Sander v Remm Construction, Bauer & Debnam No. DCCIV-92-2017
[2001] SADC 18
•26 February 2001
SANDER V REMM & ORS
[2001] SADC 18
Judge C R Lee
Civil
On 12 August 1989, the plaintiff sustained an injury in the course of work that he was performing at a site, known as the Remm site and situated between Rundle Mall and North Terrace Adelaide, of a building construction project. He was working in the vicinity of a rig, which was drilling holes for concrete piles during the excavation phase of the project, when the auger of the rig contacted and partially amputated the fingers of his right hand.
The plaintiff claims that his injury was the consequence of the breach of duty of one or more of the defendants in relation to the system of work, the guarding of the auger and the conduct of the operator of the rig. The first defendant (Remm) was the project manager at the site and owner of the rig, the second defendant (Bauer) was the subcontractor of Remm and operator of the rig, and the third defendant (Debnam) was the subcontractor of Bauer and supervisor of the drilling operation at the time. As against the second and third defendants, the plaintiff seeks an extension of time for the instituting of the action pursuant to s48(1) of the Limitation of Actions Act 1936. The defendants deny liability, allege contributory negligence, and claim contribution amongst themselves.
All the persons who gave evidence, with respect to both liability and damages, were satisfactory witnesses, and there is no issue of credit that I need to decide.
A description of the rig and the work
The rig was a mobile hydraulic rig called a BG11. It comprised in part a mast with a cable over a pulley connected to a shaft, which in turn was connected to an auger. The shaft, which is sometimes called a drill stem or Kelly bar, ran through a gear box attached to the mast, and provided rotational force to the auger. The mast and a cabin for the operator were situated on a turntable over the tracks of the rig.
I have said that holes were being drilled for concrete piles. Primary piles of a diameter of 600 millimetres were interlocked with secondary piles of a diameter of 800 millimetres to form a retaining wall, sometimes called a secant wall, around the perimeter of the site. On each shift a BG7 rig was used for the smaller holes and two BG11 rigs were used for the larger holes. Both types of rig were manufactured by Bauer.
The drilling of each hole by a BG11 rig required the following steps. The position of the hole was marked on a concrete template on the ground. The auger drilled a hole of about two metres. The rig was used to manoeuvre the end of a length of casing, sometimes called a caisson, into the hole. The auger was inserted into the end of the casing and lowered through the casing to the earth to be drilled. From time to time as the hole increased in depth, the casing was connected to the rig and wound further into the ground. As and when the top of the casing reached about chest height, another length of casing was attached by means of a bung. Approximately three lengths of casing, each a number of metres in length, were used for each hole. On frequent occasions as the drilling proceeded, the auger was withdrawn from the casing so that the spoil could be removed. This was done by the operator swivelling the auger away from the casing and then by stopping and starting the rotation of the auger in short bursts. When the auger was being withdrawn from the casing for this purpose, some of the spoil would fall down alongside the casing. As the spoil began to pile up around the casing, it would be cleared away with a shovel to prevent it falling into the hole. Once a hole had reached its required depth, sometimes as much as 17 metres, concrete was poured into the casing, and the casing was removed leaving the pile in place. Each hole took about an hour and a half to drill.
The drilling operation that I have just described was performed by a crew of three, namely the operator of the rig who sat in the cabin, a rigger who connected and disconnected equipment to and from the shaft and generally assisted the operator, and a labourer who sprayed water onto the casing, shovelled spoil away from the casing and generally assisted the rigger. The site was very noisy, and verbal communications between members of the crew would have been difficult.
The background and circumstances of the accident
At the time of the accident, the plaintiff was on a working holiday around Australia with a friend. They decided to stop and find work in Adelaide. The plaintiff made contact with a company called Grosvenor Concrete on the advice of his friend. Grosvenor Concrete seemed to be run by three brothers. He was interviewed by one of the brothers, and attended a slide presentation at which work at the Remm site was explained. He and others were then told that they had been hired.
Before the plaintiff commenced work at the site, he was taken in a group of about ten people to a viewing platform and the work was further explained by one of the brothers. He also attended an induction meeting, conducted by Remm through a safety supervisor, at which he received standard instructions such as the location of the first aid room and fire exits and the like, and at which he was given a hard hat, ear muffs and wet weather gear.
When the plaintiff reported for work, he was directed by a German person to work with a BG 11 rig, and he worked as a labourer on that and other rigs until the accident. He got to know the German person as John, and saw him every day. It is now common ground that that person was John Eckert, and that he was a representative of Debnam.
The accident occurred about four weeks after the plaintiff commenced work at the site. On the day before the accident, he had seen a person speak to the rigger whose name was Max. Max then spoke to the plaintiff. The person who spoke to Max was a plump man with a beard and a black suit. This same person had addressed a meeting about two weeks before. The meeting was attended by everybody concerned with operating the rigs including the operators, riggers and labourers. The topic of discussion at the meeting was payment of an allowance of $50 per week in return for the workers continuing to work in wet weather. The person who spoke to Max meets the description given by most of the witnesses of the senior Bauer executive on the site, Bob Kevorkian. Notwithstanding the plaintiff’s failure to recognise Kevorkian in a photograph, I am satisfied that that is who the person was.
The words that Max spoke to the plaintiff were to the effect that he had been told that the plaintiff should work harder to occupy his time. The plaintiff said he responded by increasing the amount of shovelling that he did to clear spoil away from the casing.
The accident occurred shortly before the end of a day shift. As usual the plaintiff was working as the labourer in a crew of three. John Eckert was in the general vicinity giving directions. The operator had removed the auger from the casing and the spoil had been shaken free in the manner already described. The spoil was sticky and wet, and of a clay-type consistency. As the auger was returning to the top of the casing, the plaintiff was removing spoil with a shovel. He was kicking the top of the shovel with his right foot when his foot slipped to the front of the shovel. Instinctively he grabbed the top of the casing with his right hand, and his fingers became caught between the auger and the casing.
Was the system of work unsafe?
It will be apparent from the narrative this far that the operation of the BG11 rig brought the auger and the labourer into close proximity from time to time. Initially the auger would enter the casing at a point higher than the labourer could reach. But as the casing was wound into the ground, the top of the casing would eventually arrive at about chest height, and a number of withdrawals of the auger would occur when the top of the casing was within reach of the labourer. The system of work did not require the labourer to stand away from the casing during that critical period. Eckert’s instructions to labourers were to stay near the casing, to keep the spoil away from the casing and the edge of the hole, to watch out for the auger and the back of the machine, and to stay clear of the swing area. As to whether the labourers should stop shovelling during the critical period, Eckert said he left it to their discretion.
In my view, the risk of injury to labourers was foreseeable, and the means of avoiding the risk easily achieved, by those who were in control of the system of work. As a first step, labourers, including the plaintiff, should have been instructed to stand away from the casing during the critical period. Next, as an extra precaution against complacency or inadvertence, one or other of two further steps should have been taken. The operator should have been instructed to ensure that the labourer was in his view and standing away from the casing during the critical period. Or the rigger should have been instructed to ensure that the labourer was standing clear and then to give a visual signal of the fact to the operator.
Should the auger have been guarded?
In his evidence, the plaintiff said that a guard could have been attached to the casing during the critical period. He described the kind of mesh wrap-around guard that he had in mind. Although the plaintiff was cross-examined at some length by counsel for Remm, none of the defendants contradicted his evidence about the guard, and so I conclude that a guard would have been a practical and effective alternative.
Did the defendants have any and what duty with respect to the system of work?
Remm
As the project manager at the site, Remm engaged Bauer as a subcontractor to perform drilling work for the retaining wall.
The subcontract between Remm and Bauer provided by clause 6 of annexed special conditions that Bauer should produce to Remm evidence that it had complied with the Occupational Health and Safety Act and that Remm should establish a composite work group on site to be responsible to the safety supervisor for the installation and maintenance of safety barriers and all other safety requirements. (Under regulation 213(1) of the Occupational Health, Safety and Welfare (Construction Safety) Regulations 1987 (“the Regulations”), an employer of more than 20 employees must appoint one or more safety supervisors within 24 hours after the commencement of the work. Under regulation 213(4), it is the responsibility of a safety supervisor to promote the safe performance of work on the site).
The subcontract between Remm and Bauer incorporated a separate agreement, called the “Site Industrial Agreement”, between Remm and various unions acting on behalf of members at the site. It is safe to assume that the plaintiff was a member of the Builders Labourers Federation at the time. Clause 2 of the “Safety Provisions” of the agreement provides:-
“2..... The company and the union/s concerned will comply with the following practice relating to safety:
......... a. Neither the company nor any other party to this agreement shall dismiss a safety complaint without referring it to the Safety Supervisors or Workers’ Safety Representative/s;
......... b. Where an employee becomes aware of an unsafe situation that employee shall immediately notify the Foreman or the Workers’ Safety Representative/s;
c. Upon such notification, the foreman shall immediately rectify the unsafe situation or notify the Safety Supervisor, who shall take immediate action to have the situation rectified; and
d. Should any delay occur in the restoration of safety, the site manager shall arrange for the immediate transfer of employees who may be at risk in that area, to other areas on site.
In the event of the Safety Supervisor being of the opinion that no remedial action is called for and the Workers Safety Representative/s disagrees with that opinion, the Safety Supervisor shall immediately notify the Site Safety Committee and request the appropriate State Government Safety Inspector to make an inspection of the matter at issue, and, if necessary, make a recommendation on it. Both the management and the union/s concerned will abide by that recommendation. Except in the area under consideration, there shall be no stoppage of work while the foregoing procedures are being followed.”
Clause 4 of the Safety Provisions of the Site Industrial Agreement provides for a safety committee to include employee and contractor representatives, a safety officer and safety supervisors. Clause 5 requires the committee to meet weekly or as required. Clauses 6 to 10 provide for, amongst other things, the preparation and discussion of an agenda containing the results of a site inspection on the day preceding each meeting.
Running alongside the contractual responsibilities of Remm as the project manager were the common law responsibilities of Remm as the entrepreneur. In Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 at 31, Mason J said:-
“Although the obligation to provide a safe system of work has been regarded as one attaching to an employer, there is no reason why it should be so confined. If an entrepreneur engages independent contractors to do work which might as readily be done by employees in circumstances where there is a risk to them of injury arising from the nature of the work and where there is a need for him to give directions as to when and where the work is to be done and to co-ordinate the various activities, he has an obligation to prescribe a safe system of work. The fact that they are not employees, or that he does not regain a right to control them in the manner in which they carry out their work, should not affect the existence of an obligation to prescribe a safe system.”
Apart from its contractual and common law responsibilities as the project manager and entrepreneur, Remm had statutory responsibilities as an “employer”.
Section 4(2) of the Occupational Health, Safety and Welfare Act 1986 (“the Act”) provides:-
“For the purposes of this Act, where a person (“the contractor”) is engaged to perform work for another person (“the principal”) in the course of a trade or business carried on by the principal, the contractor, and any person employed or engaged by the contractor to carry out or to assist in carrying out the work, shall be deemed to be employed by the principal but the principal’s duties under this Act in relation to them extend only to matters over which the principal has control or would have control but for some agreement to the contrary between the principal and the contractor.”
The duties of employers are to be found in s19 of the Act. Subsection (1) reads:
“An employer shall, in respect of each employee employed or engaged by the employer, ensure so far as is reasonably practicable that the employee is, while at work, safe from injury and risks to health and, in particular —
(a) shall provide and maintain so far as is reasonable practicable —
(i) a safe working environment;
(ii) safe systems of work;
(iii) plant and substances in a safe condition; and
(b) shall provide adequate facilities of a prescribed kind for the welfare of employees at any workplace that is under the control and management of the employer; and
(c) shall provide such information, instruction, training and supervision as are reasonably necessary to ensure that each employee is safe from injury and risks to health.”
These provisions mean, in the present context, that the plaintiff, being a person employed or engaged by Bauer to assist in carrying out the drilling work, is deemed to have been employed by Remm, but Remm’s duty to the plaintiff to provide a safe system of work extended only to that part of the system over which Remm had control or would have had control but for some agreement to the contrary.
Part 4 of the Act is headed “Health and Safety Representatives and Committees”. Section 31 provides that an employer must establish one or more health and safety committees within two months of a request that it do so, and section 33(1)(a) provides that one of the functions of the committee is “to facilitate co-operation between an employer and the employees of the employer in initiating, developing, carrying out and monitoring measures designed to ensure the health, safety and welfare at work of the employees ...”
Apart from responsibilities that were personal to Remm, Remm had a vicarious responsibility as well. It is already apparent that the Safety Provisions of the Site Industrial Agreement combine with Part 4 of the Act and regulation 213 of the Regulations in seeking to achieve safe working conditions through the mechanism of safety supervisors and a composite safety committee. It is also apparent that Remm was responsible for appointing safety supervisors and establishing safety committees. As the employer of safety supervisors, Remm was vicariously responsible for their conduct.
Bauer
Bauer was the employer of the plaintiff at common law. This is because, although hired to Bauer by Grosvenor Concrete, the plaintiff was under the control of Bauer with respect to where and how he was to work. There is no evidence of any other indicia of the relationship between Bauer and the plaintiff which would compel a contrary conclusion.
As the employer, Bauer’s common law duty was to provide a safe system of work for the plaintiff. In O’Connor v Commissioner for Government Transport (1954) 100 CLR 225 at 229, the duty was formulated in this way:-
“The defendant as employer was of course under a duty, by his servants and agents, to take reasonable care for the safety of the deceased by providing proper and adequate means of carrying out his work without unnecessary risk, by warning him of unusual or unexpected risks, and by instructing him in the performance of his work where instructions might reasonably be thought to be required to secure him from danger of injury.”
As the employer, Bauer also had a duty under section 19(1) of the Act to provide a safe system of work for the plaintiff.
Bauer’s duty of care to the plaintiff was personal to Bauer, and could not have been avoided by delegation to another: Kondis v State Transport (1984) 154 CLR 672 and Stevens v Brodribb (1986) 160 CLR 16.
As the employer at common law of the operator of the rig, Bauer was vicariously responsible to the plaintiff for any casual act of negligence of the operator.
Debnam
Debnam was engaged by Bauer to provide a BG7 rig with two operators, ancillary equipment, and “J Eckert’s services”. The only written record of the engagement is a letter which was faxed by Debnam to Bauer on 2 June 1989. It reads:-
“Bauer Adelaide
Attention B Kevorkian/N Schneider
Fax No. 08 231 6723
MYER PROJECT ADELAIDE
HIRE OF EQUIPMENT & PERSONNEL
Further to our recent discussions we detail below our charges for:-
a) B.G.7. drill rig with 15m kelly.
b) 9m of casing.
c) Augers, buckets etc
d) Personnel
e) Based on 6 day week with two shifts.
MOBILISATION $25,000.00
Hire rate for equipment detailed above plus two operators plus J Eckert’s services $17,000.00/week
Bauer to supply:-i) Accommodation (no meals).
ii) Fuels, oils and greases.
iii) Drilling consumables and repairs to augers etc as necessary.”
The two then principals of Debnam, Richard Debnam and John Eckert, both gave evidence. Eckert explained that the BG7 rig, a smaller and less powerful rig than the BG11s, was provided with two operators, one for day shift and the other for night shift. Three rigs did the drilling on each of the shifts, namely two BG11s operated by Bauer employees and one BG7 operated by a Debnam employee. Eckert’s role was to coordinate and supervise the operation of the three rigs and their crews on one of the shifts, having received instructions from Bauer at the beginning of the shift about where to drill and what was expected. Eckert’s equivalent on the other shift was a Bauer employee, Conrad Graff. Eckert started on night shift, but by the time of the accident had moved with his crews to day shift.
As the supervisor of the operation of the rig, Eckert’s duty was to provide a safe system of work for the plaintiff. Debnam was the employer of Eckert at common law, and therefore vicariously responsible for any failure on Eckert’s part to provide a safe system of work for the plaintiff. Eckert was not an employee of Bauer, because Bauer did not exercise, or reserve the right to exercise, any control over Eckert with respect to the manner of the performance of his duties. There is no evidence of any other indicia of the relationship which would compel a contrary conclusion. As appears from the abovementioned letter of 2 June 1989, the essence of the contract between Bauer and Debnam was the hire of equipment and the supply of skilled labour for a composite weekly fee. No vicarious responsibility for Eckert’s conduct can attach to Bauer. As I have explained, Bauer’s duty to the plaintiff rests on a different footing.
Did the defendants have any and what duty with respect to the guarding of the auger?
Remm
I infer from the agreement between Remm and Bauer at page 12 of exhibit P2 that Remm purchased the BG11 rig in question from Bauer before the commencement of the drilling work and undertook to sell it back to Bauer in October 1991 upon payment by Bauer of a specified sum. Regulations 159 and 224 of the Regulations provide:-
“159. All dangerous parts of power driven equipment used on construction work must be securely safeguarded and the owner of the equipment must cause those safeguards to be constantly maintained in an efficient state whenever the parts required to be safeguarded are in motion.”
“224.(1) Any person who contravenes or fails to observe a provision or requirement of these regulations is liable to a Division 6 fine.
(2) Without limiting the generality of subregulation (1), if any explosive powered tool, gear, hoisting appliance, power-driven equipment, scaffolding, ladder, shoring, electrical equipment, device or other thing used for or in connection with any construction work (in this subregulation called “a prescribed matter”)—
(a) does not comply with a regulation that relates to it;
or(b)... is not set up, maintained or used in accordance with a regulation that relates to it,
then the following persons are all liable to a Division 6 fine—
(c)... the employer of any employee who is involved in or in connection with the work;
(d) the owner or lessee of the prescribed matter;
(e) the person in charge of having control of the prescribed matter;
(f) the person who sets up the prescribed matter;
and(g) any person who uses the prescribed matter.”
I take the words “safeguarded” and “safeguards” in regulation 159 to mean a physical barrier between the dangerous part of the equipment and persons who are or might be in the vicinity. It seems to me that the auger of the rig falls within the description “dangerous parts of power driven equipment used on construction work” in regulation 159, and that, as the owner of the rig, Remm had a duty under regulations 159 and 224(2)(d) of the Regulations to ensure that the auger was securely safeguarded to protect persons who are or might be in the vicinity.
Bauer
As the employer of the plaintiff, and as a person who, with Debnam, was in charge or had control of the rig, Bauer had a duty under regulations 159 and 224(2)(c) and (e) to ensure that the auger was securely safeguarded.
Debnam
As a person who, with Bauer, was in charge or had control of the rig, Debnam through Eckert had a duty under regulations 159 and 224(2)(e) to ensure that the auger was securely safeguarded.
Were the defendants or any of them in breach of their duty to the plaintiff with respect to the system of work and the guarding of the auger?
Remm
At the time of the accident, Remm had two safety supervisors on site, namely George Adamson on day shift and Harry Innes on night shift. Both gave evidence, and both said that they regularly observed the BG11 rig in operation, but on no occasion did they see a labourer working within an arm’s reach of the casing while the auger was being withdrawn or replaced. Adamson said he would have stopped the operation and given instructions to remedy the problem. Innes said he would have spoken to the labourer about the danger of debris falling as the auger was being withdrawn, and he also would have had a concern about the safety of the labourer with the auger coming back in.
Adamson and Innes both impressed me as persons who would have been responsible and experienced safety supervisors at the time, with a clear understanding of their duties, and of the role of safety committees, under the Act and the Regulations. I consider that they assumed, and were entitled from their observations to assume, that the system of work did not entail or approve or acquiesce in the labourer shovelling spoil from the casing as the auger was being replaced in the casing. Given that assumption, and leaving aside for the moment the issue of a guard, I do not consider that either safety supervisor had a duty to investigate the system of work in an attempt to expose any latent problem with respect to safety.
In the result, I conclude that the part of the system of work which entailed or approved or acquiesced in the plaintiff shovelling spoil from the casing as the auger was being replaced was not, whilst it remained unobserved by the safety supervisor, a matter over which Remm had a contractual, common law or statutory duty.
It seems to me, on the other hand, that, as the owner of the rig, Remm was in breach of regulations 159 and 224(2)(d) by failing to provide either a guard of the kind proposed by the plaintiff or some other guard of its own choice.
Counsel for Remm contended that the casing met the requirement of the regulation because it was only when the auger was inside the casing that the auger was under power in terms of the expression “power driven equipment”. The expression is defined in regulation 4, but it is unnecessary to go to the definition. For the purpose of regulation 159, I consider that the auger was driven by the power of the rig at the relevant time. There is no dispute that it was in motion at the relevant time.
Counsel for Remm contended that the guard suggested by the plaintiff was impracticable and that its periodic installation around the casing would have brought more labourers into the area of danger. As I have said, Remm did not call any evidence about the plaintiff’s suggested guard or about any other guard. Nor did Remm call any evidence about whether unwanted consequences would have flowed from the provision of a guard. In the absence of such evidence, this particular contention should be rejected as unfounded.
Bauer
Bauer maintained a significant presence at the site, principally through its senior executive, Kevorkian, but also through Graff and two other engineers and/or foremen whose names were Schneider and Dann. Bauer was in charge and control of the rig at the relevant time, and was the employer of the crew that worked on and with the rig. As the employer of the plaintiff, Bauer was in breach of its common law duty, and its duty under s19(1) of the Act, both non-delegable, to provide a safe system of work for the plaintiff.
As the employer of the plaintiff, Bauer was also in breach of regulations 159 and 224(2)(c) by failing to provide either a guard of the kind proposed by the plaintiff or some other guard of its own choice.
In the absence of any proof that the operator’s conduct fell outside the system of work and that he had a view of the plaintiff at the critical time, I do not find that the operator was guilty of casual negligence in failing to keep an adequate lookout.
Debnam
As the person immediately responsible for supervising and directing the drilling work on the plaintiff’s shift, Eckert failed to provide a safe system of work for the plaintiff.
As a person who was in charge or had control of the rig, Debnam through Eckert was in breach of regulations 159 and 224(2)(e) by failing to provide either a guard of the kind proposed by the plaintiff or some other guard of its own choice.
Debnam was the common law employer of Eckert, and is therefore vicariously responsible for his failure to provide a safe system of work.
Contributions between defendants
Each of Bauer and Debnam was in control of the rig at the relevant time and in breach of its duty to provide a safe system of work for the plaintiff. As between Bauer and Debnam, Bauer’s responsibility was greater, because Bauer was the common law employer of the plaintiff. An employer’s duty is not merely to use reasonable care, but also to see that reasonable care is taken by its independent contractors: Kondis v State Transport Authority per Mason J at 687 to 688, Northern Sandblasting Pty Ltd vHarris (1997) 188 CLR 313 per Brennan CJ at 330 to 332.
As well, each of Remm, Bauer and Debnam was in breach of its duty under the Regulations to provide a safeguard for the auger.
Counsel for Remm contended that, if Remm is found to be in breach of the Regulations, it is entitled to an indemnity, not merely contribution, from whomever is found to have been in control of the rig at the relevant time. I do not agree, and I do not consider that the two cases relied upon by counsel, namely Sherras v Van der Maat and Others (1989) QR 114 and Fennell v Supervision and Engineering Services (1988) 47 SASR 6, are in point. Remm’s statutory duty to provide a safeguard did not arise without fault. Like Bauer, Remm had a significant presence at the site, and a significant influence over safety matters at the site, especially through its safety supervisors. It knew, or should have known, of its responsibility under the Regulations as the owner of the rig, and it called no evidence on why a guard of the kind suggested by the plaintiff or some other guard could not have been installed by it or at its direction. In terms of s26 of the Wrongs Act 1936, the contribution from Remm “shall be such as may be found by the court to be just and equitable, having regard to the extent of that person’s responsibility for the damage”.
Each of the various breaches was a cause of the accident and the plaintiff’s injuries. I apportion the responsibility 55% to Bauer, 35% to Debnam and 10% to Remm.
Was the plaintiff contributorily negligent?
Although Eckert’s evidence was that on one or two occasions prior to the accident he warned the plaintiff not to deliberately place his hand on the top of the casing, the accident was not the consequence of any failure by the plaintiff to heed a warning. He did not act deliberately. Rather he instinctively grabbed the top of the casing after his foot had slipped from the shovel and whilst he was working within the scope of his duties. The plaintiff was not guilty of contributory negligence.
Plaintiff’s application for extension of time against the second and third defendants
To the extent that it is relevant to the circumstances of this case, s48 of the Limitation of Actions Act 1936 empowers a court to extend the three year limitation period for personal injury claims, provided that it is satisfied that the action was instituted within twelve months after the ascertainment by the plaintiff of facts material to his case, and provided also that in all the circumstances of the case it is just to grant the extension.
With respect to the action against the second defendant, facts material to the plaintiff’s case were disclosed in a list of documents which his solicitors received from the first defendant’s solicitors on about 11 May 1993. Two of the documents mentioned in the list show that the second defendant was a subcontractor of the first defendant and that the second defendant had written to the first defendant about the accident.
With respect to the action against the third defendant, facts material to the plaintiff’s case were sent to him by his solicitors in a letter dated 10 August 1995 (exhibit P11) and discussed with him by his solicitors in a telephone conversation on 18 August 1995. The letter contains information about Eckert and Eckert Drilling Pty Ltd, the company which now bears the name of Debnam, and about the connection of that company with the rigs on the site.
It is true that, although facts may enliven the discretion, they do not necessarily compel its exercise in favour of an applicant: Brisbane South Regional Health Authority v Taylor (1996) 70 ALJR 866 at 872. Nevertheless, in neither case is prejudice, whether actual or presumptive, apparent, and I consider that the plaintiff has discharged his burden of showing that the justice of the case favours the grant of an extension against both defendants. There will be an order accordingly.
Events relevant to the plaintiff’s claim for damages
The plaintiff was born on 26 August 1963. So he was nearly 26 years of age at the time of the accident, and is 37 years of age now. His first employment after leaving high school was a four year apprenticeship as an aircraft ground engineer with Hawker de Havilland at Bankstown Airport in Sydney. As part of his apprenticeship, he undertook courses in engines and airframes, and graduated with the qualification of aircraft ground engineer. He remained with Hawker de Havilland for a year after completing his apprenticeship. He hoped eventually to obtain work with Qantas, but decided in the interim to work in temporary jobs in Queensland and Sydney and then to holiday around Australia with a friend for about a year. He had been on his holiday for about a month when he arrived in Adelaide. And, as I have already said, the accident occurred about a month after that.
After the accident, the plaintiff was taken by Eckert to the first aid station and then by ambulance to the Royal Adelaide Hospital. Dr James Katsaros operated to repair what he described as a subtotal amputation of four digits. The repair took the form of replanation of the index and middle finger and revascularisation of the ring and little fingers. The fractured bones were fixed with wires. The plaintiff received physiotherapy and was discharged seven days later. He returned to a unit that he was renting with his friend at Unley. Thereafter he was seen every day as an outpatient for further physiotherapy.
The plaintiff’s mother travelled to Adelaide to be with him both before and after his discharge from hospital. His girlfriend, whom he has since married, travelled to Adelaide after his discharge. They provided emotional support to help him overcome the shock of the accident and the impact he thought it would have on his career. They also provided physical support to help him eat, shower, dress and the like. His girl friend had only just received a diploma in applied science qualifying her to become a registered nurse.
The plaintiff remained in Adelaide long enough to enable Dr Katsaros to remove the wires from his fingers. He then returned to Sydney with his mother in a rented car. Dr Katsaros had arranged to transfer him to the care of Dr Kenneth Lee, who first saw him on 16 October 1989. He continued to receive physiotherapy until 1 December 1989.
On 6 February 1990, he was admitted to the Royal Prince Alfred Hospital for four days, and Dr Lee applied a tendon graft to his ring finger and inserted a K wire to maintain full extension. Physiotherapy was resumed between 16 and 21 February 1990, and Dr Lee continued to review progress. The K wire was removed on 22 March 1990, and physiotherapy was again resumed until 23 May 1990.
Dr Lee re-admitted the plaintiff to the Royal Prince Alfred Hospital on 20 June 1990. A tendon was reinserted in his ring finger, and an osteotomy was performed on the middle finger to correct mal-rotation. Again a K wire was inserted in the ring finger to maintain full extension. He was discharged after three days, and physiotherapy was resumed. The wire was removed on 31 July 1990. Physiotherapy was then resumed for six to eight weeks after that.
Later the plaintiff undertook occupational therapy until he returned to work with Hawker de Havilland on 11 February 1991 with the assistance of the Commonwealth Rehabilitation Service. He was in receipt of income maintenance payments of workers compensation to that date.
Following an examination on 23 May 1991, and with no further surgery planned, Dr Lee discharged the plaintiff from his care. Dr Lee saw the plaintiff again on 17 September 1992, and found that there had been no change since May 1991.
On the plaintiff’s return to work in February 1991, he was assigned to Australian Turbine Service, a division of Hawker de Havilland. Australian Turbine Service had a contract with the US Military to overhaul a number of helicopter gas turbine engines known as the Allison 250. The engines had to be stripped, cleaned, tested for cracks and reassembled.
The plaintiff continued with this work for a three month probationary period and for another nine months until the end of the contract. After that he was moved to another engine for about a month and then to what was called the carbon composite layout area. He resigned after about two and a half months, feeling that he could not continue because of problems with his hand. Feeling disillusioned and needing to work out what he was going to do for the rest of his life, the plaintiff decided to travel overseas. He remained overseas, the latter portion with his girlfriend, for just short of two years from about October 1992. He and his girlfriend returned to Australia in about September 1994, and married in November 1994.
The plaintiff was unemployed for a time, did a course on truck driving, and found a driving job on the Gold Coast of Queensland with a spring water delivery company called Palm Springs. At the time he and his wife were living with his parents at Robina on the Gold Coast. His wife was working at a hospital as a registered nurse. He found that he had difficulty with the physical aspects of the work. After three years he was promoted to fleet supervisor. After two years in that position he left because he did not think he was suited to the managerial and relief driving work that the position entailed.
Then, in about July of last year, the plaintiff began working for a person as a mercantile agent, doing mainly debt collections and vehicle recoveries.
The plaintiff and his wife now live with their young daughter in their own house in Bonogin on the Gold Coast of Queensland.
Non-economic loss
It scarcely needs emphasising that the plaintiff’s injuries must have caused him considerable pain over the eighteen or so months of his convalescence and rehabilitation, and significant discomfort thereafter. Doubtless the treatment and surgery were painful as well, and the plaintiff said that the physiotherapy was especially so.
Following an examination on 23 May 1991, Dr Lee wrote that the injuries had stabilised with normal sensation in all finger pulps and an adequate grip. Nevertheless, the doctor was of the opinion that the extent of permanent loss of normal function was as follows:-
index finger 40% (30%)
middle finger 60% (30%)
ring finger 80% (75%)
little finger 50% (65%)
hand overall 45%The figures in brackets are the assessments which a hand surgeon, Dr Peter Menz, made on 22 September 1998.
The plaintiff’s own evidence about the extent of his loss of function was that he was suffering from a mal-alignment in varying degrees of all four fingers, and a loss of flexion and extension in varying degrees in all four fingers. The plaintiff’s right hand was his dominant hand.
In reports of 27 May 1991 and 19 March 1992, Dr Lee wrote that all joints distal to the levels of amputation would have an increased risk of developing early osteoarthritis with pain and instability.
At an examination on 17 September 1992, Dr Lee’s findings were essentially the same as his findings on 23 May 1991.
In a statement of 15 November 2000, Dr Menz said that any post traumatic arthritis should have manifested after 10 years if it was to occur.
The plaintiff told me that he can no longer play his pre-accident sports of water polo, squash, water-skiing and sailing. He fished before the accident and still does so, but he has a problem with wear and tear on his hand. His hand is affected by changes in temperature. He avoids tasks in the house and garden which might jar his right hand. He has problems with using food utensils. He is not confident in climbing ladders. He is concerned about his handshake and embarrassed about the appearance of his hand. He still takes painkillers such as Panadol every two or so days.
I assess the plaintiff’s damages for pain and suffering, loss of enjoyment of life and loss of amenities at $40,000 for the past and $20,000 for the future.
Economic Loss
The plaintiff’s evidence in relation to the work that he did on the Allison 250 following his return to work in February 1991 was that his rate of work was 40% or 50% down on the rate of other engineers on the job. The poor dexterity of his right hand caused him difficulty with gripping small spanners and in handling little nuts. He also had difficulty using his right hand to access confined spaces where it was necessary to work by feel. He constantly knocked his hand on jagged areas. Nuts that fell into the engine through his clumsiness were difficult to retrieve, but had to be retrieved by whatever means possible. He had problems in using thin gauge wire and special pliers to lock bolts together, and he was being constantly cut by the wire. He found that his left hand was no substitute for his dominant right hand. He was assisted from time to time by his immediate supervisor, Mark Robinson.
When he was moved to the carbon composite layout area, his work required him to grip tooling tightly to force carbon fibre around moulds, and he suffered pain and aching which extended into the evening.
With respect to his work with Palm Springs in Queensland, he found that he was unable to carry 19 litre bottles in his right hand, that use of his left hand led to problems in his left shoulder, and that he had trouble unloading bottles from above head height and in grasping the steering wheel with this right hand. As fleet supervisor he found it difficult and painful to write.
It is apparent from the medical and physiotherapy reports, and from his own evidence, that the plaintiff’s motivation during an extended and painful period of reconstruction and rehabilitation was high.
I accept the plaintiff’s evidence that his intention before the accident was to return to his career as an aircraft engineer after his holiday and to seek work with Qantas. I accept his evidence that he is no longer suited to that career and that employment. The photographs of an aircraft engine and the evidence of Mr Robinson and Mr Aramayo provide ample confirmation of the reasonableness of the plaintiff’s decision to look for an alternative. I accept his evidence that his decision to travel overseas arose from disillusionment and the need to work out what he was going to do for the rest of his life. On the other hand, I do not think that this explains why he was away for more than a few months of the almost two years that he was away in fact. I accept his evidence about the difficulties he encountered with his work with Palm Springs.
I also accept the submission of counsel for the plaintiff that the difference between the earnings of the plaintiff and Mr Aramayo is an appropriate starting point for the assessment of his loss of earning capacity, both before and after the trial.
The plaintiff and Mr Aramayo both did their apprenticeship at Hawker de Havilland at the same time and both graduated with trade certificates as aircraft mechanics in January 1986. Like the plaintiff, Mr Aramayo decided to travel before committing himself to permanent employment in the industry. In August 1988, after a brief return to Hawker de Havilland, he obtained employment with Qantas. Over a dozen other Hawker de Havilland employees transferred to Qantas at that time. At Qantas, Mr Aramayo underwent a six month probationary period, became a permanent employee, and successfully completed eleven theoretical examinations on various aircraft engines and frameworks over a two year supervised period. He then obtained further qualifications, in the form of licences, when he undertook type courses on various engines. These courses, which included theoretical examinations, were carried out on the job and certified by a licensed person. During the period 1992 to 1998 Mr Aramayo obtained 8 licences, with an increase in salary each time. For the last two to two and a half years, he has been an acting leading hand responsible for ten employees. Currently he is a licensed aircraft maintenance engineer, level 6. Five acting leading hands are employed on each shift. The next steps for him would be leading hand, perhaps in the next year or so, and then supervisor. He is entitled to substantial concessions on domestic and overseas air travel, and qualifies for long service leave after ten years.
Mr Aramayo presented as a competent and motivated employee in his trade, and the plaintiff presented as a person who, but for his injury, would have been a competent and motivated employee in his trade. Mr Aramayo said he would have had no hesitation in recommending the plaintiff to Qantas. Had the plaintiff undertaken employment with Qantas, it is likely, as I find, that his career path would have followed, after about two years, the career path of Mr Aramayo.
As for the plaintiff’s past economic loss, I accept that, but for the accident, he would have continued to work at the Remm site until the rigs went off site on 4 September 1989. He would then have returned to his holiday without receiving any further income until, say, 30 June 1990. The following table, with figures rounded to the nearest dollar, is based upon copies of tax returns in evidence and upon the estimates of counsel for the plaintiff for the year ended 30 June 2000.
| Year ended | Plaintiff’s earnings | Aramayo’s earnings | difference | ||||||||||
| 30 June | gross | tax | net | gross | tax | net | net | ||||||
| 1991 | $ 9,921 | $ 2,217 | $ 7,704 | $31,247 | $ 7,825 | $23,422 | $15,718 | ||||||
| 1992 | $39,552 | $10,931 | $28,621 | $32,787 | $8,095 | $24,692 | - $ 3,929 | ||||||
| 1993 | $14,207 | $4,348 | $9,859 | $39,846 | $11,327 | $28,519 | $18,660 | ||||||
| 1994 | $43,007 | $12,329 | $30,678 | $30,678 | |||||||||
| 1995 | $12,931 | $2,302 | $10,629 | $49,102 | $14,565 | $34,537 | $23,908 | ||||||
| 1996 | $25,371 | $5,078 | $20,293 | $58,108 | $18,845 | $39,263 | $18,970 | ||||||
| 1997 | $26,677 | $5,596 | $21,081 | $67,621 | $23,569 | $44,052 | $22,971 | ||||||
| 1998 | $29,494 | $6,665 | $22,829 | $72,660 | $24,752 | $47,908 | $25,079 | ||||||
| 1999 | $34,257 | $8,295 | $25,962 | $78,991 | $29,434 | $49,557 | $23,595 | ||||||
| 2000 | $35,000* | $10,000* | $25,000* | $89,790 | $34,712 | $55,078 | $30,078 | ||||||
| estimated* | $205,728 | ||||||||||||
This table does not, as counsel readily conceded, reflect the fact that the plaintiff’s career path would have lagged behind Mr Aramayo’s career path by about two years. The following further table represents an attempt to allow for that difference in timing. In the second and fourth columns, the table compares the plaintiff’s net annual earnings with Mr Aramayo’s net annual earnings two years before adjusted by 3% in each of two years to reflect estimated increases in general salary levels.
| Year ended 30 June | Plaintiff’s earnings | Aramayo’s earnings two years before | Aramayo’s adjusted earnings | difference between Aramayo’s adjusted earnings and plaintiff’s earnings |
| net | net | net | net | |
| 1991 | $7,704 | $21,000* | $22,279 | $ 14,575 |
| 1992 | $28,621 | $22,000* | $23,340 | -$ 5,281 |
| 1993 | $9,859 | $23,422 | $24,849 | $ 14,990 |
| 1994 | $24,692 | $26,196 | $ 26,196 | |
| 1995 | $10,629 | $28,519 | $30,256 | $ 19,627 |
| 1996 | $20,293 | $30,678 | $32,546 | $ 12,253 |
| 1997 | $21,081 | $34,537 | $36,640 | $ 15,559 |
| 1998 | $22,829 | $39,263 | $41,654 | $ 18,825 |
| 1999 | $25,962 | $44,052 | $46,735 | $ 20,773 |
| 2000 | $27,000* | $47,908 | $50,825 | $ 23,825 |
| estimated* | $161,342 |
It should be noted that the third and fourth columns do not reflect the air travel concessions available to Mr Aramayo and other Qantas employees.
I have been told that the plaintiff’s earnings from the accident on 12 August 1989 to the expiry of the contract on 4 September 1989 would have been in the order of $3290 gross. I will assume that that figure would have been below the then thresh- hold and that no income tax would have been payable.
On the basis of the estimated net difference for the year ended 30 June 2000, I will assume that the difference for the period that has elapsed since 30 June 2000 is $16,000. The plaintiff was in receipt of a minimum retainer of $600 per week in his work as a mercantile agent at the time of trial.
I will reflect the need to use gross figures for the period that the plaintiff was in receipt of Workcover payments (Fox v Wood (1981) 148 CLR 438) by adding the tax which the plaintiff paid on those payments, namely $23,331.
It follows from what I have already said that I do not think that the plaintiff was without any earning capacity at all for the almost two year period that he was overseas in 1993 and 1994. Indeed, his evidence was that he worked in London over the winter in a camping and outdoor store. With respect to the period that he was overseas, I will assume that the plaintiff had the capacity to earn $15,000 net.
In the result, the starting point for the assessment of the plaintiff’s pre-trial economic loss can be arrived at as follows:-
12/8/89 - 4/9/89 $ 3,290
1/7/90 - 30/6/00 $161,342
1/7/00 to date $ 16,000
tax on Workcover payments $ 23,331
$203,963
deduct allowance for earning capacity whilst overseas $ 15,000
$188,963
With respect to contingencies, Mr Aramayo has achieved in the upper range of the potential for an employee of his training and experience, and so I consider that some deduction should be made to reflect the chance that the plaintiff would not have done as well. It is possible, although unlikely, that he would have remained at Hawker de Havilland but for his injury. Mr Fin Sode, a former manager of Australian Turbine Services, told me that recent salaries of aircraft maintenance engineers with Hawker de Havilland have ranged between $30,000 to $35,000 and $60,000 to $62,000. The highest earnings that Mr Robinson received from Hawker de Havilland were when he was working on the Allison 250 engines as a supervisor/foreman. His salary then was about $52,000. After taking voluntary retrenchment in 1992, at which time his salary was about $44,000 to $45,000, he joined Hawker Pacific as a technical representative on $40,000 per year. He is now a regional manager for the spare parts distribution of the company on $52,000 with a car.
I assess the plaintiff’s past economic loss at $140,000.
As for the plaintiff’s future economic loss, he told me that, following the hearing and after his resumption of work as a mercantile agent, he expected to go onto a commission and to earn at the rate of about $35,000 to $40,000 gross per year, less the expenses of his car and mobile phone. Although both have the potential to earn more in the future, I consider that, for present purposes, the difference between the plaintiff’s net earnings and Mr Aramayo’s adjusted net earnings can fairly be estimated at $25,000 per year or $481 per week. According to advice supplied by a consulting actuary, the present value at 3% of a weekly payment of $1 to a male of the plaintiff’s age to age 65 or prior death is $953. So the present value of a weekly loss of $481 is $458,393.
The favourable contingency associated with the choice of Mr Aramayo as the comparator is reduced to some extent by the unfavourable contingency that the condition of the plaintiff’s hand will cause him to experience periods of unemployment within and between jobs and by the arbitrary choice of the age of 65 as the end of his working career. There must be some deduction for the chance of sickness and the other so-called vicissitudes of life.
If I seem to have focussed upon the plaintiff’s lost earnings in the aircraft maintenance industry, as opposed to his lost opportunities in other industries which also require hand and finger dexterity, it is because the evidence enables me to examine the value of his losses in the aircraft maintenance industry with a degree of confidence. Nevertheless, what ultimately falls to be assessed is his loss of earning capacity, to the extent that such loss is or may be productive of financial loss, in all the jobs and careers that otherwise would have been open to him.
I assess the plaintiff’s future economic loss at $350,000.
Voluntary assistance
The plaintiff is entitled to recover the value of the services which it was reasonable for him to receive as a result of the accident. The basis of his right to damages under this head is his need for services and the market cost of satisfying that need: VanGervan v Fenton (1992) 175 CLR 327.
I am satisfied that the plaintiff needed emotional and physical support during the intensive phases of his convalescence, and that those needs were met by his mother and his then girlfriend. By “intensive phases of his convalescence”, I mean the weeks which immediately followed the accident and the weeks which immediately followed his operations in February and June 1990. The emotional support assisted the plaintiff to overcome the shock of the accident and to come to terms with his pain and the impact that his disability might have on his life and career. The physical support took the form of assistance with day to day tasks such as cooking, eating, showering, dressing and undressing, taking medication, attending to bandages casts and splints, writing, and washing and ironing.
I am satisfied that the plaintiff also needed, within and beyond the intensive phases of his convalescence, to be driven to and from physiotherapy in Sydney. One or other of the plaintiff’s mother and his then girlfriend were engaged over three hours per day from Monday to Friday in driving and waiting. The physiotherapy lasted with breaks from time to time until September 1990. The plaintiff’s then girlfriend assisted with the driving until she returned to her university studies in March 1990. Thereafter the plaintiff’s mother did all the driving.
The plaintiff’s wife said, and her estimate stood up well under cross-examination, that, in Adelaide and after their return to Sydney, she and the plaintiff’s mother would have spent at least ten hours a day in providing support for the plaintiff. Although it is unclear how long the intensive phases lasted in total, I am prepared to assign a period of 20 weeks at an average of ten hours per day to the intensive phases and a further 36 weeks at an average of four hours per day to the balance of the convalescence. On this approach, the total period of convalescence was 13 months, and ended when the physiotherapy finally ended, that is, in September 1990. Then the plaintiff received occupational therapy before he returned to work in February 1991. I will allow an average of two hours per day for that 5 month period of rehabilitation.
Adopting an average hourly rate of $14.50, the total for the 18 month period is arrived at as follows:-
20 weeks x 7 days x 10 hours x $14.50 $20,300
36 weeks x 7 days x 4 hours x $14.50 $14,616
22 weeks x 7 days x 2 hours x $14.50 $ 4,466
$39,382As for the period since February 1991, the plaintiff’s wife estimated that she had spent two to three hours per day to assist the plaintiff with tasks he would normally do for himself. Then, during her cross-examination, the following exchange took place:-
"Q.... You’ve told us that. As indeed you just confirmed that you now live in Queensland, and the decision to go to Queensland was because, as you’ve told us, Murray’s family was there and he was close to his family, is that right.
A...... That’s right.
Q...... And you and Murray have had a house built for you in Sydney; I’m sorry, in Queensland.
A...... Yes, that’s correct
Q...... And that’s required the setting up of a garden around it.
A...... Yes, that’s right
Q...... And Murray often works in the garden.
A...... Not as often as me.
Q...... You’ve told us Murray is often in the garden doing something; that’s so, isn’t it.
A...... Yes, mainly mowing the lawns. That’s his job, I refuse to do it.
Q...... He also plants out trees and things, doesn’t he, or has done.
A...... Yes, he does. I have helped him do that.
Q...... And he does help with the housework.
A...... Occasionally.
Q...... Not as much as you would like.
A...... That’s exactly right.
Q...... In respect of the housework, is there any specific thing he just never does.
A...... Well, his new job actually requires him to do quite along hours. He’s gone when it’s dark, gets home and it’s dark, so basically, I do everything. He does help me out when I need him to.
Q...... And he certainly helps you out with your baby as well.
A...... Yes.
Q...... Child.
A...... Yes. That’s not a job, for Murray.
Q...... And would you describe your day-to-day life now as really a fairly usual domestic existence.
A...... Yes, and I work part-time as well at the hospital.
Q...... So in terms of things you do for Murray, they are really the usual domestic things that you would do as his wife, given the exigencies of time and demands on yourself and Murray’s time, that’s right, isn’t it.
A...... I’m not sure if that’s a question or a statement, can you please repeat that?
Q...... Yes, in terms of what you do to help Murray, what you do to help him is the normal sorts of things you would do as his wife, given the demands on the time of both of you.
A...... Yes, that’s right, that and more.
Q...... Well, when you say “That and more”, more in the sense you try to do everything you can to help him.
A...... Yes, in that he has a disability and his hands are - therefore I do a bit more than maybe the average wife does.
Q...... Given as you’ve said, he works long hours and you work as well, what sort of things do you spend time doing over and above what you might do, if he didn’t have this disability.
A...... All right, yes, often I do things in the garden that I probably shouldn’t do. I overextend myself because I know that Murray is just not going to be able to do it and if he could do it, it would only be helping me, so I may as well just get in and do it anyway. Just simple things around the house like hanging a picture hook, he has problems with his grip, gripping a hammer, everything with a small grip he has a problem with. Just simple things with Ellie as well, tying her shoelaces, trying to do the buckles up on her shoes, things like that, buttons on Ellie’s dresses, buttons on Murray’s shirts. Just every day things.
Q...... Those sort of things wouldn’t add up to 2 or 3 hours a day would they.
A...... I was asked that question yesterday, and I felt like ‘Gee, how do I add that up so quickly?’, but I suppose when you consider those few things, plus managing his pain, because I am a nurse and I’m always asking him what his pain level is like, giving him medication, getting up in the night, getting medication for him, his hand wakes him up with pain - add all that up, it might not be 2 or 3 hours, it’s definitely there, and its definitely happening.”
The plaintiff was and remains a party to a stable marital relationship, and some at least of the activities described by his wife in her evidence seem to me to fall into the category of the ordinary incidents and the mutual give and take of the relationship. In Van Gervan v Fenton, Deane and Dawson JJ said (at 343 and 344):-
“The assessment of damages for personal injuries in a negligence action is not an exact science. It must always be governed by considerations of practical common sense in the context of the circumstances of the particular case. It may be that, if the appellant has not been married, it would have been reasonable, for the purpose of assessing damages, for him to have continued to live at home and to have employed the services of a seven-day-a-week-live-in housekeeper to attend to his accident-caused needs during the period of seven and a half years following the trial. The facts of the matter were, however, that the appellant was and was likely to remain a party to a stable marital relationship and that the ordinary incidents of that relationship and the give-and-take activities of the parties to it provided a significant part of the active services and passive attendance in and about the matrimonial home which were necessary to look after the appellant’s accident-caused needs. In assessing compensatory damages in that context, the ordinary incidents of a particular continuing relationship, such as joint activities and companionship, cannot, in our view, legitimately be seen as transformed by the injury to one spouse into “services” rendered or to be rendered by the other spouse even if they obviate a need for such “services” which would otherwise exist. Nor, subject to an important qualification, can domestic services which are undertaken, as part of the mutual give-and-take of marriage, by persons in a marital relationship for the benefit of one another and of their matrimonial establishment, legitimately be seen as converted into additional services necessary to attend to the accident-caused needs of an injured plaintiff in circumstances where they would have been performed in the same way and to the same extent in any event. The qualification is that such services will be taken out of the area of the ordinary given-and-take of marriage to the extent that the injuries of the wife or husband preclude her or him from providing any countervailing services. To that extent, the continuing gratuitous services provided by the spouse assume a different character and should be treated as additional services which have been or will be provided by that spouse to look after the accident-cause needs of the injured plaintiff.”
Whatever the accident-caused needs of the plaintiff have been since February 1991, I do not consider that I should make any allowance for the nearly two year period that he was overseas, nor any significant allowance for the period since July 2000 when he began to work long hours in his current job. Obviously, a broad axe approach is required. I propose to allow an average of four hours per week until the plaintiff’s departure for overseas and an average of two hours per week from his return until July 2000. I will then add the global sum of $3000 for the period since July 2000. On this approach, the result is as follows:-
1991 - 45 weeks x 4 hours x $15 $ 2,700
1992 - 39 weeks x 4 hours x $15.50 $ 2,418
1994 - 13 weeks x 2 hours x $17.60 $ 458
1995 - 52 weeks x 2 hours x $17.90 $ 1,862
1996 - 52 weeks x 2 hours x $17.90 $ 1,862
1997 - 52 weeks x 2 hours x $18.90 $ 1,966
1998 - 52 weeks x 2 hours x $20.90 $ 2,174
1999 - 52 weeks x 2 hours x $22.40 $ 2,330
2000 - 26 weeks x 2 hours x $25 $ 1,300
since July 1990 $ 3,000
$20,070Notwithstanding that the arithmetic that I have used to calculate the losses is based upon an arbitrary selection of hours, especially in relation to the post-February 1991 period, I see no warrant for departing from the resultant rounded-off overall total. I award the sum of $60,000 for voluntary assistance.
Loss of superannuation benefits
Just as the plaintiff has lost past and future income, he has also lost the benefit of the contributions that employers would have made on that income towards his entitlement under the Superannuation Guarantee (Administration) Act, 1992.
For the assessment of the plaintiff’s past and future losses under this head, I will again use Mr Aramayo as a comparator. The following table compares the plaintiff’s gross annual earnings with Mr Aramayo’s gross annual earnings two years before adjusted by 3% in each of two years to reflect estimated increases in general salary levels. The estimates for the plaintiff in each of the years ended 30 June 1993, 1994 and 1995 reflect my earlier finding that he retained some earning capacity whilst he was overseas.
| Year ended 30 June | Plaintiff’s earnings | Aramayo’s earnings two years before | Aramayo’s adjusted earnings | difference between Aramayo’s adjusted earnings and plaintiff’s earnings |
| gross | gross | gross | gross | |
| 1993 | $16,000* | $31,247 | $33,150 | $ 17,150 |
| 1994 | $17,000* | $32,787 | $34,784 | $ 7,784 |
| 1995 | $18,000* | $39,846 | $42,272 | $ 24,272 |
| 1996 | $25,371 | $43,007 | $45,626 | $ 20,255 |
| 1997 | $26,677 | $49,102 | $52,092 | $ 25,415 |
| 1998 | $29,494 | $58,108 | $61,647 | $ 32,153 |
| 1999 | $34,257 | $67,621 | $71,739 | $ 37,482 |
| 2000 to age 65 | $35,000* | $72,660 | $77,085 | $ 42,085 |
| estimated* | $216,596 |
On the basis of contribution rates which have ranged from 4% to 9% over the period, and on the basis of certain other assumptions arising at least in part from the judgment of the former Chief Judge of this Court in Bates v Saurbery (1977) 190 LSJS 171, counsel have agreed that the starting point for the assessment of any past loss would be 10% of gross earnings. 10% of the difference between Mr Aramayo’s adjusted earnings and the plaintiff’s earnings is $21,660. Counsel have also agreed that, if the difference in earnings for 2000 to age 65 is the figure shown in the table, then the starting point for the assessment of future loss would be $77,651.
The contingencies which apply to the assessment of economic loss apply also to the assessment of loss of the benefit of employer contributions to superannuation.
I assess the overall loss of superannuation benefits at $75,000.
Other incidental losses
Travelling expenses
On my understanding of the evidence, periods of physiotherapy undertaken from time to time by the plaintiff after his return to Sydney add up to about 27 weeks. On the assumption that the plaintiff had to be driven 90 kms for the round trip or 450 kms per 5 day week, and allowing 46.4 cents per km, the total expenses amount to $5638. Since the number of weeks and the number of five day weeks are not entirely clear, I will allow $4,000 under this head.
Paid assistance
The plaintiff seeks to recover an allowance for the loss of the opportunity to assist the builder during the construction of his house with tasks such as tiling and painting, to service his and his wife’s cars, and to clean the gutters and to paint and otherwise repair and maintain his house.
I accept that, as a practical person with manual skills, the plaintiff would have had to capacity to perform these tasks but for his injury. As to whether he would have chosen to perform any of them in the future, I consider that the chances are he would have done so - probably in the short term and possibly in the long term. The plaintiff told me that he and his wife now have two cars, and that the cost of a service ranges between $150 and $250. The plaintiff said that his house was built in 1999 and that he imagined it would need a total repaint in four or five years. I have evidence that the present labour cost of the painting of both the exterior and interior would be in the order of $6,700, but I doubt that any painting would be required inside ten to fifteen years. The present cost of cleaning the gutters would be in the order of $140.
I assess the present value of the plaintiff’s losses under this head at $10,000.
Future medical expenses
The plaintiff will require medication in the future for pain relief. There is some risk of early osteoarthritis. I allow $1000 under this head.
Special damages
The special damages total $22,354.35, being the amounts paid by Workcover of $13,563.50 for medical expenses, $7,140.85 for hospital expenses and $1,650 for travelling expenses.
Conclusion
The plaintiff is entitled to the following damages:-
Non Economic Loss
past $ 40,000
future $ 20,000
Economic Loss
past $140,000
future $350,000
Voluntary assistance $ 60,000
Loss of superannuation benefits $ 75,000
Other incidental losses
travelling expenses $ 4,000
paid assistance $ 10,000
future medical expenses $ 1,000
special damages $ 22,354
$722,354
In the result, the plaintiff is entitled to judgment for $722,354 against the defendants. As between the defendants, the contributions are: first defendant $72,235, second defendant $397,295, and third defendant $252,824. I will hear counsel on the question of interest.
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