Renner v Northern Territory of Australia - [2000] NTSC 15

Renner v Northern Territory of Australia & Anor [2000] NTSC 15
PARTIES:RENNER, Frank
v

NORTHERN TERRITORY OF AUSTRALIA

AND

SAGE CONSTRUCTIONS PTY LTD

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NO:183/96 (9620021)
DELIVERED:  27 March 2000
HEARING DATES:  29 & 30 November and 1, 2 & 3 December 1999
JUDGMENT OF:  MARTIN CJ
CATCHWORDS:

NEGLIGENCE
Personal injury – bicycle path – failure to protect path users.
LIABILITY
Contributory negligence not found – defendants joint tortfeasors.
Control of Roads Act 1953 (NT), s 7
Law Reform (Miscellaneous Provisions) Act 1956 (NT), s 16
DAMAGES
Personal injury – loss of earning capacity – quantification of; - contingencies not allowed for – loss of amenities of life (past) – pain and suffering (past and future) – interest agreed between the parties – 48 year old printer worker – shoulder injury .
LIMITATIONS ACT 1981 (NT), s 44
Whether plaintiff “ascertained” the material facts.
Sola Optical Australia Pty Ltd v Mills (1987) 163 CLR 628
REPRESENTATION:
Counsel:
Plaintiff:S Southwood
Defendant:T Bryant
Solicitors:
Plaintiff:De Silva Hebron
Defendant:Cridlands
Judgment category classification:      B
Judgment ID Number:  mar20002
Number of pages:  32

Mar20002
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Renner v Northern Territory of Australia & Anor [2000] NTSC 15
No. 183/96 (9620021)

BETWEEN:
FRANK RENNER

Plaintiff
AND:
NORTHERN TERRITORY OF AUSTRALIA

First Defendant
AND
SAGE CONSTRUCTIONS PTY LTD
Second Defendant

CORAM: MARTIN CJ
REASONS FOR JUDGMENT
(Delivered 27 March 2000)

At about 8.15am on 23 April 1994, the plaintiff was riding a bicycle along a bitumen path, commonly called a bicycle path, adjacent to the Stuart Highway in Darwin. He was travelling towards the city on his way to work, and was approaching the point where the bicycle path reaches Amaroo Road which extends from the Highway on his left, to the RAAF gates, on his right, at Winnellie. Mr Renner was accustomed to riding along that stretch of path on most Saturdays.

Over a period of some months prior to that day he had had to dismount and traverse a distance of about 50 metres on foot prior to the intersection of the path with the road. There had been roadworks near the intersection of that road and the Stuart Highway which roadworks extended across the point where the path reached the road. A temporary barrier of red webbing stretched between star pickets had been erected across the path about 50 metres from that point, and there were mounds of earth between the barrier and Amaroo Road. On previous occasions, having gone around the obstacles, Mr Renner remounted his bicycle on the opposite side of Amaroo Road and continued on his way.

On this occasion, however, the webbing barrier was no longer in place, and the mounds of earth had been removed. The path was apparently open to be used and Mr Renner proceeded to ride his bicycle towards Amaroo Road which was located approximately across his line of travel. He told the Court that he slowed down and was coasting along the path towards the road and was looking to see whether it was safe to ride across it. There was no traffic, he proceeded and the front wheel of the bicycle struck a bump which caused him to fall over the handlebars onto the road and suffer injury.
There was a new crossover along the edge of the road at the point where the path met it. It had been laid on the edge of the road as part of the works, but the level of the path was below the top of the rear of the crossover. The work necessary to bring the level of the path to the top of the crossover had not been carried out. The bump was about 50 to 70 millimetres in height.
There was no evidence as to when, or the circumstances in which the webbing barrier and mounds of dirt had been removed. There would have been no difficulty in removing the barrier, or indeed replacing it, and the plaintiff’s evidence was that the same or a similar barrier was erected after this incident. What is clear is that the barrier and other obstructions to progress along the path by bicyclists had been removed, but the hazard described remained. There was no barrier around it or any warning sign when the incident occurred. Mr Renner did not see it until “the last split second” because he was looking elsewhere in the interests of his own safety. He put the distance at which he saw the bump as between one and one and a half metres.
The defendants were not separately represented. It was conceded by counsel appearing for them that there was a responsibility on the Territory for the road to ensure that repairs or works were carried out properly and safely. The duty of care in the Territory is established. However, counsel says that to succeed the plaintiff must show that it was either of the defendants who removed the barrier and mounds. There is no evidence bearing directly upon the question, and I could not infer that either of the defendants had removed any of them, although it is difficult to imagine who else would have an interest to do so. Furthermore, it is put on behalf of the defendants that there was a system in place whereby there were regular inspections of the site, including with reference to public safety matters, and neither of the defendants had not been shown to have breached its duty of care to the plaintiff.
Mr Sage, the principal behind the second defendant (“Sage”), which was carrying out the works under contract from the Territory, gave evidence of his extensive experience in roadworks generally. He had no particular recollection of that job. His evidence included describing the steps usually taken to block access to the various areas where work was taking place. As to the bicycle path, he had no special recollection, but was able to say that based upon usual practice, a barrier would have been erected to block access to the works site. I accept his evidence. Such a barrier had been erected. Mr Sage had no specific recollection of its being in place on any particular day, or of it having been removed. He acknowledged in his evidence that the company was responsible for safety on the site of the works. The duty of care of Sage is established. He said that the supervisor appointed by the Territory, Mr Makepeace, visited the site “to check that everything was going okay from the Territory’s point of view”. He said that Mr Makepeace visited the site regularly and that he would inform the contractor if he was not satisfied about public safety matters, such as sufficiency of barriers and incorrect signage.
There was no evidence that anyone from either defendant noticed, on the morning of the accident, or at any previous time, that the barrier was not in place and that the earth had been removed. There is no evidence as to when the mounds of dirt and barrier were removed, except the plaintiff says that they were there when he last rode along the path on his way to work a week before the incident. There is no evidence as to who removed the barrier or the dirt.
The evidence establishes that the Territory contracted with Mr Sage to carry out the works, including the new crossover at the point where the pre-existing bicycle path and Amaroo Road met, the barrier had been placed across the path and mounds of earth had further prohibited progress along it; during the week before the incident, the barrier and dirt were removed, but it is not known by whom or when that occurred; on the morning the plaintiff first rode his bicycle along the path after the barrier and earth had been removed, his bicycle struck the bump and caused him to fall onto the road and be injured. There is evidence, which I accept, that both defendants were conscious of the need to protect the safety of public from danger arising from the works, and that there was a system of periodical inspection in that regard.
There was no evidence that either defendant had inspected the area and was aware that the barrier and dirt had been removed. There is no evidence to suggest that either of the defendants had placed any barrier or warning sign in closer proximity to the bump, or adopted any other measure to protect users of the path pending permanent completion of the works.
The bicycle path was a place to which there was a public right of access. There was no argument that either the road or the path was not under the control of the Territory (see s 7 Control of Roads Act 1953 (NT)). In those circumstances the Territory is not permitted to escape any liability attaching to it because it contracted with Sage to carry out the work, that is, the Territory had a non-delegable duty, including responsibility for any negligence of Sage in the course of carrying out the work. Sage was in possession of the area where the works were being carried out and was carrying it out. Assuming a breach of their respective duties of care, I regard the defendants as joint tortfeasors. The cause of action against each of them is the same.
The plaintiff was lawfully riding his bicycle upon the path at a time when it could be foreseen that such activity would take place, given that the path was open to be used. The defendants were under a duty to warn members of the public using the path of the existence of the bump, or place a barrier around it, or otherwise protect the users of the path. None of those things were done. Reliance appears to have been placed upon the webbing barrier, some fifty metres or so away remaining in place, and that being so, there was a clear duty to ensure that it remained as a barrier until the path had been raised or other steps taken to protect cyclists from running into the bump. The nature of the webbing barrier was such that it was reasonable for steps to be taken to ensure that it was not removed by accident or design, or if removed, promptly replaced. Whatever system of supervision was in place to ensure that the barrier was retained failed.
In my opinion the risk of loss being occasioned by a bicyclist running into the bump was obvious and a reasonable man would have responded in the manner suggested, that is, ensuring that the barrier was retained at all times, or by taking other protective measures in proximity to the bump. The defendants were in breach of their duty and are jointly liable for the plaintiff’s loss.
Contributory negligence
The circumstances in which the plaintiff came to be injured have already been described. He did not see the bump, he was looking elsewhere. It is alleged by the defendants that he rode his bicycle along the path when it was closed for public use, and that he failed to take notice of warning barriers. For reasons given I reject those grounds. It is further alleged that he rode at a speed which was excessive in the circumstances, that he failed to stop, slow down, steer clear or dismount when a reasonably prudent person would have done so. These grounds appear to me to be predicated upon the plaintiff seeing the bump. There is no other basis to support the claims. There is nothing to suggest that had the bump not been there the plaintiff would have been cast over the handlebars of the bicycle whilst crossing from the path to the road.
In the words of s 16 of the Law Reform (Miscellaneous Provisions) Act 1956 (NT), did the plaintiff suffer damage partly as a result of his own fault? The plaintiff was riding along the path in circumstances where he knew that roadworks had been in progress at and near the point where the path met the road, but that the path was then clear, in that the barrier was gone and the dirt removed. The question is was he at fault in proceeding along the path to Amaroo Road taking no other care for his safety than to look to see if there was any traffic upon that road. Was he at fault in proceeding to ride his bicycle along the path upon the view that the path was open for that purpose and that there would not be a bump such as has been described. I think not. A reasonable man in the circumstances would be entitled to assume that the open path having previously been closed was then a safe place along which to ride a bicycle. He would be concerned as to the presence of traffic upon entering Amaroo Road and concentrate his attention upon the potential danger from that source. I do not find the plaintiff to be at fault to any degree.
Some of the submissions on behalf of the defendants appear to suggest that the plaintiff’s approach to the road was too fast, or that he should have stopped at the point where the path joined the road before proceeding to cross the road. But he was not injured as a result of any happening on the road, it was just such a happening against which he was guarding as he approached the road and struck the bump.
Limitations Act Application
The incident occurred on 23 April 1994. Within in a few days the plaintiff was making enquiries and complaining. He spoke to an officer at the Darwin City Council and was then referred to Mr Makepeace of the Transport and Works Department, an agency of the first defendant. Mr Makepeace told him that the works were under the control of the second defendant. Thus far there is no dispute, Mr Makepeace confirming in evidence that that was what he said to the plaintiff. The plaintiff’s evidence continued that he telephoned Mr Sage and was told by Mr Sage that the works were nothing to do with him, and that it was under the control of Transport and Works. The plaintiff assumed that what Mr Sage said was right. He wrote a letter to the department shortly afterwards indicating the circumstances of the accident and that he held it liable, but he received no reply. When cross-examined, he said that he foresaw no likelihood of dispute as between the Territory and Sage and that at that time there was no reason to disbelieve what Mr Makepeace had said or what Mr Sage had said or vise versa.
A writ was issued against the Territory on 16 September 1996 and a third party notice issued by it against Sage on 25 November 1996 claiming indemnity under a contract (the issues between the Territory and Sage were resolved prior to trial). The evidence of the plaintiff’s solicitor was that on 17 March 1997 he inspected documents which had been discovered to the plaintiff by the Territory and then asked for, and was supplied with, copies of some of the documents on 17 April. Having seen those documents comprising the contract between the Territory and Sage, particularly those referring specifically to the crossover, the solicitor came to the view that Sage may have been liable. On 18 April (a few days prior to the limitation period expiring) he wrote to the solicitors for Sage seeking their consent to Sage being joined as a defendant in the action commenced against the Territory. It was indicated that that consent would not be forthcoming. At the same time they wrote to the plaintiff giving advice based upon the documents that had been inspected. The plaintiff was at that time overseas, and returned to Australia and saw the documents on 29 April, (a few days after the limitation period expired). He subsequently spoke to his solicitor, gave instructions and a writ was issued on 20 May 1997 naming Sage as the defendant. It will be noted that the solicitors for Sage were put on notice of the plaintiff’s intention to pursue their client a few days prior to the expiry of the limitation period of three years and that the writ was issued approximately a month after the expiry of that period.
It is provided in s 44 of the Limitation Act 1981 (NT) that the Court may extend the time prescribed for instituting an action upon such terms as it thinks fit. Subsection (3) provides that the section does not empower a Court to extend a limitation period unless it is satisfied that:
“facts material to the plaintiff’s case were not ascertained by him until some time within 12 months before the expiration of the limitation period or occurring after the expiration of that period and that the action was instituted within 12 months after the ascertainment of those facts by the plaintiff … and that in all the circumstances of the case it is just to grant the extension of time”.
In my opinion the fact of the contract between the first and second defendants relating to the works, and in particular the documents concerning the crossover, were facts material to the plaintiff’s case. The documents themselves represented available evidence that could be called in support of the plaintiff’s case (see generally Sola Optical Australia Pty Ltd v Mills (1987) 163 CLR 628 especially at p 636). Between the time the plaintiff instigated his own enquiries shortly after the accident, and the time that his solicitor inspected the documents, the situation had not changed in that the plaintiff had been given competing views as to the involvement of Sage. Nothing further was done by way of investigating that question, but in Sola Optical the High Court was glad to adopt what was said by Bray CJ in this connection, in that a plaintiff may still be entitled to ask the Court to extend the time notwithstanding that:
“he has been supinely inactive and notwithstanding that the material facts might easily have been ascertained earlier and notwithstanding that their nature is not such as to be decisive of the success of the action … ”.
In my opinion it is not inimical to the success of an application under s 44 that a prospective plaintiff has competing indications as to the possible involvement of a prospective defendant. It is the date upon which the plaintiff “ascertained” the material facts which is decisive. In my view the plaintiff had not ascertained any material facts about Sage in the period shortly after the incident. The word “ascertained” means more than knowing that there is a dispute about the existence of a particular fact or a suspicion about it. The Concise Oxford Dictionary defines ascertained as “find out (for certain), to know” and in the Concise Macquarie Dictionary “to find out by trial, examination, or experiment, so as to know as certain; determine”. I find that that circumstance only arose when the plaintiff received the advice from his solicitor after he had inspected the documents. He commenced the action against Sage within 12 months thereafter.
The defendant, Sage, does not claim to have been prejudiced by the late commencement of the action. Indeed, even if Mr Sage did not recall the telephone call from the plaintiff shortly after the incident, he was aware that proceedings were on foot in relation to it when third party notice was given by the Territory to Sage in November 1996. I am satisfied that in all the circumstances of the case it is just to grant the extension of time to the date upon which the writ in which Sage was named as defendant was filed.
Injury
When the plaintiff landed on the roadway, he hit the right side of his head, his right shoulder and right knee. The only significant injury was that to the shoulder. None of the effects of the fall stopped him from proceeding work on the bicycle, but with his right arm across his stomach and steering with his left. On his arriving at his work place he collapsed, and a fellow employee telephoned Mrs Renner who took him to see Dr McDonald. From there he was referred for X-rays and it was ascertained that nothing was broken. The doctor prescribed pain killing medication. The plaintiff rested in bed for the remainder of Saturday and the following two days (Monday was a public holiday), but he remained unable to do anything with his right arm. He returned to work on the following Monday.
The plaintiff was treated by physiotherapy for some time after the accident and attended gymnasium courses to strengthen his shoulders. After the insurer ceased paying for those courses, the plaintiff continued at his own expense for a period of three months because, as he said, “I was determined to get it right”. After a time Dr McDonald referred him to a specialist in Melbourne, who arranged for X-rays and an ultrasound examination of the shoulder to be carried out. A report was made to Dr McDonald who then referred the plaintiff to Mr Baddeley, an orthopedic surgeon, in Darwin.

The plaintiff was first seen by Mr Baddeley, in December 1994. In his opinion, which I accept, the plaintiff sustained a supraspinatus injury for which, after unsuccessful conservative treatment by way of physiotherapy and cortisone injections, he underwent acromioplasty surgery on 6 February 1995. The surgeon’s reports indicated that when seen in March 1995 the plaintiff had full painless range of shoulder motion and that it was unlikely that he would have any long term shoulder problems, but may have some degree of loss of power of abduction in the long term. (Mr Baddeley also treated the plaintiff for pain in his right knee, but it transpires that the cause of that was unrelated to the accident).
In November 1999, shortly before the hearing Mr Baddeley saw the plaintiff again (he had seen him on a number of occasions in the meantime) for the purposes of a pre trial assessment. He reported that Mr Renner told him that gradually over the preceding two years he had developed increasing symptoms of weakness and discomfort when performing prolonged and repetitive tasks with the right shoulder at or above the horizontal position, and experienced discomfort when lying on his right side; his trade work required repetitive functions which aggravated his shoulder and he found that prolonged driving and prolonged cycling caused increased shoulder discomfort. On examination Mr Renner demonstrated full range of motion with full forward elevation, external rotation and internal and full abduction. Definite crepitus was noticed coming from the shoulder. Up to date x-rays demonstrated adaptive changes.
In Mr Baddeley’s opinion, the plaintiff was continuing to experience discomfort and the feeling of weakness was referable to the bicycle accident injury, but added that it was not possible to be certain that he would not have developed shoulder pain at some time in the future without the injury. The surgeon added that the plaintiff suffered from a permanent disability with regard to his shoulder, being pain and a feeling of weakness after repetitive or heavy lifting up to or beyond the horizontal position, and was of the opinion that it was unlikely that there would be significant improvement. Some “hands on work” related activity was so likely to cause problems and worsen problems that the surgeon would advise the plaintiff to avoid it. There was a possibility that the problem could worsen and there was a possibility that the plaintiff could develop degenerative changes in the superior rotator cuff with even a rotator cuff defect developing at some time in the future. He added that it was known that should this develop there was a risk of degenerative osteoarthritis.
Mr Baddeley was of the view that the plaintiff was fit to perform ten pin bowling and golfing activities, but that he would be advised to limit them to a level where he did not experience unacceptable increase in symptoms. Mr Baddeley did not believe that there was any indication of further surgery, but said that should the problem worsen it is possible that further surgery could become necessary.
Mr Baddeley affirmed his report at trial, confirming that prior to the surgery the plaintiff reported pain when performing functions with full elevation up to and beyond the horizontal position, and was having problems in every day life with those sorts of functions, including when playing golf and ten pin bowling. At trial he said that if the plaintiff was required to do any repetitive work with weights up to and beyond the horizontal position, he would be likely to experience trouble and any repetitive activity, such as golf or a lot of ten pin bowling, was likely to irritate the shoulder and that irritation might last for a few days. He explained how it was that a person with Mr Renner’s problem would seem to frequently experience trouble with prolonged driving or cycling. Given a description of the nature of the plaintiff’s work prior to surgery, he said he would be surprised if he would be able to do that for any significant period of time and would not be able to undertake that type of activity on a repetitive basis at the time of trial:
“… if he is required to use his arms at around the horizontal position in what’s called the painful arc from about 20 to 30 degrees below horizontal to 20 to 30 degrees above, he’s looking for trouble and possibly if he continued that sort of work then he would be looking at worsening his overall condition in a permanent fashion”.
In cross-examination Mr Baddeley acknowledged that X-rays taken prior to surgery demonstrated that the shoulder was showing signs of wear and tear and that golf was one of the sports which it was accepted caused that sort of problem, and ten pin bowling may cause some discomfort as a result of the “follow through”. The adaptive changes to which he had earlier referred predated the accident. Turning to the problems which the plaintiff had experienced in his knee, he thought it more likely than not that he would need a knee joint replacement at some stage during the remainder of his life. The likelihood was that he would experience limitation in regard to walking long distances, that he probably would not choose to walk or run for physical exercise, that he would probably be able to play nine holes of golf without any problems, but would need to take a cart if he wished to play 18 holes. He would also have some problems squatting, the knee would be more vulnerable to osteoarthritis than the shoulder, primary osteoarthritis in a shoulder is really quite rare.
The defendants called Mr Awerbuch, a consultant rheumatologist and director of a pain management unit. He had seen the plaintiff only once, in July 1998. He was of the opinion that when he saw the plaintiff he would have had no work incapacity, and in cross-examination confirmed that in his opinion Mr Renner was capable of heavy lifting and repetitive physical work. He acknowledged that he was not aware of the work that Mr Renner undertook prior to the accident. It does not appear that his mind was directed at any time to the particular nature of that work, and to that extent his opinion must be treated with caution. He agreed that Mr Baddeley’s treatment of the plaintiff was appropriate.
In his report and evidence at trial, Mr Awerbuch drew attention to the anger which the plaintiff had expressed to him in regard to the accident and its outcome. He was of the opinion that such a reaction was justifiable. In his report Mr Awerbuch had said that it was recognised that claimants who blame others for their injured state tend to be passive towards their rehabilitation and tend to view the recovery as being the responsibility of someone else. He thought that that might account for why the plaintiff was still complaining of problems when objectively, at least, he had exhibited full abduction and flexion and lacked only a few degrees of internal rotation, had no wasting of the muscles about the shoulder and no objectively measurable wasting of any muscle groups in the right arm. “That might be the reason why he was still complaining of pain. His unrequited anger, if you like”.
When it was put to him that the plaintiff had taken a number of steps towards rehabilitation, suggesting that he was not passive in that regard, Mr Awerbuch said that passivity was as much emotional as physical, “It is a mindset”. There was more, but it seems to me that it was being suggested that Mr Renner had not mitigated his loss by overcoming his emotional and/or physical passivity, as it was described. There was no evidence as to what he could have done in that regard had he been so afflicted. In answer to a question from the Court, Mr Awerbuch agreed that in his experience the anger of which he had spoken was often the result of injury arising from an accident in which the person who is injured blames others. It was not a psychological impact, but it was certainly an emotional response to an event in which a person perceives himself or herself to have been the innocent victim. I have no doubt that Mr Renner was entitled to regard himself as the innocent victim, and if he was passive in the sense described by Mr Awerbuch, then that was caused by the accident much the same as the physical injury he sustained was.
I bear in mind that Mr Baddeley had seen the plaintiff on a number of occasions in relation to his shoulder and was the treating surgeon. It has not been shown that the history given by the plaintiff either to Mr Baddeley or Mr Awerbuch was not accurate. I accept the plaintiff’s evidence as to the pain and disability he said he suffered arising from the shoulder injury.
In so far as there is any real disagreement between the two doctors, I prefer the opinion of Mr Baddeley.
Loss of Earning Capacity
The question is, was the plaintiff prevented by his injuries from earning money which he would have earned if he had not been injured?
He was born on 26 May 1946, completed fourth year secondary education, and was immediately apprenticed to the offset printing trade. He completed his apprenticeship in 1967 and undertook a variety of jobs in that trade with printers in Papua New Guinea and Melbourne. By 1987 he had risen to the position of a shift supervisor and trainer of apprentices, he was working various printing machines, coordinating workflow and engaged in quality control. A more physical side of the job entailed handling heavy rolls of paper and packing boxes with printed material. He moved into a technical sales support position for a particular type of printing equipment sold in Australia and Asian countries.
During that period he met Mr Gary Coleman of Coleman Printing of Darwin, his employer at the time of the accident. In August 1992, he was appointed as a production manager at Coleman’s involving clerical jobs, workflow planning and supervision. He continued to be required to work “hands on” at various pieces of machinery in the printing establishment if another employee was absent or needed assistance. He described in detail the hands on work, including, for example, positioning folding plates weighing up to about 15 kilograms into machines, feeding stock into hoppers, operating the guillotine, including lifting stacks of paper weighing 8 to 12 kilograms, operating a die cutting machine, which involved extending his arms full length in front of his body at about shoulder height, rolling reams of paper weighing up to 150 kilograms and positioning them for lifting by mechanical means.
The general working hours were from 6.30 or 7 o’clock in the morning until 7 or 7.30 at night, Monday to Friday and for six or seven hours on Saturdays, and sometimes longer. Occasionally there were urgent jobs to be done which required working non stop for hours extending beyond those. He was paid a fixed salary and had no entitlement to overtime pay.
He went back to work a week after the accident and had a discussion with Mr Kazamias as to the jobs he could do. He said that basically he just sat in the office doing job bags and just walked around the factory because he was unable to do hands on work. He continued in those light duties for a couple of weeks and then tried to resume what he regarded as being his normal functions, but was very limited. That continued for about two weeks. At the time they were very busy and he felt obliged to do as much hands on work as he could do, he experienced a lot of pain, but had to work through it because the work had to be done. The pain was in his right arm and he could not lift it any higher than about nine inches below shoulder height.
He resigned his position on 26 or 27 May. He said it was out of sheer frustration at not being able to do the job:
“Mr Coleman had brought me to Darwin on a good wage and I couldn’t do the work for him that he wanted me to do and it was frustration and anger at not being able to do what I had to do. … I’ve worked – my last night at Coleman’s I worked till 6 o’clock in the morning getting CLP election stuff cut and packed and I then rang Gary up and I said: “Look I just cant do this any more”.
When asked what he meant by that, he said:
“For physical reasons. I mean, it beat me psychologically as well because just the frustration of, you know, never having had any problems doing my job. I mean, I’ve been, you know, a blue collar worker all my life and I’m used to working, and just the sheer frustration and everything of it it just got to me and I just rang up Gary at home and said “Mate, I cant do this” … I’m wasting your money and my time. … I’ll come and see you later in the day”.
Mr Renner agreed that working at Coleman’s was very stressful, involving hard work, deadlines to be met and long hours to be worked. During cross-examination he said that Mr Kazamias expressed dissatisfaction at the way the injury had affected his work performance, but he did not accept there was any validity in those remarks because he had suffered the injury. No one else, however, spoke to him about it, and in particular Mr Coleman did not.
Mr Kazamias, who gave evidence on behalf of the defendants, was the General Manager at Coleman’s when the plaintiff worked there and confirmed the work generally undertaken by a production manager, and the long working hours put in by the plaintiff. He learnt of the accident and recalled Mr Renner’s return to work thereafter. He confirmed that Mr Renner complained to him on a couple of occasion of his inability to do the job, but said that he told Mr Renner just to do what he could and they would take it from day to day. Nowhere in his evidence did he suggest that he thought Mr Renner was then capable of doing the job. He apparently accepted what the plaintiff had said and he was in a position to have observed him. He said that Mr Renner spoke to him before he resigned, saying that he could not go on, he was employed “to achieve a position and I don’t feel comfortable when I come to work when I cannot achieve the position anymore”. Mr Kazamias responded by encouraging the plaintiff to stay. He was not cross-examined.
The evidence of the plaintiff as to what he told Mr Coleman about his reasons for leaving and the evidence of Mr Katazamias as to what the plaintiff told him as to that matter, were consistent. Mr Coleman did not give evidence and there was no evidence pointing to any conflict between him and the plaintiff as was suggested in cross-examination. Mr Renner denied that there had been any.
Mr Renner recalls going to see someone at Coleman’s Workers Compensation Insurers (TIO) at about the time of resignation, but no other detail. The defendants called Mrs Thorpe, a claims officer at TIO, who identified a document in her handwriting. She had no recollection of it. She was able to say that it was her practice to record important information conveyed to her by claimants. She conceded in cross-examination that in all fairness she was unable to say whether the comments were something said to her by the plaintiff, or whether it was something she had concluded from another source. She was unable to affirm the truth of the comments of the note. It read:
“Mr Renner came in. He resigned from Coleman’s with effect from today. (Not due to injury he is having conflict with Gary Coleman). Wanted to know what he should do with his medical expenses? Told him to bring them into TIO. He is going on leave next week, but told me he has already started to look elsewhere for work. Also demonstrated how he had full movement in his (R) shoulder.”
There was no objection to the tender of the document. The witness did not tell the Court of the occurrence of the facts surrounding the document, the document was left to do that. Given the dubious source of the contents of the note, and in the absence of any evidence to support the suggestion in the note that the plaintiff had resigned because of a dispute with Mr Coleman, I do not consider that any weight should be given to the contents of the note.
I find that the plaintiff resigned from his employment at Coleman’s in the circumstances and for the reasons he gave in his evidence. Whatever be the reason, however, it is not much to the point. What needs to be assessed is his loss of earning capacity.
The nature of the “hands on work” normally done by the plaintiff has been described. The conditions under which the plaintiff was trying to carry out the duties prevailing at the time of his resignation were not uncommon. There were other occasions upon which he was required to undertake work urgently over extended hours and during which he assisted in a “hands on” way as required. There is no reason to think that such an occurrence would not reoccur. It seems to be part of the trade. I accept that after the accident he could not do in his injured state what his job required of him, and that that was because of the injury to his right shoulder. The later diagnosis and treatment at the hands of Mr Baddeley provided confirmation of his condition and abilities as at the time he resigned.
I am satisfied that if the plaintiff suffered any loss of earning capacity, it was caused by the injury sustained in the accident and that it is continuing.

Quantification of Loss of Earning Capacity

Notwithstanding the disabilities caused by the shoulder injury, the plaintiff retains considerable skills as an offset printer and manager and supervisor in that field. He lost the capacity to carry out some of the “hands on” tasks, but remains capable of supervision and advising others, managing production runs, advising clients and training apprentices. He may not be attracted to the “clerical” side of the business, but he is capable of doing it. There is no evidence as to the income which could be earned by a person of the plaintiff’s present qualifications and abilities apart from that which came from his pre and post accident work history.
As a result of Mr Coleman’s efforts the plaintiff obtained employment at Keetley’s, a firm running a private bus transport business in and around Darwin. He commenced about three weeks after leaving Coleman’s. The job required the plaintiff to run the office at weekends, prepare rosters for drivers, ensuring that drivers did as they were required to do. He continued in that job for some weeks. He commenced driving to pick up passengers from the airport on occasion, but had difficulty handling baggage because of shoulder pain.
He remained in that job until early August 1994, when he took up part time employment with the Government Printing Office as a printing consultant, looking after clients needs. For a period of about two and a half months thereafter he remained working at Keetley’s at weekends and then obtained full time employment with the Government Printer doing clerical and sales work at a Public Service level AO4.
In about April 1996 he successfully applied for the position of a customer service manager at the AO6 level. He said that he had reservations about his ability to do that job, but was encouraged to apply for it by the Government Printer. According to the plaintiff, his reservations proved to be justified. They concerned his ability to deal with and prepare reports, including financial reports required by departmental supervisors. He said he felt uncomfortable as he had had no previous experience with that type of work.
At his request he returned to the AO4 position in 1997. There was no evidence of dissatisfaction on the part of his superiors with his performance. He voluntarily surrendered the AO6 position. In cross-examination the plaintiff said that the AO6 position required that he work longer than normal Public Service hours for which he was not paid, although he had an occasional day off in lieu. He found the job stressful and sought advice from Dr McDonald, who advised him not to let the stress get him down.
I am satisfied with the plaintiff’s evidence that the job at the AO6 level was not within his earning capacity, the work required to be undertaken was not of the type for which he had had either training or experience. It is not suggested the plaintiff failed to mitigate his loss by leaving the AO6 position. However, I reject what appears to be a submission made on behalf of the defendants that in voluntarily giving up the AO6 position, the plaintiff was indicating a desire to work lesser hours and revert to an easier job, and furthermore that that sheds light upon his decision to voluntarily leave Coleman’s. That is, the plaintiff has made the injury sustained in the accident into a convenient excuse for reducing his work commitments and earnings upon the basis that he could recover the loss in these proceedings. In my opinion, the submissions overlook the fact that there was no evidence that the plaintiff had any expectation of obtaining any job at all when he left Coleman’s, let alone that which he later obtained at the Government Printers. In any event I accept the plaintiff’s evidence and no inference can be safely drawn to support the submissions of the defendants.

Subject to contingencies, the parties have agreed that loss of earning capacity is to be taken into account:
for the past at $22,547.85
for the future at $28,791.84.
Contingencies
In further assessing the plaintiff’s earning capacity, what has to be evaluated is the prospect that the injury to his knee or other events would have adversely effected his capacity to earn in the past or could do so for the future. In my opinion, there is nothing in the evidence to suggest that the knee problem would have diminished his earning capacity had he remained at Colemans thus far. As to the future, it is true that the condition of the knee could deteriorate significantly, but there is nothing to suggest that with proper treatment the plaintiff’s ability to continue the job in which he was engaged at the time of the accident would be unduly hampered. The bodily stresses of that employment were in the arms and shoulders. The plaintiff had not complained that his knee gave him any trouble at work. There was no evidence to the effect that should the plaintiff’s knee have incapacitated him for his pre accident earning capacity, he would or might not have earnt as much in another job in the trade not dependent upon his having a fully functional right knee.
There was nothing in the plaintiff’s medical history or pointing to any other idiosyncrasies bearing upon this issue. There was no attempt to demonstrate that for a man of his age and abilities he could expect advancement to a position in which he might receive higher earnings. There appears to have been nothing hazardous in his job or lifestyle exposing him to increased risk of injury or death. I see no reason to allow for contingencies, adverse or beneficial.
Loss of Amenities of Life - Past
Reference has been made to some of the activities which caused the shoulder pain. Prior to the accident he was an accomplished tenpin bowler, having won a Victorian A grade title, and regularly playing in tournaments including marathons. On arrival in Darwin, he played at least twice a week and in any tournaments. In his words he loved tenpin bowling which created a lot of his social life. He was chosen to play in the Territory Over 45’s team in National competition.
As to golf, the plaintiff played on Sundays to a handicap of around 23. He introduced his son to the game and they often played together, which the plaintiff said provided bonding opportunities. He was unable to engage in either sport immediately after his shoulder was injured because of the restrictions upon movement of the shoulder which resulted in pain. He returned to those activities towards the end of 1995 after surgery.
At trial he was bowling twice a week, but the range of movement diminished as the game progressed. His average score has been gradually coming down. Similarly with golf, his shoulder “locking” as the game progressed causing deterioration in his standard of play. He gave examples of loss of social contact at golf because other players apparently preferred not to play with a person of his low standard. His handicap has gone out to the maximum available.
Driving a motor car for any period is beyond the plaintiff because of the pain induced in his shoulder and riding a bicycle causes difficulty after 30 to 45 minutes. The evidence of Mr Baddeley supports the plaintiff in these respects since both driving a motor car and riding a bicycle places pressure on the shoulders.

Pain and Suffering - Past

He described the incident as being “frightening” to the extent that he does not now ride the bicycle he was riding at the time of the accident. There was immediate pain and discomfort upon impact with the roadway, but it is the shoulder injury which has caused continuing problems. He underwent surgery and was in hospital for two or three days. When he gave his evidence, the plaintiff said that he had an almost constant ache in the shoulder although he tried to do things which would not aggravate it. If it is aggravated he takes medication for relief.
Inactivity because of the immobility brought about by the pain in his shoulder caused the plaintiff to put on significant weight, but he has now been able to lose it.
In order to deal with problems arising from bowling and playing golf, he takes Naprosin beforehand.
Instead of being able to keep his garden hedges trimmed with an electrically powered trimmer which used to take about an hour, he is now unable to use that machine because of the weight combined with the height at which it must be operated. Trimming the hedges is now done with a mechanical trimmer taking three or four hours over a period of days in periods of 30 to 45 minutes each. At the conclusion of such periods, his shoulder becomes tight and too sore to continue.
There have been occasions, both at work and at home, when the shoulder gives him trouble because of the activities in which he has tried to involve himself. The pain restricts the use of his right arm and the shoulder itself. He tries to sleep on his left side and is awakened if he rolls over onto the right hand side. He has learnt how to place his arm so as to avoid being hurt, but said he had not had a good night’s sleep in a long time.
Loss of Amenities of Life and Pain and Suffering in Future
The majority of the compensation for pain and suffering must be allocated to the past, notwithstanding the plaintiff’s normal life expectancy. The ongoing effects of the injury are able to be largely ameliorated by medication. There is, however, a continuing general discomfort and occasional unexpected painful incident.
The evidence is equivocal as to whether the effect of the shoulder injury will ultimately improve or deteriorate, and it is not possible to come to an assessment based on the balance of probabilities. The plaintiff’s major losses lie in his diminishing capacity to engage in ten pin bowling at a high level and to play golf as well as before. I take into account that it would be expected that standards would gradually diminish with the onset of deterioration in the normal aging process and that his knee is also likely to effect his abilities. The prospect of the plaintiff mitigating his loss by taking up other recreational pursuits not effected by his shoulder problems was not explored.
Allowance for General Damages
Allow for loss of amenities for the past  $22,000
For pain and suffering in the past  $12,000
For future loss of amenities and pain and suffering       $17,000
Out of Pocket Expenses – Agreed
Past medical expenses $7,962.20
Future medical expenses $4,725.00
The total of the various heads of damage amounts to $115,026.89. Having reviewed that figure I consider it to be a reasonable award and there will be judgment accordingly.
Interest
The parties indicate that they consider that the question of interest is most unlikely to be controversial as between themselves. I will hear them further in that regard if required.
I have indicated in the course of these reasons that I accept the plaintiff’s evidence. I do that because I have no reason to doubt his integrity as a witness arising from the way in which he gave his evidence or his demeanor in the witness box. Furthermore, there was no evidence which seriously called his credibility into question. I consider the plaintiff to have been a man who was proud of his skills, prepared to work long hours and engage in difficult tasks in the interests of his employer and to satisfy customer demands. I do not find that he embellished the problems which arose as a consequence of the accident in the history given to the doctors or in his evidence.
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