "very thick", a fact confirmed by the photographs tendered in evidence.
As a consequence spiders and their webs were to be found there, he said, and that was the principal reason the path was not used by the residents of the house at that time.
Visitors to the house also rarely used the path, those in the main being friends of Mr and Mrs Hookham.
Mr Hookham agreed that the path had "presumably" been constructed for persons to use it to get to the front door.
He used the brick paving adjacent to the house and then the driveway, when leaving or arriving at the premises by motor vehicle or on foot.
After the plaintiff's accident the area around the bridge had been weeded and the vegetation cut back, Mr Hookham said.
As to the width of the bridge, the plaintiff said that it appeared to be narrower than the section of path which preceded it, but that is not clear from the photographs, and in the absence of a plan or other evidence I would not find that was the case, given the plaintiff's lack of real opportunity to make observations following the accident.
There is, however, as stated, a dogleg there.
Returning to the night of the accident, after the plaintiff had alighted from the vehicle he made his way down the drive, but said the area at the end of it was dark, and he then saw the path.
Looking down the path the plaintiff said that what he thought was the far end of it was illuminated, and he could also see the front door.
The path was thus illuminated at each end, he said, with what he thought was a dark section under the trees in the middle of it.
The plaintiff then set off down the path.
As he came to the dark middle section under the trees, where the bridge in fact was, and changed direction, the plaintiff's left leg went off to the left of the bridge and into the hole or hollow on the left, and the plaintiff then fell forward on the bridge, still with his foot in the hollow.
The plaintiff then felt, he said, intense pain, but he eventually managed to get his foot out of the hollow, and after he had called his friend and that person had gone to the front door, a man and a woman appeared from the house.
The plaintiff believed that he had then said that "it would be nice if you put a light on" and that in response it was either said that there was no light or that it was not possible to put the light on.
Mr Hookham had no recollection of any conversation to that effect.
Given the plaintiff's injured condition and that absence of recollection, I would not rely on the plaintiff's evidence that such a conversation had in fact taken place.
However, I am satisfied the exterior lights were on, that being a likely response to the plaintiff's telephone call.
In any event, if some reference had been made to the absence of a light, in the circumstances it is as likely that would have been a reference to the absence of any light at the bridge.
In cross-examination Mr Hookham was asked whether he thought the bridge did represent a danger, and said he thought there was "a small degree of danger", which he then said was represented by the spiders there. He had never thought about it, he said.
Neither of the defendants gave evidence.
Liability
The Act provides, in s4, that:
"(1)Sections 5 to 7 shall have effect, in place of the rules of the common law, for the purpose of determining the care which an occupier of premises is required, by reason of the occupation or control of the premises, to show towards a person entering on the premises in respect of dangers -
(a)to that person; or
(b)to any property brought on to the premises by, and remaining on the premises in the possession and control of, that person, whether it is owned by that person or by any other person,
which are due to the state of the premises or to anything done or omitted to be done on the premises and for which the occupier of premises is by law responsible."
Section 5 then relevantly states:
"(1)… the care which an occupier of premises is required by reason of the occupation or control of the premises to show towards a person entering on the premises in respect of dangers which are due to the state of the premises or to anything done or omitted to be done on the premises and for which the occupier is by law responsible shall, except in so far as he is entitled to and does extend, restrict, modify or exclude by agreement or otherwise, his obligations towards that person, be such care as in all the circumstances of the case is reasonable to see that that person will not suffer injury or damage by reason of any such danger.
…
(4)Without restricting the generality of subsection (1), in determining whether an occupier of premises has discharged his duty of care, consideration shall be given to -
(a)the gravity and likelihood of the probable injury;
(b)the circumstances of the entry onto the premises;
(c)the nature of the premises;
(d)the knowledge which the occupier of premises has or ought to have of the likelihood of persons or property being on the premises;
(e)the age of the person entering the premises;
(f)the ability of the person entering the premises to appreciate the danger; and
(g)the burden on the occupier of eliminating the danger or protecting the person entering the premises from the danger as compared to the risk of the danger to the person."
Two recent cases to which I was referred by counsel for the defendant are Stannus v Graham (1994) A Tort Rep 81-293 and Jaenke & Anor v Hinton (1995) A Tort Rep 81-368.
Stannus, a decision of the Court of Appeal of New South Wales, concerned a claim by a tenant in respect of a concealed defect, and is not of immediate relevance.
In Jaenke, the Court of Appeal of Queensland held that the occupiers of a residence were not liable to a milk vendor who at 1.45am, after delivering milk, had stood on a garden hose on the front lawn on her way back down to the street, lost her balance and badly injured her ankle.
In arriving at that conclusion Williams J (with whom Pincus JA and Thomas J agreed) cited with apparent approval the following remarks of White J in Bartlett v Robinson (1981) 27 SASR 342 at 346-347:
"Ultimately, the law of negligence is based upon a decent commonsense regard and care for our neighbour applying contemporary standards. We interact with, and sometimes cause harm to, our neighbour in an almost limitless combination and permutation of circumstances. In my view, the decision appealed from correctly and fairly applied the sensible standards of the law of negligence in determining that this unfortunate accident was not caused by some unusual danger on the respondent's domestic premises.
…
The law of negligence is concerned with reasonable standards of conduct - reasonable care for the safety of others, showing reasonable foresight in the circumstances. What is reasonable varies not only with the particular circumstances or relationship, but with community standards from place to place and decade to decade."
Counsel also referred to the Aust Torts Reporter where it was suggested by the learned authors (Vol 1 para 10-335) that Australian courts have generally adopted a conservative approach to allegations of breach of duty on the part of suburban householders.
To those statements might be added the observations of Kirby J in Romeo v Conservation Commission of the Northern Territory (1998) 72 ALJR 208 at 234:
"It must never be forgotten that, in defining the measure of the duty of care, a court is not only determining an element essential to the ascertainment of the rights of the particular parties. It is also giving expression to the standards which occupiers of land or premises generally must reach, and possible insure against, in case similar mishaps befall them."
His Honour later said (at 235):
"Insufficient attention has been paid in some of the cases, and by some of the critics, to the practical considerations which must be 'balanced out' before a breach of the duty of care may be found. It is here, in my view, that courts have both the authority and responsibility to introduce practical and sensible notions of reasonableness that will put a brake on the more extreme and unrealistic claims sometimes referred to by judicial and academic critics of this area of the law. Thus, under the consideration of the magnitude of the risk, an occupier would be entitled, in a proper case, to accept that the risk of a mishap such as occurred was so remote that 'a reasonable man, careful of the safety of his neighbour, would think it right to neglect it'. It is quite wrong to read past authority as requiring that any reasonably foreseeable risk, however remote, must in every case be guarded against. Such an approach may result from the erroneous conflation of the three separate inquiries: duty, scope of duty and breach of duty. Although a reasonably foreseeable risk may indeed give rise to a duty, it is the inquiry as to the scope of that duty in the circumstances and the response to the relevant risk by a reasonable person which dictates whether the risk must be guarded against to conform to legal obligations. Precautions need only be taken when that course is required by the standard of reasonableness."
In the present case, I considered both the plaintiff and Mr Hookham endeavoured to give truthful evidence as to the circumstances of the accident.
The plaintiff complains in particular of the absence of a handrail or other mechanism, warning or other notice, and any method of illumination of the bridge.
In relation to the question of the likelihood of injury, I think that it would be not unlikely for a person to take the route that the plaintiff took to get to the front door, when coming to the house for the first time, as it appeared to provide the only direct link to the front door, particularly at night, and when the lights of the front of the house were on.
It is trite to say that strangers do visit suburban houses at night from time to time.
The section of the route which comprised the bridge could be seen by the plaintiff to deviate to the left.
However, the hole or hollow on the left of the path was not apparent, even from a point just before the bridge.
That was partly due to the absence of any lighting on or near the bridge and the presence of the very thick and overgrown vegetation adjacent to it which obscured the other lights in the area so that the path generally was very badly lit.
Further, the vegetation in the hollow was overgrown so as to encroach onto the bridge, so that the left edge of the bridge could not be seen.
That vegetation of course also obscured the existence of the hollow.
The hollow was likely to produce a stumble and fall, and hence very possibly injury, including significant injury, for anyone who unwittingly put a foot off the edge of the bridge into it.
The garden was overgrown, it would appear, as a result of a failure to tend it.
In the circumstances a simple warning to visitors, including the plaintiff, to utilise the driveway rather than the path would in fact have avoided the accident. That could have taken the form of a simple barrier or obstacle at the driveway end of the path.
Alternatively, if it was desired to have the garden in that state, with the path running through it, some further illumination was required.
I am very mindful of the strictures of Kirby J in Romeo, as well as of the fact that the accident occurred here in the grounds of a suburban residence.
Nonetheless, after proceeding with all due regard for those matters I have come to the conclusion that there was, because of the layout of the front garden and its overgrown state, the existence of the path, the lack of illumination and the hidden hollow a significant danger, and, in all the circumstances, a want of reasonable care on the part of the occupier, and hence, on the part of the defendants.
In that regard it was not suggested the state of the garden was something for which the occupiers, and hence the defendants, were not at law responsible.
The defendants are therefore liable to the plaintiff.
There was also, I consider, some want of care on the part of the plaintiff for his own safety in not proceeding with sufficient caution, such that he was guilty of contributory negligence.
I would make a deduction of one-third for that negligence from any award of damages in favour of the plaintiff.
Injury and loss
The injury sustained by the plaintiff was, according to a report of the Fremantle Hospital of January 1992, a supramaleolar fracture of the left leg involving the tibia and fibula widely displaced, the plaintiff having presented with a painful left ankle which had on examination appeared deformed.
The plaintiff had as a consequence undergone surgery which involved open reduction and internal fixation of the tibial fracture.
It appears from subsequent reports from Sir Charles Gairdner Hospital, to which the plaintiff was later transferred, so as to be near his gravely ill father, that the plaintiff's initial treatment had included a bone graft to the tibia. The plaintiff was subsequently found to be also suffering from a sympathetic dystrophy which apparently affected the ankle, and as a consequence underwent sympathetic blocks to remedy that condition.
The plaintiff went to live in Queensland in September 1993, and his medical progress there, including removal of the metal plate and screws that had been used for fixation, is documented in reports from a surgeon, Mr M S Howe, and two orthopaedic surgeons, Dr C Johnson Nurse, and Dr Michael South.
In 1993 Dr Johnson Nurse reported the plaintiff had complained of swelling in the ankle, with stiffness and aching there, and pain going over rough ground. Examination revealed, inter alia, an inability to dorsiflex the ankle beyond 5 degrees, with marked wasting of the calf, whilst the fracture had not then consolidated. It was doubtful if the plaintiff would regain the full range of dorsiflexion and that would restrict activity such as running and might even cause discomfort with walking, in the doctor's view, whilst the plaintiff might well also be prone to an early onset of arthritis as a result of the injury and the uneven loading through the ankle joint.

Dr South reported in 1996 that the plaintiff then had a permanent, partial disability of the left lower limb. Taking into account the persisting non‑union, the angulation of the fracture, together with pain experienced by the plaintiff, the decrease in the range of ankle movement and sensory change, the doctor estimated that disability to be 25 per cent of the lower limb, or 10 per cent of the person as a whole. There was a possibility of further deterioration, with various possibilities which would flow from that.
Dr South provided a further report, following review of the plaintiff, in April 1998. He said that the plaintiff reported that his injury had been stable over the prior few years, and if he worked at a steady level the leg would function reasonably well, although an attempt at too much activity would produce pain at the distal anterior leg, and the plaintiff was always aware of discomfort in the distal leg and ankle. On some days the plaintiff said that he could walk and go up and down stairs virtually normally, whilst on others he had to go up and down stairs sideways.
On examination the plaintiff had a slight limp, whilst the scar over his leg was still tender and there was slight discomfort to palpation in the anterior ankle joint. Ankle dorsiflexion had improved and was now 10 degrees. Ankle plantar flexion had decreased somewhat to 30 degrees, whilst subtalar joint movement was still restricted, as was the mid-foot range of movement.
Dr South said that radiographs taken on the day of the review showed ongoing evidence of fracture union, although there was still evidence of an open fracture line anteriorly, which extended into the articular surface, while there was some tilting of the joint surface to 10 to 15 degrees of angulation of the ankle.
In the doctor's view, and on the basis of the plaintiff's symptoms, the plaintiff appeared to have stabilised, apart from some forefoot discomfort, and there appeared to be some improvement in dorsiflexion. Based on the latter Dr South said that he would assess the plaintiff's disability as being 20 per cent of the lower limb, or 8 per cent of the body as a whole. He expected that to remain stable over time. Moderate further injury to the limb could result in refracture. If arthritis developed then ankle arthroscopic debridement could be a benefit, at a cost of about $2,000, whilst if the arthritis was sufficiently severe ankle arthrodesis could be required at a cost of about $2,800.
Dr South said that the plaintiff appeared to be fit to work as a fisherman in calm water and was able to work as a sheetmetal worker provided he had a sympathetic employer who provided some flexibility of working hours and conditions.
As to the plaintiff's education and work history, the plaintiff said he was educated to 4th year high school level, and then worked in a number of occupations including work as a truck driver and as an importer of goldfish.
In about 1983 the plaintiff then commenced work on a friend's fishing boat, that vessel initially being used for wetline fishing, before being converted for use as a scallop trawler.
As a result of his involvement in the latter form of fishing the plaintiff said that he had decided to try and develop a method of mechanically processing scallops, there not being any machine available which would permit that.
After he began to do that the plaintiff became a partner in the trawler, and also acquired a share in a mechanical workshop, where he could carry on development work.
A prototype scallop processing machine was subsequently developed by the plaintiff, and he then went into a venture with a Perth solicitor and two others with a view to floating a company.
None of those activities, however, proved successful, the trawler being sold but then wrecked prior to payment, the workshop closing and the business venture collapsing.
The plaintiff then made a brief and unsuccessful foray into car sales, he said.
In the meantime he continued to work in the "backyard" on his machine, and in the 1989/90 fishing season tested it, without remuneration, on another vessel.
In April 1991, at the time of the accident, the plaintiff was still unemployed and working on the prototype machine, having been largely unemployed and in receipt of social security payments since the beginning of 1989.
Following the accident, and on discharge from hospital, the plaintiff said he was initially bedridden and then required the assistance of a wheelchair, crutches or walking sticks. He used walking sticks at times until 18 months after the accident.
As a result of the accident the plaintiff was left with a scar down the inner side of his lower left leg together with wasting there and a foot deformity. He said that he had little ability to roll his foot or move it sideways and experienced difficulty walking over rough ground whilst he tended to go upstairs sideways. Standing for a long period caused swelling in the leg and as a result he always carried pain killers, the plaintiff said.
In September 1991 the plaintiff was approached by Mr Richard Whittingham, a principal of Hervey Bay Fisheries of Gladstone, Queensland, who had come to this State as a result of having seen a demonstration in Queensland of a scallop processing machine.
The plaintiff said that Mr Whittingham arrived at his house with a fisherman friend of the plaintiff's, who had a machine, and asked the plaintiff if he would go to work in Queensland for Mr Whittingham.
Due to his leg injury the plaintiff said that he was not able to immediately take up that offer but did visit Queensland twice over the following 12 months, for which he was paid $4,000. In September 1992 the plaintiff then agreed to work for Mr Whittingham, the purpose of the employment being for the plaintiff to endeavour to develop the scallop processing machine.
The plaintiff said that the original agreement was for payment by Mr Whittingham of a basic retainer of $36,000, together with the provision of a car and fuel, and with a prospect of review, dependent on results. The salary was to be paid through the plaintiff's family trust.
After taking up the employment the plaintiff said that he worked on the development of the machine but spent most of his time sitting down as he could not do the physical work that he had previously done.
The machine was developed in two sections, the first being an "eviscerator", that section of the machine removing a membrane from the main muscle, or meat of the scallop. The second section then removed the scallop meat from the shell.
The eviscerator was developed first, and was installed on the plaintiff's barge in Gladstone harbour in March 1994. From that time, and during the scallop season which ran for about six months each year, the plaintiff worked on the barge overseeing the machine, constant adjustment to it being required.
From the commencement of the use of the eviscerator the plaintiff commenced to receive a bonus, and said that as far as he knew Mr Whittingham paid a percentage of what was processed on the barge.
During the off season the plaintiff worked on the second section of the machine, and said that should be ready for use when the season commenced in October/November 1999.
The plaintiff said that Mr Whittingham was a very understanding employer.
Apart from the work referred to he said that he drove a forklift occasionally, but was only able to use one leg so to do. He also drove a truck occasionally but experienced trouble with the use of the clutch.
Once the second section of the machine was operational the plaintiff said that he would lose the off season work and did not believe he would be retained to oversee the eviscerator on the barge, as others also did that work.
The plaintiff said that his skill in welding and sheetmetal work was to the standard of a handyman.
Mr Whittingham gave evidence that he conducted two businesses which processed scallops. His interest in a machine arose as scallops had traditionally been processed only by hand.
The plaintiff had been offered employment in September 1991, Mr Whittingham said, but had not been able to accept the position.
Following his initial visits to Queensland, when the plaintiff did take up full-time employment in September 1992 it had been agreed that if the machine "actually got up and running there would be a bonus system on output of the machine".
The bonus later paid to the plaintiff was calculated on the basis of 10 cents per kilogram of the scallop processed through the first section of the machine, and Mr Whittingham said that although he could not recall when that was discussed he and the plaintiff had come to an agreement as to the amount. He had agreed to pay the bonus as the machine had given the business a "financial advantage", Mr Whittingham said. He later said that he regarded it as a "straight-out bonus", but the payment was also made as the plaintiff did not receive overtime and on some occasions might be required to work seven days per week.
In the event that the second section of the machine was successful it was unlikely that the plaintiff would be paid any bonus on production through that part of the machine, Mr Whittingham said.
When the plaintiff had first started work he did not work set hours, would pace himself and required walking aides for up to 18 months.
Work done by the plaintiff included welding, grinding, cutting and drilling, and the plaintiff was capable of doing that work, Mr Whittingham said, although he did not know whether the plaintiff could do the work over any extended period of time.
After the first section of the machine had been commissioned, and apart from his work during the scallop season, the plaintiff had also overseen processing on the barge during the off season one day per week.
If the second section of the machine was installed at the start of the next scallop season Mr Whittingham said the teething problems ought be overcome within a 12 month period.
Although Mr Whittingham initially said that when the second section of the machine was fully operational the plaintiff's services would not be further required, he later said that would be in the off season and that the plaintiff might still have work, and receive the bonus, in respect of processing scallop on the barge during the season.
The plaintiff was a very conscientious worker, Mr Whittingham said, and had he been fit the plaintiff would have been considered for the position of master of the barge, when that became available, and if the plaintiff had obtained the necessary qualifications. That job carried with it a salary of $50,000 per annum, together with a motor vehicle and payment of a bonus.
If physically fit the plaintiff would also have been able to work as a grader or packer of seafood, but that involved lifting cartons and baskets which weighed up to 40kg.
Absent any impact from his disability the plaintiff did have the capacity to handle diesel motors and pumps, Mr Whittingham said.
In relation to future payments of the bonus to the plaintiff, Mr Whittingham said that there were a number of machines being developed by others in the industry, which were very close to completion, and there would then be no reason for having that ongoing expense.
The plaintiff did drive a small truck just about every day that processing was done, Mr Whittingham said.
Had the plaintiff come to work for him in September 1991 they had calculated that for "that 18 month period" (sic) the plaintiff would have earned approximately $87/88,000, including bonus and salary.
In relation to the evidence I would find as follows:
The plaintiff did suffer the injury alleged and, broadly speaking, with the consequences to date that are alleged.
The plaintiff's ability to drive a light truck is greater than that conceded by him, and it is apparent from Mr Whittingham's evidence that the plaintiff drives such a vehicle on a daily basis during the season.
Similarly, the plaintiff's ability and skills in a workshop are, in my view, significantly underestimated by him, particularly in the light of Mr Whittingham's evidence.
The plaintiff does have a physical incapacity and I would broadly accept the statements in relation to that set out in the reports of Dr Nurse and Dr South.
That physical incapacity must be considered in the light of the plaintiff's other abilities, both intellectual and physical, and although the parameters of the plaintiff's economic capacity have inevitably narrowed the plaintiff is still capable of full‑time employment.
The plaintiff's pre-accident history, although not as accurate a guide as it would normally be because of the plaintiff's unusual pursuit and the turn his life then took with the Queensland job offer from Mr Whittingham, is still not without relevance and would indicate the plaintiff might well in any event have worked in a variety of forms of employment, and would probably also have experienced significant periods of unemployment.
There is a high probability that full‑time work on Mr Whittingham's barge in Gladstone harbour during the scallop season will continue to be available to the plaintiff, together with similar employment one day per week during the off season.
In relation to those matters my impression was that Mr Whittingham was a satisfactory witness. However, I also felt that he was guarded in relation to the question of future employment and payments to the plaintiff, perhaps in part out of a desire not to commit himself when there would seem to be a possible issue as to future payment of the bonus the plaintiff presently receives, and perhaps also as a result of a natural sympathy for the plaintiff.
As to the plaintiff's future prospects, it is the case that through the plaintiff's work Mr Whittingham's business has been able to earn very substantial additional net income, and one would expect a reasonable employer to have due regard to that in his future dealings with such an employee.
The total remuneration that the plaintiff would have earned, but for the accident, and will be able to earn, in the employ of Mr Whittingham in the future is difficult to estimate or predict, which makes it similarly difficult to estimate the degree of likelihood that the plaintiff would have taken on other tasks, or will now wish to.
The suggestion made by Mr Whittingham that but for the accident the plaintiff may have been considered for training as master of the barge is really no more than that, in my view.
In regard to past loss of economic capacity I consider an appropriate measure of that is the value of the loss of the benefit of employment with Mr Whittingham between approximately October 1991 and September 1992.
As to the future, it is likely the plaintiff will carry on as he is until approximately November 2000, by which time the second half of the machine is likely to have been installed and any teething problems overcome.
At that point the plaintiff will lose the four days employment per week for half the year that he presently enjoys in relation to development of the machine.
The difficulties in speculation and prediction referred to then become relevant.
Apart from Mr Whittingham's suggestion as to the barge, no evidence was led through the plaintiff as to what he might have done once this point was reached, but for the accident.
I think that it is unlikely that the plaintiff would have worked as a scallop processor, or in some similar position, and counsel for the plaintiff accepted that.
The position is really that if the bonus continues to be paid, dependent on the plaintiff working on the barge during the season, then having regard to the plaintiff's employment history and general levels of wages the plaintiff might well remain with Mr Whittingham and simply do what work he can find when he was not required on the barge during the off season, and might have done that in any event.
On the other hand, if the bonus for the eviscerator ceases to be paid then the plaintiff might look for other full‑time employment, and might have done that but for the accident.
Thus, in one set of circumstances the plaintiff's actual loss might only be the loss of the opportunity to seek the casual employment that he would have been able to do, as opposed to the work he can now do, for four days each week during the off season.
On the other hand, if the plaintiff is not further employed by Mr Whittingham once the second half of the machine is fully operational then his loss would be the value of full-time alternative employment that he would have been able to find less the value of any such employment he might now be able to find.
It is necessary in the circumstances to bear in mind that the loss is one of economic capacity, where that is or might be productive of financial loss.
Doing the best I can I would assess the plaintiff's annual future loss of economic capacity, from the time mentioned, as being equal to 30 per cent of the present annual base rate paid to the plaintiff by Mr Whittingham, that being, according to the latter, $40,000 gross.
Assessment of damages
The relevant heads of damage are:
Non-pecuniary loss
I think a reasonable allowance for the plaintiff's leg and ankle injury, including the cosmetic aspects, would be $35,000.
Special damages
I was not given any information in relation to this aspect.
Future medical expenses
In addition to possible costs of surgery it would appear reasonable to assume the plaintiff, who is still symptomatic and who might suffer some deterioration in his condition, will require other forms of medical assistance and treatment.
I would then allow $5,000 under this head.
Past loss of economic capacity
In the 1993 financial year the plaintiff's family trust was paid $35,000, which represented, according to the trust tax return, "fees for building machine".
That income was distributed to various persons, including the plaintiff, and the plaintiff's taxable income, as assessed, was $17,821.
It would appear that the plaintiff wishes me to treat all of the trust income as his own, and on the evidence I am prepared to do that.
However, I consider that I should then ascertain the net value of that income by reference to the taxation and Medicare levy payable on it as a single income, in the absence of any evidence suggesting some other course ought be adopted.
The net income received by the plaintiff in the 1993 financial year would then be regarded as being $26,070, together with the value of a motor vehicle, and fuel. I am not given any estimate of the value of those things. Doing the best I can in the circumstances I would attribute a value of $5,000 per annum.
The net value of the plaintiff's exertions in the 1993 financial year ought then be regarded as $31,070.
As it would appear the plaintiff lost the benefit of approximately 12 months work, apart from the work for which he was paid $4,000, I will allow the plaintiff $27,070 under this head.
Loss of future economic capacity
The loss is one which will commence in approximately 18 months and will then run for about 18 years from that time.
The net weekly lost income, taken over a year, is $171.
A multiplier that could be used is 537, and the resultant loss is then $91,827.
In the circumstances any further adjustment would not be appropriate.
Interest
I allow interest at a rate of 5 per centum per annum on $27,070 for a period of four years, that being a reasonable period within which the claim might have been finalised. $5,414 is then allowed.

Conclusion

The plaintiff's loss is then as follows:

Non-pecuniary loss

Special damages

Future medical expenses

Past loss of economic capacity

Future loss of economic capacity

Interest

$ 35,000.00

$

$ 5,000.00

$ 27,070.00

$ 91,827.00

$ 5,414.00

$164,311.00

A deduction of one-third must be made from the value of that loss to reflect the plaintiff's contributory negligence.