Raso v Raso
[2007] WADC 53
•20 APRIL 2007
RASO -v- RASO & ANOR [2007] WADC 53
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WADC 53 | |
| Case No: | CIV:2088/2005 | 29 JANUARY, 30 JANUARY 31 JANUARY & 1 FEBRUARY 2007 | |
| Coram: | MCCANN DCJ | 20/04/07 | |
| PERTH | |||
| 51 | Judgment Part: | 1 of 1 | |
| Result: | Judgment for the plaintiff Contributory negligence in degree of 10 per cent Damages of $928,520.91 awarded | ||
| PDF Version |
| Parties: | FRANCESCO RASO GIORGIO RASO TERESA RASO |
Catchwords: | Torts Negligence Personal injuries Contributory negligence Damages Assessment Traumatic amputation of non-dominant hand of young apprentice |
Legislation: | Evidence Act 1906, s 79C(1) Occupational Safety and Health Act 1984, s 19 Workers' Compensation and Injury Management Act 1981, s 93E(3)(a), 93F(1) |
Case References: | Commissioner for Railways v Halley (1978) 20 ALR 409 Commissioner for Railways v Ruprecht (1979) 142 CLR 563 Fitzpatrick v Robert Norman Job and Wendy Barbara Job T/As Jobs Engineering & Ors [2007] WASCA 63 Fox v Wood (1981) 148 CLR 438 Hanlon v Hanlon Enterprises Pty Ltd & Anor [2004] NSWSC 930 Insurance Commission of Western Australia v Leigh [2001] WASCA 232 Jongen v CSR Ltd & Anor (1992) Aust Tort Reports 81-192 McLean v Tedman (1984) 155 CLR 306 Medlin v State Government Insurance Commission (1995) 182 CLR 1 Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492 Sungravure Pty Ltd v Meani (1964) 110 CLR 24 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- 31 JANUARY & 1 FEBRUARY 2007
- Plaintiff
AND
GIORGIO RASO
First defendant
TERESA RASO
Second defendant
Catchwords:
Torts - Negligence - Personal injuries - Contributory negligence
Damages - Assessment - Traumatic amputation of non-dominant hand of young apprentice
Legislation:
Evidence Act 1906, s 79C(1)
Occupational Safety and Health Act 1984, s 19
(Page 2)
Workers' Compensation and Injury Management Act 1981, s 93E(3)(a), 93F(1)
Result:
Judgment for the plaintiff
Contributory negligence in degree of 10 per cent
Damages of $928,520.91 awarded
Representation:
Counsel:
Plaintiff : Mr J Staude
First defendant : Mr T Lampropoulos
Second defendant : Mr T Lampropoulos
Solicitors:
Plaintiff : Donna Percy & Co
First defendant : Kott Gunning
Second defendant : Kott Gunning
Case(s) referred to in judgment(s):
Commissioner for Railways v Halley (1978) 20 ALR 409
Commissioner for Railways v Ruprecht (1979) 142 CLR 563
Fitzpatrick v Robert Norman Job and Wendy Barbara Job T/As Jobs Engineering & Ors [2007] WASCA 63
Fox v Wood (1981) 148 CLR 438
Hanlon v Hanlon Enterprises Pty Ltd & Anor [2004] NSWSC 930
Insurance Commission of Western Australia v Leigh [2001] WASCA 232
Jongen v CSR Ltd & Anor (1992) Aust Tort Reports 81-192
McLean v Tedman (1984) 155 CLR 306
Medlin v State Government Insurance Commission (1995) 182 CLR 1
Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492
Sungravure Pty Ltd v Meani (1964) 110 CLR 24
1 MCCANN DCJ: The plaintiff was born on 19 September 1985 and is currently 21 years of age. The defendants are his parents and at all material times traded in partnership as butchers under the name of
(Page 3)
- "George Butcher" from a shop located at 91 Wanneroo Road, Tuart Hill. The first defendant, the plaintiff's father, is a qualified butcher. On 10 September 2002 the plaintiff was almost 17 years of age and was employed by the defendants as an apprentice butcher. Whilst at work that day his left hand became caught in the worm shaft (or auger) of a meat mincer which he was operating ("the accident").
2 The plaintiff's left hand was severely crushed in the accident and ultimately it was amputated at the wrist. It is common ground that he was right-hand dominant at the time. He claims damages from the defendants in respect of his injuries.
The pleadings
3 The plaintiff alleges that the accident was caused by the negligence of the defendants, or by the defendants' breaches of ss 19(1)(a) and 19(1)(b) of the Occupational Safety and Health Act (WA) 1984 and/or by the defendants' breach of his contract of employment. The defendants made admissions during the trial (see pars 20 and 22 below) and contributory negligence is now the only live issue between the parties in relation to liability. The defendants plead that the plaintiff placed his left hand in proximity to the worm shaft of the mincer when he knew or ought to have known that it was dangerous to do so.
The mincer
4 In his evidence the plaintiff explained the operation of the mincer by reference to photographs which were tendered in evidence (Exhibits 1C and 1D). The photographs depicted the partially re-assembled remains of the machine (after it had been cut up by the emergency service personnel who helped to free his hand). Based on that and other photographs of the machine (Exhibits 1E and 1F and 7A and 7B), and the plaintiff's uncontested evidence, I find as follows.
5 The machine consisted of a flat, stainless steel table which was (judging by the photographs) approximately 100 centimetres in width and 50 centimetres in depth, with an upturned lip on each edge (to prevent meat from falling off). The height of the lip varied from highest at the rear (approximately 15 centimetres) to lowest at the front (approximately 4 centimetres). The table stood on four steel legs at approximately waist height for an adult. A circular, vertical down-pipe (known as the "feed-throat") was set into the left, front corner of the table, very close to the front lip. It was similar to the drain-pipe in a sink save that the upper opening was entirely open so as to allow large pieces of meat to be passed
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- down it. The lower end of the feed-throat opened onto a horizontal steel auger known as the "worm". The machine was electrically powered. When it was operating pieces of meat were dropped down the feed-throat onto the rotating worm, from where they were conveyed horizontally to blades to be sliced or chopped. The sliced or chopped meat was then extruded via sizing screens and an outlet shute into a bucket placed on the floor next to the operator's left leg. The machine was equipped with a plastic plunger for pushing meat down the feed-throat which avoided the need for the operator to place a hand into the feed-throat itself. The plunger consisted of a firm plastic shaft which was approximately 30 centimetres in length with a flat section at the bottom.
6 Further findings about the dimensions of the feed-throat are set out in pars 31 and 32 below.
The accident
7 The plaintiff testified in chief as follows.
8 At all material times he has lived with his parents and brother (Salvatore) in the family home in Noranda. As a child he attended the Noranda Primary School and then the Morley Senior High School. Whilst at school he found himself attracted to the manual aspects of the curriculum rather than to academic subjects. He took part in woodwork classes and was attracted to cabinet-making as a career. He never contemplated any form of university education. Before he left school, the plaintiff worked for approximately 9-12 months as a kitchenhand in a Hungry Jacks restaurant which he enjoyed. He left high-school mid-way through year 11 and undertook a pre-apprenticeship course in cabinet-making at the Balga TAFE. This was a nine month full-time course which included one day per week of work experience. He finished the pre-apprenticeship course in March 2002 but found it difficult to obtain an apprenticeship in cabinet-making.
9 After a period of inactivity the plaintiff worked for his parents in their butcher shop for approximately one or two months. Initially he performed purely manual tasks such as cleaning, sweeping and packing smallgoods. He also did some meat boning. The plaintiff found that he enjoyed the work and decided to qualify as a butcher with a view to one day joining his father in the family business and ultimately running it by himself. On 29 August 2002 he became apprenticed to his father. At about this time, or slightly before, his work responsibilities changed. He began to use and clean processing machines such as the meat mincer and a sausage filler.
(Page 5)
10 The plaintiff testified that meat was minced approximately once per week. He believed that prior to the accident he had probably operated the mincer twice but he could not recall the specific occasions. He did not recall being shown how to use the machine but he believed that he would have been shown.
11 The plaintiff testified that the worm turned quickly when the mincer was operating and that meat disappeared in a "split second" after it was dropped down the feed-throat. He said that the machine could be disassembled for cleaning purposes and that he had done so on between five and ten occasions.
12 The plaintiff was given some instruction by his father in relation to the operation of the machine. He was told to keep his hands clear of the top of the mincer where the worm or the feed-throat was located and the front (where the blades were located). The latter aspect was re-inforced by another employee, Mr Romeo.
13 The plaintiff testified that immediately prior to the accident he emptied a bucket of meat off-cuts onto the mincer table. He switched the machine on and fed pieces into the feed-throat. He used his left hand to "feed" the meat "into the top" of the feed-throat and his right hand to operate the plunger when required to do so. He testified that he was "pulling the meat sort of into the hole and … if it would get stuck [he'd] be pushing it down" with the plunger. The meat was variously sized from approximately the size of a golf ball to strips approximately 7.5 centimetres in width by 20 centimetres in length. (The plaintiff described the dimensions of the largest strips by reference to an A4 sheet of paper, indicating that they were approximately as long as the A4 sheet was wide – 20 centimetres- and about a quarter of its length in width - 7.5 centimetres). The first defendant assisted the plaintiff. He was positioned at the left, front, bottom of the machine and handled the minced meat into a bucket as it emerged from the mincer. The plaintiff was unsure why his father was assisting him and said that he had previously seen his father operating the machine alone.
14 The plaintiff testified that he could not remember everything that happened and surmised that this was because he went into shock after the accident. He testified that he has very little recollection of the accident itself. He said that his only recollection is that the worm clipped the fingers of his left hand and then the hand was pulled down the feed-throat and into the machine. He said he screamed and activated a switch on the wall which turned the machine off. By that stage his hand was trapped
(Page 6)
- and his elbow was level with the table top, that is, his forearm was fully drawn into the feed-throat. He said that he could not recall why his hand and fingers came to be in the feed-throat and said he had no reason to put them in there. He said that it had not happened before.
15 The plaintiff testified that he recalls the proprietor of an adjacent shop taking care of him for approximately half an hour after the accident until the emergency services arrived. He said that there was another delay whilst emergency services personnel cut the machine up and he was then carried out to the ambulance with the machine and the table still attached to his left hand. He said that he blacked out during the journey to Royal Perth Hospital in the ambulance and again at the hospital. He recalls that initially the ambulance officers and the hospital staff had difficulty getting him into the hospital because they could not fit him and the table through the doors at once.
16 In cross-examination the plaintiff confirmed that he had cleaned the mincer on up to ten occasions prior to the accident and that this included the worm and blades. He agreed that it was obvious that the worm was designed to grab meat and that hands should be kept away from it when it was operating. He confirmed that the first defendant told him to keep his hands away from the worm and out of the feed-throat. He agreed that he knew before the accident that it was dangerous to place his hand in the feed-throat. He acknowledged that he had the plunger to use to clear blockages if necessary and that it was designed for that purpose. He said that he needed to use the plunger "very rare[ly]" and that usually meat went into the feed-throat and was drawn into the mincer without difficulty. He said that he had not had any difficulties operating the machine prior to the accident and had not put his hand into the feed-throat whilst it was operating.
17 The plaintiff further said in cross-examination that he believed that he and his father were mincing their first bucket load of meat for the day when the accident occurred. He said that he recalled there was a "lot of meat" on the mincer table to be minced. He repeated that he felt the worm clip his fingers or a finger just before his hand was drawn into the worm. He said that he was not sure how he came to have his hand so close to the worm, that there was "no way" he would have put his hand "in there" on purpose and he knew at the time that it was "foolhardy" and a "silly" thing to do. He emphasised this point by volunteering that he knew his hand would be drawn into the worm because he had seen how quickly meat was swept into the mincer once it made contact with the worm. He said that sometimes meat became caught in the feed-throat in the sense
(Page 7)
- that it "bounce[d] around in there" but it usually went straight into the mincer without difficulty. He said that he had previously used the plunger to move meat which did not fall from the feed-throat onto the worm.
18 The plaintiff agreed in cross-examination that any form of momentary distraction or a slip or trip could be eliminated as the cause of the accident. He said that he had rolled his sleeves up before commencing work and did not think that his clothing had become caught in the worm. He opined that it would be possible for an operator to get a hand caught in the worm if he failed to release his grip on a piece of meat as it passed down the feed-throat, but did not testify that such had actually occurred in his case and agreed that his hand was not drawn down into the worm until it actually touched his finger.
19 Neither of the defendants testified.
The defendants' liability to the plaintiff
20 On the second day of the trial the defendants made the following admissions:
· They were negligent because the mincer could, and should, have had a fixed guard to prevent an operator's hand entering the feed-throat.
· A guard of the kind which would have discharged their duty of care is depicted in the photographs comprised in Exhibit 19.
· The mincer did not have such a guard when the defendants acquired the butcher's business in 1990 and the machine was in the same state then as it was when the accident occurred.
21 Having examined the photographs in Exhibit 19 I find that the guard depicted consisted of a disc of stainless steel with a central, circular opening approximately the diameter of a golf ball and with a number of near-rectangular openings in concentric circles around the perimeter. Such a guard would have allowed golf-ball sized pieces of meat to be dropped into the mincer whilst preventing a hand being placed into the feed-throat.
22 In his closing submissions counsel for the defendants also conceded that the plaintiff was entitled to succeed – that is to say, causation was
(Page 8)
- conceded and accordingly the only issue between the parties in relation to liability was whether the plaintiff was guilty of contributory negligence.
Contributory negligence – relevant principles
23 In my view the following principles are applicable to determining whether the accident was partly caused by the contributory negligence of the plaintiff and, if so, the proper apportionment between the plaintiff and the defendants:
1. The onus of proof lies on the defendants.
2. A worker will be guilty of contributory negligence if he departs from the standard of care of the reasonable man: see Fitzpatrick v Robert Norman Job and Wendy Barbara Job T/As Jobs Engineering & Ors [2007] WASCA 63 per Buss JA (with whom Steytler P agreed) at [248].
3. In order to establish contributory negligence, the defendant must prove that the plaintiff's act or omission went beyond mere misjudgment, inattention, inadvertence or thoughtlessness (see Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492 at 493 and McLean v Tedman (1984) 155 CLR 306 per Mason, Wilson, Brennan and Dawson JJ at 311-12). In considering these matters the court may consider whether, in the light of all the circumstances the taking of an excusable risk, or any inattention bred of familiarity and repetition or the press of work, or the worker's pre-occupation with the matter in hand was a causal factor (see Sungravure Pty Ltd v Meani (1964) 110 CLR 24 per Windyer J at p 37 and Commissioner for Railways v Ruprecht (1979) 142 CLR 563 per Gibbs J with whom Stephen J agreed at 568).
4. The issue of contributory negligence must be approached on the footing that the defendants, as the employers, failed to discharge their obligation to take reasonable care. The circumstances and conditions in which a worker has to do his or her work must be taken into account: see Podrebersek (supra) at p 493. The mere fact that a worker has knowledge of the danger is not conclusive, it being necessary for the defendant to
- establish the worker knew or ought to have known that what he did, even though it was obviously highly dangerous, was not required or expected of him in the performance of his duties: see Commissioner for Railways v Halley (1978) 20 ALR 409 per Jacobs J (with whom Gibbs CJ agreed) at 415, Hanlon v Hanlon Enterprises Pty Ltd & Anor [2004] NSWSC 930per Hislop J at [46].
- 5. If contributory negligence is established, the court is called upon to exercise a discretion as to the proper apportionment between the plaintiff and the defendant. The court is required to give consideration to the "relative importance of the conduct of each party in causing the damage. The whole conduct of each negligent party in relation to the circumstances of the accident must be subject to comparative examination. . . . This involves a "question not of principle or of positive findings of fact or law, but of proportion, of balance and relative emphasis, and of weighing different considerations: Bristol Fame (Owners) v McGregor (Owners) [1943] AC 197 at 201": see Fitzpatrick (supra) per Buss JA at [249-250]. In Podrebersek (supra) the High Court said at [494]:
"The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, ie the degree of departure from the standard of care of the reasonable man … and of the relative importance of the acts of the parties in causing the damage … It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case …"
24 It was my impression that the plaintiff testified in relation to all of the issues in this matter in an honest and frank manner. He presented as a polite young man. He refrained from making self-serving statements and
(Page 10)
- frankly made numerous concessions which were contrary to his interests. His evidence-in-chief as to his lack of any memory of the events directly relating to the cause of the accident was not challenged in cross-examination and he did not seriously proffer any form of self-serving re-creation or theory as to what had occurred and only ventured into this area when he was invited to do so in cross-examination. For these reasons, and further because of the lack of any evidence to the contrary, I accept all of the plaintiff's evidence as to his actual recollection of the accident, his work experience and instruction in the defendants' shop and his knowledge of the risks associated with operating the mincer.
25 No evidence was adduced, nor submissions made, as to the dimensions of the feed-throat, or the size of the plaintiff in 2002, but it is possible to draw inferences about those matters on the balance of probabilities based upon a number of photographs, some of the medical evidence and the plaintiff's evidence.
26 The starting point is the pair of photographs comprising Exhibit 7, which depict a person placing a hand entirely through the feed-throat of the mincer in a partially re-assembled state (after the accident). Unfortunately this person was wearing a long-sleeved shirt, but it would appear to be the case that the measurement from the finger tips to the upper opening is less than from the fingertips to the elbow. Next, I find that the worm depicted in Exhibit 7B is located lower (and hence further beyond the bottom opening of the feed-throat) than would have been the case if the machine was fully assembled, because the lower half of the outer casing of the worm and the worm are separate from the upper half of the casing. From these observations, it can be inferred that the fingertips of the person depicted in Exhibit 7B are situated somewhat further beyond the bottom of the feed-throat, and further along the horizontal casing of the worm, than would have been necessary for contact to be made between the fingertips and the worm if the machine was fully assembled and operating. The position of the fingertips is more illustrative of the position or direction of the plaintiff's fingers after they were grabbed by the worm.
27 Next, in his reports dated 1 October 2002 and 17 December 2002 (comprised in Exhibit 9) the plaintiff's treating surgeon, Mr Tony Connell, described the plaintiff's injuries. The following summary is taken from the later report and accepted by me as accurate:
"[The plaintiff] was taken to the operating theatre approximately six hours following the accident and his left hand
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- revealed a three level amputation with a ischaemia to the palm and digits of his left hand in a segmental fashion. The wound was liberally divided [sic: debrided] and a transcarpal fracture was internally fixed with K-wires as were the fractures to the proximal phalanges of his index, middle, ring and little fingers. A vein graft was harvested from his volar left forearm and used to bridge the gap between the ulnar artery and superficial palmar arch and multiple micro vascular anastaomoses were carried out to re-vascularise his digits and thumb. Tendon and nerve repairs were required as a result of the amputation across the metacarpo-phalangeal joints and the middle and ring fingers were terminalised at the DIP joint level. He had a large dorsal skin defect over the left second metacarpal and required a groin flap to cover this defect."
28 It can be inferred, based on these facts, that the plaintiff suffered a severe crush injury at least as far as the union of the palm and fingers of his left hand, from which the further inference can be made that his hand was drawn into the worm shaft by a distance at least equal to the length of his fingers.
29 Next, from my observations of the plaintiff at the trial he appeared to be of at least "average" adult height, (ie neither short nor tall) and possibly slightly taller than average. Dr Brady testified that the plaintiff grew somewhat between 2004 and January 2007 (see par 65 below) and some photographs which were taken of him whilst he was recuperating shortly after his initial surgery (see par 48 below) depict a lanky youth of about average height with a mature-looking right hand. Accordingly, I infer that the plaintiff was at least of approximately "average" adult height in 2002 and had average sized adult hands.
30 Next, I infer that part of the shaft of the plunger measuring at least 10 centimetres would have remained above the surface of the table by way of a grip when the plunger was fully inserted into the feed-throat. That is to say, the plunger could be inserted into the feed-throat to a depth of approximately 20 centimetres and obviously stopped short of touching the worm at that point.
31 Bearing in mind that the plaintiff testified that his elbow was drawn down to be level with the upper opening of the feed-throat after his fingers were drawn into the worm, and having regard to the medical evidence and inferences I have referred to (as well as Exhibits 1D, 1E and 1F), I infer
(Page 12)
- that the depth of the feed-throat from the surface of the table to the top of the worm was approximately 20 to 25 centimetres.
32 Based on the evidence that I have referred to, and my observations of various photographs (Exhibits 1 and 7), I find that the diameter of the feed-throat was wide enough to admit the hand and forearm of the plaintiff, and was approximately 10 to 11 centimetres, but it would have been a reasonably tight fit.
33 Having regard to my findings as to the dimensions of the feed-throat and bearing in mind the position of the feed-throat adjacent to the raised front lip of the table, and the plaintiff's evidence, which excluded a slip of some kind and implied that his left hand was essentially working horizontally across the table, I find that it is highly improbable that he accidentally or inadvertently inserted his hand and lower forearm into the feed-throat as far as the lower half near the worm.
34 I turn now to make some further preliminary findings of fact relevant to whether the accident was contributed to by the plaintiff's own negligence. In the light of the plaintiff's evidence and the evidence as a whole, I find as follows:
1. The accident occurred whilst the plaintiff was placing pieces of meat of varying sizes into the feed-throat of the mincer. The sizes of the pieces varied from approximately the size of a golf ball to strips approximately 20 centimetres in length and 7.5 centimetres in width. Occasionally pieces became blocked in the feed-throat.
2. The plaintiff and his father were mincing their first batch of meat for the day. This was only the second or third occasion on which the plaintiff had operated the mincer. The plaintiff was passing meat into the feed-throat with his left hand. He was equipped with a plunger to clear blockages which occurred whilst the machine was operating. (It was possible for the plaintiff to turn the machine off in order to manually clear blockages in the feed-throat but it is not alleged against the plaintiff that he should have done so).
3. The plaintiff knew that it was dangerous and foolhardy to place his hand into the feed-throat and in particular in the lower section adjacent to the worm whilst it was in
- operation. The plaintiff knew that he was not required or expected to place his hand into the feed-throat for any reason, he had been instructed not to do so and had been provided with a simple tool to clear blockages. He knew that any meat which made contact with the worm was pulled into the mechanism of the mincer in a split second.
- 4. The plaintiff has no memory as to how or why the accident occurred and he has not sought to conceal an unfavourable scenario. It is necessary for me to draw an inference as to the cause or causes of the accident to the extent that the evidence allows me to do so.
5. The plaintiff's left hand was inserted into the feed-throat before the accident occurred. The plaintiff did so deliberately (that is to say, the plaintiff knew that his hand was in the feed-throat and intended it to be there). I make this finding because of the dimensions of the feed-throat and the high degree of improbability of there being an accidental or inadvertent cause, and the lack of any evidence of the same. I am mindful that the plaintiff testified that there was "no way" he would have put his hand in the feed-throat on purpose. However, in giving this evidence the plaintiff was not seeking to justify an actual recollection that he had. He was merely responding to questions about his knowledge (prior to the accident) of the risks of placing a hand in the feed-throat and hence, at best, asserting the improbability, to his mind, of him having done so on purpose. That evidence must be taken into account, but in my view it must be weighed against the improbability of an accidental or unintentional event having caused the plaintiff to place his hand in the feed-throat. In his evidence the plaintiff also opined that his hand may have been drawn into the machine because he overly delayed releasing a piece of meat as it was being drawn into the worm. That hypothesis also needs to be considered but, on the balance of probabilities, I reject it for the following reasons. First, the plaintiff did not testify that such had occurred, and merely raised it, somewhat uncertainly I might stress, as a hypothetical possibility when he was asked about possible causes of the accident in cross-examination. Second, it seems to me to be unlikely
- that the plaintiff had a sufficiently secure grip, or needed to maintain such a grip, so as to be drawn down the feed-throat with the meat. Third, as a matter of common experience raw meat is not sticky and there is no evidence that the meat which the plaintiff was processing had any awkward snags (compare tree prunings). Fourth, the plaintiff did not feel his hand and arm being pulled into the mincer until his finger was "tipped" by the worm.
- 6. The plaintiff did not intend for his hand to come into contact with the worm. The accident occurred when a blade of the worm simply "tipped" one of the plaintiff's left fingers and the plaintiff was taken by surprise at the consequences, namely that such contact was sufficient to result in his entire hand being drawn into the machine.
7. The plaintiff was not "skylarking" when the accident occurred. My reasons are as follows. First, there is no evidence from the plaintiff, or anyone else, to that effect. The first defendant would have been in a position to give evidence as to any inappropriate behaviour on the part of the plaintiff, if such had been demonstrable, but he did not do so. Next, in all the circumstances it is improbable that the plaintiff was skylarking. He was new at the job and was being assisted by his father. There was simply no occasion to skylark, and no-one to skylark with.
8. The plaintiff was not being closely or directly supervised by the first defendant. Rather, the first defendant was acting as the plaintiff's assistant and was not paying attention to what the plaintiff was doing, and could not see what he was doing with his hands.
35 In the light of these findings I turn now to make specific findings as to the cause of the accident.
36 In my view, on the evidence and in the light of my earlier findings, the most probable reason for the plaintiff placing his hand into the feed-throat was to manipulate a piece of meat that had blocked the feed-throat. As I have pointed out in my earlier findings, some relatively large pieces of meat, of various shapes, needed to be fed into the machine and very occasionally ("very rarely" according to the plaintiff) they became blocked. In order to clear a blockage located in the lower half of
(Page 15)
- the feed-throat with his hand, it would have been necessary for the plaintiff to deliberately place his hand and forearm into the feed-throat, which would have taken his hand within a few centimetres of the blades of the worm. In my view, in the absence of any other tenable explanation, it is probable that the plaintiff did just this, that is to say, he placed his left hand down the feed-throat and either manipulated, or applied downward pressure onto (or both) a blocked piece of meat. The meat was drawn into the worm extremely rapidly and the blockage suddenly cleared. As a result the plaintiff's finger came into contact with a blade of the worm.
37 I turn now to consider whether in these circumstances the plaintiff was guilty of contributory negligence. The following aspects are particularly relevant:
(i) The plaintiff was young and inexperienced and had only been required to deal with blockages in the feed-throat occasionally.
(ii) The plaintiff knew of the danger and foolhardiness of placing his hand into the feed-throat and knew that he was not required or expected to do so. The plaintiff had the plunger at his disposal and could easily have operated the same with either hand and thus cleared the blockage that precipitated the accident.
(iii) The plaintiff was not aware of a subtle but grave aspect of the risk associated with placing his hand into the feed-throat, namely that the merest contact between one of his fingers and the worm (that is to say, a single finger being "tipped" by the worm) would be sufficient to cause his entire hand to be drawn into the machine. Thus, although the plaintiff did not intend to make any contact with the worm, the dire consequences of the slight contact that did take place were unforeseen by him.
(iv) The risk to which the plaintiff was exposed was created by the defendants' own negligence and if a proper safety guard had been fixed to the top of the feed-throat the accident would not have occurred. In a sense, leaving the feed-throat open, and unguarded, invited or courted risk-taking by the plaintiff, particularly having regard to his youth and inexperience. An employer is required to
- foresee the inadvertence, inattention or misjudgment, or even negligence, of its employees.
38 In the course of submissions counsel referred me to a number of cases in which the question of contributory negligence arose for consideration in superficially similar factual circumstances to those in this matter, namely a machine operator suffered a severe crush injury when a limb became caught in a spinning auger or a similar piece of machinery. I found those authorities to be helpful in analysing the issues in this case, but ultimately they have not carried significant weight because each case must turn on its own facts. I shall mention three of those cases.
39 In Insurance Commission of Western Australia v Leigh [2001] WASCA 232 the plaintiff was a young man of almost 17 years of age who suffered the traumatic amputation of four toes when he placed his foot on the spinning power take-off connection on a tractor which he was riding in the course of his employment. The trial judge held that the plaintiff was not guilty of contributory negligence and that the employer was totally responsible for the accident because it would not have occurred at all if the employer had covered the power take-off. That finding was upheld by the Full Court of the Supreme Court. To some extent the facts of that case are similar to those of the present case insofar as in each case the plaintiff would not have been exposed to any injury at all if a simple guard had been placed over the relevant moving part. But, in my view there are two important points of distinction between the two cases. First, in Leigh it was common practice for the defendant's employees to ride on the backs of its numerous tractors and the power take-off (which rotated when a tractor's engine was in operation) was unguarded and located close to the tow bar where the workers placed their feet. In the present case the worm was located at the bottom of the feed throat at a point where it was unnecessary for the machine operator (ie the plaintiff) to place his hand. Second, in Leigh the plaintiff was misled into believing that the power take off had been switched off by a co-employee.
40 Two cases which bear closer similarity to the present matter are Hanlon (supra) and Fitzpatrick (supra). In Hanlon the plaintiff's left hand was traumatically amputated when it came into contact with a revolving grain auger which was located in a grain storage shed in which he was working in the course of his employment. The plaintiff was found to have been guilty of contributory negligence and his damages were reduced by 10 per cent. In Fitzpatrick the plaintiff's left leg was amputated when his foot was trapped in the feed mechanism (called a
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- "splitter box") of a firewood processing machine which he owned and operated. The plaintiff commenced proceedings against the manufacturer of the machine and the vendor (who had acquired it from the manufacturer, modified it and later on-sold it to the plaintiff). At first instance the plaintiff's claim against both defendants was dismissed. On appeal (by a majority, Steytler P and Buss JA, Pullin JA dissenting) the plaintiff succeeded against the manufacturer but failed against the vendor. The Court of Appeal upheld the trial judge's finding that the plaintiff's negligence had contributed to the accident and held that his damages should be reduced by 70 per cent. In Fitzpatrick, as in the present matter, the plaintiff failed to use an implement which was supplied with the machine for the purpose of clearing blockages in the feed mechanism. (He was injured when he attempted to clear a blockage with his booted foot). In my view Fitzpatrick is distinguishable for a number of reasons. First, whereas in the present matter the plaintiff's accident arose from an isolated incident, in Fitzpatrick the plaintiff had adopted a regular practice of kicking blockages in the splitter box. Next, in Fitzpatrick the plaintiff owned and operated the machine and was responsible for the system of work. In the present case the plaintiff was a young, inexperienced newcomer who had no control over the prescription of the system of work and was obliged to use machinery that was provided to him by his employers. Third, the hazard in Fitzpatrick was immediate and obvious, insofar as the sides of the splitter box which crushed the plaintiff's foot were immediately adjacent to the place where he put his foot. As I pointed out earlier (see par 37(iii)) the hazard presented by the worm in the present case was more subtle in nature.
41 I have come to the conclusion that the defendants have proven that the plaintiff was guilty of contributory negligence because the plaintiff failed to act as a reasonably prudent person of his age and experience would have done having regard to the known and foreseeable risk of injury. I have taken into account that to some extent the accident could be said to be due to misjudgment or thoughtlessness on the plaintiff's part insofar as he misjudged, or failed to fully appreciate, the nature of the risk involved in placing his hand into the feed-throat. However, in my view the plaintiff's acts and omissions (namely placing his hand into the feed-throat instead of using the plunger to clear a blockage) went beyond mere misjudgement, thoughtlessness and involved him doing an act which he knew to be dangerous and foolhardy, and which he knew was not required or expected of him in the performance of his duties since he had been provided with an effective and simple device, namely the plunger. I am not satisfied that any inattention borne of familiarity and repetition,
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- or any pre-occupation with the matter in hand could be considered to be a causal factor, since the plaintiff had only operated the mincer on one or two occasions before, he was in the process of mincing his first load of meat on the relevant day and he deliberately placed his hand into the feed-throat.
42 I have taken into account the fact that the accident would not have occurred if the mincer had had a proper guard over the feed-throat and the fact that the absence of the guard in fact facilitated the commission of the accident. In my view this is a strong factor in the plaintiff's favour. However, I am not satisfied that it is a complete answer to the allegation of contributory negligence, because the absence of a proper guard did not wholly conceal the risk presented by the worm, and the plaintiff was provided with a plunger to deal with blockages. In my view the risk to the plaintiff was reasonably foreseeable and he did not act as a reasonably prudent person would do, even allowing for his age and relative inexperience.
43 I turn now to consider the proper apportionment between the plaintiff and the defendants.
44 The defendants conceded that the greater share of responsibility for the accident should be apportioned against them and I agree. My reasons are as follows. First, as the plaintiff's employers the defendants were under a high duty of care to ensure that his workplace was safe. Second, the hazard which caused the accident could have been easily remedied by the installation of a guard. I re-iterate what I said in par 37(iv) above. Third, although the plaintiff was provided with some instruction in relation to the use of the mincer and was provided with the plunger, and warned as to the hazards of placing his hand into the feed-throat, he was inexperienced and there is no evidence that the defendants had any system of enforcing their directions or warning. Turning to the plaintiff's position, whilst his negligence extended beyond a mere misjudgment, it was a single isolated instance. There is no evidence that the plaintiff adopted a systematic disregard for his own safety and he was young and inexperienced and obliged to use the machinery that his employers provided for him.
45 In my view, it follows from the above that the overwhelming preponderance of culpability lies upon the defendants. In my view the degree of negligence attributable to the plaintiff is 10 per cent and his award of damages should be reduced by that proportion.
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Quantum – Introduction
46 A number of heads of damage were agreed by the parties, namely $180,000 for pain and suffering and loss of amenities of life, $8,000 for future therapeutic expenses, $8,000 for future equipment expenses, $88,000 for future prosthetic expenses, $89,701.57 for special damages and $3,500 for the Fox v Wood ((1981) 148 CLR 438) component, that is, for income tax which was paid on the workers' compensation payments that the plaintiff received. Accordingly, it is only necessary for me to make findings in relation to the following heads of damage, namely economic loss (past and future) and gratuitous and paid services (past and future).
47 The plaintiff has obtained and registered an agreement with the defendants to the effect that his degree of disability for the purposes of s 93E(3)(a) of the Workers' Compensation and Injury Management Act 1981 (as amended) is not less than 30 per cent (Exhibit 17). Accordingly, the court has jurisdiction to award him unlimited damages (see s 93F(1)).
Evidence in relation to quantum
48 The plaintiff testified that after the accident he spent approximately two weeks as an inpatient at Royal Perth Hospital. He remembers very little of an initial period during which he underwent surgery and care in the intensive care unit. He identified photographs (Exhibits 2 and 3) which depict wounds associated with his injury and surgery which were then in the process of healing. He could not remember exactly when those photographs were taken but they depict fresh scars on his thigh and left forearm associated with skin graphs, and a sizeable fresh scar on his left hip which was the aftermath of an unsuccessful attempt to transplant a skin flap onto his crushed left hand. Approximately six months after his discharge from Royal Perth Hospital he returned for a further operation relating to his skin grafts and was hospitalised for two days.
49 After being discharged from hospital the first time, the plaintiff began a period of rehabilitation as an outpatient of the Royal Perth Hospital Rehabilitation Unit in Shenton Park. During that period he saw doctors, physiotherapists, hand therapists, occupational therapists and a psychologist.
50 The plaintiff was taught a number of exercises and a mechanical prosthesis was made up for him. This was a relatively simple prosthesis which consisted of a hook-type terminal device which was operated by a system of cables attached to his left shoulder. He testified that he did not
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- need much training to operate the prosthesis, but it did not feel comfortable and he did not like wearing it. He said that the prosthesis is now too big for him as his left forearm has shrunk.
51 The plaintiff testified that he eventually received a myo-electric prosthesis. This consists of a socket which fits over his stump and his elbow and which is connected to his arm muscles with electrodes. The terminal device (ie the "hand") is opened and closed when he tenses those muscles. This allows him to grip objects sufficiently firmly to move or hold them. The plaintiff testified that the prosthesis helps him in some ways, for instance, when riding his bicycle, but he has found that it is very heavy and that sometimes it is simply easier for him to manage with his right hand. Therefore he does not always use the prosthesis.
52 The plaintiff did not wear either prosthesis during his evidence. He wore a long sleeved shirt with was buttoned at the front and cuffs. He undid the cuffs (with the assistance of the court usher in the case of the right sleeve) and showed me his right and left forearms. His right forearm and hand were perfectly healthy and well muscled. His left forearm was noticeably thinner than the right, with greatly reduced muscularity, and tapered to a small stump. It could be described as very withered.
53 The plaintiff testified that since the accident he has continued to experience phantom symptoms in his left arm. Initially he experienced these symptoms on a very frequent basis. He testified that he still does so, but not as frequently as previously. He said that when this occurs he feels like his left hand is clenched and bound together and he cannot open it. He said that the level of pain depends on the circumstances and is "not too bad". He said that the pain goes away if he takes his mind off it and that he was actually getting phantom symptoms whilst testifying. He said that the frequency of the symptoms can vary, depending on the circumstances. He can experience these symptoms as often as twice per day, or twice per week.
54 The plaintiff said that in the initial stages of his recuperation he had problems extending and rotating his left elbow and arm. He said (and demonstrated) that he can now extend his left arm fully, but he still has difficulty rotating it. He testified that he experiences bad pain if he knocks his stump which occurs approximately once per week if he is not careful with what he is doing. The duration of this pain depends on the circumstances and can last for a minute or more.
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55 The plaintiff testified that he returned to high school in 2003 and 2004. He completed years 11 and 12 but did not undertake the Tertiary Entrance Examination. He was unable to decide what he wanted to do from an occupational point of view and described himself as a hands-on or trade-related person and not a "study-type person". He testified that he became interested in becoming an interior designer. To that end he began a course at the Subiaco TAFE which lasted approximately six months. However he decided that the course was not suitable for him and dropped out. He testified that he found the course difficult because of his disability and gave examples of the problems he had when he was cutting up materials and making models. He said that he needed frequent help and this affected his attitude.
56 The plaintiff testified that he can operate a computer keyboard one handed but it is time consuming and difficult for him.
57 The plaintiff testified that he has a motor driver's licence and is able to drive an automatic motor vehicle without difficulty, provided it is fitted with a spinner knob on the steering wheel. He said that his vehicle must be stationary in order for him to perform some tasks, such as operating the sound system or winding the windows.
58 He testified that prior to the accident he was greatly interested in motor vehicle mechanics and often worked on motor vehicles. He said that he and his father serviced the family's cars. He said that he had tried to resume this activity since his accident but found it too difficult because he always needed help to perform tasks, such as changing a tyre.
59 The plaintiff testified about the services which his family and friends have performed for him since his accident. His mother assisted him in many ways. When he left hospital he needed regular help with tasks such as dressing himself (doing up buttons and belts and putting on socks and shoes), showering, doing his hair and shaving. His mother drove him to and from medical and hospital appointments and his family helped him to set up home exercises. He testified that he can now manage some of these tasks better, such as putting on his socks and the amount of domestic assistance he needs varies. He said that he required help for "probably a couple of hours a day when it first sort of happened, probably just shorter now, probably about an hourish a day". He said that he sometimes needs to be assisted for approximately half an hour one day and then one or two hours, or more, on another.
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60 The plaintiff was unsure about the extent to which he will require assistance from others in the future, principally because he has not yet attempted to perform many household tasks.
61 The plaintiff has considered employment as a car salesman. He testified that he recently met with a motor vehicle salesman to discuss this but decided that he would be unsuited for that career because the work necessarily involves driving manual motor vehicles from time to time. He said that he has considered careers in real estate (where he tried to embark on a cadetship) and in the motor vehicle spare parts industry, but is unsure of his prospects.
62 In cross-examination the plaintiff said that the cadetship in real estate fell through due to the financial difficulties of his prospective employer. He said that he definitely wanted to work and enjoy a career and that he did not want to be unemployed and housebound, but he did not know what he wanted to do. He repeated that he is willing to investigate a career in real estate, or the motor vehicle spare parts industry.
63 The plaintiff adduced evidence from his younger brother, Salvatore, and from two close acquaintances, Dominic Dattillo and Michael Palmieri. All three witnesses testified that they are currently either undertaking a trade apprenticeship, or are about to commence one. They confirmed the plaintiff's evidence as to his reliance on family and friends for assistance with tasks such as servicing his car, eating, drinking, making telephone calls, using his wallet and so on.
64 The plaintiff called Dr Anne Brady, who is a rehabilitation physician. She graduated from the University of New South Wales in 1992 and became a fellow of the Faculty of Rehabilitation Medicine in the Royal Australasian College of Physicians in September 2002. She has practised in the area of rehabilitation medicine since 1995 and has always had a particular interest in the rehabilitation of amputees. She practiced in the field of rehabilitation medicine at Royal Perth Rehabilitation Hospital between January 2000 and June 2006, when she returned to New South Wales and took up a full-time appointment as a staff specialist in rehabilitation medicine at the Shoalhaven Hospital in Nowra.
65 Dr Brady was responsible for supervising the plaintiff's care and rehabilitation at Royal Perth Rehabilitation Hospital from 2002 to 2004. She last saw him in that capacity in 2004, but she also saw him on 12 January 2007 by way of preparation for her evidence. Dr Brady said that she noted that the plaintiff had grown taller between 2004 and 2007.
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- She said that she was somewhat disappointed in the progress that he made in that period. She said that when she initially began treating the plaintiff he was motivated from a rehabilitation point of view, but her current impression is that he has struggled since 2004, and that his amputation has had a bigger impact on his life than she initially thought would be the case. In her opinion the plaintiff is a more reserved and different man compared to the boy she initially met. She was asked to compare the plaintiff in this respect to other amputees and said that people cope differently. She said that in her opinion the plaintiff has an inward-looking personality type which tends not to cope well with situations such as he finds himself in. She felt that the plaintiff's loss had caused him to stagnate and that he was very unsure about his future. She testified that in her opinion the plaintiff did not use his left arm at all and tried to hide it more than anything else.
66 I turn now to deal with Dr Brady's evidence in relation to the use of functional prosthetic hands. In her report (Exhibit 8A) she said the following:
"The human hand is a complex tool that can perform gentle and precise actions such as threading a needle or heavy labour such as swinging an axe. It provides us with sensory feedback of hot, cold, sharp, dull, rough or smooth. A hand is able to tell us whether an object is being held firmly or whether it will slip. It can hold an object between thumb and index finger or crush it with the whole hand. Hands are used to express ourselves when we talk and to touch loved ones. It is therefore extremely difficult to replicate the function of a hand when replacing it with a prosthesis.
Upper limb prostheses provide a simple grasp and release function but are unable to replicate single finger movements or fine motor control. They are unable to provide sensory feedback.
Myo-electric prostheses use EMG signals from muscle contractions to operate the terminal device. They have the advantage of not requiring cables and straps to operate and can be self-suspended on the arm. Therefore, unlike a body-powered prosthesis, the amputee does not have to wear a harness across the upper body, which can be uncomfortable. However, myo-electric prostheses are significantly heavier than body-powered prostheses. Also the use of a myo-electric
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- prosthesis involves a significant amount of concentration to operate the hand. The user has to concentrate ... whilst opening and closing the hand in use. This can be significantly fatiguing.
As a result several myo-electric prosthetic users will only use their arms for tasks where they require its use functionally. These users often switch between the use of a cosmetic passive prosthesis and the myo-electric prosthesis.
The technology involved in the myo-electric prosthetic has been developing over the last few years. For example ... a new hand [is now] available which is significantly faster in its opening and closing speed and which also has an auto-grasp feature which means the user can hold an object without having to waste energy by monitoring whether the item is slipping or not. Advances are also being made in weight reduction, battery size and hand function."
67 In her oral evidence Dr Brady explained that a functional prosthesis only produces a simple grasp and release and therefore only acts as a stabiliser or a "gross assist". This enables the operator to steady writing paper, or pick up and hold an object like a cup.
68 Dr Brady testified that the plaintiff has to date not needed to use a functional prosthetic hand on a regular basis, basically because he has been living with his parents and his day-to-day needs have been met by them and other members of his family and friends. Dr Brady said that with the passage of time and greater independence it will become necessary for the plaintiff to use a functional prosthesis more frequently.
69 Dr Brady made a number of comments in her report about the suitability of the plaintiff's myo-electric prosthesis. She pointed out that an advantage of an amputation at the wrist is that the distal ends of the radius and ulna are preserved, thereby maintaining the amputee's ability to turn the forearm over. This allows more functional use of a prosthesis as it can be positioned in all planes of movement, she said, but a disadvantage is that it leads to difficulties from a cosmetic point of view. For instance, because of difficulties suspending the prosthesis on the plaintiff's arm, his left arm (including the prosthesis) is slightly longer than his right arm. Also, he has restricted elbow range of motion so that he cannot fully extend or flex his elbow whilst wearing the prosthesis.
70 Dr Brady expressed the opinion that the plaintiff would benefit from having two prostheses, namely a myo-electric prosthesis for functional
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- uses as and when required, and a more realistic cosmetic prosthesis for other occasions. She said that a cosmetic prosthesis is passive (that is, it does not move) but can be custom-made to look extremely life-like. She also expressed the view that if the cosmetic appearance of a myo-electric prosthesis could be made more realistic then she would envisage the plaintiff using it for a wider variety of functional tasks than he presently does.
71 Dr Brady addressed the issue of hand dominance. She said that this mainly affects very fine motor skills such as handwriting and that most normal activities require the bilateral use of hands. Accordingly, she said, the consequences of the amputation of a hand are not greatly affected by whether a person loses their dominant hand or not.
72 Dr Brady addressed the plaintiff's ability to perform everyday tasks. She said that some tasks are possible for him to perform, some are possible but unsafe, and others are impossible. Her evidence was that those activities which are possible require planning and frequently require the use of specialised or adaptive appliances. So, as I understand her evidence, she regards the plaintiff as being able to perform a wide range of everyday domestic and personal tasks such as food preparation, laundry, simple household cleaning and tidying up, and bathing and personal hygiene, but many of those tasks will be more time consuming and fatiguing than for a person with bi-manual capabilities. In her report she expressed the opinion that, in addition to specialised appliances, the plaintiff will need indoor domestic assistance for 6 hours per week and an additional 2 hours per month (for heavier work) and outdoor assistance on a regular weekly and monthly basis, ie 8 hours per month.
73 In cross-examination Dr Brady agreed that an upper limb amputee's ability to cope depends on their motivation and personal needs. In that respect, she accepted that to the present time the plaintiff has not had much need to perform a number of domestic and personal tasks for himself. She accepted that with planning and time the plaintiff could perform many aspects of personal care himself. It was pointed out to her that, in her report, she disagreed with the proposition that the plaintiff would be able to perform lighter domestic tasks independently. She accepted that such opinion was at variance with other aspects of her evidence and expressed some doubt as to what she actually meant by that comment.
74 Dr Brady was also unsure in cross examination as to how she arrived at the figure of six hours per week for indoor domestic assistance.
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- Similarly, she was unsure of how she arrived at a figure of eight hours per month (or two hours per week) for assistance with gardening, which she said sounded excessive and depended very much on the nature of the residence the plaintiff chose to live in. Dr Brady expressed the view that, in general, it would take the plaintiff longer to perform many domestic tasks than would be the case for a bi-manually competent person and perhaps twice as long, even with the assistance of aids and appliances. As a result, she felt that tasks would not be done as well, or as often, and it would be easier for the plaintiff to get someone else to do such tasks.
75 Dr Brady also addressed the plaintiff's occupational capability in her evidence. In her report she concluded that the plaintiff "is significantly limited in his choice of occupation" and listed a number of work areas which are contra-indicated, including butchery and occupations involving the use of a manual motor vehicle (including car sales), the use of ladders and the use of power tools (due to his inability to stabilise such equipment). In her view the plaintiff is possibly suited from a purely manual point of view for occupations such as accountancy or other types of office work, although she noted that he was not vocationally interested in such careers and regarded himself as a "hands-on" person. She felt that the plaintiff would benefit from vocational counselling in order to determine an appropriate vocation.
76 In cross-examination, Dr Brady agreed that a functional (myo-electric) prosthesis would assist the plaintiff from an employment point of view. I asked her to expand upon this answer, where-upon Dr Brady said that many manual workers use a functional prosthesis, such as chefs, farmers and gardeners. Dr Brady qualified that answer when questioned by Mr Staude for the plaintiff. She said that a chef with a functional prosthesis is unable to do all of the things that a bi-manual chef could do. She said that a prosthesis allows a chef to hold a pot, or a plate, provided he watches what he is doing, and also enables him to hold an object that he is chopping. In other words, she said, the prosthesis operates as a gross aid and enables the chef to hold or support objects, but it is not as precise as a real hand. She said that a gardener with a prosthetic hand is not as proficient as a bi-manual gardener, because whilst a prosthesis serves as a gross aid to holding and stabilising tools, it is of limited assistance in relation to the manipulation of finer objects.
77 Dr Brady opined that the plaintiff has a 56 per cent whole person impairment using the Australian Medical Association Guide to Permanent Impairment (5th ed).
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78 The plaintiff called Ms Judith Wilton, who is a hand rehabilitation specialist. She qualified as an occupational therapist (obtaining a Bachelor of Applied Science), she has a post-graduate Diploma in Health Science (specialising in pain management) and a Master of Science degree. She testified that she has 21 years' experience in the treatment of hand and other limb injuries. She saw the plaintiff for the first time on 28 July 2006 for the purpose of giving evidence in this matter.
79 Ms Wilton testified that she found the plaintiff's right limb to be very strong but his left limb was very withered and very sensitive in the area of the stump. She said that she observed no evidence of skin-hardening or callousing as she would normally see in the case of a person who made regular use of their stump. She regarded the withered state of the plaintiff's arm to be very unusual and indicative of a lack of normal use. She considered that it was obvious that the plaintiff held his left arm in a hidden position and in her opinion he appeared to be somewhat ashamed of his stump. She felt that the plaintiff's left arm was not part of his normal body image and her findings were indicative of a person who was still coming to terms with his amputation.
80 Ms Wilton testified that the width of the plaintiff's stump was less than 6 centimetres, which limited his ability to restrain large objects. She said that there is very little flesh protecting the distal ends of the radius and ulna bones. She said that this would not change over time. Therefore, in her opinion, significant forces or pressures could not be transmitted to the stump from the socket of a prosthesis without causing discomfort and pain to the plaintiff. She said that this limited the effectiveness of a functional prosthesis in his case. Later she said that the lack of use at that time of the prosthesis meant that the plaintiff's "tolerance of pressure from socket [of the prosthesis] to the stump is low with functional skills using the prosthetic limb being poor". She observed the plaintiff using his myo-electric prosthesis during her assessment of him. She said in her report that he had "some difficulty positioning the distal components for effective grasp and release of objects placed in front of him" and that the plaintiff "did not present as being competent in the use of a prosthesis". She said that the plaintiff's use of his prosthesis was "limited to gross grasp and a pushing action in limited planes of motion in front of the body". She continued in her report to state that with the effluxion of time the plaintiff has become "very competent as a one-handed person and has not integrated the myo-electric prosthesis into his body image and pattern of upper limb use". She testified that it is important for an amputee to accept a prosthesis as part of his or her body image from an early stage in the rehabilitation process. She said that she
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- did not "foresee him undertaking vocational options that will incorporate use of a myo-electric prosthesis in the future". Accordingly, in Ms Wilton's opinion, an assessment of the plaintiff's future functional and vocational capacity and options should not predicate any prosthetic function in his left limb and his capacity was "limited to that of unilateral function of the right dominant hand with some assistance to stabilise objects from the stump of his left upper limb". Ms Wilton also pointed out that the sustained and repetitive use of the plaintiff's right limb created the potential for overuse injuries and this needed to be factored into the assessment of his future capacity and prospects.
81 In cross-examination Ms Wilton said that her assessment of the plaintiff's capabilities took into account the fact that four years had lapsed since the accident, and two years since the plaintiff was provided with the myo-electric prosthesis, and yet he had not become competent in its use. She said that in her experience most successful users of prosthetics became competent within a few months of acquiring their prosthesis. She said that four years was a long period of time which facilitated the plaintiff becoming accustomed to life without a left hand, that is to say, it would be difficult for him to now accept a functional prosthesis and become competent in its use. She said that in her opinion a cosmetic prosthesis would be of significant benefit to the plaintiff and she would expect him to wear it more than a functional prosthesis.
82 In relation to the plaintiff's vocational options, Ms Wilton expressed the view that the plaintiff was very competent with his right hand, but that manipulative tasks needing bilateral dexterity were precluded. She assessed the plaintiff as being orientated to manual work, rather than being a cognitive or academically orientated person. In her opinion the plaintiff would find it very difficult to obtain one-handed manual work. Having said that, Ms Wilton pointed out that there are a number of aids available to assist amputees. For instance, in computer-related fields there are one-handed keyboards, predictive software (which pre-empts words or phrases which a typist begins to type) and voice-activated software.
83 In cross-examination Ms Wilton agreed that from an employment point of view the plaintiff was "most certainly not" on the "scrap-heap" and said that unilateral amputation can be overcome. However, in her view the plaintiff's case was complicated because of his relative youth, and his inability to come to terms with his amputation and establish new goals. In her view the plaintiff would benefit from vocational advice.
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84 The plaintiff tendered a number of reports unopposed pursuant to s 79C(1) of the Evidence Act..
85 Eleven reports of Dr Tony Connell were tendered (Exhibit 9). These reports provide a chronological record of the plaintiff's treatment and rehabilitation from the surgical point of view. Dr Connell expressed the opinion in his report of 17 December 2002 that the plaintiff is totally incapacitated for work as a butcher and would be unable to undertake any work that "requires any level of dexterity in his left hand as the prosthesis supplied to him ... will more than likely be only able to hold large objects". Dr Connell said that such incapacity will be for the duration of the plaintiff's life. In his report dated 11 August 2006, Dr Connell referred to a consultation with the plaintiff on the same date in which the plaintiff complained of having symptoms in his left arm. On examination Dr Connell noted a small area of tenderness over the plaintiff's distal radial head. No evidence of any underlying pathology was found on examination or ultrasound and Dr Connell formed the opinion that the plaintiff's symptoms were related to direct pressure on his stump. Dr Connell recommended that the plaintiff avoid continual contact on any one particular side of his stump.
86 A report was tendered from a psychiatrist, Dr Peter Shannon, dated 7 February 2005 (Exhibit 10). After recounting the plaintiff's history, Dr Shannon made the following findings. The plaintiff is suffering from post-traumatic stress disorder and an adjustment disorder. In his view the plaintiff requires psychological counselling to assist him to adjust to the physical and psychological realities of his circumstances. In Dr Shannon's opinion this requirement is evidenced by the plaintiff's need to hide the fact that he has lost his hand and his "marked ambivalence about wearing his prosthesis". Dr Shannon was also of the view that the plaintiff is in need of assistance with vocational planning in order to replace the "clear goals" which he had prior to the accident. In Dr Shannon's opinion the plaintiff has the ability to make the necessary adjustments to improve his future and prognosis, although Dr Shannon had some hesitation in saying as much owing to the fact that the plaintiff had not, as at February 2005, adjusted to his situation.
87 Reports were adduced from a number of prosthetists, namely Mr Greg Caldwell of Royal Perth Hospital (Exhibit 11) and Mr Andrew Vearing and Ms Jane Moore of FOS Prosthetics and Orthotics (Exhibits 12 and 13). It is not necessary to advert to these reports in detail, given the agreement between the parties in relation to the heads of damage which relate to the provision of prosthetics for the plaintiff.
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- Nevertheless, the reports remain relevant because of the background they provide in relation to the fitting and use of prosthetics, and the attendant problems in the plaintiff's case, and the various prosthetic options that are available to him. In Ms Moore's report dated 5 April 2004 she referred to the fact that the plaintiff had "recently lost considerable volume due to muscle bulk reduction" in his left arm and that it was "no longer possible to suspend his [myo-electric] prosthesis adequately". She said that she had "tried to modify the socket but this causes problems on the distal end of the stump". Ms Moore recommended that the plaintiff be fitted with a new silicone socket. The defendants' workers' compensation insurer approved the purchase of a silicone socket as appears from Ms Moore's report dated 14 August 2004. However, in that report she said that he was again having "suspension problems" with the prosthesis and that it would be necessary for the socket to be located above the plaintiff's elbow. In this report Ms Moore also pointed out that there were numerous prosthetic or terminal devices which could have a beneficial effect on the plaintiff's everyday life. Appendix 1 to her report comprised an extract from a brochure illustrating passive functional devices which can be screwed into a socket worn on an amputee's arm. The socket is strapped with velcro onto the distal end of the arm. The devices illustrated were a claw hammer, a ball hammer, a potato holder, a table knife, a table fork and a table spoon. Appendix 2 was an extract from a brochure illustrating recreational products which can be used in a wide range of activities including ball sports. Appendix 3 was an extract from a brochure illustrating a range of cosmetic gloves which are capable of being fitted onto myo-electric and passive prostheses.
88 In a report dated 11 October 2002 (Exhibit 14) Kathy Thomas, occupational therapist, reported on therapy provided to the plaintiff in the first five weeks after his amputation. She reported that the plaintiff's active and passive pronation and supination were limited with supination being very poor.
89 The plaintiff tendered a report from an occupational therapist, Ms Netina Prichard, dated September 2005 (Exhibit 15) which reported on the plaintiff's level of function and his needs in terms of equipment and assistance. It is not necessary to deal with all aspects of Ms Prichard's report having regard to the agreement between the parties in relation to some heads of damage. In relation to the use of a computer, Ms Prichard recommended that the plaintiff use a mini-keyboard (for one-handed typing) and said that voice recognition typing software would assist to reduce fatigue and improve the plaintiff's working speed. She also suggested that consideration be given to the plaintiff obtaining a typing
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- stick attachment for use with a prosthesis on his left hand which would enable a return to two-handed typing functions. The nature of this attachment is not fully explained in her report but by reference to Appendix 1 to Ms Moore's report, I infer that Ms Pritchard had in mind a socket and passive tool which would operate in a similar way to a socket and fork but designed so as to facilitate the use of a computer keyboard.
90 The plaintiff tendered the report of Dr Andrew Harper, occupational physician, dated 31 August 2004 (Exhibit 16). Dr Harper reviewed the plaintiff on 30 August 2004. His report sets out the plaintiff's history and his findings on examination. In Dr Harper's opinion the plaintiff should avoid "lifting, carrying, bi-manual tasks, driving a manual car, work requiring frequent contact with the public, any circumstances requiring the wearing of short-sleeved shirts and activities at a pool or beach". He regarded the plaintiff as incapacitated for occupations such as a butcher, cabinet-maker, labourer or shop-assistant but capable of full-time office work. As regards the plaintiff's prognosis, Dr Harper expected some improvement psychologically and in respect of the plaintiff's overall disability arising from the use of prostheses.
91 The plaintiff also tendered two reports from Mr John Alessandrini, psychologist, dated 9 April 2005 and 30 November 2006 (Exhibit 26). Mr Alessandrini provided counselling to the plaintiff and his family in 2002 and 2004 and carried out a vocational assessment of the plaintiff in 2006. In his report he expressed the view that the plaintiff possessed very minimal transferable work skills. Based on information provided to him by the plaintiff, and tests which Mr Alessandrini carried out, he concluded that certain motor vehicle-related occupations were suitable for the plaintiff, namely a motor vehicle sales person, a spare parts sales person, a vehicle licence examiner and a motor vehicle detailer. He concluded that motor vehicle sales and motor vehicle parts sales were consistent with the plaintiff's functional limitations.
92 The defendants called Dr Kim Fong, who has been a specialist rehabilitation physician at Royal Perth Rehabilitation Hospital since 1995. He has been the head of the rehabilitation department for the last five years. Dr Fong qualified as a medical practitioner in 1984. He said that his principal areas of clinical practice involve the rehabilitation of brain-injured persons, patients with chronic pain and back problems and, to a lesser extent, amputees. Dr Fong prepared two reports which were tendered in evidence, dated 21 August 2006 and 25 January 2007 (Exhibit 23). Dr Fong based the first report entirely on a number of
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- medical reports which were provided to him, but based the second report on a clinical examination of the plaintiff on 14 December 2006.
93 In the first report, Dr Fong expressed the view that the plaintiff's likely requirements for domestic assistance would be in the order of three hours per week for normal light cleaning and two additional hours per month for heavy cleaning. Dr Fong expressed the view that the plaintiff could cope with most lighter gardening activities independently but there would be some tasks such as lawn mowing, tree pruning and clearing gutters which would be difficult for him to do safely and efficiently. He regarded a provision of eight hours per month for gardening and home maintenance services as being "in excess of the usual expectations for this type of disability involving loss of a non-dominant hand". He believed that an allowance of four hours per month would be more realistic. Dr Fong expressed the opinion that the plaintiff could be expected to achieve full competency for independent living apart from some minor restrictions for which the above-mentioned domestic and household services would be needed. In his second report Dr Fong said that the plaintiff demonstrated a good level of competency with his myo-electric prosthetic hand and could "open and close the hand with reasonable precision and this enables him to pick up moderate sized objects with ease and efficiency".
94 In his oral evidence Dr Fong said that the plaintiff's stump appeared to be very typical with a mild degree of sensitivity to touch and no focal areas of tenderness.
95 Dr Fong's views as to the importance (or otherwise) of the dominant hand differed from those of Dr Brady. In Dr Fong's opinion a disability is greater when it involves the dominant hand, compared to the non-dominant hand, and he regarded this as consistent with other professional views. He said that the dominant hand is used for writing and fine skills and is capable of more precise movements and is stronger than the non-dominant hand. He also expressed the view that Dr Brady's assessment of a 56 per cent total body impairment was "surprising" but did not express an alternative opinion. As with the other experts, Dr Fong stressed the importance of the plaintiff receiving proper vocational guidance and support. He said that in his opinion an amputee's capacity for lateral thinking and motivation are the main determinants of success. Dr Fong mentioned a number of occupations which he felt the plaintiff could cope with, if suitably motivated, including car sales and office work in a car dealership (such as administration in the service department). He accepted that the plaintiff would have some reduction of efficiency but
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- felt that that could be overcome if he had the correct attitude. He went so far as to indicate that car repairs and servicing were also possible and said that some patients had been known to achieve "amazing" levels of functioning. Having said that, he accepted that there were some tasks which would be very difficult for the plaintiff to perform, such as changing car tyres.
96 Dr Fong was cross-examined at some length as to the nature and scope of the domestic and household activities that the plaintiff could, or could not, perform. It is not necessary to set out this aspect of the cross-examination in detail at this point. He expressed confidence in his original assessment of the plaintiff's need for gratuitous and paid services, notwithstanding that he had not seen the plaintiff at the time. He felt that he could deal with the issues at that stage without having seen the plaintiff based on his experience with other patients. (It should be noted that he did not depart from his original views after he saw the plaintiff).
97 The defendant also tendered reports of Dr Peter Connaughton dated 28 November 2005 and 20 September 2006 (Exhibit 24). Dr Connaughton is an occupational physician and reviewed the plaintiff on 20 September 2005 and 20 September 2006. On examination for the first time Dr Connaughton noted that there was some tenderness to firm palpation at the end of the plaintiff's stump, that he had a full range of symptom-free movements in his neck, shoulders and elbows and a good range of supination and pronation in his left forearm. In the first report he formed the opinion that the plaintiff had made "excellent progress" in adapting to his disability and he took a favourable view of the plaintiff's career goals (interior design) at that time. Dr Connaughton reported no material change in his second report, save for the fact that by September 2006 the plaintiff was no longer pursuing a career in interior design and was unemployed and undecided as to his future.
116 The defendants concurred with the plaintiff's approach to the determination of past loss of earning capacity, namely by reference to the total loss of the plaintiff's earnings as an apprentice or qualified butcher (as the case may be). The defendants disagreed in relation to the issue of over-award payments and as to the identification of the appropriate award. So far as future loss of earning capacity is concerned, the defendants submitted that the appropriate method is to calculate the difference between the plaintiff's earnings on the basis that he would have continued in his trade as a butcher until the age of 65, but is now suitable for work in motor vehicle spare parts sales, or can earn the state minimum wage. The defendant conceded that the plaintiff may have difficulty securing employment and obtaining overtime, promotions and higher paid employment and that an additional global sum of $100,000 should be allowed. The defendants criticised the plaintiff's reliance on Australian Bureau of Statistics' data in relation to average weekly earnings in Western Australia. They contended, in effect, that such data is too generalised to be relevant to the plaintiff's situation, and is affected by the inclusion in the statistical database of data relating to all actual income earners, not just the "average person" or youthful workers such as the plaintiff.
117 I shall deal firstly with the plaintiff's loss of earning capacity to date. The first issue to determine is the appropriate pay scale for the plaintiff's work. He testified that he was "just getting $200 a week" when the accident occurred and that he "sort of didn't really look into it properly". He did not explain whether that sum was his after tax or gross earnings, but given his obviously simplistic comprehension it is more probable than not that he was referring to his net earnings. That evidence supports a finding that his wages were calculated in accordance with the Meat
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- Industry (State) Award which was nominated as the "type of employment arrangement" in his apprenticeship agreement (Exhibit 6). That award sanctioned a basic rate of $186.96 gross or $174.79 net for a 38 hour week for a first year apprentice. The plaintiff submitted that the rates payable pursuant to the Coles Supermarkets Australia Pty Ltd and Australasian Meat Industry Employees Union Western Australian Agreement 2003 should apply, pursuant to which the weekly earnings of a first year apprentice were $342 gross or $298 net for a 38 hour week. That award and those figures are not consistent with the plaintiff's actual earnings or his apprenticeship agreement. Accordingly, I find that the plaintiff's past economic loss should be calculated on the basis that his weekly earnings would have been calculated in accordance with the Meat Industry (State) Award. I further find that an allowance for overtime every week is appropriate since when the accident occurred the plaintiff was being paid $200 per week which was more than the award rate. Further, it is common knowledge that butchers trade over extended hours and the plaintiff was motivated to do well. In my view 6 hours of overtime per week is reasonable. The defendants prepared a table which set out calculations based on the state award up to and including the week ending 29 January 2007. In my view those figures are correct and establish a starting point of $76,094.10 (before overtime) as follows:
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118 Two further sums should be added to the figure of $76,094.10. First, an allowance of $508.16 net per week should be awarded for the period from 29 January 2007 to the current date, namely $5,880.11. Second, a sum should be added for overtime, bonuses and other additional payments which the plaintiff would have earned. The plaintiff submitted that a global sum of $20,000 should be assessed and in my view that is justified for the following reasons. On the basis that the plaintiff would have worked in the order of six hours of overtime spread over each week, at a rate of one and a half times his normal earnings as sanctioned by the award (the equivalent of nine hours per week of normal earnings), it can be seen that overtime and additional payments would have been equivalent to approximately 25 per cent of his normal earnings, or approximately $18,000, which I round to $20,000.
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- Accordingly, I assess the plaintiff's past loss of earning capacity in the sum of $101,974.
119 The plaintiff has claimed interest on his past loss of earnings at an average rate of 3 per cent per annum. In my view the plaintiff is entitled to interest, but only on such portion of the sum of $101,974 as exceeds the workers' compensation payments which were paid by the defendant to the plaintiff. I will hear the parties in relation to the computation of that figure.
120 I turn now to the plaintiff's future loss of earnings, by beginning with the earning capacity he would have enjoyed but for the accident. At the outset I note that the plaintiff testified that his career goal upon qualifying as a butcher was to join his father as a partner in the family business and to ultimately run that business himself when his father retired. However, little or no evidence was adduced as to the nature of that business (such as its operating hours or staff levels) or as to its earning potential. Indeed, no evidence was adduced in relation to the profitability of the business or the usual earnings of the other employees such as Mr Romeo.
121 Based on the plaintiff's evidence I have just mentioned I find that the plaintiff would have continued to work as a butcher, and in the family business, for a significant period of time after he completed his apprenticeship.
122 The next question is, how long is the "significant period" and what are the possibilities that the plaintiff would have departed from his chosen career path? There is, in my view, scope for me to begin with some commonsense precepts which are part of everyone's life experience. First, it is not uncommon for young men to embark upon careers with the best of intentions, but to move into other career paths as they grow older. It must be remembered that the plaintiff was a youth aged nearly 17 years when he selected a career in butchering. Butchering was not his first career choice, nor does it involve skills which are consistent with his other interests (such as mechanics). Second, it is not uncommon for young men to distance themselves from family ties to varying degrees and for numerous reasons as they mature. Third, the plaintiff lives in an era when economic opportunities for young people are less rigid than they may have been for previous generations. The opportunities or pathways for young people, particularly those with a practical trade, to exploit their occupational skills and enhance their earning capacity in a cross-section of careers, and in a cross-section of places, are significant. There are many opportunities for workers to add to their skills or change careers.
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- There is, in summary, a great deal of scope for flexibility in the employment marketplace for qualified (and non-qualified) individuals.
123 It must be remembered that the issue to be determined is the overall value of the plaintiff's earning capacity taking into account his pre-accident goals and motivation and his skills and personality, all of which favoured advancement in a trade-related occupation. I am satisfied on the balance of probabilities on the evidence that the plaintiff would have prospered in a trade-related career such as butchering. I am satisfied that he would not have settled down into an occupation for life as a butcher earning minimum award rates, plus routine allowances. I find that he would have taken steps to ensure that he was engaged in better remunerated work than that, either under the auspices of the family business, or elsewhere. I find that the only certain limitations on the plaintiff's earning capacity are that he would not have acquired a tertiary education or obtained advancement through a profession or high level business management.
124 Under those circumstances I am satisfied that it is appropriate to assess the plaintiff's pre-accident earning capacity on the basis that throughout his career he would have obtained employment with earning potential well in excess of the basic award rates of remuneration, but not greater than the "average" weekly earnings in Western Australia. I have taken into account the defendants' submission to the effect that average weekly earnings are not necessarily commensurate with the earnings of an average worker and that it is, in effect, simply a statistic. But, it is a statistic which reflects the earnings of a cross-section of West Australians, from the lowly paid to the highly paid and reflects to some extent the earnings of qualified trades-people from a wide cross-section in the community. Accordingly, I intend to accord some weight to that evidence.
125 In the absence of any evidence as to the earning opportunities which the family business would have provided, I begin by analysing the evidence contained in the meat industry awards. The plaintiff relies on the Coles supermarket award, whereas the defendants relied on the Meat Industry (State) award. In my view the Coles award represents the more sound basis because it is more specifically orientated towards actual opportunities than the State award. In my view irrespective of his family loyalty and ambitions, once he qualified, the plaintiff would not have worked for very long at all in the family business unless his earnings were at least commensurate with the level of earnings which were readily
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- available elsewhere in the butchering trade, such as in a large and well-known business such as Coles.
126 The salient features of the Coles award were that during the period 4 March 2005 to 3 April 2006 (the most recent figures) a qualified butcher was paid $683.42 gross per week (for a 38 hour week), with incrementally higher hourly rates for overtime. The "time and a half" rate was $26.98 per hour and higher rates were available. Butchers were also entitled to receive a "cold room allowance" of $5.60 per week and managers of various levels received extra payments in the range of 10 to 15 per cent. In my view it is reasonable to commence on the basis that the plaintiff would have worked at least six hours of overtime per week (at $26.98 per hour) since it is common knowledge that butchers trade over extended trading hours and, as I have found, the plaintiff would have been motivated to prosper.
127 On this basis I find as follows. Over the course of a career as a butcher the plaintiff would have typically earned a minimum of $850.90 gross per week (ie $683.42 plus $161.88 plus $5.60). Further, either in the family business or elsewhere he would have worked additional hours, or attained a managerial level, with the result that his earning potential as a butcher was in the order of up to $977.50 gross per week (ie $850.90 plus 15 per cent). I propose to adopt the figure of $977.50 gross per week, but only as a starting point. I am satisfied that the plaintiff's earning parameters were better than that. First, $977.50 gross per week represents no more than the earnings of a reasonably diligent butcher plus 15 per cent for all or any additional earning capacity. Second, $977.50 per week compares unfavourably to average weekly earnings of $1,279.10 gross per week which, as I have said, have some relevance. Third, the plaintiff had the option open to him to change trades if he wished, but that was taken away by the accident. In my view it is appropriate to increase the 15 per cent increment that I have applied to 30 per cent. Accordingly I find that the plaintiff's pre-accident earning capacity was $1,106.17 gross per week, (ie $850.90 plus 30 per cent).
128 I turn now to consider the plaintiff's retained earning capacity. It must be noted at the outset that the plaintiff is not expected to be an "economic slave" partaking in unreasonable employments for which he may be physically suitable, but for which he is not in any respect vocationally suited and which would unreasonably interfere with his enjoyment of life (see Medlin v State Government Insurance Commission(1995) 182 CLR 1 per McHugh J at 23). The fact is, and I so find, that there are, and always will be, many niches in the employment
(Page 48)
- market for which the plaintiff is suited, such as a motor vehicle licence examiner, a spare parts salesman or as counter staff in a vehicle service centre. Doubtless, many other areas of employment may open up to him, such as in real estate. Given his generally motivated personality and intellectual skills (which were sufficient to twice obtain admission to TAFE and a cadetship in real estate) it is probable in my view that the plaintiff will in due course obtain gainful employment. But, there are a number of qualifications that must be recognised. First, based on the evidence it is clear that the plaintiff will need considerable vocational guidance before he can settle on a career. Next, it is necessary to give some weight to Mr Allessandrini's vocational assessment of the plaintiff. He found, and I accept, that from the vocational or aptitude point of view, the plaintiff has very minimal transferable work skills. Next, the plaintiff will usually be at a competitive disadvantage when he applies for employment. The plaintiff can be expected to be slower, less efficient and less adaptable than bi-manual candidates with similar credentials to himself. Also, he has a greater susceptibility to fatigue compared to bi-manual competitors in the workplace. Next, when he does obtain employment the plaintiff will for the same reasons that I have just mentioned be limited in terms of the opportunities for overtime, promotion, retraining and such like (as the defendants quite properly accept).
129 Against this background I find that in the foreseeable future the plaintiff will obtain gainful full-time employment. However, initially it is unlikely to be particularly skilled work, even in an area such as real estate, and therefore the starting point for his remuneration is likely to be close to the minimum wage in Western Australia ($504.40 gross or 442.50 net per week).
130 I find that the plaintiff's lost earning capacity should be determined on the basis that he would have worked to the age of 65 but for his accident, and that he will in fact work to the age of 65 years. The plaintiff's counsel submitted that he would have worked to the age of 70. That is a possibility, but was not the subject of any evidence.
131 The question of the proper allowances for contingencies is a difficult issue having regard to the plaintiff's relative youth and the wide cross-section of possible contingencies that could have adversely or favourably affected his earning capacity but for the accident, and which may in fact so affect his earning capacity. I am of the view that possible favourable contingencies can be said to be counter-balanced by possible adverse contingencies and that in the circumstances no adjustment for
(Page 49)
- contingencies is necessary. For instance, the adverse contingency that the plaintiff would not have been currently earning approximately $1,100 gross per week but for the accident needs to be balanced against the favourable contingency that it will in fact take him some time to identify a vocation or career and obtain gainful employment. Also, although it is possible that the plaintiff will obtain occupational advancement and may significantly increase his retained earning capacity (particularly if he is successful in a career such as real estate), such prospect is counter-balanced by the possibility that he will be limited to more mundane occupations and suffer periods of unemployment because of retrenchment or because of factors personal to him such as the unsuitability of the employment. Every time this occurs the plaintiff will have to compete on unequal terms with other applicants for other employment or re-train.
132 Bearing in mind the principles endorsed in Bowen v Tutte, I am of the view that it is preferable to assess the plaintiff's retained earning capacity by reference to the minimum wage in Western Australia, rather than a percentage of his pre-accident earning capacity, because there is very little evidence on which I can make a finding as to the latter. There is, however, sufficient evidence to make a finding, as I have done, that the plaintiff will obtain full-time work and that he has a long term earning capacity equal to the minimum wage.
133 Against this background I calculate the award of damages for loss of future earning capacity as follows:
(i) Pre-accident earning capacity: $1,106.17 gross per week or $863.74 net per week.
(ii) Retained earning capacity: $504.40 gross per week or $442.50 net per week.
(iii) Therefore loss equals $421.24 (say $420) x 824 (multiplier to age 65): $346,080.
134 I am mindful that an award which is equivalent to $420 net per week is significant. However, based upon a review of the evidence as a whole I am satisfied that it is appropriate and it predicates a retained earning capacity of 50 per cent. It must be remembered that the plaintiff has totally lost the ability to work in his pre-accident occupation and in virtually all of the well remunerated alternative occupations for which he was suited or interested. He has very limited residual prospects and is severely disabled.
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135 I turn now to consider the plaintiff's claim for past and future loss of superannuation benefits. As for past loss of superannuation, on the basis that the plaintiff would have been entitled to superannuation at 9 per cent of gross wages, and deducting for tax on contributions and other withdrawals (pursuant to Jongen v CSR Ltd & Anor (1992) Aust Tort Reports 81-192) the starting point is calculated as follows:
Total gross earnings = $94,000.61 x 9% x 70% = $5,922.03.
136 However, this figure must be adjusted to allow for additional gross earnings due to overtime, and for the fact that tax on contributions fell to 15 per cent after 30 June 2006. I would round the allowance to $8,000
Interest at an averaged rate of 3% pa on $8,000 for 4.6 years = $1,104
137 Turning to future loss of superannuation, based on the same figures on which future loss of earning capacity was calculated, I assess the plaintiff's loss as follows:
$(1,106.17 – 504.40) x 9% x 85% x 824 = $37,933.
138 In the light of these findings and the agreement between the parties in relation to other components of the plaintiff's losses, I summarise the various heads of damage (before any reduction for contributory negligence) as follows:
Pain and suffering and loss of amenities $180,000.00
Past loss of earning capacity (excluding interest) $101,974.00
Past loss of superannuation including interest $9,104.00
Fox v Wood component $3,500.00
Future loss of earning capacity $346,080.00
Future loss of superannuation $37,933.00
Past gratuitous services including interest $51,455.81
Future gratuitous and unpaid services $107,941.50
Future therapeutic expenses $8,000
Future equipment expenses $8,000
Future prosthetic expenses $88,000
Special damages $89,701.57
Total $1,031, 689.90
(Page 51)
139 After allowing a deduction of 10 per cent for contributory negligence, I assess the plaintiff's damages at $928,520.91. An allowance for 90 per cent of any interest on past loss of earning capacity should be added to this sum.
Conclusion
140 In conclusion, I find that the defendants are liable to the plaintiff in respect of his injuries caused by the accident, but the plaintiff's damages should be reduced by 10 per cent by reason of his contributory negligence. I assess the plaintiff's damages in the sum of $928,520.91, plus 90 per cent of interest on any past loss of earning capacity not already covered by workers' compensation payments.
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